Criminal Law Beyond the State: Popular Trials on the Frontier

Brigham Young University Law Review, 2007 by McDowell, Andrea

Individuals who condoned popular trials preferred, like the Alta, to deplore summary punishment as something other than lynch law, namely "mob law." William Lewis Manly, for instance, described the notorious Downieville lynching of Juanita as the work of a mob. "She was given a mock trial ... it was a foregone conclusion that the poor woman was to be hanged, and the leaders of the mob would brook no interference."183 Both lynchings described earlier in which prisoners were taken from the authorities and hanged without trial were said to be the work of "the mob."184 On the one hand, this distinction could make the justice of lynch law tautological by asserting that anything that was "unjust" was "not lynch law."185 On the other hand, it set up a continuum between lynch law (orderly and legal) and mob law (disorderly and illegal) that more or less corresponds to the range of cases we see in the mines.

Critics of lynch law, in contrast, described even a typical miners' trial and punishment as "mob law." Henry Veel Huntley, an Englishman whose descriptions of lynch law were always disapproving, used "mob" frequently, as in, "the mob would have Judge Lynch to try him."186 In 1851, Charles Doriot wrote to his brother that "this country is in a Reched [sic] Condition." Among the problems he listed was that the miners did not "[r]espect the laws made in the legislature[;] they make there [sic] own laws[;] thieves and murderers, they generally mob them."187 Louise Clappe, also known as "Dame Shirley," whose letters from Indian Bar provide the most detailed accounts we have of life in any mining camp, also deplored lynchings. The incidents she described were particularly egregious, however, and would have been denounced as "mob law" even by supporters of lynch law. "The mob were for hanging our poor 'Vattel' without judge or jury," she wrote, "and it was only through the most strenuous exertions of his friends, that [his life] was saved."188

In short, everyone condemned mob law or mob action - meaning the punishment of an individual without a jury trial - assuming, of course, that the individual was an American of European descent. 189 The judge, jury, counsel, separation of verdict and sentencing, and delay before the execution of the sentence made lynching "legal" in the eyes of its supporters, at least until there were proper courts. They were safeguards for all members of the community accused of crime.

2. Lynch-law distinguished from vigilantism

The miners never used the term "vigilantes" except for the vigilance committees of 1851, discussed below. Elsewhere on the frontier, however, vigilantism was the most familiar form of organized crime control. The modern view is that vigilantism cannot be distinguished from lynching; that vigilantes were simply lynch parties or that lynching was "instant vigilantism."190 Certainly vigilantism was a form of lynching in its broadest sense of extralegal punishment.191 As this section discusses, however, vigilantism differed from lynch law in its hierarchical organization and in that it sought to deal with a particular threat rather than to punish criminals in general.