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285 DOI: 10.7330_9780874219203.c013 13 Normative Due Process and Trial Procedure in the Criminal Cases of 1860s Montana Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world? —President Abraham Lincoln, First Inaugural Address, March 4, 1861 W hatever due process vigilantes did or did not provide prisoners must be examined in the context of due process expectations and practices of 1860s America and its territories. During the years following the American Revolutionary War, the idea of using English common law was out of favor, compounded by Anglophobia, American independence and patriotism, and the spirit of reform.1 In fact, statutes were passed by state legislatures in New Jersey, Delaware, Pennsylvania, Kentucky, and New Hampshire specifically prohibiting the precedential citation of cases decided by English courts, and Ohio in 1806 repealed an act that had declared English common law to be in force within the state.2 Over time, however, outside of a few uniquely formed American legal precedents reported in a handful of books, the development of law in the United States and in the territorial frontier had few indigenous sources.3 The resolution of disputed cases often defaulted to recognized English law books that ultimately revived the use and acceptability of the common law.4 As territories were created in the American West, the US Congress typically included a civil and criminal code in each of the territory’s Organic Acts, or at least vested the territorial courts with the authority to apply the common Normative Due Process and Trial Procedure in the Criminal Cases of 1860s Montana 286 law to all cases. Wisconsin was organized on April 20, 1836, Iowa on June 12, 1838, Oregon on August 14, 1848, Minnesota on March 3, 1849, New Mexico and Utah on September 9, 1850, Washington on March 2, 1853, Nebraska and Kansas on May 30, 1854, Colorado on February 28, 1861, Nevada and Dakota on March 2, 1861, Arizona on February 24, 1863, Idaho on March 3, 1863, and Montana on May 26, 1864.5 Later territories were organized for Wyoming on July 25, 1868,6 Hawaii on July 7, 1879,7 Oklahoma on May 2, 1890,8 Puerto Rico on April 12, 1900,9 and Alaska on August 24, 1912.10 Territories would then set their own legal paths upon the later drafting of their individual constitutions.11 Idaho Territory was created when Congress pieced together portions of land taken from the existing territories of Washington, Dakota, Nebraska, and Utah.12 In creating Idaho Territory, of which Montana was initially a part, the US Congress, preoccupied by the Civil War, failed to provide Idaho with any civil or criminal code.13 Clever attorneys therefore argued that there were no actual laws on the books that persons could be charged with violating.14 Indeed, legal precedent developed in Idaho that there could be no criminal prosecutions and convictions absent the existence of a criminal code defining unlawful behaviors. In the 1866 case of People v. Williams, the Idaho Territorial Supreme Court held, on appeal for defendant Williams, that at the time he was initially charged with his crime, there were no laws on the books for him to have violated and hence the charge against him could not stand.15 A similar holding had been rendered by the Nebraska Territorial Supreme Court in Benet v. Hargus, which the reader has already encountered and which related to the first half of 1857 when there were no criminal or civil codes on the books in that territory as well.16 The effect of the Williams decision was that it released all persons incarcerated in Idaho for crimes committed between the establishment of Idaho Territory on March 3, 1863, and the enactment of its criminal code on January 4, 1864, a period of approximately ten months.17 Wilbur Fisk Sanders lamented the reality that “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.”18 On January 4, 1864, Idaho’s First Territorial Legislature rectified the problem by adopting English common law as the basis for all legal proceedings in the territory.19 When Montana was created as a separate territory on May 26, 1864, the US Congress, having not learned from its Idaho mistake, again failed to provide the new territory with any controlling criminal or civil code...

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