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Overview
Using newspaper articles, diaries, letters, biographies, invoices, and books that speak to the compelling history of Montana’s vigilantism in the 1860s, Dillon examines the conduct of the vigilantes in the context of the due process norms of the time. He implicates the influence of lawyers and judges who, like their non-lawyer counterparts, shaped history during the rush to earn fortunes in gold.
Dillon’s perspective as a state Supreme Court justice and legal historian uniquely illuminates the intersection of territorial politics, constitutional issues, corrupt law enforcement, and the basic need of citizenry for social order. This readable and well-directed analysis of the social and legal context that contributed to the rise of Montana vigilante groups will be of interest to scholars and general readers interested in Western history, law, and criminal justice for years to come.
Product Details
| ISBN-13: | 9780874219197 |
|---|---|
| Publisher: | Utah State University Press |
| Publication date: | 11/15/2013 |
| Edition description: | 1 |
| Pages: | 416 |
| Product dimensions: | 6.10(w) x 9.40(h) x 1.80(d) |
| Age Range: | 18 Years |
About the Author
Read an Excerpt
The Montana Vigilantes, 1863â"1870
Gold, Guns, and Gallows
By Mark C. Dillon
University Press of Colorado
Copyright © 2013 University Press of ColoradoAll rights reserved.
ISBN: 978-0-87421-919-7
CHAPTER 1
All that Glitters Is Not Gold
* * *
Standing under the big sky I feel free.
— Biographical notes of A. B. Guthrie Jr.
The first significant discovery of gold in what is now known as the state of Montana occurred on July 28, 1862, at a spring-fed stream at the Big Hole Basin. Its discoverer, John White, named the stream Grasshopper Creek because of the swarms of grasshoppers that infested the area. Settlers rushed to the area and established the town of Bannack, named after the Bannock Indians that frequented the area for hunting. The spelling of the Bannack municipality with an ack instead of an ock is not a mistake, as either spelling was considered correct at the time. Within weeks, Bannack's population grew to four or five hundred persons. It marked the beginning of the Montana gold rush, which, while perhaps not as famous as the 1848 gold rush in California, added to the rich and textured history of Montana Territory.
Today, viewing the pristine, undeveloped mountainous regions of Montana can be awe-inspiring. The state displays vast rolling countrysides, snow-capped mountains in July, broad grassy plains, and glinty meandering rivers. Pulitzer Prize — winning author A. B. Gutherie Jr. once sent his publisher some biographical notes that included a quotation from Gutherie's father, "standing under the big sky I feel free." The quote explained the title of Gutherie's 1947 novel, The Big Sky, and inspired efforts by the state's Highway Department in 1962 to promote tourism by referring to Montana as "Big Sky Country." Reference to Montana as the land of the "Big Sky" can only truly be understood by being there and visualizing its expanses.
Today, Montana is thinly populated. According to the 2010 census data, its population is 989,415 persons, which equals only 6.8 persons per square mile. Montana's population density ranks forty-eighth among the fifty states. The population of the entire state of Montana is approximately only one-eighth that of the City of New York, which has a population of 8,391,881. The territory's population in the late 1860s was a mere fraction of what it is today.
Away from the automobiles, highways, global positioning devices, cell phones, and other electronic gadgets of modern life, a person's mind can transport itself backward in time to the way things appeared in Montana in the mid- and late 1800s. Montana's undeveloped mountains, streams, and even some of its trees may appear today just as they did 150 years ago. The terrain 150 years ago is cognizable as the same place but at a different time, and was occupied by another generation from our not-too-distant historical past. A significant portion of that generation did not consider itself "American," as Montana was not formed as a territory until May 26, 1864, and was not admitted as a state of the Union until November 8, 1889. In the mid-1860s many inhabitants of present-day Montana were relieved to be away from the death and destruction of the Civil War, while at the same time strongly preferring one side of that conflict over the other.
Montana Territory is known in a variety of geographic, historic, and geologic contexts. Its borders include the near-subsurface volcanic activity, hot springs, and pristine beauty of Yellowstone National Park and Glacier National Park. The northern Rocky Mountains extend south through Glacier National Park and, in a broken pattern, to Yellowstone National Park in northern Wyoming. Smaller mountain chains run to the west of Montana's Rockies, such as the Cabinet, Mission, Swan, Garnet, Ruby, and Tobacco Root Mountains. Smaller mountain chains also run to the east, such as Little Belt, Big Belt, Snowy, Judith, Absaroka, Beartooth, Big Horn, and Elkhorn Mountains. Montana consists of some of the most rugged, undeveloped, and picturesque real estate of the United States and perhaps of the planet. The land has been carved by massive glaciers that repeatedly advanced and retreated with the changing climate, creating U-shaped valleys that formed lakes from the melted ice. Drainage systems were created, including the Missouri and Yellowstone Rivers.
Topographically, Montana is also situated on the Great Continental Divide, which runs at a roughly northwest-southeast angle at the Idaho border along the Bitterroot and Beaverhead mountain ranges and through Yellowstone National Park; water draining from the east side of the divide flows toward the Atlantic Ocean and water draining from the west side flows toward the Pacific.
Montana was part of Thomas Jefferson's Louisiana Purchase in 1803. Jefferson commissioned a transcontinental exploration of the region by Meriwether Lewis and William Clark, designed to discover its habitats, geography, and routes to the Pacific coast. Three rivers in the region of Montana's earliest gold rush received their names from the Lewis and Clark expedition on July 25, 1805 — the Jefferson River, named after President Thomas Jefferson; the Madison River, named after Secretary of State James Madison; and the Gallatin River, named after Secretary of the Treasury Albert Gallatin. The Jefferson, Madison, and Gallatin Rivers converge near Three Forks, Montana, to form the mouth of the Missouri River. Montana is also the location of famous battles and hardships that involved the United States Cavalry and Native American Indians. Those include General Custer's Last Stand at Little Big Horn on June 25 and 26, 1876, the Trail of Tears, which was undertaken by Chief Joseph and the Nez Perce Indians and which ended in Montana in 1877, and the Battle of the Big Hole with Chief Looking Glass in August of the same year.
And, as primarily relevant here, Montana is a region in which vigilantism took root in gold-mining communities in the mid- and late 1860s and early 1870s.
The presence of gold and silver in south central Montana is related to the region's history of volcanism and geochemistry. The region is part of the North American plate, which, as a result of plate tectonics, is slowly moving westward over a volcanic "hot spot." Because the "hot spot" is stationary, it has generated a string of volcanos on the westward-moving plate, with the oldest volcanos to the west and the youngest to the east. Some are not conical volcanos like those that are familiar today in places such as Hawaii, but are what scientists instead describe as "super massive volcanos" that erupted 2.1 million years ago, and then 1.3 million years ago, and, most recently, 640,000 years ago. What made the volcanos "super massive" was that multiple volcanic vents erupted simultaneously, emptying enough of the magma chamber beneath the surface that the ground collapsed between the volcanos, creating a new erupting caldera as much as 50 miles by 30 miles wide. The energy released from the eruption 2.1 million years ago was 2,500 times greater than the 1980 eruption of Mount St. Helens in the state of Washington. The eruption 1.3 million years ago threw 67 cubic miles of rock and ash over 1,000 square miles. The eruption 640,000 years ago threw 240 cubic miles of rock and ash over 1,700 square miles. Significant geologic activity continues under Yellowstone National Park today, accounting for its geysers, mud pots, slowly changing elevations, and an average of five minor earthquakes each day.
Where Montana's volcanic history leaves off, the science of chemistry begins. The volcanism of the region produced precious metals near the surface of the earth's crust, including but not limited to yellow gold. Gold formed when its elements hardened from the magma during the volcanic cooling processes. Some of the earth's gold is located on or near the earth's gravel-laden surface and can be easily dug and "sluiced" by prospectors.
For 640,000 years, gold had been present near the graveled banks of rivers and streams in south central Montana, waiting to be found by anyone drawn to it. Earlier societies inhabiting the land had no apparent use for the precious metal. Residents of the United States and the American territories in the 1860s were the first persons who did. Indeed, people moved their families, their lives, and all their earthly possessions to be near gold so that they could either prospect for it or provide goods and services to those who prospected for it. Other people moved to the region to steal the gold acquired by the prospectors. Some persons coveted gold to such a degree that they would lie, cheat, and even kill others, if necessary, in order to possess it. In the 1860s the American dollar was backed by both gold and silver, which is why finds of the precious metals in the western territories were important, valuable, and economically necessary. The presence of gold deposits in the western territories played a pivotal role in the federal government's organization of territories and the eventual admission of those territories as states of the Union, including that of Montana.
There was a cohesiveness to western mining communities. Thomas Dimsdale noted the common struggles of western pioneers, that "[t]hose who have slept at the same watch-fire and traversed together many a weary league, sharing hardships and privations, are drawn together by ties which civilization wots not of." Some aspects of the period have been romanticized, with prospectors traveling west to find their fortunes in gold, living among broad-shouldered ranchers, the fur traders, and the common townsfolk in architecturally distinct wood-framed buildings along a main street. There were rugged mountains and large prairies, herds of buffalo, and Native American Indian tribes in the general vicinity. Always of concern, there were outlaws, murderers, coach robbers, gamblers, horse rustlers, counterfeiters, and petty thieves. People traveled everywhere by horse or horse-drawn coaches. Towns would have one or more saloons and a dance hall. Guns of every description were easy to obtain. Most everyone owned a gun, and the guns were always loaded. According to Thomas Dimsdale, disagreements between men were "commonly decided on the spot, by an appeal to brute force, the stab of a knife, or the discharge of a revolver." It was said that the shooting of a man at a barbershop would not interfere with the business of shaving. Shootings were so common that most persons were not particularly bothered by them, except when the violence was perpetrated in furtherance of robberies, or for murders committed in a particularly brutal manner.
Many history books have been written about the development of the mining communities in the western frontier in the mid-1800s. They describe a more sober, less romanticized time, as historians are necessarily and professionally guided by hard facts and not by romanticism. They naturally cover the vigilantism that took place in Montana in the 1860s, 1870s, and 1880s. Works of fiction have also been written using the period as a backdrop, loosely tied to true historical events, and are far too many in number to list here.
Some of the most rugged and gripping continental history emerges from Montana in the mid- and late 1800s. Its factual and legal history is worth examining not just for history's own sake, but for what it says about human nature and our need for well-structured law governing how people are to act in relation to one another. The generation that found itself occupying pristine land in places like Virginia City in 1863 — 64, Helena in 1865 — 70, and in the Musselshell Valley in 1884 faced challenges to their lives and property without the benefit of established and effective laws, police, prosecutors, courts, or reliable juries.
The story of Montana presents us with how mankind behaves when there is no effective law in place for resolving disputes, which prompted residents to take the law into their own hands. In some ways, it is frightening. But 150 years ago, people lived it. They lived in an undeveloped region, for the most part scratching out a harsh living without the aid of modern conveniences. They confronted crimes of murder and thievery with a mixture of fear and courage. Fear, that serious crimes would be committed against themselves or their loved ones in the near future. Courage, that honest persons would band together to do something to preempt the crime, or at least punish it after the fact, where no established law enforcement could be of meaningful assistance to them. Today, these concepts seem, and in fact are, foreign to us.
Despite all that has been written of Montana's vigilante period by both historians and writers of fiction, virtually nothing has been written of its vigilantism from a focused legal point of view in books, law reviews, and law journals. Acts of vigilantism cannot be divorced from law and the concept of due process as it existed at the time. The intent of this book is to discuss the Montana vigilantism of the 1860s and 1870s from a distinctly historical-legal perspective, ascertainable from the known facts of the events themselves. The purpose here is not to be judgmental toward any person or group, but to adhere as much as possible to what is historically objective. This book examines the conduct of the vigilantes in the context of the due process norms of the time. It also implicates the role and influence of lawyers and judges who, like their non-lawyer counterparts, shaped the history of the region during the rush to earn fortunes in gold at a time when gold was $20.67 an ounce.
Panning for Nuggets
Montana derived its name from the Spanish word montaña, which means "mountainous." There had been sentiment for naming the new territory after President Thomas Jefferson, who had acquired the region as part of the Louisiana Purchase of 1803. The name of the territory was the subject of debate on the floor of the US House of Representatives, prompting alternative names that reflected Unionist and Confederate preferences. In the end, the name Montana was independent of Civil War differences, and it prevailed by a voice vote of the congressmen upon the urging of Representative James M. Ashley (R-OH), who chaired the House Committee on Territories. The highest peak in Montana is Granite Peak, which is among the Beartooth Mountains within Custer National Forest and which reaches 12,799 feet above sea level. Only the western third and southern tier of the state is actually mountainous and forested. Ironically, despite the territory's name, the majority of the state of Montana is not mountainous at all, and instead consists of foothills and flat grassy plains.
CHAPTER 2The Rise and Dominance of the "Fourteen-Mile City" at Alder Gulch
Size and production considered[,] it ranks as the world's richest placer gulch.
— Discovery Monument, Virginia City, Montana
After John White's discovery of gold in Bannack, the influx of prospectors to the area of south central Montana resulted in additional finds of precious metals. On May 26, 1863, gold was discovered in a creek of Alder Gulch in what became Virginia City, Montana, approximately seventy miles east of Bannack. The discovery was made by William Fairweather, who was hoping to find only enough gold to finance a purchase of tobacco.
Fairweather was with a party that included Barney Hughes, Thomas Cover, Henry Rodgers, Henry Edgar, and James "Bill" Sweeney. The men were lucky to be alive, as they had ventured along the Yellowstone River and had been captured and robbed by hostile Crow Indians. Fairweather, who possessed an uncanny ability to handle poisonous snakes, saved his life and the lives of his friends by performing antics with a rattlesnake in the presence of Crow leaders, which resulted in their freedom. The group headed back toward Bannack by crossing the Gallatin and Madison Rivers and camped at an unnamed creek that was surrounded by abundant alder shrubs. There Fairweather found thirty cents of coarse gold in some jutting bedrock and, panning further, earned a quick $1.75. He and the rest of his party then found more gold that day totaling $180.00. Each member of the discovery party staked two 100-foot claims along the gulch, one by the right of discovery and one by "preemption."
(Continues...)
Excerpted from The Montana Vigilantes, 1863â"1870 by Mark C. Dillon. Copyright © 2013 University Press of Colorado. Excerpted by permission of University Press of Colorado.
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Table of Contents
List of Figures ix
Map: South Central Montana xi
Preface xiii
1 All that Glitters Is Not Gold 1
2 The Rise and Dominance of the "Fourteen-Mile City" at Alder Gulch 8
3 The First Factor Leading to Vigilantism in the Region: The Absence of Police, Prosecutorial, and Judicial Authority 21
4 The Second Factor Leading to Vigilantism in the Region: The Value of Gold and Silver 44
5 The Third Factor Leading to Vigilantism in the Region: The Insecure Means of Transporting Wealth 57
6 The Murder of Nicholas Tiebolt and the Trial and Execution of George Ives 89
7 Formation of the Vigilance Committee 119
8 The Hanging Spree Begins 135
9 The Bloody Drama Moves from Bannack to Virginia City 156
10 The Establishment of a Territorial Court at Alder Gulch 178
11 Vigilantism Migrates North to Helena, 1865-70 194
12 The Power of Reprieve and the Execution of James Daniels 231
13 Normative Due Process and Trial Procedure in the Criminal Cases of 1860s Montana 285
14 Due Process and Procedure: Vigilante Arrests and Trials 300
15 Due Process and Procedure: Vigilante Sentences 316
16 Postmortem Echoes of Times Past 338
17 Conclusion 384
Appendix A Organic Act of the Territory of Montana, with Amendment 393
Appendix B Bylaws of the Vigilance Committee 404
Appendix C Petition for the Reprieve and Pardon of James Daniels 406
Appendix D Reprieve of James Daniels 408
Appendix E Military Procedures for Execution by Hanging 409
Appendix F Petition for Pardon of Henry Plummer, May 21, 1993 411
Acknowledgments 414
Bibliography 417
About the Author 433
Index 435