Criminal Law Beyond the State: Popular Trials on the Frontier

Abstract

Before the civil war, signified all forms of group-inflicted punishments, including vigilantism and mob killings. By this definition, lynchings happen in every country. Only in America, however, was lynching widespread and socially accepted. Scholars say this shows that the American commitment to due process often succumbed to values, that is, the desire for speedy, certain and severe penalties. They contend that vigilante values triumphed over due process on the frontier, where courts were weak and vigilance committees strong. This article demonstrates that this view must be substantially qualified because due process was of great concern to Americans on the frontier, especially with respect to members of their own communities. The core of the article is a comprehensive study of law in the California gold rush. The thousands of publications on lynching have simply missed this critical chapter in American legal history. Hundreds of accounts of lynchings or (the miners used the terms interchangeably) indicate that most suspects were tried before a judge and an impartial jury, and some were acquitted. Lynchings or trials in the gold mines thus often resembled those on the overland trail studied by John Reid. This article further suggests that similar trials were common on the frontier. Scholars have failed to distinguish these rather poorly documented proceedings from the activities of vigilance committees, thereby omitting an important factor in their studies of the American legal experience. The importance of due process to Americans, even in crowds, and even beyond the reach of the courts, must now be reassessed.