The works of Hubert Howe Bancroft

Front matter

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Preface

During my researches in Pacific States history, and particularly while tracing the development of Anglo-American communities on the western side of the United States, I fancied I saw unfolding into healthier proportions, under the influence of a purer atmosphere, that sometime dissolute principle of political ethics, the right of the governed at all times to instant and arbitrary control of the government. The right thus claimed was not to be exercised except in cases of emergency, in cases where such interference should be deemed necessary, but it was always existent; and as the people themselves were to determine what should constitute emergency and what necessity, these qualifications were impertinent.

Though liable at times to the grossest abuse, I found this sentiment latent among widely spread and intelligent peoples, but in a form so anomalous that few would then admit to themselves its presence among their convictions. It was a doctrine acted rather than spoken, and existing as yet in practice only, never having through formulas of respectability worked itself out in theory. Yet it was palpably present, more often as a regretted necessity^ usually denounced in judicial and political circles, though clearly operating under certain conditions to the welfare of society.

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viii PREFACE.

Finding on tliese Pacific shores, in a degree superior to any elsewhere appearing in the annals of the race, this phase of arbitrary power as displayed by the many Popular Tribunals here engendered, I pressed inquiry in that direction, and these volumes are the result. It is all history; and though herein I sometimes indulge in details which might swell unduly exact historical narration, I have felt constrained to omit more facts and illustrations than I have given. These omissions, however, are not made at random, or to the injury of the work, but only after carefully arranging and comparing all the information on the subject I have been able to gather.

And the material was abundant. Beside printed books, manuscripts, and the several journals of the period advocating the opposite sides of the question, I was fortunate enough to secure all the archives of the San Francisco Committee of Vigilance of 1851, and to obtain free access to the voluminous records and documents of the great Committee of 1856. But this was not all. Well knowing that the hidden workings of the several demonstrations could be obtained only from the mouths of their executive officers, I took copious dictations from those who had played the most prominent parts in the tragedies. From one member I learned what occurred on a given occasion at the point where he happened to be; from another, what was taking place at the same time at another point of observation; and so on, gathering from each something the others did not know or remember. By putting all together I was enabled to complete the picture of what were otherwise a conglomeration of figures and events.

At first I found the gentlemen of 1856 exceedinglv

PEEFACE. IX

backward in divulging secrets so long held sacred; and it was only after I had given them the most convincing assurances of the strength and purity of my purpose that I obtained their united consent to place me in possession of their whole knowledge of the matter. Often had they been applied to for such information, and as often had they declined giving it. And for good reasons. They had offended the law; they had done violence to many who still cherished hatred; they had suffered from annoying and expensive suits at law brought against them by the expatriated; they had disbanded but had not disorganized, and they did not know at what moment they might again be summoned to rise in defence of society, or to band for mutual protection. From the beginning it was held by each a paramount obligation to divulge nothing.

On the other hand the questions arose : Are these secrets to die with you? May not the knowledge of your experience be of value to succeeding societies? Have you the right to bury in oblivion that experience, to withhold from your fellow-citizens and from posterity a knowledge of the ways by which you achieved so grand a success? And so after many meetings, and warm deliberations, it was agreed that the information should be placed at my disposal for the purpose of publication.

However I may have executed my task, the time selected for its performance was most opportune. Ten years earlier the actors in these abnormal events would on no account have divulged their secrets; ten years later many of them will have passed away, and the opportunity be forever lost for obtaining information which they alone could give.

CHAPTEE I. "'°'-

ABEEBATIONS OF JUSTICE, AUCIENT AND MODEEN, 1

Chapter II. Chaptee III

ENGENDEKIN& CONDITIONS, 46

CHAPTEE IV.

SIGNIFICATIONS OF STOEM, 61

CHAPTEE V.

CHAPTEE VI.

THE SAN PEANCISCO SOCIETY OF EEGULATOBS, 88

CHAPTEE Vn.

THE ADVENT OF LAW, 103

CHAPTEE VIII.

CHAPTER IX.

LAW AND DISOEDEE, 129

CHAPTEE X.

MOBOCEACY IN THE MINES, 142

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jtu CONTEN'TS.

CHAPTEE XI.

FURTHEE ANTICS OF JUSTICE IN THE COUNTBT, 158

CHAPTER XII.

THE BUEDUE-STtTAET AITAIE, 179

CHAPTER XIII.

OEGANIZATION Or THE SAN FEANCISCO COMMITTEE OF VIGILANCE

CHAPTER XIV.

CHAPTER XV.

CHAPTER XVI.

THE SAN FRANCISCO EXECUTIVE COMMITTEE OF 1851, .... 240

CHAPTER XVn.

CHAPTER XVIII.

CHAPTER XIX.

EXIT JAMES STUAET, 286

CHAPTER XX.

CHAPTER XXI.

OPPOSITION TO VIGILANCE ADMINISTRATION, 313

CHAPTER XXII.

WHITTAKER AND MoKENZIE, 335

CHAPTER XXIII.

THE CIECUMVENTOES CIECUMVENTED, 350

CONTENTS. xiii

CHAPTER XXIV. ^^<'^-

MINOE EASOAIITIES, 3G7

CHAPTER XXV.

THE INQUISITOBS IN COONCIL 380

CHAPTER XXVI.

CLOSE OF THE FIRST CKUSADE, 393

CHAPTER XXVII.

BEFORE THE -WOULD, 407

CHAPTER XXVIII.

EXTENSION OF THE VIGILANCE PBINCIPLE, 429

CHAPTER XXIX.

CHAPTER XXX.

CHAPTER XXXI.

CHAPTER XXXII.

THE POPULAR TRIBUNALS OF UTAH AND NEVADA, 593

CHAPTER XXXIII.

THE POPULAR TRIBUNALS OF OREGON, WASHINGTON, BRITISH COLUM- BIA, AND ALASKA, 622

CHAPTER XXXIV.

CHAPTER XXXV.

POPULAR TRIBUNALS OF MONTANA, 67-t

CHAPTER XXXVI.

THE POPULAR TRIBUNALS OF ARIZONA, NEW MEXICO, AND MEXICO, 722

POPULAR TMBUJSrALS.

CHAPTER I.

ABERRATION'S OF JUSTICE. ANCIENT AND MODERN.

At Halifax the law so sharpe doth deale, That whoso more than thirteen pence doth steale, They have a jyn that wondrous quick and well Sends thieves aU headless into heaven or hell.

Taylor, The Water Poet.

Popular tribunals, wherein is attempted the illegal administration of justice by the people, have become quite prominent among those social paroxysms incident to rapid progress. The principle in its several phases, and as at present existing, is essentially a latter-day development. Dangerous or otherwise, it is the outgrowth of enlightenment, of intellectual emancipation. While the doctrine of the divinity of law, that is of statutory or other than natural law, held bound men's minds, there were comparatively few examples of illegal justice; but when it came generally to be felt that statutes were no more sacred than the men who made them, legal impositions and vicious technicalities were less patiently endured.

Not that antiquity was wholly without its rightcompelling powers, but they were of a different order from our modern demonstrations. But neither the old nor the new were such as Plato would have chosen for his Republic, or Saint Augustine for his City of God, or

YOL. I. 1

Sir Thomas More for his Utopia, or Lord Bacon for his New Atlantis. A theorist could scarcely have concocted so paradoxical a proposition as the modern popular tribunal, and the thing was left to concoct itself.

There was government by factions in the olden time, such as in the days of Cicero and Pompey kept Rome for nearly four years in a state of anarchy. It was Clodius and his hired gladiators who did it. Even as at present, sometimes, assassins were at work ; elections were tampered with, and the senate was overawed. Men talked of military rule, the thought of which was pleasing to both Pompey and Csssar; for strange to say, when backed by strong battalions, the rival allies both loved to reign. How it would have endea it is difficult to say, had not Milo and his partisans, likewise with a patrol of gladiators, opposed and finally overthrown Clodius. But for a time, like the Capulets alnd Montagues at Verona, the jD^rties of Clodius and Milo walked the streets of Rome, bidding defiance alike to governors and governed.

In feudal times almost every state had its system of secret tribunals, where judgments, most unexpectedly to the victims, were passed in darkness and executed in the light. Whereat innocent and guilty alike trembled; no one could tell when his own turn would come, or when he might be executed for he knew not what. The guilty mind was thus always on the rack, and fortunate was the offender who was not first condemned and then caught.

During the Middle Age the knights of Germany formed an independent feudal order, and threw off allegiance to any prince. Their depredations at first were not incompatible with the then existing ideas of respectability, but as they were driven into corners by the growth of towns, the order degenerated toward the close of the fifteenth century, until its members were nothing less than highwaymen. In 1522 they infested the country round Nuremberg, and took many

ANCIENT TRIBUNALS. 3

prisoners. They had a fashion of cutting off the right hand of those they captured, thereby rendering them helpless in any future encounter.

There were several terms used in bygone times to denote the process of punishing first and trying afterward. There was Cowper law, due to a baron-baile in . Coupar- Angus, before the abolition of heritable jurisdiction. We find also the expressions Jedburgh, Jedwood, and Jeddart justice ; also Lynford law, from a fortified town of that name in Devon, where criminals were confined, before trial, in a dungeon so loathsome that no punishment could be greater.'

Venice had its Council of Ten, a secret tribunal of the republic, instituted subsequent to the conspiracy of Tiepolo. It was originally composed of ten councillors, arrayed in black. Soon six others in red were added, and these together with the doge exercised unlimited power. Temporarily established at first, it was continued for a time from year to year, and finally in 1335 declared permanent. As late as 1454 we find this tribunal exercising its secret pleasure, in the name of justice, under the following arrangement: Citizens, chosen by the Council as inquisitors to execute its will, must not refuse to serve. The inquisitors might proceed against anyperson, no matter of what rank; they might pronounce the death sentence, or any other; they had charge of the prisons, and drew money from the treasury of the Council of Ten without question as to its use. The proceedings of the tribunal must be always secret ; its members must wear no distinctive badge; no open arrests should be made, no public executions, but the condemned of the tribunal should be drowned at night in the Orfano Canal. The relatives of the escaped offenders should be punished; any offensive official might be secretly assassinated. This happy state of things continued until the fall of the republic, in 1797. •

In France there were the Council of the Ancients, and the Council of Five Hundred, and in Spain the

ABERRATIONS OF JUSTICE.

Council of Castile; but these, and many others similar,, were bodies advisory of the goyernment, and acted in that capacity, or subject to the regulations of the government, and not in antagonism to it.

Aragon and Castile boasted their Holy Brotherhood, and for centuries their sovereigns smiled on its important services. In Spain, during the thirteenth and fourteenth centuries, along the line dividing the hostile Goth and Arab, the frontiers of both Spanish and Moslem domination, law was impotent and anarchy mightier than kings. The towns were obliged to league for mutual protection. Associating under the name of Santa Hermandad, or Holy Brotherhood, they levied contributions for their support, and organized troops for service. They protected travellers, pursued criminals, and appointed judges who paid little heed to what the lord of the domain might think of it, or to his laws or jurisdiction. They scoured the mountains for robbers, and caught, tried, and executed them after their own fashion for many scores of years. But here, also, the king gave both favor and support to the association.

The Vehmgericht of Westphalia has been held up as an institution of which the present popular tribunal is a representation; but there is little in common between them, either in letter or in spirit.. The Vehmgericht was a secret tribunal, established for the preservation of the true faith, the promotion of peace, and the suppression of crime. AH its doings were enveloped in mystery. Its secret spies penetrated to the remotest corners of Germany, its judges were unknown, its judgments were swift, and their execution was certain.

Scotland once gloried in a sort of lynch-law, called burlaw, from the Dutch haur, a boor, or rustic. In the rural districts the people made certain laws to suit emergencies, and appointed one of their number, called the burlaw-man, to see them executed. Two and a half centuries ago there was what was called Halifax

FRANCE AND ENGLAND. 5

law, which committed thieves for execution to the Halifax gibbet, which was a kind of guillotine. Robespierre proposed a decree which, in 1793, established a Committee of General Security, exercising power superior to the convention. To this was auxiliary the Committee of Public Safety, of which Robespierre likewise was a member.

An incident is mentioned by M. Hue, which happened during his journey through the Chinese Empire in company with certain Catholic priests, which shows how easily intimidated are the subordinates of arbitrary power by a counter display of like pretended power. A Chinese Christian, Tchao by name, zealous in his regard for the spiritual fathers thus unexpectedly visiting the country, sent the travellers a present of some dried fruit, accompanied by a' letter. A military mandarin, overwhelmed with curiosity, secretly opened the package and attempted to read the letter, but was caught in the act. The missionaries, who were travelling under protection of the emperor, clamored loudly over the insult. They demanded that Tchao, whom the prefect had ordered imprisoned as a disturber of the peace for having thus communicated with the travellers, should be brought before them for trial; and two foreigners, if we may credit their story, did actually so frighten the magistrates that they yielded their place in the tribunal, and permitted the missionaries to try and to acquit the prisoner.

England in Anglo-Saxon times found a necessity the witena-gem6t, or great national council, by which the king's title must be recognized and his acts regulated, and to which all courts of justice were subservient. When abolished by William the Conqueror, its powers were transmitted to parliament only in part.

Such are some of the prominent examples of history which at various times, and by men not the most thoroughly familiar with the subject, have been compared with the modern Committee of Vigilance, which in its higher aspect is the highest form of the popular tribunal. If antiquity can furnish us no more pertinent illustrations than these, then we are safe in saying that nothing exactly similar to our present popular tribunal was known to the ancients. If nothing of the kind can be found in Europe, then to America must be given the honor or odium of it. In all the cases cited there is something of government by faction, or of military rule, or of rebellion against the powers that be, or of secret or open tribunals acting under law, or of legally sanctioned aids to government, or of revolution, civil war, or highway robbery. Now whatever our popular tribunal may be, it is none of these- it has no such ingredients in its composition. As we approach the time of Lynch and lynching, we come nearer our present development, but we do not quite reach it even then. As to the origin of the term lynch-law, opinion is divided. There was in 1493 a mayor of Galway, Ireland, named James Fitzstephens Lynch. He was in the wine trade, and received cargoes from Spain. Thither he once sent his son with money to buy wine. The son squandered the money, but purchased a cargo on credit. A nephew of the Spanish seller of the wine accompanied young Lynch on his return voyage, for the purpose of receiving pay for the wine on reaching Ireland. To hide his defalcation, before reaching home Lynch threw the Spaniard overboard. In time information of the son's crime reached the father's ear. The young man was tried and condemned, the father being judge. The family interfered to prevent the execution; but the father, lest the ends of justice should be defeated, with his own hands hanged him from a window overlooking the street. Hence, as some say, the term lynch-law. Others refer the honor to the founder of Lynchburg, Virginia; yet others to a Virginia farmer, named Lynch, who once whipped a thief instead of delivering him to the sheriff. In 1687 one Judge Lynch, to suppress piracy which was

THE TEEM LYNCH LAW. 7

ruining commerce in American waters, is said to have executed justice summarily, regardless of forms of law. Another account makes John Lynch, a native of South Carolina, the judge. This man followed Daniel Boone to Kentucky, where he was cjaosen chief of twelve jurors to try causes informally. Which, if any, of these accounts is correct is a matter of small moment. What we are to understand at present by the term is what chiefly concerns us. When the Piedmont country of Virginia was the backwoods of America, without law, summary executions were common ; and the accident which applied the term Lynch to illegal executions will never positively be known. Whatever else it was, in its original use it was not a term of reproach, but a mark of the high character and moral integrity of the people.

It was on the western frontier of the United States, and during the last half century, that the popular tribunal in its broadest proportions was reached. All that time and before it, beginning just back of the English plantations, this frontier had been shifting, extending farther and farther to the westward, until the valley of the Mississippi was reached. Upon this border, as upon the edge of mighty fermentations, accumulated the scum of the commonwealth. The spirit of evil was ever strong, and government was weak. Society there was low and brutal, and the lynchers were not always much better than the lynched. After Missouri and Arkansas for a time had colistituted the frontier, a leap was made by war and western progress to California, and the popular tribunal, seemingly purified by the passage, settled upon the newly found gold-fields. Here, at the ultima Thule of western migration, the institution found itself in an element totally different from any it had ever before enjoyed. The people were active and able; many of them were educated and intelligent; most of them were honest. But there were some rogues present, else enginery for punishment had never been required. It was then that the popular tribunal assumed respectability and took a new name. The somewhat besmeared terms mob-law, lynch-law, and the like, were discarded, and the more pleasing titles of Regulators, Committee of Safety, and Committee of Vigilance were adopted.

In Nevada, Utah, Montana, and Idaho, in all frontier settlements, before the machinery of territorial legislatures and law courts was in working order, before laws were framed or executed, a tribunal formed of citizens was found necessary to prevent wholesale robbery and murder. Order-loving men, as were they who composed these tribunals, were backward enough in assuming the unwelcome duties, usually taking no steps to organize until after a score or two of murderers had escaped punishment. Each new western state, as it began to be settled, attracted thither villains of every dye, who kept the community in constant fear until it purged itself by the swift and sure executions of mobocracy or vigilance committees.

What then has the popular tribunal here become? What is a vigilance committee, and what mobocracy? The terms vigilance committee, mob-law, lynch-law, are not, as many suppose, synonymous. In some respects they are diametrically opposed in principle and in purpose. The vigilance committee is not a mob; it is to a mob as revolution is to rebellion, the name being somewhat according to its strength. Neither is a tumultuous rabble a vigilance committee. Indeed, prominent among its other functions is that of holding brute force and vulgar sentiment in wholesome fear. The vigilance committee will itself break the kw, but it does not allow others to do so. It has the highest respect for law, and would be friendly with the law, notwithstanding the law is sometimes disposed to be ill-natured; yet it has a higher respect for itself than for ill-administered law. Often it has assisted

VIGILANCE COMMITTEES AOT) MOBOCRACY. 9

officers of the law in catcTiing offenders, and has even gone so far as to hand insignificant and filthy criminals over to courts of justice for trial rather than soil its fingers with them.

The doctrine of Vigilance, if I may so call the idea or principle embodied in the term vigilance committee, is that the people, or a majority of them, possess the right, nay, that it is their bounden duty, to hold perpetual vigil in all matters relating to their governance, to guard their laws with circumspection, and sleeplessly to watch their servants chosen to execute them. Yet more is implied. Possessing this right, and acknowledging the obligation, it is their further right and duty, whenever they see misbehavior on the part of their servants, whenever they see the laws which they have made trampled upon, distorted, or prostituted, to rise in their sovereign privilege and remove such unfaithful servants, lawfully if possible, arbitrarily if necessary. The law must govern, absolutely, eternally, say the men of vigilance. Suffer inconvenience, injustice if need be, rather than attempt illegal .reform. Every right-minded mau recognizes the necessity of good conduct in human associations, to secure which experience teaches that rule is essential. In a free republican form of government every citizen contributes to the making of the laws, and is interested in seeing them executed and obeyed. The good citizen, above all others, insists that the law of the land shall be regarded. But to have law, statutes must be enacted by the people ; governments must be administered by representatives of the people; officials, to be officials, must be chosen by the people. Law is the voice of the people. Now it is not the voice of the people that vigilance would disregard, but the voice of corrupt officials and bad men. Law is the will of the community as a whole; it is therefore omnipotent. When law is not omnipotent, it is nothing. This is why, when law fails — that is to say, when a power rises in society antagonistic at once to statutory law and to the will of the people — the people must crush the enemy of their law or be crushed by it. A true vigilance committee is this expression of power on the part of the people in the absence or impotence of law. Omnipotence in rule being necessary, and law failing to be omnipotent, the element here denominated vigilance becomes omnipotent, not as a usurper, but as a friend in an emergency. Vigilance recognizes fully the supremacy of law, flies to its rescue when beaten down by its natural enemy, crime, and lifts it up, that it may always be supreme; and if the law must be broken to save the state, then it breaks it soberly, conscienti9Usly, and under the formulas of law, not ill a feeling of revenge, or in a manner usual to the disorderly rabble.

Surely vigilance has no desire to hamper legislation, to interfere with the machinery of courts, to meddle in politics, to alter or overthrow the constitution, or to usurp supreme authority. Its issue is with the mal-administration of government, rather than with government itself Its object is to assist the law, to see the law righteously executed, to prevent perversion of the law, to defeat prostitution of the law, and not to subvert or debase the law. And to accomplish its purpose, it claims the right to resort to unlawful means, if necessary. Therefore it is easy to see that the vigilance principle does not spring from disrespect for law. Wherever law has been properly executed there never yet was a vigilance committee. The existence of a vigilance organization is a priori proof of the absence of good government. No well-balanced, impartial mind will condemn the existence of a vigilance committee in the absence of properly executed law; no right-thinking man will for a moment countenance a vigilance organization, could such a thing be, in the presence of good laws, well executed.

Thus defined, the principle of vigilance takes its place above formulated law, which is its creature, and is directly antagonistic to the mobile spirit which

THE PRINCIPLE OF VIGILANCE. 11

springs from passion and contemptuously regards all law save the law of revenge. While claimino: the full right of revolution, it does not choose to use it, because it is satisfied with the existing forms of govern ment. I do not like the term imperium in imperio, so often applied to it. Vigilance is the guardian of the government, rather than a government within a government. This, then, is vigilance; the exercise informally of their rightful power by a people wholly in sympathy with existing forms of law. It is the same inexorable necessity of nature which civilization formulates in statutes, codes, and constitutions under the terms law and government, but acting unrestrictedly, absolute will being its only rule. The right is claimed by virtue of sovereignty alone. Under nature man is his own master. As God cannot make a being superior to himself, so society cannot establish rules for its convenience which the central power or majority of the people have not the right at any time or in any manner they see fit to disregard or annul.

Moreover, between the terms mob- violence or lynch-law and vigilance committees there is this further distinction: they are often one in appearance, though never one in principle. Often the same necessities that call forth one bring out the other ; though in execution one is as the keen knife in the hands of a skilful surgeon, removing the putrefaction with the least possible injury to the body politic, the other the blunt instrument of dull wits, producing frequent defeat and disaster. The mobile spirit is displayed no more in a respectable and well-organized committee of vigilance than in a court of justice. There is no more resentment, no more furious desire to destroy a hated object in the one than in the other. Scrutinize as you will the character and conduct of the higher of these tribunals, and you fail to discover any of the elements of an uncontrolled mob. Time enough they take for deliberation, time enough for conscience and duty to be fully heard; then, with the sacred principles of truth and justice before them, feeling that the eye of their maker and of all mankind is upon them, their minds aaade up, they act with cool, determinate courage.

Again, although vigilance and mobocracy have in principle little in common, they are sometimes found assuming much the same attitude toward law and toward society. Both set up their will in opposition to legally constituted authorities ; both break the law, bid defiance to the law, and if it still stand in their way, snap their fingers in the face of law. The object of their members in associating is that they may be stronger than the oflScers of the law; in the eyes of the law both are equally criminal, both are banded brawlers, murderers, traitors. Both tyrannize tyranny, rule their rulers, and become a law unto themselves. Yet there are these further differences between them : One aims to assist a weak entrammelled government, whose officers cannot or will not execute the law ; the other breaks the law usually for evil purpose. One is based upon principle, and the other upon passion. One will not act in the heat of excitement ; the other throws deliberation to the wind. One is an organization officered by its most eflBcient members, aiming at public well-being, and acting under fixed rules of its own making; the other is an unorganized rabble, acting under momentary delirium, the tool, it may be, of political demagogues, the victim of its own intemperance. Underlying the actions of the one is justice; of the other revenge. This constitutes the difference, and by this standard we may distinguish one from the other; wherever we find a body of armed members of the community acting contrary to law or in opposition to officers of the law, be it composed of the best citizens or the worst, be its existence a necessity, its acts productive of social well-being, or otherwise, if it is an organized band, acting under fixed rules, acting with coolness and deliberation, with good intentions, determined to promote rather than to defeat the ends of justice, such a body is what upon the Pacific

THE EVILS OP MOB LAW 13

Coast has become to be known as a. Committee of Vigilance. Though it may have tae same object in view, and though it may accompHsh the same results, if the body or association be not organized or officered, if it be without constitution, by-laws, rule, or regulation, acting under momentary excitement or in the heat of passion, careless of the administration of justice, swayed only by resentment, intent on making a display, infuriate, unreasonable, vengeful, it is a mob, though composed of doctors of divinity.