Criminal Law Beyond the State: Popular Trials on the Frontier

Brigham Young University Law Review, 2007 by McDowell, Andrea

Every time a new mining camp formed, the miners held a meeting to enact a mining code.221 While this was implicitly an assertion of popular sovereignty, a number of codes made the claim explicit by opening with what may well have been a reference to the opening words of the U.S. Constitution: "we, the miners of Such-and-such District, do ordain and establish the following rules and regulations."222 One code of a somewhat later date, March 5, 1864, went further and echoed the preamble to the Constitution in full:

We the miners and citizens of Warren Hill, in order to form a more perfect and correct understanding among ourselves and all others that may come among us, respecting our rules of mineing [sic] our claims of ground, the condition of becoming peaceable and permanent possession therein, to establish Justice and secure harmony, do enact and draft the Laws as follows.223

In such preambles, the miners viewed themselves as a convention or an assembly of the people, a venerable institution in American history. Far from regarding the practice as extra-legal, one young miner wrote in 1852 that such compacts "show how firmly republican principles are engrafted upon the national manners."224 At the miners' meetings "every man was a legislator yes! more than a congress man for he had a vote & what was better made more than 8 dol[lars] a day."225 True, the laws they enacted sometimes conflicted with those of the United States, "but the sovereigns claimed the privilege of doing that inasmuch as congress in making laws had never anticipated the peculiar circumstances under which Californians labored and consequently had never made laws adapted to the country."226 This sort of panegyric to the miners' ability to organize and govern themselves is ubiquitous in the mining literature, and indeed this self- governance was a remarkable accomplishment. It was a facet of the American character that even foreigners admired.227

Two mining codes included criminal law sections, indicating that the miners believed they had the power to pass criminal laws as well as mining regulations.228 The Jacksonville Code enacted at a miners' meeting on January 20, 1850, is particularly detailed for such an early date.229 Its section on criminal procedure reads as follows:

ARTICLE IV.

All criminal cases shall be tried by a jury of eight American citizens, unless the accused should desire a jury of twelve persons, who shall be regularly summoned by the sheriff, and sworn by the alcalde, and shall try the case according to the evidence.

ARTICLE V.

In the administration of law, both civil and criminal, the rule of practice shall conform, as near as possible, to that of the United States, but the forms and customs of no particular state shall be required or adopted.230

The penalty section provides that the penalty for "willfully, maliciously, and premedi tatedly tak[ing] the life of another" was death by hanging.231 Penalties for the theft of a beast of burden or of $100 or more from a tent or dwelling was punishable by death by hanging, while any person convicted of theft of property worth less than $100 "shall be punished and disgraced by having his head and eye- brows close shaved, and shall leave the encampment within twenty-four hours."232 That the miners of Jacksonville adopted such a code indicates that they felt they had the same authority in criminal matters as in civil matters, and it is clear from Article V that they planned to conform as closely as possible to the procedures of the common law courts.