Alarmed at the indignation which this brutal deed had enkindled in the community, Moore and Reeves, at a late hour the same night, fled on foot in the direction of Rattlesnake. They were preceded by Plummer, who it was supposed had gone to provide means for their protection. He, however, afterwards asserted that he left through fear that in the momentary excitement the people would hang him for shooting Cleveland.
A mass meeting of the citizens was held the next morning, and a cordon of guards appointed to prevent the escape of the ruffians. When it was discovered that they had gone, on a call for volunteers to pursue them, Messrs. Lear, Higgins, Rockwell, and Davenport immediately followed on their track. The weather was intensely cold. The route of the pursuers lay over a lofty mountain covered with snow to a great depth. After riding as rapidly as possible, they came up with the fugitives at a distance of twelve miles from town. They had taken refuge in a dense thicket of willows on the bank of the Rattlesnake. Being challenged to surrender, they peremptorily refused. Pointing their pistols with well-directed aim at the approaching party, and interlarding their discourse with a flood of oaths, they ordered them to advance no farther on peril of their lives. The advantage was on the side of the robbers, and they could easily have shot down every one of their pursuers. A parley ensued. The position of both parties was fully discussed. The conviction that it was equally impossible for the pursuers to effect a capture, and for the ruffians to escape such a pursuit as would be made if they did not return, induced the latter to agree to a surrender, upon the express condition that they should be tried by a jury. The pursuing party gave a ready assent to this arrangement, and the fugitives returned in their custody to town.
Plummer was put upon his trial immediately. While that was progressing a messenger was sent to Godfrey's Canyon, ten miles distant, to summon Mr. Godfrey and the writer, who, with others, were erecting a saw-mill there. Before their arrival at midnight, Plummer was acquitted, no doubt being entertained, on presentation of the evidence, that he had killed Cleveland in self-defence. Several witnesses testified that they had on various occasions heard Cleveland threaten to shoot Plummer on sight.
At a later hour the people separated with the purpose of assembling for the trial of Moore, Reeves, and Mitchell early the next morning. Day broke clear and cold. All work was suspended in the gulch, stores and hotels were abandoned, and the entire population, numbering at least four hundred persons, assembled in and about the large log building which had been designated as the place of trial. Every man was armed, some with rifles and shotguns, others with pistols and knives. The friends of the prisoners gave free utterance to threats, which they accompanied with much profane assumption of superior power and many defiant demonstrations. Pistols were flourished and discharged, oaths and epithets freely bestowed upon the citizens, and whatever vehemence of gesture and expression could do to intimidate the people was adopted. Amid all this bluster it was apparent from the first that the current of popular opinion set strongly against the prisoners. There was an air of quiet determination manifested in every movement preparatory for the trial. The citizens were ready for an outbreak, and the least indication in that direction would have been the signal for a bloody and decisive battle. It is not improbable that an attempt at rescue was prevented by the presence of the overpowering force of armed and indignant citizens.
The efforts of the roughs to suppress the trial only increased the indignation of the people, and after electing a temporary chairman, a motion was made that the accused be tried by a miners' court. This form of tribunal grew out of the necessities of mining life in the mountains. It originated in the early days of California, when the country was destitute of courts and law, and still exists in inchoate mining communities as a witness to the fairness and honesty of American character. It is now the general custom among the property holders of a mining camp, as the first step towards organization, to elect a president or judge, who is to act as the judicial officer of the district. He has both civil and criminal jurisdiction. All questions affecting the rights of property, and all infractions of the peace, are tried before him. When complaint is made to him, it is his duty to appoint the time and place of trial in written notices which contain a brief statement of the matter in controversy, and are posted in conspicuous places throughout the camp. The miners assemble in force to attend the trial. The witnesses are examined, either by attorneys or by the parties interested, and when the evidence is closed the judge states the question at issue, desiring all in favor of the plaintiff to separate from the crowd in attendance until they can be counted, or to signify by a vote of "aye" their approval of his claim. The same forms are observed in the decision of a criminal case. The decision is announced by the judge and entered upon his record. Where the punishment is death, the criminal is generally allowed one hour to arrange his business and prepare for death; when it is banishment, a few hours are given him to leave the camp. If he neglects to comply with the sentence he is in danger of being summarily executed. Where the rights of parties are settled by the court, and the defeated party shows any resistance to the decision, it is the duty of the court, if necessary, with the strong hand to enforce it. The court is composed of the entire population. To guard against mistakes, the party in defeat, in all cases, has the right to demand a second vote.
The progress of a trial in one of these courts is entirely practical. Often the miners announce at the commencement that the court must close at a certain hour. Cross-examinations are generally prohibited, and if lawyers are employed, it is with the understanding that they shall make no long arguments. Each party and their respective witnesses give their evidence in a plain, straight-forward manner, and if any of the listeners desire information on a given point in the testimony they request the person acting as attorney to ask such questions as are necessary to obtain it. The decisions of these tribunals are seldom wrong, and are always enforced in good faith. They have many advantages in mining regions over courts at law. None of the tedious incidents of pleading, adjournment, amendment, demurrer, etc., which at law so often consume the time of litigants and put them to unnecessary expense, belong to a miners' court.
The miners themselves have little time to spare, and hence these courts are held on Sunday in all cases where the exigency is not immediate. They are held in the open air. Whenever, from any seemingly unnecessary cause, their investigations are prolonged, as by argumentative display, there are always those present who, by the command "Dry up," "No spread-eagle talk," force them to a close.
On one occasion at Blackfoot, in Montana, a rough was on trial for crimes which endangered his life. A motion had been made by his counsel that his life be spared on condition that he would leave the gulch in fifteen minutes,-which motion was carried by a small majority. In anticipation of this favorable result his friends had provided a mule to expedite his departure. The presiding miners' judge announced to him the condition of his freedom from death. Fearful that a reconsideration might be demanded, the moment he was released he vaulted into the saddle, and looking around upon the crowd explained, "Fifteen minutes!! Gentlemen, if this mule doesn't buck, five will do!" and lashing the sides of the animal he disappeared at double-quick amid the shouts and laughter of the crowd.
It was a trial by this court that the murderers dreaded, and to escape which they made a trial by jury the condition of their surrender. When the motion was made to substitute the miners' court it fell into their midst like a thunderbolt. They regarded a trial by the mass as certain of conviction as a trial by jury would be of acquittal, not because the latter would be any less likely than the former to perceive their guilt, but because fear of personal consequences would prevent them from declaring it. Men whose identity was lost in a crowd would do that which, if they were known, would mark them as victims for future assassination. The friends of the prisoners showed the estimation in which they regarded this consideration when they openly threatened with death every individual who participated in the trial. They anticipated that, as none would dare in defiance of this threat to act upon a jury, all proceedings would be suppressed, thus renewing the license for their continued depredations.
The statement of the motion by the chairman was the signal for a violent commotion among the roughs. One long howl of profanity, mingled with the most diabolical threats and repeated discharge of pistols, filled the room. Many shots were turned from their deadly aim by timely hands and discharged into the ceiling. Knives were drawn and flourished in the faces of prominent citizens, accompanied with threats of death in case the motion prevailed. The scene was fearful in the extreme. The miners in different parts of the crowd could be seen getting their guns and pistols ready for a collision which at one stage of the tumult it seemed impossible to avoid. At length the repeated cries of the chairman for order, and the earnest voices of several persons who were desirous of discussing the proposition, allayed the noise and confusion, so that they could be heard. The guilt of the prisoners was so palpable that the people deemed any sort of a trial which would not speedily terminate in their condemnation a farce. A very large majority were in favor of a miners' court, because they foresaw that any other form of trial afforded opportunity for escape. Three hours were spent in determining the question. Many short, emphatic arguments were made. In the meantime the disturbance made by the roughs waxed and waned to suit the different stages of the discussion. Shots at one moment and shouts at another betrayed their approval or disapproval of the sentiments of the speaker. I had from the first made myself offensive to my own immediate friends and intimates by pertinaciously claiming for the prisoners a trial by jury, and mounting a bench I embraced an early opportunity to give, in a few pointed words addressed to the assembled miners, my views. I reminded them of the constitutional provision which secured to every one accused of crime a trial by jury. It was a law of the land, as applicable on this as on any other occasion. The men were probably guilty; if so, the fact should be proved; if not, they had the right by law, on proving it, to an acquittal. Moreover, they had surrendered at a time when they could not have been captured, upon the express condition that they should be tried by jury. I asked, "Shall we ignore the agreement made with them by our officers?" I concluded by offering a motion that they be tried by a jury. It was negatived by three to one. Immediately a cry rose in the crowd. "Hang them at once;" this was followed by other cries of "String 'em up," "To the scaffold with 'em." Pistols were drawn and flourished more freely than before, and many personal collisions, resulting in bloody noses, black eyes, and raw heads took place in all parts of the room. Another hour was spent in discussion, and finally by a bare majority it was agreed to give the prisoners the benefit of a trial by jury.
It is impossible to portray with accuracy of detail the fearful effects of passion which were exhibited by the assembly while this question was being determined. On a limited scale it could not have been unlike some of the riotous gatherings in Paris in the days of the first revolution. It wanted numbers, it wanted the magnificent surroundings of those scenes, but as an exhibition of the passions of depraved men, when inflamed with anger, drink, and vengeance, it could not have been greatly surpassed by them.
Order at length being restored, a portion of the room was enclosed with scantling, for the accommodation of the Court and jury. J.F. Hoyt was elected Judge, Hank Crawford sheriff, and George Copley, prosecutor. The jury was next chosen by a vote of the people. My own appointment on the jury was urged by the roughs, as a compliment for my efforts to obtain for them a jury trial. I was regarded by them as a friend, and they hoped confidently for acquittal through my influence.
At first it was determined that the examination of the witnesses for both prosecution and defense should be conducted by George Copley, the prosecutor, but upon an appeal for justice in behalf of the prisoners it was at length decided by a small majority that the accused should be allowed the assistance of counsel, with the understanding that all the questions of their counsel were first to be submitted to the prosecutor. Hon. Wm. C. Rheem was chosen to defend the prisoners, and there were many threats of violence toward him for consenting to conduct the defense. It was agreed that the arguments to be made on either side should be brief, and that the trials should be urged to their conclusion with all possible expedition. Mr. Rheem's ability as a lawyer was unquestioned,-which fact furnished to those who objected to a jury trial their principal reason for opposing his employment as counsel for the prisoners. As the extent of Mitchell's criminality was uncertain, he was allowed a separate trial. His case was first brought under examination. It appeared in evidence that he accompanied Moore and Reeves on their second murderous visit to the tepee, but he was able to show that he did not once fire his gun, and consequently could not be guilty of murder. His trial was soon terminated. The jury recommended that he should be immediately banished from the gulch.
The guilt of Moore and Reeves was fully established. This result was foreseen by their friends; and while the trial was in progress they sought by threats and ferocious gesticulations to intimidate the jury. Gathering around the side of the enclosure occupied by the jury, they kept up a continued conversation, the purport of which was that no member of that Court or jury would live a month if they dared to find the prisoners guilty. Occasionally, their anger waxing hot, they would draw their pistols and knives, and brandishing them in the faces of the jurymen, utter a number of filthy epithets, and bid them beware of their verdict. Crawford was an object of their especial hate. Their abusive assaults upon him and threats were so frequent and violent that at one time he tendered his resignation and refused to serve, but upon the promise of his friends to stand by and protect him he retained his position. The case was given to the jury at about seven o'clock in the evening. A friend of the prisoners in the courtroom nominated me as foreman, but upon my refusal to serve under that nomination I afterwards received the appointment by a vote of my fellowjurymen.
The jury were occupied in their deliberations until after midnight. No doubt was entertained, from the first, of the guilt of the prisoners but the exciting question was whether they could afford to declare it. They all felt that to do so would be to announce their own death sentence. They knew that the friends of the prisoners fully intended to have life for life. They had sworn it. One of the jurymen said that the prisoners ought never to have been tried by a jury, but in a miner's court, that he should not be governed in his decision by the merits of case, but that, as he had a family in the States to whom his obligations were greater than to that community, he should have to vote for acquittal. After much conversation of this sort, which only served to intensify the fears of the jurymen, a vote was taken which resulted as follows: not guilty, 11; guilty, 1; myself the supposed friend of the roughs, being the only one in favor of the death penalty. It was apparent that further deliberation would not change this decision, and the jury compromised by agreeing to a sentence of banishment, and a confiscation of the property of the prisoners for the benefit of those they had wounded.
The Court met the ensuing morning, when the verdict, under seal, was handed to the judge. He opened and returned it to the foreman, with a request that he read it aloud. An expression of blank astonishment sat upon the face of every person in the room, which was followed by open demonstrations of general dissatisfaction, by all but the roughs, who, accustomed to outrages and long immunity, hailed it as a fresh concession to their bloody and lawless authority.
Mitchell returned to Bannack after a few days' absence, which was seemingly regarded as a full expiation of his sentence. A miners' court met soon after his return, and in view of the fact that his sentence was not enforced, revoked the sentence of Moore and Reeves, who again rejoined their fellow-miscreants. Thus the first scene in the drama, which had been ushered in by such a bloody prologue, terminated in the broadest farce.
The trial of Moore and Reeves was one of the earliest instances in the Territory where the lovers of law and order on one side, and the criminal element on the other, were brought into open, public antagonism. No one knew at that time which of the two was the stronger. The roughs had full confidence in their power to run the affairs of the Territory in their own way; -and while the trial was progressing sought, by brandishing their revolvers in the court-room, by much loud-mouthed profanity, and by frequent interruptions and threats of vengeance directed against the judge and jury, to intimidate and terrify all who were concerned in conducting the proceedings, and arrest them in their purpose. The life of Judge Hoyt, the acting magistrate of the occasion, was often threatened; but he not only manifested no fear, but was all the more active and efficient in the discharge of the duties of his difficult position. Being the central figure in the court, his calmness and firmness inspired all the other persons engaged in the prosecution with courage equal to the occasion, while it daunted the roughs and probably prevented bloodshed.
Professor Thomas J. Dimsdale, in his account of this trial, says: "To the delivery of this unfortunate verdict may be attributed the ascendancy of the roughs. They thought the people were afraid of them. The pretext of the prisoners that the Indians had killed some whites, friends of theirs, in 1849, while going to California, was accepted by the majority of the jurors as some sort of justification: -but the truth is, they were afraid of their lives: and, it must be confessed, not without apparent reason." Mr. Rheem, who defended the prisoners, says: "My conscience has more than once pricked me for interposing between the rogues and the halter, but I never believed till the last hour of their trial that they would escape hanging."