Criminal Law Beyond the State: Popular Trials on the Frontier

Brigham Young University Law Review, 2007 by McDowell, Andrea

Getting suspects from remote mining camps to the county seat for trial was difficult, involving a journey of several days on horseback, during which the prisoners had many chances for escape.139 It might then be months before the court met. Witnesses were bound to appear at trial, but they did not receive a fee for attending, even though they had to travel great distances and be available for days at a time.140 It is no wonder, therefore, that when the trial finally did take place, key witnesses were often absent.141

The problems of distance were exacerbated by procedural rules poorly suited to the topography of the mines. Local justices had no criminal jurisdiction, even over petty misdemeanors, so all suspects had to be tried at the county seat. 142 The District Court, which tried serious cases, sat only three to five times per year.143 And then there was a probability that the case would be postponed because of objections raised by the defendant's lawyer.144

Finally, the judges and sheriffs were notoriously incompetent and corrupt.145 The Grand Jury of Tuolumne County made a presentment on the disrespect for the laws, which it blamed, in part, on "failures, neglects, and incompetency of public officers."146 This sorry state of affairs was due in large part to the Californians' own failure to elect decent public officials,147 but that did not make the miners less angry about the courts' failure to convict criminals. As one miner wrote, the chances of escape afforded by the slow process of law "created a disposition to inflict summary punishment on the offender rather than allow him the chances of escape afforded by the slow process of the law."148 Many other miners made comments along the same lines.149

Because the miners had so little faith in the authorities, they sometimes seized prisoners and summarily executed them, as when a jealous husband shot a man with whom his wife was too friendly: "He was put into jail, and the crowd took him out and hung him forthwith."150

The most dramatic and confusing incidents were those in which the crowd and the legal officers battled over the prisoner's person, with the officers attempting to get him safely in jail or keep him in jail and the mob fighting to get its hands on him and hang him on the spot. In a typical example, a man in Hangtown was to be tried for murder, but was instead merely examined before the judge and the sheriff and, presumably, remanded for trial. At that point, "the mob raised the cry 'Bring him out! [H]ang him!'" and made a rush for the prisoner.151 He "was seized by the hair and dragged a short distance to an oak tree a rope was put around his neck and over the limb of the tree and some men took hold of the end and hoisted him up as they would a hog to be dressed where he hung until he was dead."152 In another affair, a crowd that had hanged one man for theft decided to keep going. Two other prisoners, both from Sydney, were in the jail. Once the "mob" had hanged the thief, someone shouted, "Let's hang the Sydney Convicts."153 The excited crowd rushed over to the jail, pushed in the door, brought the men out, and hanged them on the same tree as the thief.154