Gold, Greed, and a Vacuum of Law – The Cleveland Civil War Roundtable

By Carol Buchanan
The Cleveland Civil War Roundtable
Copyright © 2011 Carol Buchanan, All Rights Reserved

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 2,286 feet along the Selway river to 10,157-foot Trapper Peak. The primary route across the mountains connecting East Idaho with Lewiston followed the Nez Perce trail. Beginning in October, the 6,859-foot Nez Perce pass is blocked by 20-30 feet 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.

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. (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. (Early History of Idaho)

In failing to provide continuity of law from any of the other territories to Idaho Territory, 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 was 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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