Once again Tom Rizzo has asked insightful questions that show how vastly different the system of justice was in Montana from what it is now. His comment:
When it came to trials, Montana authorities seemed to fly by the seat of their pants and made things up as they went along. I’m sure it wasn’t really that way but that’s the impression I get. For example, the public debate on the George Ives verdict. I was intrigued mostly by the “public acting as a jury en masse,” as well as the compromise that resulted in two “advisory” jurors and the rest of the crowd serving as “jury of the whole.” Was that accepted way of doing things back then? This was truly a showcase of public involvement at the highest level. I was astounded to learn the lawyers didn’t have law books because they were too bulky to pack into a wagon with the rest of the family’s household goods.
The next installment–George Ives’ defense–should be a doozy.
At this very early stage of Montana’s history, what justice there was came pretty much on the fly.First off, there wasn’t a Montana yet. The region that is now southwest Montana was part of Idaho Territory established by Congress in March 1863. It was separated from then capital of Idaho Territory, Lewiston, by 400 miles rugged mountain ranges. Lewiston lies on the Idaho-Washington border.
Second, there were no “authorities.” Although the first Idaho legislature convened on Dec. 7, 1863 and adjourned Feb. 4, 1864, it did not write criminal law until after the New Year. As the Montana Post reported (November 26, 1864, p. 2), The Idaho Statutes did not arrive in Virginia City until mid-November 1864 when D. D. chamberlain walked the 800-mile round trip in 3 days, 21 hours.
Nor were there any courts to administer laws in the Bannack – Alder Gulch region. The only laws available were those passed by the various miners’ courts. And although a mining district elected a president, a recorder, and a sheriff, the sheriff did not have the law enforcement duties we think of as belonging to a sheriff.A mining district sheriff’s duties were to post notices of miners meetings at the president’s direction, and to make sure plaintiff and defendant both attended lawsuits that involved them. He was not responsible to keep order or to act as a detective. He also carried out sentences imposed by the miners court, but without a jail, there were only 3 punishments available: whipping, banishment, or hanging.
Sidney Edgerton, the Chief Justice of Idaho Territory had taken up residence in Bannack, but did not hold court. There are various stories about why he did not, but the one that seems most probable to me is that he arrived in Bannack in October 1863 and chose not to travel through 400 miles of high mountains in winter to the Idaho territorial capital to be sworn in. Not being sworn in, he was not officially the Chief Justice. Another story is that Gov. William H. Wallace, a political rival, ordered him to stay in Bannack, where his district lay.
The “jury of the whole” is (or was) one of the oddest characteristics of the miners courts, and was almost pure democracy.
I hope that answers your questions, Tom. Thank you for asking. I’ve lived with this material for about 20 years, and I forget how strange it can sound to others sometimes.
Happy New Year!