Criminal Law Beyond the State: Popular Trials on the Frontier

Brigham Young University Law Review, 2007 by McDowell, Andrea

The miners justified their criminal law not only on the basis of their sovereignty, but also on the ground that it was fair. They saw the jury as the most fundamental procedural safeguard for the accused. Walter Colton, who as alcalde of Monterey impaneled the first jury in California, wrote in 1846 that "[i]f there is any thing on earth besides religion for which I would die, it is the right of trial by jury."233 Confidence in jury verdicts was high; as the Californian newspaper said in its report of one of the first lynchings, "the second sober thought of the people is always right and never wrong."234

In practice, however, the line between a jury trial and self-help was not so clear. When a group of gamblers sought revenge for the killing of one of their own, they held a trial that was a kind of formalized self-help. They pursued the killer, a man named Kelly, and "took him & tried him 8c was to hang him the next day."235 In other words, the friends of the victim tried the suspect. Miners rescued Kelly from the gamblers, however, and planned to hand him over to the authorities for trial.236 In a different incident, a group of Americans transformed themselves into a "jury" when they suspected the only foreigner among them, a Chilean, of stealing a shovel. "Without any further ado the barbarians became the jury," wrote Vincente Pérez Rosales.237 The Americans were in the process of hanging the Chilean when Rosales came by and managed to talk them out of it.238 If Rosales's version of events is correct, then this trial also looks very much like self-help.

Just as the line between the jury trial and trial by the victims of a crime was blurry, so to was the line between jury trial and trial by the crowd. Suspects are sometimes said to have been tried by the "miners' meeting."239 This may be shorthand for "a jury selected by a miners' meeting," but in at least one instance, a "jury" was comprised of all two hundred men present.240 In such a case, the "jury trial" can hardly be distinguished from the work of a mob.

As discussed above, there were miners who condemned lynching.241 Franklin Buck thought the young man he had seen hanged was guilty and deserved his fate but considered lynch law as an institution to be too dangerous. "Heaven preserve me from falling into the hands of an excited people," he wrote. "It is a hard tribunal and if circumstances are against you, however innocent you may be, you stand no chance. Give me a dungeon in the Tombs and all the police of New York first."242 Furthermore, many miners, in their letters home, remarked that their friends and families in the East would disapprove of the practice. As Josiah Royce noted, there is more than a hint of defensiveness in their descriptions of lynching.243

Nevertheless, most miners thought lynch law was justified, not only by the people's right to do what they wanted, but also because it afforded trial by jury.

IV. POPULAR TRIALS ELSEWHERE ON THE FRONTIER

A. Popular Trials on the Overland Trail