Criminal Law Beyond the State: Popular Trials on the Frontier

I. INTRODUCTION Mark Twain famously called America "The United States of Lyncherdom," and he was not joking.1 America's history of popular violence against unpopular individuals is infamously long and varied.2 It stretches from tarring and feathering in the colonial period, through ante-bellum mob violence against blacks and abolitionists, to vigilantism on the frontier, and finally to the kind of racist lynching that Mark Twain had in mind.3 Before the Civil War, all such group-inflicted punishments were called "lynching," and in this sense, lynching happens in every country.4 Only in America, however, was it widespread and socially acceptable. Modem scholars suggest that this history of communal violence manifests something in the American character. For Maxwell Brown that characteristic is the American propensity to violence5 and the willingness of the elites to use force to maintain the traditional community structure and values.6 Franklin E. Zimring has focused on a tension between "due process values" and "vigilante values" in American culture.7 Similarly, Michael Pfeifer demonstrates that proponents of "rough-justice" - speedy, certain, and severe punishment - rejected the "sentimental" reforms of the criminal justice system.8 Zimring and Pfeifer both show that rural and working-class Americans, especially, believed justice must be seen to be done, stressing "the deterrent and morally enobling [sic] effect of the harsh physical punishment of serious crime."9 They were not satisfied with formal, neutral legal proceedings and punishments behind prison walls. One might expect that if vigilante values triumphed over due process values anywhere, it would have been on the frontier. And, indeed, the American West is famous for its vigilance committees and posses. True, vigilance committees were not anarchic; they often administered trials of some sort.10 But vigilantism's goal was not justice but self-defense. Vigilantes organized to rout out gangs and desperados. Their standard approach was to punish an oudaw or two, sending a message to the rest that the neighborhood was too hot to hold them.11 The vigilante warning was not aimed at individual farmers and ranchers who might have contemplated crime. Indeed, vigilance committees were hardly suitable for dealing with crime within the community because they were hierarchical and semi-secret. It is hard to imagine Americans delegating authority to a committee to seize and punish one of their own, or allowing a Farmer Brown or Rancher Smith suspected of theft to be hanged or whipped without trial. This Article argues that in such circumstances American communities developed a compromise between pure lawlessness and formal law: individual local suspects were given popular trials with substantial due process. While this thesis cannot be validated generally, there is strong evidence of this phenomenon on the overland trail (which has been documented) and in the California gold mines (which has not). When a single member of the community was accused of crime, this Article suggests, the whole settlement held a trial along common law lines, with a judge and jury, witness testimony, and, if there was a conviction, a general vote on the sentence. These "trials" were considered "lynchings" in that the participants took the law into their own hands. Observers also called them both "trials" and "lynchings." They reflected a mix of "vigilante values" and "due process values," showing that frontiersmen were generally committed to both principles - when they dealt with members of their own community. The advocates of due process were also the advocates of vigilantism. Recent scholarship on lynching and vigilantism has focused on the very obvious evils of these institutions, partly in reaction to Hubert Howe Bancroft's "distasteful apology" for lynch law.12 Those evils are now so well established that it will come as no surprise that many California lynchings were nothing more than summary executions. …