Criminal Law Beyond the State: Popular Trials on the Frontier

Brigham Young University Law Review, 2007 by McDowell, Andrea

Mary Floyd Williams suggested that the mining population abandoned its commitment to due process after 1850. Before the California Constitution was enacted, she argued, the miners believed that their lynch courts were the law's legitimate enforcers and felt the responsibility of their position. But after the creation of the courts, the miners' tribunals "lost their dignity and their ideals of deliberate justice .... Inevitably, they degenerated into angry mobs, that hastened to whip or to hang the accused before the sheriff could intervene ... to forestall punishment or acquittal by the courts."155 In other words, Williams suggests that good faith popular trials lasted only from 1848 to 1850.

Williams's description of lynch law before and after 1850 is too simple, however. Orderly lynchings continued to be held for several years. New mining camps sprang up beyond the reach of the authorities, and these new camps dealt with crime in their own way.156 Furthermore, even when the miners did seize criminal defendants from the officers of the law, they often granted them some form of trial.

Long after 1850, new mining communities confronted the problems of law in the wilderness and used the methods of the lynch trial. Jacob Engle wrote a letter to his brother dated June 3, 1852, in which he reported a theft of $200 from a miner upstream.157 A suspect was seized and the stolen money was found in his possession, "so the miners gathered together and appointed a jury which found him guilty."158 Since the crowd could not decide between the options of hanging the thief or whipping and branding him, a committee was formed to make that decision. It recommended that the thief be given fifty lashes, branded on the cheek, and banished from the region on pain of hanging. These proceedings were indistinguishable from those commonly followed in 1849. Similarly, when a man named Noble was tried for stabbing a man in November of 1853, "[c]ounsel was allowed the accused, and the usual forms were observed."159 The jury advised that the accused should be handed over to the authorities, and a majority of those present sustained the decision.

The miners who took back suspects from the authorities often punished them without a trial, as discussed above, but on other occasions they did hold a trial of some sort. William Binur wrote that "[t]he Officers have got a way of letting Criminals off and the people wont [sic] stand it so they take them from the Shireff [sic] choose a Jury try them and have them strung up in an hour or two which is the only wae [sic] to do it in these parts."160 Although Binur makes the hearing sound like a mere formality, in fact a number of trials of prisoners taken from the authorities were as elaborate as any reported from the mines. For instance, Jesus Sevaras, also known as Charley the Bullfighter, was alleged to have been involved in the gruesome murder of Jacob Mincer.161 He was in the courtroom being tried by the civil authorities when the "five or six hundred miners standing round" decided to try him themselves. 162 They wrested him from the sheriff and took him to the edge of town. There they selected twelve jurymen and "a justice named AJ. Lowell, of St. Louis Council, administered the oath."163 A string of witnesses testified tfiat Charley had been seen in the area about the time of the murder and identified the knife found at the scene as Charley's.164 The jury retired briefly, returned a verdict of guilty, and "asked the people to pass the sentence. Several hundred rose to their feet & declared he should be hung in one hour," which he was.165 Other descriptions of such trials contain less detail but follow the same pattern.166