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389 Chapter 19 Capital Punishment and Corporal Punishment in the California Gold Mines Andrea McDowell C apital punishment carried out by private citizens independently of the courts is usually called murder, if it is executed by an individual, and lynching, if it is the work of a crowd. During the California gold rush, however, the tens of thousands of miners in the foothills of the Sierra Nevada found themselves in a peculiar position: there was at first no government, then a government but no courts, and then for some time a court system so inadequate to the circumstances as to leave the mining population in legal limbo.1 The men in the mining camps believed that under these conditions, they had a legal right to try and to punish criminals, just as they assumed the right to pass their own mining regulations.2 Early in the gold rush, it seemed possible that another system of criminal law might emerge, namely, that elected judges would preside over trials. In the fall of 1848, a group of miners caught a suspected thief and named Kimball Dimmick “judge” to try the case.3 Dimmick, a member of the New York bar and a former army officer, organized a court and held “a fair trial conducted on common law principles.”4 The accused was found guilty and sentenced to forfeit all of his property and was banished from the mines. The next day, the court tried and convicted two thieves; it sentenced one to fifty lashes on his bare back and the other to twenty-five lashes. For a while, Dimmick said, he “ruled these ‘diggins,’ meting out Justice and making the laws.” After a month or two, however, he resigned his office and moved to San Jose.5 Talented, respected individuals could do better for themselves than serving as a judge in the goldmines. In the town of Marysville, an alcalde or justice of the peace tried civil and criminal matters long after lynch trials had become the norm in the mines. Stephen Field was elected to the office on January 18, 1850.6 Since the new state constitution of California had just gone into effect, Field was officially appointed to the post. As one would expect from a future chief justice, Field ran a model court. “In criminal cases,” he wrote, “when the offence was of a high grade, I went through the form of calling a grand jury, and having an indictment found; and in all cases I appointed an attorney to represent the people, and also the accused, when necessary.”7 Field said that the population generally recognized his fairness and sustained his decisions. When it came to punishing a convicted thief, however, Field had to bow to the community ’s sense of justice.8 He could not send the 390 Andrea McDowell prisoner to San Francisco to be put in the chain gang because transportation was too expensive, and he could not release the prisoner because the crowd would not have allowed it. Therefore, to save the criminal’s life, and although it was repugnant to his own feelings, Field ordered the man to be given fifty lashes in public and banished from the vicinity. Field privately instructed a physician to observe and see to it that the whipping was not unnecessarily severe.9 Dimmick and Field were able to control a criminal trial because they had the necessary moral authority and willingness to punish, but they were in the minority among alcaldes. In most accounts, alcaldes are described as weak or corrupt , and when a crime was committed, the miners replaced the alcalde with a temporary judge elected from the crowd.10 In other words, the miners resorted to lynch law. Especially in the first years of the gold rush (1848–1850), the miners tried to see that justice was done. Their lynch trials were relatively formal and provided most of the common-law procedural safeguards, such as a jury and a defendant ’s right to counsel. That these trials were not merely pro forma is suggested by the substantial number of acquittals. Also, the crowd frequently reduced an initial sentence of hanging to a less severe form of corporal punishment, often after heated debate. Executions, when they did occur, can therefore fairly be called capital punishment rather than murder. Over time, however, as official courts were created and asserted their authority, miners sped up their proceedings, and these increasingly disintegrated into lynchings as we know the term...

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