The Law in Idaho in 1863

Without any statutory law, gold seekers in Idaho had to rely on:

    The Ten Commandments
    “Natural Rights” as in The Declaration of Independence (1779) and
    The “Rights of Man” (1791) by Thomas Payne
    The Common Law of England
    Mining District Law

The Common Law of England as they knew it then, is now known as simply the Common Law. It was and is partly tradition and partly judgments from the local courts. It differs from statutory law in that it depends heavily on judges’ interpretations of statutes and on precedent or previous court rulings. It still exists in the United States side by side with statutory law, which is law made on the federal level by Congress and in the states by our legislatures.

Mining District Law. The first thing to understand about mining districts in the early history of Montana is that each one was organized by the miners themselves in a mass meeting, according to the consensus reached during the meeting. Picture a crowd of men who knew only the companions on his journey to the gold fields, dressed any way they saw fit depending on the weather, and on a constant lookout for rattlesnakes, settling themselves among the sagebrush. They had to elect officers and hammer out a set of rules to protect themselves from thieves and rascals who might be the guy sitting next them.

A mining district was about 1.5 – 2 miles wide in Alder Gulch, but the Bannack Mining District was much larger. One revisionist historian has insisted that the Bannack district included the entire eastern slope of the Bitterroot mountains, i.e., several hundred square miles and a few other mountain ranges as well.

Grasshopper Creek near Bannack, MT

Grasshopper Creek near Bannack, Montana. (Photo by Carol Buchanan.)

Although John White and his party discovered gold in Grasshopper Creek in 1862, the Bannack miners didn’t organize until May 24, 1863. They elected two branches of government: an executive and a judiciary. The Executive officers were Walter B. Dance, President, and D. H. Dillingham, Secretary. The Judiciary consisted of B. B. Burchett, president; Henry Plummer, Sheriff; and J. M. Castner, Coroner. Plummer, in an act that had deep repercussions for Montana history, went on to name Dillingham as his chief deputy.

Henry Plummer had no sooner been elected Sheriff of Bannack than he set on a 300-mile journey north to the Fort Benton area to get married. He had fallen in love with a young woman named Electa Bryan who lived on a government farm with her sister and brother-in-law, Martha Jane and James Vail. The Vails were not pleased with the idea of the marriage to Plummer, nor was their friend, Francis M. (Frank) Thompson, who knew of Plummer’s unsavory reputation west of the Bitterroots, and in Nevada and California. (More later.) But Electa was determined to marry Plummer, despite his past and his reputation as a gambler. He apparently convinced her that love had made him a reformed character. Electa was determined to marry him.

Impatient to marry as they must have been, low water on the Missouri River delayed them. The Vails and Electa were Protestants, and a steamboat carrying a Protestant minister was delayed at the confluence of the Milk River, about 150 miles east. Days went by. At last they gave up waiting for high water to make the upper Missouri navigable and sent to the nearby Jesuit mission for a priest to perform the ceremony.

The marriage went ahead on June 20, 1863. Mrs. Vail was so opposed to it that she refused to act as matron of honor, and there were no other white women whom Electa could ask. Frank Thompson, seeing the marriage would happen in spite of him and the Vails, good-naturedly stood up with Electa.

While Plummer traveled north, William (Bill) Fairweather, Thomas Cover, Henry Edgar, and three other men were celebrating their narrow escape from some Crow Indians who wanted to burn them alive. Fairweather picked up a rattlesnake and allowed it to twine around his arms and neck, fortunately without getting bitten. This so impressed the Natives that they released them.
As you might expect, the Fairweather party lost no time in leaving that area. On May 25, 1863, they came to a creek shaded by stands of aspen along its banks, and stopped to rest.

Fairweather’s friends went to explore a bit and maybe dig a little gold, if they found any, but he stayed to watch over their campsite. While he was at it, he thought he might look for a little gold dust to maybe buy some tobacco with when they got back to Bannack.

His idle thought to find “tobacco money” led him to one of the richest strikes in the West. In less than three years between making his strike and 1866, when the gold pretty much played out, an estimated $20,000,000 (1863 dollars) in gold had been taken out of the Alder Creek diggings.
(By one estimate, that $20,000,000 would be worth $377,358,490 today.)

The Fairweather Mining District

The six men prospected a few days before staking their claims and hurrying back to Bannack to buy supplies. They agreed to keep their find secret, but no one could buy several hundred dollars in supplies or pour out gold dust of the purity of Alder Gulch gold for tobacco without exciting interest.

When they started back, a train amounting to 200 – 1,000 hopeful gold-seekers followed them. (Accounts vary.)

North promontory of Beaverhead Rock

North side of Beaverhead Rock

At Beaverhead Rock (shown at the top of this blog), roughly half way between Bannack and their strike, they made everyone stop. They would go no farther until everyone had agreed to honor their claims. According to Frederick Allen, Edgar warned them that their “horses would die at the end of their picket ropes before we stir a foot….” (A Decent, Orderly Hanging, 2004, p. 93).

That day, June 6, 1863, they organized the Fairweather mining district. The first officers were Dr. William L. Steele, president; Henry Edgar, recorder; Dr. G. G. Bissell, judge; and Dick Todd, sheriff. When Edgar declined to serve as recorder, James Fergus took his place. (Montana Vigilantes 1863 – 1870: Gold, Guns, and Gallows, Mark C. Dillon, 2013, p. 9.)
And Henry Plummer waited impatiently for the Missouri River to rise.

Next: Mining District Law – The Basics

4 thoughts on “The Law in Idaho in 1863

  1. Doris McCraw

    Fascinating. When I compare the early gold strikes to the one in Cripple Creek it is like seeing black and white. They are so different in make up, but the desire for gold stays constant.

  2. Robyn Echols

    Great post. I knew about vigilante law in Montana. You have added a lot more detail to how it worked. And, I know from observing human nature and reading journal accounts of meetings among pioneer men, those meetings conducted to hammer out the rules of local government did not run smoothly–many viewpoints emphatically expressed. Thanks for sharing.

    1. Carol Buchanan Post author

      Thank you, Robyn! Glad you like the post.

      What I’m describing in this post, though, isn’t “vigilante law” but mining district organization, and the types of law or rules governing how people get along with each other as found in the 10 Commandments or the Common Law. Statutory law didn’t come into Montana until late in 1864, and then it was Idaho law because Idaho in those days extended to the Continental Divide. Not all the miners were Vigilantes. Besides, the Vigilantes didn’t organize until late December 1863.

      In the next post I’ll get into more detail about the miners courts.
      Thanks for reading the Blog! On the home page of the website you’ll find a signup for my email newsletter. Hope you can join us!

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