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As he helps to bury a murdered friend,
attorney Daniel Stark (the protagonist in my historical novel God's Thunderbolt: The Vigilantes of Montana ) wonders how to
find the killer and bring him to justice:
If. If’s loomed in an aggregate
as heavy as the stone he carried, staggering a bit, over rocks and
pits. If they had a police force. If they had a court capable of
dealing with matters more important than boundary lines and claim
jumpers and petty theft. If the miners court had a judge who knew
anything at all about the law, instead of the popularly elected
president of the mining district, a medical man by training and a
gold seeker by inclination. If they had a jail in which to
incarcerate criminals that a police force caught and arrested. If
they had police. If they had more than three punishments:
whipping, banishment, hanging. If they had any body of law to go
by at all, if Congress had allocated the Constitution to the
Territory when they formed it. If the miners court had a formal,
twelve-man jury instead of the jury of the whole, made up of
anyone – drunk or sober – who happened by when the vote was taken
for guilt or innocence. If. If. And if.
The solution Dan and the murdered
man’s other friends eventually arrive at is to form a vigilance
committee later known as the Vigilantes of Montana.
The term, “vigilante,” arouses
horror and disgust. To most of us, a vigilante punishes or
participates in punishing a perceived wrongdoer outside of the
regularly constituted legal system without due process. The Montana
Vigilantes of 1863-1864, however, did not act in defiance of the
law. There was a vacuum of law, and their actions established the
rule of law.
The circumstances in which they
acted had several defining features:
- Geography, communications, and
administration
- Gold in the millions
- Civil War law
- Legal vacuum
- Miners courts
Geography and Administration
In 1862 and 1863 when the first
major discoveries of gold occurred in future southwest Montana, the
area on the east slope of the Bitterroot range of the Rocky
Mountains belonged to Idaho Territory. This region, known then as
“East Idaho,” was governed from Lewiston, near the present
Idaho-Washington border, more than 400 miles away. Between, the
Bitterroots, an area of 4,868 sq. mi., rise from 2286’ along the
Selway river to 10,157’Trapper Peak. The primary route across the
mountains connecting East Idaho with Lewiston followed the Nez
Perce′ trail. Beginning in October, the 6,859’ Nez Perce′ pass is
blocked by 20-30’ of snow. This road still exists, as a primitive
Forest Service road suitable for 4-wheel drive only with 10-ply
tires recommended. (Modern highway US 12 through the Bitterroots
follows the Clearwater river.)
In 1863, the only winter route
between Lewiston and East Idaho led around this formidable mountain
range – 540 miles south and east to Fort Hall, then north 200 miles
to Bannack,1 a gold camp on Grasshopper Creek. Because
the telegraph had not yet come to the area, stagecoaches carried
mail, or travelers might carry it. Joe would take a letter as far as
he was going, then leave it at a ranch or store or saloon until
someone else volunteered to take it farther. Eventually, it arrived
at its destination.
Idaho Territory was formed March 3,
1863. Governor William H. Wallace arrived in July 1863 and
designated Lewiston as the state capital. Weather, distance, and
terrain complicated administration for the next year.
Gold for the Taking
Prospectors discovered rich gold
deposits on Grasshopper Creek on the east slope of the Bitterroots
in May 1862, two months after Idaho became a territory, and a gold
camp (Bannack) sprang up. A year later, May 26,1863, a prospector
looking for “tobacco money” struck a much greater gold field on
Alder Creek, about 70 miles northeast of Bannack. Before 1866, when
the placer gold played out, people took approximately $20,000,0002
out of Alder Gulch, at a time when a high wage was $3.00 per day.
By the fall of 1863, more than
10,000 people had swarmed into the fourteen-mile-long Gulch.
(Eventually more than 25,000 would be counted.) They came from other
gold camps – California, Nevada, and Colorado. As word spread, they
came from the “states,” too, as refugees and deserters fled the
Civil War. Those with families (about 10% of the population) hurried
to build a cabin before the snow line descended too far, but many
gold-seekers huddled on the banks of the creeks in tents, an
occasional cabin, or in the wagons that brought them. Some found
caves for shelter. A few people got rich, many starved, and most
managed to eke out a living one way or another, by fair means or
foul.
Gold brought not only honest gold
seekers and merchants. It lured the unscrupulous, the dishonest, and
the criminal. By December 1863, an estimated 100 people had
disappeared or been robbed and murdered along the roads into and out
of Alder Gulch.
Had there been an alternative in
law to deal with this situation, a vigilance committee would
probably never have been formed. Unfortunately, there was a vacuum
of law.
A Vacuum of Law
Idaho Territory was formed from
pieces of four other territories: Washington, Oregon, Colorado, and
Dakota. In his Early History of Idaho (1913) former Idaho Governor
William J. McConnell (1893-1897) describes the legal situation:
The organic act which created the
Territory of Idaho failed to provide that the laws of the
Territories, from which the new Territory was created, should
continue in force, until such time as the legislative assembly of
Idaho could enact Civil and Criminal Codes. Hence there was a
period during the first year of Idaho’s territorial existence,
extending from April (sic) 3rd, 1863, until the first legislative
session had met and enacted laws, when we had neither Civil nor
Criminal Acts, and were entirely dependent upon the general laws
of the United States, which were inadequate to meet all
conditions. Consequently, the first legislative assembly was
confronted with conditions requiring prompt and speedy measures.
(p.152)
In People v. Williams, 1 Idaho 85,
during the August 1866 session, the Territorial Supreme Court ruled
in favor of Williams, who appealed his conviction on the grounds
that he could not be found guilty of a crime for which there were no
laws in effect against it. A lower court had agreed, but the
prosecuting attorney appealed. The Court summarized its decision:
We are therefore of (the) opinion
that there was no statute punishing the offense charged in this
indictment at the time it was alleged to have been committed, and
that even if the facts alleged be true no sentence could be
pronounced. The judgment of the court below will therefore be
affirmed. Judgment affirmed. (p. 160, Early History of Idaho)
Gov. McConnell comments:
As will be understood, the effect
of the foregoing decision was that it released from confinement
all prisoners serving sentence for the commission of crimes
committed during the period between the creation of Idaho
Territory March 3rd, 1863, and the passage and approval of
statutes defining such crimes and providing penalties therefor;
or, an interim of approximately nine months during which time
there was no law within the borders of the new Territory to
protect either life or property. (p. 160, Early History of
Idaho)
In failing to provide continuity of
law from any of the other territories to Idaho Ty., Congress left a
legal vacuum. There was no body either of civil or criminal law in
effect to regulate the criminal element that poured into East Idaho
from other parts of the West and the “States.”
The first territorial legislature
in Idaho convened on December 7, 1863, enacted a criminal code on
January 4, 1864, citing the “Common law of England,” and adjourned February
4, 1864, sine die (without setting another date for meeting). East
Idaho had representatives in both the territorial Council and the
legislature, but probably knew little or nothing about the new code,
until the representatives returned. Given winter travel conditions
by stagecoach or horseback, the 740-mile journey home took a month
or more. For an entire year, therefore, Bannack and Alder Gulch knew
of no code of criminal law.
In his unpublished memoir about
forming the Virginia City vigilance committee, Wilbur Fisk Sanders3
wrote:
The immunities which the
constitution of the country and the laws of the United States and
of the subordinate organizations of territories threw around the
citizen gave no warrant to a movement of this kind, but it seemed
that such a movement was not in defiance of such immunities
because neither the constitution nor the laws were present to
assert themselves or to secure to the citizens of this region that
protection which they meant to supply…. (MHS archives, Box 5,
folder 7 – 8)
Sanders may have had the Fifth
Amendment in mind: “No person … shall be … deprived of life,
liberty, or property, without due process of law.” There being no
law in the East Idaho gold fields, Sanders argues that if honest
settlers and gold seekers lacked Constitutional and legal
protection, so did the criminals who preyed on them because “no
person” includes the honest and the dishonest. The protection of the
law extends either to everyone or to no one. One group cannot have
more legal rights – or fewer – than another. Absent the law, the
Vigilantes were free to act as they saw fit to protect citizens.
When Sanders wrote of “the
immunities which the constitution of the country… threw around the
citizen,” he may have been referring to habeas corpus, the right to
be brought before a court to make sure that there is sufficient
grounds for incarceration. President Abraham Lincoln had suspended
habeas corpus on April 27, 1861, fifteen days after the South fired
on Fort Sumter. Article 1, section 9 of the Constitution, reads:
“The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.”
Without a civil or criminal code in
place, the miners courts were the only law for the gold fields.
Law Enforcement and the Miners
Courts
On May 24, 1863, the citizens of
Bannack elected Henry Plummer sheriff of the entire region east of
the Bitterroots. He left soon after to travel 300 miles north to
Fort Benton to get married. While he was away, on May 26 Bill
Fairweather and his friends struck gold at Alder Gulch, and by the
time Plummer and his bride returned, gold seekers had held a miners
meeting on June 6 and organized the Fairweather mining district.
They elected officers, including a president, a recorder (primarily
to record ownership of mining claims), and a sheriff. Early in
September, Plummer persuaded the Fairweather sheriff, J. B. “Buzz”
Caven, to resign in his favor. Then, after being elected sheriff of
Fairweather district, Plummer named a chief deputy to act in his
place, and returned to Bannack.
Over the next six months, by
December 1863, miners organized at least two more mining districts,
Nevada and Junction. Nevada miners elected Robert Hereford as
sheriff, and Adriel B. Davis was elected sheriff of Junction. If
Plummer tried to persuade Davis or Hereford to resign in his favor,
neither man did so.
Each mining district was 1 – 2
miles wide along the creek, and each jealously guarded its own
jurisdiction. The sheriff of Fairweather district had no
jurisdiction in Nevada mining district. A crime committed outside of
any organized district belonged to the mining district closest to
the crime. Nicholas Tbalt (Tiebalt, Tboldt) was murdered in
unorganized territory. The trial belonged properly to Junction
district which was just getting organized, but when a posse of
Tbalt’s friends brought in George Ives on suspicion of his murder,
an impromptu miners meeting in Nevada City voted to keep the trial
in Nevada district, with the consent of the Junction officers, who
shared trial duties.
The president of a mining district
also served as judge of the miners court, which concerned itself
with property law rather than criminal law. Knowledge of the law was
not a requirement for acting as judge. Because there was no federal
mining law until 1866, miners in each mining district were on their
own to devise rules for owning gold claims and water rights. They
set down how claims were to be marked, how big the diameter of a
sluice head should be, the sizes of claims, how many claims a miner
could hold, exemptions for winter (Nov. 15 – May 1), etc. For
punishments, they levied fines, and whipped, banished, or hanged
those they found guilty, depending on the seriousness of their
crimes. Their laws also stated how the punishments were to be
administered and by whom.
Sheriffs in the mining districts
were paid by piece work to enforce mining laws established in miners
meetings. The Bannack miners defined the Sheriff’s duties this way:
… to serve all writs and
executions, and carry out the awards of the Court, and do all
other acts appertaining to his office, and shall receive for his
services, for attendance in Court, during trial, $2.50; serving
warrants, $1.00; serving summons, 50 cents, and 25 cents each for
summoning witnesses and jurors, and 25 cents mileage. (History
of Southwest Montana, A. J. Noyes, Chapter 10: Mining Laws.)
Miners were not big on convoluted
procedures or processes, and a rule of the Fairweather mining
district banned lawyers from appearing. Whatever the miners’ opinion
of lawyers, though, five defense attorneys represented George Ives
during his murder trial December 21 – 23, 1863. They opposed two
prosecutors, Wilbur F. Sanders and Charles S. Bagg. Both prosecutors
were attorneys and military veterans, Bagg a Confederate and Sanders
a Unionist.
The miners court could have two
types of juries, the jury of the whole and the formal jury. The jury
of the whole comprised anyone who was present when the vote was
taken. Sobriety was not a requirement, nor was hearing all of the
evidence. The formal jury was limited usually – but not always – to
twelve men selected by the sheriff. Nicholas Tbalt’s friends wanted
to keep the Ives trial out of Virginia City, where Sheriff Plummer
would have selected the jury, but Fairweather District was also
farthest from the scene of the crime.
In the Ives trial, at the
suggestion of Wilbur Sanders, an “advisory jury” was formed to guide
the jury of the whole. Because Junction and Nevada districts shared
jurisdiction, their sheriffs each selected twelve men to serve. The
advisory jury totaled 24 men.
Because there were no courthouses
or jails built until the summer of 1864 (in Virginia City), trials
took place wherever happened to be convenient at the time. George
Ives’s trial took place in the main street of Nevada City, attended
by 1,500 – 2,000 people, according to one participant.
Conclusion
After they finished their work
(having hanged 24 men) early in February 1864, Montana’s Vigilantes
established a “People’s Court” and named as judge Alexander Davis, a
Southerner who had defended George Ives and served on the Vigilante
Executive Committee. They gave their entire support to this court,
and for some months it was the instrument of justice in the region.
After Sidney Edgerton returned from Washington, DC, on July 1 they
learned the petition to establish Montana Territory had been
successful. On December 5, Chief Justice Hezekiah Hosmer convened a
grand jury in Virginia City and proclaimed that the need for
vigilante action was over, that their work was done.
Footnotes
- Bannack has been known variously
as East Bannack, because Idaho City was also called Bannack at the
same time, and Bannock, both a type of Scottish quick bread, and
the name given to the indigenous Native people. Now known as
Bannack, it became Montana’s first territorial capital and is a
Montana State Park.
- Estimates of the amount of gold
removed from the Alder Gulch region vary wildly, depending on the
range of dates used, because as gold mining technology improved,
the area was mined over and over well into the 20th Century. The
most frequently cited estimate for the years 1863-1866 is roughly
$20,000,000.
- Wilbur Fisk Sanders was not only
the Vigilante prosecutor and a lawyer, he was the elder of Chief
Justice Edgerton’s two nephews to come west. He studied law in
Edgerton’s Akron, OH, office and was admitted to the bar in 1856.
He remained in Montana after his uncle returned to Ohio, and went
on to become Montana’s first U. S. Senator.
 God's Thunderbolt: The Vigilantes of Montana
By Carol Buchanan
BookSurge Publishing 2008
About the author (from the
author's blog):
Carol Buchanan is the award-winning
author of God's Thunderbolt: The Vigilantes of Montana
(2008) and its sequel, Gold Under Ice . God's Thunderbolt won the
2009 Spur for Best First Novel, and Gold Under Ice is a Finalist for
the 2011 Spur for Best Long Novel. During her 20-year stay in the
Seattle area, she wrote Wordsworth's Gardens , which was a Top Ten
Finalist in the Washington State Book Awards. A short story, “Fear
of Horses,” won first place in the 2008 LAURA awards sponsored by
Women Writing the West. She is currently at work on her third novel
about the Vigilante era of Montana’s history, Legal Tender.
Carol lives with her husband in the
Flathead Valley of Northwest Montana, where she can see the towering
Swan Range, a chain of mountains that begins at the southern border
of Glacier National Park. When not writing, she hikes the mountains
or the Park, which the Blackfeet Indians call the “Backbone of the
World.” She also loves to ride or just be with her horse, Gus, who
constantly teaches her about his species. His teachings show up in
the way she writes about horses in her novels.
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