by Jon E. Lewis
Most justices on the American frontier had no legal training and little knowledge of the law. They included such colourful figures as Judge Roy Bean, saloon-keeper and the self-styled “law west of the Pecos” for over 20 years. Bean’s mildest eccentricity was an obsession with the English actress Lillie Langtry, after whom he named the village (Langtry) from where he dispensed his verdicts. These were sometimes bizarre. They famously included fining the corpse of a railroad worker $40 for carrying a concealed weapon. He also once dismissed the Irish murderer of a Chinaman because the Revised Statutes of Texas, 1879 edition – the only legal work he knew or cared for – said nothing about killing “heathen Chinee”. Bearded, his stomach hanging over his belt, Bean liked to have a cold beer at the end of a court session. Fortunately, the courthouse was also Bean’s saloon. Despite his eccentricity, Bean’s law was also effective, and was tolerated by the Texas Rangers because it gave peace of a kind.
As a region became more organized, responsibility for law enforcement increasingly came to rest on federal and territorial/state officials. Federal judges tended to be more learned and less prone to local influence than justices of the peace. Most famed of the federal judges was Isaac C. Parker, who became known as the Hanging Judge because of the 168 men he sent to the gallows (of whom 89 were reprieved). Yet Parker was not a sadistic man. A devout Methodist, he was appointed by President Grant in 1875 to clean up the US Western District centred on Fort Smith, which also had jurisdiction over Indian Territory (now Oklahoma). Aside from some 50,000 official Indian inhabitants, the Territory was infested with White outlaws – who used it as a sanctuary – and frontier “riff-raff” who followed the few legal White enterprises allowed there. Parker worked six days a week to round up and try lawbreakers. In a period of 21 years he tried 28,000 suspects. When a man, according to the rule of law, had to be hanged, he wept openly. The Indians, in particular, found in him a friend. When he died in 1896, a Creek chief brought wild flowers to put on his grave.
Also at the business end of federal law enforcement was the United States marshal and deputy marshal. Unlike the sheriff, who was elected (usually for two years) and parochial in his interests, the US marshal was appointed by the president, worked under the jurisdiction of a federal court, and tended to be concerned with the violation of federal laws such as mail robbery.
The US marshal was also less prone to political corruption than the sheriff. For his election, the sheriff depended on those with the money and the organization – invariably the local business community – to mobilize votes. The paymasters, in turn, expected their sheriff, when elected, to protect and serve their interests. Thus it was that Sheriff Henry C. Wheeler, an ex-Arizona Ranger, led the deportation of striking miners from Bisbee, Arizona, in 1917, an act openly undertaken on behalf of local mine owners.
The offices of sheriffs and US marshals frequently conflicted, especially in the lucrative matter of the arrest of criminals with a price on their heads. To make matters worse, many settlements also had another tier of law enforcement, the town marshal. Sometimes the post was elected, often the incumbent was appointed by the mayor and the aldermen. Contrary to the popular image of the Western lawman as sporting a frock coat and stetson, these policemen were often dressed like their Eastern urban counterparts. “They wear,” recorded Social Statistics of the Cities in its 1880 report on the marshals of Leadville, Colorado, “navy-blue uniforms with brass buttons, and each [man] produces his own.” The report went on to note that the officers carried “clubs and navy revolvers”. (To police Leadville’s 14,820 citizens the mining town’s officials founded a constabulary which consisted of a city marshal, a captain of police, two sergeants, and 18 patrolmen.)
Some territories and states also created special bodies to assist in law enforcement. Texas, famously, had its Rangers. In 1853 California raised a force of mounted police to deal with gangs of Mexican highwaymen, while Arizona and New Mexico also created ranger-type forces at various times.
Indian reservations too had their own police forces. John P. Clum, the Indian agent at the San Carlos Apache reservation in Arizona, and later the editor of the Tombstone Epitaph, set up an Indian constabulary in 1874 to keep order. The idea took root, and gradually other reservations adopted Indian police, whose job included not only enforcement of law within reservations but the capture of renegades and holdouts who had “jumped” their confines. Shortly after becoming Indian agent at Pine Ridge, Dakota, in 1878, Valentine McGillycuddy appointed noted warrior Man-Who-Carries-the-Sword as captain of the Indian police. He became Captain George Sword, and proved his worth when Spotted Wolf and 25 Cheyenne slipped away to join the still hostile Sitting Bull. Fearing that the Cheyenne might attack Whites – which would cause the army to be brought in for a crackdown on all Indians – McGillycuddy ordered Captain Sword to bring back Spotted Wolf. He and his men did so 11 days later. Spotted Wolf was dead, having resisted arrest.
In addition to legal police agencies, the West proliferated with extra-legal ones. Mine owners, bankers, bullion-shippers, railroad and stage companies founded their own guards and detectives, or hired the services of the Pinkerton Detective Agency. Cattlemen in Texas and Wyoming, meanwhile, employed inspectors to spot stolen cattle at railheads and stock detectives to catch rustlers. As in the Johnson County War, the actions of these private police forces fostered trouble as well as solving it.
And then there was the curse and blessing of vigilantism. The taking of the law into one’s own hands through some form of extra-legal committee was part of the experience of the frontier from the time it pushed over the Appalachians. Some 300 vigilante movements have been recorded in the trans-Appalachian and trans-Mississippi Wests.
At core, vigilante committees came together to establish order where there was disorder, where law was weak or non-existent. They particularly come into view in the mineral rushes to Montana and California, with the San Francisco Committee of Vigilance of 1856 the largest vigilante movement in American history, numbering around 6,000 to 8,000 members. They hung their victims from a custom-built scaffold on Market Street. Vigilantes believed their rude justice an effective and quick means of dealing with outlaw activity. Thus vigilantes brought to an end the terror-reign of Montana’s Henry Plummer, who ran a small army of highwaymen known locally as “road agents”. Plummer – who succeeded in getting himself elected Sheriff of Bannack – was finally suspected in 1864 and duly given a “suspended sentence.”
The year 1864 was a busy one for Montana vigilantes, for hanged two months after Plummer was the notorious Jack Slade, a sometime stagecoach superintendent who was deadly violent when drunk. When sober, he had been the epitome of pleasantness, as traveller Mark Twain had found to his surprise on encountering him at an Overland station:
In due time we rattled up to a stage-station, and sat down to breakfast with a half-savage, half-civilized company of armed and bearded mountaineers, ranchmen and station employees. The most gentlemanly-appearing, quiet, and affable officer we had yet found along the road in the Overland Company’s service was the person who sat at the head of the table, at my elbow. Never youth stared and shivered as I did when I heard them call him SLADE!
Here was romance, and I sitting face to face with it – looking upon it – touching it – hobnobbing with it, as it were! Here, right by my side, was the actual ogre, who, in fights and brawls and various ways, had taken the lives of twenty-six human beings, or all men lied about him! I suppose I was the proudest stripling that ever traveled to see strange lands and wonderful people.
He was so friendly and so gentle-spoken that I warmed to him in spite of his awful history. It was hardly possible to realize that this pleasant person was the pitiless scourge of the outlaws, the raw-head-and-bloody-bones the nursing mothers of the mountains terrified their children with. And to this day I can remember nothing remarkable about Slade except that his face was rather broad across the cheek-bones, and that the cheek-bones were low and the lips peculiarly thin and
straight. But that was enough to leave something of an effect upon me, for since then I seldom see a face possessing those characteristics without fancying that the owner of it is a dangerous man.
The coffee ran out. At least it was reduced to one tin cupful, and Slade was about to take it when he saw that my cup was empty. He politely offered to fill it, but although I wanted it, I politely declined. I was afraid he had not killed anybody that morning and might be needing diversion. But still with firm politeness he insisted on filling my cup, and said I had traveled all night and better deserved it than he – and while he talked he placidly poured the fluid, to the last drop. I thanked him and drank it, but it gave me no comfort, for I could not feel sure that he would not be sorry, presently, that he had given it away, and proceed to kill me to distract his thoughts from the loss. But nothing of the kind occurred. We left him with only twenty-six dead people to account for, and I felt a tranquil satisfaction in the thought that in so judiciously taking care of No. 1 at that breakfast-table I had pleasantly escaped being No. 27. Slade came out to the coach and saw us off, first ordering certain rearrangements of the mail-bags for our comfort, and then we took leave of him, satisfied that we should hear of him again, some day, and wondering in what connection.
Sometimes, vigilantism took the form of rebellion against corruption or unpopular laws. An extensive citizens’ movement, for example, arose in Shelby County, East Texas, in the early 1840s to target corrupt officials, horse thieves and counterfeiters. New Mexico’s Gorras Blancas (“White Caps”) were poor Hispanics who resisted the expropriation of communal village land by Anglos and rich Hispanics, burning their barns and cutting their fences. Fugitive slaves in Meigs County, Ohio, in the 1820s were protected by organized groups of abolitionists.
As a primitive system of ad hoc justice, vigilantism was surprisingly effective, especially in the mining camps. Yet its drawbacks are manifest. Many vigilante committees were mere “lynch mobs”, fired up on liquor and prejudice. The journalist Edward Buffum witnessed a miners’ court in California where five men were tried and found guilty (rightly) of robbery. However, three of the men were also accused and convicted of a murder that had occurred months before. The 200 “jurors” accordingly sentenced them to death. But the trio had been unable to put their case because none of them could speak English, one being Chilean and the other two French. “Vainly they called for an interpreter,” recorded Buffum, “for their cries were drowned by the yells of the now infuriated mob . . . the wagon was drawn from under them, and they were launched into eternity.” Buffum himself was nearly hanged for speaking up for the trio.
Men also, once given a taste of dispensing vixgilantism, showed a marked reluctance to give it up, even when regular judicial processes were established. They vaunted it for its quickness – even its cheapness. An 1879 vigilante hanging was praised by a Denver newspaper as “a positive gain to the county, saving it at least five or six thousand dollars.”
Equally damning was the tendency of vigilante movements to become tools of men of wealth – tools which they wielded for their narrow self-interest. As if to set a future pattern, this was the fate of the Regulators of South Carolina, the first American vigilante organization. Set up in 1767, the Regulators punished not only horse thieves and outlaws, but settlers that local men of standing deemed to have insufficient respect for property and authority. Anyone judged shiftless or immoral was also punished. The list of such pro-establishment, pro-banker, pro-rancher, pro-railroad owner organizations is long, and is headed by the 1877 San Francisco “Pick Handle Brigade” (which attacked blue-collar protesters), the Johnson County War, and the deportation of nearly 2,000 striking miners and sympathizers from Bisbee, Arizona, in 1917.
Sometimes the depredations of biased vigilante committees were opposed and countered. If there was no law to do it, it was done by the might of the gun.
And so did the whirligig of Western violence spin around and around, until the law was strong and uncorrupt enough to stop it.
The Outlaw Breed
The “Cast-Iron” Breed
Out in the West, the land dictated the nature of crime, as it did much else. It had wide open spaces into which a wanted man might disappear beyond the reach of the law, and a wide open atmosphere which encouraged the illicit and the daring. More than these, it had long trails through remote wilderness where travellers and freight could be robbed with near impunity. Several types of crime would be closely associated with the West, such as cattle rustling and bank robbery, but the real larceny of the West was highway robbery.
No sooner had the frontier began pushing inland from the British colonies, than settlers were obliged to enact a Body of Laws to deal with “road agents”. A first offence was punished by the branding of a “B” on the culprit’s forehead. The third offence was the last. Still, road agents proliferated. By the early nineteenth century, the Natchez Trace, linking Natchez and Nashville, became their favourite hunting ground, 500 miles of swamp and dim-lit path. Land pirates John A. Murrel, Sam Mason and Joseph T. Hare became infamous the nation over, their deeds glorified in the Police Gazette. Time did little to diminish the road agents’ activity. In 1877 the state adjutant of Texas posted descriptions of 5,000 outlaws in the Rio Grande district alone. The bulk were men who had held up travellers and stagecoaches. California’s Black Bart was one of the few highwaymen who was a solo operator; most worked in gangs. Usually stagecoach robberies happened at night, and the targets were unguarded coaches; highwaymen rarely had the desire to tangle with the shotgun messengers who rode on the bullion stages. Surprise was the highwayman’s best weapon. Commented one robbed Californian stagecoach driver: “I have seen four aces beaten by a royal flush; but I was never really surprised [in my life] until I looked down the muzzle of a double-barrelled shotgun in the hands of a road agent. Why, my friend, the mouth of the Sutro tunnel is like a nailhole in the Palace Hotel compared to a shotgun.”
Outlawry on the frontier, however, was more than a matter of geography. History provided a continual source of likely human material. A significant proportion of immigrants to the New World were criminals fleeing justice elsewhere. Wars with the Indians, wars with the British and the war between the states divided and brutalized men, orphaned children (who became destitute) and spewed out listless, homeless veterans. Even the terrible Harpe brothers, Micajah and Wiley, were a product of their times, and not just of Evil. Pro-British sympathizers from North Carolina, they were hounded from their homes after the British surrender at Yorktown in 1781 and wandered into a life of robbery. Eventually their crimes on Wilderness Road became so degraded that the outlaw community is reputed to have expelled them.
More curious, perhaps, than the existence of outlawry on the frontier is the sympathy that ordinary, law-abiding Westerners had for the desperado. Even such a zealous lawman as Evett Dumas Nix, US marshal of Oklahoma in the 1890s, had a high regard for those he pursued. Writing in his 1929 autobiography, Oklahombres, he remarked:
As for the old time Oklahoma outlaw, I am reluctant to compare him with the highjacker and gunman of today. As one who fought him to extinction, I must admit that I admire his sportsmanship . . . when they fought they stood up to it and took defeat like the cast-iron breed they were.
Something of the allure of the outlaw was to be found in his manly virtues. He was a strong man – “cast-iron” – who stood outside society, took his fate by the scruff of its neck and did what he had to do. But more than this, outlaws were often seen as “Robin Hoods” because they robbed banks, mines and the railroads – institutions that settlers hated and saw as predatory towards themselves. Hence the veneration extended to the James–Younger gang, Oklahoma’s Doolin gang, Wyoming’s Wild Bunch and the Californians Chris Evans and John Sontag, who stuck up a score of Southern Pacific trains between 1889 and 1892 to popular acclaim. Jesse James, in particular, played the anti-rich theme, even claiming falsely that wealthy enemies had hounded him into a life of crime.
Nor did a fall into outlawry seem inexplicable or contemptible to Westerners. Pioneers and settlers lived poor, precarious lives with ruin an ever-present possibility. A bad break, with the weather, with illness, the loss of a family member (and indispensable labourer), and they might slip into a penury where stealing was an attractive option. To a boy stuck on the infinite boredom of a farm, the excitement of the outlaw life was a magnet that some could not resist. And farm boys, with their long hours spent taking pot shots at targets, tended to make excellent gunslingers.
A handful of outlaws became more than Robin Hoods; they became symbols of – even fighters for – underdog causes. Notorious club-footed gunfighter Clay Allison, almost certainly mentally deranged by a blow to his head while serving with the Tennessee Light Infantry, became a central figure in the resistance of the residents of Colfax County, New Mexico, to a real-estate grab by the powerful Maxwell Land Grant Company. Apparently charming when sober but deadly when drunk, Allison killed four men in his gunfighting career, as well as leading a lynch mob against a man called Kennedy who had committed infanticide. Allison cut off the dead man’s head and rode to the saloon with it. For a man who lived by his gun, Allison suffered an ignominious death. In 1878, probably drunk, he toppled from a wagon while trying to retrieve a grain sack and one of the wheels went over his neck. Meanwhile, the mysterious Mexican–Californian bandit Joaquin Murieta, who robbed Anglo “forty-niners”, was a hero to Hispanics ill-treated by Whites in the goldfields. (See also postscript on p 279.)
At least at the beginning of his career John Wesley Hardin was an outlaw with a cause, even if it was an ignoble one. Less well known than Jesse James, Billy the Kid, or Butch Cassidy and the Sundance Kid, the “Terror from Texas” was perhaps the greatest killer in the history of the West, challenged only in homicides by professional gunfighters Jim Miller and Walter Crow. Hardin’s victims are estimated to number anywhere from 11 to 44. The son of a Methodist circuit preacher (hence his middle name), born in 1853, Hardin grew up in a locale and time amongst the most violent in the Wild West – central Texas during the post-Civil War period. According to his family, he was deeply traumatized by the massacre of his uncle’s family by a Union mob. While the miscreants did not include any Blacks, Southern sympathies and racial prejudice caused the 15-year-old Hardin to kill his first man, Mage, an ex-slave. “To be tried at that time,” wrote Hardin in his autobiography, The Life of John Wesley Hardin (1896), “for the killing of a negro meant certain death at the hands of a court backed by Northern bayonets . . . thus, unwillingly, I became a fugitive not from justice, be it known, but from the injustice and misrule of the people who had subjugated the South.”
