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Myth of the wild west

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Title:
Myth of the wild west law and justice prior to the organization of the Territory of Colorado
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Law and justice prior to the organization of the Territory of Colorado
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Cypser, Darlene A. ( author )
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English
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1 electronic file (175 leaves) : ;

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Justice, Administration of -- Colorado Territory ( lcsh )
Colorado Territory ( lcsh )
History -- Colorado -- to 1861 ( lcsh )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Review:
There is a persistent myth that in the nineteenth century the West, including Gold Rush Colorado, was “lawless.” A review the history of Colorado before 1861 demonstrates that this was not true. The Cheyenne, Arapahoe, Apache and Comanche had their legal traditions. Vestiges of Mexican law still controlled in southern Colorado and miners and town-builders drafted laws to accommodate their needs. Despite challenges caused by influxes of criminals from outside, and the ineffectiveness of the Kansas government, the miners and settlers in Denver and other towns constructed their own legal systems which were equivalent to those of the States and had many elements in common with the legal systems of their Mexican-American and Native American neighbors.</DISS_para>
Thesis:
Thesis (M.A.)--University of Colorado Denver, 2017.
Bibliography:
Includes bibliographical references.
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System requirements: Adobe Reader.
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by Darlene A. Cypser.

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University of Florida
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on10058 ( NOTIS )
1005898829 ( OCLC )
on1005898829

Full Text
MYTH OF THE WILD WEST:
LAW AND JUSTICE PRIOR TO THE ORGANIZATION OF THE TERRITORY OF COLORADO by
DARLENE A. CYPSER B.A., University Of Oklahoma, 1980 J.D., University Of Oklahoma, 1986
A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Master of Arts History Program
2017


2017
DARLENE A. CYPSER ALL RIGHTS RESERVED
11


This thesis for the Master of Arts degree by Darlene A. Cypser has been approved for the History Program
By
Thomas J. Noel, Chair William Wagner Ryan Crewe
Date: May 13, 2017
m


Cypser, Darlene (M. A., History Program)
Myth of the Wild West: Law and Justice Prior to the Organization of the Territory of Colorado
Thesis directed by Professor Thomas J. Noel
ABSTRACT
There is a persistent myth that in the nineteenth century the West, including Gold Rush Colorado, was lawless. A review the history of Colorado before 1861 demonstrates that this was not true. The Cheyenne, Arapahoe, Apache and Comanche had their legal traditions. Vestiges of Mexican law still controlled in southern Colorado and miners and town-builders drafted laws to accommodate their needs. Despite challenges caused by influxes of criminals from outside, and the ineffectiveness of the Kansas government, the miners and settlers in Denver and other towns constructed their own legal systems which were equivalent to those of the States and had many elements in common with the legal systems of their Mexican-American and Native American neighbors.
The form and content of this abstract are approved. I recommend its publication.
Approved: Thomas J. Noel
IV


TABLE OF CONTENTS
CHAPTER
I. INTRODUCTION..................................................... 1
Methods of Study.................................................2
Organization.....................................................4
Definitions......................................................5
Prejudicial Words................................................7
II. LAYERS OF SOVEREIGNTY AND JURISDICTION......................... 10
III. NATIVE AMERICA LAW WAYS....................................... 12
Background..................................................... 12
Cheyenne........................................................14
Arapahoe........................................................19
Comanche........................................................21
Apache..........................................................24
IV. TRADERS, EXPLORERS, AND MILITARY OUTPOSTS.......................26
V. LAW ON THE MEXICAN LAND GRANTS...................................30
Background......................................................30
Independent Mexico..............................................31
Mexican Land Grants in Colorado.................................36
Mexican American War & Treaty of Guadeloupe Hidalgo.............39
U. S. Territory of New Mexico...................................41
Community Law and Order.........................................41
VI. LAW 01 THE UNITED STATES........................................45
v


Kansas, Nebraska, Utah and New Mexico..........................46
Arapahoe County, KT............................................48
Jefferson Territory............................................55
Town Companies.................................................60
Claim Clubs....................................................69
Laws of the Mining Districts...................................70
Peoples Courts................................................82
\ II. CRIME AM) VIOLENCE............................................84
VIII. CONCLUSION....................................................91
BIBLIOGRAPHY...........................................................92
APPENDIX..............................................................117
vi


CHAPTER I
INTRODUCTION
This countrys planted thick with laws from coast to coast1
My focus is on the law and law enforcement in the area now encompassed by the State of Colorado from the time of the arrival of the Russell Party in 1858 to the organization of the Territory of Colorado. Understanding the legal environment of that time and place also requires understanding the existing legal structures in the Mexican land grants and other settlements in southern Colorado as well as the legal traditions of the natives who lived or hunted in the area and the agreements that they had with European and American traders at the time.
The purpose of choosing this time period is to examine how people organized legal structures in Colorado before civilization came in the form of the official territorial structures. Another reason to choose this time period is to isolate the study from the changes caused by the Civil War, including increasing conflicts with natives, and the societal changes after the war. While that might also be an interesting study, it would not be possible to properly study that time period before understanding the earlier period. Unfortunately many studies of violence in the West either ignore the antebellum period or group the entire second half of the nineteenth century together.
This paper examines intra-group or intra-national laws, rather than the accommodation and adaptation of one group with another by either public or private intergroup or international law. Other historians have written about such things at the borders where different nations or social groups meet and interact. Here we are less concerned with
1 Robert Bolt, A Man for All Seasons, act 1.
1


borderlands or middle grounds than the mechanisms for social control within each group in defined slice of time and space. Like a geologists slice through rock strata, much can be learned from examining cultural layers independently as well as in those zones where they meet.
Social controls often deteriorate in a war zone, but the effect is not limited to that zone, or the time of active warfare. War also erodes social controls back home during the conflict and afterwards. The slice of time studied here was chosen as one where the impact of war is limited because it begins after the Mexican-American War, ends at the beginning of the U.S. Civil War, and sits between times of major conflicts with Indian nations. It was comparatively peaceful. Yet it is a time stamped with accusations of being lawlessness and violence.
The American West has a reputation of lawlessness. This is especially true of the Gold Rushes. Unfortunately, many historians further propagate that myth without examining it. Colorado historians have been guilty of this as well. My purpose is to investigate the state of law and justice within the geographical area now encompassed by the State of Colorado at the time of the Colorado Gold Rush up until the Territory of Colorado was organized.
Methods of Study
I will review the laws that existed between 1858 and 1861 and how they were enforced. Unlike many previous studies that concentrated merely on the laws of the Americans who came west from the States at the time of the Gold Rush, I have also studied the laws of Native Americans and Mexican Americans who were already present. 2
2 Mark Ellis has pointed out that more books have been published on western vigilance committees than on western courts, judges, and lawyers. Mark R. Ellis, Law and Order in Buffalo Bills Country: Legal Culture and Community on the Great Plains, 1867-1910 (Law in the American West), Lincoln: University of Nebraska Press, 2009, xv.
2


Since there is very little contemporaneous written record of social customs by Natives, my exploration of Native American laws or law ways depends heavily on the work done by ethnographers late in the nineteenth and early twentieth centuries recording the memories and traditions of these nations. Some of the ethnographers, such as Hoebel, specifically examined how different Native American groups handled social problems like homicide, and studied what place personal property and what we call property crimes had in their culture. That work is also supplemented by the letters George Bent written late in life, observations of outsiders, and the analysis of other scholars.
The Mexican settlements that persisted in what would become southern Colorado after the Treaty of Guadalupe Hidalgo left few records of local disputes or how they were resolved. Many historians have presumed that an alcalde and other officials were appointed by the territorial authorities despite the distance from the seat of government and the short time period the settlements were in existence before the American invasion. There is no evidence that any such officials existed in most of the Mexican Land Grant settlements between 1858 and 1861. Due to the distance, it is also unlikely that settlers depended on territorial officials to settle local disputes. Indications are that local disputes were more often resolved by the patron (the owner or manager of the land grant), when they lived in the community, a local priest, where there was one, or the local los hermano penitente association, especially in communities where all residents were members or associates of the association. For this study, I used translations of Spanish and Mexican laws, studies of the land grants and papers concerning them, studies of the Catholic Church in New Mexico, and studies of los hermano penitente, which include some recollections of how the communities were operated at the time.
3


We are fortunate to have many written records from the Argonauts and their followers who came west from the States and the other territories in the form of letters, diaries, journals, newspapers, and other documents. I used both published and unpublished primary sources. It must be remembered that newspapers were (and are) in the business of selling newspapers. Newspapers may exaggerate or underplay crime reports depending on editorial policy. A newspaper that follows a policy of boosterism to increase local residents and thus subscribers may underplay reports of violence. A newspaper that believes sensationalism sells more papers may exaggerate crime reporting. Therefore, it is important to use multiple sources whenever possible. I have also reviewed numerous prior histories of Colorado and often compare them to the primary sources.
Organization
I could have organized this by legal topic: homicide, property law, inheritance, etc., but the result would have been that the rules would be out of the context of the time and the culture in which they were applied. Therefore, I have chosen a quasi-chronological organization, addressing the legal culture of Native Americans first, then the law existing among the settlers on the Mexican Land Grants, before examining the numerous overlapping laws and legal structures generated by or affecting the Gold Rush settlements.
In the process of my studies, I have compiled as case studies incidents such as theft, assault, and murder, which like the ethnologists law ways presented challenges to the communities of miners and settlers. These case studies are extracted from letters, journals, 3
3 J Sterling Morton, Territorial Journalism, in Nebraska History 10 (1902) 24. http://www.nebraskahistory. org/publish/publicat/history/full-text/NH1902Territ_Jmlsm.pdf; See Louis Kraft, Ned Wynkoop and the Lonely Road from Sand Creek, (Norman: University of Oklahoma Press, 1992): 57-61, related to Rocky Mountain News biases. See also the political factionalism highlighted in Denver newspapers during the Denver Chinese Riot of 1880 in Liping Zhu, The Road to Chinese Exclusion: The Denver Riot, 1880 Election and the Rise of the West (Lawrence: University of Kansas Press 2013).
4


and newspapers. I have summarized the events and how the local community dealt with them. The cases are listed chronologically in the Appendix. In the context of those case studies, I discuss crime and violence in Gold Rush Colorado.
Definitions
Before beginning a history of law, justice, or law enforcement in a particular time period, I must define those terms. The first definition of law in the Oxford English Dictionary is The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects.4 Viewing it more as a verb than a noun, legal philosopher Lon Fuller defined law as the enterprise of subjecting human conduct to the governance of rules.5 Some anthropologists have used a more cumbersome definition for comparative studies: A social norm is legal if its neglect or infraction is met by the application, in threat or in fact of the absolute coercive force by a social unit possessing the socially recognized privilege of so acting.61 am going to take a broader approach and define law as a system that either responds to, or anticipates, problems in a society and seeks to avoid or redress those problems. This definition is broad enough to encompass criminal law, mining law, water law, probate law, property disputes, contract and employment disputes, and a host of other things that fill law libraries.
When studying the law of a particular time period it is important to consider forms of law other than criminal law because legal issues are not that easy to detangle. A probate dispute is likely to involve property law matters and contract issues. Property law issues may involve contract law, mining law, and water law. A dispute over any of the previous could
4 Oxford English Dictionary, 2nd ed., s.v. law (CD-ROM Version 3.1, 2004).
5LonL. Fuller, The Morality of Law, (New Haven: Yale University Press, 1969),106.
6 E. Adamson Hoebel, The Political Organization and Law-Ways of the Comanche Indians, Bulletin of the American Anthropological Association (1940) 47, accessed 02/09/2017 http://ehrafworldcultmes.yale.edu.
5


devolve into violence or some other criminal act. In the current American legal system a commission of a crime can also give rise to a civil action called a tort which requires payment of compensation to the injured party rather than punishment of the offender. Punishment and compensation are not always separate functions. Even in our current legal system in America criminal courts in many states can order restitution to compensate the victim and civil courts can order punitive damages to punish an offender. Several of the legal systems operating during the Colorado Gold Rush did not separate those functions but instead tied compensation and punishment together.
This definition of law is also broad enough to cover legal systems unlike our own which serve the same purpose. This is important because between 1858 and 1861 there were other societies in Colorado using different legal systems. The legal system of the Comanche was distinct from those of the Cheyenne or the Arapahoe. Settlers on the Mexican Land Grants in Southern Colorado were using methods of solving problems that to some degree followed methods used during the Mexican period, which in turn descended from Spanish law. I will discuss how law operated in each of these.
Within the scope of this paper, I will define law enforcement as the means by which those rules were obeyed, whether that involved physical coercion or internalized cultural training. Justice will be defined as when a social disruption is resolved through the use of law and law enforcement. This definition is also broad enough to cover the methods used by societies not steeped in Anglo-American jurisprudence and what we today call alternative dispute resolution, e.g., mediation or arbitration.
6


Prejudicial Words
Historians have sometimes added to the mythology of the lawless and violent West by the words they used. Sometimes as St. Exuperys Little Prince said words are the source of misunderstandings. While it is always important to choose words with care, sometimes it is equally important to choose NOT to use certain loaded words that distract from the topic
n
being studied. Some scholars have spent chapters or entire books attempting to trace the
o
origin of the word lynch or to define it. It is not necessary to trace the entomology of the word or nail down its definition here. Rather it is important to recognize that the word lynch is problematic because it means different things to different people at different times and places. Today when many people hear the word lynch, they envision a person, often a person of darker skin, being hanged without legal authority. To some people in the 1850s and 1860s, Judge Lynch or lynching merely meant any law enforcement or judicial process with any degree of informality even when the person is tried, acquitted, and released.7 8 9 Such a definition would encompass many forms of mediation and arbitration as well as Judge Judy and the numerous other television judges within lynch law. Due to that wide range of interpretation, it is impossible to establish a definition with any precision that can be applied as well in the nineteenth century and the twenty-first. The word lynch today has so much
7 Oxford English Dictionary, s.v. loaded definition d: fig. Charged with some hidden implication or underlying suggestion; biased, prejudiced. (CD-ROM Version 3.1, 2004).
8 E.g., James Elbert Cutler, Lynch-Law: An Investigation into the History of Lynching in the United States (New York: Longmans, Green, & Co. 1905) or Christopher Waldrep, The Many Faces of Judge Lynch: Extralegal Violence and Punishment in America (New York: Palgrave Macmillan, 2002) or Christopher Waldrep, War of Words: The Controversy over the Definition of Lynching, 1899-1940, Journal Southern History 66 no.
1(2000): 75-100.
9 E.g. An unsigned letter was published in the Leavenworth Times on June 4, 1859 under the title Leavenworth Times Correspondent, dated Denver City May 15, 1859. (Historian Leroy Hafen attributes the letter to Henry Villard.) The author of the letter used Judge Lynch in reference to a proceeding in which a possible cattle and horse thief was examined and released when the charges could not be proved. Hafen, Colorado Gold Rush: Contemporary Letters and Reports 1858-1859 (Philadelphia: Porcupine Press 1974): 356. That would not be lynch law in the view of many people today.
7


emotion attached to it that it would be better to avoid using the word altogether. It is important, however, to acknowledge how others used it when we encounter it in letters, diaries, and newspaper accounts.
Similarly, terms like vigilance committee, vigilante, and even extra-legal create mental images that might lead historians to jump to conclusions rather study the historic evidence of what occurred, when it occurred, and why. It is important to remain objective and determine what were the social problems and how they were resolved without prejudicing our study. Using neutral terms will help us do that.
Another prejudicial and distracting term is bummer. According to the Oxford English Dictionary (OED), bummer was used in the late nineteenth century in America, especially in the 1850s and 1860s, to mean an idler, lounger, loafer.10 The quotations provided by OED as examples also suggest a bummer is someone who lives off the efforts of others. Most Pike Peak primary sources use the term in that generic sense. However, some historians have interpreted the term to refer to a particular gang called Bummers. 11 There is no historical or etymological evidence that bummer ever was the name of a particular gang in Colorado or anywhere else. Bummer arises from the German bummler meaning lazy or loafer. It is likely that one of the many German immigrants to the West said bummler and was misheard by an English-speaking neighbor who dropped the 1 and bummer was born. Bummer was used in several places in the West before the Colorado Gold Rush. Its adoption during the Turkey War of 1860 by men who called themselves bummers is like the actions of many groups who
10 Oxford English Dictionary, 2nd ed., s.v. bummer 3rd definition (CD-ROM Version 3.1, 2004).
11 This seems to apply an etymology to the word bummer similar to that of hoodlum that some scholars believe originally referred to a specific gang in San Francisco in the early 1870s, but which rapidly spread across the U.S. and became a generic reference to any street tough or member of a gang. Benjamin E. Lloyd, Lights and Shades in San Francisco, (San Francisco: A. L. Bancroft, 1876), 297 and Herbert Asbury, The Barbary Coast, (New York: Basic Books, 1933), 150-151; Oxford English Dictionary accepts that the word hoodlum was first noted in San Francisco, but is uncertain of its origin.
8


12
adopt a pejorative term used against them as a badge of honor. Oklahoma Sooners is one example of this. Quaker for the Society of Friends is another; as are more recent adoptions of the terms deplorable and snowflake by the people those words were intended to insult. Such an adoption of bummer by the turkey-nappers does not carry the implication of any organization by that name. Thus, I will not use it in that way here. 12
12 Rocky Mountain News, February 3, 1860, Extra Edition; Rocky Mountain News Feb 8, 1860; Western Mountaineer News, Feb 8, 1860.
9


CHAPTER II
LAYERS OF SOVEREIGNTY AND JURISDICTION
In 1858, the region currently encompassed by the state of Colorado was the subject of numerous overlapping jurisdictional layers. The broadest form of jurisdiction is national sovereignty. This region was claimed by Spain, France, and the United States between 1500 to 1858. However, it is difficult to maintain that any of those nations truly had sovereignty over the region due to their failure to control the region. Spain had attempted to settle the area but was repeatedly beaten back by natives and never managed to establish permanent settlements, much less effective control. Even after Spain had surrendered Louisiana, the boundary between Louisiana and New Mexico was in dispute.13 14 After Mexican Independence, more vigorous efforts were made to settle the region below the Arkansas River through a number of land grants. When the United States claimed New Mexico under the Treaty of Guadalupe Hidalgo, the national boundary moved south of the current boundary of the state of Colorado and the area south of the Arkansas River was part of the U. S. Territory of New Mexico.
However, the claims of France, Spain, and the United States paid little or no attention to the people who were actually living in the region. The Arapahoe, Cheyenne, Comanche, Kiowa, Apache, and several branches of Ute Indians claimed parts of this region as their territory. To some degree, the claims of the Americans and Europeans were merely academic
13 Frank Hall, History of the State of Colorado (Chicago: Blakely Printing Co., 1889), 89.
14 The southwest boundary of the Louisiana Purchase was one of the prominent causes of the trouble. It was in dispute and much jealousy was manifested on both sides. Each power claimed the Red river, and with it Spain claimed a great deal more... .The United States expected to make the Red river part of the southwestern boundary, as it did become when the quarrel was settled by the treaty of 1819. Jerome C. Smiley, History of Denver (Denver: The Times-Sun Publishing Co., 1901), 132.
10


exercises until one of them proved they could control the area.15
15 Hall, History of Colorado, Vol. 3, 100-101.
11


CHAPTER III
NATIVE AMERICAN LAW WAYS Background
Thousands of years before Spaniards and their descendants attempted to settle in what is now southern Colorado, the San Luis Valley functioned as a hunting and gathering area for the Upper Rio Grande Culture which left petroglyphs, projectile points, flints, and remnants of prehistoric kill sites. Their descendants built the cliff dwellings found in Mesa Verde and other locations. By the time the Spaniards came to the Western Hemisphere, Comanche, Apache, Navajo, and Ute seasonally hunted buffalo and antelope in the region.16 17 18 The Southern Cheyenne and Southern Arapahoes began to move south from the region of the Missouri River into what is now Colorado in 1826. Some had gone south earlier for trade but
17
had returned north.
Whether longtime inhabitants of the Southwest, or recent migrants, these native societies lacked written languages, and thus lacked written law. Nevertheless they possessed clear legal concepts and strong moral codes which were passed on through customs and taboos. When faced with a new or infrequent social problem they relied on collective recollections of similar cases and used the precedent established by such previous cases. It is these types of problems or trouble-cases which make or change law in any society and it is by studying memories of such trouble-cases that ethnologists have been able to discover the law ways (as the ethnologists called them) of these people in the mid-nineteen century before
16 Maria Mondragon-Valdez, The Culebra River Villages of Costilla County Colorado National Register of Historic Places Multiple Property Documentation Form, (June 1, 2000) Section E 6.
17 Fred Eggan, The Cheyenne and Arapaho Kinship System, in Social Anthropology of North American Tribes, ed. Fred Eggan (Chicago: University of Chicago Press, 1955), 35-95, 36; George Bird Grinnell, The Cheyenne Indians: Their History and Ways of Life, Vol. / (Lincoln: University of Nebraska Press, 1923) [1972 reprint edition], 39-43.
18 Paul H. Carlson, The Plains Indians (College Station, TX: Texas A&M University Press, 1998), 75.
12


their societies were torn apart by incursions from outsiders.19 20 21 22 23 Studies based on interviews done in the late nineteen and early twentieth century of the Cheyenne, Comanche, and Arapahoe cultures have revealed basic legal concepts and methods of enforcement. Less is
known about the law ways of the Apache and the Kiowa, and that aspect of Ute culture
20
continues to remain an enigma to outsiders today.
While most native societies in this region had at least some form of political structure, in most cases the leaders were councilors or advisors who lacked coercive power. There was no chain of command. This confused many Americans, especially those with military backgrounds, who, like Edwin James of the Long Expedition, often reported that the natives appeared to have no laws, except such as grow out of habitual usages, or such as are actioned by common consent. Ironically, Jamess description could easily apply to British or American Common Law, and the Cheyenne system of law and law enforcement has some similarity to tenth century Anglo-Saxon legal systems. Jamess focus on by common consent could also describe the concept of popular sovereignty that was extremely popular in the West in the 1850s and 1860s. Popular sovereignty was used to justify everything from peoples courts to the Kansas-Nebraska Act, which resulted in the violent struggle to
23
determine whether Kansas was to be a free state or slave state known as Bleeding Kansas.
In an attempt to describe the differences between the American settlers and the native
19 Llewellyn and Hoebel, Cheyenne Way, 29.
20 Hoebel ranked Kiowas as intermediate between the Cheyenne and Comanche, geographically and socially.
He wrote that their system of social control was not as well developed as that of the Cheyennes, but superior to that of the Comanche. Hoebel, Law of Primitive Man, 130.
21 Loretta Fowler, Arapahoe Politics, 1851-1978: Symbols in Crises of Authority (Lincoln: University of Nebraska Press, 1982), 7.
22 Bmce L. Benson, The Enterprise of Law: Justice Without the State (Oakland, CA: The Independent Institute, 2011), 23-28.
23 Christian G. Fritz, Popular Sovereignty, Vigilantism, and the Constitutional Right of Revolution, Pacific Historical Review 63, no. 1 (February 1994) 45.
13


peoples, James may have instead described their greatest similarity.
Cheyenne
Ethnographers found that the Cheyenne had a well-developed political and legal system. Adamson Hoebel described the Cheyenne legal system as sedate and effective, calm and mature with a feeling for the social purposes of law. While the chiefs and the tribal council primarily had power to influence decisions, not coerce them, the military societies were developing into a powerful force for coercion, and the council and individual chiefs were learning to use that. Unfortunately, the Colorado Gold Rush occurred at time when the Cheyenne were already stressed by environmental changes, and encroachment by Americans not only impeded further cultural evolution, but fractured their existing legal system. I describe below the Cheyenne system that existed in the mid-nineteenth century that was beginning to splinter by the 1858-1861 period.
Each of the ten clans of the Cheyenne had four chiefs. These chiefs were selected for their courage, wisdom, generosity, and self-control. A Cheyenne chiefs primary duty was to care for widows and orphans. The secondary duty was to act a mediator or a peacemaker between any in the camp who quarreled. Small disputes were usually settled privately, either by the parties themselves, or by their families. If that did not work, the matter could be
25
brought to one or more of the chiefs for advice or assistance.
While most minor disputes were resolved by some form of mediation or arbitration facilitated by family members or chiefs, that does not mean that there were no rules of behavior, or no community means of enforcement. There were rules of conduct established by custom as determined by the council of chiefs that were very strictly enforced. Offenders 24 25
24 Hoebel, The Law of Primitive Man, 129-30; Hoebel, The Cheyenne, 50.
25 Grinnell, The Cheyenne Indians Vol. I, 336-7, 358; Hoebel, Law of Primitive Man, 154.
14


could be whipped by the soldiers, or their property might be destroyed.26 27
Cheyenne law was strongly intertwined with Cheyenne religion. A violation of the law would also be a sin that affected the entire community. The Cheyenne had two sacred medicine bundles: The Sacred Arrows and the Sacred Buffalo Hat. The Cheyenne believed the spiritual power of these bundles could be tapped ceremonially to help the tribe prosper. Serious transgressions by tribal members were thought to pollute the Sacred Arrows, ruining the hunt, and bringing bad luck to the entire tribe. The entire community had an interest in avoiding pollution of the Sacred Arrows and any action required to cleanse of them. The
27
infraction had to be dealt with and the Arrows renewed.
The Council of Forty-Four governed the Cheyenne people. The Council provided unity and central authority among the bands. This Council consisted of four principal chiefs plus four chiefs from each of the ten bands of the people. The four principle chiefs were men of special influence and their opinions received greater weight than those of other chiefs. The Council of Forty-Four resolved disputes and promoted peace among the bands. The Council possessed both executive and judicial powers. It alone had the peace-making authority. The Council could order criminals whipped or banished from camp. It could also commute sentences.28
Once the Council had made a decision, it often asked members of one of the military societies to enforce it. There were six military societies among the Cheyenne: the Fox Soldiers, Elk Soldiers, Shield Soldiers, Bowstring Soldiers, Dog Men, and Northern Crazy
26 Grinnell, The Cheyenne Indians Vol. I, 349-50.
27 Hoebel, Law of Primitive Man, 157.
28 Grinnell, The Cheyenne Indians Vol. I, 336-7; Elliott West, The Contested Plains: Indians, Goldseekers, and the Rush to Colorado (Lawrence: University of Kansas Press, 1998), 85; Llewellyn and Hoebel, Cheyenne Way, 67; Hoebel, Law of Primitive Man, 149.
15


Dogs. The military societies were the police and military force of the Cheyenne. Soldiers of
29
the societies investigated infractions of rules, and restrained and punished troublemakers.
Theft was not usually a legal issue for the Cheyenne, mostly because the Cheyenne had a different view of personal property. The Cheyenne did not consider accumulation of material possessions a sign of wealth or power. On the contrary, giving away possessions was a more likely method to establishing influence. Obligations of beneficence required that material objects be given to someone who needed it more than the person who possessed it.
A common response to someone who took something without asking would be: If I had known you wanted the thing, I would have given it to you. An item could be borrowed by leaving some token behind which indicated both the identity of the taker and the intent to return the item. However, if someone wanted an article returned that was missing, a camp crier would be asked to make an announcement and requested its return, sometimes offering
30
a reward. Usually the item was returned and nothing more was said.
The introduction of horses changed some of the rules regarding property. While initially taking or borrowing another mans horse followed the same rules as other property, by 1850 that practice was causing some social strain. One man borrowed a horse belonging to Wolf Lies Down, but did not return it for over a year. Wolf Lies Down consulted with the Elk Soldiers. They found the borrower and brought him and the horse back. The borrower 29 30
29 Llewellyn and Hoebel, Cheyenne Way, 99; Grinnell, The Cheyenne Indians Vol. I, 337; Hoebel, Law of Primitive Man, 153.
30 Llewellyn and Hoebel, Cheyenne Way, 226-7, 236; Hoebel, Law of Primitive Man, 169; Hoebel, The Cheyennes, 55-6; In a mobile society, it is socially beneficial to not value personal possessions that might need to be left behind. This attitude towards property was also reflected in the rules regarding inheritance and disposal of property at death. The family of the deceased were expected to give all the property of the deceased away and often much of their own as well. They were then dependent on the community for support and receipt of gifts. This procedure also reinforced the mutual obligations of the community. Llewellyn and Hoebel, Cheyenne Way, 212-3; George Bird Grinnell, The Cheyenne Indians: Their History and Ways of Life, Vol. II (Lincoln: University of Nebraska Press, 1923) [1972 reprint edition], 162.
16


offered additional horses to Wolf Lies Down as compensation. Wolf Lies Down took one horse, but gave the original horse that he had borrowed to him as a gift. When the chiefs next met, they made a new rule that there would be no more borrowing without asking. If a man took anothers goods without asking, a military society would take them back from him. Furthermore, if he tried to keep the property they would give him a whipping. That created a
31
new law making it a crime to borrow an owners horse without his permission.
The primary concern of Cheyenne law was the prevention of violence of Cheyenne against Cheyenne. Cheyenne children were raised to value self-control, social altruism, and exhibiting a mild demeanor within the camp, at the same time warriors were trained to be militarily aggressive and were publicly rewarded for performance on the battlefield or on the hunt. Sometimes the battlefield training, or a mans personal demeanor, overwhelmed the social training. Intertribal homicide was rare. Grinnell wrote that it occurred once in a generation. Hoebel recorded sixteen killings within the tribe in two generations (1835-1879)
33
or an annual rate of almost one killing to a theoretical ten thousand of population.
The tribal council sat as a judicial body to judge a murderer. The typical sentence was exile, which would be enforced, if necessary, by the military societies. This banishment included the murderers family as well. However, murder was not merely a crime. It was a sin that tainted the entire village, not just the individual or his family. It disrupted the fabric of tribal life and threatened tribal unity. It polluted the Sacred Arrows. The murderer was seen as rotting inside and giving off a fetid odor that would scare away the buffalo and other game. The Sacred Arrows must be renewed in a ceremony that required the attendance of all 31 32 33
31 Llewellyn and Hoebel, Cheyenne Way, 127-9, 223; Hoebel, The Cheyennes, 55-6.
32 Hoebel, The Cheyennes, 49, 53.
33 Llewellyn and Hoebel, Cheyenne Way, 132; Grinnell, The Cheyenne Indians, 350.
17


the other families and restored a commitment to tribal unity.34 35 Even though the sentence was nominally for life, after a period of years, if the murderer reformed, his family might plead that the sentence be commuted. The victims family was consulted, but they understood that tradition was that return was usually allowed. Even then the murderer was cut off from the
35
unity of eating from the common bowl and smoking from the ritual pipe.
Hoebel claimed that the Cheyenne view of homicide being a sin that affected the fortune of the whole village precluded the possibility of feud, which he called the bane of primitive social systems generally. A feud would merely compound the sin increasing the disaster for the tribe. Exclusion and ostracism are effective means of ending the social disruption while steps are taken to compensate the bereaved kin for the death of the member.36 37
However, Llewellyn and Hoebel also discussed the case recorded by Grinnell involving the murder of White Horse by Walking Coyote and the related murder of Walking Coyote by Winnebago, which seems to contradict Hoebels claim that feud or retaliation was unknown among the Cheyenne. In 1854, White Horse stole Walking Coyotes wife, an act which usually required compensation, but not punishment. However, Walking Coyote threatened to kill White Horse unless he sent back his wife. When he did not, Walking Coyote killed White Horse and Walking Coyotes wife returned. Winnebago then renewed the Sacred Arrows as required by killing. A little later Winnebago stole the same woman from Walking Coyote. Walking Coyote then stole Winnebagos wife, Spirit Woman, and
34 Hoebel, The Cheyennes, 50-51; KarlN. Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman, OK: University of Oklahoma Press, 1941), 132-3; Hoebel, Law
of Primitive Man, 157.
35 Llewellyn and Hoebel, Cheyenne Way, 133, 136-8.
36 Hoebel, The Cheyennes, 50-1.
37 Llewellyn and Hoebel, Cheyenne Way, 140-146.
18


Winnebago shot and killed Walking Coyote. Eight years later, Kutenim, a relative of White Horse, began a fight with Winnebago. Winnebago responded and killed him. At that time, the Bowstring soldiers wanted to punish Winnebago for killing Kutenim, but the chiefs told them to take no notice of the affair. Winnebago moved from the camp and lived with the Arapahoes. Two years (1864) later, Rising Fire, another cousin of the dead men, decided he had to kill Winnebago. One of the Cheyenne Dog Soldiers invited Winnebago to eat with them. Winnebago moved from the Arapahoe camp to the Cheyenne camp, but as he was walking to dinner past Rising Fires lodge, Rising Fire shot at him from the door of the lodge, then walked out and blew out his brains with a gun. This arranged ambush of
38
Winnebago ended the cycle.
One possible explanation is that during that period (1854-1864) the Cheyennes social and legal system was breaking down due to stress from drought, disease, and pressure from the Gold Rush miners and settlers. As a result, some warriors were no longer respecting the traditional ways. This process accelerated after 1864 when the Cheyenne lost eight members of their Council of Forty-four at the Sand Creek Massacre and the military societies primarily took control.38 39
Arapahoe
During the nineteenth century, the Arapahoe were often closely associated with the Cheyenne, thought they spoke different languages and had different social rules. The Arapahoe were also organized into bands, though their bands were not based on kinship.
38 Grinnell, The Cheyenne Indians Voll, 350-3, 357.
39 Elliott West, The Way West (Albuquerque: University of New Mexico Press, 1995) 38, 42-7, 68-9, Esp. see note 58 on 177; West, The Contested Plains, 85; Hoebel, Law of Primitive Man, 155; Nearly half of the Cheyenne died in the cholera epidemic of 1849. Some entire clans died. Grinnell, The Cheyenne Indians Voll, 101; Anne Hyde, Empires, Nations and Families (New York: Harper Collins, 2011), 344.
19


Much like the Cheyenne, during the summer, Arapahoe bands joined together and formed a camp circle, sometimes near a Cheyenne encampment.40 Arapahoe society was age-graded. Each male member normally progressed through each grade. The Arapahoe had a less structured government than the Cheyenne. Major decisions were determined by a council of elders who determined the consensus and persuaded other Arapahoe to cooperate and compromise.41 42 Sometimes decisions of the elders were enforced by younger warriors of the second or third grade who were given authority to use force if necessary, but the Arapahoe did not have as well developed warrior societies as the Cheyenne. In most cases, respect for
42
the elders was sufficient motivation to conform to their judgment.
The consequences of murder of an Arapahoe by an Arapahoe were not as crystalized as they were among the Cheyenne. Scholars have reported exile, blood-revenge by male relatives of the deceased, and compensation to the victims family in the form of horses which would then forgo revenge and might agree to a commutation of the sentence.43
As with the Cheyenne, environmental challenges of the 1850s and the surge of Gold Rush settlers in Colorado disrupted the Arapahoes internal social structure, generally shifting power to younger warriors.44
40 Eggan, Cheyenne and Arapaho Kinship, 37.
41 Loretta Fowler, Arapahoe Politics, 1851-1978: Symbols in Crises of Authority, (Lincoln: University of Nebraska Press, 1982), 6-7.
42 Fowler, Arapahoe Politics, 7, 28.
43 Eggan, Cheyenne and Arapaho Kinship, 66; Kroeber, Alfred Louis, The Arapaho, Bulletin of the American Museum of Natural History, 18 Pt. 1 (1902) (Kindle Edition Locations 233-235).
44 Margaret Coel, Chief Left Hand: Southern Arapahoe (Norman: University of Oklahoma Press, 1981), 100; Loretta, Fowler, Arapahoe Politics, 6.
20


Comanche
The Comanche valued personal autonomy and responsibility above all else. This tended to limit government institutions.45 The Comanche lived in small family bands. Each band was autonomous and self-sufficient at a subsistence level. An older man who had proven his wisdom and honor to his family members was the leader of each family. The most prominent leader of the central extended family would be headman of that band. The headman held the band together, but his influence was subtle. He used advice and good humor. In matters of daily routine such as camp moving, he often made the decisions himself, announcing them through a camp crier. Anyone who did not agree with his decision simply ignored it. Before making decisions of consequence, the headman would seek consensus informally, or in council with other men in the band. Important policies were determined in council. In theory, at least, the council was supreme, but its decisions were often indefinite. The council was composed of the elders of the tribe who had shown exceptional ability as warriors or leaders.46 War chiefs were warriors who had accumulated records of great deeds but their powers were limited. Any Comanche who could muster a band of followers was free to initiate a raid or organize a war party. The Comanche did not have any well-developed military societies. There was no evidence that they played an important police role.47
Comanche law was not so much a conscious social policy, but rather a series of
45 E. Adamson Hoebel, Plains Indian Law in Development: The Comanche, in Delinquency, Crime and Social Process, ed. Donald R. Cressy and David Ward, (NY: Harper & Row, 1969) 69, accessed 02/09/2017 http://ehrafworldcultures.yale.edu.; Hoebel, Law-Ways of the Comanche Indians, 45.
46 Brian Delay, War of a Thousand Deserts, (New Haven: Yale University Press, 2008), 45; Ernest Wallace and E. Adamson Hoebel, The Comanche: Lords of the South Plains, (Norman: University of Oklahoma Press,
1987), accessed 02/09/2017 http://ehrafworldcultures.yale.edu, 213; Adamson, Law of Primitive Man, 129, 132.
47 Wallace and Hoebel, Lords of the South Plains, 224; Hoebel, Law-ways of the Comanche, 129; Hoebel, Law of Primitive Man, 132, 234.
21


responses to situations that threatened the tribe. Personal power was the basis of social relations between Comanche men. Yet such power out of control could threaten tribal cohesion. Tribal standards of right conduct were the tethers that kept the society from flying apart. The Comanche recognized universal wrongs and sanctions and allowed individuals to seek retribution across band and divisional lines. It was a system that attempted to balance individual responsibility and individual action. Their way of life resulted in considerable internal friction. Trouble-making was lauded. They had none of the Cheyennes emphasis on self-control. The Comanche had a tendency to break law in the face of certain and severe penalties.48
Theft was so unusual that the Comanche interviewed by Hoebel all insisted that it never happened. Like with other mobile people of the plains, possession of objects was not highly valued. The Comanche considered use of an object more important than who produced it or possessed it. In earlier times, all personal effects were destroyed when a person died, including clothing, weapons, saddled, tools, lodges, and even horses customarily ridden by the deceased were destroyed. Later not all of the horses were killed and some possessions were given away rather than being destroyed. Principles of generosity essentially placed a public lien upon the game a Comanche hunter brought down. A man who returned to camp with meat was obliged to share it with all who asked.49
Any willful killing of a Comanche required a revenge killing of the slayer. There was no trial or compromise. There was no allowance for compensation of the victims kin. Banishment was inadequate. The Comanche kinsmen took revenge on the killer regardless of
48 Pekka Hamamainen, The Comanche Empire (New Haven: Yale University Press, 2008), 277; Hoebel, Law of Primitive Man 129, 133, 137; Wallace and Hoebel, Lords of the South Plains, 224-5, 234.
49 Hoebel, Law-ways of the Comanche, 111-22.
22


the rightness of his original grievance. However, blood-revenge killing was only allowed for the first killer and retaliation did not lead to feud. In principle a simple retaliation was all that was required and the murderer must be the victim. The Comanche also drew a clear line between murder and accidental homicide. In the case of an accident there was no retaliation and payment to the family of the deceased was accepted.50
The Comanche did not consider it murder if a husband killed his wife and her kin were not allowed to retaliate. However, the husband would assume the obligation to provide food for his father-in-law. On the other hand, a man who killed his wife too recklessly might have a hard time getting another one. Killing of husbands by wives was rare, but Hoebel provided one example of a wife who killed an abusive husband and escaped to live with the Utes for a while. When she returned and confessed to his family, they chose not to retaliate against her.51 Among the Comanche a favored horse might be so endowed with personality that killing a mans favorite horse was akin to killing his brother. The owner might, and sometimes did, kill the horse-slayer in return. But that did not apply to all horses, only special ones.52
The Great Peace of 1840 was an alliance of the Comanche, Kiowa, Cheyenne, and Arapahoe that reconfigured the politics and economics of the southern and central Great Plains. It launched a thriving commerce that embraced American traders such as the Bents as well. Yet that very peace may have led to the Comanches decline and ultimate defeat by the Americans. It drew the nations into greater physical proximity. It decreased the loss of life from intertribal warfare, which increased the drain on resources at a time of droughts, and it
50 Hoebel, Law of Primitive Man, 139; Hoebel, Law-ways of the Comanche, 66, 75-6.
51 Hoebel, Law of Primitive Man, 139; Hoebel, Law-ways of the Comanche, 73, 75.
52 Wallace and Hoebel, Lords of the South Plains, 233.
23


encouraged the spread of disease such as the cholera epidemic of 1849. By the late 1850s, the Comanches had ceased to be an imperial power and the encroachment of Americans aborted
53
whatever political-legal evolution that might have otherwise resulted.
Apache
Anthropologists identify a number of Apache groups that claimed the Southwest as their territory in the nineteen century. Chiricahua Apache is the group who mostly likely lived and hunted in parts of southern Colorado west of the Rio Grande in 1858-1861. The Chiricahua were divided into three well-defined bands, which were subdivided by locality and family encampments. In a family encampment, the leading man is usually the oldest, and the most influential among the family leaders led the local group. However, there was no binding obligation to follow a leaders advice. A leaders advice carried much weigh, but if the majority disagreed, the leader will be ignored.
As with many other Native American cultures, the obligation of generosity made theft within a family unnecessary and very rare outside the family unit. A person was expected to give to those in need. A theft outside a family was settled by restitution. Taking from Mexicans, Americans, or other Indians was not considered theft, but more like harvesting resources, a normal part of the economy.53 54
Among the Chiricahua Apache, murder was viewed as a family matter, as it depleted their members and impaired the family economically. Often a murder would result in a blood feud between the families with first one side and then other seeking vengeance. If the murderer had been a troublesome, his family might hand him over to the family of the
53 Hamamainen, Comanche Empire, 165, 178-9, 293-6, 301.
54 Morris E. Opler, An Outline of Chiricahua Apache Social Organization, in Social Anthropology of North American Tribes, ed. Fred Eggan, (Chicago: University of Chicago Press 1955), 236-7.
24


murdered man who would execute him thus preventing such a feud. Sometimes a local leader succeeded in arbitrating between the families of the victim and the perpetrator, and the transfer of gifts as compensation may conclude the matter. This outcome is advantageous to the Chiricahua Apache as a whole because a blood feud would weaken the group both in numbers and in social cohesiveness.55
55 Opler, Chiricahua Apache, 173-242, 176-184, 233-6.
25


CHAPTER IV
TRADERS, EXPLORERS, AND MILITARY OUTPOSTS
From the sixteenth century onward, a number of trappers, traders, and explorers passed through this region. However, most of them failed to establish any permanent settlements that lasted into the 1850s. Don Juan Onate attempted to create settlements in the upper Rio Grande basin north of the Raton and Sangre de Cristo ranges. However, Onates colonists fled in the face of Indian attacks, his mission was considered a failure, and he was recalled by the Council of the Indies.56 58
In 1806 President Thomas Jefferson ordered Zebulon M. Pike to examine the country between the Missouri and the Rocky Mountains and discover the sources of the Arkansas, Platte, and Red Rivers. Pike was also supposed to acquire such geographical knowledge of the southwestern boundary of Louisiana, as to enable the government to enter into a definite arrangement for a line of demarcation between that territory and North Mexico. No permanent fort or settlement was established. In 1819, John C. Calhoun, Secretary of War, ordered Major Stephen S. Long of the Topographical Engineers, to explore the Red River and the source of the Arkansas River. Longs expedition did not establish any settlement in the region.59 In 1842, Lieutenant John C. Fremont also came through the area but left nothing behind.60
In the summer of 1852, the United States established the first U.S. military post in
56 Jeffrey S. Smith, Cultural Landscape Change in a Hispanic Region, in Geographic Identities of Ethnic America: Race Space and Place, ed. Kate A. Berry and Martha Henderson, (Reno: University of Nevada, 2002) 176-7; George P. Hammond and Agapito Rey, The Crowns Participation in the Founding of New Mexico, New Mexico Historical Review, 32 no. 4 (October 1957) 294-9, 303-5; Hall, History of Colorado, Vol. 3, 85-7.
51 Hail, History of Colorado, Vol. 3, 91, quoting fromPikes journal.
58 Hall, History of Colorado, Vol. 3, 85, 92-3; Smiley, History of Denver, 138-9.
59 Hall, History of Colorado Vol. 3, 99-100; Smiley, History ofDenver, 141-2.
60 Hall, History of Colorado, Vol. 3,117-18; Smiley, History of Denver, 143-4.
26


this area, Fort Massachusetts. Fort Massachusetts was located on Ute Creek in what is now Costilla County. In June 1858, Fort Massachusetts was dismantled and abandoned in favor of Fort Garland, seven miles farther south.61
As mentioned below, Fort Wise, aka Fort Lyons, was established at Bents (New)
Fort in 1860. The military had its own laws and codes of conduct, though it was not unusual for frontier outposts to have discipline problems and desertions, as is discussed in some of the case histories.
Most trappers lived singly or in small groups in temporary camps, and met at rendezvous or at trading posts. Some were more itinerant than the local Indians and far less sociable. Since the decline of the fur trade in the late 1830s and early 1840s, most trappers from the height of the trade had died or drifted to other occupations by the time of the Colorado Gold Rush.62 In the 1840s, Fremont described a settlement where Pueblo is today where a number of mountaineers who.. .married Spanish women.. .had collected together and occupied themselves in farming, carrying on.. .Indian trade. They were principally Americans. That settlement had been abandoned by the late 1850s.63 In 1858-59, Captain R. B. Marcy, of the United States army, passed through with a detachment of troops on the way from Fort Bridger, Utah Territory, to Taos, New Mexico. He wrote that at that time there was not but one white man living within one hundred and fifty miles of the place [current location of Denver], and he was an Indian trader named Jack Audeby [aka Autobee] upon the Arkansas.64
61 Smiley, History of Denver, 148; Hall, History of Colorado, Vol. 3,168.
62 Rufus R. Wilson, The Mountain Men, A Colorado Reader, ed. Carl Ubbelohde (Boulder: Pruett Publishing Co. 1962), 59-73., 72; Hall, History of Colorado, Vol. 3, 110-114.
63 Hall, History of Colorado, Vol. 3, 119-122; Smiley, History ofDenver, 118, 144.
64 Hall, History of Colorado, Vol. 3, 142-5.
27


Traders, on the other hand, established a number of trading posts or forts including Ft. Vasquez, Ft. St. Vrain, Ft. Huerfano, Ft. Lancaster (aka Ft. Lupton), Ft. Jackson, and Ft. Le Due. In 1846, Francis Parkman noted that several of the local fur establishments, particularly Fort St. Vrain and Fort Lupton, were falling into ruin.65 All of the trading forts named above appear to have been abandoned before 1850.66
Bents Fort seems to have been the sole survivor of the trading posts in this region. William Bent and his brothers Charles, Robert, and George, together with Ceran St. Vrain, built a number of different trading forts. In 1826, they built a stockade trading post on the north bank of the Arkansas River, about half-way between Pueblo and Canon City. In 1828, they abandoned that stockade in favor of a more substantial fort down the Arkansas that they called Fort William, but which many people simply called Bents Fort, and today is called Bents Old Fort. About sixty people worked there and it was a place of great activity. It was a popular resort of mountaineers and plainsmen. Travelers often stopped on their way west.
The Fort was often surrounded by large encampments of Indians. William Bent destroyed this fort in 1849 after a cholera epidemic killed nearly half the Cheyenne, including several of his in-laws.67 Bents final fort at Big Timbers, sometimes called Bents New Fort, was the
65 Frederic J. Atheam, Land of Contrast: A History of Southeast Colorado (Denver: Bureau of Land Management, 1985) 40.
66 Hall, History of Colorado, Vol. 3, 117-122, 142-5, 169; Smiley, History ofDenver, 143-4, 152.
67 This epidemic also ravaged the Comanche. Hyde, Empires, Nations and Families, 2011, 341. Cholera seems to have spread up the Arkansas Valley from the region where Oklahoma is today through the natives and travelers along the Santa Fe Trail. Burning habitations infested with disease was a common reaction among Europeans, Americans, and Natives at the time. Since adobe does not bum well, William Bent most likely distributed the black powder kegs around the fort to make the place uninhabitable to prevent further spread of cholera. Hyde, Empires, Nations, 344; Joseph P. Sanchez, Early Hispanic Colorado, 1678-1900, (Los Ranchos, NM: Rio Grande Books, 2015), 173; David S. Lavender, Bents Fort (Garden City, NY: Doubleday, 1949), 215-7; Grinnell, The Cheyenne 101, Smiley, History of Denver, 149-50; Hall, History of Colorado, Vol. 3, 134-7, 163-5; The story that William Bent destroyed the fort due to frustrations with government negotiations (Eg. Smiley, History of Denver, 150, Hall, History of Colorado, Vol. 3, 164-5 and Ubbelohde, Colorado History, 51) seems to have originated with his son, George Bent, who was a child of six at the time and who may have conflated different events when he told them late in life. The editor of George Bents letters noted other
28


one in existence at the time of the Colorado Gold Rush. It was completed in the summer of 1854 and was used as a trading post until William Bent leased it to the U.S. government in the autumn of 1859. The U.S. Army added barracks and officers quarters and renamed it Fort Wise. In 1861, the name of the fort was changed to Fort Lyon.68
The trading posts in this region existed under the various jurisdictions mentioned above. However, given their distance from any source of authority they were mostly autonomous and often did not care which nation claimed the land. They were privately own ventures, the owners could undoubtedly have banned anyone who was troublesome. They may have had internal rules that were never written down. However, in general the fur trading companies of the Rocky Mountain region seemed to lack the tight organization and strict moral code of that was characteristic of the Hudson Bay Company.69 In any case, the last if the trading posts in the region faded away during this period.
discrepancies in his version. George E. Hyde, Life of George Bent: Written from His Letters, ed. Savoie Lottinville (Norman: University of Oklahoma Press, 1968), 93. See especially notes 13 and 14. Lavender noted that many traders assumed the fort was destroyed in an Indian attack, which is what Bancroft wrote in his history. Lavender, Bents Fort, 217; Hubert Howe Bancroft, History of Nevada, Colorado and Wyoming 1540-1888 (San Francisco: The History Company, 1890) 363 note 1.
68 Smiley, History of Denver, 150; Hall, History of Colorado, Vol. 3, 165.
69 Katherine Coman Government Factories: An Attempt to Control Competition in the Fur Trade, American Economic Review, 1, no. 2, (Apr., 1911) 388.
29


CHAPTER V
LAW ON THE MEXICAN LAND GRANTS Background
Spain attempted to regulate the government of its American colonies. However, it recognized that not all the laws of Spain were appropriate in American and vice versa. Many laws in force in Spain were never extended to the American colonies. The body of law created by Spain during the colonial period was massive. The scattered laws which bad been promulgated at different periods were collected and digested by order of Philip IV in the same form as the Recopilacion of Castile. The Recopilacion de leyes de los reynos de las Indias was a digest of the royal orders issued for the government of the American colonies first published in 1661. Changes were gradually introduced into colonial law which made a revision of the Recopilacion de Indias necessary. It was ordered about 1777, but later abandoned after one book had been finished. The Spanish Leyes de Indias or Laws of the Indies was not a single cohesive legal code. It was mainly a list of exceptions to the general and common law of Spain. As a result, determining what was the official Spanish law governing the colonies was not easy task. It required studying a number of different laws, orders, and decrees. When no applicable provision was found in the Recopilacion de Indias, the laws of Recopilacion of Castile had to be consulted. Political instability in Spain during the first two decades of the nineteenth century did not improve the situation.
The nineteenth century was turbulent time for Spain and its territories. It was a time of wars and shifting alliances in Europe. Many of these European conflicts between 1803 and 70
70 Gustavas Schmidt, The Civil Law of Spain andMexico, (New Orleans: Privately Printed, 1851), 94-6; John A. Rockwell, A Compilation of Spanish and Mexican Law, in Relation to Mines, and Titles to Real Estate, California, Texas and New Mexico (New York: John A. Voorhees, 1851), 16.
30


1815 are collectively called the Napoleonic Wars, but they also spawned other internal and external conflicts. The French invasion of Spain in 1807 resulted in internal political turmoil that lasted until 1823. Naval blockades of trade across the Atlantic Ocean impeded economic pacification of Apache and Comanches which encouraged raiding of Mexican settlements at the same time it forced the colonies to become more economically independent. After the end of the Napoleonic Wars, Spain sent troops to reestablish control over the colonies, but the damage had been done. Spain lost most of its American colonies in a series of revolutions in
71
the first two decades of the nineteenth century.
Independent Mexico
After winning its independence from Spain, Mexico also assumed jurisdiction over the department extending south of the Arkansas River called New Mexico. The new country was on precarious footing. It needed to stabilize its economy and secure its borders. The northern provinces were especially insecure. New Mexico was mostly inhabited by Indians, some nomadic like the Apache and Comanche, and others more settled. French Canadian and American trappers and traders were increasing their presence. Settlement of New Mexico by Mexicans could establish Mexicos claim to the region, increase economic security, and create a buffer zone to protect Mexico from foreign encroachments. This was not a new strategy. Spain had a history of issuing land grants in the Americas to reward soldiers or faithful administrators, or to encourage colonization. Over three centuries, the land tenure system in the colonies had evolved. It was based on Spanish land tenure systems but 71 72
71 Joseph O. Van Hook, Mexican Land Grants in the Arkansas Valley, The Southwestern Historical Quarterly 40, no. 1 (July 1936): 58-75, 60; Schmidt, Civil Law, 94-6; Delay, Thousand Deserts, 14-6.
72 Placido Gomez, The History and Adjudication of the Common Lands of Spanish and Mexican Land Grants, Natural Resources Journal 25 (January 1985) 1042, 1059-1969; Victor Westphall, Mercedes Reales: Hispanic Land Grants of the Upper Rio Grande Region (Albuquerque: University of New Mexico Press, 1983), 3; Sanchez, Early Hispanic Colorado 151; VanHook, Mexican Land Grants, 58-75, 60.
31


absorbed some characteristics from Native Americans settlements and adapted to the local terrain.73 74 75
Between the 1820s and the 1850s, Mexico pendulated between a highly centralized government and a more distributed form. Different administrations passed different laws related to colonization. The Colonization Law of 1823 authorized the central government to issue large grants of land to empresarios who agreed to lure groups of settlers into the northern provinces. One year later the newly formed Mexican Congress issued the Colonization Law of 1824. This law authorized the governors of the states to grant vacant lands in their respective territories to individuals, families, and contractors, including naturalized foreigners. It limited the land that could be granted to a single person to a square league of land, of five thousand varas for irrigation, and six for pasturage.76 77 78 If a petition for a grant followed the law of 1824, the governor could make the grant at their discretion. However, grants to families also required the sanction of the territorial deputation, and the contracts with expresarios (colonial contractors) required the consent of the central supreme government. The colonists were obliged to prove after a certain length of time that they had lived on the lands and cultivated them according to contract, before they could obtain a title to the lands. The provisions of the Colonization Act of 1824 were reinforced and clarified by the Regulations for Colonization issued in 1828. These regulations required that one-fourth of the colonists on a grant must be Mexicans and that within seven years the lands of a
73 Gomez, History and Adjudication, 1058-1060; Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico, 3rd ed. (Albuquerque: Center for Land Grant Studies, 2008), 24-27; Howard R. Lamar, Policy in the Spanish Southwest, 1846-1891: A Study in Contrasts, The Journal of Economic History 22, no. 4 (Dec. 1962): 498-515, 499.
74 Sanchez, Early Hispanic Colorado, 156.
75 Gomez, History and Adjudication, 1064; Sanchez, Early Hispanic Colorado, 151.
76 Decree of the 18th of August, 1824 Relative to Colonization, in Schmidt, Civil Law, App. V, 341.
77 Frank W. Blackmar, Spanish Institutions of the Southwest, (Baltimore: Johns Hopkins Press, 1891), 313-4.
78 Sanchez, Early Hispanic Colorado, 152.
32


colonial grant shall be divided into small lots in dimensions determined by the State Legislature. Non-naturalized empresarios were prohibited from reserving for themselves a
79
tract of land that exceeded sixteen square leagues.
The rules that applied to colonies were not intended to abrogate the law of 1824, which permitted the special grants of larger acreage to a single person. In any case, the regulations were rarely strictly adhered to. Whether out of ignorance, intentional manipulation, or genuine confusion, petitioners often combined portions of different laws in different ways to reach the desired result. The laws were seen as a framework that was adapted to the conditions in New Mexico.
In 1835, Santa Anna seized control of the government. He attempted to centralized power again, including the power to grant land, but he found it difficult to recapture the power that had been distributed to the states and territories. The existence of a number of grants made under different rules at different times was also confusing. In 1853, Mexico tried to resolve this confusion by declaring all grants made between October 3, 1835 and August
4, 1846 and between March 17, 1853 and July 7, 1854, void. This did not apply to grants in
80
lands already ceded to the United States.
The government of the department of New Mexico was divided into two districts. In turn, those districts were split into jurisdictions called partidos. New settlements in what would become southern Colorado were in the Taos Partido. The distance from the 79 80
79 Regulations of 12th March, 1828, in Schmidt, Civil Law Appendix VI 349; It is difficult to convert this measurement to U.S. miles or acres. The Mexican league was the distance that could be covered on foot in an hour. It would vary by terrain. This is still the standard used in some parts of Mexico today. In New Mexico a league is often converted to 4,428.4 acres. Using this conversion factor, sixteen square leagues would then equal 70,854.4 acres.
80 Sanchez, Early Hispanic Colorado 156-7; Gomez, History and Adjudication, 1065.
33


81
settlements to Taos ranged from 70 to 150 miles, making it a journey of several days. The distance discouraged reliance on the Taos Partido to resolve any local problems.
The primary local government official in New Mexico during the Mexican period was the alcalde constitutional, a magistrate who presided over the local municipal councils (iasambleas). The main difference between the Mexican alcalde constitutional and the Spanish alcalde mayor was that the alcalde mayor had been appointed, and the alcalde constitutional was elected. This meant that local politics played a bigger role during the Mexican period. On August 22, 1846, in the throes of civil war and the U.S. invasion, the Mexican government suspended the asambleas. However, the New Mexico asambleas did
83
not disband. Instead, they surrendered New Mexico to General Stephen Watts Kearney.
The alcaldes combined legislative, executive, and judicial functions much as the Cheyenne chiefs did. They presided over the asambleas and resolved local disputes. In rendering their judicial decisions, they referred to the formally enacted and written laws of the empire and the doctrina (opinions of other jurists), when they had access to these legal references. However, they often placed more emphasis on local custom, and equidad (equity). The alcaldes often rendered decisions shaped by local conditions and the needs of the community, even when those decisions were inconsistent with written law. In many ways, the government of the Mexican alcaldes and the asambleas were similar to that of the Native American chiefs and counsels. However, there is no evidence that San Luis, Costilla, or any of the other settlements in the San Luis Valley ever had elected or appointed alcaldes 81 82 83 84
81 Sanchez, Early Hispanic Colorado, 148.
82 Sanchez, Early Hispanic Colorado, 153, 158.
83 Sanchez, Early Hispanic Colorado, 154, esp. note 258.
84 Michael Carroll, The Penitente Brotherhood: Patriarchy and Hispano-Catholicism in New Mexico, (Baltimore, MD: Johns Hopkins University Press, 2002), 184; Marta, Weigle, Brothers of Light, Brothers of Blood: The Penitentes of the Southwest, (Santa Fe, NM: Ancient City Press 1976), 82.
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or asambleas.
85
Mexican Land Grants in Colorado
Spain had issued some grants in this region before Mexican independents but the settlers were driven off by Utes. One of those grants was to the Baca family. In 1860 the Unites States government indemnified the Baca family for land they had lost over 35 years before under Spanish rule by giving them five separate grants, two in Arizona, two in New Mexico and one in Colorado called the Luis Maria Baca Grant. In order to pay their legal fees the Baca family deeded the Luis Maria Baca Grant to their attorney John Watts.85 86 87
In the 1840s, New Mexican Governor Manuel Armijo issued a number of land grants in what is today southern Colorado. These include the Beaubien-Miranda (aka Maxwell), Conejos, Nolan, Sangre de Cristo, Vigil-St. Vrain (aka Las Animas) and Tierra Amarilla grants. Several of these grants now cross Colorados border with New Mexico. The Beaubien-Miranda grant (aka Maxwell grant) and Sangre de Cristo grant were among the largest and most notorious of all the Mexican land grants. The Sangre de Cristo grant near
87
San Luis was 998,764 acres and the Beaubien-Miranda grant was 1,714,764 acres.
In 1841 Charles Beaubien, a French-Canadian who was a naturalized Mexican citizen, and Guadalupe Miranda, Governor Armijos private secretary, petitioned the governor for a land grant to form a settlement. The governor granted the deed. In June 1841, anti-foreign sentiment swept across New Mexico preventing Beaubien and Miranda from
85 Olibama Lopez-Tushar, The People of El Valle: A History of the Spanish Colonials in the San Luis Valley, (Pueblo: El Escritorio, 1997), 62.
86 Lopez-Tushar, People of El Valle, 46-7. Parkhill, Earliest Settlements, 247. Watts granted it to Alexander C. Hunt who granted it to William Gilpin who granted it to George Adams who created Crestone.
87 Armijo was in and out of power at different times between 1837 and 1847. Ebright, Land Grants and Lawsuits, 27; Van Hook, Mexican Land Grants, 61-63; Nicki M. Gonzales, Yo Soy Loco Por Esa Sierra:
The History of Land Rights Activism in San Luis, Colorado, 1863-2002 (PhD diss., University of Colorado, 2007), 43-4; Sanchez, Early Hispanic Colorado, 167-8; Atheam, Land of Contrast. 49.
35


taking immediate possession of the grant. By 1843, the public fear of foreigners had died down and Beaubien and Miranda asked that the grant be officially transferred to them.
Shortly afterwards they conveyed shares in the grant to Governor Armijo and Charles Bent. Within two weeks the conveyance, Father Martinez, who had lead the earlier opposition, lodged another objection. His earlier objections had been based on the nationalities of the grantees. This time he was concerned with the grants size. His challenges failed. As stated earlier, in actual practice, it was common to blend the different colonization laws. While the grant may have been unethical, it may not have been inconsistent with contemporary practice. Three years later Martinez was accused of instigating the Taos Rebellion against the U. S. occupation government, in which the then-governor Charles Bent and Charles
Beaubiens son Narcisco part owners of the Beaubien-Miranda and Sangre de Cristo Grants
88
- were murdered by Mexicans and Pueblo Indians from Taos.
Under the supervision of Beaubiens son-in-law, Lucien B. Maxwell, the colonists began settling the grant. Miranda remained a silent partner and never took a day-today interest in the grant. In April 1844, New Mexico Governor Sena appointed Charles Beaubien alcalde for the new communities along the Ponil and Cimarron Rivers. This was official recognition of his position as patron. In reality, it was Maxwell who ran the communities. Maxwell established a community at Rayado which served as the headquarters of the land grant.88 89
In 1843 Beaubiens 13-year-old son, Narciso Beaubien, and Stephen Lee, the sheriff
88 Montoya, Translating Property, 31-3. In theory, on February 22, 1843, Beaubien, and Miranda surveyed the land, erected mounds to mark the boundaries of their property. Some historians have doubted whether the ceremony actually took place. Beaubien and Miranda were in Taos on the day it was supposed to have occurred and were again known to be in Taos on March 2, 1843. However, such land transfer ceremonies like the English livery of seisin were becoming, if not already, legal fiction at the time.
89 Montoya, Translating Property, 36-7,
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of Taos, joined in another petition for a land grant to settle the valleys of the Costilla,
Culebra, and Trinchera Rivers. The governor granted this petition as well. When Narciso and Stephen died in the Taos Rebellion of 1847, Charles Beaubien inherited his sons share of the Sangre de Cristo grant and purchased Stephen Lees share from his estate. Charles Beaubien invited Mexican colonists to settle on individual tracts of land and use the communal land. The community of San Luis was founded in 1851. In the next four years six more settlements were founded.90 As with Rayado, these villages were riverine-oriented with the siting of settlements and field patterns determined by the proximity to water.91 92
In 1849, the New Mexican colonists signed a treaty with the Utes that allowed them to settle unmolested. Later raiding sometimes forced settlers to abandon scattered settlements and band together in consolidated plazas for protection. To protect the villages from raiding and ensure the stability of the villages beyond the plaza, in 1852 Beaubien offered the U. S. Army a 25-year lease on the grant, including the right to pasture, cut grass [and gather] timber and firewood to build Fort Massachusetts. In 1856, the Army moved its base of operations closer to the villages and renamed it Fort Garland. The increased security led to rapid expansion of the villages.
For the first few years, many of the settlers retreated to Taos during the winter months and continue to build their community along the riverbanks each spring. Rayados development followed a pattern of development similar to other Mexican frontier settlements: a plaza for living, strips of land for agriculture, and the commons for hunting,
90 Lopez-Tushar, People of El Valle, 35; Lamar, Policy in the Spanish Southwest, 500-501; Gomez, History and Adjudication, 1041 note 16. Smith, Cultural Landscapes, 180-181.
91 Valdez, Culebra Villages, Sec E 9.
92 Atheam, Land of Contrast, 50; Smith, Cultural Landscapes, 181, 185-7; Valdez, Culebra Villages Sec Ell.
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93
gathering, and grazing. By 1856 San Luis was large enough to build a church. As San Luis grew and the social problems of the settlers became complex, Beaubien promulgated certain rules for the government of the Plaza of San Luis, prohibiting nuisances, fights, and drunken revels. Obstructions of the entrances and outlets of the town were also prohibited. Outsiders were not permitted to live in the town without having permission of the alcalde 93 94
Conejos Grant was located on the west side of the San Luis Valley and also initially had problems with the Utes, but became friendly with them and settled in the area called Los Ricones in 1848. Guadalupe was established in 1854 though it was subjected to flooding. The town was moved to the south side of the river and renamed in Conejos. In 1858, Father Vincente Montano was assigned to the parish and the following year the first church was built in Conejos. The 1859 Conejos parish records indicate that twenty-five villages existed in the watershed.95
In 1856 and 1857, the U.S. Surveyor General recommended that Congress confirm several large grants totaling almost 3.4 million acres. On June 21, 1860, Congress confirmed the Tierra Amarilla, Beaubien and Miranda (Maxwell), Vigil and St. Vrain (Las Animas), and Sangre de Cristo grants.96 97 By 1861, when the Territory of Colorado was created, over
97
7,000 Hispanics lived in the area of the grants.
93 Montoya, Translating Property, 37.
94 Cheetham Early Settlements, 6-7; Valdez, Culebra Villages, Sec E 9-10; Atheam, Land of Contrast, 51.
95 Lopez-Tushar, People of El Valle, 39-41; Smith, Cultural Landscapes, 181; Cheetham, Early Settlements, 5-7.
9612 Stat. 71 (1860); Gomez, History and Adjudication, 1070-1 ;Valdez, Culabra Villages, Sec E 9, 16-7. Between 1862 and 1863, Beaubien formalized 135 deeds to the pobladores (colonists) in the Rio Costilla, Rio Culebra, and Rio Trinchera watersheds. He also executed a document outlining rights and responsibilities of settlers to the common lands. In 1863, an ill Beaubien (and the partners he controlled) agreed to sell the grant to William Gilpin, first territorial governor of Colorado, for four cents an acre. Beaubien filed a document (Beaubien document in Costilla County Records Book 1, p. 256) binding Gilpin and his successors to all covenants and agreements undertaken by Beaubien. Gilpin and his successors violated those covenants, leading to litigation that spanned from the late nineteenth century to the twenty-first.
97 Joseph P. Sanchez, Early Hispanic Colorado, 1678-1900 (Los Ranchos, NM: Rio Grande Books, 2015): 3;
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Mexican-American War & Treaty of Guadeloupe Hidalgo
In the summer of 1946 Colonel Stephen W. Kearny invaded New Mexico. Charles Bent reported that two thousand Mexicans awaited Kearny in a narrow canon six miles from Las Vegas, but when the U. S. army reached the pass, it found that the enemy had retired, and they took Santa Fe without resistance. On August 19, 1846, Kearny read a proclamation in the plaza in Santa Fe that New Mexicans were now citizens of a territory of the United States. He appointed civil officials and on September 22 promulgated the law of the territory known as the Kearny Code. Military governors continued to administrate the territory even after the Treaty of Guadalupe Hildago was ratified March 10, 1948 until New Mexico was established as a territory on September 9, 1848."
Despite the initial ease of capturing New Mexico, once Kearny headed on to California, Pueblo Indians and Mexicans staged a revolt called the Taos Rebellion in January 1847. While the revolt was quickly ended, it resulted in the deaths of the owners of several of the largest land grants in New Mexico, including Charles Bent, Stephen Lee, Luis Lee, Narciso Beaubien, and Cornelio Vigil.98 99 100
The Treaty of Guadeloupe Hidalgo, signed February 2, 1848, ended the Mexican-American War. Treaty negotiators working in Mexico drafted an Article X, which required all grants to be respected as valid to the same extent as if the grants had remained within the limits of Mexico. President James K. Polk insisted Article X be deleted and the Senate ratified the treaty without it.101 The Mexican government objected and asked that United
Lopez-Tushar, People of El Valle, 38; Davidson and Guarino, The Hallett Decrees, 226.
98 Hall, History of Colorado, Vol. 3, 128-9.
99 Weigle, Brothers of Light, 77.
100 Lamar, Policy in the Southwest, 502.
101 Christopher David Ruiz Cameron, One Hundred Fifty Years of Solitude: Reflections on the End of the
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States to sign an agreement known as the Protocol of Queretaro, which stated that the United States did not intend to annul legitimate grants by deleting Article X, and land titles valid under Mexican law before May 13, 1846 would be considered legitimate under U. S. law.
President Polk did not include the protocol with the other treaty documents that he delivered
102
to the Senate for ratification. This created a dispute with Mexico that persists to this day. However, even without Article X or the Protocol, Articles VIII and IX of the treaty provided
103
some basic protections of property in the territory ceded to the United States.
U. S. Territory of New Mexico Community Law and Order
Under the Kearny Code, the alcaldes became local justices of the peace. The Organic
Act of Mexico passed in 1850 set up a supreme court whose members also served as district
court judges.102 103 104 While the land grants were not exactly a form of peonage, the owner of the
grant or the manager who lived there was often viewed as a patron and often became the
justice of the peace and settled disputes among the inhabitants.105
However, not every community had a justice of the peace. Where those were absent,
the local parish priest might fill the role. After the signing of the treaty of Guadalupe
Hidalgo, the Holy See established the territory of New Mexico as a vicariate in 1850. Jean
Baptiste Lamy, a French born cleric, was appointed the first vicar apostolic. When the
vicariate became the Diocese of Santa Fe in 1853, Lamy became its first bishop.106 Padre
Antonio Jose Martinez and Mariano de Jesus Lucero from the Taos Valley periodically
History Academys Dominance of Scholarship on the Treaty of Guadalupe Hidalgo, Bilingual Review /La Revista Bilingue 25, no. 1 (January-April 2000): 3-4; Ebright, Land Grants and Lawsuits, 29.
102 Ebright, Land Grants and Lawsuits, 29-30; Cameron, One Hundred Fifty Years of Solitude, 4.
103 Van Hook, Mexican Land Grants, 58-59; Ebright, Land Grants and Lawsuits, 29.
104 Weigle, Brothers of Light, 82.
105 Barbara Bintliff, A Jurisdictional History of the Colorado Courts, University of Colorado Law Review. 65 (1994) 577-630 577
106 Pulido, Sacred World, 41; Carroll, The Penitente Brotherhood, 14-5.
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ministered to the Rio Culebra inhabitants in the early years of establishment. Later, priests stationed at Our Lady of Guadalupe Parish at Conejos County served the villages of Rio Culebra. Conejos Parish was established in 1855 and Father Montano was the first priest assigned to the Parish. He was relieved by Father Jose Miguel Vigil in 1857. San Luis did not become a parish until 1886.
Priests were in short supply in New Mexico and many communities did not have one. Between 1820 and 1850 only ten priests are believed to have served all of New Mexico.
Much like the Native Americans and the Gold Rush settlers, these settlers evolved sociocultural forms adapted to their situation when other systems were inadequate or unavailable. Sometimes religious needs and law and order were maintained by the Nuestro Padre Jesus El Nazareno, more commonly known as Los Hemanos Penitentes.107 108 109 Los Hemanos Penitentes
While some scholars see connections between Los Hemanos Penitentes and traditional European confradias, most agree that this particular order originated in northern New Mexico in the nineteenth century.110 The Penitentes were lay brothers who atoned for their sins through self-flagellation and carrying and being bound to wooden crosses. They
constructed meetinghouses, or moradas, in remote areas at the outskirts of villages.111 112 Soon
112
every Hispanic community in the region had its own morado, providing valuable services.
107 Valdez, Culabra Villages, Sec E 16.
108 Weigle, Brothers of Light, xxvii, 82.
109 Meliton Velasquez, Guadalupe Colony Was Founded 1854, Colorado Magazine, 34 no. 4 (October 1957): 247, 267; Valdez, Culabra Villages, Sec E 16; Carroll, The Penitente Brotherhood, 30-2; Alberto Lopez Pulido, The Sacred World of the Penitentes, (Washington DC: Smithsonian Institutional Press, 2000) 2; Weigle, Brothers of Light, xviii; Pulido, Sacred World, 10; Smith, Cultural Landscapes, 190-1; Jeffrey S. Smith, Los Hermanos Penitentes: An Illustrative Essay, The North American Geographer 2 no. 1 (2000): 70-1.
110 Carroll, The Penitente Brotherhood, 11-3, 115-6.
111 Smith, Los Hermanos Penitentes, 74.
112 Smith, Cultural Landscapes, 193.
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During the latter part of the 19th century, the Brotherhoods strength increased as the various moradas or chapters became more organized and independent. At the core of their belief system was charity (Caridad). The brotherhood cared for the sick and poor, interred the deceased, organized wakes and rosaries at funerals, assisted the widowed, and administered law and order within the village.113 114 115
Penitente morados had a hermano mayor (overall leader), reconcdador (assists and advises), Celandor (maintains order) and other officers.115 Morados had written rules and the Penitente placed great stress on obedience to those written rules and the officials responsible for enforcing those rules. Ultimate authority resided in the hands of the hermano mayor who was responsible only to the written rules.116 117 While the moradas were very secretive organization some of their documents have been published in recent decades. One Southern Colorado chapter had rules prohibiting revealing secrets of the organization, breaking oaths, failing in duties, and disobeying an official. The Biblical Ten Commandments were also considered rules of the morados and breech of the commandments would result in punishment. Some violations required penance, floggings, or financial restitution, and others ostracism or expulsion. Like the Cheyenne, an expelled Penitente brother could be redeemed and readmitted given proof of gratitude and prayers offered for them. The rules of the morada governed both the group and the private life of its members. In most Hispanic villages at the time, nearly all of the adult males belonged to the Brotherhood, and most females functioned as auxiliaries in some way. Even when this was not so, the local
113 Weigle, Brothers of Light, xix.
114 Pulido, Sacred World, 11; Valdez, Culabra Villages, Sec E 16.
115 Carroll, The Penitente Brotherhood, 170.
116 Carroll, The Penitente Brotherhood, 170.
117 Weigle, Brothers of Light, 82, 149-150.
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118
population was often subject to Penitente rule due to the moral power in the community. Among the duties of the Hermano Mayor was to keep watch on the morals of the village by helping to form public opinion in the area. The Hermano Mayor would also settle disputes between members of the community.
The Catholic Church regarded the Penitentes as extremists. Bishop Lamy attempted to bring them under the control of the Church. When these attempts were unsuccessful, he condemned the Brotherhood as a political society solely in search of political power. Regardless of Lamys attacks, some moradas survived into the twentieth century and faded as their legal and social functions were gradually supplanted by other organizations, and members moved away.118 119 120 121 Acequia Governance
Another local institution of the Mexican Land Grant settlements was related to the maintaining and operation of acequias (irrigation ditches). The settlers brought with them experience with irrigation techniques and institutions of water governance cultivated for many years. The construction and maintenance of the irrigation system were essential to the creation of new settlements. Settlers were required to contribute their labor to the building, maintenance, and defense of the irrigation system. Customs of allocation based on these
principles might vary from locality to locality, and were based on principals of equity rather
121
than appropriation or riparian rights.
Custom dictated that the water be divided among all users by a mayordomo. Acequia
118 Smith, Los Hermanos Penitentes, 73; Carroll, The Penitente Brotherhood, 162.
119 Pulido, Sacred World, 49-51. Smith, Los Hermanos Penitentes, 74; Atheam, Land of Contrast, 52.Carroll, The Penitente Brotherhood, 15.
120 Carroll, The Penitente Brotherhood, 114.
121 Pena and Hicks, Community Acequias, 410-411.
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users elected a commission. The comisionado supported the mayordomos work and collected dues for overseeing the ditch and for improvements to the acequias. Since each acequia irrigated suertes in a specific site, affiliated water users worked together to maintain
and repair the acequia. Besides equitably distributing water, the mayordomo had to ensure
122
that no one built dams or placed obstacles in the path of the water.
During part of the year, the families could divert water from the river at will because the flow was substantial and the plots small enough that no farmer could take it all. Nevertheless, the flow into and from smaller irrigation canals along the back sections of the vara strips had to be carefully regulated to distribute it equitably. A disagreement with the allocation by a mayordomos could be appealed to a justice of the peace, but in most cases the
124
mayordomos decision was accepted as final.
Following initial settlement of villages in the 1850s, the mayordomos took legal action to protect their water rights, by registering water rights claims. This preserved their rights under the new system of prior appropriation that was developing north of them in Kansas Territory. Dozens of acequia originally dug while Southern Colorado was still part of New Mexico Territory still operate and many still use the same method of governance within
125
the constraints of Colorados current water law. 122 123 124 125
122 Valdez, Culebra Villages, Sec E 13.
123 Montoya, Translating Property, 37.
124 Pena and Hicks, Community Acequias, 413-4.
125 Valdez, Culebra Villages, Sec E p 13; Gonzales, History of Land Rights, 56-7.
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CHAPTER VI
LAW OF THE UNITED STATES Kansas, Nebraska, Utah, and New Mexico
Between 1789 and 1834, Congress passed 375 land laws. However, no matter how many laws Congress passed, land distribution could not keep up with settlers. Coping with these squatters was challenging, especially when they encroached on lands reserved by treaty. It was the duty of the U. S. Army to protect Indian lands and public domain lands. Sometimes they had to use force to remove squatters or keep them at bay, but that was not a popular duty and sometimes the squatters outnumbered the troops.126 127 128
In 1834, Congress passed the Intercourse Act which declared all territory west of the Mississippi river to be Indian Country, except for the states of Louisiana and Missouri and the Territory of Arkansas. On September 9, 1850, the organic acts of the Territories of New Mexico and Utah were approved, carving pieces out of Indian Country. The land south of the 38th parallel between the Rocky Mountains and the west line of Texas was attached to New Mexico Territory. Lands west of the Rocky Mountains became part of the Territory of Utah. The remainder was Indian Country. The Fort Laramie Treaty of 1851 reserved most of the
land between the North Platte River and the Arkansas River to the Cheyenne and the
128
Arapahoe Indians.
In May 1854, Congress created the Territory of Kansas. Under the Kansas-Nebraska Act, the Territory of Kansas extended from the western boundary of Missouri to the summit
126 Limerick, Legacy of Conquest, 61; Raymond L. Welty, The Policing of the Frontier by the Army, 1860-1870, Kansas Historical Quarterly 3 no. 3 (August 1938) accessed March 15, 2017 https://www.kshs.Org/p/ the-policing-of-the-frontier-by-the-army-1860-1870/12760.
127 Cheetham, Early Settlements, 3.
128 Calvin W. Gower, Kansas Territory and the Pikes Peak Gold Rush: Governing the Gold Region, The Kansas Historical Quarterly 32 no. 3 (Autumn 1966): 310.
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of the Rocky Mountains between 37 to 40 latitude. However, the Kansas-Nebraska Act of 1854 specifically excluded lands reserved to Indian tribes by treaty and stated that such lands would constitute no part of the territory of Kansas, until said tribe shall signify their assent to the president.129
Many of the participants in the Colorado Gold Rush were probably unaware of the limitation in the Kansas-Nebraska Act. A few, like William Byers, editor of the Rocky Mountain News, were aware of it. Most who came were aware that they were venturing into Indian Territory, but they, like the others before them, expected that problem to eventually be swept away. Appeals were made to the federal government to negotiate with the Arapahoe and Cheyenne to extinguish their title to the lands. In June 1860, Congress provided $35,000 to cover the expenses of doing so. In September 1860, A. B. Greenwood, Commissioner of Indian Affairs, held a council with the Southern Arapahoe and Southern Cheyenne, and another meeting was arranged in a few months. The second council resulted in the Treaty of Fort Wise which was signed January 1861 clearing the way for the organization of the Territory of Colorado.130
The section of the Kansas-Nebraska Act excluding Indian territory from the Territory of Kansas challenged the legitimacy of attempts to organize that part of the territory between 1854 and 1861. Kansas itself was in turmoil in those years and there was rapid turnover of government officials. Some of them seem to be unaware of the existing laws of Kansas even as they attempted to create more.
129 Gower, Kansas Territory, 289, 310; Kansas-Nebraska Act 1854, 10 Stat. 283; ch. 59, § 19.
130 Gower, Kansas Territory, 311.
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Arapahoe County, KT
In August 1855, Acting Kansas Territorial Governor Daniel Woodson signed a bill creating Arapahoe County. Arapahoe County included all of the Kansas Territory west of a line running due north of the northeast comer of New Mexico to the border between Nebraska and Kansas. The majority of that area was within the land reserved to the Arapahoe and Cheyenne in the Treaty of Fort Laramie. The territorial legislature and acting governor either were unaware that they were not authorized to govern that land or they did not care.
The same act of the Territorial Legislature appointed Allen P. Tibbitts as probate judge and James Stringfellow as clerk of the probate court. Tibbitts, Levi Mitchell, and Jonathan Atwood were also appointed county commissioners and assigned to locate the county seat. Another act attached Arapahoe County to Marshall County as the closest organized county. There is no evidence that any of those four people ever went to Arapahoe County, much less attempted to create a county seat. On October 18, 1856, the Kansas Weekly Herald in Leavenworth reported that Benjamin F. Simmons had been elected to represent Arapahoe County in the legislature of Kansas. However, historian Calvin Gower argued that the election was a fraud. He expressed doubt that Simmons or the electors were residents of Arapahoe County and he provided evidence that Simmons was a pro-slavery resident of Leavenworth. National politics, and perhaps the temptation of an easy paycheck,
132
were the most likely impetus for the creation of Arapahoe County, Kansas Territory.
On September 25, 1858, Territorial Governor of Kansas, James W. Denver, appointed 131 132
131 Gower, Kansas Territory, 283.
132 Gower, Kansas Territory, 290-2; The county is most often spelled Arrapahoe in Kansas legislation. Kansas Weekly Herald, October 18, 1856: Barbara Bintliff. .1 Jurisdictional History, 579.
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new county officers and sent them to the Pikes Peak area to represent Kansas Territory and to found the county seat. He appointed H. P. A. Smith, probate judge, and Hickory Rogers, Joseph McCubbin, and Lucillius Winchester, county supervisors with Rogers chairman board of supervisors. Edward W. Wynkoop was appointed sheriff, John W. St. Matthew, county attorney, William Larimer, treasurer, and Hampton L. Boon, clerk. These officials set out for the Pikes Peak region with their credentials. Some of them had plans other than setting up a
133
new county seat.
When this group, commonly called the Larimer group, arrived at the confluence of Cherry Creek and the South Platte River, they found Auraria under construction, but decided that the east side of Cherry Creek would be a better place for the county seat and a better place to sell town lots. Another group had already staked a claim for that area as the townsite of St. Charles, but Larimer and his group decided to call it Denver. Edward Wynkoop was send back to Lecompton with the papers for the Denver City Town Company. When he arrived in early Jan 1859 he found he was too late because the Lawrence party had already filed the papers for the St. Charles Town Company. Wynkoop made a deal with the St. Charles group. He would withdraw opposition to their filing if they added the Larimer party as members of the St. Charles Town Company. They agreed and the legislation incorporating St. Charles was passed on Jan 11, 1859 and signed by the governor on Feb 11, 1859.133 134
The miners objected to the appointment of the Arapahoe County officials and asked them to resign. The appointed officials said they would consider it. One miner threatened that
133 Gower, Kansas Territory, 294-5; Smiley, History of Denver, 193.
134 Louis Kraft, Ned Wynkoop and the Lonely Road from Sand Creek, (Norman: University of Oklahoma, 1992) 27-30; The Montana Town Company and the El Paso Town Company were also passed and approved at the same time.
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135
if they did not there would be squally times in the valley of the South Platte. Some correspondents initially refused to accept the Arapahoe County officials, in part because they were afraid that the acceptance of the officials would impair the chances of obtaining an independent territorial government.
In the meantime, on November 6, 1858, the fewer than two hundred men in this region held an election and elected both a representative in the Kansas Legislature and a delegate to the U.S. Congress,. The first was to represent their interests in this portion of the Kansas Territory and the second was to lobby for a separate territory. The prospectors and town builders were hedging their bets. Hiram J. Graham was sent to Washington, D.C. and A. J. Smith to Lecompton, Kansas.135 136 137
To add to the confusion, in January 1859, the Kansas territorial legislature passed, without consulting anyone who lived there, legislation to divide most of Arapahoe County into five smaller counties: Montana, Oro, Broderick, Fremont, and El Paso, effective March 1, 1859. This legislation was approved by the Governor on February 7, 1859. The act also appointed commissioners to establish county seats and call for elections of county officials in
137
these new counties as soon as possible.
The residents of the Pikes Peak region were even less enamored of the five new counties and its commissioners, and for the most part chose to ignore them. On March 28, 1859, residents of Arapahoe County, KT, elected Arapahoe County officials. The governor authorized those elections in Arapahoe County on May 21, without repealing the statute creating the five new counties, which had placed Denver and the mining districts outside of
135 Letter written by G. N. Hill Nov. 28, 1858 published in Kansas City Journal of Commerce, January 15, 1859 inHafen, Contemporary Letters and Reports, 173-4.
136 Hall, History of Colorado, Vol. 3, 208-210.
137 General Laws of Kansas Territory 1859, 357-361; Gower, Kansas Territory, 296-9;
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138
Arapahoe County.
Nevertheless, at a mass meeting in Gregorys diggings on June 8 the miners voiced their disapproval of both Arapahoe County and the five counties established to replace it. H. P. A. Smith, who had originally been appointed judge of the probate court of Arapahoe County, protested against the creation of the five new counties. He suggested putting one of the commissioners on a mule and giving him an invitation to ride out of the country! A. D. Richardson, one of the commissioners for the new counties, had arrived in Denver the day before and attended the meeting. He said that if the people in the Pikes Peak region wanted a separate state government he was willing to drop the attempt to establish Montana County at the site of Denver.138 139 140 William Walters, another of the commissioners, reported to a newspaper in August 1859 that the miners and settlers wanted nothing at all to do with the laws passed last winter organizing new counties in the gold region.141 142 Gower reported that a bill was introduced in the House of the Kansas territorial legislature to restore the county of Arapahoe to its original limits and boundaries, but it never progressed through the
142
legislature.
The lack of loyalty by the appointed officials to the legislature in the eastern side of the territory was in part due to the lack of pay for the county officials. An addendum to the act creating the five counties had made it clear that the commissioners and other officials of those counties had to raise funds for their own pay by selling lots at the townsites of the county seats. Wynkoops position as Arapahoe County sheriff paid, but only per arrest and
138 Rocky Mountain News, April 23, 1859; Gower, Kansas Territory, 300; Hall, History of Colorado, Vol. 3, 183.
139 Mass Meeting, Gregory Diggings, Rocky Mountain News, June 18, 1850; Gower, Kansas Territory, 300.
140 Gower, Kansas Territory, 300-301; Since the new Arapahoe County was near the current eastern border of Colorado, there was no one living there in early 1859 other than Native Americans.
141 Gower, Kansas Territory, 301; Lawrence Republican, August 8, 1859.
142 Gower, Kansas Territory, 312.
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conviction. This did not bring in a lot of money.143
The miners did not wait to sort out the confusion related to the Kansas county courts, but instead formed their own courts to handle disputes over claims and other problems they anticipated. However, the court of each mining district only applied to the miners within the district, and except for the few times when multiple mining districts held joint meetings, their courts had no jurisdiction beyond.
Despite the opinions expressed, the courts of Arapahoe County, Kansas territory received a large share of the cases. Jerome Smiley wrote, the superiority of the Kansas jurisdiction, however dubious it might prove to be, was accepted by the great majority of the people when the more direct of their affairs were involved; such, for example, as titles to real estate.143 144 The legal notices that appeared in the Rocky Mountain News and other newspapers in 1859 and 1860 are evidence of this. For example, in September 1859, two notices of petitions to the probate court of Arapahoe County for orders to sell a part or all of the real property of an estate appeared in the News. Attachments, injunctions, and an action to enforce the specific performance of a contract were also handled by the probate court of Arapahoe County in October and November 1859.145 The April 18, 1860 issue of the Rocky Mountain News listed the cases tried in the April term of the District Court of Arrapahoe County, Hon. A. J. Allison. Justice. There were three replevin cases and one for
143 Kraft, Wynkoop, 33-5, 42. Wynkoop took a job as an actor to supplement his pay as sheriff. He also worked as a bartender at Charles Harrisons Criterion Saloon. This might be considered a conflict of interest today since some people believed Harrison to be a criminal.
144 Smiley, History of Denver, 359.
145 Gower, Kansas Territory, 306; Rocky Mountain News of August 29, 1860 included notice from the court of Arapahoe County KT of an injunction against Green Russell to prevent him from paying on a note which a person had sold to someone else; Rocky Mountain News of September 4, 1860 contained a notice of attachment of lot where Cibola hall was located and a ranch from the Court of Arapahoe County KT against the estate of James A. Gordon to cover promissory notes.
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attachment.146 147 One replevin case was withdrawn and the other two resulted in judgments for the plaintiff. There were two suits for damages. The plaintiff won one and the other was dismissed. There was one action for debt that was withdrawn and an unknown case that was continued. A plaintiff won an appeal from a justice of the peace court. There was also a lawsuit between the estates of Sangerdorf, a murderer, and William West, his victim, both of whom were deceased. The suit was withdrawn. As discussed in the cases in the Appendix, many of the criminal cases were presided over by judges appointed or elected to that position for Arapahoe County, even though newspapers referred to them as Peoples Courts.
The legislature and the governor of the territory of Kansas continued to send mixed messages. On February 27, 1860, the Kansas territorial legislature passed a Joint Resolution asking the US Congress to appoint an additional United States District Judge for Kansas Territory to serve the extreme western portion of the Territory now embraced in the county of Arrapahoe, comprising what is generally known as the Pike's Peak country or Jefferson Territory. The last sentence of this resolution is especially troubling in light Pettits ruling later in the year: Resolved, That, if said additional judge be so awarded and assigned, nothing contained in any law defining the judicial districts of the Territory of Kansas shall interfere with the provisions of these resolutions. The Kansas government was still acting
as if Arapahoe County covered all of western Kansas, yet seemed to be aware that there was an irregularity in the judicial districts. In July 1860, (despite the lack of repeal of the five counties) the Governor of Kansas issued commissions to three men as officers in the Jefferson Rangers, Company B, Denver City, Arapahoe County, and to Richard E. Whitsitt
146 Replevin is an action for the return of personal property. Attachment is a legal procedure under which property is taken and sold to settle a debt.
147 Joint Resolutions Memorializing the Congress of the United States for the award of an additional United States District Judge for Kansas Territory, General Laws of Kansas Territory 1860, 239-40
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as register of deeds in and for the County of Arapahoe.
During the summer of 1860, the Gordon Case (see Appendix) cast new doubt on the validity of Arapahoe County, K. T. In that case when a murderer named James Gordon was tracked from Denver to eastern Kansas, Kansas authorities initially refused to turn him over to Deputy Sheriff Middaugh, who had been deputized by both the Arapahoe County, sheriff appointed by the Kansas governor, Edward Wynkoop, and a U. S. Marshall. They insisted that Gordon had to be tried in the courts of the eastern side of Kansas. However, at a preliminary hearing, Judge Pettit, chief justice of first judicial district of Kansas, ruled not only that he had no jurisdiction over the case, but that NO judicial district in the Territory of Kansas had jurisdiction over the case or any other case that occurred in Denver. Pettit admitted that the 1860 legislature had created the confusion by placing Arapahoe county in the first judicial district of Kansas without making clear that Montana County created in early 1859 had never existed and the original boundaries of Arapahoe County still applied. He stated that by the law, the town of Denver is not in Arapahoe county.148 149
Albert D. Richardson, editor of the Western Mountaineer, who had been appointed chairman of the board of commissioners sent out by the Legislature to organize Montana County, disagreed with Judge Pettits ruling. He claimed that the law creating Montana County expired by its own expressed limitations, in nine months from the date of its passage, and of course Denver remains in Arapahoe county, precisely as it had never been passed. However, there is nothing in the legislation he refers to, or any other legislation passed by the Kansas Territorial Legislature in 1859 or 1860, that supports Richardsons
148 Gower, Kansas Territory, 305-6.
149 Gower, Kansas Territory, 307-8.
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position.150
After Pettits ruling and two attempts by a Kansas mob to hang Gordon, Sheriff Middaugh was able to convince the authorities to release Gordon into his custody and he brought Gordon back to Denver for trial. However, Denverites had had enough. A public meeting held July 30, 1860 passed a resolution repudiating all allegiance to the laws of Kansas Territory, and that we will never under any circumstances submit to come within her jurisdiction.151 152 153
Judge Pettits ruling gave new impetus to the Jefferson Territory movement which had languished for some months. It also encouraged the formation (or reformation) of the Denver city government with its own courts. By late 1860, residents of what would soon be
152
Colorado had recourse to several courts, including miners courts in the miners districts.
Jefferson Territory
The people who settled near Cherry Creek were fond of holding elections. In 1859, there were nine elections in Denver including those for the city, county, and state or territorial government, but not counting mass meetings or elections of peoples courts officials. Part of the reason for this was the multiple attempts to form an alternative to the rule of the Territory of Kansas.
In April 1859, a constitutional convention met. After discussions for some weeks it adjourned until the first of August, at which time one hundred and sixty-seven delegates, representing thirty-seven precincts, assembled to deliberate further. A debate ensued as to whether they should try for a State or a Territorial form of government. The delegates
150 Western Mountaineer, Sept 27, 1860; General Laws of Kansas Territory 1859, 357-361
151 Rocky Mountain News, August 22, 1860
152 Gower, Kansas Territory, 306. Rocky Mountain News Oct 6, 13, Nov. 17, 1859.
153 Hafen, Wildman Letters, 78 note 62; A list of the elections is at: Hafen, Colorado and Its People, 209.
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decided to seek a state government and framed the constitution accordingly. This constitution was present for a vote of the people and was overwhelmingly defeated. Some miners feared that a state would tax the mines and opposed it on that basis.154
Almost immediately, there was a call for another assembly of delegates on October 1st to consider a provisional government. After an initial decision to go forth with drafting a constitution of a provisional government, H. P. A. Smith, who had been appointed a judge for Arapahoe County, entered a protest on the grounds that that the laws of Kansas Territory already applied to them. Smith further insisted they had no legal right to form such a government, especially when the people did not call for it. He was further concerned that such an act would abrogate all the legal rights in existence and place the region at the mercy of a gigantic vigilance committee. He was largely ignored and the convention proceeded with its program.155
Debates arose in the convention and in the Rocky Mountain News in October 1859, about whether Indian title to the gold region had been extinguished and thus whether Kansas law extended to over the area at all. William Byers argued that Indian title had not been extinguished and thus they were excluded from Kansas by the terms of the Kansas-Nebraska Act. A. H. Townsends disagreed. He argued that the United States had the chief title in the land and could organize it into a territory as it pleased. He noted that the Kansas-Nebraska Act authorized the organization of counties throughout the territory whenever the people demanded it.156 Regardless, the convention marched on and adopted a constitution for a provisional government of the Territory of Jefferson. An election was set for October 24,
154 Hall, History of Colorado, Vol. 3, 208-210
155 Hall, History of Colorado, Vol. 3, 208-210
156 Gower, Kansas Territory, 310.
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which included elections for the principle officers of the territory as well as the approval of the constitution. At this election, the voters approved the constitution of the Territory of Jefferson and elected R. W. Steele, Governor and Lucien W. Bliss, Secretary of State (which at that time was essentially Lieutenant Governor as well) and several other territorial officers.157 158 159
The Jefferson Legislature proceeded with its duties and passed a full slate of civil and criminal codes, including the incorporation of the combined city of Denver, Auraria and Highland. It provided for the organization of nine counties and the election of county officers
158
therein. It levied a poll tax of one dollar per capita to pay for the costs of the government.
The per capita tax was strenuously opposed by some people when they heard about it after the legislature adjourned in January 1860. Those who oppose the tax, or opposed the provisional government in general, spread the false rumor that before adjourning the legislature had enacted a law taxing the miners six to seven dollars each, to be collected at immediately, plus a percentage tax on all mining claims at their estimated value. The rumors spread like wildfire,, and incited a general revolt against the provisional government among
1 159
the miners.
Jefferson Territory could have been a viable government. Its initial failure in early 1860 had several causes. One was that the elected governor, R. W. Steele, left the territory shortly after being elected and left Lucien Bliss, Secretary of State, acting governor. The stated purpose of this trip was to gamer support for the territory and bring his family to Jefferson. However, he was gone for four months while the legitimacy of Jefferson Territory
157 Hall, History of Colorado, Vol. 3, 208-210.
158 Hall, History of Colorado, Vol. 3, 211.
159 Hall, History of Colorado, Vol. 3, 211.
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was under attack from within and Bliss was a poor substitute. Bliss obviously had poor judgment since his method of defending the territory was to become involved in a duel that resulted in the death of a member of the legislature. While the Rocky Mountain News was a staunch advocate for Jefferson Territory, it eventually conceded that its arguments were being ignored. If Governor Steele had remained here that spring, he may have been able to staunch the false rumors of taxes that put the miners up in arms and perhaps smoothed things over with other men who were angry that that they had not received a position in the government. As it was by the time Steele returned at the end of May, Jefferson Territory was moribund, and he may have been perplexed about what had happened in his absence.160 By the time he and his family were settled, the crime spree that plagued Denver in the summer of 1860 was already beginning and the spotlight would not turn back to Jefferson Territory until after the Gordon case destroyed the credibility of Arapahoe County.161
For some reason during the pursuit and capture of Gordon in late July 1860, Judge Pettit of Kansas Territory granted a perpetual injunction against the government of the Jefferson Territory, which, according to the Western Mountaineer, was served upon the officers of the provisional government. I have not seen a copy of this injunction and thus do not understand its terms or purpose. The Western Mountaineer primarily used its existence to rant about the condition of the Jefferson Territory. It pointed out that the adoption of provisional governments before statehood was not unusual, giving New Mexico, Utah, Dacotah, Arizona, and Carsons Valley as examples. It also mentioned that Kansas itself had already drafted four state constitutions, but had not yet been admitted to the Union.162
160 Rocky Mountain News, May 30, 1860.
161 Rocky Mountain News, Sept 12, 1860.
162 Western Mountaineer, August 2, 1860.
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A new movement for state organization made its appearance on August 7th in Golden City where a mass meeting was held over the need for better government. They pledged themselves to unite in forming a state government at the earliest date. They also repudiated the provisional Jefferson government. The people of Mountain City took a different route at a mass meeting there. After roundly denounced the federal government for its indifference to the petitions from the Pikes Peak region, they announced that they were compelled to recognize that Jefferson Territory was better than no government at all and would support it fully until a state or territorial organization should be provided. They repudiated all allegiance to the laws of Kansas, and declared that they would never submit to be included in that jurisdiction. They also called for a convention to frame a state constitution and the immediate application for admission into the American Union.163
Rocky Mountain News supported this renewed interest in Jefferson Territory, and Governor Steele followed with a proclamation for another election of officers, members of the Legislative Assembly, etc., of Jefferson Territory to be held October 22. The two movements then went forward simultaneously. Election of a new legislature proceeded and that legislature met on November 20 and enacted laws as in its first session. At the same time delegates met to draft a state constitution.164 Neither of these movements knew how close they were to becoming moot.
Two obstacles were impeding the Congressional approval of a territorial government for Colorado: the termination of the claims of the Arapahoe and Cheyenne under the Ft. Laramie Treaty and the question of slavery in Kansas and the unorganized territories. While it was known that delegations had been meeting with the Arapahoe and Cheyenne, people in
163 Hall, History of Colorado, Vol. 3, 247-8.
164 Rocky Mountain News, September 12, October 3, 1860; Hall, History of Colorado, Vol. 3, 210,249
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the gold mining region did not know how long that process would take. They also had sketchy knowledge of political intrigues in Washington, D.C. over the slavery question and little knew that the legislation to authorize their territory would be slipped through when Stephen Douglas was out of the room. On February 18, 1861, just three months after the second session of the Jefferson Territory began, the Ft. Wise Treaty was signed by some chiefs of the Arapahoe and Cheyenne, and ten days later, on February 28, 1861, Congress passed the Organic Act of Colorado Territory, placing under Colorado jurisdiction most of the land ceded by the two tribes.165
When Colorado Governor Gilpin arrived in Colorado in June 1861, Jefferson Governor Steele yielded the office to the official governor and directed that all officers holding commissions under him to surrender them and abstain from exercising the duties of the offices they held. The first Colorado Territorial legislature convened September 9,
1861.166
Town Companies
To claim that a place is lawless suggests a lack of law, and perhaps even a lack of interest in law. However, the people who flooded into this region between 1858 and 1861 seemed obsessed with law and government. They were interested in the federal and territorial laws that were supposed to cover the region, and they had a fondness for creating their own. They held so many meetings, elections, and conventions, and wrote so many letters to local and distant newspapers on the subject of law and government, it is hard to imagine that these people had any time left over for mining or other means of making a living. Some legal structures they created locally were intended to maintain law and order and thus prevent
165 Coel, Chief Left Hand, 120-1; Hall, History of Colorado, Vol. 3, 249-51, 160-1.
166 Hall, History of Colorado, Vol. 3, 266-8.
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criminal disruptions to society. Others were primarily intended to create and protect commercial enterprises. The first of these created were the town companies.
Town companies were agreements which primarily served to secure townsites. However, they, like all corporations at the time, were not official until confirmed by the state or territorial legislature. This meant a long ride back to Lecompton (or Leavenworth). There also was the problem that the federal townsite act did not apply to Denver or most of the other areas where town companies were setting up. In such a case, they acted more like unincorporated associations and the agreements merely bound the members to each other. Some people joined a town company because they intended to settle there; many others were land speculators who sold their lots as demand increased. Some settlers were members of a number of town companies, which casts doubts on their loyalty.
Claim clubs were broader agreements for mutual aid. The signers agreed to help defend the land claims of all the other signers. Some claim clubs were organized for town land, some for agricultural or ranch land, and some for all types. Mining Districts combined the attributes of both town companies and claim clubs and went further to claim a degree of sovereignty that neither really possessed. In addition, while the Mining Districts originated in the various mineral diggings, their laws included provisions related to townsites and agricultural land as well as rules applying to mining.
The settlers who came to what would become Colorado did not invent town companies or land claim clubs. For example, in 1857 agents of a land company, financed and organized by Minnesota Democrats, founded and organized Sioux Falls and petitioned for territorial status.167 But the sheer number of these entities that sprouted in the Pikes Peaks
167 Limerick, Legacy, 83-4.
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region starting in the fall of 1858 is overwhelming. Extensive records still exist of some while others have vanished completely. Some existed on paper far longer than they lasted as a physical settlement. The first of these were El Paso City and Montana City.
El Paso City
The group of prospectors and town builders called the Lawrence party initially headed to Pikes Peak and laid out a town at the gateway to the Ute Pass, which is now part of Colorado Springs. They named the town El Paso. A number of town lots were assigned to the members of the town company, and several were sold, but founders soon moved north first to Montana City and then to Auraria and Denver. El Paso languished.168 However, members of the town company still filed their papers with the Kansas legislature when they went east that winter, and El Paso was one of the first three town companies incorporated along with Montana City and St. Charles.169 170 The following spring a large party of town developers located Colorado City east of the hogbacks and north of Fontaine qui Bouille
170
(Fountain Creek) in a crescent-shaped park and El Paso City vanished from history.
Montana City
During the summer of 1858, several groups of prospectors wandered around looking for gold. The first place the Russell group settled for any period of time was the Placer Camp about six miles upstream from Cherry Creek near the confluence of Little Dry Creek and the
168 Smiley, History of Denver, 191.
169 Gower, Kansas Territory, 298; Private Laws of Kansas, 1859, pp. 209-10, 219-20, 226-27 Montana Town Company included. William B. Parsons, Jason T. Younker, Philip Schweikert and other personnel of the Lawrence party. Some of the members of the El Paso Town Company were William ODonnall, the correspondent of the Lawrence Republican; J. T. Younker, a member of the Lawrence party and of the Montana Town Company; and L. J. Winchester, one of the Arapahoe county officials. The third and most important of these town companies, St. Charles, had enrolled in its ranks three Lawrence party members, Theodore C. Dickson, Frank M. Cobb, and Charles Nichols, and two Arapahoe county officials, Edward W. Wynkoop and William Larimer, Jr. [same source]
170 Simmons Building Report 10.
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South Platte River. By the time Lawrence group party arrived in the area around September 4, the Placer Camp was nearly abandoned. However, some members of the Lawrence group, as well as a few from the Russell group thought a spot a little north of the Placer Camp would be ideal for a town. They organized a company and elected Josiah Hinman, president and William J. Boyer, secretary. Fifteen to twenty cabins were built before winter in regular rows fronting on streets in orderly town fashion. The rows were named Kansas, Lawrence, and Leavenworth. This town was called Montana City. Several of the members of the Montana City Town Company started back to eastern Kansas early in October and took with them the documents to file with the territorial legislature. However, Montana City did not last long. The Kansas territorial legislature incorporated Montana City along with El Paso and St. Charles in February 9, 1859. But by the time the men returned with the corporate documents
171
the town was gone, the logs hauled off to build cabins in Auraria and Denver.
St. Charles
The founders of St. Charles carefully surveyed their proposed town site of one square mile of land east of Cherry Creek and south of the South Platte River. They ran the lines of a few streets through it. On September 24, 1858, the St. Charles Town Company adopted a constitution (which was copied from the Montana City Constitution) and on September 28, they elected officers. On October 2, 1858, they drafted by-laws. However, they had made no attempt to build a structure on their townsite. Instead, they had made Montana City their headquarters while they were organizing St. Charles. After the meeting on October 2, all of 171
171 Private Laws of Kansas, 1859, pp. 209-10, 219-20, 226-27; Sanders, Wilbur Edgerton, Montana Organization, Name and Naming, Contributions to the Historical Society of Montana (1910): 15-60; Gower, Kansas Territory, 298; The Montana Town Company included William B. Parsons, Jason T. Younker, Philip Schweikert and other personnel of the Lawrence party. Hall, History of Colorado, Vol. 5,179-80; Smiley, History of Denver, 190-1. Montana City is now represented by a new playground at its original site on the east side of the South Platte River south of Evans Avenue.
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the St. Charles Company members, excepting John Smith and McGaa, decided to return to eastern Kansas for the winter and return in the spring. Smith and McGaa agreed to look after the companys interests here. However, after members of the company were on the road and met a number of other people traveling west they became concerned about the lack of any type of improvement on their claim. Charles Nichols was delegated to go back and build a structure on the land they claimed. For some reason, Nichols did not want to build it himself, but instead tried to hire someone else to do so. He was unsuccessful because he had no money. He then tried the old four log improvement method. Then Samuel S. Curtis convinced him that was not adequate and helped him haul enough lumber to build a small cabin next to Cherry Creek near the current location of Blake and Wazee Streets. Unfortunately, that is outside the square mile plat surveyed for the town of St. Charles. So there is some doubt about whether the claim had been perfected before it was jumped by
172
Larimers group, notwithstanding the filing with the territorial legislature.
As stated earlier, when Edward Wynkoop attempted to file the papers to incorporate the Denver Town Company he found the documents for the St. Charles Town Company were already before the legislature. Wynkoop made a deal with the members St. Charles Town Company to withdraw his opposition to their filing if they added members of the Larimer party as members of the St. Charles Town Company. They agreed and that is how it was
173
passed on January 11, 1859, and signed by the governor on February 11, 1859.
So the City of Denver was really operating on the St. Charles land claim until Richard 172 173
172 Smiley, History of Denver, 199-205. Smiley includes copies of several St. Charles documents which rediscovered a few years before he wrote his history of Denver; An Inventory of the Records of The Auraria Town Company, Collection Number 23, Colorado Historical Society, 1993.
173 Gower, Kansas Territory, 298; Private Laws of Kansas, 1859, pp. 209-10, 219-20, 226. St. Charles, had enrolled in its ranks three Lawrence party members, Theodore C. Dickson, Frank M. Cobb, and Charles Nichols, and two Arapahoe county officials, Edward W. Wynkoop and William Larimer, Jr.Louis Kraft, Ned Wynkoop and the Lonely Road from Sand Creek, (Norman: University of Oklahoma, 1992) 27-30.
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Sopris called for a repeal of the charter of the St. Charles Town Company in March 1860 after Denver had been established under the Jefferson Territory. The charter was repealed
174
because grifters were using the St. Charles claim as the basis for land frauds.
Auraria
In October of 1858, the Russell group decided it was time to make their plans for the winter. Green Russell would go back to Georgia for the winter, recruit more men, and return in the spring. His brother Dr. Levi J. Russell and two or three others would proceed to Fort Garland to obtain a fresh supplies, and the remainder of the group would build cabins for the winter. Dr. Russell decided that their winter quarters should be built at the mouth of Cherry Creek instead of at the Placer Camp or Montana City.
Unlike El Paso and Montana, the settlers of the Auraria Town Company started building before doing paperwork. By the time Dr. Russell returned from Ft. Garland in mid-October the initial cabin was finished except the chimneys, and was already occupied by the builders, with some Arapahoe Indians camped nearby. According to Dr. Russell, that cabin was the only structure on either side of Cherry creek, and no other was begun until we
175
started in to organize a town company, which we did in a few days.
The first meeting of the Auraria Town Company was held on October 30, 1858. The stockholders elected officers on November 6, 1858, choosing William McFadding, president, H. Dudley, Vice President, Dr. Levi J. Russell, Secretary and trader John S. Smith Treasurer.* 175 176 The shareholders adopted a simple company constitution not unlike articles of incorporation a small corporation might use today. They set out the duties of the officers and
11A Rocky Mountain News, March 7, 1860.
175 Smiley, History of Denver, 192
176 Oddly enough, trader Jack Smith was also treasurer of the St. Charles Town Company.
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the board members. For example, Article 9 made it the duty of the Board of Directors to superintend the surveying, platting, lithographing, or mapping of the townsite, the printing or writing shares of stock, and hold all company property in trust for the benefit of the company. The Constitution also stated that it was the duty of the Board of Directors to call a meeting notifying the stockholders if it became necessary to levy any tax on the members. The Auraria Town Company also passed bylaws. The first article of the bylaws required all shareholder lots to be improved within 60 days after donation by the corporation or else the
177
donation became null and void.
Auraria grew rapidly. During the fall and winter of 1858, about one hundred and twenty-five houses were built in Auraria. Soon there were grocery stores, hardware stores, and whiskey tents. Denver grew, too, on the other side of Cherry Creek. Despite the intercreek rivalries, in March 1859, a mass meeting in Auraria approved the consolidation of Auraria with Denver. The meeting gave its assent, reserving the right of West Denver, as it was to be called, to make its own municipal regulations, hold the title to the townsite as before, and maintain its organization as a town company. The process of merging was not
completed until December 3, 1859, when an act of the Jefferson Territory combined with
180
Auraria, Denver, and Highland, and incorporated them as one city.
Denver City
Denver City Town Company formed on November 17, 1858 staking claim to the land east of Cherry Creek already claimed by the St. Charles Town Company. They adopted a 177 178 179 180
177 Minutes, Constitution and By-laws of Auraria Town Company Records 1858-1860, Denver Public Library, http: //digital. denverlibrary. org/cdm/ref/collection/p 1533 0coll6/id/3 61.
178 Hall, History of Colorado, Vol. 3, 182.
179 Hall, History of Colorado, Vol. 3, 250.
180 Smiley, History of Denver, 632.
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constitution five days later. Several of the initial officers of the Denver Town Company had
181
previously been appointed officers of Arapahoe County, K.T.
In March 1859, Denver and Auraria merged into one city, but Auraria still maintained some separate rights. The merger was not complete until December 3, 1859, when an act of the Jefferson Territory Legislature incorporated Auraria, Denver and Highland as one city. Technically, until this time Denver had actually been operating under the St. Charles
184
charter. That charter was repealed in March 1860.
The new City of Denver, Auraria and Highland was governed by a mayor and twelve council members. The first city election was held December 19, 1859 and the council met for the first time on January 21, 1860. Confidence in the city government and the Jefferson Territory waned beginning in the spring of 1860.
In September 1860, citizens met at Apollo Hall to discuss making a new city government. A committee was appointed to draft a constitution for the new city government. On September 21, 1860, another meeting was held. The new constitution of The Peoples Government of the City of Denver was presented and adopted.181 182 183 184 185 186 187 The election was held for officers of The Peoples Government on October 1, 1860. John C. Moore won the office of Mayor, and some felt he provided strength and effective administration that had been lacking.188
The new Peoples Government continued to run Denver until Colorado Territory was
181 Denver City Town Company Record Book, Mss.01813 (accession 99.225), History Colorado.
182 Hall, History of Colorado, Vol. 3, 250.
183 Smiley, History of Denver, 632.
184 Rocky Mountain News, March 7, 1860.
185 Smiley, History of Denver, 633.
186 Smiley, History of Denver, 634.
187 Smiley, History of Denver, 634.
188 Western Mountaineer, Oct 18,1860; Hall, History of Colorado, Vol. 3,211.
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organized. The new territorial legislature confirmed the city charter, and on May 28, 1864, Congress enacted a law for the relief of the citizens of Denver, which confirmed by Congressional grant the titles to land that had grown out of the irregular proceedings of the founders of Denver.189 Other Early Front Range Towns
Several other encampments began in the winter of 1858-1859. Miner George Jackson and several others started an encampment called Old Arapahoe Village a little east of North Table Mountain which they were surveying for a townsite. The Western Mountaineer reported the townsite was abandoned because it was haunted.190
In mid-October 1858, a party from Nebraska City established camp at the Red Rocks near the entrance to Boulder Canyon and built a group of log houses for winter shelter that was sometimes referred to as The Eleven Cabins.191 192 193 By February 1859, fifty-six shareholders
192
had formed the Boulder City Town Company.
During that winter, a number of traders and prospectors had also assembled near the Poudre River and formed a town they named Colona. They built about thirty or forty cabins.
193
It later became the town of Laporte.
Another city was born to the south at a camp near the mouth of the Fontaine-qui-Bouille (Fountain Creek). After camping a few weeks they decided to lay out a town. They made a survey and plat of the new town and called it Fontaine City. The place soon received a number of other recruits. Before winter set in some thirty log cabins were built and some
189 Smiley, History of Denver, 205
190 Western Mountainer, January 18 and 25 1860. Could this have been the site of an Arapahoe village devastated during the epidemic of 1849? Today there is a monument sans plaque in a parking lot.
191 Smiley, History of Denver, 196.
192 Percy S. Fritz, Fritz, Percy S., Was Mountain District No. I, Nebraska Territory, the First Mining District Organized in Colorado? Colorado Magazine 15 no. 3 (May 1938): 81-89, 82.
193 Smiley, History of Denver, 196.
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adobe was taken from the crumbling walls of the old Pueblo which stood nearby. Later Fontaine City was absorbed by the city of Pueblo.194
In 1859, Dr. Levi Russell and some associates organized the Highland Town Company across the South Platte River north of Auraria and Denver. The site was surveyed and staked off but they did not attempt to incorporate it, nor did they build anything on it that year. On December 3, 1859, Highland was merged with Denver and Auraria and incorporated as the City of Denver by the Jefferson Territorial Legislature.195
Claim Clubs
As I stated above, claim clubs were essentially mutual aid societies. The members agreed to protect the land claims of all other members. The concept was not new. Settlers in Wisconsin and Iowa had developed similar organizations years before the Colorado Gold Rush.196 197 In Colorado, the claims clubs bridged the gap during the time when official land registration was not available. While they were more commonly used for agricultural land, claim club members could also be called upon to protect land claims within a town, as people
197
in Denver did during the Claim Jumpers War in January 1860.
There were a number of claim clubs formed in this region between 1858 and 1861. The Arapahoe County Claim Club covered most of the area around Denver. Boulder County, which was originally called Jackson County, was covered by the Jackson Claim Club that was also known as the Great Western Land Claim Club. There was also the El Paso Claim Club, the Canon City Claim Club aka Arkansas Valley Claim Club, the Platte River Valley
194 Simmons Building Report 10; Ralph C. Taylor, Canon City Had Glorious Beginning, Pueblo Star-Journal and Sunday Chieftain, 18 June 1972, 2C; Rocky Mountain News, March 9, 1890, 20-21; Smiley, History of Denver, 195-6.
195 Smiley, History of Denver, 222, 632.
196 Kraft, Wynkoop, 35.
197 Rocky Mountain News February 8, 1860; Western Mountaineer Feb 8, 1860.
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198
Claim Club, the Farmers Claim Club, and another claim club in the Cherry Creek valley.
Claim club members agreed to protect members in the peaceable possession of their claim not just from claim jumpers, but also at public sales.198 199 The claim clubs settled land claim disputes between members. The Record Book of the El Paso Claims Club mostly contains descriptions of land claims and conveyances. I found one trial of a dispute between members dated March 23, 1861, but the jury split and the matter was considered undecided.200 Other claims clubs may have been more active in that regard.
The constitutions of the claim clubs were short documents of a few pages that established the borders controlled by the claim club, set out the officers and their duties, and determined the minimum requirements for establishing and maintaining a claim within the area. These requirements might just include staking the claim or it might include a requirement to build an improvement on the land, or plowing or planting a crop within a set number of days.201
Laws of the Mining Districts Discovery of Gold in Colorado
There are numerous candidates for the first to find gold in Colorado but it is clear that the Spanish had mined in this region at least as far back as the sixteenth century. Don Juan de Onate discovered gold mines in the San Luis Valley somewhere between the Culebra and Trinchera in the 1590s. The mineshafts found later were very shallow, and the Spanish
198 George L. Anderson, The El Paso Claim Club, 1859-1862, Colorado Magazine 13 no. 2 (March 1935): 43; George L. Anderson, The Canon City or Arkansas Valley Claim Club, 1860-1862, Colorado Magazine 16 no. 6 (November 1939): 201-210.
199 Anderson, El Paso Claim Club, 44.
200 Record Book of the El Paso Claim Club, 1859-1861, Pikes Peak Public Library.
201 Anderson, EL Paso Claim Club, 44; Anderson, Canon City Claim Club, 203-4.
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202
records indicate that Onates expedition was considered a failure.
Even if we narrow the field to the people who found gold in Colorado in the nineteenth century before the Russell group came west from Georgia in 1858, there is still a long list. However, it is not clear whether the Russell brothers knew of these other stories or found them creditable. It is known, however, that Green Russell and his Cherokee friends and in-laws knew from more direct experience that there was gold near the Shining Mountains.
When rumors of gold in California spread people from every occupation flocked to the West, but experienced miners were rare.202 203 204 205 Green Russell and his brother John were exceptions. Their father, James Russell, had prospected and mined gold in South Carolina and Georgia and had taught them to pan gold at an early age. When they headed west in late 1848, they went through the new Cherokee Nation lands beyond the Mississippi River. Green was married to a Cherokee woman and some Cherokees from Indian Territory joined them on the trip to California. Another party of Georgians lead by Lewis Ralston followed the same route a bit behind them. Ralston also had in-laws among the Cherokee. His group was also joined by some Cherokee, including John Beck. The Ralston party paused briefly before crossing the Shining Mountains to pan for gold in a small stream. They saw some color and
205
made note of it for another day. They called the creek Ralston Creek.
Most of the men from Georgia and Indian Territory who went to California as prospectors and miners, not as settlers. By the end of 1849, John and Green Russell had
202 Hall, History of Colorado, 85, 174-5; Hammond and Rey, Crowns Participation 295; Smiley, History of Denver, 179
203 These include William Bents children, James Pursley, Old Parson Bill Williams, and a cattle-trader named Parks Hall, History of Colorado, Vol. 3, 97, 175-6. Smiley, History of Denver, 180-2.
204 Frank Fossett, Colorado: Historical, Descriptive and Statistical Work on the Rocky Mountain Gold and Silver Mining Region, (Denver: Daily Tribune Steam Printing House, 1876) 19.
205 Spencer, Green Russell, 23; Smiley, History of Denver, 180-4 fromDr. Levi Russell and Dr. Peirce.
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mined a substantial amount of gold and were ready to go home. Eight years later while on a trip to Kansas, Green met with John Beck, the Cherokee Baptist preacher who had travelled with Lewis Ralston. Beck agreed to gather a group of Cherokees together to join Green, his
brothers and a group of miners from Georgia on a prospecting trip to that area the following
206
spring.
A prospecting party was organized in Lumpkin County, Georgia consisting of Green, his brothers Oliver and Levi, Lewis Ralston, William Anderson, Joseph McAfee, Solomon Roe, Samuel Bates, and John Hampton. This party left home on the February 17, 1858 expecting to join a party of Cherokee party at Maysville, in Indian Territory. On May 28, they received a message that the Cherokee group was now miles ahead of them. The two groups joined near the Great Bend of the Arkansas. While the Cherokee group had been organized by John Beck, it was now being led by George Hicks, Sr., a prominent Cherokee. He was a lawyer by profession, had served on the Cherokee bench as Judge. Ezekiel Beck and Pelican Tigre were two other Cherokee who joined Becks group. Becks contingent had been joined by several other people after it started. These were George McDougall, a brother of Senator McDougall of California; Philander Simmons, an experienced mountaineer; Levi Brumbaugh; a man named Kirk with his wife and two children; a man named Kelly and his wife and her sister, and three other men named Brown, Taylor, and Tubbs.206 207 208 When the two groups combined they numbered seventy men, with fourteen wagons, thirty-three yoke of
206 Spencer, Green Russell, 39- 40. Smiley, History of Denver, 180-1 Smiley cites his source as Dr. Levi J. Russell, brother of Green Russell, who came out in 1858. The Russells were from Dahlonega, Lumpkin County, Georgia and knew members of the 1850 Ralston party.
207 Jerome C. Smiley, History of Denver, Denver, Colorado: The Times-Sun Publishing Co., 1901, 184;
Spencer, Green Russell, 42-45.
208 Smiley, History of Denver, 184; Spencer, Green Russell, 46.
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cattle, two horse teams, and twenty or more ponies.209 210 211 212
On June 12, they stopped briefly at Fort Bent before heading north towards Cherry Creek. They followed the creek north to the South Platte River. They arrived at the confluence of Cherry Creek and the South Platte River on June 24, 1858 and camped on the west side of the creek. The group crossed the Platte River and headed up Ralston Creek. Results there were disappointing and soon the Cherokee contingent began to talk of leaving. Green knew that it was not just the results from panning that concerned the Cherokees. They feared the wild plains Indians. On July 4, 1858, the majority of the party left. The remainder continued to prospect up and down the South Platte River, Cherry Creek and other creeks nearby. The men moved farther up east side of the Platte to the mouth of a small creek, then almost without water. There they worked a day or so and found some gold. They moved still farther up the river to the mouth of a larger creek which, also, was almost waterless, and which was called Dry Creek, but now appears on maps as Little Dry Creek. They began prospecting in its bed, and one evening, at a point a short distance from its mouth, they found more gold than they had yet seen in one place anywhere in this region They dug large holes
in the wet sand, put their rockers down in them, and soon washed out more gold than they
212
had found in all their other prospecting.
They spent a while at Little Dry Creek then prospected up along the Front Range. They encountered a snowstorm that convinced them they should be considering winter quarters. They returned to the Placer Camp at Little Dry Creek and found they had been joined by the Lawrence group who were building a town near their camp and panning in the
209 Smiley, History of Denver, 185.
210 Smiley, History of Denver, 185.
211 Spencer, Green Russell, 49-53; West, Contested Plains, 104-5; Smiley, History of Denver. 187.
212 Smiley, History of Denver, 187-8. Spencer, Green Russell, 57; Hall, History of Colorado, Vol. 3, 177.
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Platte and the creek. The Russells decided to move up to the confluence of Cherry Creek and
213
the South Platte River and make their winter quarters there.
Other prospectors flooded into the country. These included George Jackson who would find the first gold placer in the mountains (as opposed to on the plains) and John Gregory who would find the first lode source of gold in the mountains. Others prospected in the canyons near Boulder and Golden. While some, such as Jackson, prospected in the
214
winter, others waited for spring.
Mining District Governments
The laws of the Gregory Mining District are those most frequently cited and quoted, and seem to have been copied by more other districts. However, priority of time belongs to Mountain District No. 1 in the Gold Hill area of what is now Boulder County. While the exact date of the first meeting seems to have been lost. It preceded the organization of the Gregory District by weeks, if not months. The earliest surviving records are of a meeting on July 23, 1859 to amend the existing laws and other business. Some sources claim the district was organized on March 7 but I have not found any reliable source to substantiate that date. Smiley gives a date of April 17, 1859, and claims documents in possession of the State Historical Society showing these transactions to have occurred on that date without saying what these documents may be. Historian Percy S. Fritz disputed Smileys date but calculated that the founding date had to be between the first discovery of gold in the area on January 16, 1859 and the earliest recorded claim on June 23, 1859. Fritz argued for a March 7 date based on the date of the November 5, 1858 election since the officers held six-month 213 214 215
213 Smiley, History of Denver, 185-6.
214 Hall, History of Colorado, Vol. 3, 181, 187, 192-4.
215 Smiley, History of Denver, 266.
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terms. The district seems to have changed its name from Mountain District No. 1 to Gold Hill Mining District sometime between July 30 and October 15, 1859 but the exact date of that change is also uncertain.216 217 218 219
As spring approached in 1859 and the number of new gold-seekers surged, both those who came first and those who came after saw a need for rules and some form of governance to maintain existing claims and allow new ones to proceed in an orderly fashion. As is the case in most of the Colorado Mining Districts, the organization of Mountain District No. 1 was simple. There were had three officials: a president, recorder and a constable who were elected for six months terms. The president presided over meetings and acted as a judge, when necessary. Each miner who had a claim in the district had a right to vote at the meetings. The recorder kept the minutes of meetings and recorded mining claims in the claims book of the district. The recorder also issued claim certificates signed by the president. The constable was the peace officer of the district. He held prisoners who were
217
awaiting trial; he collected fines, executed liens and sold claims to satisfy judgments.
As is true of the other mining districts, the majority of the laws of Mountain District No. 1 dealt with claims. They defined the size of a claim and specified that each person could hold a maximum of two claims by discovery. The Gold Hill District prohibited the sale of liquor in the district despite repeated efforts to repeal the rule. The records list cases, for example, Win. Bryan us. Mr. Culver listed in the record for Oct 29, 1860. However, no
216 Percy S. Fritz, Was Mountain District No. I, Nebraska Territory, the First Mining District Organized in Colorado? Colorado Magazine 15 no. 3 (May 1938): 82-3, 88; Clarence King, The United States Mining Laws and Regulations Thereunder, and State and Territorial Mining Laws, Report to the Tenth Census. Washington: Government Printing Office, 1885, 347; Laws of the Gold Hill Mining District, 1859-61, Archives, University of Colorado Boulder; Wilbur F. Stone, History of Colorado, Chicago: S. J. Clark Publishing Co., 1918.
217 Fritz, Mountain District No. 1 86-7.
218 Fritz, Mountain District No. 1 87.
219 King, United States Mining Laws, 350; Fritz, Mountain District No. 1 88.
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details are provided, which makes it impossible to determine if it is a claim jumping, a border
dispute, or a theft or assault. The most heinous charge in the surviving records of the Gold
Hill Mining District appears in the record for December 5, 1860, in which a former constable
was accused of charging fifty cents for serving papers when the district laws only allowed
charging twenty-five cents, and overcharged mileage in case of Collins vs Pancost by one
221
dollar and twenty-five cents.
On April 24, 1861, a Mr. Collins spoke in favor of suspending the miners court for the district in favor of the territorial court. However, on motion of the President the district chose to sustain the miners courts of this district. A number of other districts sustained their
miners courts for a substantial period after the organization of the Colorado Territory. The
222
Territorial Legislature later ratified the actions of the miners courts.
On May 14, 1859, the Rocky Mountain News reported a Miners Meeting occurred May 9, 1859 at Jackson Diggings, Cooks Creek. The meeting gave no name to the district and cited three rules related to claims that were adopted. The rules allowed the Chicago Company two extra claims. The meeting appointed a committee to draft a permanent
223
constitution and bylaws.
Missouri Gulch was neither large nor first but a review of their initial laws provides some insight into the miners priorities. On July 13, 1859, miners met and adopted their initial rules for Missouri Gulch. Sylvester Davis was elected secretary, and recorded the rules in his diary. Davis also attended meetings in other mining districts where he also may have had claims. Thus, he was familiar with the rules being developed in other district. The initial 220 221 222 223
220 King, United States Mining Laws, 349.1 have not included such cases in the case studies in the Appendix.
221 King, United States Mining Laws, 349.
222 King, United States Mining Laws. 351.
223 Rocky Mountain News, May 14, 1859.
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rules for Missouri Gulch were simple. They defined the boundaries of the district and defined the size of gulch and dry placer claims and quartz claims. They stated that each miner was allowed to claim one of each kind and hold one of each kind by purchase. They allowed a miner to cut a tailrace below the claim to drain water from the mine. They also set out water use rules that were a mix of appropriation and reasonable use. Rule number seven required claims to be worked at least once every six days. The initial laws of Missouri Gulch also provided that five disinterested men shall settle or decide all difficulties In regard to Mining holding claims. Throughout the summer, the Missouri Gulch miners met to refine the laws. However, these priorities were fundamental to nearly all mining districts. Other rules were added over time, but the original inspiration was to clarify claims between the miners, not
224
because the mine camps were plagued by violence, as is often claimed.
The Gregory Mining District is believed to be the third district to have organized and set out its laws after Gold Hill and Jackson. Those two earlier districts were based on placer claims. The mining districts in Gregory and Russell Gulches were lode or quartz mining districts. They were also initially the largest, and developed comprehensive laws fairly rapidly.
In May 1859, prospector John H. Gregory followed Clear Creek from its confluence with the South Platte into the mountains and discovered the lode source of the gold in the gulch subsequently named after him. Others joined them. On June 8, the miners held a mass meeting at Gregory Point. The miners formed the Gregory Mining District, established the boundaries of the district, and roughly outlined and adopted the laws of the district. Within weeks, newcomers to the mining district began to complain about the privileges of those who 224
224 Sylvester Davis, Diary of Sylvester Davis, New Mexico Historical Review, 6 no. 4 (October 1931): 396.
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came earlier.
A committee was formed to revise the rules of the district. At subsequent meetings in July, the miners adopted the revised rules and elected a president, a recorder of claims, and a sheriff. On February 11, 1860, a committee was appointed by the miners to further amend and codify the law of the district. The miners created many new districts out of Gregory district, the country adjoining, and throughout the mountains in 1859 and 1860. In August
225
1859, the Nevada District was split off from the Russell District, each with their own laws. The laws of the Gregory Mining District were among the most detailed and comprehensive. Many new districts copied their laws and customs from the Gregory Mining District modifying the details as appropriate.225 226 227
Initially most laws of the mining districts consisted of a series of resolutions that could be tedious to search. Later the larger districts codified their laws. The laws of the mining districts set boundaries of the district defined the size of lode claims, and fixed the methods of locating and registering. The mining district laws were not just about mines. They also included rules for making water claims, mill claims, ranch claims, building claims and townsites. They had laws governing murder, theft, fraud (perjury, salting mine claims, pulling up stakes), setting fires, and probate issues. Most mining courts punished theft with a combination of lashes and a fine or restitution. However, in March 1861, the Union District made stealing a yoke of cattle, or a single mule, horse, or pig, a hanging offense. Cutting or mutilating green trees by peeling bark was prohibited by most districts. They also often
225 Hall, History of Colorado, Vol. 3, 229.
226 Tom I. Romero, II, Law, Order, and Municipal Authority in Colorados Early Mining Towns, Colorado Lawyer 31, no. 10 (2002): 134; Henderson, Mining in Colorado, 9-10, 29; J. H. Beadle, Western Wilds And The Men Who Redeem Them: Authentic Narrative (Chicago: Jones Brothers & Co., 1881) 477.
227 Hall, History of Colorado, Vol. 3, 205.
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prohibited nonresidents of the district from driving or herding cattle for grazing on public
228
lands. The Union District prohibited dueling.
Some of the mining districts empowered the president of the district to resolve minor disputes. Some districts elected judges or justices of the peace who presided over Miners Courts. Sometimes the President served in both roles. Some district laws set out processes for arbitration or mediation of some disputes. Usually there were provisions for a jury trial in criminal matters and it was sometimes available for civil matters. Civil proceedings and minor criminal matters would have smaller jury panels, sometimes of three, five, or six jurors. The miners courts handled all the usual court actions like attachment, garnishment, replevin, ejectment and liens. They had rules of evidence and rules for how to take and submit depositions. They handled equity claims as well as legal claims. Most referenced the laws of the Territory of Kansas. A few referred back to English Common Law.
Some of the mining districts, including the Independent and Hawkeye Districts, prohibited lawyers from practicing before their courts in a representative capacity; other districts, such as the Gregory and Russell Districts, allowed attorneys to practice before them if they took an oath to uphold the Constitution of the United States and the laws of the district. The Gregory Mining District added the promise that neither for gain, malice, fear or favor will you prejudice the cause of your client to the oath. The Union District initially prohibited attorneys under penalty of not more than 50 lashes not less than twenty lashes and be forever banished from this court but later relented and allowed attorney to practice in 228 229 230
228 Laws of the Union Mining District, 1860-1, Archives, University of Colorado Boulder.
229 The primary and secondary sources have Miners Courts, Miners Courts, and Miners Courts. For simplicity, I have the apostrophe off.
230 Laws of the Union Mining District, 1860-1, Archives, University of Colorado Boulder; Henderson, Mining in Colorado, 29; Thomas Maitland Marshall, ed., Early Records of Gilpin County, Colorado 1859-1861, (Boulder: University of Colorado 1920), 135.
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231
their courts if they took an oath.
Some scholars claim that the mining districts lacked the coercive power of an official government. However, there is evidence that the mining courts were able to maintain law and order. The collective voice of all the miners in the district could be very coercive. The winner of a disputed claim received possession immediately. When a miner was banned from the district, he usually left at once because most, if not all, of the miners in the district knew of the judgment and had participated in the formation of the rules. Most districts also appointed a sheriff or constable to enforce the decisions of the court and to administer lashings, which were the most common form of punishment. As time progressed, many of the mining
232
districts appointed the Arapahoe County sheriff or his deputies as the sheriff of the district.
The Jefferson Territorial Legislature confirmed the acts of the mining districts and incorporated the miners courts into its judicial system. After statehood, portions of the laws of the mining districts were incorporated into state and local laws. The creation of the Colorado territory by Congress on February 28, 1861 was not immediately sufficient to supplant the miners courts for there were no territorial laws or courts to enforce them for some time. The miners courts fell into disuse after the first Territorial Legislature passed the Civil and Criminal Code and created the territorial courts in the winter of 1861-62. At that time, the legislature acknowledged the legal heritage of the miners courts and authorized all
234
their acts not plainly contrary to justice or the common law. 231 232 233 234
231 Laws of the Union Mining District, 1860-1, Archives, University of Colorado Boulder; Marshall, Early Records of Gilpin County, 31,61, 194, 237; Charles E. Lewis and D.F. Stackelbech, History of the Bench and Bar of Colorado, (Denver: Bench and Bar Publishing, 1917), 17.
232 History of Clear Creek, 32; Anderson, Anarcho-Capitalism, 12, 19.
233 Jeff. Terr. Laws, ch. 29, § 1 (1860).
234 Act of Nov. 7, 1861, § 12, 1861 Colo. Terr. Sess. Laws 166-67; Act of Nov. 7, 1861, § 8, 1861 Colo. Terr. Sess. Laws 380-81.Henderson, Mining in Colorado, 29; History of Clear Creek, 32; Beadle, Western Wilds, 477-478.
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In 1874 the Colorado Supreme Court ruled that it was not enough to show that a deed [from one miner to another] was found upon the records of the Illinois Central District, but proof of the local rules and customs regulating the transfer of mining claims was required. Under the federal Mining Act of 1872, which still applies today, mineral lands may be acquired under regulations prescribed by law, and according to the local customs or rules of miners, in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.235 236 Thus the laws drafted by miners in the mountains of Colorado in the late 1850s and early 1860s still live today.
235 Sullivan v. Hense, 2 Colo. 424 (Colo. 1874).
236 Colby, Extralateral Right, 21.
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Peoples Courts
Unlike any of the foregoing, the Peoples Courts were not ongoing institutions in Gold Rush Colorado. They were ad hoc courts raised by the local residents to try a case, usually a serious case. However, there was some ambiguity. As is highlighted in a few of the case histories in the Appendix, sometimes one newspaper would say a particular case was tried by a miners court and another would say it was a peoples court, or a newspaper would call it a peoples court and a diarist or letter writer would think it was a county court. In Denver, the cases tried by peoples courts were often presided over by judges who had been appointed for Arapahoe County, K.T., or elected by the people to serve as a judge for the county, or city. Sometime cases had three judges. Sometimes there was a preliminary hearing by one judge while the trial was presided over by another. Sometimes there had been a coroners inquest into the cause of death prior to arrest. When an accused was not arrested on the scene or immediately chased down, judges issued arrest warrants before law enforcement officials went to arrest them.
The process of rounding up jurors and presenting evidence was the same regardless of the label applied to the court. Prosecutors were chosen by the people for each case because there were no official government prosecutors. That was no an unusual system in the nineteenth century. In the United States the families of wealthy victims often hired private prosecutors rather than using public ones and sometimes no public prosecutor was available. In England, barristers were hired for one side or the other of criminal cases well into the twentieth century. In most Colorado peoples court cases, the defendant was provided with one or more attorneys for their defense whether they could afford one or not.
The most common sentences handed out by peoples courts were whipping,
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restitution, banishment, and hanging, which are not only similar to all the other legal systems in the region, but were similar to the remainder of the country at the time. For example, the federal Crimes Act of 1790, which was still in force at the time, set death as the punishment for murder and thirty-nine lashes plus payment of a fine four times the value stolen as the
237
punishment for larceny.
Between 1858 and 1861, Denver did not have a courthouse and I have not found any other town in the region that had one. Trials were sometimes held in dance halls or saloons. Most of the time in Denver, weather permitting, trials were held outside because no building was large enough to hold all the people. Cases proceeded in an orderly and deliberate fashion. Some trials were completed the same day. Others spanned several days. One side or the other could request time to gather evidence and it was usually granted. Witnesses testified and were cross-examined. Physical evidence was presented and examined. Sometimes the juries of peoples courts convicted, sometimes they acquitted, and sometimes they could not come to a consensus.
Some people used the label peoples court in a derogatory fashion. The press was fickle. Newspapers lauded the peoples courts when they agreed with the decisions and cursed them when they did not. They would demand official courts. However, when the official courts did not act as they expected they cursed lawyers and advocated a return to peoples courts.
Some scholars apply the label peoples court to promote a theory, from Hubert Howe Bancrofts glorification of popular tribunals to the condemnation of the same by Manfred 237
237 Crimes Act of 1790 ch. 9, 1 Stat. 112 Sections 3 and 16.
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238
Berg, Michael Pfiefer, or Stephen Leonard. I argue that each individual case must be examined to determine the process and the effect of the peoples court. The question to ask is whether the accused was given due process, not from a theoretical or twenty-first century view, but in the context of the time. Would the trial have been different if it had taken place in a courtroom? The answer in most cases is no. In Colorado, you can also ask whether the outcome or the process would have been any different if it had taken place after the organization of the Colorado Territory. Again the answer in most cases would be no.
I do not claim that there were no instances of vigilante executions where no trial was provided. There were. But it is important to distinguish between to the two. The hangings of Vanover in Golden in September 1859, Atkins near Missouri City in March 1860, and John Shear near Denver in September 1860 seem to be clear cases where no trial was provided at all. On the other hand, the conviction and execution of Biencroff in April 1859 and Gordon in October 1860 are clearly cases where the accused was afforded all process due. In Gordons case, Sherriff Middaugh twice saved Gordon from mobs in eastern Kansas wanting to string him up, in order to bring him back to Denver for a trial. Gordons conviction may have been a foregone conclusion, but that was because he committed his crimes in public in front of numerous witnesses. Nevertheless, he was tried, allowed to confront his accusers, and given all the other legal safeguards provided by American society at the time. 238 239
238 Hubert H. Bancroft, Popular Tribunals, (San Francisco, The History Company, 1887); Manfred Berg. Popular Justice: A Pfistory of Lynching in America. Chicago: Ivan R. Dee, 2011; Michael J. Pfeifer, Rough Justice: Lynching and American Society, 1874-1947. (Urbana: University of Illinois Press, 2006); Michael J. Pfeifer, The Roots of Rough Justice: Origins of American Lynching. (Urbana: University of Illinois Press 2014) and Stephen J. Leonard, Lynching in Colorado, 1859-1919. (Boulder: University Press of Colorado, 2002.) See also Andrea McDowell, Criminal Law Beyond the State: Popular Trials on the Frontier, Brigham Young University Law Review (2007): 327-385.
239 1 have doubts about A. C. Fords execution. I suspect that he may have faked his own death and escaped. This is discussed in the Appendix.
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CHAPTER VII
CRIME AND VIOLENCE
It is not possible to discuss law and law enforcement without some consideration of crime and violence. What we call crime tends to be some of the most serious problems in society. That is why in many societies the prevention and punishment of crime is a function of the government rather than a private matter. The mythology of the Old West is that it was violent, and was especially violent during times of large migrations like Gold Rushes.
Casting aside for the moment the contributions of art and literature, scholars who argue for the West in general being violent often combine large spans of time and space. That can drown out the finer analysis. Most of Earth is covered with water, but that does not mean there are no deserts.
Many studies of violence in the West include time spans that cross the Civil War. While they exclude the direct causalities of the war, they are probably not filtering out indirect casualties of war. Studies show that violence increases among veterans of wars. Many psychological and sociological theories are offered to explain the increase. Regardless of the reasons, we must deal with it as fact when studying violence in the nineteenth century. Even the antebellum Bleeding Kansas violence over the question of slavery cannot easily be separated from either crime statistics or the Civil War. A young William C. Quatrill was attacked crossing Kansas on his way to the Pikes Peak region. His brother was killed. He swore to get revenge and QuatrilTs Raiders became the terror of Kansas and Missouri before, during, and after the Civil War. Some of those raiders, like the James brothers, never stopped fighting.240 Eric Dean reported that in the North, two-thirds of all men admitted to state
240 Ellis, Mark R., Law and Order in Buffalo Bills Country: Legal Culture and Community on the Great Plains,
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prisons after the Civil War were veterans and admissions at some prisons were up by 400%. The South also reported surges of crime with former Confederate soldiers running wild and terrorizing citizens.241 242 243
This post-war violence effect is one of the reasons why grouping all homicides or other crimes in the second half of the nineteenth century will lead to poor results. A number of historians studying violence in the West do precisely that. In so doing they blend together the actions of thousands of unassociated people in differing economic and social conditions with entirely different motivations for the purpose of making some point. In some cases, this is found in statistical analysis and other times in spurious comments. Ashraf H. A. Rushdy, for example, wrote: What began in Colorado as a relatively organized means of protecting material property by the extralegal peoples court eventually became an orgiastic means of protecting the far more important property of whiteness.... which resembles a description of
243
the range of choices available on a salad bar more than it does any kind of analysis.
I chose the narrow time period of 1858 to 1861 in an attempt to avoid the effects of the Civil War. It is not wholly effective because I think we do see some violence that may be sectional in nature, whether bleeding over from eastern Kansas, or arising from within as the war draws near. I have accumulated case histories betweenl858 and 1861 which I have arranged in the Appendix in chronological order. They include murders, assaults, duels,
1867-1910 (Law in the American West), Lincoln: University of Nebraska Press, 2009. xiii.; Eric T. Dean, Jr., Shook Over Hell: Post-Traumatic Stress, Vietnam, and the Civil War. Cambridge, MA: Harvard University Press, (1997) 60. Gary L. Cheatham, Desperate Characters: The Development and Impact of the Confederate Guerrilla in Kansas, Kansas History, 14, no. 3 (Autumn 1991) 161; Yeatman, TedP. Frank and Jesse James: The Story Behind the Legend, Nashville, TN: Cumberland House, 2000. 33-4, 60; John Barton, O. McCorkle, Three Years with Quantrill: A True Story Told By His Scout (Kindle Locations 54-61, 277-283, 291-3). Albion Press. Kindle Edition. (2016)
241 Dean, Shook Over Hell, 98.
242 Dean, Shook Over Hell, 99.
243 E.g., Leonard, Lynching in Colorado, 165; Ashraf H. A. Rushdy, American Lynching.(New Haven, CT: Yale University Press, 2012).
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thefts, and one case of forgery. I collected these cases from primary sources including newspapers, letters, diaries, biographies, and other documents, and from early Colorado histories. Unfortunately, some Colorado histories include anecdotes of crimes or other disputes without providing the date, place or the names of people involved. It is impossible to include such events or even be certain that they ever occurred.244 245 What you will not find here are crime rates. I think that attempting to reduce the data available to a crime rate comparable to that used in the Federal Bureau of Investigations Uniform Crime Reports is deceptive. I am not opposed to the proper application of statistics to historical data. However, I do not believe statistical methods used in the past by historians studying violence were appropriate, nor do I think the Colorado data is ready for such treatment.
The Colorado Gold Rush crime data is incomplete. I kept finding additional cases as I was writing this. Not only is there more case information to be collected, but there is more work needed on the uncertainties of the populations in Colorado. We have data from the 1860 census. However, there are several problems with that data. One is that there were wide swings in population in Colorado in these years. The population could change by thousands in a week. There are also the opposing errors of people being omitted and people being counted more than once due to their mobility. Additional research will improve the
245
completeness of the crime data and proper analysis may cure the population statistics.
There is also the problem that the methodology used by the FBI Uniform Crime Reports is a crude one that is not well suited for the crime data available for the Colorado Gold Rush. Dykstra has discussed the fallacy of small numbers in several of his papers. He
4 E.g., Hall, History of Colorado Vol. 1 481-2.
245 As a math teacher said in high school, in math garbage in=garbage out.
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points out that modest body count + small population = large homicide rate.246 The problem is not whether you agree with the resulting rate, or whether it supports whatever side the violent/not-violent divide you stand on, but whether the methodology is appropriate.
Some forms of statistical analysis do not work well on small numbers, regardless of what those numbers represent. Statisticians have many tools it their box. Perhaps some other form of statistical analysis could be more useful at analyzing historic crime rates. At this time, a qualitative approach seems more appropriate.
The case histories collected in the Appendix demonstrate that Denver and the mining communities had their spurts of violence. They do not show that it was continuously violent in 1859 and 1860. The first item of note is the lack of cases in 1858 and in 1859 before April. The record of cases jumps significantly in April 1859 primarily due to the arrival of the William Byers and the Rocky Mountain News. So far I have only found one reliable crime report before the first issue of the Rocky Mountain News. Does that mean there were none? No. It means that either there was no record kept or I have not found it.
Even after April 1858, the record is very incomplete. In each case history I have
highlighted seven items related to the event. What is most striking is the number of those
items that remain empty due to lack of data. In some cases, it was difficult to determine the
date that an incident occurred. Often the time indicators in letters were last week or a few
days ago. Even the newspapers did not always provide date information. Initially they may
have presumed everyone knew when the incident occurred, or did not care. When they did
provide date information, newspapers often used Monday, inst. or Sunday last which I
could determine based on the date of the issue, but sometimes they were more vague. Later
246 Robert R. Dykstra, Quantifying the Wild West: The Problematic Statistics of Frontier Violence, Western Historical Quarterly 40 (Autumn 2009): 332-4.
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issues were more likely to include actual dates, but not always. Sometimes different sources listed different dates for what must be the same occurrence.
At times, I had difficulty determining whether a particular case mentioned in letters was the same as one mentioned in newspapers. That confusion went beyond just differences in spelling of names. When news travels by word of mouth, details are omitted or changed. The same can be true of newspapers, though they are more likely to write down information prior to printing it. As discussed earlier, newspapers have their own biases. In that day there was little attempt to separate editorial from news story. It is well known that William Byers of the Rocky Mountain News was a strong promoter of the Pikes Peak area and Denver/Auraria in particular. He often complained of newspapers in other states spreading lies about the region. Reports of violence, vigilantism, and lawlessness were not conducive for a positive public image of a new town and therefore were not good for business. Did this bias cause him to repress news stories about crime? The risk of doing so would be that another paper would report on it. That risk was minimal when the News was the only newspaper in town. However, we do know that miners and settlers from the area sent letters to newspapers in other states. We also know (because he quoted them) that Byers read any papers he could get his hands on. While there were general articles claiming that the Pikes Peak region was full of desperadoes in newspapers in other states and territories, there does not seem to be any case of the specifics of a crime being reported in those foreign newspapers that the News did not report. However, the lack of information or the press of a printing deadline could have resulted in some crimes not being reported. By 1860, the News had several competitors. By that time fighting for readership among those already in the 247
247 Ellis, Law and Order, 216.
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region may have become more of a driving factor than boosterism. Being the most complete source for news, especially sensational news, can be a selling point.
One thing that becomes obvious as you read the cases is that some names repeat: Steele, Wood, Ennis, Gordon, Harvey, Harrison, etc. Some of these people had connections to each other. Some primary and secondary sources have referred to them as a gang.
However, there is not enough evidence of consistent coordination to find a conspiracy. Perhaps their interests merely coincided. Unfortunately, there may have been evidence that was not preserved. The biggest crime spurt in 1860 occurs after the closure of Camp Floyd in Utah and the Rocky Mountain News connects some of the people involved to Camp Floyd. Is that the smoking gun that explains why the violence that occurred that summer? Additional research would be necessary into the backgrounds of the people involved.
There were vigilante or vigilance committees or committees of safely at different times, especially around Denver in the fall of 1860. Based on my reading of the primary sources, I do not think there was just ONE vigilance committee over the span of time at any one place, but rather a series of ad hoc committees that would dissipate. The evidence for this can be found in the comments about people organizing or getting up a vigilance committee that appeared in the letters and newspapers at different times. If there had been already one in
248
existence, why would they form a new one?
Dragging someone out of bed in the middle of the night to hang him without a trial, as happened to Atkins in March 1860, is bad. Partial hanging someone in order to try to get a confession out of the such as happened to Joe Pascoe, who was innocent, and Patrick Waters, who was probably not, is also bad. In the Atkins case, the perpetrators are known. In 248
248 E.g. Western Mountaineer, July 26, 1860 and September 5, 1860.
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Pascoes case, it was the men who accused him of theft who were doing the partial hanging, but they acted with the knowledge, if not the tacit consent, of the local sheriff and many others in the mining community. In that case, at least, the sheriff and others regretted their part in it and made the responsible parties pay Pascoe some compensation. In Waterss case, Edward Wynkoop, the Arapahoe County Sheriff, was present, if not pulling on the rope, and only made certain they did not kill Waters before the trial. Which of these were vigilante events? The one where the perpetrators are unknown? Or do you include the ones in which local law enforcement at least passively consented? In any case, from the record reviewed, it does not seem that these types of events made up the majority of cases during this time period.
Sometimes the term vigilance committee was also used to designate a committee appointed to investigate an incident or a case, or a committee assigned for surveillance or patrol. These would be known community members, not hooded figures, who performed a public duty for a short period of time to prevent or investigate violence, not cause it.
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CHAPTER VIII
CONCLUSION
There is a persistent myth that in the nineteenth century the West, including Gold Rush Colorado, was lawless before civilization was brought from the East. Even a cursory glance at the history of Colorado before 1861 demonstrates that this was not true. The Cheyenne, Arapahoe, Apache, and Comanche had their legal traditions and agreements between them and with the European and American traders. Vestiges of Mexican law still controlled in southern Colorado at the time of the Gold Rush, and emigrants from the States had laws on their wagon trains. Miners and town-builders drafted laws even as they pitched their tents.
In theory, there was also an umbrella of U. S. federal law that cloaked the West since the Louisiana Purchase and the treaty of Guadalupe Hildago, though it little benefited the Colorado settlers. National controversies over slavery disrupted the workings of the Kansas Territorial Legislature and impeded their proper administration of the western side of the territory. Slavery issues also delayed the creation of Colorados own territory. Errors by the Kansas legislature and governor undermined the Kansas territorial court system just as it was coming to be accepted by those at the western end. The settlers in Colorado filled the gaps by creating local legal systems in the mining districts and towns as well as the overarching Jefferson Territory, which finally gained traction after the Gordon case resulted in the repudiation of the Kansas courts. The Gordon case, in particular, demonstrated the ability of the Pikes Peak settlers to administer justice more peacefully and efficiently than their Kansas neighbors to the east did.
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Full Text
children. As they reached adulthood Sanford wooed Pemlys sister, then he deflowered and deserted her. Sanford fled to Australia. Pemly followed him to Australia, New Zealand, California and finally to Fairplay. One morning Sanford looked up and there stood Pemly with rifle to shoulder, prepared to kill him. Sanford begged for a chance and Pemly agreed to a duel. Sanford was shot through the heart and Pemly had a with a scalp wound. The Fairplay
302
miners assembled in court. Pemly explained the circumstances and was acquitted.
March 13,1860 Young killed West
Location: Auraria/Denver Crime: Homicide
Process: chief judge, and two associate judges, twelve jurors Judge:
Prosecution:
Defense:
Outcome: Convicted, executed by hanging
On March 13, 1860, Moses Young shot William West. West was preparing to resume mining and had called upon Young to collect some money Young owed him. West held the title to some town lots belonging to Young as security. Young refused to pay but demanded surrender of the securities. West rose and left Youngs house. Young fired at him from the door with a double barrel shot gun. West died in ten to fifteen minutes. Young made his escape through crowded streets but was found and arrested. His trial was the next morning. A hundred people watched in silence. The assembly chose a Chief Judge, two Associate Judges, a Secretary, Sheriff, and twelve jurors. The jury found Young guilty. The people assembled were asked if they approved the verdict, and they answered aye. The Chief Judge then
303
sentenced Young to be hanged. 302 303
302 Hall, History of Colorado, Vol. 3, 235; Fossett, Colorado, 61-2.
303 Rocky Mountain News, March 14, 1860; Williams, Peoples Courts of Denver, 295-6; Smiley, History of Denver, 342.
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An obituary for Dr. Martin D. Hickam claimed death was a result of dispute over a
mining claim: He was endeavoring to defend his rights guaranteed him by miners laws, and
while so doing was mortally wounded by a shot fired by Henry Hecklor who contested his
right to the claim.308
June 12,1860 Gredler killed Roeder
Location: Bear Creek returned to Denver for trial Crime: Homicide
Process: Jury trial; John Kehler Sheriff, and twelve jurors
Judge: William M. Slaughter, Chief Judge; John W. Kerr and C. P. Marion Associate Judges Prosecution: W. M. McClure Defense: K G. Wyatt
Outcome: Convicted; executed by hanging
On June 12, 1860, at a camp about six miles south of Denver, Marcus Gredler struck Jacob Roeder with an ax, almost severing Roeders head from his body. Gredler fired a couple of pistol shots into the air and explained when the others came that Roeder had shot at him and he had been forced to kill him in self-defense. Gredler then buried the body in a shallow grave and induced the others not to give any alarm. But suspicion developed and the party was induced to return to Denver. On the way, Gredler dug up Roeders body and took it with them. His trial was held June 14. The jury found Gredler guilty and sentenced him to be hanged. The finding and the sentence were both approved and confirmed by the people. Gredler confessed on the scaffold. He claimed Roeder beat his wife and child, and Roeders wife had agreed to testify to that effect if he killed her husband. The wife denied it.309
308 Rocky Mountain News, May 9, 1860.
309 Louise, Barry, ed. Albert D. Richardsons Letters on the Pikes Peak Gold Region: Written to the Editor of the Lawrence Republican, May 22-August 25, 1860, Kansas Historical Quarterly 12 no. 1 (February 1943) 29;Williams, Peoples Courts of Denver, 295-6; Rocky Mountain News, June 20, 1860; Thomas Wildman had become very jaded by this time, writing There is nothing very exciting going on in Denver... .We had another hanging affair in town. Hafen, Wildman Letters, 260.
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June 13,1860 Herding Stabs Otto
Location: Denver Crime: stabbing Process:
Judge:
Prosecution:
Defense:
Outcome: Fled
310
Frank Herding stabbed Otto over a pipe taken without permission. Herding fled.
June 20,1860 Hadley Killed Card
Location: East of Denver Crime: Homicide Process: Jury trial; 12 jurors.
Judges: William Person, George Wynkoop, and A. B. Babcock Prosecution: John L. Sherman Defense: H. R. Hunt and G. W. Purkins.
Outcome: Found guilty, sentenced to hang but escaped
On June 20, 1860, a train of freight wagons went into camp three and a half or four miles down the Platte. In corralling the wagons, one of the drivers, J. B. Card, drove his wagon on the wrong side of the wagon in front of him. Another driver, William F. Hadley, cursed and abused Card. A scuffle ensued. Hadley first attacked Card with stock of whip and then stabbed him with a butcher knife. Card died the next day. People camping nearby, arrested Hadley and brought him to Denver for trial. There was contradictory evidence, especially about the character of the accused. Despite that, Hadley was found guilty and sentenced to be hanged. Two men were assigned to guard the condemned. The next morning he was gone. The men on guard reported that one of them went to sleep. About midnight someone came to the other and said: You take a nap while I watch the prisoner. The second guard took the nap, and awoke later to find the prisoner and his volunteer jailer gone. It was 310
310 Rocky Mountain News, June 20, 1860.
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311
rumored the guards had been bribed. One of those guards is mentioned again in connection
with the Gordon case in July.
July 1860 Swift Forged Deed
Location: Eureka Gulch Crime: Forgery Process:
Judge:
Prosecution:
Defense:
Outcome: Found guilty; exiled from Gulch
An attorney named Swift was found guilty of forging a deed. He was let off with
312
instructions to leave the gulch and not to return at the peril of his life.
July 4,1860
Good order prevailed throughout the city during the entire day and evening. We have heard rumors of two or three stabbings at night, but have been unable to trace any of the reports to a reliable foundation, and are inclined to discredit the whole of them. Altogether the day passed off creditably to all concerned, and in a manner which might be emulated by cities of greater age and loftier pretensions. The rejoicings were not boisterous, and the balls, of which there were several in the evening, the same admirable harmony and good feeling
313
and order prevailed.
July 4,1860 Ennis shot Teef
Location: Three miles East of Denver
Crime: Assault
Process:
Judge:
Prosecution: 311 312 313
311 Richardson listed the murders name as Hawley, but most have it as Hadley. Barry, Albert D. Richardsons Letters, 33-4; Rocky Mountain News, June 27, 1860; Williams, Peoples Courts of Denver, 297-8.
312 Western Mountaineer, July 5, 1860.
313 Rocky Mountain News, July 11, 1860.
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Defense:
Outcome: Escaped
A fight broke out between John Teef and B. Rice. A friend of Rices, James Ennis, placed the muzzle of his gun to Teef s neck and fired. An attempt was made to arrest Ennis, but other gamblers drew their revolvers. While Ennis was leaving the race course, he was arrested by George Wynkoop, but the gamblers rescued him, furnished him with a mule, and started him out of the country. Teef recovered. Ennis was described a gambler from Camp Floyd and newspaper accounts said citizens were suggesting the formation of a vigilance committee to deal with the Camp Floyd desperadoes.314 315
July 4, 1860 is the first date that I saw any mention of the Camp Floyd invaders. Camp Floyd was military base in Utah Territory that was being closed down. The soldiers were transferring to Fort Garland in New Mexico (soon to be part of Colorado). Perhaps Camp Floyd kicked out its riffraff before the camp closed and they thought they would settle in Denver. Denver citizens did not give them a warm welcome. From the descriptions it sounds like these men were professional gamblers rather than soldiers. See the following case for the behavior of the Camp Floyd soldiers. Ennis and others associated with him were involved with a number of other crimes during the summer of 1860.
July 1860 was certainly the bloodiest month in Denver up to that time and it made an impression on the diarists. Molly Dorsey Sanford wrote on July 23, 1860 that This has been a day of horrors. There has [sic] been four men killed in saloons. There is talk of a vigilance
315
committee. There is too much lawlessness going on, so many saloons and dens of vice.
314 Barry, Albert D. Richardsons Letters, 38; Rocky Mountain News, July 11, 1860; Western Mountaineer July 12, 1860.
315 Mollie: The Journal ofMollie Dorsey Sanford in Nebraska and Colorado Territories 1857-1866, (Lincoln: University of Nebraska Press 1959).
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July 1860 Camp Floyd Soldiers Run Wild
Location: Denver
Crime: Theft; Drunk and disorderly Process:
Judge:
Prosecution:
Defense:
Outcome: Escaped
A regiment of United States troops under command of Colonel Morrison passed
through Denver en route to Fort Garland, New Mexico in July 1860. They came from Camp
Floyd in Utah Territory, which was being abandoned. The regiment camped on Cherry Creek
about five miles from town. Soldiers became drunk and started fights in Denver. Before they
left some of the soldiers stole $175 in cash, three gold watches, and $200 worth of jewelry
from Acheys Saloon. On overtaking the regiment, Achey found the thieves had deserted
taking eighteen horses with them. Twenty dragoons had gone in pursuit.316 317
July 12,1860 Harrison Killed Stark
Location: Denver Crime: Homicide Process: Trial Judge:
Prosecution:
Defense:
Outcome: Acquitted 2 different reasons from different sources
On July 12, someone accused an opponent at a gambling table of playing a foul hand. Stark, who was standing by, said it was a damned lie. Charley Harrison replied to Stark and more words were exchanged until Harrison drew his revolver and shot Stark three times. At least thats how it was reported in the Rocky Mountain News. Some people
316 Barry, Albert D. Richardsons Letters, 41-2; Western Mountaineer, July 19, 1860.
317 Rocky Mountain News, July 18, 1860,
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318
claimed that Harrison shot Stark unintentionally when he was aiming at someone else.
Others said it was self-defense. The Rocky Mountain News demanded justice and claimed that Harrison even if justified in the first act, is unfit to live in, and unsafe member of a civilized community. This criticism was to have repercussions for Byers and the entire
320
community discussed in the following case.
On August 1, 1860, thq Rocky Mountain News retracted its earlier accusation. After having spoken to two witnesses of the encounter between Harrison and Stark, Judge Wagoner, and a Mr S, the News determined Stark was the first to attack with a knife and
321
Stark continued his attack until Harrison knock the knife from his hand with his pistol.
Some people believed Harrison was the leader of a gang of criminals operating in
Denver. The evidence is not clear. In any case, he was acquitted of shooting Stark.
July 18,1860 Gordon Shoots ONeil
Location: Denver Crime: Homicide
Process: No efforts made until he killed Gantz five days later Prosecution:
Defense:
Outcome: Executed by hanging for killing Gantz
James Gordon occasionally went on drunken sprees of violence. His last one occurred in July 1860. On July 18, he shot a bartender Frank ONeil and when ONeil attempted to crawl away, Gordon stooped down and fired upon him again. (ONeil recovered.) Gordon fired his pistol wildly at several people. 318 319 320 321
318 Kraft, Wynkoop, 42.
319 Hall, History of Colorado, Vol. 3, 236.
320 Rocky Mountain News, July 25, 1860.
321 Rocky Mountain News, August 1, 1860
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July 21,1860 Attack on Rocky Mountain News
Location: Denver
Crime: Kidnapping; threats; assault
Process: Jury trial;
Judge: A. C. Hunt Prosecution: Hiram P. Bennet Defense: A. C. Ford Outcome:
The Rocky Mountain News had vigorously condemned Charlie Harrisons killing of Stark. After that criticism, Harrison visited the News office and discussed the matter with editor William Byers, claiming he killed Stark in self-defense. They agreed to drop the subject. However, Carl Wood was not satisfied. Wood, George Steele, James Ennis, and John Rucker entered the offices of the Rocky Mountain News with their revolvers in their hands. Wood seized William Byers by the collar and insisted that he should accompany them to the Criterion saloon to speak to Charlie Harrison. Byers agreed. When they arrived at the saloon, Harrison corroborated that all was settled between himself and the editor. While Wood and his friends were drinking, Harrison helped Byers escape through a back door and accompanied him to the News office, where the employees had armed themselves and
322
preparing for a siege.
When the four kidnappers learned Byers had fled, they remounted their horses and returned to the News building. Wood pointed a double-barreled shotgun at the front door and said he would shoot Byers if he tried to leave. Steele rode around in back of the building and discharged two shots into it. Half a dozen armed citizens on horseback reached the scene and repelled the attack. The citizens pursued the gunmen. Steele crossed Cherry Creek into West 322
322 Rocky Mountain News, August l, 1860; Barry, AlbertD. Richardsons Letters, 50-51; A. D. Richardson From the Pikes Peak Gold Region, New York Daily Tribune, August 14, 1860 in Hall, History of Colorado, Vol. 3, 241-242; Alice Polk Hill, Pioneers in Picture and Story, (Denver: Brock-Haffner Press 1915) 79-81.
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Denver or Auraria, but was intercepted before he could cross the bridge over the Platte. He turned and rode back into East Denver. While riding at a rapid gallop along Blake Street, near the corner of G, he was met by Thomas Pollock, the marshal of the vigilance committee.
323
Pollock fired on Steele with a shotgun. Steele fell from his horse and died two hours later.
Ennis made his escape. Rucker was arrested. Wood was surrounded on F street and surrendered. In the evening nearly two thousand people attended a mass meeting. Byers told his account and speeches were made by Dr. Casto, Judge Purkins, Hiram P. Bennett and others strongly advocating the preservation of law and order. The meeting unanimously adopted a resolution indorsing Pollocks action in shooting Steele.
Albert D. Richardson wrote that Woods trial took three days and the jury decided that Carl Wood should be banished from the country on pain of death if he returned. Richardson claimed that the trial was organized by the vigilance committee; but the jurors
324
were selected without regard to their connection with that organization.
Frank Hall told a different version of the trial than Richardson. Hall said that the jury hung at eleven to one for conviction with no chance of resolution. So the case was referred to the people assembled who decided to banish him. Ennis was still at large. Rucker was also allowed to leave region. Hall wrote that the community felt great indignation.
Undoubtedly, William Byers was indignant. Nevertheless, it was his rivals at the Western Mountaineer (possibly Albert D. Richardson or George West) in Golden, who wrote that the trial was not the action of the people and claimed that the reputable and peace-loving citizens were quietly at home.. .under the impression that the Vigilance Committee 323 324 325
323 Barry, Albert D. Richardsons Letters, 50-52; Rocky Mountain News, August 1, 1860.
324 Barry, Albert D. Richardsons Letters, 50-52.
325 Rocky Mountain News, August 1, 1860; Hall, History of Colorado, Vol. 3, 242-3; Barry, Albert D. Richardsons Letters, 50-52.
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had taken the matter in charge, and would conduct it to a just and proper termination. The
Mountaineer went on to assert that when the vote was cast to release Wood the assembly
was largely composed of his friends. Thq Mountaineer made additional accusations against
the prosecuting attorney and, in general, blamed the outcome on there being too many
lawyers involved.326 327 328
July 22,1860 Bates killed Hadley
Location: Denver Crime: Homicide
Process: Vigilance Committee Hearing Judge:
Prosecution:
Defense:
Outcome: Not guilty, but censurable for the careless use of fire-arms
Bill Bates shot M. F. Hadley, the well-known auctioneer, at Cannons saloon on Blake Street. Hadley and Bates had been talking in jest when suddenly Bates drew a pistol from beneath the counter and pointed it at Hadley. The gun went off. Immediately afterwards Bates, the bartender at that saloon, said he did not mean to do it and did not know the pistol was loaded. Bates was arrested and a committee was appointed to investigate. The committee examined Bates. Witnesses testified that he had not intended the crime. The jury
328
found Bates Not guilty, but censurable for the careless use of fire-arms.
July 23,1860 Gordon killed Gantz
Location: Denver; escaped to Kansas; captured in Kansas Crime: Homicide
Process: taken to KS for trial; Kansas Judge Pettit refused jurisdiction; return to Denver for trial;
Judge: A. C. Hunt Chief judge with William Larimer, Jr., and William Person Associate Prosecution: Hiram P. Bennett, James T. Coleman, and Jacob Downing
326 Western Mountaineer, August 9, 1860
327 Rocky Mountain News, July 25, 1860.
328 Western Mountaineer, July 26, 1860.
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Defense: J. H. Sherman, Ham. R. Hunt, S. W. Waggoner, W. P. McClure and John C. Moore Outcome: Convicted; executed by hanging
Gordon encountered Jacob Gantz at a saloon, lifted his glass, and threw the whisky in Gantzs face. Then Gordon struck him with his fist knocking him down. Gantz recovered and ran for the door. Gordon caught him, dragged him back, and knocked him down again. Gordon beat Gantz about the head and face, and while holding Gantz by the hair with his left hand placed his pistol on the top of his victims head, and attempted to fire. The pistol
329
snapped four times, and the fifth attempt went off killing Gantz instantly. Gordon fled.
Word was received that Gordon had headed in the direction of Fort Lupton. An armed posse started after him. When they arrived at the fort they heard Gordon was inside. They surround the fort and sent a messenger to Denver for reinforcements. But before reinforcements arrived the gates of the fort flew open and Gordon dashed out on a fast horse. Shots were fired after him and three members of the posse pursued on horseback. After chasing Gordon for ten miles, Babcock came within shooting distance and fired, disabling Gordons horse. Gordon continued on foot but Babcocks horse was also spent. Another party with fresh horses kept on the trail for some distance, but were unable to catch him. Weeks passed before he was heard from again. The Western Mountaineer complained about Schlegael, one of the guards who allowed Hadley to escape back in June (and was
331
possibly bribed to do so) was inserting himself into the search for Gordon.
William H. Middaugh, deputy sheriff of Arapahoe County, set off from Denver, and finally captured Gordon at Humboldt. Kansas authorities would not allow Middaugh to return Gordon to Denver for trial. John Pettit, the chief justice of the territory of Kansas for 329 330 331
329 Rocky Mountain News, July 25, 1860.
330 Rocky Mountain News, July 25, 1860; Hall, History of Colorado, Vol. 3, 237-8.
331 Western Mountaineer, July 26, 1860.
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the first judicial district set the date for a preliminary hearing and Middaugh returned to Denver to collect witnesses for the hearing. At the hearing, the people from Denver were surprised when Judge Pettit declared the first question he had to answer whether he had jurisdiction over the place where the offense occurred. All the witnesses for both sides, asserted that the crime had occurred in Denver, Arapahoe County, Kansas Territory with one exception. That exception was Frederick Haun, who had assisted with the survey of the far western part of the boundary line between Kansas and Nebraska. He stated that Denver, where the crime occurred, was in Montana County, according to the boundary lines established in 1859 by the Kansas legislature. Pettit agreed with Haun said he had no jurisdiction in Montana County. Pettit further ruled that as far as he could determine Denver was not assigned to any judicial district and thus no court in Kansas had jurisdiction over
332
crimes committed in Denver.
The victim, Gantz, had been from Leavenworth and the people there were unhappy with the result. A mob assembled outside the courtroom and tried to seize Gordon. The angry crowd was armed with muskets, revolvers and knives, and yelled, Hang him! Leavenworth Mayor McDowell delivered several speeches urging obedience to the law. The mob failed to take Gordon from Middaugh and his other guards. The authorities put Gordon in jail for his
333
safety and the mayor of Leavenworth agreed to turn Gordon over to Sheriff Middaugh.
When Middaugh returned to Denver with Gordon a Peoples Court was assembled, and tried Gordon. There was some dispute about the first set of judges chosen to try the case. Hiram P. Bennet refused to prosecute with those judges. They resigned, new judges were 332 333
332 Gower, Kansas Territory, 307-8.
333 Leavenworth Daily Times, September 18, 1880; Gower, Kansas Territory, 308; Hall, History of Colorado, Vol. 3, 239-240.
153


chosen, and the prosecutors accepted the case. At the end of the trial, the jury found Gordon guilty. After the verdict, some people connected with the Herald were circulating petitions for a reprieve and rumors spread of an escape plan. But Gordon was kept under heavy guard and was hanged on October 6, 1860. Unfortunately, the execution of Gordon was not the final chapter. Several years later, a friend of Gordons who had sworn to avenge him killed
335
Middaugh in an ambush near Julesburg.
July 28,1860 Men Accused of Aiding Gordons Escape
Location: Denver Crime: Aiding a Fugitive Process:
Judge:
Prosecution:
Defense:
Outcome:
A. J. Williams, President of the Denver City Town Company, and Dr. Kennedy, of
Denver, were arrested at Fort Lupton for assisting Gordon to escape. They were old friends
of Gordons.334 335 336 Sheriff Middaugh also arrested James Latta and a Mr. Hewett for helping
Gordon escape. It was not clear from the records if any of them were tried or punished.
July 28,1860 Dunn Arrested for Horse Stealing
Location: Colorado City Crime: Theft Process:
Judge:
Prosecution:
Defense:
Outcome: Whipped and banished
A party pursuing James Gordon discovered and gave chase to three suspicious
334 Gower, Kansas Territory, 309; Rocky Mountain News, September 25, 27 29, October 1, 3, 5, 6 15, 1860.
335 Hall, History of Colorado, Vol. 3, 241; Rocky Mountain News, Oct. 10, 1860.
336 New York Tribune, August 1, 1860.
331 Rocky Mountain News, Sept 12, 1860.
154


looking persons near the South Platte River twelve miles downstream from Denver. Samuel K. Dunn was captured, another escaped, and the third drowned trying to cross the river. Dunn was immediately brought back to the city and placed under guard. He said his comrades were Jesse Ogden and Frank Mulligan (who drowned). Dunn was tried and sentenced to receive twenty-five lashes and ordered to leave the country within twenty-four hours. When the whipping was administered, Dunn fell nearly senseless and the remainder of the punishment
338
was remitted. He left Denver on a wagon train.
July 29,1860 Ennis shot John Park
Location: Colorado City Crime: Shooting Process:
Judge:
Prosecution:
Defense:
Outcome:
James Ennis shot John Park through the neck at a card table in Colorado City. (Ennis also shot Teef in Denver earlier in July and was involved in the attack on the Rocky
339
Mountain News office.)
July 29,1860 Horse Thief
Location: Colorado City Crime: Shooting Process:
Judge:
Prosecution:
Defense:
Outcome:
A Mexican thief stole two horses and was executed.338 339 340
338 Rocky Mountain News, July 25 and August 1, 1860; Western Mountaineer, July 26, 1860.
339 Western Mountaineer, August 2, 1860.
340 Western Mountaineer, August 2, 1860; Barry, Albert D. Richardsons Letters, 48-9.
155


July 1860 Man Shot
Location: Denver Crime: Shooting Process:
Judge:
Prosecution:
Defense:
Outcome:
A person of color shot another five times. The victim recovered.341 July 1860 Merk killed Eads Location: Denver
Crime: John Merk shot Charles H. Eads Process:
Prosecution:
Defense:
Outcome:
Charles H. Eads had been subject to bouts of insanity. He wandered about the streets half-naked knocking into people he met. He was caught and taken to the hospital from which he escaped. He went a tin shop and then through the back door where Eads hit Merk on the head with a large stone. After Merk recovered from the blow, he seized a pistol, and fired at Eads as he was approaching a tent that was occupied by a woman who cooked for the owner of the shop.342
July 1860 German stole twenty-five dollars
Location: Clear Creek Diggings, Golden City
Crime: Theft
Process:
Judge:
Prosecution:
Defense:
Outcome:
341 Barry, Albert D. Richardsons Letters, 42-3.
342 Rocky Mountain News, August 1, 1860, Barry, Albert D. Richardsons Letters, 48-9.
156


A man was found guilty of stealing twenty-five dollars. The mining district judges administered twelve lashes. Then they gave him $4.80 because he was in ill health and out of
343
money. They instructed him to leave the gulch.
July 1860 Smith Domestic Abuse
Location: Denver
Crime: Smith abused and neglected wife and children; Homicide Process:
Prosecution:
Defense:
Outcome:
Smith abused his wife and three children. They left him and started for Denver under
the protection of two men they had met. Smith followed. When the men were searching for
their horses, Smith fired a shotgun and his wife and children, wounding his wife in the hip.
He tried to shoot one of the men but the man shot first and killed Smith.343 344
July 1860 Laughlin shot Devlin
Location: Denver Crime: Homicide Process:
Prosecution:
Defense:
Outcome:
Jim Laughlin shot Pat Devlin (or Develyn) who died of his wounds a few days later.
Their quarrel started over claim. A jury of the citizens reviewed the case and acquitted
Laughlin as acting in self-defense.345
Aug 29,1860 Clark Killed Huff
Location: Golden City Crime: Homicide
343 Barry, Albert D. Richardsons Letters, 41.
344 Barry, Albert D. Richardsons Letters, 44.
345 Western Mountaineer, August 2, 1860; Barry, Albert D. Richardsons Letters, 36, 44-5, 54.
157


Process:
Judge:
Prosecution:
Defense:
Outcome:
It began with a dispute over water rights. A miners meeting was called to settle the
dispute, but after the meeting, Huff and Clark quarreled again. Huff assaulted Clark,
throwing him to the ground and holding him down. They rose and then Huff again fell and
died with a knife wound in the heart. Clark was immediately arrested, tried, convicted of
manslaughter in the third degree and banished from the district.346 347
Aug 30,1860 Horse Thieves
Location: Denver Crime: Horse thieves Process:
Judge:
Prosecution:
Defense:
Outcome:
Bradleys ranch was robbed of twenty-five head of horses and mules. He started out in search of them with a party of eight men and returned this morning with no results other
347
than finding some of the horses dead.
Sept 1,1860 McCleary and Brainard Assault Irwin
Location: Golden City
Crime: Assault with Intent to Kill
Process:
Judge: W.T. McWhirt Prosecution: J.N. Odell Defense:
Outcome:
Citizens of Golden City formed a court to try C. A. McCleary and T. C. Brainard for
346 Western Mountaineer, Sept 13, 1860.
347 Western Mountaineer, Sept 6, 1860
158


an assault upon J. B. P. Irwin with intent to kill. The trial was conducted in an orderly and
348
satisfactory manner but resulted in a hung jury. Prisoners were released.
Sept 4,1860 John Shear hanged
Location: Denver Crime: Man Hanged Process:
Judge:
Prosecution:
Defense: J. F. Kirby Outcome:
On September 4, 1860 a body was found hanging from a tree about a mile up the
Platte on the east side. It was recognized as John Shear. Fastened to it was a piece of paper
that said: The man was hung. It was proven that he was a horse thief. The body was cut
down. Sheriff Middaugh assembled a coroners jury and held an inquest.348 349
Shear had been tried for theft in Denver upon his arrival in April 1859. At various
times after that he was implicated in horse and cattle stealing, but not prosecuted. A
confession from a horse-thief named Shear as one of the leaders of a gang horse thieves
along with James Gordon and A. C. Ford. Some said that the gang had more than fifty
members and some were prominent men in Denver.350
Sept 1,1860 More Horse Thieves
Location: Denver Crime: Horses Stolen Process:
Judge:
Prosecution:
Defense: J. F. Kirby Outcome:
348 Western Mountaineer, Sept 6, 1860.
349 Rocky Mountain News, Sept 4, 1860.
350 Rocky Mountain News, Sept 5, 12, 1860; Western Mountaineer, Sept 13, 1860.
159


A man with four stolen horses in his possession was caught a few miles away from Denver but he escaped and came to Denver. About noon he stole a horse on Blake street, and headed out of town. Sheriffs Harrison and Snider pursued him and he was caught at Hendersons ranch and brought back to Denver. Two men who stole the famous Black span of S. O. Hemenway were also taken into custody. Mr. Johnson of Mountain City caught one horse thief and sent him back to Mountain City. Mr Cochran also had a valuable horse
352
stolen from his ranch nine miles up the river.
Sept 4,1860 A. C. Ford Murdered?
Location: Six miles from Denver Crime: 1 man kidnapped and killed Process:
Prosecution:
Defense:
Outcome:
A group of masked men on horseback stopped a coach heading east from Denver and removed Auraria attorney A. C. Ford. Some sources claimed Ford was his way to testify in Lawrence on Gordons behalf.351 352 353 354 355 However, Richard Sopris wrote that Ford was the head of an organization of horse and cattle thieves, and tried to leave town when he realized a vigilance committee was on his trail. After Ford disappeared, the Rocky Mountain News wrote that recent developments pointed to Mr. Ford as the president of the horse thief gang.356 It is also interesting to note that A. C. Ford was one of a number of attorneys who jointly took out an advertisement in the News stating that they were going to close their
351 Western Mountaineer, Sept 6, 1860.
352 Rocky Mountain News, Sept 12, 1860.
353 Santa Fe Gazette, Nov 18, 1860.
354 Gower, Kansas Territory, 307-8; Santa Fe Gazette, Nov 18, 1860.
355 Richard Sopris, Fifty Years Ago, Trail, 1 no. 11 (April 1909): 5; Gower, Kansas Territory, 307-8.
356 Rocky Mountain News, Sept 5, 1860.
160


357
offices in Denver at the end of August due to the unsettled jurisdictional issues.
According to an article in the Santa Fe Gazette, Ford was taken a few miles away from the usual road and shot. When his body was found it was riddled with buckshot and one large caliber bullet and pinned to his coat was a slip of paper with the words: Executed by the Vigilance Committee.357 358 359
The Santa Fe Gazette claimed that Ford bore a very fair character in Council Bluffs, Iowa. However, Iowa records say otherwise. Coles history of the Iowa legal profession describes Ford as a shrewd, keen, successful jury lawyer, but also as a man who was in the habit of telling very strange things and was the best liar in town. Will L. Clark tells a story about how the 1857 spring term of a district court in Iowa was never held because the judge instead repaired to the saloon with A. C. Ford, of Council Bluffs... spent the time allotted for the term, in giving the infant city a crimson tint. Other less reliable sources connect Ford with various political intrigues and fraud schemes in Iowa.360
I am not convinced that Ford did not fake his own death. While there are accounts by anonymous persons of finding his body, the body was reported to have been buried on the plains in a grave known to but a few, and not brought back to Denver. It was identified by Fords watch, a classic plot device of someone who wanted to disappear. Ford also wrote a will before leaving everything to his girlfriend, Sarah Jane Vailles, even though he supposedly had a wife elsewhere.361 Cole had lived in California before moving to Iowa.362
357 Rocky Mountain News, Sept 4, 1860.-
358 Santa Fe Gazette, Nov 18, 1860; Rocky Mountain News, Sept 12, 1860.
359 Chester C. Cole, The Court and Legal Profession of Iowa, VolII, Chicago: H. C. Cooper, Jr., & Co. 1907, 944-5.
360 Will Leach Clark, History of the Counties of Woodbury and Plymouth, Iowa, (Chicago: A Warner &
CO.,1890-91) 133-5
361 Western Mountaineer, Sept 13, 1860.
362 Cole states that A. C. Ford came to Iowa from California about 1850 where he had been a blacksmith by
161


The 1860 Census for Indian Valley Township 5, Sierra, California, lists an A C Ford living in a rooming house with a Sarah Ford. Is this a coincidence? The Denver census taken on July 27, 1860 shows A C Ford living there. The Indian Valley was taken August 24, 1860. Ford had already announced his attention to leave Denver at the end of August. He could have already rented rooms in Indian Valley and installed Sarah there. She may have answered the census taker or the landlord might have. There are more questions than answers about Fords exit from Denver.363
Sept 10,1860 Linscott and Lammon Arrested for Horse Stealing
Location: Golden City Crime: Horse Stealing Process:
Prosecution:
Defense: J. F. Kirby Outcome:
Linscott and Lammon were arrested near Ralstons Creek on the charge of horse stealing. The prosecution attempted to present the confession of one of them, but the court ruled the confession was not voluntary, and thus not admissible as evidence. The jurymen were unable to agree upon a verdict, ten wanted to acquittal and two were for conviction. The meeting voted to release them.364
Sept 25,1860 McCleary and Son Assault August Ingleman
Location: Golden City
Crime: Assault with Intent to Kill
Process:
Judge:
Prosecution:
Defense:
trade, but by his own efforts acquired some general legal education. Cole, Legal Profession of Iowa, 944.
363 1860 U.S. Census California and Kansas Territory. I believe an entire book could be written about Ford.
364 Western Mountaineer, Sept 13, 1860.
162


Outcome:
D. McCleery and son were tried by the citizens of Golden City on the charge of assaulting August Ingleman with intent to kill. The jury failed to agree and McCleary and his son were released.365
Oct 1860 Jefferson Convention Unrest
Location: Denver
Crime: Disturbing the Peace
Process:
Judge:
Prosecution:
Defense:
Outcome:
The influx of people into Denver for the Jefferson Territory Convention resulted in
some of our usually quiet citizens to indulge in a little amusement in the way of shooting.
A bottle was broken. No other damage. Fist fight broke out between delegates Dr. B. P.
Rankin and Judge H. P. A. Smith.366
Oct 1860 Patrick Dwyer Arrested on Kansas Writ
Location: Golden City Crime: Homicide?
Process:
Judge:
Prosecution:
Defense:
Outcome:
Patrick Dwyer was arrested in Golden under a writ from Breckinridge County, K.T. A meeting of the people determined that the inquest in Breckinridge County had determined the death was accidental and thus the writ was flawed. The meeting let him go. The meeting also said Eastern Kansas had no jurisdiction over our criminals and consequently we have none
365 Western Mountaineer, Sept 27, 1860.
366 Rocky Mountain News, Oct. 10, 1860.
163


u 55 367
over hers.
Oct 1860 Clear Creek Miners Destroy Nevada Gulch Ditch
Location: Denver
Crime: Disturbing the Peace
Process:
Judge:
Prosecution:
Defense:
Outcome:
Armed posse of Clear Creek miners destroyed the Nevada Gulch ditch. Afterwards
368
miners held meeting to outlaw damaging the ditch.
Oct 1860 Dispute between Black Hawk Mill and Consolidated Ditch Co.
Location: Black Hawk/Central City Crime:
Process:
Judge:
Prosecution:
Defense:
Outcome:
Nevard, Illinois, Central, Russell, and Eureka Districts held a Miners Meeting to
object to an injunction served upon Consolidated Ditch Company by the sheriff of Arapahoe
County on behalf of the Black Hawk Mill Co. A committee of five was appointed to draft
resolutions to respond.367 368 369
Oct 1860 Simpson Arrested for Stealing
Location: Denver Crime: Theft
Process: Citizens Meeting Judge:
Prosecution:
Defense:
367 Western Mountaineer, Oct 18,1860,
368 Western Mountaineer, Oct 18,1860,
369 Western Mountaineer, Oct 17 and 18, 1860.
164


Outcome: Sentenced to 21 lashes and banishment
Simpson was arrested for stealing a sack of coffee, a sack of flour, four cans peaches, a jar of pickles, a sack of dried apples, two sides of bacon, a gun, and a lot of bedding. Prisoner pled guilty, but said he was drunk. He was sentenced to 21 lashes and banishment.370
Nov 1860 McClure threatened Goldrick
Location: Denver
Crime: Man threatened at gunpoint
Process: Trial before judge
Judge: Judge Downing
Prosecution:
Defense:
Outcome: Required to post $2000 bond for a year
McClure saw a less-than-flattering story about himself in the St. Louis Democrat written by Observer, a pseudonym O. J. Goldrick used. At gunpoint McClure demanded and obtained a signed retraction of the false and slanderous words. Goldrick complained and McClure was arrested. McClure was taken before Judge Downing of Denvers municipal court. McClure said that he did not recognize Denvers municipal government and would not be tried. He walked out the door. He was arrested again that night, tried, found guilty, and ordered to pay a $2000 bond to guarantee he would not disrupt the peace for one year. McClure refused to pay the bond. Downing ordered him confined in the C.A. Cook & Co. building.
Shortly before 1 a. m. the next morning, Charlie Harrison, Edward Wynkoop, and twenty other men stormed the building and overwhelmed the guards. After he was freed, McClure barricaded himself in the post office. City Marshal James Shaffer led 50 [or 200]
370 Western Mountaineer, Nov 1, 1860.
165


men to post office. After some mediation and misdirection by Wynkoop, McClure finally appeared at Judge Downings office and paid the bond. Wynkoop later insisted that as county sheriff, he merely had assumed the custody of the prisoner, which does not excuse for his
371
behavior.
Nov 30,1860 Waters killed Freeman
Location: Six miles from Denver Crime: 1 man kidnapped and killed Process:
Judges: William Person, General Marshall, and E. H. Hart Prosecution: H. P. Bennet, J. Bright Smith, and General L. L. Bowen Defense: C. P. Happ and C. C. Carpenter Outcome:
Some accounts list the date of this murder as November 30 and others as December 7. They all agree that Freemans bloody wagon was brought to Denver on December 10 by M. C. Fishers freight train. When the wagon was recognized belonging to Freeman, the primary suspect was Patrick Waters, a man who worked for Freeman. Ned Wynkoop appointed W. T. Shortridge deputy sheriff and sent him to track down Waters. Shortridge tracked him to Cottonwood Springs, Nebraska Territory. Waters had Freemans rifle and horse in his possession. Shortridge brought Waters back to Denver.
The A. F. & A Masons met on December 16 and appointed members Wynkoop, Byers, Pollard, Thomas, and Wanless to locate Freemans body and return it to Denver for proper burial. According to Isem, the Masons voted not to hinder Waters defense. The group took Waters with them to find the body. Waters refused to cooperate. They threatened him with hanging right there, even putting a rope around his neck. Waters confessed but claimed it was an accident. Then he showed Wynkoop where he hid the body. A Peoples 371
371 Kraft, Wynkoop, 41-2, 45; Isem, Wynkoop, 5; Hafen, Wildman Letters, 266.
166


Court was organized on December 19 and Waters was tried and convicted. He was hanged on December 21.372 373
Dec. 1860 Cochrane Attacks Goff
Location: Denver
Crime: Man struck in head with pistol; Friends argue with perpetrator Process:
Prosecution:
Defense:
Outcome:
On the afternoon of Sunday, December 2, 1860, Wynkoop was at the Criterion, when he and Harrison learned that another of Harrisons employees, Andy Goff, had been struck in the head with a revolver by James Cochrane and lay close to death. They immediately set out to find Cochrane. As soon as they did, they began cursing at him. Their anger built until they yanked out their pistols, but they managed not to lose control or fire a shot. The incident
373
ended without bloodshed.
Dec. 2,1860 Harrison shoots Hill
Location: Denver
Crime: Man argues with several men in bar; Fights with owner and is shot
Process: Tried by Denver court
Prosecution:
Defense:
Outcome: Hung jury
On December 2, 1860, James Hill entered the Criterion Saloon. He was drunk and continued an argument with Edward Wynkoop that had started earlier in the day. Both men drew their pistols. Charlie Harrison and, O. B. Thomas, another bartender, interceded and told Wynkoop to move to the other end of the bar. Thomas asked Hill if he wanted to go
372 Isem, Wynkoop, 3-5; Kraft, Wynkoop, 53-5; Rocky Mountain News, Dec 26, 1860 Kania and Hartman, Bench and Bar 20; Williams, Peoples Courts of Denver, 300-302.
373 Kraft, Wynkoop, 51.
167


outside to talk. Hill called him an S. 0. B. Harrison told him no one insulted his bartenders.
Hill reached for his revolver but Harrison jammed his finger between the trigger and the guard. At the same time, he drew his own revolver with the other hand and fired four times hitting Hill twice. Hill died the next morning. Charlie Harrisons trial began on December 4 and but ended the next day in a hung jury, 10 for acquittal and 2 for conviction. Smiley wrote that Harrison left Denver a short time after he killed Hill and joined Sterling Prices army
374
organizing in Arkansas for the confederacy and was killed.
Dec 14,1860 Kelly v. Doyle
Location: Denver Crime: Homicide Process: Trial by jury Prosecution:
Defense:
Outcome:
On December 14th Patrick Kelley killed Richard Doyle, his partner in the Club House over a business dispute. Kelley was tried for murder in a Jefferson Territory Court. He argued that if he had committed the crime it was not murder, but manslaughter at the most. The Court instructed the jury that the law of the territory only conferred jurisdiction on the court in cases of murder. The jury returned a verdict of not guilty as charged in the indictment and Kelley was released. The Rocky Mountain News objected to this outcome and insisted that they should return to the exclusive use of Peoples Courts.374 375 376
Feb 2,1861 Homicide or Hoax?
Location: Nevada City (Nevada Gulch Mining District)
374 Rocky Mountain News, December 5, 1860; Kraft, Wynkoop, 51-2; Smiley, History of Denver, 349; Noel, The City and the Saloon: Denver 1858-1916, (Lincoln, NE: University of Nebraska Press, 1982): 22, 24, 26.
375 Smiley, History of Denver, 349; Hafen, Wildman Letters, 271 note 28.
376 Rocky Mountain News, Dec 26, 1860.
168


Crime: Homicide?
Process:
Judges:
Prosecution:
Defense:
Outcome:
Two men and two women were seen together on the streets at night. Then a fight
broke out between the men, shots were fired, one of them fell, and the other escaped. The
women carried the fallen man off. Spectators were too afraid to pursue them in the dark. In
the morning, they found a pool of blood. The citizens were indignant. A miners meeting was
called and a committee of ten citizens were appointed to act as a Vigilant Committee to
investigate. Eventually the two females were traced to their hiding place and were found to
be a couple youngsters on a lark, and the pool of blood came from a butcher. While this
was not crime, I think the story demonstrates how seriously that the people took crime.
March 12,1861 Widgenstein shot bystander
Location: Denver Crime: Homicide Process:
Prosecution:
Defense:
Outcome:
Edward Wynkoop intervened in a fight in the St. Charles Saloon between Mark Buckskin Widgenstein and Thomas Evans. Evans attacked Widgenstein with a knife, Wynkoop struck Evans on the head with his revolver. The scuffle spilled into the street; Widgenstein seized a pistol, Wynkoop leaped aside, and Widgenstein fired, killing Edwin
378
Morris, a bystander. City Marshal James R. Shaffer arrived to arrest the fighters.
377 Rocky Mountain News, Feb 6, 1861.
378 Isem, Wynkoop, 3; Hafen, Wildman Letters, 279-80.
169



PAGE 1

MYTH OF THE WILD WEST: LAW AND JUSTICE PRIOR TO THE ORGANIZATION OF THE TERRITORY OF COLORADO by DARLENE A. CYPSER B.A., University Of Oklahoma, 1980 J.D., University Of Oklahoma, 1986 A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Master of Arts History Program 2017

PAGE 2

ii 2017 DARLENE A. CYPSER ALL RIGHTS RESERVED

PAGE 3

iii This thesis for the Master of Arts degree by Darlene A. Cypser has been approved for the History Program B y Thomas J. Noel Chair William Wagner Ryan Crewe Date: May 13, 2017

PAGE 4

iv Cypser, Darlene ( M.A. History Program) Myth of the Wild West: Law and Justice Prior to the Organization of the Territory of Colorado Thesis directed by Professor Thomas J. Noel ABSTRACT There is a persistent myth that in the nineteenth century the West, including Gold Rush Colorado, was lawless. A review the history of Colorado before 1861 demonstrates that this was not true. The Cheyenne, Arapahoe, Apache and Comanche had their legal traditions. Vestiges of Mexican law still controlled in southern Colorado and miners and town builders drafted laws to accommodate their needs. Despite challenges caused by influxes of criminals from outside, and the ineffectiveness of the Kansas government, the miners and settlers in Denver and other towns constructed their own legal systems which were equivalent to those of the States and had many elements in common with the legal systems of their Mexican American and Native American neighbors. The form and content of this abstract are approved. I recommend its publication. Approved: Thomas J. Noel

PAGE 5

v TABLE OF CONTENTS CHAPTER I. INTRODUCTION ........................................................................................................ 1 Methods of Study .................................................................................................... 2 Organiza tion ............................................................................................................ 4 Definitions ............................................................................................................... 5 Prejudicial Words .... 7 II. LAYERS OF SOVEREIGNTY AND JURISDICTION ............................................ 10 III. NATIVE AMERICA LAW WAYS .. ....................................................................... 12 Background ............................................................................................................ 12 Cheyenne .................................................................................................................14 Arapahoe .................................................................................................................19 Comanche ............................................................................................................... 21 Apa che .................................................................................................................... 24 IV. TRADERS, EXPLORERS AND MILITARY OUTPOSTS .26 V. LAW ON THE MEXICAN LAND GRANTS ...30 Background .30 Independent Mexico ...31 Mexican Land Grants in Colorado .....36 Mexican American War & Treaty of Guadeloupe Hidalgo .. .39 U. S. Territory of New Mexico ..41 Community Law and Order ....41 VI. LAW OF THE UNITED STATES ....45

PAGE 6

vi Kansas, Nebraska, Utah and New Mexico ..46 Arapahoe County, KT .....48 Jefferson Territory ......55 Town Companies ....60 Claim Clubs ........69 Laws of the Mining Districts ..70 People s Courts .. 82 VII. CRIME AND VIOLENCE ...... 84 VIII. CONCLUSION .. 91 BIBLIOGRAPHY 92 APPENDIX ..117

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1 CHAPTER I INTRODUCTION This country s planted thick with laws from coast to coast1 My focus is on the law and law enforcement in the area now encompassed by the State of Colorado from the ti me of the arrival of the Russell Party in 1858 to the organization of the Territory of Colorado. Understanding the legal environment of that time and place also requires understanding the existing legal structures in the Mexican land grants and other settlements in southern Colorado as well as the legal traditions of the natives who lived or hunted in the area and the agreements that they had with European and American traders at the time. The purpose of choosing this time period is to examine how people organized legal structures in Colorado before civilization came in the form of the official territorial structures. Another reason to choose this time period is to isolate the study from the changes caused by the Civi l War, including increasing conflicts with natives, and the societal changes after the war. While that might also b e an interesting study, it would not be possible to properly study that time period before understanding the earlier period. Unfortunately ma ny studies of violence in the West either ignore the antebellum period or group the entire second half of the ninet eenth century together. This paper examines intragroup or intra national laws, rather than the accommodation and adaptation of one group with another by either public or private intergroup or international law. Other historians have written about such thi ngs at the borders where different nations or social groups meet and interact. Here we are less concerned with 1 Robert Bolt, A Man for All Seasons act 1.

PAGE 8

2 borderlands or middle gr ounds than the mechanisms for social control within each group in defined slice of time and space. Like a geologist s sli ce through rock strata, much can be learned from examining cultural layers independently as well as in those zones where they meet. Social controls often deteriorate in a war zone, but the effect is not limited to that zone, or the time of active warfare. War also erodes social controls back home during the conflict and afterwards. The slice of time studied here was chosen as one where the impact of war is limited because it begins after the Mexican American War, ends at the beginning of the U.S. Civil War and sits between times of major conflicts with Indian nations. It was comparatively peaceful. Yet it is a time stamped with accusations of being lawlessness and violence The American West has a reputation of lawlessness.2 This is especially true of the Gold Rushes. Unfortunately, many historians further propagate that myth without examining it. Colorado historians have been guilty of this as well. My purpose is to investigate the state of law and justice within the geographical area now encompassed by th e State of Colorado at the time of the Colorado Gold Rush up until the Territory of Colorado was organized. Methods of S tudy I will review the laws that existed between 1858 and 1861 and how they were enforced. Unlike many previous studies that concentrated merely on the laws of the Americans who came west from the States at the time of the Gold Rush, I have also studied the la ws of Na tive Americans and Mexican Americans who were already present. 2 Mark Ellis has pointed out that m ore books have been published on western vigilance committees than on western courts, judges, and lawyers Mark R. Ellis, Law and Order in Buffalo Bills Country: Legal Culture and Community on the Great Plains 18671910 (Law in the American West), Lincoln: University of Nebraska Press, 2009 xv.

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3 Since there is very little contemporaneous written record of social customs by Natives, my exploration of Native American laws or law ways depends heavily on the work done by ethnographers lat e in the nineteenth and early twentieth centuries recording the memories and traditions of these nations. Some of the ethnographers, such as Hoebel, specifically examined how different Native American groups handled social problems like homicide, and studi ed what place personal property and what we call property crimes had in their culture. That work is also supplemented by the letters George Bent written late in life, observations of outsiders and the analysis of other scholars. The Mexican settlements th at persisted in what would become southern Colorado after the Treaty of Guadalupe Hidalgo left few records of local disputes or how they were resolved. Many historians have presumed that an alcalde and other officials were appointed by the territorial auth orities despite the distance from the seat of government and the short time period the settlements were in existence before the American invasion. There is no evidence that any such officials existed in most of the Mexican Land Grant settlement s between 1858 and 1861. Due to the distance, it is also unlikely that settlers depended on territorial officials to settle local disputes. Indications are that local disputes were more often resolve d by the patrn ( the owner or manager of the land grant ) when they lived in the community, a local priest, where there was one, or the local los hermano penitente association, especially in communities where all residents were members or associates of the association For this study, I used translations of Spani sh and Mexican laws, studies of the land grants and papers concerning them, studies of the Catholic Church in New Mexico, and studies of los hermano penitente which include some recollections of how the communities were operated at the time.

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4 We are fortu nate to have many written records from the Argonauts and their followers who came west from the States and the other territories in the form of letters, diaries, journals, newspapers, and other documents. I used both published and unpublished primary sourc es. It must be remembered that newspapers were (and are) in the business of selling newspapers. Newspapers may exaggerate or underplay crime reports depending on editorial policy. A newspaper that follows a policy of boosterism to increase local residents and thus subscribers may underplay reports of violence. A newspaper that believes sensationalism sells more papers may exaggerate crime reporting.3 Therefore, it is important to use multiple sources whenever possible. I have also reviewed numerous prior hi stories of Colorado and often compare them to the primary sources. Organization I could have organized this by legal topic: homicide, property law, inheritance, etc., but the result would have been that the rules would be out of the context of the time and the culture in which they were applied. Therefore, I have chosen a quasi chronological organization, addressing the legal culture of Native Americans first, then the law existing among the settlers on the Mexican Land Grants before examining th e numerous overlapping laws and legal structures generated by or a ffecting the Gold Rush settlements. In the process of my studies, I have compiled as case studies incidents such as theft, assault, and murder which like the ethnologists law ways presented challenges to the communities of miners and settlers. These case studies are extracted from letters, journals, 3 J Sterling Morton, Territorial Journalism, in Nebraska History 10 (1 902) 24. http://www.nebraskahistory. org/publish/publicat/history/fulltext/NH1902Territ_Jrnlsm.pdf; See Louis Kraft, Ned Wynkoop and the Lonely Road from Sand Creek (Norman: University of Oklahoma Press, 1992): 57 61, related to Rocky Mountain News biase s. See also the political factionalism highlighted in Denver newspapers during the Denver Chinese Riot of 1880 in Liping Zhu, The Road to Chinese Exclusion: The Denver Riot, 1880 Election and the Rise of the West (Lawrence: University of Kansas Press 2013)

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5 and newspapers. I have summarize d the events and how the local community dealt with them The cases are listed chronologically in the Appendix I n the context of those case studies, I discuss crime and violence in Gold Rush Colorado. Definitions Before beginning a history of law justice or law enforcement in a particular time period, I must define those terms. The first definition of law in the Oxford English Dictionary is The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects. 4 Viewing it more as a verb than a noun legal philosopher Lo n Fuller defined law as the enterprise of subjecting human conduct to the governance of rules.5 Some anthropologists have used a more cumbersome definition for comparative studies: A social norm is legal if its neglect or infraction is met by the application, in threat or in fact of the absolute coercive force by a social unit possessing the socially recognized privilege of so acting. 6 I am going to take a broader approach and define law as a system that either responds to, or anticipates, problem s in a society and seeks to avoid or redress those problems. This definition is broad enough to encompass criminal law, mining law, water law, probate law, property disputes, contract and employment disputes, and a host of other things that fill law librar ies. When studying the law of a particular time period it is important to consider forms of law other than criminal law because legal issues are not that easy to detangle. A probate dispute is likely to involve property law matters and contract issues. P roperty law issues may involve contract law, mining law, and water law. A dispute over any of the previous could 4 Oxford English Dictionary 2nd ed ., s.v. law ( CD ROM Version 3.1, 2004). 5 Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1969),106. 6 E. Adamson Hoebel, The Political Organization and Law Ways of the Comanche Indians, Bulletin of the American Anthropological Association (1940) 47, accessed 02/09/2017 http://ehrafworldcultures.yale.edu

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6 devolve into violence or some other criminal act. In the current American legal system a commission of a crime can also give rise to a civil ac tion called a tort which requires payment of compensation to the injured party rather than punishment of the offender. Punishment and compensation are not always separate functions. Even in our current legal system in America criminal courts in many states can order restitution to compensate the victim and civil courts can order punitive damages to punish an offender. Several of the legal systems operating during the Colorado Gold Rush did not separate those functions but instead tied compensation and punis hment together. This definition of law is also broad enough to cover legal systems unlike our own which serve the same purpose. This is important because between 1858 and 1861 there were other societies in Colorado using different legal systems. The legal system of the Comanche was distinct from those of the Cheyenne or the Arapahoe. Settlers on the Mexican Land Grants in Southern Colorado were using methods of solving problems that to some degree followed methods used during the Mexican period which in t urn descend ed from Spanish l aw I will discuss how law operated in each of these. Within the scope of this paper, I will define law enforcement as the means by which those rules were obeyed, whether th at involved physical coercion or internalized cultural training. Justice will be defined as when a social disruption is resolved through the use of law and law enforcement. This definition is also broad enough to cover the methods used by societies not steeped in AngloAmerican jurispr udence and what we today call alternative dispute resolution, e.g., mediation or arbitration.

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7 Prejudicial Words Historians have sometimes added to the mythology of the lawless and violent West by the words they used. Sometimes as St. Exupery s Little Prince said words are the source of misunderstandings. While it is always important to choose words with care, sometimes it is equally important to choose NOT to use certain loaded words that distract from the topic being studied. 7 Some scholars have spent chapters or entire books attempting to trace the origin of the word lynch or to define it.8 It is not necessary to trace the entomology of the word or nail down its definition here. Rather it is important to recognize that the wor d lynch is problematic because it means different things to different people at different times and places. Today when many people hear the word lynch they envision a person, often a person of darker skin, being hanged without legal aut hority. To some people in the 1850s and 1860s, Judge Lynch or lynching merely meant any law enforcement or judicial process with any degree of informality even when the person is tried, acquitted, and released.9 Such a definition would encompass many forms of mediation and arbitration as well as Judge Judy and the numerous other television judges within lynch law Due to that wide range of interpretation, it is impossible to establish a definition with any precision that can be applied as well in the ninete enth century and the twenty first. The word lynch today has so much 7 Oxford English Dictionary s.v. loaded definition d: fig. Charged with some hidden implication or underlying suggestion; biased, prejudiced. ( CD ROM Version 3.1, 2004). 8 E.g ., James Elbert Cutler, Lynch Law: An Investigation into the History of Lynching in the United States ( Ne w York: Longmans, Green, & Co. 1905) or Christopher Waldrep, The Many Faces of Judge Lynch: Extralegal Vi olence and Punishment in America ( New York: Palgrave Macmillan, 2002) or Christopher Waldrep, War of Words: The Controversy over the Definition of Lynching, 18991940, Journal Southern History 66 no. 1(2000): 75100. 9 E.g. An unsigned letter was publis hed in the Leavenworth Times on June 4, 1859 under the title Leavenworth Times Correspondent , dated Denver City May 15, 1859. (Historian Leroy Hafen attributes the letter to Henry Villard.) The author of the letter used Judge Lynch in reference to a proceeding in which a possible cattle and horse thief was examined and released when the charges could not be proved. Hafen Colorado Gold Rush: Contemporary Letters and Reports 18581859 ( Philadelphia: Porcupine Press 1974 ): 356. That would not be lynch law in the view of many people today.

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8 emotion attached to it that it would be better to avoid using the word altogether. It is important, however, to acknowledge how others used it when we encounter it in letters, diaries, and newspaper accounts. Similarly, terms like vigilance committee vigilante and even extra legal create mental images that might lead historians to jump to conclusions rather study the historic evidence of what occurred, when it occurred, and why. It is important to remain objective and determine what were the social problems and how they were resolved without prejudicing our study. Using neutral terms will help us do that. Another prejudicial and distracting term is bummer According to the Oxford English D ictionary (OED) bummer was used in the late nineteenth century in America, especially in the 1850s and 1860s to mean an idler, lounger, loafer. 10 The quotations provided by OED as examples also suggest a bummer is someone who lives off the efforts of others. Most Pike Peak primary sources use the term in that generic sense. However, some historians have interpreted the term to refer to a particular gang called Bummers. 11 There is no historical or etymological eviden ce that bummer ever was the name of a particular gang in Colorado or anywhere else. Bummer arises from the German bummler meaning lazy or loafer. It is likely that one of the many German immigrants to the West said bummler and was misheard by an English sp eaking neighbor who dropped the l and bummer was born. Bummer was used in several places in the West before the Colorado Gold Rush. Its adoption during the Turkey War of 1860 by men who called themselves bummers is like the actions of many groups who 10 Oxford English Dictionary 2nd ed ., s.v. bummer 3rd definition ( CD ROM Version 3.1, 2004). 11 This seems to apply a n etymology to the word bummer similar to that of hoodlum that some scholars believe originally refer red t o a specific gang in San Francisco in the early 1870s but which rapidly spread across the U.S. and became a generic reference to any street tough or member of a gang. Benjamin E. Lloyd, Lights and Shades in San Francisco, (San Francisco: A. L. Bancroft 1 876), 297 and Herbert Asbury, The Barbary Coast (New York: Basic Books, 1933), 150151; Oxford English Dictionary accepts that the word hoodlum was first noted in San Francisco, but is uncertain of its origin.

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9 adopt a pejorative term used against them as a badge of honor. 12 Oklahoma Sooners is one example of this. Quaker for the Society of Friends is another ; as are more recent adoptions of the terms deplorable and snowflake by the people th ose words wer e intended to insult. Such an adoption of bummer by the turkey nappers does not carry the implication of any organization by that name. Thus, I will not use it in that way here. 12 Rocky Mountain News February 3, 1860, Extr a Edition; Rocky Mountain News Feb 8, 1860; Western Mountaineer News, Feb 8, 1860.

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10 CHAPTER II LAYERS OF SOVEREIGNTY AND JURISDICTION In 1858, the region currently encompassed by the state of Colorado was the subject of numerous overlapping jurisdictional layers. The broadest form of jurisdiction is national sovereignty. This region was claimed by Spain, France, and the United States bet ween 1500 to 1858. However, it is difficult to maintain that any of those nations truly had sovereignty over the region due to the ir failure to control the region. Spain had attempted to settle the area but was repeatedly beaten back by natives and never managed to establish permanent settlements, much less effective control.13 Even after Spain had surrendered Louisiana, the boundary between Louisiana and New Mexico was in dispute.14 After Mexican Independence, more vigorous efforts were made to settle the region below the Arkansas River through a number of land grants. When the United States claimed New Mexico under the Treaty of Guadalupe Hidalgo, the national boundary moved south of the current boundary of the state of Colorado and the area south of the Arkansas River was part of the U. S. T erritory of New Mexico. However, the claims of France, Spain, and the United States paid little or no attention to the people who were actually living in the region. The Arapahoe Cheyenne, Comanc he, Kiowa Apache, and several branches of Ute Indians claimed parts of this region as their territory. To some degree, the claims of the Americans and Europeans were merely academic 13 Frank Hall History of the State of Colorado ( Chicago: Blakely Printing Co. 1889 ), 89. 14 The southwest boundary of the Louisiana Purchase was one of the prominent causes of the trouble. It was in dispute and much jealousy was manifested on both sides. Each power claimed the Red river, and with it Spain claimed a great deal more. The United Sta tes expected to make the Red river part of the southwestern boundary, as it did become when the quarrel wa s settled by the treaty of 1819. Jerome C. Smiley, History of Denver ( Denver: The Times Sun Publishing Co., 1901), 132.

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11 exercises until one of them proved they could control the area .15 15 Hall, History of Colorado, Vol. 3 100 101.

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12 CHAPTER III NATIVE AMERICAN LAW WAYS Background Thousands of years before Spaniards and their descendants attempted to settle in what is now southern Colorado, the San Luis Valley functioned as a hunting and gathering area for the Upper Rio Grande Culture which left petroglyphs, projectile points, flints, and remna nts of prehistoric kill sites. Their descendants built the cliff dwellings found in Mesa Verde and other locations. By the time the Spaniards came to the Western H emisphere, Comanche, Apache, Navajo, and Ute seasonall y hunted buffalo and antelope in the re gion.16 The Southern Cheyenne and Southern Arapahoes began to move south from the region of the Missouri River into what is now Colorado in 1826. Some had gone south earlier for trade but had returned north.17 Whether longtime inhabitants of the Southwest, or recent migrants, these native societies lacked written languages, and thus lacked written law. Nevertheless they possessed clear legal concepts and strong moral codes which were passed on through customs and taboos. When faced with a new or infrequent social problem they relied on collective recollections of similar cases and used the precedent established by such previous cases.18 It is these types of problems or trouble cases which make or change law in any society and it is by studying memories of such trouble cases that ethnologists have been able to discover the law ways (as the ethnologists called them) of these people in the mid nineteen century before 16 Maria Mondragon Valdez The Culebra River Villages of Costilla County Colorado National Register of Historic Places Multiple Property Documentation Form ( June 1, 2000 ) Section E 6. 17 Fred Eggan, The Cheyenne and Arapaho Kinship System , in Social Anthropology of North American Tribes, ed Fred Eggan ( Chicago: University of Chicago Press 1955), 3595, 36; George Bird Grinnell, The Cheyenne Indians: Their History and Ways of Life, Vol. I ( Lincoln: University of Nebraska Press, 1923 ) [1972 reprint edition] 39 43. 18 Paul H. Carlson, The Plains Indians ( College Station, TX: T exas A&M University Press, 1998), 75.

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13 their societies were torn apart by incursion s from outsiders.19 Studies based on interviews done in the late nineteen and early twentieth century of the Cheyenne, Comanche, and Arapahoe cultures have revealed basic legal concepts and methods of enforcement. Less is known about the law ways of the Apache and the Kiowa, an d that aspect of Ute culture continues to remain an enigma to outsiders today.20 While most native societies in this region had at least some form of political structure, in most cases the leaders were councilors or advisors who lacked coercive power. There was no chain of command. This confused many Americans, especially those with military backgrounds, who, like Edwin James of the Long Expedition, often reported that the natives appeared to have no laws, except such as grow out of habitual usages, or s uch as are actioned by common consent.21 Ironically, James s description could easily apply to British or American Common Law, and the Cheyenne system of law and law enforcement has some similarity to tenth century Anglo Saxon legal systems.22 James s focus on by common consent could also describe the concept of popular sovereignty that was extremely popular in the West in the 1850s and 1860s. Popular sovereignty was used to justify everything from people s courts to the Kansas Nebraska Act, which resulted in the violent struggle to determine whether Kansas was to be a free state or slave state known as Bleeding Kansas .23 In an attempt to describe the differences between the American settlers and the native 19 Llewellyn and Hoebel, Cheyenne Way, 29. 20 Hoebel ranked Kiowas as intermediate between the Cheyenne and Comanche geographically and socially. He wrote that their system of social control was not as well develo ped as that of the Cheyennes, but superior to that of the Comanche. Hoebel, Law of Primitive Man 130. 21 Loretta Fowler, Arapahoe Politics, 18511978: Symbols in Crises of Authority ( Lincoln: University of Nebraska Press, 1982 ), 7. 22 Bruce L. Benson, The Enterprise of Law: Justice Without the State ( Oakland, CA: The Independent Institute, 2011), 23 28. 23 Christian G. Fritz, Popular Sovereignty, Vigilantism, and the Con stitutional Right of Revolution, Pacific Historical Review 63, no. 1 (February 1994) 45.

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14 peoples, James may have instead described their greatest similarity. Cheyenne Ethnographers found that the Cheyenne had a well developed political and legal system. Adamson Hoebel described the Cheyenne legal system as sedate and effective, calm and mature with a feeling for the s ocial purposes of law.24 While the chiefs and the tribal council primarily had power to influence decisions, not coerce them, the military societies were developing into a powerful force for coercion, and the council and individual chiefs were learning to use that. Unfortunately, the Colorado Gold Rush occurred at time when the Cheyenne were already stressed by environmental changes, and encroachment by Americans not only impeded further cultural evolution, but fractured their existing legal system. I describe below the Cheyenne s ystem that existed in the mid nineteenth century that was beginning to splinter by the 18581861 period. Each of the ten clans of the Cheyenne had four chiefs. These chiefs were selected for their courage, wisdom, generosity, and self control. A Cheyenne c hief s primary duty was to care for widows and orphans The secondary duty was to act a mediator or a peacemaker between any in the camp who quarreled. Small disputes were usually settled privately, either by the parties themselves, or by their families. I f that did not work, the matter could be brought to one or more of the chiefs for advice or assistance.25 While most minor disputes were resolved by some form of mediation or arbitration facilitated by family members or chiefs, that does not mean that there were no rules of behavior or no community means of enforcement. There were rules of conduct established by custom as determined by the council of chiefs that were very strictly enforced. Offenders 24 Hoebel, The Law of Primitive Man 129 30; Hoebel, The Cheyenne, 50. 25 Grinnell, The Cheyenne Indians Vol. I, 3367, 358; Hoebel, Law of Primitive Man 15 4.

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15 could be whipped by the soldiers, or their property might be destroyed.26 Cheyenne law was strongly intertwined with Cheyenne religion. A violation of the law would also be a sin that affected the entire community. The Cheyenne had two sacred medicine bundles: The Sacred Arrows and the Sacred Buffalo Hat. The C heyenne believed the spiritual power of these bundles could be t apped ceremonially to help the tribe prosper. Serious transgressions by tribal members were thought to pollute the Sacred Arrows, ruining the hunt and bringing bad luck to the entire tribe. T he entire community had an interest in avoiding pollution of the Sacred Arrows and any action required to cleanse of them. The infraction had to be dealt with and the Arrows renewed.27 The Council of Forty Four governed the Cheyenne people. The Council provided unity and central authority among the bands. This Council c onsisted of four principal chiefs plus four chiefs from each of the ten bands of the people. The four principle chiefs were men of special influence and their opinions received greater weight than those of other chiefs. The Council of Forty Four resolved disputes and promoted peace among the bands. The Council possessed both executive and judicial powers. It alone had the peace making authority. The Council could order criminals whippe d or bani shed from camp. It could also commute sentences.28 Once the Council had made a decision, it often asked members of one of the military societies to enforce it. There were six military societies among the Cheyenne: the Fox Soldiers, Elk Soldiers, Shield Soldiers, Bowstring Soldiers, Dog Men, and Northern Crazy 26 Grinnell, The Cheyenne Indians Vol. I 34950. 27 Hoebel, Law of Primitive Man 157. 28 Grinnell The Cheyenne Indians Vol. I 3367; Elliott West The Contested Plains: Indians, Goldseekers, and the Rush to Colorado ( Lawrence: University of Kansas Pres s, 1998), 85; Llewellyn and Hoebel Cheyenne Way, 67; Hoebel, Law of Primitive Man 149.

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16 Dogs. The military societies were the police and military force of the Cheyenne. Soldiers of the societies investigated infractions of rules, and restrained and punished troublemakers.29 Theft was not usually a legal issue for the Cheyenne mostly because the Cheyenne had a different view of personal property. The Cheyenne did not consider accumulation of material possessions a sign of wealth or power. On the contrary, giving away possessions was a more likely method to establishing influence. Obligations of beneficence required that material objects be given to someone who needed it more than the person who possessed it. A common response to someone who took something without asking would be : If I had known you wanted the thing, I would have given it to you. An item could be borrowed by leaving some token behind which indicated both the identity of the taker and the intent to return the item. However, if someone wanted an article returned that was miss ing, a camp crier would be asked to make an announcement and requested its return, sometimes offering a reward. Usually the item was returned and nothing more was said.30 The introduction of horses changed some of the rules regarding property. While initia lly taking or borrowing another man s horse followed the same rules as other property, by 1850 that practice was causing some social strain. One man borrowed a horse belonging to Wolf Lies Down, but did not return it for over a ye ar. Wolf Lies Down consulted with the Elk Soldiers. They found the borrower and brought him and the horse back. The borrower 29 Llewellyn and Hoebel, Cheyenne Way, 99; Grinnell, The Cheyenne Indians Vol. I 337; Hoebel, Law of Primitive Man 153. 30 Llewellyn and Hoebel, Cheyenne Way, 2267, 236; Hoebel, Law of Primitive Man 169; Hoebel The Cheyennes 556; In a mobile society, it is socially beneficial to not value personal possessions that might need to be left behind. This attitude towards property was also reflected in the rules regarding inheritance and disposal of property at death. The family of the deceased were expected to give all the property of the deceased away and often much of their own as well. They were then dependent on the community for support and receipt of gifts This procedure also reinforced the mutual obligations of the community. Llewellyn and Hoebel, Cheyenne Way, 2123; George Bird Grinnell, The Cheyenne Indians: Their History and Ways of Life, Vol. I I ( Lincoln: University of Nebraska Press, 1923 ) [1972 rep rint edition] 162.

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17 offered additional horses to Wolf Lies Down as compensation. Wolf Lies D own took one horse but gave the original horse that he had borrowed to him as a gift. When the chiefs next met, they made a new rule that there would be no more borrowing without asking. If a man took another s goods without asking, a military society would take them back from him. Furthermore, if he tried to keep the property they would give him a whipping. That created a new law making it a crime to borrow an owner s horse without his permission.31 The primary concern of Cheyenne law was the prevention of violence of Cheyenne against Cheyenne. Cheyenne children were raised to value self control, social altruism, and exhibiting a mild demeanor within the camp at the same time warriors were trained to be militarily aggressive and were publicly rewarded for performance on the battlefield or on the hunt.32 Sometimes the battlefield training, or a man s personal demeanor, overwhelmed the social training. Intertribal homicide was rare. Grinnell wrote that it occurred once in a generation. Hoebel recorded sixteen killings within the tribe in two generations (18351879) or an annual rate of almost one killing to a theoretical ten thousand of population.33 The tribal council sat as a judicial body to judge a murderer. The typical sentence was exile, which would be enforced if necessary by the military societies. This banishment included t he murderer s family as well. However, murder was not merely a crime. It was a sin that tainted the entire village, not just the individual or his family. It disrupted the fabric of tribal life and threatened tribal unity. It polluted the Sacred Arrows. Th e murderer was seen as rotting inside and giving off a fetid odor that would scare away the buffalo and other game. The Sacred Arrows must be renewed in a ceremony that required the attendance of all 31 Llewellyn and Hoebel, Cheyenne Way, 1279, 223; Hoebel The Cheyennes 556. 32 Hoebel The Cheyennes 49, 53. 33 Llewellyn and Hoebel, Cheyenne Way, 132; Grinnell, The Cheyenne Indians 350.

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18 the other families and restored a commitment to tribal u nity.34 Even though the sentence was nominally for life, after a period of years, if the murderer reformed, his family might plead that the sentence be commuted. The victim s family was consulted but they understood that tradition was that return was usual ly allowed. Even then the murderer was cut off from the unity of eating from the common bowl and smoking from the ritual pipe. 35 Hoebel claimed that the Cheyenne view of homicide being a sin that affected the fortune of the whole village precluded the poss ibility of feud which he called the bane of primitive social systems generally. A feud would merely compound the sin increasing the disaster for the tribe. Exclusion and ostracism are effective means of ending the social disruption while steps are taken to compensate the bereaved kin for the death of the member.36 However, Llewellyn and Hoebel also discussed the case recorded by Grinnell involving the murder of White Horse by Walking Coyote and the related murder of Walking Coyote by Winnebago, which seems to contradict Hoebel s claim that feud or retaliation was unknown among the Che yenne.37 In 1854, White Horse stole Walking Coyote s wife, an act which usually required compensation, but not punishment. However, Walking Coyote threatened to kill White Horse unless he sent back his wife. When he did not, Walking Coyote killed White Hors e and Walking Coyote s wife returned. Winnebago then renewed the Sacred Arrows as required by killing. A little later Winnebago stole the same woman from Walking Coyote. Walking Coyote then stole Winnebago s wife Spirit Woman and 34 Hoebel The Cheyennes 5051; Karl N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence ( Norman, OK: University of Oklahoma Press, 1941), 1323; Hoebel, Law of Primitive Man 157. 35 Llewellyn and Hoebel, Cheyenne Way, 133, 1368. 36 Hoeb el The Cheyennes 501. 37 Llewellyn and Hoebel, Cheyenne Way, 140146.

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19 Winnebago shot and kille d Walking Coyote. Eight years later Kutenim, a relative of White Horse, began a fight with Winnebago. Winnebago responded and killed him. At that time, the Bowstring soldiers wanted to punish Winnebago for killing Kutenim but the chiefs told them to take no notice of the affair. Winnebago moved from the camp and lived with the Arapahoes. Two years (1864) later Rising Fire, another cousin of the dead men, decided he had to kill Winnebago. One of the Cheyenne Dog Soldiers i nvited Winnebago to eat with them. Winnebago moved from the Arapahoe camp to the Cheyenne camp, but as he was walking to dinner past Rising Fire s lodge, Rising Fire shot at him from the door of the lodge then walked out and blew out his brains with a gun. This arranged ambush of Winnebago ended the cycle.38 One possible explanation is that during that period (18541864) the Cheyenne s social and legal system was breaking down due to stress from drought, disease, and pressure from the Gold Rush miners and s ettlers. As a result some warriors were no longer respecting the traditional ways. This process accelerated after 1864 when the Cheyenne lost eight members of their Council of Forty four at the Sand Creek Massacre and the military societies primarily took control.39 Arapahoe During the nineteenth century, the Arapahoe were often closely associated with the Cheyenne, thought they spoke different languages and had different social rules. The Arapahoe were also organized into bands though their bands were not based on kinship. 38 Grinnell, The Cheyenne Indians Vol I 350 3, 357. 39 Elliott West, The Way West ( Albuquerque: University of New Mexico Press, 1995) 38, 42 7, 689, Esp. see note 58 on 177; West, The Contested Plains 85; Hoebel, Law of Primitive Man 155; Nearly half of the Cheyenne died in the cholera epidemic of 1849. Some entire clans died. Grinnell, The Cheyenne Indians Vol I 101; Anne Hyde, Empires, Nations and Families ( New York: Harper Collins, 2011), 344.

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20 Much like the Cheyenne, during the summer, Arapahoe bands joined together and formed a camp circle, sometimes near a Cheyenne encampment.40 Arapahoe society was age graded E ach male member normally progress ed through each grade. The Arap ahoe had a less structured government than the Cheyenne. Major decisions were determined by a council of elders who determined the consensus and persuaded other Arapahoe to cooperate and compromise.41 Sometimes decisions of the elders were enforced by young er warriors of the second or third grade who were given authority to use force if necessary but the Arapahoe did not have as well developed warrior societies as the Cheyenne. In most cases, respect for the elders was sufficient motivation to conform to th eir judgment.42 The consequences of murder of an Arapahoe by an Arapahoe were not as crystalized as they were among the Cheyenne. Scholars have reported exile, bloodrevenge by male relatives of the deceased, and compensation to the victim s family in the f orm of horses which would then forgo revenge and might agree to a commutation of the sentence.43 As with the Cheyenne, environmental challenges of the 1850s and the surge of Gold Rush settlers in Colorado disrupted the Arapahoes internal social structure, general ly shifting power to younger warriors.44 40 Eggan, Cheyenne and Arapaho Kinship , 37. 41 Loretta Fowler, Arapahoe Politics, 18511978: Symbols in Crises of Authority ( Lincoln: University of Nebraska Press, 1982 ), 6 7. 42 Fowler, Arapahoe Politics 7, 28. 43 Eggan, Cheyenne and Arapaho Kinship, 66; Kroeber, Alfred Louis, The Arapaho, Bulletin of the American Museum of Natural History 18 Pt. 1 (1902) (Kindle Edition Locations 233235). 44 Margaret Coel, Chief Left Hand: Southern Arapahoe ( Norman: University of Oklahoma Press, 1981), 100; Loretta, Fowler, Arapahoe Politics 6.

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21 Comanche The Comanche valued personal autonomy and responsibility above all else. This tended to limit government institutions.45 The Comanche lived in small family bands. Each ban d was autonomous and self sufficient at a subsistence level. An older man who had proven his wisdom and honor to his family members was the leader of each family. The most prominent leader of the central extended family would be headman of that band. The headman held the band together, but his influence was subtle. He used advice and good humor. In matters of daily routine such as camp moving, he often made the decisions himself, announcing them through a camp crier Anyone who did not agree with his decision simply ignored it. Before making decisions of consequence, the headman would seek consensus informally or in council with other men in the band. Important policies were determined in council. In t heory, at least, the council was supreme, but its decisi ons were often indefinite. The council was composed of the elders of the tribe who had shown exceptional ability as warriors or leaders.46 War chiefs were warriors who had accumulated records of great deeds but their powers were limited. Any Comanche who could must er a band of followers was free to initiate a raid or organize a war party. The Comanche did not have any well developed military societies. There was no evidence that they played an important police role.47 Comanche law was not so much a conscious social policy, but rather a series of 45 E. Adamson Hoebel, Plains Indian Law in Development: The Comanche, in Delinquency, Crime and Social Process ed. Donald R. Cressy and David Ward, (NY: Harper & Row, 1969) 69, accessed 02/09/2017 http://ehrafworldcultures.yale.edu.; Hoebel, Law Ways of the Comanche Indians 45. 46 Brian Delay, War of a Thousand Deserts ( New Haven : Yale University Press, 2008), 45; Ernest Wallace and E. Adamson Hoebel, The Comanche: Lords of the South Plains (Norman: Uni versity of Oklahoma Press 1987), accessed 02/09/2017 h ttp://ehrafworldcultures.yale.edu 213; Adamson, Law of Primitive Man 129, 132. 47 Wallace and Hoebel, Lords of the South Plains 224; Hoebel, Law ways of the Comanche 129; Hoebel, Law of Primitive Man 132, 234.

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22 responses to situations that threatened the tribe. Personal power was the basis of social relations between Comanche men. Yet such power out of control could threaten tribal coh esion. Tribal standards of right conduct were the tether s that kept the society from flying apart. The Comanche recognized universal wrongs and sanctions and allowed individuals to seek retribution across band and divisional lines. It was a system that at t empted to balance individual responsibility and individual action. Their way of life resulted in considerable internal friction. Trouble making was lauded. They had none of the Cheyenne s emphasi s on self control. The Comanche had a tendency to break law i n the face of certain and sever e penalties.48 Theft was so unusual that the Comanche interviewed by Hoebel all insisted that it never happened. Like with other mobile people of the plains, possession of objects was not highly valued. The Comanche considere d use of an object more important than who produced it or possessed it. In earlier times, all personal effects were destroyed when a person died, including clothing, weapons, saddled, tools, lodges, and even horses customarily ridden by the deceased wer e destroyed. Later not all of the horses were killed and some possessions were given away rather than being destroyed. Principles of generosity essentially placed a public lien upon the game a Comanche hunter brought down. A man who returned to camp with mea t was obliged to share it with all who asked.49 Any willful killing of a Comanche required a revenge killing of the slayer. There was no trial or compromise. There was no allowance for compensation of the victim s kin. Banishment was inadequate. The Comanch e kinsmen took revenge on the killer regardless of 48 Pekka Hamamainen, The Comanche Empire ( New Haven: Yale University Press, 2008 ) 277; Hoebel, Law of Primitive Man 129, 133, 137; Wallace and Hoebel, Lords of the South Plains 224 5, 234. 49 Hoebel, Law ways of the Comanche 111 22.

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23 the rightness of his original grievance. However bloodrevenge killing was only allowed for the first killer and retaliation did not lead to feud. In principle a simple retaliation was all that was requir ed and the murderer must be the victim. The Comanche also drew a clear line between murder and accidental homicide. In the case of an accident there was no retaliation and payment to the family of the deceased was accepted.50 The Comanche did not consider it murder if a husband killed his wife and her kin were not allowed to retaliate. However, the husband would assume the obligation to provide food for his father in law. On the other hand, a man who killed his wife too recklessly might have a hard time get ting another one Killing of husbands by wives was rare but Hoebel provided one example of a wife who killed an abusive husband and escaped to live with the Utes for a while. When she returned and confessed to his family, they chose not to retaliate again st her.51 Among the Comanche a favored horse might be so endowed with personality that killing a ma n s favorite horse was akin to killing his brother. The owner might, and sometimes did, kill the horse slayer in return. But that did not apply to all horses only special ones.52 The Great Peace of 1840 was an alliance of the Comanche, Kiowa, Cheyenne, and Arapahoe that reconfigured the politics and economics of the southern and central Great Plains. It launched a thriving commerce that embraced American trader s such as the Bents as well. Yet that very peace may have led to the Com anche s decline and ultimate defeat by the Americans. It drew the nations into greater physical proximity. It decreased the loss of life from intertribal warfare, which increased the drain on resources at a time of droughts, and it 50 Hoebe l, Law of Primitive Man 139; Hoebel, Law ways of the Comanche 66, 756. 51 Hoebel, Law of Primitive Man 139; Hoebel, Law ways of the Comanche 73, 75. 52 Wallace and Hoebel, Lords of the South Plains 233.

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24 encouraged the spread of disease such as the cholera epidemic of 1849. By the late 1850s, the Comanches had ceased to be an imperial power and the encroachment of Americans aborted whatever political leg al ev olution that might have otherwise resulted.53 Apache Anthropologists identify a number of Apache groups that claimed the Southwest as their territory in the nineteen century. Chiricahua Apache is the group who mostly likely lived and hunted in parts of southern Colorado west of the Rio Grande in 18581861. T he Chiricahua were divided into three well defined bands, which were subdivided by locality and family encampments. In a family encampment, the leading man is usually the oldest, and the most influential among the family leaders led the local group. Howeve r, there was no binding obligation to follow a leader s advice. A leader s advice carried much weigh, but if the majority disagreed, the leader will be ignored. As with many other Native American cultures, the obligation of generosity made theft within a f amily unnecessary and very rare outside the family unit. A person was expected to give to those in need. A theft outside a family was settled by restitution. Taking from Mexicans, Amer icans or other Indians was not considered theft, but more like harvesti ng resources, a normal part of the economy.54 Among the Chiricahua Apache, murder was viewed as a family matter, as it depleted their members and impaired the family economically. Often a murder would result in a blood feud between the families with first o ne side and then ot her seeking vengeance. If the murderer had been a troublesome, his family m ight hand him over to the family of the 53 Hamamainen Comanche Empire 165, 1789, 2936, 301. 54 Morris E. Opler, An Outline of Chiricahua Apache Social Organization, in Social Anthropology of North American Tribes ed Fred Eggan, ( Chicago: University of Chicago Press 1955 ), 236 7.

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25 murdered man who would execute him thus preventing such a feud. Sometimes a local leader succeeded in arbitrating between the families of the victim and the perpetrator, and the transfer of gifts as compensation may conclude the matter. This outcome is advantageous to the Chiricahua Apache as a whole because a blood feud would weaken the group both in numbers and in social co hesiveness.55 55 Opler, Chiricahua Apache, 173 242, 176 184, 2336.

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26 CHAPTER IV TRADERS, EXPLORERS, AND MILITARY OUTPOSTS From the sixteenth century onward, a number of trappers, traders, and explorers passed through this region. However, most of them failed to establish any permanent settlements that lasted into the 1850s. Don Juan Oate attempted to create settlements in th e upper Rio Grande basin north of the Raton and Sangre de Cristo ranges However, Oate s colonists fled in the face of Indian attacks, his mission was considered a failure, and he was recalled by the Council of the Indies.56 In 1806 President Thomas Jeffer son ordered Zebulon M. Pike to examine the country between the Missouri and the Rocky Mountains and discover the sources of the Arkansas, Platte, and Red Rivers Pike was also supposed to acquire such geographical knowledge of the southwestern boundary of Louisiana, as to enable the government to enter into a definite arrangement for a line of demarcation between that territory and North Mexico. 57 No permanent fort or settlement was established.58 In 1819, John C. Calhoun, Secretary of War, ordered Major Stephen S. Long of the Topographical Engineers, to explore the Red River and the source of the Arkansas River. Long s expedition did not establish any settlement in the region.59 In 1842, Lieutenant John C. Fremont also came through the area but left nothing behind.60 In the summer of 1852, the United States established the first U.S. military post in 56 Je ffrey S. Smith, Cultural Landscape Change in a Hispanic Region, in Geographic Identities of Ethnic America: Race Space and Place, ed. Kate A. Berry and Martha Henderson, (Reno: University of Nevada, 2002) 1767; George P. Hammond a nd Agapito Rey The Cr own s Participation i n t he Founding o f New Mexico, New Mexico Historical Review 32 n o. 4 ( Oct ober 1957 ) 294 9, 3035 ; Hall, History of Colorado, Vol. 3, 857. 57 Hall, History of Colorado, Vol. 3, 91, quoting from Pike s journal 58 Hall, History of Colorado, Vol. 3, 85, 92 3; Smiley, History of Denver 1389. 59 Hall, History of Colorado Vol. 3, 99 100; Smiley, History of Denver 1412. 60 Hall, History of Colorado, Vol. 3,117 18; Smiley, History of Denver 1434.

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27 this area, Fort Massachusetts. Fort Massachusetts was located on Ute Creek in what is now Costilla County. In June 1858, F ort Massachusetts was dismantled and a bandoned in favor of Fort Garland, seven miles farther south.61 As mentioned below, Fort Wise, aka Fort Lyons, was established at Bent s (New) Fort in 1860. The military had its own laws and codes of conduct, though it was not unusual for frontier outposts to have discipline problems and desertions as is discussed in some of the case histories. Most trappers lived singl y or in small groups in temporary camps, and met at rendezvous or at trading posts Some were more itinerant than the local Indians and far less sociable. Since the decline of the fur trade in the late 1830s and early 1840s, most trappers from the height of the trade had died or drifted to other occupations by the time of the Colorado G old Rush.62 In the 1840s, Fremont described a settlement where Pueblo is today where a number of mountaineers whomarried Spanish womenhad collected together and occupied themselves in farming, carrying onIndian trade. They were principally Americans. T hat settlement had been abandoned by the late 1850s.63 In 185859, Captain R. B. Marcy, of the United States army, passed through with a detachment of troops on the way from Fort Bridger, Utah Territory, to Taos, New Mexico. He wrote that at that time there was not but one white man living within one hundred and fifty miles of the place [current location of Denver], and he was an Indian trader named Jack Audeby [aka Autobee] upon the Arkansas. 64 61 Smiley, History of Denver 148; Hall History of Colorado, Vol. 3,168. 62 Rufus R. Wilson, The Mountain Men, A Colorado Reader ed. Carl Ubbelohde ( Boulder: P ruett Publishing Co. 1962), 5973. 72; Hall, History of Colorado, Vol. 3 110114. 63 Hall, History of Colorado, Vol. 3, 119 122; Smi ley, History of Denver 118, 144. 64 Hall, History of Colorado, Vol. 3, 142 5.

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28 Traders, on the other hand, established a number of trading posts or forts including Ft. Vasquez, Ft. St. Vrain, Ft. Huerfano, Ft. Lancaster (aka Ft. Lupton), Ft. Jackson, and Ft. Le Duc. In 1846, Francis Parkman noted that several of the local fur establishments, particularly Fort St. Vrain and Fort Lupton, were f alling into ruin.65 All of the trading forts named above appear to have been abandoned before 1850.66 Bent s Fort seems to have been the sole survivor of the trading posts in this region William Bent and his brothers Charles, Robert, and George, together with Ceran St. Vrain built a number of different trading forts. In 1826, they built a stockade trading post on the north bank of the Arkansas River, about half way between P ueblo and Canon City. In 1828, they abandoned that stockade in favor of a more substantial fort down the Arkansas that they called Fort William, but which many people simply called Bent s Fort, and today is called Bent s Old Fort. About sixty people worked there and it was a place of great activity. It was a popular resort of mountainee rs and plainsmen. Travelers often stopped on their way west. The Fort was often surrounded by large encampments of Indians. William Bent destroyed this fort in 1849 after a cholera epidemic killed nearly half the Cheyenne, including several of his inlaws.67 Bent s final fort at Big Timbers sometimes called Bent s New Fort, was the 65 Frederic J. Athearn, Land of Contrast: A History of Southeast Colorado ( Denver: Bureau of Land Management, 1985 ) 40. 66 Hall, History of Colorado, Vol. 3, 117 122, 1425, 169; Smiley, History of Denver 1434, 152. 67 This epidemic also ravaged the Comanche. Hyde, Empires, Nations and Familie s, 2011, 341. Cholera seems to have spread up the Arkansas Valley from the region where Oklahoma is today through the natives and travelers along the Santa Fe Trail. Burning habitations infested with disease was a common reaction among Europeans, Americans, and N atives at the time. Since adobe does not burn well, William Bent most likely distributed the black powder kegs around the fort to make the place uninhabitable to prevent further spread of cholera. Hyde, Empires, Nations 344; Joseph P. Sanchez, Early Hispa nic Colorado, 1678 1900, ( Los Ranchos, NM: Rio Grande Books, 2015 ), 1 73; David S. Lavender, Bents Fort ( Garden City, NY: Doubleday, 1949), 2157; Grinnell, The Cheyenne 101, Smiley History of Denver 14950; Hall, History of Colorado, Vol. 3, 134 7, 163 5; The story that William Bent destroyed the fort due to frustrations with government negotiations ( E.g. Smiley, History of Denver 150, Hall, History of Colorado, Vol. 3, 1645 and Ubbelohde, Colorado History 51) seems to have originated with his son, Ge orge Bent, who was a child of six at the time and who may have conflated different events when he told them late in life. The editor of George Bents letters noted other

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29 one in existence at the time of the Colorado Gol d Rush. It was completed in the summer of 1854 and was used as a trading post until William Bent leased it to the U.S. government in the autumn of 1859. The U.S. Army added barracks and officers quarters and renamed it Fort Wise. In 1861, the name of the fort was changed to Fort Lyon.68 The trading posts in this region existed under the various jurisdictions mentioned above. However, given their distance from any source of authority they were mostly autonomous and often did not care which nation claimed the land. They were privately own ventures, the owners could undoubtedly have ban ned anyone who was troublesome. They may have had internal rules that were never written down. However, in general the fur trading companies of the Rocky Mountain region seemed to lack the tight organization and strict moral code of that was characteristic of the Hudson Bay Company.69 In any case, the last if the trading posts in the region faded away during this period. discrepancies in his version. George E. Hyde, Life of George Bent: Written from His Le tters ed. Savoie Lottinville (Norman: University of Oklahoma Press, 1968), 93. See especially notes 13 and 14. Lavender noted that many traders assumed the fort was destroyed in an Indian attack, which is what Bancroft wrote in his history. Lavender, Bent s Fort 217; Hubert Howe Bancroft, History of Nevada, Colorado and Wyoming 15401888 (San Francisco: The History Company, 1890) 363 note 1. 68 Smiley, History of Denver 150; Hall, History of Colorado, Vol. 3, 165. 69 Katherine Coman Government Factories: An Attempt to Control Competition in the Fur Trade, American Economic Review, 1, no. 2, (Apr., 1911) 388.

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30 CHAPTER V LAW ON THE MEXICAN LAND GRANTS Background Spain attempted to regulate the government of its American colonies However, it recognized that not all the law s of Spain were appropriate in American and vice versa. Many laws in force in Spain were never extended to the American colonies. The body of la w created by Spain during the colonial period was massive. The scattered laws which bad been promulgated at diffe rent periods were collected and digested by order of Philip IV in the same form as the Recopilacion of Castile. The Recopilacion de leyes de los reynos de las lndias was a digest of the royal orders issued for the government of the American c olonies first published in 1661. Changes were gradually introduced into colonial law which made a revision of the Recopilacion de Indias necessary I t was ordered about 1777, but later abandoned after one book had been finished. The Spanish Leyes de Indias or Laws of the Indies was not a single cohesive legal code. It was mainly a list of exceptions to the general and common law of Spain. As a result dete rmining what was the official Spanish law governing the colonies was not easy task. It required studying a number of different laws, orders and decrees. When no applicable provision was found in the Recopilacion de Indias the laws of Recopilacion of Cast ile had to be consulted.70 Political instability in Spain during the first two decades of the nineteenth century did not improve the situation. The nineteenth century was turbulent time for Spain and its territories. It was a time of wars and shifting alliances in Europe. Many of these European conflicts between 1803 and 70 Gustavas Schmidt, The Civil Law of Spain and Mexico, ( New Orleans: Privately Printed 1851 ), 94 6 ; John A Rockwell, A Compilation of Spanish and Mexican Law, in Relation to Mines, and Titles to Real Estate, California, Texas and New Mexico ( New York: John A. Voorhees 1851),16.

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31 1815 are collectively called the Napoleonic Wars, but they also spawned other internal and external conflicts. The French invasion of Spain in 1807 resulted in internal political turmoil that lasted until 1823. Naval blockades of trade across the Atlantic Ocean impeded economic pacification of Apache an d Comanches which encouraged raiding of Mexican settlements at the same time it forced the colonies to become more economic ally independen t After the end of the Napoleonic Wars, Spain sent troops to reestablish control over the colonies but the damage had been done. Spain lost most of its American colonies in a series of revolutions in the first two decades of the nineteenth century.71 Independent Mexico After winning its independence from Spain, Mexico also assumed jurisdiction over the department extending south of the Arkansas River called New Mexico. The new country was on precarious footing. It needed to stabilize its economy and secure its borders. The northern provinces were especially insecure. New Mex ico was mostly inhabited by Indians, some nomadic like the Apache and Comanche, and others more settled. French Canadian and American trappers and traders were increasing their presence. Settlement of New Mexico by Mexicans could establish Mexico s claim to the region, increase economic security, and create a buffer zone to protect Mexico from foreign encroachments.72 This was not a new strategy. Spain had a history of issuing land grants in the Americas to reward soldiers or faithful administrators, or to e ncourage colonization. Over three centuries the land tenure system in the colonies had evolved. It was based on Spanish land tenure systems but 71 Joseph O. Van Hook, Mexican Land Grants in the Arkansas Valley, The Southwestern Historical Quarterly 4 0, no. 1 (July 1936): 5875, 60; Schmidt, Civil Law 94 6; Delay, Thousand Deserts 14 6. 72 Placido Gomez, The History and Adjudication of the Common Lands of Spanish and Mexican Land Grants, Natural Resources Journal 25 (January 1985) 1042, 10591969; Victor Westphall, Mercedes Reales: Hispanic Land Grants of the Upper Rio Grande Region (Albuquerque: Universit y of New Mexico Press, 1983), 3; Sanchez, Early Hispanic Colorado 1 51; Van Hook, Mexican Land Grants, 5875, 60

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32 absorbed some characteristics from Native Americans settlements and adapt ed to the local terrain .73 Between the 1820s and the 1850s, Mexico pendulated between a highly centralized government and a more distributed form. Different administrations passed di fferent laws related to colonization. The Colonization Law of 1823 authorized the central government to issue large grants of land to empresarios who agreed to lure groups of settlers into the northern provinces.74 One year later the newly formed Mexican Congress issued the Colonization Law of 1824.75 This law authorized the governors of the states to grant vacant l ands in their respective territories to individuals, families, and contractors, including naturalized foreigners. It limited the land that could be granted to a single person to a square league of land, of five thousand varas for irrigation, and six for pa sturage .76 If a petition for a grant followed th e law of 1824, the governor could make the grant at their discretion. However, g rants to families also required the sanction of the territorial deputation, and the contracts with expresarios (colonial contractors) required the consent of the central supreme government. The colonists were obliged to prove after a certain length of time that they had lived on the lands and cultivated them according to contract, before they could obtain a title to the lands .77 The provisions of the Colonization Act of 1824 were reinforced and clarified by the Regulations for Colonization issued in 1828.78 These regulations required that one fourth of the colonists on a grant must be Mexicans and that within seven y ears the lands o f a 73 Gomez, History and Adjudication, 10581060; Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico, 3rd ed. ( Albuquerque: Center for Land Grant Studies 2008), 2427; Howard R. Lamar, Policy in the Spanish Southwest, 18461891: A Study in Contrasts, The Journal of Economic History 22, n o. 4 (Dec. 1962): 498515, 499. 74 Sanchez, Early Hispanic Colorado, 1 56. 75 Gomez, History and Adjudication, 1064; Sanchez, Early Hispanic Colorado, 151. 76 Decree of the 18th of August, 1824 Relative to Colonization, in Schmidt, Civil Law App. V, 341. 77 Frank W. Blackmar, Spanish Institutions of the Southwest ( Baltimore : Johns Hopkins Press, 1891) 3134 78 Sanchez, Early Hispanic Colorado, 1 52.

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33 colonial grant shall be divided into small lots in dimensions determined by the State Legislature. Nonnaturalized e mpresarios were prohibited from reserving for themselves a tract of land that exceeded sixteen square leagues.79 The rule s that applied to colonies were not intended to abrogate the law of 1824, which permitted the special grants of larger acreage to a single person. In any case, the regulations were rarely strictly adhered to. Whether out of ignorance, intentional manipulat ion, or genuine confusion, petitioners often combined portions of different laws in different ways to reach the desired result. The laws were seen as a framework that was adapted to the conditions in New Mexico. In 1835, Santa Anna seized control of the government. He attempted to centralized power again, including the power to grant land, but he found it difficult to recapture the power that had been distributed to the states and territories. The existence of a number of grants made under different rules at different times was also confusing. In 1853, Mexi co tried to resolve this confusion by declaring all grants made between October 3, 1835 and August 4, 1846 and between March 17, 1853 and July 7, 1854, void. This did not apply to grants in lands already ceded to the United States.80 The government of the d epartment of New Mexico was divided into two districts. In turn, those districts were split into jurisdictions called partidos New settlements in what would become southern Colorado were in the Taos P artido. The distance from the 79 Regulations of 12th March, 1828, in Schmidt, Civil Law Appendix VI 349; It is difficult to convert this measurement to U.S. miles or acres. The Mexican league was the distance that could be covered on foot in an hour. It would vary by terrain. This is still the standard used in some parts of Mexico today. In New Mexico a league is often converted to 4,428.4 acres. Using this conversion factor, sixteen square leagues would then equal 70,854.4 acres. 80 Sanchez, Early Hispanic Colorado 1 567; Gomez, History and Adjudication, 1065.

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34 settlements to Taos ranged from 70 to 150 miles making it a journey of several days.81 The distance discouraged reliance on the Taos Partido to r esolve any local problems. The primary local government official in New Mexico du ring the Mexican period was the alcalde constitutional a magistrate who presided over the local municipal councils ( as ambleas ). The main difference between the Mexican alcalde constitutional and the Spanish alcalde mayor was that the alcalde mayor had bee n appointed, and the alcalde constitutional was elected This meant that local politics played a bigger role during the Mexican period.82 On August 22, 1846, in the throes of civil war and the U.S. i nvasion, the Mexican government suspended the as ambl e as However, the New Mexico asambleas did not disband. Instead, th ey surrendered New Mexico to General Stephen Watts Kearney.83 The alcaldes combined legislative, executive, and j udicial functions much as the Cheyenne chiefs did. They presided over the asambleas and resolved local disputes. In rendering their judicial d ecisions, they referred to the formally enacted and written laws of the empire and the doctrina (opinions of other jurists) when they had access to these legal reference s. However, they o ften placed more emphasis on local custom, and equidad (equity). The alcaldes often rendered decisions shaped by local conditions and the needs of the community, even when those decisions were inconsistent with written law.84 In many ways, the government of the Mexican alcaldes and the asambleas were similar to that of the Native Americ an chiefs and counsels. However, there is no evidence that San Luis, Costilla or any of the other settlements in the San Luis Valley ever had elected or appointed alcaldes 81 Sanchez, Early Hispanic Colorado, 148. 82 Sanchez, Early Hispanic Colorado, 1 53, 158. 83 Sanchez, Early Hispanic Colorado, 1 54, esp. note 258. 84 Michael Carroll, The Penitente Brotherhood: Patriarchy and HispanoCatholicism in New Mexico (Baltimore, MD: Johns Hopkins University Press, 2002), 184 ; Marta, Weigle, Brothers of Light, Brothers of Blood: The Penitentes of the Southwest ( Santa Fe, NM: Ancient City Press 1976), 82

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35 or asambleas .85 Mexican Land Grants in Colorado Spain had issued some grants in this region before Mexican independents but the settlers were driven off by Utes. One of those grants was to the Baca family. In 1860 the Unites States go vernment indemnified the Baca family for land they had lost over 35 years before under Spanish rule by giving them five separate grants, two in Arizona, two in New Mexico and one in Colorado called the Luis Maria Baca Grant In order to pay their legal fees the Baca family deeded the Luis Maria Baca Grant to their attorney John Watts. 86 In the 1840s, New Mexican Governor Manuel Armijo issued a number of land grants in what is today southern Colorado. These i nclude the Beaubien Miranda (aka Maxwell), Conejos, Nolan, Sangre de Cristo, Vig ilSt. Vrain ( aka Las Animas) and Tierra Amarilla grant s Several of these grants now cross Colorado s border with New Mexico. T he Beaubien Miranda grant (aka Maxwell grant) and Sangre de Cristo grant were among the la rgest and most notorious of all the Mexican land grants. The Sangre de Cristo grant near San Luis was 998,764 acres and the BeaubienMiranda grant was 1,714,764 acres.87 In 1841 Charles Beaubien, a FrenchCanadian who was a naturalized Mexican citizen, and Guadalupe Miranda, Governor Armijo s private secretary, petitioned the governor for a land grant to form a se ttlement. The governor granted the deed. In June 1841, anti foreign sentiment swept across New Mexico prevent ing Beaubien and Miranda from 85 Olibama Lopez Tushar, The People of El Valle: A History of the Spanish Colonials in the San Luis Valley ( Pueblo : El Escritorio, 1997 ), 62. 86 Lopez Tushar, People of El Valle, 467. Parkhill, Earliest Settlements, 247.Watts granted it to Alexander C. Hunt who granted it to William Gilpin who granted it to George Adams who created Crestone. 87 Armijo was in and out of power at different times between 1837 and 1847. Ebright, Land Grants and Lawsuits 27; Van Hook, Mexican Land Grants, 61 63; Nicki M. Gonzales, Yo Soy Loco Por Esa Sierra: The History of Land Rights Activism in San Luis, Colorado, 18632002 (PhD diss., University of Colorado, 2007), 434; San chez, Early Hispanic Colorado, 1678; Athearn, Land of Contrast : 49.

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36 taking i mmediate possession of the grant. B y 1843 the public fear of foreigners had died down and Beaubien and Miranda asked that the grant be officially transferred to them. Shortly afterwards they conveyed shares in the grant to Governor Armijo and Charles Bent. Within two weeks the conveyance, Father Martnez who had lead the earlier opposition, lodged another objection. His earlier objections had been based on the nationalities of the grantees. This time he was concerned with the grant s size His challenges failed. As stated earlier, in actual practice, it was common to blend the different colonization laws. While the gran t may have been unethical, it may not have been inconsistent with contemporary practice. Three years later Martnez was accused of instigating the Taos Rebellion against the U. S. occupation government, in which the thengovernor Charles Bent and Charles Beaubien s son Narcisco part owners of the BeaubienMiranda and Sangre de Cristo Grants were murdered by Mexicans an d Pueblo Indians from Taos.88 Under the supervision of Beaubien s son in law, Lucien B. Maxwell, the colonists began settling the grant Miranda remained a silent partner and never took a day today interest in the grant. I n April 1844, New Mexico Governor Sea appointed Charles Beaubien alcalde for the new communities along the Poil and Cimarron Rivers. This was official recognition of his position as patrn. In reality, it was Maxwell who ran the communities. Ma xwell established a community at Rayado whic h served as the headquarters of the land grant.89 In 1843 Beaubiens 13 year old son, Narciso Beaubien, and Stephen Lee, the sheriff 88 Montoya, Translating Property 3 1 3. In theory, o n February 22, 1843, Beaubien, and Miranda survey ed the land, erect ed mounds t o mark the boundaries of their property. Some historians h ave doubted whether the ceremony actually took place. Beaubien and Miranda were in Taos on the day it was supposed to have occurred and were again known to be in Taos on March 2, 1843 However, such land transfer ceremonies like the English livery of seisin were becoming, if not already, legal fiction at the time. 89 Montoya, Translating Property 367

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37 of Taos, joined in another petition for a land grant to settle the valleys of the Costilla, Culebra, and Trinchera Rivers. T he governor granted this petition as well. When Narciso and Stephen died in the Taos Rebellion of 1847, Charles Beaubien inherited his sons share of the Sangre de Cristo grant and purchased Stephen Lees share from his estate. Charles Beaubien invited Mex ican colonists to settle on individual tracts of land and use the communal land. The community of San Luis was founded in 1851. I n the next four years six more settlements were founded.90 As with Rayado the se villages were riverine oriented with the siting of settlements and field patterns determined by the proximity to water.91 I n 1849, the New Mexican colonist s signed a treaty with the Utes that allowed them to settle unmolested. Later raiding sometimes forc ed settlers to abandon scattered settlements and band together in consolidated plazas for protection. To protect the villages from raiding and ensure the stability of the villages beyond the plaza, in 1852 Beaubien offered the U. S. Army a 25 year lease on the grant, including the right to pasture, cut grass [and gather] timber and firewood to build Fort Massachusetts. In 1856, the Army moved its base of operations closer to the villages and renamed it Fort Garland.92 The increased security led to rapid ex pansion of the villages. For the first few years, many of the settlers retreated to Taos during the winter months and continue to build their community along the riverbanks each spring. Rayados development followed a pattern of development similar to othe r Mexican frontier settlements: a plaza for living, strips of land for agriculture, and the commons for hunting, 90 Lopez Tushar, People of El Valle 35; Lamar, Policy in the Spanish Southwest, 500501 ; Gomez, History and Adjudication, 1041 n ote 16. Smith, Cultural Landscapes 180181. 91 Valdez, Culebra Villages Sec E 9. 92 Athearn Land of Contrast 50; Smith, Cultural Landscapes 181, 1857; Valdez, Culebra Villages Sec E 11.

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38 gathering, and grazing.93 By 1856 San Luis was large enough to build a church. As San Luis gre w and the social problems of the settlers became complex, Beaubien promulgated certain rules for the government of the Plaza of San Luis prohibiting nuisances, fights, and drunken revels. Obstructions of the entrances and outlets of the town were also prohibited. Outsiders were not permitted to live in the town wi thout having permission of the alcalde .94 Conejos Grant was located on the west side of the San Luis Valley and also initially had problems with the Utes, but became friendly with them and settled in the area called Los Ricones in 1848. Guadalupe was established in 1854 t hough it was subjected to flooding. The town was moved to the south side of the river and renamed in Conejos. In 1858, Father Vincente Montano was assigned to the parish and the following year the first church was built in Conejos The 1859 Conejos parish records indicate that twenty five villages existed in the watershed .95 In 1856 and 1857, the U.S. Surveyor General recommended that Congress confirm several large grants totalin g almost 3.4 million acres. On June 21, 1860, Congress confirmed the Tierra Amarilla Beaubien and Miranda (Maxwell), Vigil and St. Vrain (Las Animas), and Sangre de Cristo grants .96 By 1861, when the Territory of Colorado was created, over 7,000 Hispanics lived in the area of the gra nts.97 93 Montoya, Translating Property 37. 94 Cheetham Early Settlements, 6 7; Valdez, Culebra Villages, Sec E 9 10; Athearn, Land of Contrast 51. 95 Lopez Tushar, People of El Valle 39 41; Smith, Cultural Landscapes 181 ; Cheetham, Early Settlements, 5 7. 96 12 Stat. 71 (1860) ; Gomez, History and Adjudication, 10701;Valdez, Culabra Villages Sec E 9, 16 7. Between 1862 and 1863, Beaubien formalized 135 deeds to the pobladores (colonists) in the Rio Costilla, Rio Culebra, and Rio Trinchera watersheds. He also executed a document outlining rights and responsibilities of settlers to the common l ands In 1863, an ill Beaubien (and the partners he controlled) agreed to sell the grant to William Gilpin, first territorial governor of Colorado, for four cents an acre. Beaubien filed a document ( Beaubien document in Costilla County Records Book 1, p. 256 ) binding Gilpin and his successors to all covenants and agreements undertaken by Beaubien. Gilpin and his successors violated those covenants, leading to litigation that spanned from the late nineteenth century to the twenty first. 97 Joseph P. Sanchez, Early Hispanic Colorado 16781900 ( Los Ranchos, NM: Rio Grande Books, 2015): 3;

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39 Mexican American War & Treaty of Guadeloupe Hidalgo In the summer of 1946 Colonel Stephen W. Kearny invaded New Mexico. Charles Bent reported that two thousand Mexicans awaited Kearny in a narrow canon six miles from Las Vegas but when the U. S. army reached the pass, it found that the enemy had retired, and they took Santa Fe without resistance.98 On August 19, 1846, Kear n y read a proclamation in the plaza in Santa Fe that New Mexicans were now citizens of a territory of the United States He appointed civil officials and on Sept ember 22 promulgated the law of the territory known as the Kearny C ode M ilitary governors continued to administrate the territory even after the Treat y of Guadalupe Hildago was ratified March 10, 1948 until New Mexico was established as a territory on Sept ember 9, 1848.99 Despite the initial ease of capturing New Mexico, once Kearny headed on to California Pueblo Indians and Mexicans staged a revolt called the Taos Rebellion in January 1847. While the revolt was quickly ended, it resulted in the deaths of the owners of several of the largest land grants in New Mexico, including Charles Bent, Stephen Lee, Luis Lee, Narciso Beaubien, and Co r nelio Vigil.100 The Treaty of Guadeloupe Hidalgo signed February 2, 1848, ended the MexicanAmerican War. Treaty negotiators working in Mexico drafted an Article X, which required all grants to be respected as valid to the same extent as if the grants had remained within the limits of Mexico. President James K. Polk insisted Article X be deleted and the Senate ratified the treaty without it.101 The Mexican government objected and asked that United Lopez Tushar, People of El Valle 38; Davidson and Guarino, The Hallett Decrees 226. 98 Hall, History of Colorado, Vol. 3 128 9. 99 Weigle, Brothers of Light 77. 100 Lamar, Policy in the Southwest, 502. 101 Christopher David Ruiz Cameron, One Hundred Fifty Years of Solitude: Reflections on the End of the

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40 States to sign an agreement known as the Protocol of Queretaro, which stated that the United States did not intend to annul legitimate gra nts by deleting Article X, and land titles valid under Mexican law before May 13, 1846 would be considered legitimate under U. S. law President Polk did not include the protocol with the other treaty documents that he delivered to the Senate for ratification. This creat ed a dispute with Mexico that persists to this day.102 However, even without Article X or the Protocol, Articles VIII and IX of the treaty provided some basic protections of property in the territor y ceded to the United States.103 U. S. Territory of New Mexico Community Law and Order Under the Kearny C ode the alcaldes became local justices of the peace. The Organic Ac t of Mexico passed in 1850 set up a supreme court whose members also served as distri ct court judges.104 While the land grants were not exactly a form of peonage t he owner of the grant or the manager who lived there was often viewed as a patrn and often became the justice of the peace and settled disputes among the inhabitants.105 However, not every community had a justice of the peace. Where those were absent, the local parish priest might fill the role After t he signing of the treaty of Guadalupe Hidalgo the Holy See establish ed the territory of New Mexico as a vicariate in 1850. Jean Baptiste Lamy, a French born cleric, was appointed the first vicar apostolic. When the vicariate became the Diocese of Santa Fe in 1853, Lamy became its first bishop.106 Padre Antonio Jose Martinez and Mariano de Jesus Lucero from the Taos Valley periodicall y History Academy s Dominance of Scholarship on the Treaty of Guadalupe Hidalgo Bilingual Review / La Revista Bilinge 25, n o. 1 (JanuaryApril 2000) : 3 4; Ebright, Land Grants and Lawsuits 29. 102 Ebright, Land Grants and Lawsuits 29 30; Cameron, One Hundred Fifty Years of Solitude, 4. 103 Van Hook, Mexican Land Grants, 58 59; Ebright, Land Grants and Lawsuits 29 104 Weigle Brothers of Light 82. 105 Barbara Bintliff, A Jurisdictional H istory of the Colorado Courts, University of Colorado Law Review 65 (1994) 577630 577 106 Pulido, Sacred World, 41; Carroll, The Penitente Brotherhood, 14 5

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41 ministered to the Rio Culebra inhabitants in the early years of establishment. Later, priests stationed at Our Lady of Guadalupe Parish at Conejos County served the villages of Rio Culebra. 107 Conejos Parish was established in 1855 and Father Montano was the first priest assigned to the Parish. He was relieved by Father Jose Miguel Vigil in 1857. San Luis did not beco me a parish until 1886. Priests were in short supply in New Mexico and many communities did not have one. Between 1820 and 1850 only ten priests are believed to have served all of New Mexico. Much like the Native Americans and the Gold Rush settlers, these settlers evolved sociocultural forms adapted to their situation when other systems were inadequate or una vailable.108 Sometimes religious needs and law and order were maintained by the Nuestro Padre Jesus El Nazareno more commonly known as Los Hemanos Penitentes.109 Los Hemanos Penitentes While some scholars see connections between Los Hemanos Penitentes and tra ditional European confradias most agree that this particular order originated in northern New Mexico in the nineteenth century.110 The Penitentes were lay brothers who atoned for their sins through self flagellation and carrying and being bound to wooden crosses. They constructed meetinghouses, or moradas in remote areas at the outskirts of villages .111 Soon every Hispanic community in the region had its own morado, providing valuable services.112 107 Valdez, Culabra Villages Sec E 16. 108 Weigle, Brothers of Light xxvii, 82. 109 Meliton Velasquez, Guadalupe Colony Was Founded 1854 Colorado Magazine 34 no. 4 ( Oct ober 1957): 247, 267; Valdez, Culabra Villages Sec E 16; Carroll, The Penitente Brotherhood, 30 2; Alberto Lopez Pulido, The Sacred World of the Penitentes (Washington DC: Smithsonian Institutional Press, 2000) 2; Weigle, Brothers of Light xviii ; Pulido, Sacred World, 10; Smith, Cultural Landscapes 190 1; Jeffrey S. Smith, Los Hermanos Penitentes: An Illustrative Essay , The North American Geographer 2 no. 1 ( 2000): 701. 110 Carroll, The Penitente Brotherhood, 1 1 3 115 6 111 Smith, Los Hermanos Penitentes , 74. 112 Smith, Cultural Landscapes 193.

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42 During the latter part of the 19th century, the Brotherhoods strength increased as the various moradas or chapters became more organized and independent.113 At the core of their belief system was charity ( Caridad). The brotherhood cared for the sick and poor, interred the deceased, organized wakes and rosaries at funerals, assisted the widowed, and administered law and order within the village.114 Penitente morados had a hermano mayor (overall leader), reconcilador (assists and advises), Celandor (maintains or der) and other officers.115 Morados had written rules and the Penitente placed great stress on obedience to those written rules and the officials responsible for enforcing those rules. Ultimate authority resided in the hands of the hermano mayor who was resp onsible only to the written rules.116 While the moradas were very secretive organization some of their documents have been published in recent decades. One S outhern Colorado chapter had rules prohibiting revealing secrets of the organization, breaking oaths, failing in duties and disobeying an official. The B iblical Ten Commandments were also considered rules of the morados and breech of the commandments would result in punishment. Some violations required penance floggings or financial restitution, and others ostracism or expulsion. Like the Cheyenne, an expelled Penitente brother could be redeemed and readmitted given proof of gratitude and prayers offered for them. The rules of the morada governed both the group and the private life of its members.117 In most Hispanic villages at the time, nearly all of the adult males belonged to the Brotherhood, and most females functioned as auxiliaries in some way. Even when this was not so, the local 113 Weigle, Brothers of Light xix. 114 Pulido, Sacred World, 11; Valdez, Culabra Villages Sec E 16. 115 Carroll, The Penitente Brotherhood, 170. 116 Carroll, The Penitente Brotherhood, 170. 117 Weigle, Brothers of Light 82, 149150

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43 population was often subject to Penitente rule due to the moral power in the community.118 Among the duties of the Hermano Mayor w as to keep watch on the morals of the village by helping to form public opinion in the area. The Hermano Mayor would also settle disputes between members of the community. The Catholic Church regarded the Penitentes as extremists Bishop Lamy attempted to bring them under the control of the Church. When these attempts were unsuccessful he condemned the Brotherhood as a political society solely in search of political power. Regardless of Lamys attacks some moradas survived into the twentieth century and faded as their legal and social functions were gradually supplanted by other organi zations and members moved away .119 A cequia G overnance Another local institution of the Mexican Land Grant settlements was related to the maintaining and operation of acequias (irrigation ditches) .120 The settlers brought with them experience with irrigation techniques and institutions of water governance cultivated for many years. The construction and maintenance of the irrigation system were essential to the creation of new settlements. Settlers were required to contribute their labor to the building, maintenance, and defense of the irrigation system. Customs of allocation based on these principles might vary from localit y to locality, and were based on principals of equity rather than appropriation or riparian rights .121 Custom dictated that the water be divided among all users by a mayordomo. Acequia 118 Smith, Los Hermanos Penitentes , 73; Carroll, The Penitente Brotherhood, 162 119 Pulido, Sacred World, 4951. Smith, Los Hermanos Penitentes , 74; Athearn, Land of Contrast 52.Carroll, The Penitente Brotherhood, 15. 120 Carroll, The Penitente Brotherhood, 114. 121 Pea and Hicks, Community Acequias 410411.

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44 users elected a commission. The comisionado supported the m ayordomo s work and collected dues for overseeing the ditch and for improvements to the acequias S ince each acequia irrigated suertes in a specific site, affiliated water users worked together to maintain and repair the acequia. Besides equitably distributing water the mayo r domo had to ensure that no one built dams or placed obstacles in the path of the water.122 During part of the year, the families could divert water from the river at will because the flow was substantial and the plots small enough that no farmer could take it all. Nevertheless, the flow into and from smaller irrigation canals along the back sections of the vara strips had to be carefully regulate d to distribute it equitably.123 A disagreement with the allocation by a m ayordomos could be appealed to a justice of the peace, but in most cases the mayordomos decision was accepted as final .124 Following initial settlement of villages in the 1850s, the mayordomos took legal action to protect their water rights, by registering water rights claims This preserved their rights under the new system of prior appropriation that was developing north of them in Kansas Territory. Dozens of acequia originally dug while Southern Colorado was still part of New Mexico Territory still operate and many still use the same method of governance within the constraints of Colorados current water law .125 122 Valdez, Culebra Villages Sec E 13. 123 Montoya, Translating Property 37. 124 Pea and Hicks, Community Acequias , 4134. 125 Valdez, Culebra Villages Sec E p 13; Gonzales, History of Land Rights 56 7.

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45 CHAPTER VI LAW OF THE UNITED STATES Kansas, Nebraska, Utah and New Mexico Between 1789 and 1834, Congress passed 375 land laws. However, no matter how many laws Congress passed, land distribution could not keep up with settlers. Coping with these squatters was challenging, especially when they encroached on lands reserved by tre aty. It was the duty of the U. S. Army to protect Indian lands and public domain lands. Sometimes they had to use force to remove squatters or keep them at bay, but that was not a popular duty and sometimes the squatters outnumbered the troops .126 I n 1834, C ongress passed the Intercourse Act which declared all territory west of the Mississippi river to be Indian Country except for the states of Louisiana and Missouri and the Territory of Arkansas. On September 9, 1850, the organic acts of the Territories of New Mexico and Utah were approve d, carving pieces out of Indian Country The land south of the 38th parallel between the Rocky Mountains and the west line of Texas was attached to New M exico Territory. Lands west of the Rocky Mountains became part of the T erritory of Utah. The remainder was Indian Country.127 T he Fort Laramie Treaty of 1851 reserved most of the land between the North Platte River and the Arkansas River to the Cheyenne and the Arap ahoe Indians.128 In May 1854, Congress created the T erritory of Kansas. Under the Kansas Nebraska Act the Territory of Kansas extended from the western boundary of Missouri to the summit 126 Limerick, Legacy of Conquest 61 ; Raymond L. Welty, The Policing of the Frontier by the Army, 18601870, Kansas Historical Quarterly 3 no. 3 ( August 1938) accessed March 15, 2017 https://www.kshs.org/p/ the policing of the frontier by the army 18601870/12760. 127 Cheetham, Early Settlements, 3. 128 Calvin W. Gower, Kansas Ter ritory and the Pikes Peak Gold Rush: Governing the Gold Region, The Kansas Historical Quarterly 32 no. 3 (Autumn 1966): 310.

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46 of the Rocky Mountains between 37 to 40 latitude. However, the Kansas Nebraska Act of 1854 specifically excluded lands reserved to Indian tribes by treaty and stated that such lands would constitute no part of the territory of Kansas, until said tribe shall signify their assent to the president.129 Many of the participants in the Colorado Gold Rush were probably unaware of the limitation in the Kansas Nebraska Act. A few, like William Byers, editor of the Rocky Mountain News were aware of it. Most who came were aware that they were venturing into Indian Territory, but they like the others before them expected that probl em to eventually be swept away. Appeals were made to the federal government to negotiate with the Arapahoe and Cheyenne to extinguish their title to the lands I n June 1860, Congress provided $35,000 to cover the expenses of doing so. In September 1860, A. B. Greenwood, Commissioner of Indian Affairs, held a council with the Southern Arapahoe and Southern Cheyenne and another meeting was arranged in a few months. The second council resulted in the Treaty of Fort Wise which was signed January 1861 clearing the way for the organization of the T erritory of Colorado.130 The section of the Kansas Nebraska Act excluding Indian territory from the Territory of Kansas challenged the legitimacy of attempts to organize that part of the territory between 1854 and 1861. Kansas itself was in turmoil in those years and there was rapid turnover of government officials. Some of them seem to be unaware of the existing law s of Kansas even as they attempted to create more. 129 Gower, Kansas Territory, 289, 310; Kansas Nebraska Act 1854, 1 0 Stat. 283; ch. 59, 19. 130 Gower, Kansas Territory, 311.

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47 Arapahoe County, KT In August 1855, Acting Kansas Territorial Governor Daniel Woodson signed a bill creating Arapahoe County. Arapahoe County included all of the Kansas Territory west of a line running due north of the northeast corner of New Mexico to the border between Nebraska and Kansas.131 The m ajority of that area was within the land reserved to the Arapahoe and Cheyenne in the Treaty of Fort Laramie. The territ or ial legislature and acting governor either were unaware that they were not authorized to govern that land or they did not care. The same act of the Territorial Legislature appointed Allen P. Tibbitts as probate judge and James Stringfellow as clerk of the probate court. Tibbitts, Levi Mitchell, and Jonathan Atwood were also appointe d county commissioners and assigned to locate the county seat. Another act attached Arapahoe County to Marshall County as the closest organized county. There is no evidence that any of those four people ever went to Arapahoe County, much less attempted to create a county seat. On October 18, 1856, the Kansas Weekly Herald in Leavenworth reported that Benjamin F. Simmons had been elected to represent Arapahoe County in the legislature of Kansas. However, historian Calvin Gower argued that the election was a fraud. He expressed doubt that Simmo ns or the electors were residents of Arapahoe County and he provided evidence that Simmons was a proslavery resident of Leavenworth. National politics and perhaps the temptation of an easy paycheck, were the most likely impetus for the creation of Arapahoe County, Kansas Territory.132 On September 25, 1858, Territorial Governor of Kansas, James W. Denver, appointed 131 Gower, Kansas Territory, 283. 132 Gower, Kansas Territory, 290 2 ; The county is most often spelled Arrapahoe in Kansas legislation. Kansas Weekly Herald October 18, 1856; Barbara Bintliff, A Jurisdictional History, 579.

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48 new county officers and sent them to the Pikes Peak area to represent Kansas Territory and to found the county seat He appointed H. P. A. Smith, probate judge and Hickory Rogers, Joseph McCubbin, and Lucillius Winchester, county supervisors with Rogers chairman board of supervisors E dward W. Wynkoop was appointed s heriff, John W. St. Matthew, county attorney William Larimer, treasurer and Hampton L. Boon, clerk. These officials set out for the Pikes Peak region with their credential s Some of them had plans other than setting up a new county seat .133 When this group, commonly called the Larimer group, arrived at the co nfluence of Cherry Creek and the South Platte River, they found Auraria under construction, but decided that the east side of Cherry Creek would be a better place for the county seat and a better place to sell town lots Another group had alre ady staked a claim for that area as the townsite of St. Charles, but Larimer and his group decided to call it Denver. Edward Wynkoop was send back to Lecompton with the papers for the Denver City Town Company. When he arrived in early Jan 1859 he found he was too la te because the Lawrence party had already filed the papers for the St. Charles Town Company. Wynkoop made a deal with the St. Charles group. He would withdraw opposition to their filing if they added the Larimer party as members of the St. Charles Town Com pany. They agreed and the legislation incorporating St. Charles was passed on Jan 11, 1859 and signed by the governor on Feb 11, 1859.134 The miners objected to the appointment of the Arapahoe County officials and asked them to resign. The appointed official s said they would consider it. One miner threatened that 133 Gower, Kansas Territory, 2 9 4 5; Smiley, History of Denver 193. 134 Louis Kraft Ned Wynkoop and the Lonely Road from Sand Creek ( Norman: University of Oklahoma, 1992) 2730; The Montana Town Company and the El Paso Town Company were also passed and approved at the same time.

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49 if they did not there would be squally times in the valley of the South Platte.135 Some correspondents initially refused to accept the Arapahoe County officials, in pa rt because they were afraid that the acceptance of the officials would impair the chances of obtaining an independent territorial government. In the meantime, on November 6, 1858, the fewer than two hundred men in this region held an election and elected both a representative in the Kansas Legislature and a delegate to the U.S. Congress,. The first was to represent their interests in this portion of the Kansas Territory and the second was to lobby for a separate territory The prospectors and town builders wer e hedging their bets. Hiram J. Graham was sent to Washington, D .C and A. J. Smith to Lecompton, Kansas .136 To add to the confusion, in January 1859, the Kansas territorial legislature passed without consulting anyone who lived there, legislation to divide most of Arapahoe County into five sm aller counties: Montana, Oro, Broderick, Fremont, and El Paso, effective March 1, 1859. This legislation was approved by the Governor on February 7, 1859. The act also appointed commissioners to establish county seats and call for election s of county officials in these new counties as soon as possible.137 The residents of the Pikes Peak region were even less enamored of the five new counties and its commissioners, and for the most part chose to ignore them. On March 28, 1859, residents of Arapahoe County, KT elected Arapahoe County officials The governor authorized those elections in Arapahoe County on May 21, without repealing the statute creating the five new counties, which had placed Denver and the mining districts outside of 135 L etter written by G. N. Hill Nov. 28, 1858 published in Kansas City Journal of Commerce January 15, 1859 in Hafen Contemporary Letters and Reports 173 4 136 Hall, History of Colorado, Vol. 3, 208 210. 137 General Laws of Kansas Territory 1859, 357361; Gower, Kansas Territory, 296 9 ;

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50 Arapahoe County .138 Nevertheless, at a mass meeting in Gregorys diggings on June 8 the miners voiced their disapproval of both Arapahoe County and the five counties established to replace it. H. P. A. Smith who had originally been appointed judge of the probate court of Arapahoe County protested against the creation of the five new counties. He suggested putting one of the commissioners on a mule and giving him an invitation to ride out of the country! 139 A. D. Richardson, one of the commissioners for the new counties had arrived in Denver the day before and attended the meeting He said that if the people in the Pikes Peak region wanted a separate state government he was willing to drop the attempt to es tablish Montana County at the site of Denver .140 William Walters, another of the commissioners, reported to a newspaper in August 1859 that the miners and settlers wanted nothing at all to do with the laws passed last winter organizing new counties in the gold region.141 Gower report ed that a bill was introduced in the House of the Kansas territorial legislature to restore the county of Arapahoe to its original limits and boundaries but it never progressed through the legislature .142 The lack of loyalty by the appointed officials to the legislature in the e astern side of the territory was in part due to t he lack of pay for the county officials An addendum to the act creating the five counties had made it clear that the commissioners and other officials o f those counties had to raise funds for their own pay by selling lots at the townsites of the county seats. Wynkoops position as Arapahoe County sheriff paid, but only per arrest and 138 Rocky Mountain News April 23, 1859; Gower, Kansas Territory, 300; Hall, History of Colorado, Vol. 3, 183. 139 Mass Meeting, Gregory Diggings, Rocky Mountain News June 18, 1850; Gower, Kansas Territory, 300 140 Gower, Kansas Territory, 300 301; Since the new Arapahoe County was near the current eastern border of Colorado, there was no one living there in early 1859 other than Native Americans. 141 Gower, Kansas Territory, 301 ; Lawrence Republican August 8, 1859. 142 Gower, Kansas Territory, 312.

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51 conviction. This did not bring in a lot of money.143 The miners did not wait to sort out the confusion related to the Kansas county courts but instead formed their own courts to handle disputes over claims and other problems they anticipated. However, the court of each min ing district only applied to the miners within the dis trict, and except for the few times when multiple mining districts held joint me etings, their courts had no jurisdiction beyond. D espite the opinions expressed, t he courts of Arapahoe County, Kansas territory received a large share of the cases. Jerome Sm iley wrote, the superiority of the Kansas jurisdiction, however dubious it might prove to be, was accepted by the great majority of the people when the more direct of their affairs were involved; such, for example, as titles to real estate.144 The legal notices that appeared in the Rocky Mountain News and other newspapers in 1859 and 1860 are evidence of this For example, i n September 1859, two notices of petitions to the probate court of Arapahoe County for orders to sell a part or all of the real property of an estate appeared in the News Attachment s, injunctions, and an action to en force the specific performance of a contract were also handled by the probate court of Arapahoe County in October and November 1859 .145 The April 18, 1860 issue of the Rocky Mountain News listed the cases tried in the April term of the District Court of Arrapahoe County, Hon. A. J. Allison. Justice. There were three replevin cases and one for 143 Kraft, Wynkoop, 33 5, 42. Wynkoop took a job as an actor to supplement his pay as sheriff. He also work ed as a bartender at Charles Harrisons Criterion Saloon This might be considered a conflict of interest to day since some people believed Harrison to be a criminal. 144 Smiley, History of Denver 359. 145 Gower, Kansas Territory, 306; Rocky Mountain News of Aug ust 29, 1860 included notice from the court of Arapahoe County KT of an inj unction against Green Russell to prevent him from paying on a note which a person had sold to someone else ; Rocky Mountain News of Sept ember 4, 1860 contained a notice of attachment of lot where Cibola hall was located and a ranch from the Court of Arapahoe Count y KT against the estate of James A. Gordon to cover promissory notes

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52 attachment .146 One replevin case was withdrawn and the other two resulted in judgments for the plaintiff. The re were two s uit s for damages The plaintiff won one and the other was dismissed There was one action for debt that was withdrawn and an unknown case that was continued. A plaintiff won an appeal from a justice of the pe ace court. There was also a lawsuit between the estates of Sa ngerdorf, a murderer and William West, his victim, both of whom were deceased. The s uit was withdrawn As discussed in the cases in the Appendix many of the criminal cases were presided over by judges appointed or elected to that position for Arapahoe County, even though newspapers referred to them as Peoples Courts. The legislature and the governor of the territory of Kansas continued to send mixed messages. On February 27, 1860, the Kansas t e rritorial l egislature passed a Joint Resolution asking the US Congress to appoint an additional United States District Judge for Kansas Territory to serve the extreme western portion of the Territory now embraced in the county of Arrapahoe, comprising wha t is generally known as the Pike's Peak country or Jefferson Territory. The last sentence of this resolution is especially troubling in light Pettits ruling later in the year: Resolved, That, if said additional judge be so awarded and assigned, nothing contained in any law defining the judicial districts of the Territory of Kansas shall interfere with the provisions of these resolutions.147 The Kansas government was still acting as if Arapahoe County covered all of western Kansas, yet seemed to be aware t hat there was an irregularity in the judicial distr icts. In July 1860, (despite the lack of repeal of the five counties ) the Governor of Kansas issued commissions to three men as officers in the Jefferson Rangers, Company B, Denver City, Arapahoe County, and to R ichard E. Whitsitt 146 Replevin is an action for the return of personal property. Attachment is a legal procedure under which property is taken and sold to settle a debt. 147 Joint Resolutions Memorializing t he Congress of the United States for the award of an additional United States District Judge for Kansas Territory, General Laws of Kansas Territory 1860, 239 40

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53 as register of deeds in and for the County of Arapahoe. During the summer of 1860, the Gordon Case ( s ee Appendix) cast new doubt on the validity of Arapahoe County K T .148 In that case when a murderer named James Gordon was tracked from Denver to eastern Kansas Kansas authorities initially refused to turn him over to Deputy Sheriff Middaugh, who had been deputized by both the Arapahoe County, sheriff appointed by the Kansas governor, Edward Wynkoop, and a U. S. Marshall They insisted that Gordon had to be tried in the courts of the eastern side of Kansas However, at a preliminary hearing, Judge Pettit, chief justice of first judicial district of Kansas, ruled not only that he had no jurisdiction over the case but that NO judicial district in the Territory of Kansas had jurisdiction over the case or any other case that occurred in Denver Pettit admitted that the 1860 legislature had created the confusion by placing Arapahoe county in the first judicial distric t of Kansas without making clear that Montana C ounty created in early 1859 had never existed and the original boundaries of Arapahoe County still applied. He stated that by the law, the town of Denver is not in Arapahoe county.149 A lbert D. Richardson, ed itor of the Western Mountaineer who had been appointed chairman of the board of commissioners sent out by the Legislature to organize Montana County disagreed with Judge Pettits ruling. He claimed that the law creating Montana County expired by its own expressed limitations, in nine months from the date of its passage, and of course Denver r emains in Arapahoe county, precisely as it had never been passed. However, there is nothing in the legislation he refers to, or any other legislation passed by the Kansas Territorial Legislature in 1859 or 1860, that supports Richardsons 148 Gower, Kansas Territory, 305 6. 149 Gower, Kansas Territory, 307 8.

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54 position.150 After Pettits ruling and two attempts by a Kansas mob to hang Gordon, Sheriff Middaugh was able to convince the authorities to release Gordon into his custody and he brought Gordon back to Denver for trial. However Denverites had had enough. A public meeting held July 30, 1860 passed a resolution repudiating all allegiance to the laws of Kansas Territory, and that we will never under any circumstances submit to come within her jurisdiction.151 Judge Pettits ruling gave new impetus to the Jefferson Territory movement which had languished for some months. It also encouraged the formation (or reformation) of the Denver city government with its own courts. By late 1860, residents of what would soon be Colorado had recourse to several courts, including miners courts in the miners districts.152 Jefferson Territory The people who settled near Cherry Creek were fond of holding elections. In 1859, there were nine elections in Denver including those for the city, county and state or territorial government but not counting mass meetings or elections of peoples courts officials.153 Part of the reason for this was the multiple attempts to form an alternative to the rule of the Te rritory of Kansas. In April 1859, a constitutional convention m et. After discussions for some weeks it adjourned until the first of August, at which time one hundred and sixty seven delegates, representing thirty seven precincts, assembled to deliberate fu rther. A debate ensued as to whether they should try for a Stat e or a Territorial form of government. The delegates 150 Western Mountaineer Sept 27, 1860; General Laws of Kansas Territory 1859, 357 361 151 Rocky Mountain News August 22, 1860 152 Gower, Kansas Territory, 306. Rocky Mountain News Oct 6, 13, Nov. 17, 1859. 153 Hafen, Wildman Letters 78 note 62; A list of the elections is at: Hafen, Colorado and Its People 209.

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55 decided to seek a state government and framed the constitution accordingly. This constitution was present for a vote of the people and was overwhelmingly defeated. Some miners feared that a state would tax the mines and opposed it on that basis.154 Almost immediately, there was a call for another assembly of delegates on October 1st to consider a provisional government. After an initial decision to go forth with drafting a constitution of a provisional government H. P. A. Smith, who had been appointed a judge for Arapahoe County entered a protest on the grounds that that the laws of Kansas Territory already applied to them. Smith further insisted they had no legal right to form such a gover nment, especially when the people did not call for it. He was further concerned that such an act would abrogate all the legal rights in existence and place the region at the mercy of a gigantic vigilance committee. He was largely ignor ed and the convention proceeded with its program.155 Debates arose in the convention and in the Rocky Mountain News in October 1859, about whether Indian title to the gold region had been extinguished and thus whether Kansas law extended to over the area at all William Byers a rgued that Indian title had not been extinguished and thus they were excluded from Kansas by the terms of the Kansas Nebraska Act. A. H. Townsends disagreed. He argued that the United States had the chie f title in the land and could organize it into a territory as it pleased. He noted that the Kansas Nebraska Act authorized the organization of counties throughout the territory whenever the people demanded it.156 Regardless the convention marched on and adopted a constitution for a provisional government of the Territory of Jefferson. An election was set for October 24, 154 Hall, History of Colorado, Vol. 3, 208 210 155 Hall, History of Colorado, Vol. 3, 208 210 156 Gower, Kansas Territory, 310.

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56 which included elections for the principle officers of the territory as well as the approval of the constitution At this election, t he voters approved the constitution of the Territory of Jefferson and elected R. W. Steele, Governor and Lucien W. Bliss, Secretary of State (which at that time was essentially Lieutenant Governor as well) and several other territorial officers.157 The Jefferson Legislature proceeded with its duties and passed a full slate of civil and criminal codes, including the incorporation of the combined city of Denver, Auraria and Highland. It provided for the organization of nine counties and the election of county officers therein. It levied a poll tax of one dollar per capita to pay for the costs of the government.158 The per capita tax was strenuously opposed by some people when they heard about it a f ter the legislature adjourned in January 1860. Those who oppose the tax or opposed the provisional government i n general spread the false rumor that before adjourning the legislature had enacted a law taxing the miners six to seven dollars each, to be collected at immediately plus a percentage tax on all mining claims at their estimated value. The rumor s spread l ike wildfire ,, and incited a general revolt against the provisional government among the miners .159 Jefferson Territory could have been a viable government. Its initial failure in early 1860 had several cause s One was that the elected governor, R. W. Steele left the territory shortly after being elected and left Lucien Bliss Secretary of State, acting governor. The stated purpose of this trip was to garner support for the territory and bring his family to Je fferson. However, he was gone for four months w hile the legitimacy of Jefferson Territory 157 Hall, History of Colorado, Vol. 3, 208 210. 158 Hall, History of Colorado, Vol. 3 211. 159 Hal l, History of Colorado, Vol. 3, 211.

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57 was under attack from within and Bliss was a poor substitute Bliss obviously had poor judgment since his method of defending the territory was to become involved in a duel that resulted in the death of a member of the legislature. While the Rocky Mountain News was a staunch advocate for Jefferson Territory it eventually conceded that its arguments were being ignored. If Governor Steele had remained here that s pring, he may have been able to staunch the false rumors of taxes that put the miners up in arms and perhaps smoothed things over with other men who were angry that that they had not received a position in the government. As it wa s by the time Steele returned at the end of May, Jefferson Territory was moribund, and he may have been perplexed about what had happened in his absence.160 By the time he and his family were settled, the crime spree that plagued Denver in the summer of 1860 was already beginning and the spotlight would not turn back to Jefferson Territory until after the Gordon case destroyed the credibility of Arapahoe County .161 For some reason during the pursuit and capture of Gordon in late July 1860, Judge Pettit of Kansas Territory granted a perpetual injunction against the government of the Jefferson Territory, which according to the Western Mountaineer was served upon the officers of the provisional government. I have not seen a copy of this injunction and thus do not understand its terms or purpose. The Western Mountaineer primarily u sed its existence to rant about the condition of the Jefferson Territory. It pointed out that the adoption of provisional governme nts before statehood was not unusual, giving New Mexico Utah, Dacotah, Arizona, and Carsons Valley as examples. It also mentioned that Kansas itself had already drafted four state constitutions but had not yet been admitted to the Union.162 160 Rocky Mountain News May 30, 1860. 161 Rocky Mountain News Sept 12, 1860. 162 Western Mountaineer August 2, 1860.

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58 A new movement for state organization made its appearance on August 7th i n Golden City where a mass meeting was held over the need for bette r government T hey pledged themselves to unite in forming a state government at the earliest date. They also repudiat ed the pr ovisional Jefferson government T he people of Mountain City took a different route at a mass meeting there After roundly denounced the federal government for its indifference to the petitions from the Pikes Peak region, they announced that they were compelled to recognize that Jefferson Territory was better than no government at all and would support it full y until a s tate or t erritorial organization should be provided. They repudiated all allegiance to the laws of Kansas, and declared that they would never submit to be included in that jurisdiction. They also call ed for a convention to frame a state constitution and the immediate application for admission into the American Union.163 Rocky Mountain News supported this renewed interest in Jefferson Territory, and Governor Steele followed with a proclamation for another election of officers, members of the Legislative Assembly, etc., of Jefferson Territory to be held October 22. T he t wo movement s then went forward simultaneously. Election of a new legislature proceeded and that legislature met on November 20 and enact ed laws as in its first session At the same time delegates met to draft a state constitution.164 Neither of these mo vem ents knew how close they were to becoming moot. Two obstacles were impeding the Congressional approval of a territorial government for Colorado: the termination of the claims of the Arapahoe and Cheyenne under the Ft. La ramie Treaty and the question of slavery in Kansas and the unorganized territories. While it was known that delegations had been meeting with the Arapahoe and Cheyenne people in 163 Hall, History of Colorado, Vol. 3, 247 8. 164 Rocky Mountain News Sept ember 12, Oct ober 3, 1860; Hall, History of Colorado, Vol. 3 210, 249

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59 the gold mining region did not know how long that process would take. They also had sketchy knowledge of political intrigues i n Washington, D.C. over the slavery question and little knew that the legislation to authorize their territory would be slipped through when Stephen Douglas was out of the room On February 18, 1861, just t hree months after the second session of the Jefferson Territory began the Ft. Wise Treaty was signed by some chiefs of the Arapahoe and Cheyenne and ten days later on February 28, 1861, Congress passed the Organic Act of Colorado Territory, placing under Colorado jurisdiction most of the land ced ed by the two tribes.165 When Colorado Governor Gilpin arrived in Colorado in June 1861, Jefferson Governor Steele yield ed the office to the official governor and direct ed that all officers holding commissions under hi m to surrende r them and abstain from exercising the duties of the offices they held. The first Colorado Territorial legislature convened September 9 1861.166 Town Companies To claim that a place is lawless suggests a lack of law, and perhaps even a lack of interest in law. However, the people who flooded into this region between 1858 and 1861 seemed obsessed with law and government. They were interested in the federal and ter ritorial laws that were supposed to cover the region, and they had a fondness for creating their own. They held so many meetings, elections, and conventions and wrote so many letters to local and distant newspapers on the subject of law and government, it is hard to imagine that these people had any time left over for mining or other means of maki ng a living. S ome legal structures they created locally were intended to maintain law and order and thus prevent 165 Coel, Chief Left Hand 1201; Hall, History of Colorado, Vol. 3, 249 51, 1601. 166 Hall, History of Colorado, Vol. 3, 266 8.

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60 criminal disruptions to society. Others were prim arily intended to create and protect commercial enterprises. The first of these created were the town companies. Town companies were agreements which primarily served to secure townsites However, they like all corporations at the time were not official until confirmed by the state or territorial legislature. This meant a long ride back to Lecompton (or Leavenworth). There also was the problem that the federal townsite act did not apply to Denver or most of the other areas where town companies were settin g up. In such a case, they acted more like unincorporated associations and the agreements merely bound the members to each other. Some people joined a town company because they intended to settle there; many other s were land speculators who sold their lots as demand increased. Some settlers were members of a number of town companies, which casts doubts on their loyalty. Claim clubs were broader agreements for mutual aid. The signers agreed to help defend the land cl aims of all the other signers. Some claim clubs were organized for town land, some for agricultural or ranch land, and some for all types. Mining Districts combined the attributes of both town companies and claim clubs and went further to claim a degree of sovereignty that neither really possessed. In addition, while the Mining Districts originated in the various mineral diggings their laws included provisions related to townsites and agricultural land as well as rules applying to mining The settlers wh o came to what would become Colorado did not invent town companies or land claim clubs For example, in 1857 agents of a land company, financed and organized by Minnesota Democrats founded and organized Sioux Falls and petitioned for territorial status .167 But the sheer number of these entities that sprouted in the Pikes Peaks 167 Limerick, Legacy, 83 4.

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61 region starting in the fall of 1858 is overwhelming. Extensive records still exist of some while others have vanished completely. Some existed on paper far longer than they lasted as a physical settlement. The first of these were El Paso City and Montana City. El Paso City The group of prospectors and town builders called the Lawrence party initially headed to Pikes Peak and laid out a town at the gateway to the Ute P ass which is now part of Colorado Springs. They named the town El Paso. A number of town lots were assigned to the members of the town company, and several were sold, but founders soon moved north first to Montana City and then to Auraria and Denver. El Paso langui shed.168 However, members of the town company still file d their papers with the Kansas legislature when they went east that winter and El Paso was one of the first three town companies incorporated along with Montana City and St. Charles.169 The following spr ing a large party of town developers located Colorado Cit y east of the hogbacks and north of Fontaine qui Bouille (Fountain Creek) in a crescent s haped park and El Paso City vanished from history .170 Montana City During the summer of 1858, several groups of prospectors wandered around looking for gold. The first place the Russell group settled for any period of time was the Placer Camp about six miles upstream from Cherry Creek near the confluence of Little Dry Creek and the 168 Smiley, History of Denver 191. 169 Gower, Kansas Territory, 2 98; Private Laws of Kansas 1859, pp. 20910, 21920, 226 27 Montana Town Company included. William B. Parsons, Jason T. Younker, Philip Schweikert and other personnel of the Lawrence party. Some of the members of the El Paso Town Company were William ODo nnall, the correspondent of the Lawrence Republican; J. T. Younker, a member of the Lawrence party and of the Montana Town Company; and L. J. Winchester, one of the Arapahoe county officials. The third and most important of these town companies, St. Charle s, had enrolled in its ranks three Lawrence party members, Theodore C. Dickson, Frank M. Cobb, and Charles Nichols, and two Arapahoe county officials, Edward W. Wynkoop and William Larimer, Jr. [same source] 170 Simmons Building Report 10.

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62 South Platte River. By the time La wrence group party arrived in the area around September 4, the Placer Camp was nearly abandoned. However, some members of the Lawrence group, as well as a few from the Russell group thought a spot a little north of the Placer Camp would be ideal for a town They organized a company and elected Josiah Hinman, president and William J. Boyer s ecretary. Fifteen to twenty cabins were built before winter in regular rows fronting on streets in orderly town fashion. The rows were named Kansas, Lawrence, and Leavenworth. This town was called Montana City Several of the members of the Montana City Town Company started back to eastern Kansas early in October and took with them the documents to file with the territorial legislature. However, Montana City di d not last long. The Kansas territorial legislature incorporated Montana City along with El Paso and St. Charles in February 9, 1859. B ut b y the time the men returned with the corporate documents the town was gone, the logs hauled off to build cabins in Auraria and Denver.171 St. Charles The founders of St. Charles carefully surveyed their proposed town site of one square mile of land east of Cherry Creek and south of the South Platte River. They ran the lines of a few streets through it. On September 24, 1858, the St. Charles Town Company adopted a constitution (which was copied from the Montana City Constitution) and on September 28, they elected officers. On October 2, 1858, they drafted b y laws. However, they had made no attempt to build a structure on their townsite. Instead, t hey had made Montana City their headquarters while they were organizing St. Charles After the meeting on October 2, all of 171 Private Laws of Kansas 1859, pp. 20910, 21920, 22627; Sanders, Wilbur Edgerton, Montana Organization, Name and Naming, Contributions to the Historical Society of Montana (1910):1560; Gower, Kansas Territory, 298; The Montana Town Company included William B. Parso ns, Jason T. Younker, Philip Schweikert and other personnel of the Lawrence party. Hall, History of Colorado, Vol. 3 ,179 80; Smiley, History of Denver 1901. Montana City is now represented by a new playground at its original site on the east side of the South Platte River south of Evans Avenue.

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63 th e St. Charles Company members, excepting John Smith and McGaa, decided to return to eastern Kansas for the winter and return in the spring. Smith and McGaa agreed to look after the companys interests here. However, after members of the company were on the road and met a nu mber of other people traveling west they becam e concerned about the lack of any type of improvement on their claim. Charles Nichols was delegated to go back and build a structure on the land they claimed. For some reason, Nichols did not want to build it hims elf but instead tried to hire someone else to do so. He was unsuccessful because he had no money. He then tried the old four log improvement method. Then Samuel S. Curtis convinced him that was not adequate and helped him haul enough lumber to build a small cabin next to Cherry Creek near the cu rrent location of Blake and Wazee Streets. Unfortunately, that is outside the square mile plat surveyed for the town of St. Charles. So there is some doubt about whether the claim had been perfected before it was jumped by Larimers group, notwithstanding the filing with the territorial legislature.172 As stated earlier, when Edward Wynkoop attempted to file the papers to incorporate the Denver Town Company he found the documents for the St. Charles Town Company were already before the legislature. Wynkoop made a deal with the members St. Charles Town Company to withdraw his opposition to their filing if they added members of the Larimer party as members of the St. Charles Town Company. They agreed and that is how it was passed on January 11, 1859, and signe d by the governor on February 11, 1859.173 So the City of Denver was really operating on the St. Charles land claim until Richard 172 Smiley, History of Denver 199205. Smiley includes copies of several St. Charles documents which rediscovered a few years before he wrote his history of Denver; An Inventory of the Records of The Auraria Town Co mpany, Collection Number 23, Colorado Historical Society, 1993. 173 Gower, Kansas Territory, 298; Private Laws of Kansas 1859, pp. 20910, 21920, 226. St. Charles, had enrolled in its ranks three Lawrence party members, Theodore C. Dickson, Frank M. Cob b, and Charles Nichols, and two Arapahoe county officials, Edward W. Wynkoop and William Larimer, Jr. Louis Kraft, Ned Wynkoop and the Lonely Road from Sand Creek (Norman: University of Oklahoma, 1992) 27 30.

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64 Sopris called for a repeal of the charter of the St. Charles Town Company in March 1860 a fter Denver had been established under the Jefferson Territory. Th e charter was repealed because grifters were using the St. Charles claim as the basis for land frauds.174 Auraria In October of 1858, the Russell group decided it was time to make their plans for the winter. Green Russell would go back to Georgia for the winter, recruit more men, and return in the spring. His brother Dr. L evi J. Russell and two or three others w ould proceed to Fort Garland to obtain a fresh supplies and the remainder of the group would build cabins for the winter. Dr. Russell decided that their winter quarters should be built at the mouth of Cherry Creek instead of at the Placer Camp or Montana City. U nlike El Paso and Montana, the settlers of the Auraria Town Company started building before doing paperwork. By the time Dr. Russell returned from Ft. Garland in midOctober the initial cabin was finished except the chimneys, and was already occupied by the builders, with some Arapahoe Indians camped nearby. A ccording to D r. Russell that cabin was the only structure on either side of Cherry creek, and no other was begun until we started in to organize a town company, which we did in a few days.175 The first meeting of the Auraria Town Company was held on October 30, 1858. The stockholders elected officers on November 6, 1858, choosing W illia m McFadding pres ident H. Dudley Vice President Dr. L evi J. Russell Secretary and trader John S Smith Treasurer.176 The shareholders adopted a simple company constitution not unlike articles of incorporation a small corporation might use today. They set out the duties of the officers and 174 Rocky Mountain News, March 7, 1860. 175 Smiley, History of Denver 192 176 Oddly enough, trader Jack Smith was also treasurer of the St. Charles Town Company.

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65 the board members F or example, A rt icle 9 made it the duty of t he Board of Directors to superintend the surveying, platting, lithographing or mapping of the townsite the printing or writing shares of stock, and hold all company property in trus t for the benefit of the company The Constitution also stated that it was the duty of the Board of Directors to call a m eeting notifying the stockholders if it became necessary to levy any tax on the members The Auraria Town Company also passed b ylaws The first a rticle of the b ylaws required all shareholder lots to be improved within 60 days after donation by the corporation or else the donat ion became null and void.177 Auraria grew rapidly. During the fall and winter of 1858, about one hundred and twenty five houses were built in Auraria Soon there were grocery stores, hardware stores and whiskey tents.178 Denver grew, too, on the other side of Cherry Creek. Despite the inter creek rivalries, in March 1859, a mass meeting in Auraria approved the consolidation of Auraria with Denver. The meeti ng gave its assent reserving the right of West Denver, as it was to be called, to make its own municip al regulations, hold the title to the townsite as before, and maintain its organization as a town company. 179 The process of merg ing was not completed until December 3, 1859, when an act of the Jefferson Territory combined with Auraria, Denver and Highland, and incorporated them as one city.180 Denver City Denver City Town Company formed on November 17, 1858 staking claim to the land east of Cherry Creek already claimed by the St. Charles Town Company. The y adopted a 177 Minutes Constitution and By laws of Auraria Town Company Records 18581860 Denver Public Library, http://digital.denverlibrary.org/c dm/ref/collection/p15330coll6/id/361. 178 Hall, History of Colorado, Vol. 3, 182. 179 Hall, History of Colorado, Vol. 3, 250. 180 Smiley, History of Denver 632.

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66 constitution five days later. Several of the initial officers of the Denver Town Company had previously been appointed officers of Arapahoe County, K .T.181 In March 1859, Denver and Auraria merged into one city but Auraria still maintained some separate rights.182 The merger was not complete until December 3, 1859, when an act of the Jefferson Territory Legislature incorporated Auraria, Denver and Highland as one city.183 Technically, until this time Denver had actually been operating under the St. Charles charter T hat charter was repealed in March 1860.184 The new City of Denver, Auraria and Highland was governed by a mayor and twelve council members. The first city election was held December 19, 1859 and the c ouncil met for the first time on January 21, 1860.185 Confidence in the city government and the Jefferson Territory waned beginning in the spring of 1860. In September 1860, c itizen s met at Apollo Hall to discuss making a new city government. A committee was appointed to draft a constitution for the new city government. On September 21, 1860, another meeting was held The new constitution of The Peoples Government of the City of Denver was presented and adopted.186 The election was held for officers of The Peoples Government on October 1, 1860.187 John C. Moore won the office of Mayor, and some felt he provided str ength and effective administration that had been lacking .188 The new Peoples Government continued to run Denver until Colorado Territory was 181 Denver City Town Company Record Book Mss.01813 (accession 99.225), History Colorado. 182 Hall, History of Colorado, Vol. 3, 250. 183 Smiley, History of Denver 632. 184 Rocky Mountain News, March 7, 1860. 185 Smiley, History of Denver 633. 186 Smiley, History of Denver 634. 187 Smiley, History of Denver 634. 188 Western Mountaineer O ct 18,1860; Hall, History of Colorado, Vol. 3 211.

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67 organized. The new territorial legislature confirmed the city charter and on May 28, 1864, Congress enacted a law for the relief of the citizens of Denver, which confirm ed by Congressional grant the titles to land that had grow n out of the irregular proceedings of the founders of Denver.189 Other Early Front Range Towns Several other encampments began in the winter of 18581859. Miner George Jackson and several others started an encampment called Old Arapahoe Village a little east of North Table Mountain which they were surveying for a townsite The West ern Mountaineer reported the townsite was abandoned because it was haunt ed.190 In mid O ctober 1858, a party from Nebraska City e stablished camp at the Red Rock s near the entrance to Boulder C an y on and buil t a group of log houses for winter shelter that was sometimes referred to as T he Eleven Cabins .191 By February 1859, fifty six shareholders had formed the Boulder City Town Company.192 During that winter, a number of traders and prospectors had also assembled near the Poudre River a nd formed a town they named Colona The y built about thirty or forty cabins. It later became the town of Laporte.193 Another city was born to the south at a camp near the mouth of the Fontaine qui Bouille (Fountain Creek) After camping a few weeks they decided to lay out a town. They made a survey and plat of the new town and called it Fontaine C ity. The place soon received a number of other recruits B efore winter set in some thirty log cabins were built and some 189 Smiley, History of Denver 205 190 Western Mountainer January 18 and 25 1860. Could this have been the site of an Arapahoe village devastated during the epidemic of 1849? Today there is a monument sans plaque in a parking lot. 191 Smiley, History of Denver 196. 192 Percy S. Fritz, Fritz, Percy S., Was Mountain District No. I, Nebraska Territory, the First Mining District Organized in Colorado? Colorado Magazine 15 no. 3 (May 1938 ): 8189, 82. 193 Smiley, History of Denver 196.

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68 adobe was taken from the crumbling walls of the old Pueblo which stood nearby. Later Fontaine City was absorbed by the city of Pueblo .194 In 1859, Dr Levi Russell and some associates organized the Highland Town Company across the South Platte River north of Auraria a nd Denver The site was surveyed and staked off but they did not attempt to incorporate it, nor did they build anything on it that year. On December 3, 1859, Highland was merged with Denver and Auraria and incorporated as the City of Denver by the Jefferso n Territorial Legislature.195 Claim Clubs As I stated above, claim clubs were essential ly mutual aid societies. The members agreed to protect the land claims of all other members. The concept was not new. Settlers in Wisconsin and Iowa had developed similar organizations years before the Colorado Gold Rush.196 In Colorado, the claims clubs bridged the gap during the time when official land registration was not available. While they were more common ly used for agricultural land, claim club members could also be called upon to protect land claims within a town, as people in Denver did during the Claim Jumpers War in January 1860.197 There were a number of claim clubs formed in this region between 1858 and 1861. The Arapahoe County Claim Club covered most of the area around Denver. Boulder County, which was originally called Jackson County, was covered by the Jackson Claim Club that was also know n as the G reat Western Land Claim Club. There was also the El Paso Claim Club, the Canon City Claim Club aka Arkansas Valley Claim Club, the Platte River Valley 194 Simmons Building Report 10; Ralph C. Taylor, Caon City Had Glorious Beginning, Pueblo Star Journal and Sunday Chieftain, 18 June 1972, 2C; Rocky Mountain News March 9, 1890, 2021; Smiley, History of Denver 1956. 195 Smiley, History of Denver 222, 632. 196 Kr aft Wynkoop, 35. 197 Rocky Mountain News February 8 1860; Western Mountaineer Feb 8, 1860.

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69 Claim Club, the Farmers Claim Club and another claim club in the Cherry Creek valley .198 Claim club members agreed to protect members in the pea ceable possession of their claim not just from claim jumpers but also at public sales .199 The claim clubs settled land claim disputes between members. The Record Book of the El Paso Claims Club mostly contains descriptions of land claims and conveyances. I found one trial of a dispute between members dated March 23, 1861, but the jury split and the matter was considered undecided.200 Other claims clubs may have been more active in that regard. The constitutions of the claim clubs were short d ocuments of a few pages that established the borders controlled by the claim club, set out the officers and their duties and determined the minimum requirements for establishing and maintaining a claim within the area. Th ese requirements might just include staking the claim or it might include a requirement to build an improvement on the land, or plowing or planting a crop within a set number of days.201 Laws of the Mining Districts Discovery of Gold in Colorado There are numerous candidates for the first to find gold in Colorado but it is clear that the Spanish had mined in this region at least as far back as the sixteenth century Don Juan de Oate discovered gold mines in the San Luis Valley somewhere between the Culebra and Trinchera in the 1590s The mineshafts found later were very shallow and the Spanish 198 George L. Anderson, The El Paso Claim Club, 18591862, Colorado Magazine 13 no. 2 (March 1935): 43; George L. Anderson, The Canon City or Arkansas Valley Claim Club,18601862, Colorado Magazine 16 no. 6 (November 1939): 201210. 199 Anderson, El Paso Claim Club, 44. 200 Record Book o f t he El Paso Claim Club, 18591861, Pikes Peak Public Library. 201 Anderson, EL Paso Claim Club, 44; Anderson, Canon City Claim Club, 2034.

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70 records indicate that Oate s expedition was considered a failure .202 Even if we narrow the field to the people who found gold in Colorado in the nineteen th century before the Russell group came west from Ge orgia in 1858, there is still a long list.203 However, it is not clear whether the Russell brothers knew of these other stor i es or found them creditable. It is known, however, that Green Russell and his Cherokee friends and inlaws knew from m ore direct experience that there was gold near the Shining Mountains. When rumors of gold in California spread people from every occupation flocked to the W est but experienced miners were rare.204 Green Russell and his brother John were exceptions. Their father James R ussell, had prospected and mined gold in South Carolina and Georgia and had taught them to pan gold at an early age. When they headed west in late 1848, they went through the new Cherokee Nation lands beyond the Mississippi River Green was married to a Cherokee woman and s ome Cher okees from Indian Territory joined them on the trip to California Another party of Georgians lead by Lewis Ralston followed the same route a bit behind them. Ralston also had inlaws among the Cherokee. His group was also joined by some Cherokee, includin g John Beck. The Ralston party paused briefly before crossing the Shining Mountains to pan for gold in a small stream They saw some color and made note of it for another day. The y called the creek Ra lston Creek.205 Most of the me n from Georgia and Indian Territory who went to California as prospectors and miners, not as settlers. By the end of 1849, John and Green Russell had 202 Hall, History of Colorado, 85, 1745; Hammond and Rey, Crowns Participation 295; Smiley, History of Denver 179 203 These include William Bent s children, James Pursley Old Parson Bill Williams and a cattle trader named Parks Hall, History of Colorado, Vol. 3, 97, 1756. Smiley, History of Denver 1802. 204 Frank Fossett Colorado: Historical, Descriptive and Statistical Work on the Rocky Mountain Gold and Silver Mining Region, ( Denver: Daily Tri bune Steam Printing House, 1876) 19. 205 Spencer, Green Russell 23; Smiley, History of Denver 1804 from Dr. Levi Russell and Dr. Peirce.

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71 mined a substantial amount of gold and were ready to go home. Eight years later while on a trip to Kansas Green met with John Beck, the Cherokee Baptist preacher who had travelled with Lewis Ralston. Beck agreed to gather a group of Cherokees together to join Green, his brothers and a group of miners from Georgia on a prospecting trip to that area the fol lowing spring.206 A p rospecting party was organized in Lumpkin County, Georgia consisting of Green, his brothers Oliver and Levi, Lewis Ralston, William Anderson, Joseph McAfee, Solomon Roe, Samuel Bates and John Hampton. This party left home on the February 17, 1858 expectin g to join a party of Cherokee party at Maysville, in Indian Territory. On May 28, they received a message that the Cherokee group was now miles ahead of them. The two groups joined near the Great Bend of the Arkansas.207 W hile the Cherokee group had been organized by John Beck, it was now being led by George Hicks, Sr., a prominent Cherokee. He was a lawyer by profession, had served on the Cherokee bench as Judge. Ezekiel Beck and Pelican Tigre were two other Cherokee who joined Becks group. Becks contingent had been joined by several other people after it started. These were George McDougall, a brother of Senator McDougall of California; Philander Simmons, an experienced mountaineer; Levi Brumbaugh; a man named Kirk with his wife and two children; a man named Kelly and his wife and her sister and three other men named Brown, Taylor, and Tubbs .208 When the two groups combined they numbered seventy men, with fourteen wagons, thirty three yoke of 206 Spencer, Green Russell 3940. Smiley, History of Denver 1801 Smiley cites his source as Dr. Levi J. Russell brother of Green Russell, who came out in 1858. The Russells were from Dahlonega, Lumpkin County, Georgia and knew members of the 1850 Ralston party. 207 Jerome C. Smiley, History of Denver Denver, Colorado: The Times Sun Publishing Co., 1901, 184; Spencer, Green Russell 42 45. 208 Smiley, Hi story of Denver 184; Spencer, Green Russell 46.

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72 cattle, two horse teams, and twenty or more ponies.209 On June 12, they stopped briefly at Fort Bent before heading north towards Cherry Creek. They followed the creek north to the South Platte River. They arrived at the confluence of Cherry Creek and the South Platte River on June 24, 1858 and camped on the west side o f the creek.210 The group crossed the Platte River and headed up Ralston Creek. Results there were disappoint ing and soon the Cherokee contingent began to talk of leaving. Green knew that it was n ot just the results from panning that concerned the Cherokees. They feared the wild plains Indians. On July 4, 1858, the majority of the party l eft. The remainder continued to prospect up and down the South Platte River, Cherry Creek and ot her creeks nearby.211 The men moved farther up east side of the Platte to the mouth of a small creek, then almost without water There they worked a day or so and found some gold. They moved still farther up the river to the mouth of a larger creek which, al so, was almost waterless, and which was called Dry Creek, but now appears on maps as Little Dry C reek. They began prospecting in its bed, and one evening, at a point a short distance from its mouth, the y found m ore gold than they had yet seen in one place anywhere in this region They dug large holes in the wet sand, put their roc kers down in them, and soon washed out more gold than they had found in all their other prospecting.212 They spent a while at Little Dry Creek then prospected up along the Front Range. They encountered a snowstorm that convinced them they should be consideri ng winter quarters. The y returned to the Placer Camp at Little D ry Creek and found they had been joined by the Lawrence group who were building a town near their camp and panning in the 209 Smiley, History of Denver 185. 210 Smiley, History of Denver, 185. 211 Spencer, Green Russell 4953; West, Contested Plains 10 4 5; Smiley, History of Denver 187. 212 Smiley, History of Denver 1878. Spencer, Green Russell 57; Hall, History of Colorado, Vol. 3, 177.

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73 Platte and the creek. The Russells decided to move up to the confluence of Cherry Creek and the South Platte River and make their winter quarters there.213 Other prospectors flooded into the country. These included George Jackson who would find the first gold placer in the mountains (as opposed to on the plains) and John Gregory who would find the first lode source of gold in the mountains. Others prospected in the canyons near Boulder and Golden. While some such as Jackson, prospected in the winter, others waited for spring. 214 Mining District Governments The laws of the Gregory Mining District are those most frequently cited and quoted, and seem to have been copied by more other districts. However, priority of time belongs to Mountain District No. 1 in the Gold Hill area of what is now Boulder County. While the exact date of the first meeting seems to have been lost. It preceded the organization of the Gregory District by weeks, if not months. The earliest surviving records are of a meeting on July 23, 1859 to amend the existing laws and other business. Some sources claim the district was organized on March 7 but I have not f ound any reliable source to substantiate that date. Smiley gives a date of April 17, 1859, and claims documents in possession of the State Historical Society showing these transactions to have oc curred on that date without saying what these documents may be.215 H istorian Percy S. Fritz disputed Smileys date but calculated that the founding date had to be between the first discovery of gold in the area on January 16, 1859 and the earliest recorded claim on June 23, 1859. Fritz argued for a March 7 date based on the date of the November 5, 1858 election since the officers held six month 213 Smiley, History of Denver 1856. 214 Hall, History of Colorado, Vol. 3, 181, 187, 1924. 215 Smiley, History of Denver 266.

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74 terms. The district seems to have changed its name from Mountain District No. 1 to Gold Hill Mining District sometime between July 30 and October 15, 1859 but the exact date of that change is also uncertain.216 A s spring approached in 1859 and the number of new goldseekers surged, both those who came first and those who came after saw a need for rules and some form of governance to maintain existing claims and allow new ones to proceed in an orderly fashion. As is the case in most of the Colorado Mining Districts, the organization of Mountain District No. 1 was simple. T he re were had three officials : a president, recorder and a constable who were elected for six months terms The president presided over meetings and acted as a judge, when necessary. Each miner who ha d a claim in the district had a right to vote at the meetings. The recorder kept the minutes of meetings and recorded mining claims in the claims book of the district. The recorder also issued claim certificate s signed by the president. T he constable was the peace officer of the district. He held prisoners who were awaiting trial; he collected fines executed liens and sold claims to satisfy judgments.217 As is true of the other mining districts, the majority of th e laws of Mountain District No. 1 dealt with claims. T hey defined the size of a claim and specified that each person could hold a maximum of two claims by discovery.218 The Gold Hill District prohibited the sale of liquor in the district despite repeated eff orts to repeal the rule .219 The records list cases, for example, Win. Bryan vs. Mr. Culver listed in the record for Oct 29, 1860. However, no 216 Percy S. Fritz, Was Mountain District No. I, Nebraska Territory, the First Mining District Organized in Colorado? Colorado Magazine 15 no. 3 (May 1938): 82 3, 88; Clarence King, The United States Mining Laws and Regulations Thereunder, and State and Territorial Mining Laws Report to the Tenth Census. Washington: Go vernment Printing Office, 1885, 347; Laws of the Gold Hill Mining District, 1859 61, Archives, University of Colorado Boulder ; Wilbur F. Stone, History of Colorado, Chicago: S. J. Clark Publishing Co., 1918. 217 Fr itz, Mountain District No. 1 867. 218 Fritz, Mountain District No. 1 87. 219 King, United States Mining Laws 350; Fritz, Mountain District No. 1 88.

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75 details are provided which makes it impossible to determine if it is a claim jumping a border dispute or a theft or assault.220 The most heinous charge in the surviving records of the Gold Hill Mining District appears in the record for December 5, 1860, in which a former constable was accused of charging fifty cents for se rving papers when the district laws only allowed charging twenty five cents and overcharged mileage in case of Collins vs Pancost by one dollar and twenty five cents.221 On April 24, 1861, a Mr. Collins spoke in favor of suspending the miners court for th e district in favor of the territorial court. However, on motion of the President the district chose to sustain the miners courts of this district. A number of other districts sustained their miners courts for a substantial period after the organization of the Colorado Territory. The Territorial Legislature later r atified the actions of the miners courts.222 On May 14, 1859, t he Rocky Mountain News reported a Miners Meeting occurred May 9, 1859 at Jackson Diggings, Cooks Creek. The meeting gave no name to the distr ict and cited three r ules related to claims that were adopted. The rules allowed the Chicago Company two extra claims. The meeting appointed a committee to draft a permanent constitution and bylaws.223 Missouri Gulch was neither large nor first but a review of their ini tial laws provides some insight into the miners priorities. On July 13 1859, miners met and adopted their initial rules for Missouri Gulch. Sylvester Davis was elected secretary and recorded the rules in his diary. Davis also attended meet ings in other mining districts where he also may have had claims. Thus, he was familiar with the rules being developed in other district. The initial 220 King, United States Mining Laws 349. I have not included such cases in the case studies in the Appen dix. 221 King, United States Mining Laws 349. 222 King, United States Mining Laws 351. 223 Rocky Mountain News May 14, 1859.

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76 rules for Missouri Gulch were simple. They defined the boundaries of the district and defined the size of gulch and dry placer claims and quartz claims. They stated that each miner was allowed to claim one of each kind and hold one of each kind by purchase. They allowed a miner to cut a tailrace below the claim to drain water from the mine. They also set out w ater use rules that were a mix of appropriation and reasonable use. Rule number seven required claims to be worked at least on c e every six days. The initial laws of Missouri Gulch also provided that five disinterested men shall settle or decide all difficulties In rega rd to Mining holding claims. Throughout the summer, the Missouri Gulch miners met to refine the laws. However, these priorities were fundamental to nearly all mining districts. Other rules were added over time, but the original inspiration was to clarify claims between the miners, not because the mine camps were plagued by violence, as is often claimed.224 The Gregory Mining District is believed to be the third district to have organized and set out its laws after Gold Hill and Jackson. T hose two earlier districts were based on placer claims. The mining districts in Gregory and Russell Gulches were lode or q uartz mining districts. They were also initially the largest and developed comprehensive laws fairly rapidly. In May 1859, prospector John H. Gregory followed Clear Creek from its confluence with the South Platte into the mountains and discovered the lode source of the gold in the gulch subsequently named after him. Others joined them. On June 8, the miners held a mass meeting at Gregory Poin t. The miners formed the Gregory Mining District, established the boundaries of the district, and roughly outlined a nd adopted the laws of the district. Within weeks, newcomers to the mining district began to complain about the privileges of those who 224 Sylvester Davis, Diary of Sylvester Davis , New Mexico Historical Review 6 no. 4 (October 1931): 396.

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77 came earlier. A committee was formed to revise the rules of the district. At subsequent meetings in July, the miners adopted the revised rules and elected a president, a recorder of claims and a sheriff. On February 11, 1860, a committee was appointed by the miners to further amend and codify the law of the district. The miners created many new districts out of Gregory di strict, the country adjoining, and throughout the mountains in 1859 and 1860. In August 1859, the N evada District was split off from the Russell District, each with their own laws .225 The laws of the Gregory Mining District were among the most detailed and comprehensive. Many new districts copied their laws and customs from the Gregory Mining District modifying the details as appropriate.226 Initially most law s of the mining districts co nsisted of a series of resolutions that could be tedious to search. Later the larger districts codified their laws. The laws of the mining districts set boundaries of the district defined the size of lode claims a nd fixed the methods of locating and registering .227 The mining district laws were not just about mines They also included rules for making water claims, mill claims, ranch claims, building claims and townsites. They had laws governing murder, theft, fraud (perjury, salting mine claims, pullin g up stakes), setting fires, and probate issues. Most mining courts punished theft with a combination of lashes and a fine or restitution. However, in March 1861, the Union District made stealing a yoke of cattle, or a single mule, horse, or pig a hanging offense. Cutting or mutilating green trees by peeling bark was prohibited by most districts. They also often 225 Hall, History of Colorado, Vol. 3 229. 226 Tom I. Romero, II, Law, Order, and Municipal Authority i n Colorado s Early Mining Towns, Colorado Lawyer 31, no. 10 (2002): 134; Henderson Mining i n Colorado, 9 10, 29; J. H. B eadle, Western Wilds And The Men Who Redeem Them : Authentic Narrative (Chicago: Jones Brothers & Co., 1881) 477. 227 Hall, History of Colorado, Vol. 3, 205.

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78 prohibited nonresidents of the district from driving or herding cattle for grazing on public lands. The Union District prohibited dueling .228 Some of the mining districts empowered the president of the district to resolve minor disputes. Some districts elected judges or justices of the peace who presided over Miners Courts. 229 Sometimes the President served in both roles. Some district laws s et out processes for arbitration or mediation of some disputes. Usually there were provisions for a jury trial in criminal matters and it was sometimes available for civil matters. Civil proceedings and minor criminal matters would have smaller jury panels sometimes of three five or six jurors .230 The miners courts handled all the usual court actions like attachment, garnishment, replevin, ejectment and liens. They had rules of evidence and rules for how to take and submit depositions. They ha ndled equity claims as well as legal claims. Most referenced the laws of the Territory of Kansas. A few referred back to English Common Law. Some of the mining districts, including the Independent and Hawkeye Districts, prohibited lawyers from practicing before their c ourts in a representative capacity; other districts, such as the Gregory and Russell Districts, allowed attorneys to practice before them if they took an oath to uphold the Constitution of the United States and the laws of the di strict. The Gregory Mining District add ed the promise that neither for gain malice, fear or favor will you prejudice the cause of your client to the oath. The Union District initially prohibited attorneys under penalty of not more than 50 lashes not le ss than twenty lashes and be forever banished from this court but later relented and allowed attorney to practice in 228 Laws of the Union Mining District, 18601 Archives, University of Colorado Boulder 229 The primary and secondary sources have Miners Courts, Miners Courts, an d Miners Courts. For simplicity, I have the apostrophe off. 230 Laws of the Union Mining District, 18601 Archives, University of Colorado Boulder ; Henderson Mining i n Colorado, 29; Thomas Maitland Marshall, ed., Early Records of Gilpin County, Colorado 1859 1861, ( Boulder: University of Colorado 1920 ), 135.

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79 their courts if they took an oath.231 Some scholars claim that the mining districts lacked the coercive power of an official government. However, there is evidence that the mining courts were able to maintain law and order. The collective voice of all the miners in the district could be very coercive. The winner of a disputed claim received possession immediately. When a miner was banned from the district, he usually left at once because most, if not all, of the miners in the district knew of the judgment and had participated in the formation of the rules. Most districts also appointed a sheriff or constable to enforce the decisions of the cou rt and to administer lashings, which were the most common form of punishment. As time progressed, many of the mining districts appointed the Arapahoe County sheriff or his deputies as the sheriff of the district.232 The Jefferson Territorial Legislature confirmed the acts of the mining districts and incorporated the miners courts into its judicial system. After statehood, portions of the laws of the mining districts were incorporated into state and local laws.233 The creation of the Colorado territory by Congress on February 28, 1861 was not immediately sufficient to supplant the miners courts for there were no territorial laws or courts to enforce them for some time. The miners courts fell into disuse after the first Territorial Legislature passed the Civil and Criminal Co de and created the territorial courts in the winter of 186162. At that time, the legislature acknowledged the legal heritage of the miners courts and authorized all their acts not plainly contrary to justice or the common law.234 231 Laws of the Union Mining District, 18601 Archives, University of Colorado Boulder ; Marshall, Early Records of Gilpin County, 31, 61, 194, 237; Charles E. Lewis and D.F. Stackelbech, History of the Bench and Bar of Colorado, ( Denver : Bench and Bar Publishing, 1917), 17. 232 History of Clear Creek 32; Anderson, Anarcho Capitalism, 12, 19. 233 Jeff. Terr. Laws, ch. 29, 1 (1860) 234 Act of Nov. 7, 1861, 12, 1861 Colo. Terr. Sess. Laws 16667; Act of N ov. 7, 1861, 8, 1861 Colo. Terr. Sess. Laws 380 81. Henderson, Mining in Colorado, 29; History of Clear Creek 32; B eadle, Western Wilds 477478.

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80 In 1874 the Colorado Supreme Court ruled that it was not enough to show that a deed [from one miner to another] was found upon the records of the Illinois Central District, but proof of the local rules and customs regulating the transfer of mining claims was required.235 Under the federal Mining Act of 1872, which still applies today, mineral lands may be acquired under regulations prescribed by law, and according to the local customs or rules of miners, in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.236 Th us the laws drafted by miners in the mountains of Colorado in the late 1850s and early 1860s still live today. 235 Sullivan v. Hense 2 Colo. 424 (Colo. 1874). 236 Colby, Extralateral Right, 21.

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81 People s Courts Unlike any of the foregoing, the Peoples Courts were not ongoing institutions in Gold Rush Colorado. They were ad hoc courts raised by the local residents to try a case, usually a serious case. However, there was some ambiguity. As is highlighted in a f ew of the case histories in the Appendix, s ometime s one newspaper would say a particular case was tried by a miners court and another would say it was a peoples court or a newspaper would call it a peoples court and a diarist or letter writer would thin k it was a county court. In Denver, the cases tried by peoples courts were often presided over by judges who had been appointed for Arapahoe County, K .T ., or elected by the people to serve as a judge for the county, or city Sometime cases had three judges. Sometimes there was a preliminary hearing by one judge while the trial was presided over by another. Sometimes there had been a coroners inquest into the cause of death prior to arrest. When an accused was not arrested on the scene or immediately chased down, judges issued arrest warrants before law enforcement officials went to arrest them. The process of rounding up jurors and presenting evidence was the same regardless of the label applied to the court Prosecutors were chosen by the people for each case because there were no official government prosecutors. T hat was no an unusual system in the nineteenth century. In the United States the families of wealthy victims often hired private prosecutors rather than using public ones and sometimes no public prosecutor was available. In England, barristers were hired for one side or the other of criminal cases well into the twentieth century. In most Colorado peoples court cases, the defendant was provided with one or more attorneys for their defense wh ether they could afford one or not. The most common sentences handed out by peoples courts were whipping,

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82 restitution, banishment, and hanging, which are not only similar to all the other legal systems in the region, but were similar to the remainder of the country at the time. For example, the federal Crimes Act of 1790, which was still in force at the time, set death as the punishment for murder and thirty nine lashes plus payment of a fine four times the value stolen as the punishment for larceny.237 Bet ween 1858 and 1861, Denver did not have a courthouse and I have not found any other town in the region that had one T rials were sometime s held in dance hall s or saloons. Most of the time in Denver weather permitting, trials were held outside because no building was large enough to hold all the people Cases proceeded in an orderly and deliberate fashion. Some trials were completed the same day. Others spanned several days. One side or the other could request time to gather evidence and it was usually granted. Witness es testified and were cross examined Physical evidence was presented and examined. Sometimes the juries of peoples courts convicted sometimes they acquitted and sometimes they could not come to a consensus. Some people used the label peoples court in a derogatory fashion. The press was fickle. Newspapers lauded the peoples courts when they agreed with the decision s and c urs ed them when they di d not. They would demand official courts However, when the official courts did not act as t hey expected they cursed lawyers and advocated a return to peoples courts Some scholars apply the label peoples court to promote a theory f rom Hubert Howe Bancrofts glorification of popular tribunals to the condemnation of the same by Manfred 237 Crimes Act of 1790 ch 9, 1 Stat. 112 Sections 3 and 16.

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83 Berg, Mi chael Pfiefer or Stephen Leonard.238 I argue that each individual case must be examined to determine the process and the effect of the peoples court The question to ask is whether the accused was given due process, not from a theoretical or twenty first century view, but in the context of the time. Would the trial have been differe nt if it had taken place in a courtroom? The answer in most cases is no. In Colorado, you can also ask whether the outcome or the process would have been any different if it ha d taken place after the organization of the Colorado Territory. Again the answer in most cases would be no. I do not claim that there were no instances of vigilante executions where no trial was provided. There were. But it is important to distinguish b etween to the two. The hangings of Vanover in Golden in September 1859, Atkins near Missouri City in March 1860, and John Shear near Denver in September 1860 seem to be clear cases where no trial was provided at all.239 On the other hand, the conviction and execution of Biencroff in April 1859 and Gordon in October 1860 are clearly case s where the accused was afforded all process due In Gordons case, Sherriff Middaugh twice saved Gordon from mobs in eastern Kansas want ing to string him up, in order to bring him back to Denver for a trial. Gordons conviction may have been a foregone c onclusion, but that was because he committed his crimes in public in front of numerous witnesses. Nevertheless, he was tried, allowed to c onfront his accusers and given all the other legal safeguards provided by American society at the time. 238 Hubert H. Bancroft, Popular Tribunals ( San Francisco, The History Company, 1887); Manfred Berg Popular Justice: A History of Lynching in America. Chicago: Ivan R. Dee, 2011 ; Michael J. Pfeifer Rough Justice: Lynching and American Society 18741947. (Urbana: University of Illinois Press, 2006); Michael J. Pfeifer, The Roots of Rough Justice: Origins of American Lynching. (Urbana: University of Illinois Press 2014) and Stephen J. Leonard, Lynching in Colorado, 1859 1919. (Boulder: University Press of Colorado, 2002.) See also Andrea McDowell, Criminal Law Beyond the State: Popular Trials on the Frontier, Brigham Young University Law Review (2007): 327385. 239 I have doubts about A. C. Fords execution. I suspect that h e may have faked his own death and escaped. This is discussed in the Appendix.

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84 CHAPTER VII CRIME AND VIOLENCE It is not possible to discuss law and law enforcement without som e consideration of crime and violence. What we call crime tend s to be some of the most serious problems in society That is why in many societies the prevention and punishment of crime is a function of the government rather than a private matter. The mythology of the O ld West is that it was violent and was especially violent during times of large migrations like Gold Rushes. Casting aside for the moment the contributions of art and literature, scholars who argue for the West in general being violent often combi ne large spans of time and space That can drown out the finer analysis. Most of Earth is covered with water, but that does not mean there are no deserts. Many studies of violence in the West include time spans that cross the Civil War. While they exclude the direct causalities of the war, they are probably not filtering out indirect casualties of war. Studies show that violence increases among veterans of w ars Many psychological and sociological theories are offered to explain the increase. Regardless of the reasons, we must deal with it as fact when studying violence in the nineteenth century Even the antebellum Bleeding Kansas violence over the question of slavery cannot easily be separated from either crime statistics or the Civil War. A young William C. Quatrill was attacked crossing Kansas on his way to the Pikes Peak region. His brother was killed. He swore to get revenge and Quatrills Raiders became the terror of Kansas and Missouri before during and after the Civil War. Some of those raiders like the James brothers, never stopped fighting.240 Eric Dean reported that i n the North, twothirds of all men admitted to state 240 Ellis, Mark R., Law and Order in Buffalo Bills Country: Legal Culture and Community on the Great Plains

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85 prisons after the Civil War w ere veterans and admissions at some prisons were up by 400%.241 The South also reported surges of crime with former Confederate soldiers running wild and terrorizing citizens.242 This post war violence effect is one of the reasons why grouping all homicides or other crimes in the second half of the nineteenth century will lead to poor results. A number of historians studying violence in the West do precisely that. In so doing they blend together the acti ons of thousands of unassociated people in differing economic and social conditions with entirely different motivations for the purpose of making some point. In some cases, this is found in statistical analysis and other times in spurious comments. Ashraf H. A. Rushdy for example, wrote: What began in Colorado as a relatively organized means of protecting material property by the extralegal peoples court eventually became an orgiastic means of protecting the far more important property of whiteness . which resembles a description of the range of choices available on a salad bar more than it does any kind of analysis.243 I chose the narrow time period of 1858 to 1861 in an attempt to avoid the effects of the Civil War. It is not wholly effective because I think we do see some violence that may be sectional in nature, whether b leeding over from eastern Kansas, or arising from within as the war draws near. I have accumulated case histories between1858 and 1861 which I have arranged in the Appendix in chronological order. They include murders, assaults, duels, 18671910 (Law in the American West), Lincoln: University of Nebraska Press, 2009. xiii.; Eric T. Dean, Jr. Shook Over Hell: Post Traumatic Stress, Vietnam, and the Civil War Cambridge, MA: Harvard University Press, (1997) 60. Gary L. Cheatham, Desperate Characters: The Development and Impact of the Confederate Guerrilla in Kansas, Kansas History 14, no. 3 ( Autumn 1991) 161 ; Yeatman, Ted P. Frank and Jesse James: The Story Behind the Legend, Nashville, TN: Cumberland House, 2000. 334, 60; John Barton, O. McCorkle, Three Years with Quantrill: A True Story Told By His Scout (Kindle Locations 5461, 277283, 2913 ). Albion Press. Kindle Edition. (2016) 241 Dean, Shook Over Hell 98. 242 Dean, Shook Over Hell 99. 243 E.g ., Leonard, Lynching in Colorado, 165; Ashraf H. A. Rushdy, American Lynching. ( New Haven, CT: Yale University Press, 2012 )

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86 thefts and one case of forgery. I collected these cases from primary sources including newspapers, letters, diaries, biographies, and other documents and from early Colorado histories. Unfortunately, some Colorado histories include anecdotes of crimes or other disputes without providing the date place or the names of people involved. It is impossible to include such events or even be certain that they ever occurred.244 What you will not find here are cr ime rates. I think that attempting to reduce the data available to a crime rate comparable to that used in the Federal Bureau of Investigation s Uniform Crime Reports is deceptive. I am not opposed to the proper application of statistics to historical data However, I do not believe statistical methods used in the past by his torians studying violence were appropriate, nor do I think the Colorado data is ready for such treatment. The Colorado Gold Rush crime data is incomplete. I kept finding additional cas es as I was writing this. Not only is there more case information to be collected but there is more work needed on the uncertainties of the populations in Colorado. We have data from the 1860 census. However, t here are several problems with that data. One is that there were wide swings in population in Colorado in these years. The population could change by thousands in a week. There are also the opposing errors of people being omitted and people being counted more than once due to their mobility. Addition al research will improve the completeness of the crime data and proper analysis may cure the population statistics.245 There is also the problem that the methodology used by the FBI Uniform Crime Reports is a crude one that is not well suited for the crime data available for the Colorado Gold Rush. Dykstra has discussed the fallacy of small numbers in several of his papers. He 244 E.g ., Hall, History of Colorado Vol. 1 481 2. 245 As a math teacher said in high school in math garbage in=garbage out

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87 points out that modest body count + small population = large homicide rate.246 T he problem is not whether you agree with the resulting rate or whether it supports whatever side the v iolent/not viole nt divide you stand on, but whether the methodology is appropriate. Some forms of statistical analysis do not work well on small numbers, r egardless of what those numbers represent. Statisticians have many tools it their box. Perhaps some ot her form of statistical analysis could be more useful at analyzing historic crime rates. At this time, a qualitative approach seems more appropriate. The case histories collected in the Appendix demonstrate that Denver and the mining communities had their spurts of violence. They do not show that it was continuously violent in 1859 and 1860. The first item of note is the lack of cases in 1858 and in 1859 before April. The record of cases jumps significantly in April 1859 primarily due to the arrival of the William Byers and the Rocky Mountain News So far I have only found one reliable crime r eport before the first issue of the Rocky Mountain News Does that mean there were none? No. It means that either there was no record kept or I have not found it. Even after April 1858, the record is very incomplete. In each case history I have highlighted seven items related to the event. What is most striking is the number of those items that remain empty due to lack of data. In some cases, it was difficult to determine the date that an incident occurred. Often the time indicators in letters were last we ek or a few days ago. Even the newspapers did not always provide date information. Initially they may have presumed everyone knew when the incident occurred, or did not care. When they did provide date information, newspapers often used Monday, inst. or Sunday last which I could determine based on the date of the issue but sometimes they were more vague. Later 246 Robert R. Dykstra, Quantifying the Wild West: The Problematic Statistics of Frontier Violence Western Historical Quarterly 40 (Autumn 2009): 3324.

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88 issues were more likely to include actual dates, but not always. Sometimes different sources listed different dates for what must be the same occurrence. At times, I had difficulty determining whether a particular case mentioned in letters was the same as one mentioned in newspapers. That confusion went beyond just differences in spelling of names. When news travels by word of mouth, details a re omitted or changed. The same can be true of newspapers, though they are more likely to write down information prior to printing it. As discussed earlier newspapers have their own biases. In that day there was little attempt to separate editorial from n ew s story. It is well known that William Byer s of the Rocky Mountain News was a strong promoter of the Pikes Peak area and Denver/Auraria in particular. He often complained of newspapers in other states spreading lies about the region. Reports of violence, vigilantism, and lawlessness were not conducive for a positive public image of a new town and therefore were not good for business.247 Did this bias cause him to repress news stories about crime? The risk of doing so would be that another paper would report on it. That risk was minimal when the News was the only newspaper in town. However, we do know that miners and settlers from the area sent letters to newspapers in other states. We also know (because he quoted them) that Byers read any papers he could get his hands on. While there were general articles claiming that the Pikes Peak region was full of desperadoes in newspapers in other states and territories t here does not seem to be any case of the specifics of a crime being reported in those foreign newsp apers that the News did not report. However, the lack of information or the press of a printing deadline could have resulted in some crimes not being reported. By 1860, the News had several competitors. By that time fighting for readership among those already in the 247 Ellis, Law and Order 216.

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89 region may have become more of a driving factor than boosterism. Being the most compl ete source for news, especially sensational news can be a selling poi nt. One thi ng that becomes obvious as you read the cases is that some names repeat: Steele, Wood, Ennis, Gordon, Harvey, Harrison, etc. Some of these people had connections to each other Some primary and secondary sources have referred to them as a gang. However, there is no t enough evidence of consist ent coordination to find a conspiracy Perhaps their interests merely coincided. Unfortunately, there may have been evidence that was not preserved. The b iggest crime spurt in 1860 occurs after the closure of Camp Floyd in Utah and the Rocky Mountain News connects some of the people involved to Camp Floyd. Is that the smoking gun that explains why th e violence that occurred that summer ? Additional research would be necessary into the backgrounds of the people involved. There were vigilante or vigilance committees or committees of safely at different times, especially around Denver in the fall of 1860. Based on my reading of the primary sources I do not think there was just ONE vigilance committee over the span of time at any one place, but rather a series of ad hoc committees that would dissipate. The evidence for this can be found in the comments about people organizing or getting up a vigilance committee that appear ed in the letters and newspapers at different times If there had been already one in existence, why would the y form a new one?248 Dragging someone out of bed in the middle of the night to hang him without a trial, as happened to Atkins in March 1860, is bad. Partial hanging someone in order to try to get a confession out of the such as happened to Joe Pascoe, who was innocent, and Patrick Waters, who was probably not, is also bad. In the Atkins case, the perpetrators are known. In 248 E.g. Western Mountaineer July 26, 1860 and Sept ember 5, 1860.

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90 Pascoes case, it was the men who accused him of theft who were doing the partial hanging but they acted with the knowledge if not the tacit consent of the local sheriff and many others in the mining community. In that case, at least, the sheriff and others regretted their part in it and made the responsible parties pay Pascoe some compensation. In Waters s case, Edward Wynkoop, the Arapahoe County Sheriff was present, if not pulling on the rope, and only made certain they did not kill Waters before the trial. Which of these we re vigilante events? T he one where the perpetrators are unknown? Or do you include the ones in which local law enforcement at least passively consented? In any case, from the record reviewed it does not seem that these types of events made up the majority of cases during this time period. Sometimes the term vigilance committee was also used to designate a committee appointed to investigate an incident or a case, or a committee assigned for surveillance or patrol. These would be known community members, not hooded figures who performed a public duty for a short period of time to prevent or investigate violence, not cause it.

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91 C HAPTER VIII CONCLUSION There is a persistent myth that in the nineteenth century the West, including Gold Rush Colorado, was lawless before civilization was brought from the East. Even a cursory glance at the history of Colorado before 1861 demonstrates that this was not tru e. The Cheyenne, Arapahoe, Apache, and Comanche had their legal traditions and agreements between them and with the European and American traders. Vestiges of Mexican law still controlled in southern Colorado at the time of the Gold Ru sh and emigrants from the States had laws on their wagon trains. Miners and townbuilders drafted laws even as they pitched their tents. In theory, there was also an umbrella of U. S. federal law that cloaked the West since the Louisiana Purchase and the treaty of Guadalupe Hildago, though it little benefited the Colorado settlers. National controversies over slavery disrupted the workings of the Kansas Territorial Legislature and impeded their proper administration of the western side of the territory. Slavery issues also delayed the creation of Colorados own territory. Errors by the Kansas legislature and governor undermined the Kansas territorial court system just as it was coming to be accepted by those at the western end The settlers in Colorado filled the gaps by creating local legal systems in the mining districts and town s as well as the overarching Jefferson Territory which finally gained traction after the Gordon case resulted in the repudiation of the Kansas courts. The Gordon case, in particul ar, demonstrated the ability of the Pikes Peak settlers to administer justice more peacefully and efficiently than their Kansas neighbors to the east did.

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103 King, Clarence, The United States Mining Laws and Regulations Thereunder, and State and Territorial Mining Laws, to Which are Appended Local Mining Rules and Regulations. Report to the Tenth Census. Washington: Gov t Printing Office. 1885. Knowlton, Clark S. The Study of Land Grants as an Academic Discipline. Social Science Journal 13 no. 3 (October 1976): 37. Kra ft, Louis, Ned Wynkoop and the Lonely Road from Sand Creek Norman: University of Oklahoma, 1992. Kroeber, Alfred Louis. The Arapaho. Bulletin of the American Museum of Natural History 18 Pt. 1 (1902) (Kindle Edition). Lacompte, Janet, Manuel Armijo and the Americans. In Spanish and Mexican Land Grants in New Mexico and Colorado, eds. John R. and Christine M. Van Ness, 58 59 (Boulder: Center for Land Grant Studies, 1980). Lacy, John C. The Historic Origins of the U.S Mining Laws and Proposals for Change. Natural Resources & Environment 10, no. 1 (Summer 1995): 88101. Lamar, Howard R., The Far Southwest, 18461912: A Territorial History. Albuquerque: University of New Mexico Press, 2000. Lamar, Howard R. Land Policy in the Spanish Southwest, 18461891: A Study in Contrasts. Journal of Economic History 22, no. 4 (Dec. 1962): 498515. Lavender, David S. Bents Fort Garden City, NY: Doubleday, 1949. Laws of the Banner Mining District, 1861, Archives, University of Colorado Boulder Laws of the Bay State Mining District, 1859, Archives, Univ. of Colorado Boulder Laws of the Canon Mining District, 18601, Archives, Univ. of Colorado Boulder. Laws of the Cascade Mining District, 1860, Archives, Univ. of Colorado Boulder. Laws of the Climax Mining District, 1860, Archives, University of Colorado Boulder. Laws of the Cooper Mining District, Hal Sayre Collection [original] Archives, University of Colorado Boulder.

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104 Laws of the Coral Mining District, 18601. Archives, Univ. of Colorado Boulder. Laws of the Downieville Mining District, 185960. Archives, Univ. of Colorado Boulder. Laws of the Empire Mining District, 18601.A rchives, Univ. of Colorado Boulder. Laws of the Eureka Mi ning District, Dec 21, 1859. Archives, Univ.of Colorado Boulder. Laws of the Gold Hill Mining District, 185961. Archives, University of Colorado Boulder. Laws of the Grass Valley Mining District, Jan 15 & Feb 2, 1861, Archives, University of Colorado Boulder. Laws of the Gregory Mining District, 18601 Archives University of Colorado Boulder. Laws of the Griffith Mining District, 1860 Archives University of Colorado Boulder. Laws of the Hawkeye Mining District, 18601. Archives, University of Colorado Boulder. Laws of the Idaho Mining District Archives, University of Colorado Boulder. Laws of the Illinois Mining District, 1860. Archives, University of Colorado Boulder Laws of the Independent Mining District, January 15 & February 15, 1861. Archives, University of Colorado Boulder. Laws of the Iowa Mining District, 1860. Archives, University of Colorado Boulder. Laws of the Jackson Mining District, 18601. Archives, University of Colorado Boulder. Laws of the Lake Mining District, January 15 & February 15, 1861. Archives, University of Colorado Boulder. Laws of the Lincoln Mining District, 18601.Archives, University of Colorado Boulder. Laws of the Montana Mining District, 1860. Archives, University of Color ado Boulder. Laws of the Morris Mining District, 1860. Archives, University of Colorado Boulder. Laws of the Mountain House Mining District, 18602. Archives, Univ. of Colorado Boulder.

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105 Laws of the Nevada City [Nevada Gulch aka Nevadaville] Mining District, 18601. Archives, University of Colorado Boulder. Laws of the Ohio Mining District, 1860. Archives, University of Colorado Boulder. Laws of the Pleasant Valley No. 10 Mining District 185960. Archives, University of Colorado Boulder. Laws of t he Russell Mining District 185960. (original handwritten and printed booklet) Hal Sayre Collection, Archives, University of Colorado Boulder. Laws of the Snowy Range Mining District, 1861. Archives, University of Colorado Boulder. Laws of the South Boulder Mining District, 1861. Archives, University of Colorado Boulder. Laws of the Spanish Bar Mining District Idaho Territory [sic], 1861. Archives, University of Colorado Boulder. Laws of the Sugar Loaf Mining District 1860. Archives, University of Colorado Boulder. Laws of the Trail Creek Mining District, 18601. Archives, University of Colorado Boulder. Laws of the Union Mining District, 18601.Archives, University of Colorado Boulder. Laws of the Upper Fall Mining Distr ict, 1860. Archives, University of Colorado Boulder. Laws of the Virginia Mining District, 18601. Archives, University of Colorado Boulder. Laws of the Ward Mining District, 18602. Archives, University of Colorado Boulder. Laws of the Wisconsin Mining District, 1860. Archives, University of Colorado Boulder. Laws of the York Mining District, 1860. Archives, University of Colorado Boulder. Lawson, Gary and Guy Seidmen. The Hobbesian Constitution: Governing without Authority. Northwestern University Law Review 95 (2001): 581628. Leonard, Stephen J. Lynching in Colorado, 18591919. Boulder: University Press of Colorado, 2002.

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111 Rome, John. The HardRock Men: Cornish Immigrants and the North American Mining Frontier Liverpool: Liverpool University Press, 1974. Romero, II, Tom I. Bound Between & Beyond The Borderlands: Region, Race, Scale And A Subnational Legal. Oregon Review of International Law 9 (2007) 301336. Romero, II, Tom I. Law, Order, and Municipal Authority in Colorados Early Mining Towns, Colorado Lawyer 31 no. 10 (2002): 134 135. Romero, II Tom I. Wringing Rights out of the Mountains: Colorados Centennial Constitution and the Ambivalent Promise of Human Rights and Social Equality. Albany Law Review 69 (20052006): 569579. Roth, Randolph, Michael D. Maltz, and Douglas L. Eckberg. Homicide Rates in the Old West. Western Historical Quarterly (Summer 2011): 173191. Rushdy, Ashraf H. A. American Lynching. New Haven, CT: Yale University Press, 2012. Sanford, A. B. The Cherokee Trail and the Discovery of Gold on Cherry Creek. Colorado Magazine 8 (1931) 3034. The Sangre de Cristo Land Grant: Its History and ConditionDissatisfaction and Alleged Misrepresentation A Speck of Trouble in Prospect. Rocky Mountain News December 24, 1871. Sanchez, Joseph P. Early Hispanic Colorado 16781900. Los Ranchos, NM: Rio Grande Books, 2015. Sanders, Wilbur Edgerton, Montana Organization, Name and Naming, Contributions to the Historical Society of Montana ( 1910):1560. Savage, Jr., William W. Newspapers and Local History: A Critique of Robert R. Dykstras The Cattle Towns. Journal of the West 10, no. 3 (July, 1971): 571577. Schmidt, Gustavas. The Civil Law of Spain and Mexico. New Orleans: Privately Pr inted, 1851. Schulten, Susan. The Civil War and the Origins of the Colorado Territory, The Western Historical Quarterly 44, no. 1 (Spring 2013) 21 46.

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112 Shinn, Charles Howard. Mining Camps: A Study in American Frontier Government. New York: Charles Scribners Son, 1985. Shinn, Charles H. Land Laws of Mining Districts Baltimore: Johns Hopkins University Studies in Sciences 2, 1984. Slotkin, Richard. The Fatal Environment: The Myth of the Frontier in the Age of Industrialization. 18001890. Norman: University of Oklahoma Press, 1985. Slotkin, Richard. Gunfighter Nation: The Myth of the Frontier in Twentieth Century America Norman: University of Oklahoma Press, 1998. Slotkin, Richard. Regeneration Through Violence: The Mythology of the American Fr ontier 16001890. Norman: University of Oklahoma Press, 1973. Smiley, Jerome C. History of Denver Denver: The Times Sun Publishing Co., 1901. Smith, Duane A. Mining Camps: Myth vs. Reality. Colorado Magazine 44 no. 2 (1967): 93110. Smith, Duane A. Rocky Mountain Mining Camps: The Urban Frontier Bloomington: Indiana University Press, 1967. Smith, Duane A. Trail of Gold and Silver: Mining in Colorado, 18592009. Boulder: University Press of Colorado, 2009. Smith, Jeffrey S. Cultural Landscape Change in a Hispanic Region. In Geographic Identities of Ethnic America: Race Space and Place edited by Kate A. Berry and Martha Henderson, (Reno: University of Nevada Press, 2002). Smith, Jeffrey S. Los Hermanos P enitentes: An Illustrative Essay. North American Geographer 2 no. 1 (2000): 7084. Sopris, Richard. Fifty Years Ago, Trail 1 no. 11 (April 1909): 515. Southern Colorado: Historical and Descriptive of Fremont and Custer Counties with Their Principal Towns Canon City: Binckley & Hartwell, 1879. Spencer, Elma Dill Russell, Green Russell and Gold, Austin: University of Texas Press, 1966.

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113 Spencer, F. C. The Story of the San Luis Valley Alamosa : San Luis Valley Historical Society, 1975. Spring, Agnes W right. Rush to the Rockies. Colorado Magazine 36 no. 2 (April 1959): 82121. Spring, Agnes Wright, Nevada District Mining Laws Gilpin County, Colorado Magazine 36 no. 2 (April 1959): 131146. Steinel, Alvin T. History of Agriculture in Colorado 1858 to 1926, Fort Collins: The State Agricultural College, August 1, 1926. Stears, Robert L. Colorado: A Study in Frontier Sovereignty. Pamphlet reprinted from Index to Legal Periodicals and Law Library Journal 28 no. 3 (July 1935) at Archives University of Colorado Boulder. Stewart, James I. Cooperation when N is large: Evidence from the mining camps of the American West Journal of Economic Behavior & Organization. 69 (2009) 213225. S toller, Marianne L. Grants of Desperation, Lands of Speculation. In Spanish and Mexican Land Grants in New Mexico and Colorado, eds. John R. and Christine M. Van Ness 3537 (Boulder: Center for Land Grant Studies, 1980). Stoller, Marianne L. Preliminary Manuscript on the History of the Sangre de Cristo Land Grant and the Claims of the People of the Culebra River Villages on Their Lands, expert witness report, on file in Espinoza v. Taylor Civil Action No. 81CV5, Costilla County District Court, Colorado. Stoller, Marianne L. Report on the History and Claims for Usufruct Rights by the Residents of the Culebra River Villages on Portions of the Sangre de Cristo Land Grant, (unpublished manuscript) on file in Espinoza v. Taylor Civil Action No. 81CV5, Costi lla County District Court, Colorado. Stoller, Marianne L. Sangre de Cristo Grant: A Speck of Trouble in Prospect, Paper Presented to Western Social Science Association Annual Meeting, Albuquerque, NM, 1980. Stoller, Marianne L., The Surveys of the San gre de Cristo Grant, or, How to Expand the Boundaries, (unpublished manuscript) presented at 1983 Western Social Science Association Land Grant Conference, Colorado Springs.

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114 Stone, Wilbur Fiske. History of Colorado, Chicago: S. J. Clark Publishing Co., 1918. Sullivan v. Hense 2 Colo. 424 (Colo. 1874). Sullivan v. Solis 52 Tex. Civ. App. 464, 114 S.W. 456 (1908). Sparrow v. Strong, 28 70 U.S. (3 Wallace) 97 (1865). Taylor, Morris F. Fort Massachusetts. Colorado Magazine 45, no. 2 (1968): 122127. Texas v. Valmont Plantations 346 S.W.2d 853 (Tex.Civ.App. San Antonio 1961) affd Texas Supreme Court 355 S.W.2d 502 (Tex. 1962). Thomas C. Giddings v. Chas Fox et al Miners Court of the New Nevada District, Summons, Complaint, Answer, Sheriffs Deed, N otice of sale and order of sale, March 4, 1860, Hal Sayre Collection, Archive at University of Colorado Boulder. Tierney, Luke. History of the Gold Discoveries on the South Platte River. (aka The Luke Tierney Guide Book) In Pikes Peak Gold Rush Guidebooks of 1859 edited by Leroy R. Hafen Philadelphia: Porcupine Press, 1974 93145. [Originally published, Pacific City, Iowa: Herald Office (A. Thomson), 1859.] Townshend, Richard R. A Tenderfoot in Colorado, (Reprint) Boulder: University Press of Colorado, 2008. Twitchell, Ralph E. The Spanish Archives of New Mexico, The Torch Press, 1914. Tyler, S. Lyman. A History of Indian Policy Washington, DC: Bureau of Indian Affairs, 1973. Ubbelohde, Carl, Maxine Benson, and Duane A. Smith. A Colorado History 8th Edition, 2001. Van Hook, Joseph O. Mexican Land Grants in the Arkansas Valley. Southwestern Historical Quarterly 40, no. 1 (July 1936) 58 75. Velasquez, Meliton. Guadalupe Colony Was Founded 1854. Colorado Magazine 34 no. 4 (October 1957): 2647. Villard, Henry, Past and Present of the Pikes Peak Gold Regions Princeton: Princeton

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115 University Press, 1932. Waldrep, Christopher. The Many Faces of Judge Lynch: Extralegal Violence and Punishment in America New York: Palgrave Macmillan, 2002. Waldrep, Christopher, War of Words: The Controversy over the Definition of Lynching, 18991940, Journal Southern History 66 no. 1(2000): 75100. Walker, Samuel. Popular Justice: A History of American Criminal Justice New York: Oxford University Press, 1998. Wallace, Ernest and E. Adamson Hoebel, The Comanche: Lords of the South Plains Norman: University of Oklahoma Press 1987, accessed February 9, 2017 http://ehrafworldcultures.yale.edu. Walmesley, Oswald. Guide to the Mining Laws of the World. London: Eyre & Spottiswoode, 1894. Weber, David J. ed. Foreigners in Their Native Land: Historical Roots of the Mexican Americans. Albuquerque: University of New Mexico Press, 1973. Weigle, Marta. Brothers of Light, Brothers of Blood: The Penitentes of the Southwes t. Santa Fe, NM: Ancient City Press 1976. Welty, Raymond L. The Policing of the Frontier by the Army, 18601870, Kansas Historical Quarterly 3 no. 3 (August 1938) : 246257, accessed March 15, 2017, https://www.kshs.org/p/the policingof the frontierby the army 18601870/12760. West, Elliott. The Contested Plains: Indians, Goldseekers, and the Rush to Colorado. Lawrence: University of Kansas Press, 1998. West, Elliott. The Way West Albuquerque: University of New Mexico Press, 1995. Westphall, Victor. Mercedes Reales: Hispanic Land Grants of the Upper Rio Grande Region. Albuquerque: University of New Mexico Press, 1983. White, Richard. The Gold Rush: Consequences and Contingencies. California History 77, no. 1. National Gold Rush Symposium (Spring, 1998). Willard, James The Gold Rush, In A Colorado Reader ed ited by Carl Ubbelohde, 8499,

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116 Boulder: Pruett Publishing Co. 1962. Williams, Francis S. Trials and Judgments of the Peoples Courts of Denver, Colorado Magazine 27 no 4, (October 1950): 294302. Willison, George F. Here They Dug the Gold, New York: Reynal & Hitchcock, 1946. Wilson, Rufus R. The Mountain Men. A Color ado Reader edited by Carl Ubbelohde, Boulder: Pruett Publishing Co. 1962, 5973. Wolle, Muriel Sibell, Stampede to Timberline Boulder, CO: privately printed, 1949. Wooton, Richard and Howard Louis Conard, Uncle Dick Wootton: The Pioneer Frontiersman of the Rocky Mountain Region. Chicago: W. E. Dibble & Co 1890). Wootton, Dick. Turnpike Tycoon. in Colorado: A Literary Chronicle. edited by W. Storrs Lee. New York: Funk & Wagnalls, 1970, 256260. Wright, Charles E. Law at Little Big Horn: Due Process Denied Lubbock: Texas Tech University Press, 2016. Yeatman, Ted P. Frank and Jesse James: The Story Behind the Legend. Nashville, TN: Cumberland House, 2000. Young, J. S. The Government of the People of the State of Colorado. Philadelphia: Eldredge & B rother, 1900. Zappia, Natale. A. Traders and Raiders: The Indigenous World of the Colorado Basin, 15401859. Chapel Hill, NC: University of North Carolina Press. 2014. Zhu, Liping. The Road to Chinese Exclusion: The Denver Riot, 1880 Election and the Rise of the West Lawrence: University of Kansas Press, 2013.

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117 APPENDIX Colorado Case Studies Feb 2, 1859 Theft Location: Denver Crime: Theft Process: Trial with seven jurors Judge: Prosecution: Defense: Outcome: Found Guilty; Sentenced to thirty l ashes and told to leave town A man was caught stealing from a merchant, was tried and found guilty. He received thirty lashes and was ordered to leave the area. All was done coolly and calmly. 249 April 7, 1859 Stofel killed Biencroff Location: Clear Cre ek & Ralston Creek area Crime: Homicide of 1 person Process: Sources claim there was a trial with Judge H. P. A. Smith and others that Judge Wagoner committed him for trial Judge: Judge H. P. A. Smith (appointed by Kansas Governor) and/or Judge Seymour Wag oner (Elected) Prosecution: Henry Allen Defense: William Larimer Outcome: Executed by hanging In 1950 Colorado Magazine published an article en title d Trials and Judgments of the Peoples Courts of Denver written by a high school history teacher named Francis S. Williams It included an account of the first murder committed in the vicinity of Denver on April 7, 1859. Williams provided a de tailed account of the murder of [Thomas] Biencroff by John Stofel. Stofel was arrested and was taken to Auraria. The next day Stofel was examined before Judge Seymour W. Wagoner, whose election as probate judge for Arapahoe County had taken plac e on March 28th. Will iams says that Stofel was committed for trial but that 249 Letter from William Larimer Hafen, Contemporary Letters and Reports 223, 2157.

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118 the people then took the matter into their own hands, held an informal deliberation and decided to hang him.250 Williams cited the April 23, 1858 edition of the Rocky Mountain News for his account. H owev er, that issue, which was the initial issue only contains a short (three column inches) notice of the murder and execution, and is lacking most of the details included by Williams. The Rocky Mountain News summary of the legal process was The murderer was put upon his trial before Judge Wagoner, found guilty on his own confession, and forthwith executed by hanging to a tree.251 Jerome Smiley, in his History of Denver published in 1901, provided more details which he attributed to Richen Dick Wooton, whom Smiley said was a witness to the arrest, trial and hanging of Stoefel. Smileys summary of the legal process was A Peoples Court was organized with S. W. Wagoner presiding. Twelve jurors were selected, and a pioneer lawyer (i dentified as William L arimer by his son) was appointed to see that the man was fairly tried. Stoefels confession left little for his attorney to do. The jury speedily returned a verdict of guilty and Stoefel was sentenced to be hanged.252 Wooton in his memoirs published thirty one years after the event described the legal process this way: A court was organized, and a jury of twelve men empaneled. The prisoner was defended by an able lawyer, but according to the custom in those days, his confession was admitted as evidence, and th e verdict of the jury was that he should be hanged.253 William H. H. Larimer, who also witnessed the event, wrote that evidence at the trial 250 Williams, Peoples Courts of Denver 2945. 251 Rocky Mountain News April 23, 1859. 252 Smiley History of Denver 339. 253 Richen Wootton and Howard Louis Conard Uncle Dick Wootton: The Pioneer Frontiersman of t he Rocky Mountain Region, (Chicago: W. E. Dibble & Co 1890) 379 80.

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119 including matching moccasin footprints found at the scene with Stoefels feet and shoes.254 James Pierce, one of th e original members of the Russell group, was also present at the time of the murder and execution. Sixty two years later, he provided his version of the events to The Trail magazine. Pierces account has many details in common with Smileys, though he remembered the judge as being, Judge H. P. A. Smith, probate judge, appointed by Governor Denver. Possibly, he had by then forgotten that Wagoner had just been elected before the murder. His summary of the legal process was: The evidence was all heard in pr ofound silence by the mass. I never witnessed a more orderly trial in any court in my life than that was. Of course, we found him guilty of murder in the first degree. Then the question of what to do with the murderer was submitted to the people. The crowd almost with one voice said, Hang him! hang him.255 A letter written by A. C. Smith in Denver City on April 8th, 1859 was published in the Leavenworth Times on May 4. He wrote that he was a member of the coroners jury that examined the body of Antoine Bei ngraff. According to Smith, the suspect was brought to town, and a court was convened with Judge H. P. A. Smith presiding and the prisoner was given a fair trial before a jury of twelve persons. William Larimer conducted the defense and Henry Al len prosecu ted. Smith wrote that after reviewing the evidence the jury returned a verdict of willful murder. A verdict of willful murder is the type of verdict that a coroners jury would render. A coroners jury does not determine guilt or innocence of a party, it investigates causes of death and determines whether it was by accident, natural causes, or homicide and it is the type of jury that Smith said he participated in. However, as 254 Herman S. Davis Reminiscences of General William Larimer and of His Son William H. H. Larimer: Two of the Founders of Denver City ( Pittsburgh : Privately Printed, 1918): 147 50. 255 James H. Pierce, With t he Green Russell Party, The Trail 13, no. 12 (May 1921) : 6 14, 14.

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120 we saw above, the son of William Larimer reported that there was a trial befo re Judge Wagoner that found Stoefel guilty.256 In his book, Lynching in Colorado 18591919, historian Stephen Leonard mentioned this case as well. While Leonard quotes Smiley as saying that the citizens wanted to give the man the form, at least, of a trial, he seemed more concerned about whether Kansas Territory had sanctioned Wagoners election than whether justice had been served. According to Gower, the Kansas Territorial Governor authorized the March 28, 1859 Arapahoe County K .T ., elections on May 21, 1859, after this trial.257 With different accounts mentioning two different Arapahoe County judges, and two different types of juries, it seems possible that two hearings were held in this case. The coroners jury first determined that there was a homicide and th en a petit jury convicted the suspect of the crime. Many of the witnesses may have not understood the differences and that confused them, which confounded historians reading their accounts. See April 20, 1859, for another case wh ere both a coroners jury and a trial are mentioned. Leonard wrote that [s]ome reports indicate that Stuffle was then bound over for appearance before a U.S. district judge. If anyone had intended to bind him over at the time, would a U. S. district co urt have had jurisdiction? Once a territory is organized, the 256 Hafen, Colorado Gold Rush 3345. 257 Leonard, Lynching in Colorado, 16 7; Gower, Kansas Territory, 300. Leonard seems to rely mostly on a manuscript by Wolfe Londoner cited by Hubert H. Bancroft in his History of Nevada, Colorado and Wyoming, 1540 1888. Wolfe Londoner was not living in Colorado at the time of this murder. Bancrofts summary (in a footnote) was He was suspected, arrested, examined before H. P. A. Smith, admitted his guil t, and as there was no prison in the country, it was determined to hang him. Hubert H. Bancroft, History of Nevada, Colorado and Wyoming, 15401888 (San Francisco: The History Company, 1890) 412 in note 10 that continues from page 411. I believe the sour ce of spellings of Arthur Binegraff and John Stuffle is the letter mentioned above written by A. C. Smith which was published in Leavenworth Times and picked up from there by the Missouri Republican and the New York Daily Tribune It was repr oduced in part in the Reminiscences Of General William Larimer which was published after the death of William Larimer and his son and in Hafens book Contemporary Letters and Reports 3345. Most contemporary sources follow Smileys spelling

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121 federal courts surrender jurisdiction over crimes designated under the laws of that territory to the territorial cou rts, and by one theory, they were in Kansas Territory. On the other hand, whil e Governor Denver thought Kansas Territory had jurisdiction at the time he originally appointed Judge H. P. A. Smith as judge of Arapahoe County, the Kansas Nebraska Act excluded Indian territory that had not been relinquished by the Indians from the Terri tory of Kansas.258 In addition, as we shall see in the Gordon case, the Kansas courts may not have had jurisdiction for an entirely different reason. If the land was excluded due to being Indian territory then the federal district court might have had jurisd iction under the federal Crimes Act of 1790. Section 8 provided that the trial of crimes committed in any place out of the jurisdiction of any particular State, shall be in the district where the offender is apprehended, or into which he may first be br ought.259 However, in 1807 the U.S. Supreme Court had ruled that section 8 only applied to offenses committed on the high seas or in some river, haven, basin, or bayand not to the territories of the United States where regular courts are established compe tent to try those offenses.260 Setting aside technicalities related to jurisdiction, the case seems to have fallen within the legal norms or law ways of the people inhabiting the area. The accused was arrested. He confessed (before or after arrest depending on the account) to t he crime. By most accounts, he was tried by a judge elected by the people. Several accounts say that the accused was assistance by William Larimer. A jury of twelve people from the community considered the evidence and found him guilty How was that differ ent from any other trial in any other 258 Hall, History of Colorado, Vol. 3 209 ; Leonard Lynching in Colorado, 17; Cook v. United States discuss es some of the issues related to jurisdiction outside a state or organized territory in references to the No Mans Land that became the panhandle of Oklahoma. 138 U.S. 157 (1891); Organic Act of Kansas, 10 Stat. 283; ch. 59, 19; May 30, 1854. 259 Crimes Act of 1790 ch 9, 1 Stat. 112. 260 Ex Parte Bollman and Ex Parte Swartwout 8 U.S. 75 (1807).

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122 jurisdiction of the United States at the time? Larimers report of footprint evidence seems a bit sophisticated for a lawless mob. Dick Wootons only criticism was that the confession was admitted as evidence. Despite his suggestion that that was unusual, confessions are still admitted as evidence today if they are not coerced. The accused was sentenced to death by hanging, but that was not an unusual sentence for that time period. In some jurisdict ions, senten ces were determined by a jury and in some by the judge. It is not clear which was applied here because the accounts are inconsistent, or whether it was decision of the attending crowd, as Pierce says. The sentence would probably have been the same in any c ase. There is nothing about this case itself that suggests anything was done that was contrary to the typical legal norms of the time. Thus he received due process. The criticisms applied substantially later seem to be creating distinctions without a difference. April 16, 1859 Scudder killed Bassett Location: Denver Crime: Homicide Process: Escaped; returned for trial Judge: Charles A. Lawrence Prosecution: W. P. McClure Defense: Hi ram P. Bennett, A. C. Ford, and John C. Moore Outcome: Acquitted, self defense On the April 16, 1859, John Scudder shot and killed Peleg T. Bassett. Scudder went to Bassetts cabin after nightfall to confront him about things Bassett had said about him and it turned violent. Bassett raised a billet of wood and advanced upon Scudder, who fired his gun killing Bassett. Scudder f led to Salt Lake City. Some months later, Scudder returned and voluntarily surrendered himself for trial. W. P. McClure prosecuted a nd H. P. Bennett, A. C. Ford and John C. Moore represented the defendant. Scudder pleaded self defense and was

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123 acquitted.261 A letter from J. T. Parkinson to J. Jewitt Wilcox published in Missouri Democrat on May 21, 1859 did not view it as self defense but rather a cold blooded and dastardly assassination. Parkinsons letter also claimed Scudder had escaped while in the hands of the sheriff.262 Historian Frank Hall claimed that the fight between Scudder and Bassett resulted from contentions between the ri val towns of Denver and Auraria. Smiley stated that Bassett had defamed Scudder in cons equence of some personal differences. Larimer repeated Parkinsons claim that Bassett had accused Scudder of opening some of his letters.263 An unsigned letter from Denver City dated written April 17, 1859 was published in the Rochester Democrat and New York Tribune on May 28, 1859. The writer had just arrived in Denver and was not impressed by the town. He wrote Drinking and fighting all the while; someone killed every nearly week now and then one hung. 264 The timing of his arrival in Denver may have unfortunately coincided with a turbulent period. May 20, 1859 Hanna Accused of Stealing Horses Location: Denver Crime: Horse and Cattle stealing Process: Preliminary hearing; Trial by president and 12 jurors Judge: Prosecution: Defense: Unnamed counsel Outcome: Acquitted, not proved; Seized and whipped On May 28, 1859, the Rocky Mountain News Weekly edition reported that on May 20th James Hanna was caught about 30 miles south of Denver with five ponies and a mule in 261 Hall, History of Colorado, Vol 1, 237. 262 Hafen, Contemporary Letters and Reports 3389. 263 Hall, History of Colorado, Vol. 1 237 ; Smiley, History of Denver 250; Larimer, Reminiscences 137; Letters from Scudder that were published in the Missouri Republican in March and April 1859 suggest that he anticipated violence over lan d claims. Hafen, Contemporary Letters and Reports, 2157, 247. 264 Hafen, Contemporary Letters and Reports 336.

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124 his possession. He was brought to town and the animals were identified and claimed by their owners. A court was convened with a president, clerk, and twelve jurymen. The jury determined that the evidence was not sufficient to convict him and he was released. After he was released, Hanna was seiz ed by some people who believed he had possession of other stolen property. They threatened to hang him. Hanna confessed to stealing the horses and promised to take them to a camp of his associates, if they would spare his life. They eventually determined t hat he was leading them on, gave him fifty lashes, and let him go.265 A letter appeared in the June 4, 1859 edition of the Leavenworth Times Correspondent that may refer to this case. While the letter was unsigned, Leroy Hafen believed it was written by Henry Villard. The letter mentions the convening of Judge Lynches court for trying a horse thief. The correspondent wrote that a president and secretary were elected and twelve jurors selected from the crowd. Counsel was found for Hanna and the trial proceeded in regular style after which he was acquitted with a warning to leave the neighborhood at the earliest possible moment.266 Sept 4, 1859 Wagon Stolen Location: Denver Crime: Theft Process: Judge: Prosecution: Defense: Outcome: A man borrow ed or hired tw o pair of cattle and a wagon fr om someone near Boulder City to make a trip to Auraria. He then gambled the team and wagon away. The owner failed 265 Rocky Mountain News May 28, 1859. 266 Haven, Colorado Gold Rush, 356.

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125 to recover his property.267 Sept 5, 1859 Cattle Thieves Location: Denver Crime: Theft Process: Judge: Prosecution: Defense: Unnamed counsel Outcome: Compensated owner A man stole and butchered another mans cattle. He was arrested and paid the owner the value of his cattle and was released.268 Sept 6, 1859 Stolen Money Location: Denver Crime: Theft Process: Judge: Prosecution: Defense: Outcome: Partial return Someone stole forty or fifty dollars, was arrested in Auraria, confessed to the theft, and gave up part of the money. The same day a drawer in Reeds saloon was broken open and over six hundr ed dollars in gold and silver stolen.269 Sept 7, 1859 Vanover hanged in Golden Location: Golden Crime: Homicide Judge: Process: Prosecution: Defense: Outcome: 267 Rocky Mountain News September 8, 1859. 268 Rocky Mountain News September 8, 1859. 269 Rocky Mountain News September 8, 1859.

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126 Leroy Hafen referred to the Vanover case as a Precautionary Lynching but the scarcity of details makes this case difficult to e xamine.270 According to the Rocky Mountain News about five weeks prior, after losing a card game, Edgar Vanover fired his gun at Saultzbauch. The bullet went into the table without hurting Saultzbauch. On September 7th (or 6th), Vanover declared he would kill someone before night and threatened shopkeepers with a pistol and a knife and wrecked their shops. He was caught. The citizens of Golden held a meeting and decided that Vanover should be executed.271 A few days after the deed was done a letter appeared in the News disputing article about a lynching and claiming the citizens repudiate actions of the mob and that an accurate account of the incident would be sent to the pape r. I was unable to find such an account.272 Thom as Wildman wrote to his sister the people hung one night before last in Golden Cityfor shooting at another man. He also wrote that a Vigilance Committee was being organized in Denver with the object to gi ve all persons accused of crime a fair trial and punish them according to their deserts. This was intended as a precaution because it was thought that stabbing and drunkenness will be rampant here this winter.273 Sept 17, 1859 Blankets Stolen Location: Denver Crime: Theft Process: Judge: Prosecution: Defense: Outcome: 270 Hafen, Wildman Letters 60 see note 46. 271 F ull Particulars o f t he Late Lynching i n Golden City, and Letter to the Editor, Rocky Mountain News September 10, 1859. 272 Rocky Mountain News Sept. 17, 1859. 273 Letter dated Sept. 8, 59, written by Thomas Wildman, Hafen, Wildman Letters, 5 9 60.

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127 On September 17, Thomas Wildman wrote in a letter that someone had stolen the blankets from his tent. He said that he applied to the Vigilance Committee for a search warrant but the blankets were not found. He pointed out that a Vigilance Committee had been established that executes all laws and determines the punishments, which consist of banishment from the country, fines and so many lashes according to the crime.274 Oct 4, 1859 Hall shot a t Thompson Location: Denver Crime: Shooting Process: Judge: Prosecution: Defense: Outcome: On Oct 6, 1859, the News reported that Hall fired a gun at Thompson who managed to deflect it. Thompson drew a knife and started in pursuit, but was stopped by bystanders.275 Oct 9, 1859 M cClure v. Whitsitt Duel Location: Denver Crime: Duel; McClure Wounded Process: Not prosecuted (Arapahoe County Sheriff Wynkoop present) Judge: Prosecution: Defense: Outcome: On October 19, 1859, William Park McClure met Richard E. Whitsitt for a duel with pisto ls. Edward Wynkoop, sheriff of Arapahoe County, also appeared and tried to stop them. He was unsuccessful. The parties fired and McClure was injured. Despite the presence of the sheriff a ppointed by the governor of Kansas Territory, no one was prosecuted. Smiley 274 Letter, Sept. 17, 18 59, Hafen, The Wildman Letters 667. 275 Rocky Mountain News October 6, 1859.

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128 claimed Wynkoops authority was not recognized.276 Oct 20, 1859 Pain killed Davis Location: Denver Crime: Homicide Process: Coroners jury and jury trial; jury acquitted Judge: Judge Hieatt Prosecution: Defense: Outcome: Coroners jury determined was self defense and trial jury acquitted On Thursday October 1859, W. J. Pain shot and killed Oliver Davis. Davis leased his bakery shop from Pain and there had been some dispute over t he lease. Pain came to the bakery and spoke with Davis and his partne r, the conversation developed into a fight. They were separated, but both then seized weapons and fought some more. After several exchanges, Pain fired his pistol. Davis gasped a few time s and died. Smiley reported that Paine was tried and honorably acquitted, his act having been clearly proved to have been one of self defense. According to the News a coroners jury concluded he had acted in self defense the same evening as the shooting and the following day Pain had a trial before Justice Hieatt [Hyatt?] and was acquitted.277 Here is another case in which both a coroners jury and a trial are mentioned, like in the Stoefel case the previous April. Oct 27, 1859 Blankets and Money stolen Location: Nevada Gulch Crime: Theft of blankets and money Process: Tried in Miners court Judge: Prosecution: Defense: 276 Rocky Mountain News Oct. 20, 1859; Thomas D. Isern, The Controversial Career of Edward W. Wynkoop, Colorado Magazine 56, no. 1(1979) : 3; Wynkoop ran in a local election for Denver sheriff in October 1860 and won. Kraft, Wynkoop 3537, 43; Letter, Oct 26, 1859, from Thomas Wildman, Ha fen, Wildman Letters, 75, especially see note 57; Hall, History of Colorado, Vol. 1 216 9; Smiley, History of Denver 302. 277 Rocky Mountain News October 27, 1859.

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129 Outcome: Convicted and sentenced to receive thirty nine lashes; one half of his head was shaved and he was exiled from the mountains A letter sign C. W. was published by the Rocky Mountain News infor ming them that a man was convicted by the Nevada Gulch miners court of stealing blankets and money. He confessed his guilt and was sentenced to receive thirty nine lashes after which one half of his head was shingled off close and he was invited to leave the mountains.278 Nov 3, 1859 News Disputed Claims of Lawlessness The Rocky Mountain News quoted a letter published in the Leavenworth Times that claimed rows, brawls and stabbing affrays are the order of the day The frequency of bloody collisions on the other side of the Creek, where most of the gambling saloons are located, has become fearful. No an evening or night has passed of late without the shed of some blood. To which the Rocky Mountain News responded We do think however if such lawless and bloody doing were a nightly occurrence, that we should know something about it. The last shedding of blood in this locality, of which we hav e any knowledge was the accidental wounding of Marion early in September 279 N ov 13, 1859 Pascoe Accused of Theft Location: Chicago Creek Bar Mining District Crime: Theft Process: Tried by jury of Miners court Judge: A. P. Smith Prosecution: Defense: Outcome: Jury found not guilty John Pascoe was accused of theft by Jones and Cox and was tried by a Miners C ourt 278 Rocky Mountain News Oct ober 27, 1859. 279 Rocky Mountain News November 3, 1859.

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130 on November 13. The jury found him not guilty and Pascoe was discharged from custody.280 Nov. 13, 1859 Jones and Cox Assaulted Pascoe Locatio n: Chicago Creek Bar Mining District Crime: Assault Process: Miners Meeting called; President and clerk were appointed; Tried by Miners court Judge: (aka President in miners court s) Prosecution: Boyce Defense: Outcome: Jury found guilty and awarded da mages of $250. Jones and Cox were not satisfied with the jury verdict and still believed John Pascoe had stolen the money. They seized Pascoe with the tacit acceptance of a number of the miners and the justice of the peace, given with a promise that they would not hurt him. Jones and Cox hung Pascoe four times causing him severe pain and injury to his neck. Pascoe survived. On December 2, 1859, a meeting of the miners of Chicago and Clear Creek mining districts was called. A president and clerk were appoin ted. The p resident read the charges against Jones and Cox for mistreatment with out cause of Joe Pascoe. A jury of six was selected with Jones choosing three and, Boyce, Pascoes attorney choosing three. (One of the jurors chosen by Pascoes attorney was also a witness who testified on behalf of Jones. Pascoes attorney was also a wi tness against Jones.) The jury verdict found Jones and Cox guilty. They awarded Pascoe damages in the sum of $250.281 On January 1, 1860, Matthew Dale wrote to his brother from Nevada Gulch, Have nothing of interest to write you. We jog along quietly and monotonously, seldom have anything to stir us from a uniform dull routine.282 280 Western M ountaineer Jan 25, 1860; See also Leonard Lynching in Colorado, 99. 281 Western Mountaineer Jan uary 25, 1860; See also Leonard Lynching in Colorado, 9. 282 Letter of Matthew Dale to his brother Jan 1, 1860, University of Colorado Boulder Archives.

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131 Dec 8, 1859 Steel Attacked a Baker Location: Denver Crime: Assault and battery Process: Judge: Prosecution: Defense: Outcome: Accused fled Steel threw a kettle of boiling water in the face of a baker and beat him over the head with a champagne bottle until he was insensible. Steel fled the country. The baker was recovering as of the date of the article.283 I believe this is the same George Steele that we encounter during the Turkey War in January 1860 and the attack on the Rocky Mountain News office in July 1860. Dec 10, 1859 Jeffries Property Dispute Location: Bekin Crime: Forcible Entry; Trespass Process: None Judge: Prosecution: Defense: Outcome: Driven off with gun fire Three men tried to drive B. F. Jeffries off the Bekin town claim. He knocked one of them down. They fired at him. He went to a neighboring house, procured a double barreled shotgun, and returned fire. Eventually Jeffries drove them from the claim.284 This incident may be related to the land fraud which was at the heart of the Claim Jumpers War Dec. 21, 1859 Rollins accused Martiney of theft Location: Golden Ci ty Crime: Theft Process: Jury trial with six jurors 283 Rocky Mountain News December 8, 1859. 284 Rocky Mountain News December 14, 1859.

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132 Judge: Judge Elie Carter Prosecution: E. F. Clewell Defense: J. N. Odell Outcome: Defendant acquitted; Plaintiff to pay court costs Alfred Rollins accused Henry Martiney of opening his trunk and stealing some articles of certain property. The Western Mountaineer wrote that a peoples court was assembled with Judge Elie Carter presiding. Witnesses gave contradictory evidence and the jury brought in a verdict of not guilty. The jury decided that the costs of the trial should be paid by the plaintiff. (Payment of costs was common in miners court property cases.)285 Jan 30, 1860 C laim Jumpers War Location: Denver Crime: Jumped a Land Claim Process: Mediation by Denver Mayor John C. Moore and Edward Wynkoop, Sheriff of Arapahoe County Judge: Prosecution: Defense: Outcome: Denver Town Company paid $100 and jumpers dropped their claim and left On Monday January 30, 1860, Parkinson, Thompson, and Mickie jumped some lots claimed by the Denver City Town Company and began building houses. According the News a meeting of the Arapahoe Claim Club was called on January 31 and after the meeting, approximately eighty members of the Claim Club, including Denver Mayor John C. Moore, proceeded to the area. They found the jumpers had built in a wellfortified cabin and rifles were leveled on them as the approached. The four gunmen allowed Ma yor Moore to approach for negotiations. He determined that the men were well armed. After Moores meeting with the jumpers, some of the Claims Club still wanted to charge the building but others dissuaded them. Wedne sday night when the claim jumpers left the site, members of 285 Western Mountaineer December 21, 1859.

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133 the Town Company tore down the building and chopped up the wood it had been built with. When the claim jumpers discovered this, they blamed Richard Whitsitt, the secretary of the Town Company. Armed claim jumpers and members of the Clai m Club patrolled the streets of Denver. Several encounters occurred but no one was injured. On Friday, Edward Wynkoop, sheriff of Arapahoe County, K .T presented a written proposal to the Denver Town Company which he had received from the jumpers. The jump ers agree to relinquish possession of the land if the Town Company would reimburse their expenses which amounted to one hundred dollars. The Denver Town Company agreed. The matter was settled without bloodshed.286 The root of the Claim Jumpers War seems have been to be a humbug surveyor named Deifendorff who was running scam to defraud land owners. Purchasers were taken in by his claim to be able to register land claims based on the St. Charles Town Company charter This lead Richard Sopris t o camp aign for the repeal of the St. Charles charter in March 1860.287 Feb. 1, 1860 Turkey War Location: Denver Crime: Turkeys stolen; assault with deadly weapon; witness tampering Process: Committee appointed to investigate; Harvey tried before a jury of six men on the charge of assault with intent to kill Middaugh Judge: Prosecution: Defense: Outcome: Citizens meeting ordered them to leave; Harvey acquitted; Todd required to post bond; Jefferson Rangers patrol town During the same week, Auraria had a different problem. For the past month, petty thieves been taking nearly anything left unattended. Clotheslines had been robbed; venison, 286 Rocky Mountain News February 8 1860; Hafen, Wildman L etters 245 note 3; Smiley, History of Denver 340; Hall, History of Colorado, Vol. 3, 220; Western Mountaineer Feb 8, 1860 287 Rocky Mountain News Feb 15, 1860 and March 7, 1860

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134 turkeys, bacon, and flour. Thefts had become nearly a nightly occurrence. On Wednesday, February 1, 1860, a man from the Arkansas valley came to Auraria with a load of a hundred and fifty turkeys. While he was trying to make sales, fifteen to twenty (10%) of his stock disappeared. He received some information about the identity of the perpetrators and attempted to have them a rrested. A meeting of citizens was called; charges were made and refuted; and finally the meeting appointed a committee to investigate the case, with instructions to report on Thursday. The c ommittee examined a large number of witnesses and determined that T homas Clemo, William Todd (alias Chucka luck), William Harvey, and William Karl (alias Buckskin Bill) were guilty of stealing the turkeys. However, those men responded by parading through the streets of Auraria with drawn arms. McCarty f ired upon W. H. Middaugh (one of the witnesses) was as he stepped from the door of the Vasquez house. A few minutes later Harvey shot at Middaugh through the window. McCart y also attacked Pollock with a knife and hit him over the head.288 Word was immediately sent to the drill room of the Jefferson Rangers, a militia company that had been formed in early 1860. They proceeded to the scene of disturbance, and kept up a night patrol. The next day another meeting of citizens assembled. Several hundred persons were present. The report of the committee was heard and some further evidence was received. The meeting gave Todd, Harvey, and Karl five hours to leave the city, under the penalty of hanging. The meeting appointed another committee to hear further evidence in the case of Cl emo. On Friday, the night patrol found Karl hiding in an Indian lodge. He claimed he had not left because he had no provisions. He was supplied with fifteen 288 Western Mountaineer Feb 8, 1860; Hall, History of Colorado, Vol. 3, 222; Isern, Wynkoop 5.

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135 days rations and blankets, and told to leave.289 A week later several of the turkey thieves were st ill hanging around Denver. William Harvey was found in a cabin a mile or two below town down river from Denver and captured. He was put on trial before a jury of six men on the charge of assault with intent to kill Middaugh. He pled guilty under ex tenuati on circumstances that he was under the influence of liquor. The jury gave him some advice and discharged him. William Todd was required to post a two hundred and fifty dollar bond guaranteeing his future goof behavior and discharged. McCarty was also disc harged.290 Feb. 3, 1860 Atkins (aka Pennsyltuck) invaded Dance Party Location: Mountain City Crime: Disturbing the peace; assault Process: Jury trial Judge: Judge John S. Stone Prosecution: Defense: James J. Raridan and George W. Brizbee Outcome: Jury returns a not guilty verdict Atkins and some other men had invaded a dance party on February 3rd. Judge Stone issued a warrant for Atkins s arrest. Atkins threatened Judge Stone. Sheriff John H. Kehler took him into custody. A jury was empaneled and the trial proceeded. During the tr ial, Atkins insulted and threatened both the judge and the jury. Jury rendered a verdict of not guilty due to insufficient evidence but the verdict may have been influenced by his threats and abuse.291 Feb. 4, 1860 Sher iff Keh ler shot Atkins (alias Pennsyltuck) Location: Mountain City Crime: Shooting Process: Large Miners Meeting involving several districts 289 Rocky Mountain News February 8 1860; Western Mountaineer Feb 8, 1860; Hall, History of Colorado, Vol. 3 222; Isern, Wynkoop 5. 290 Rocky Mountain News Feb 15, 1860. 291 Rocky Mountain News Weekly, February 8 and 15, 1860; Western Mountaineer Feb ruary 15, 1860.

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136 Prosecution: Defense: Outcome: Miners Meeting determines shooting was self defense After the trial discussed above Sheriff Kehler informed Atkins that he and his friends must behave or they must leave the country. Atkins pushed Kehler and fired a pistol from inside his pocket, after which the Sheriff drew his revolver and shot Atkins. T he Western Mountaineer c laimed that the fight between Kehler and Atkins grew out of opposition to the Provisional Government. Possibly Atkins was disputing the validity of the court hear the case concerning the dance. Citizens of Gregory, Illinois Centra l, Nevada, Russell, Eure ka, and neighboring mining districts held a meeting at Mountain City on February 4th and unanimously endorsed the Sheriffs action.292 Feb 22, 1860 Snooks caught Stealing Location: Eureka District Crime: Stealing Process: Judge: Pr osecution: Defense: Outcome: Received twenty lashes A man known as Snooks was convicted of stealing two pairs of pants, a blanket, one buffalo robe, and a rifle. He was sentence to receive twenty lashes on his bare back.293 Feb 29, 1860 Harvey Assaults French John Location: Denver City Crime: Knife attack Process: Judge: Prosecution: Defense: 292 Western Mountaineer Feb ruary 8, 1860 and Fe bruary 15, 1860 Feb 15, 1860 Rocky Mountain News Feb ruary 8, 1860 and Fe bruary 15, 1860. 293 Rocky Mountain News Feb ruary 22, 1860

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137 Outcome: Harvey disappeared William Harvey (presumably the same one involved in the Turkey War ) started a quarrel with French John over a game of cards. Bystanders parted them. Harvey left the saloon, swearing that he would kill John. He came back with a butcher knife and attacked John in the street. Again they were separated and in the confusion Harvey disappeared.294 March 7, 1860 Atkins Pennsyltuck Ha nged Location: Missouri City Crime: Vigilante Hanging Process: Judge: Prosecution: Defense: Outcome: Persons responsible not determined On the night of February 29, about three hundred men took Atkins out of his bed where he was convalescing after being shot by Sheriff Kehler. Atkins was gagged, and taken to a tree, and han ged. Workmen found the body in the morning.295 The Rocky Mountain News stated that a large number of the inhabitants of the mines were incensed by the hanging.296 A citizens meeting held at Missouri City on March 1 declar ed that they believed the vigilantes were nonresidents of their town or its vicinity and consider the outrage perpetuated in our midst last night as base, cowardly, murderous, and calling for our loudest condemnati on.297 Thomas Wildman seemed less disturbed by this hanging, writing There is very little rowdyism now, and one would think that we had a very good organization of 294 Rocky Mountain News Feb ruary 29, 1860; There were two French Johns Big French John and Little French John. It i s not clear which one this was. 295 Western Mountaineer March 7, 1860 296 Rocky Mountain News, March 7, 1860 297 Rocky Mountain News March 14, 1860.

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138 laws here. They hung a man in the mountains a few days back.298 March 1860 Kershaw shot at Wildman Location: Denver Crime: Kershaw shot at Wildman Process: No charges; Wildman threatened to shoot back next time Judge: Prosecution: Defense: Outcome: no further action Kershaw asked Thomas Wildman to stop and talk with him. Wildman told him he had no time. Kershaw put on his revolver and called Wildman to come over. Wi ldman again told him he had no time and turned his back. Then Wildman heard a pistol go off and saw a splinter fly from a board. He started to run for his office followed by Kersh aw. Another shot passed went through a window. Wildman picked up a rifle to shoot him, but Judge Wyatt persuaded him to run out the other door. Kershaw apologized when he got sober.299 March 7, 1860 Bliss v. Stone Duel Location: Denver Crime: Duel; Stone w ounded, eventually died (Arapahoe County Sheriff Wynkoop second) Process: Prosecution: Defense: Outcome: No legal action taken According to Judge Hiram P. Bennet, the duel between John S. Stone and Lucian Lew Bliss arose from a dispute over the Jefferson Territory government. Stone was a member of the Jefferson legislature as well as the judge for the Mountain City Miners C ourt Bliss was Secretary to the Jefferson government and acting Governor while Steele was out of the territory. After Stone cashed in his pay warrants for his legisla tive duties, he publicly 298 Hafen, Wildman Letters 251; Rocky Mountain News Weekly February 8 1860. 299 Hafen, Wildman L etters 250251.

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139 repudiated the Jefferson government. At a dinner afterwards, Bliss gave a toast to the man who got his pay and then repudiated the government and left his friends. Stone immediately withdrew. Stone challenge Bliss t o a duel. In a strange twist, Bliss, the Acting Governor of Jefferson Territory chose the sheriff of Arapahoe County, Kansas Territory, Edward Wynkoop, as his second. Unlike the earlier duel, which Wynkoop attended, this time he was a participan t in the ritual and not someone trying to stop it. Stone was mortally wounded but lingered until October 10th before he died. Accord ing to Hiram Bennett, Bliss was neve r quite himself after the death of Stone, and soon drif ted away from Colorado.300 In February, the Western Mountai neer claimed that Atkins s dispute with Kehler and Stone was due to a disagreement over the Jefferson terri tory. Then on March 7, Atkins is hanged by a mob and Stone is shot in a duel. A coincidence? We may never know.301 March 1860 Pemly v. Sanford duel Location: Fairplay, Park County Crime: Duel; Sanford killed; Pemly wounded Process: Miners Court Judge: Pro secution: Defense: Outcome: Acquitted, Stanford had seduced & deflowered Pemlys sister According to early historian s Fosset t and Hall, a nother duel was fought in 1860 that was never reported in the Denver newspapers. Their books claim the story of the duel between Pemly and Sanford is buried in the records of Park County though it is frequently copied from their histor ies Two Texans named Pemly and Sanford had been playmates as 300 Alice Polk Hill, Pioneers in Picture and Story (Denver: BrockHaffner Press, 1915) 76 77; Wynkoop ran in a local election for Denver sheriff in October 1860 and won. Kraft, Wynkoop, 35 37, 43. Hafen, Wildman Letters 250; Hall, History of Color ado, Vol. 3, 2345; Rocky Mountain News March 7, 1860; Western Mountaineer March 14, 1860. 301 Western Mountaineer Feb 8, 1860.

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140 children. As they reached adulthood Sanford wooed Pemlys sister, t hen he deflowered and deserted her. Sanford fled to Australia. Pemly followed him to Australia, New Zealand, California and finally to Fairplay. One morning Sanford looked up and there stood Pemly with rifle to shoulder, prepared to kill him. Sanford begge d for a chance and Pemly agreed to a duel. Sanford was shot through the heart and Pemly had a with a scalp wound. The Fairplay miners assembled in court. Pemly explained the circumstances and was acquitted.302 March 13, 1860 Young killed West Location: Aur aria/Denver Crime: Homicide Process: chief judge, and two associate judges twelve jurors Judge: Prosecution: Defense: Outcome: Convicted, executed by hanging On March 13, 1860, Moses Young s hot William West. West was preparing to resume mining and had called upon Young to collect some money Young owed him. West held the title to some town lots belonging to Young as security. Young refused to pay but demanded surrender of the securities. West rose and left Youngs house. Young fired at him from the door with a double barrel shot gun. West died in ten to fifteen minutes. Young made his escape through crowded streets but was found and arrested. His trial was t he next morning. A hundred people watched in silence. The assembly chose a Chief Judge, two Associa te Judges, a Secretary, Sheriff, and twelve jurors. The jury found Young guilty. The people assembled were asked if they approved the verdict, and they answe red aye. The Chief Judge then sentenced Young to be hanged.303 302 Hall, History of Colorado, Vol. 3 235; Fossett, Colorado, 61 2. 303 Rocky Mountain News March 14, 1860; Williams, Peoples Courts of Denver 2956; Smiley, History of Denver, 342.

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141 March 30, 1860 Rooker killed ONei ll Location: Auraria/Denver Crime: Homicide Process: Jury trial Judge: Prosecution: Defense: Outcome: Acquitted On March 30, 1860 John Rooker shot and killed Jack ONeill in broad daylight. ONeill was passing on street when Rooker appeared at the door of the Western Saloon and fired upon ONeil with a shotgun charged with buckshot. ONeill died in a few minutes. Ro oker was tried and was acquitted. The Rock Mountain News complained bitterly at Rookers acquittal. Byer s was out of the city at the time and wrote, since our return have been unableto learn to our satisfaction, the case or history of the difficulty.304 March 30, 1860 Fulsom Charged with Break ing and Entering Location: Golden City Crime: Theft Process: Trial; Judge: Squire MacDonald presided as justice Prosecution: Judge Carter and R. T. Davis Defense: J. F. Kirby Outcome: Found guilty and sentenced t o work on a chain gang for ten days Fulsom was arrested for stealing clothing and valuable papers. At his trial, several witnesses testified that part of the missing clothing had been left with them by the prisoner and part of the clothing was found on his person. He was found guilty and sentence to the chain gang for ten days and then to leave the country. A black smith affixed a ball and chain to his leg, and set to work on the street grade. However, on Monday night he escaped from 304 Rocky Mountain News April 4, 1860; Western Mountaineer April 4, 1860; Hall, History of Colorado, Vol. 3 236 7; Smiley, History of Denver 342.

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142 custody. By some mea ns he removed the chain and ball from hi s leg and vanished.305 April 18, 1860 George Wynkoop v. Denver City Town Company Location: Denver Crime: Not Crime; Civil lawsuit Process: Jury trial Judge: Allison Prosecution: Bennett and Gray Defense: Wyatt, Wagoner, Moore Outcome: Judgment for plaintiff of $1175 Edward Wynkoops brother George sued the Denver City Town Company for compensation for his efforts opposing the incorporation of the St. Charles Town Company by the Kansas Territorial Legislature bas ed on Edwards promise of on behalf of the Denver City Town Company of an interest in it.306 April 18, 1860 Shot fired at Thomas Warren Location: Denver Crime: Shot fired Process: Judge: Prosecution: Defense: Outcome: Not found Thomas Warren was shot at with a pistol as he was passing along Ferry Street. The ball passed through his coat doing him no injury.307 May 9, 1860 Hecklor killed Hickam Location: Crime: Homicide Process: Prosecution: Defense: Outcome: 305 Rocky Mountain News April 4, 1860; Western Mount aineer April 4, 1860. 306 Rocky Mountain News April 18, 1860. 307 Rocky Mountain News April 18, 1860.

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143 An obituary for Dr. Martin D. Hickam claimed death was a result of dispute over a mining claim: He was endeavoring to de fend his rights guaranteed him by miners laws, and while so doing was mortally wounded by a shot fired by Henry Hecklor who contested his right to the claim.308 June 12, 1860 Gredler killed Roeder Location: Bear Creek returned to Denver for trial Crime: Homicide Process: Jury trial; John Kehler Sheriff, and twelve jurors Judge: William M. Slaughter, Chief Judge; John W. Kerr and C. P. Marion Associa te Judges Prosecution: W. M. McClure Defense: K G. Wyatt Outcome: Convicted; executed by hanging On June 12, 1860, at a camp about six miles south of Denver, Marcus Gredler struck Jacob Roeder with an ax, almost severing Roeders head from his body. Gredl er fired a couple of pistol shots into the air and explained when the others came that Roeder had shot at him and he had been forced to kill him in self defense. Gredler then buried the body in a shallow grave and induced the others not to give any alarm. But suspicion developed and the party was induced to return to Denver. On the way, Gredler dug up Roeders body and took it with them. His trial was held June 14. The jury found Gredler guilty and sentenced him to be hanged. The finding and the sentence we re both approved and confirmed by the people. Gredler confessed on t he scaffold. He claimed Roeder beat his wife and child, and Roeders wife had agreed to testify to that effect if he killed her husband. The wife denied it.309 308 Rocky Mountain News May 9, 1860. 309 Louise, Barry, ed. Albert D. Richardsons Letters on the Pikes Peak Gold Region: Written to the Editor of the Lawre nce Republican, May 22 August 25, 1860, Kansas Historical Quarterly 12 no. 1 (February 1943) 29;Williams, People s Courts of Denver , 2956; Rocky Mountain News June 20, 1860; Thomas Wildman had become very jaded by this time, writing There is nothing very exciting going on in Denver We had another hanging affair in town . Hafen, Wildman Letters 260.

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144 June 13, 1860 Herding Stabs Otto Location: Denver Crime: stabbing Process: Judge: Prosecution: Defense: Outcome: Fled Frank Herding stabbed Otto over a pipe taken without permission. Herding fled.310 June 20, 1860 Hadley Killed Card Location: East of Denver Crime: Homicide Process: Jury trial; 12 jurors. Judges: William Person, George Wynkoop, and A. B. Babcock Prosecution: John L. Sherman Defense: H. R. Hunt and G. W. Purkins. Outcome: Found guilty, sentenced to hang but escaped On June 20, 1860, a train of freight wagons went into camp three and a half or four miles down the Platte. In corralling the wagons, one of the drivers, J B. Card, drove his wagon on the wrong side of the wagon in front of him. Another driver, William F. Hadley, cursed and abused Card. A scuffle e nsued. Hadley first attacked Card with stock of whip and then stabbed him with a butcher knife. Card died the next day. People camping nearby, arrested Hadley and brought him to Denver for trial. There was contradictory evidence, especially about the character of the accused. Despite that, Hadley was found guilty and sentenced to be hanged. Two men were assigned to guard the condemned. The next morning he was gone. The men on guard reported that one of them went to sleep. About midnight someone came to the other and said: You take a nap while I watch the prisoner. The second guard took the nap, and awoke later to find the prisoner and his volunteer jailer gone. It was 310 Rocky Mountain News June 20, 1860.

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145 rumored the guards had been bribed.311 One of those guards is mentioned again in connection with the Gordon case in July. July 1860 Swift Forged Deed Location: Eureka Gulch Crime: Forgery Process: Judge: Prosecution: Defense: Outcome: Found guilty; exiled from Gulch An attorney named Swift was found guilty of forging a deed. He was let off with instructions to leave the gulch and not to return at the peril of his life.312 July 4, 1860 Good order prevailed throughout the city during the entire day and evening. We have heard rumors of two or three stabbings at night, but have been unable to tr ace any of the reports to a reliable foundation, and are inclined to discredit the whole of them. Altogether the day passed off creditably to all concerned, and in a manner which might be emulated by cities of greater age and loftier pretensions. The rejoi cings were not boisterous, and the balls, of which there were several in the evening, the same admirable harmony and good feeling and order prevailed.313 July 4, 1860 Ennis shot Teef Location: Three miles East of Denver Crime: Assault Process: Judge: Pro secution: 311 Richardson listed the murders name as Hawley but most have it as Hadley. Barry, Albert D. Richardsons Letters , 334; Rocky Mountain News June 27, 1860; Williams, Peoples Courts of Denver 2978. 312 Western Mountaineer July 5, 1860 313 Rocky Mountain News July 11, 1860.

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146 Defense: Outcome: Escaped A fight broke out between John Teef and B. Rice. A friend of Rices, James Ennis, placed the muzzle of his gun to Teefs neck and fired. An attempt was made to arrest Ennis, but other gamblers drew their revolvers. W hile Ennis was leaving the race course, he was arrested by George Wynkoop, but the gamblers rescued him, furnished hi m with a mule, and started him out of the country. Teef recovered. Ennis was described a gambler from Camp Floyd and newspaper accounts s aid citizens were suggesting the formation of a vigilance committee to deal with the Camp Floyd desperadoes.314 July 4, 1860 is the first date that I saw any mention of the Camp Floyd invaders. Camp Floyd was military base in Utah Territory that was bein g closed down. The soldiers were transferring to Fort Garland in New Mexico (so on to be part of Colorado). Perhaps Camp Floyd kicked out its riffraff before the camp closed and they thought they would settle in Denver. Denver citizens did not give them a w arm welcome. From the descriptions it sounds like these men were professional gamblers rather than soldiers. See the following case for the behavior of the Camp Floyd soldiers. Ennis and others associated with him were involved with a number of other crime s during the summer of 1860. July 1860 was certainly the bloodie st month in Denver up to that time and it made an impression on the diarists Molly Dorsey Sanford wrote on July 23, 1860 that This has been a day of horrors. There has [sic] been four men killed in saloons. There is talk of a vigilance committee. There is too much lawlessness going on, so many saloons and dens of vice.315 314 Barry, Albert D. Richardsons Letters, 38; Rocky Mountain News July 11, 1860; Western M ountaineer July 12, 1860. 315 Mollie: The Journal of Mollie Dorsey Sanford in Nebraska and Colorado Territories 18571866, (Lincoln: University o f Nebraska Press 1959 ).

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147 July 1860 Camp Floyd Soldiers Run Wild Location: Denver Crime: Theft; Drunk and disorderly Process: Judge: Prosecution: Defense: Outcome: Escaped A regiment of United States troops under command of Colonel Morrison passed through Denver e n route to Fort Garland, New Mexico in July 1860. They came from Camp Floyd in Utah Territory, which was being abandoned. The regiment camped on Cherry Creek about five miles from town. Soldiers became drunk and started fights in Denver. Before they left some of the soldiers stole $175 in cash, three gold watches, and $200 worth of jewelry from Acheys Saloon. On overtaking the regiment, Achey found the thieves had deserted taking eighteen horses with them. Twenty dragoons had gone in pursuit.316 July 12, 1860 Harrison Killed Stark Location: Denver Crime: Homicide Process: Trial Judge: Prosecution: Defense: Outcome: Acquitted 2 different reasons from different sources On July 12, someone accused an opponent at a gambling table of playing a foul hand. Stark, who was standing by, said it was a damned lie. Charley Harris on replied to Stark and more words were exchanged until Harrison drew his revolver and shot Stark three times.317 At least thats how it was reported in the Rocky Mountain News Some people 316 Barry, Albert D. Richardsons Letters, 41 2; Western Mountaineer July 19, 1860. 317 Rocky Mountain News July 18, 1860,

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148 claimed that Harrison shot Stark unintentionally when he was aiming at someone else.318 Others said it was self defense.319 The Rocky Mountain New s demanded justice and claimed that Harrison even if justified in the first act, is unfit to live in, and unsafe member of a civilized community. This criticism was to have repercu ssions for Byers and the entire community discussed in the following case .320 On August 1, 1860, the Rocky Mountain News retracted its earlier accusation. After having spoken to two witnesses of the encounter between Harrison and Stark, Judge Wagoner, and a Mr S , the News determined Stark was the first to attack with a knife and Stark continued his attack until Harrison knock the knife from his hand with his pistol.321 Some people believed Harrison was the leader of a gang of criminals operating in Denver. Th e evidence is not clear. In any case, he was acquitted of shooting Stark. July 18, 1860 Gordon Shoots ONeil Location: Denver Crime: Homicide Process: No efforts made until he killed Gantz five days later Prosecution: Defense: Outcome: Executed by hang ing for killing Gantz James Gordon occasionally went on drunken sprees of violence. His last one occurred in July 1860. On July 18, he shot a bartender Frank ONeil and when ONeil attempted to crawl away, Gordon stooped down and fired upon him again. (O Neil recovered.) Gordon fired his pistol wildly at several people. 318 Kraft, Wynkoop, 42. 319 Hall, History of Colorado, Vol. 3 236. 320 Rocky Mountain News July 25, 1860. 321 Rocky Mountain News August 1, 1860

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149 July 21, 1860 Attack on Rocky Mountain News Location: Denver Crime: Kidnapping; threats; assault Process: Jury trial; Judge: A. C. Hunt Prosecution: Hiram P. Bennet Defense: A. C. Ford Outcome: The Rocky Mountain News had vigorously condemned Charlie Harrisons killing of Stark. After that criticism, Harrison visited the News office and discussed the matter with editor William Byers, claiming he killed Stark in self defense. They a greed to drop the subject. However, Carl Wood was not satisfied. Wood, George Steele, James Ennis, and John Rucker entered the offices of the Rocky M ountain News with their revolvers in their hands. Wood seized William Byers by the collar and insisted that he should accompany them to the Criterion saloon to speak to Charlie Harrison. Byers agreed. When they arrived at the saloon, Harrison corroborated that all was settled between himself and the editor. While Wood and his friends were drinking, Harrison hel ped Byers escape through a back door and accompanied him to the News office, where the employees had armed themselves and preparing for a siege.322 When the four ki dnappers learned Byers had fled, they remounted their horses and returned to the News building. Wood pointed a double barreled shotgun at the front door and said he would shoot Byers if he tried to leave. Steele rode around in back of the building and disc harged two shots into it. Half a dozen armed citizens on horseback reached the scene and repelled the attack. The citizens pursued the gunmen. Steele crossed Cherry Creek into West 322 Rocky Mountain News August 1, 1860; Barry, Albert D. Richardsons Letters, 5051; A. D. Richardson From the Pikes Peak Gold Region, New York Daily Tribune August 14, 1860 in Hall, History of Colorado, Vol. 3 241242; Alice Polk Hill, Pioneers in Picture and Story (Denver: Brock Haffner Press 1915) 79 81.

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150 Denver or Auraria, but was intercepted before he could cross the bridge over the Platte. He turned and rode back into East Denver. While riding at a rapid gallop along Blake Street, near the corner of G, he was met by Thomas Pollock, the marshal of the vigilance committee. Pollock fired on Steele with a shotgun. Ste ele fell from his horse and died two hours later.323 Ennis made his escape. Rucker was arrested. Wood was surrounded on F street and surrendered. In the evening nearly two thousand people attended a mass meeting. Byers told his account and speeches were made by Dr. Casto, Judge Purkins, Hiram P. Bennett and others strongly advocating the preservation of law and order. The meeting unanimously adopted a resolution indorsing Pollocks action in shooting Steele Albert D. Richardson wrote that Woods trial took three days and the jury decided that Carl Wood should be banished from the country on pain of death if h e returned. Richardson claimed that the trial was organized by the vigilance committee; but the jurors were selected without regard to thei r connection with that organization.324 Frank Hall told a different version of the trial than Richardson. Hall said that the jury hung at eleven to one for conviction with no chance of resolution. So the case was referred to the people assembled who decided to banish him. Ennis wa s still at large. Rucker was also allowed to leave region. Hall wrote that the community fe lt great indignation. Undoubtedly, William Byers was indignant.325 Nevertheless it was his rivals at the Western Mountaineer (possibly A lbert D. Richards on or George West) in Golden, who wrote that the trial was not the action of the people and claim ed that the reputable and peaceloving citizens were quie tly at homeunder the impression that the Vigilance Committee 323 Barry, Albert D Richardsons Letters, 50 52; Rocky Mountain News August 1, 1860. 324 Barry, Albert D. Richardsons Letters, 50 52. 325 Rocky Mountain News August 1, 1860; Hall, History of Colorado, Vol. 3, 2423; Barry, Albert D. Richardsons Letters, 50 52.

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151 had taken the matter in charge, and would conduct it to a just and proper termination. The Mountaineer went on to assert that when the vote was cast to release Wood the assembly was largely composed of his friends. The Mountaineer made additional accusations against the prosecuting attorney and, in general blamed the outcome on there being too many lawyers involved.326 July 22, 1860 Ba tes killed Hadley Location: Denver Crime: Homicide Process: Vigilance Committee Hearing Judge: Prosecution: Defense: Outcome: Not guilty, but censurable for the careless use of fire arms Bill Bates shot M. F. Hadley, the wellknown auctioneer, at Cannons saloon on Blake Street. Hadley and Bates had been talking in jest when suddenly Bates drew a pistol from beneath the counter and pointed it at Hadley. The gun went off. Immediately afterwards Bates, the bartender at that saloon said he did not me an to do it and did not know the pistol was loaded. Bates was arrested and a committee was appointed to investigate.327 The committee examined Bates Witnesses testified that he had not intended the crime. The jury found Bates Not guilty, but censurable for the careless use of fire arms.328 July 23, 1860 Gordon killed Gantz Location: Denver; escaped to Kansas; captured in Kansas Crime: Homicide Process: taken to KS for trial; Kansas Judge Pettit refused jurisdiction; return to Denver for trial; Judge: A. C. Hunt Chief judge with William Larimer, Jr., and William Person Associate Prosecution: Hiram P. Bennett, James T. Coleman, and Jacob Downing 326 Western Mountaineer August 9, 1860. 327 Rocky Mountain News July 25, 1860. 328 Western Mountaineer July 26, 1860.

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152 Defense: J. H. Sherman, Ham. R. Hunt, S. W. Waggoner, W. P. McClure and John C. Moore Outcome: Convicted; executed by hanging Gordon encounter ed Jacob Gantz at a saloon, lifted his glass and threw the whisky in Gantzs face. Then Gordon struck him with his fist knocking him down. Gantz recovered and ran for the door. Gordon caught him, dragged him back, and knocked him down again. Gordon beat Gantz about the head and face and while holding Gantz by the hair with his left hand placed his pistol on the top of his victims head, and attempted to fire. The pistol snapped four times, and the fifth attempt went off killing Gantz instantly. Gordon fled.329 Word was received that Gordon had headed in the direction of Fort Lupton. An armed posse started after him. When they arrived at the fort they heard Gordon was inside. They surround the fort and sent a messenger to Denver for reinforcements. But before reinforcements arrived the gates of the fort flew open and Gordon dashed out on a fast horse. Shots were fired after him and three members of the posse pursue d on horseback. After chasing Gor don for ten miles, Babcock came within shooting distance and fired, disabling Gordons horse. Gordon continued on foot but Babcocks horse was also spent. Another party with fresh horses kept on the trail for some distance, but were unable to catch him. We eks passed before he was heard from again.330 The Western Mountaineer complained about Schlegael, one of the guards who allowed Hadley to escape back in June (and was possibly bribed to do so) was inserting himself into the search for Gordon.331 William H. Middaugh, deputy sheriff of Arapahoe County, set off from Denver and finally captured Gordon at Humboldt. Kansas authorities would not allow Middaugh to return Gordon to Denver for trial. John Pettit, the chief justice of the territory of Kansas for 329 Rocky Mountain News July 25, 1860. 330 Rocky Mountain News July 25, 1860; Hall, History of Colorado, Vol. 3, 237 8. 331 Western Mountaineer July 26, 1860.

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153 the f irst judicial district set the date for a preliminary hearing and Middaugh return ed to Denver to collect witnesses for the hearing. At the hearing, the people from Denver were surprised when Judge Pettit declared the first question he had to answer whether he had jurisdiction over the place where the offense occurred All the witnesses for both sides, asserted that the crime had occurred in Denver, Arapahoe County, Kansas T erritory with one exception. That exception was Frederick Haun, who had assisted with the survey of the far western part of the boundary line between Kansas and Nebraska. He stated that Denver, where the crime occurred, was in Montana County according to the boundary lines established in 1859 by the Kansas legislature. Pettit agreed with Haun said he had no jurisdiction in Montana County. Pettit further ruled that as far as he could determine Denver was not assigned to any judicial district and thus no court in Kansas had jurisdiction over crimes committed in Denver .332 The victi m, Gantz had been from Leavenworth and the people there were unhappy with the result. A mob assembled outside the courtroom and tried to seize Gordon. The angry crowd was armed with muskets, revolvers and knives, and yelled, Hang him! Leavenworth Mayor Mc Dowell delivered several speeches urging obedience to the law. The mob failed to take Gordon from Middaugh and his other guards The authorities put Gordon in jail for his safety and the mayor of Leavenworth agreed to turn Gordon over to Sheriff Middaugh.333 When Middaug h returned to Denver with Gordon a Peoples Court was assembled, and tried Gordon. There was some dispute about the first set of judges chosen to try the case. Hiram P. Bennet refused to prosecute with those judges. The y resigned new judges were 332 Gower, Kansas Territory, 307 8. 333 Leavenworth Daily Times September 1 8, 1880; Gower, Kansas Territory, 308; Hall, History of Colorado, Vol. 3 239240.

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154 chosen, and the prosecutors accepted the case. At the end of the trial, the jury found Gordon guilty After the verdict, some people connected with the Herald were circulating petitions for a reprieve and rumors spread of an escape plan. But Gordon was kept under heavy guard and was hanged on October 6, 1860.334 Unfortunately, the execution of Gordon was not the final chapter. Several y ears later, a friend of Gordons who had sworn to avenge him killed Middaugh in an ambush near Julesburg .335 July 28, 1860 Men Accused of Aiding Gordons Escape Location: Denver Crime: Aiding a Fugitive Process: Judge: Prosecution: Defense: Outcome: A. J. Williams, President of the Denver City Town Company, and Dr. Kennedy, of Denver were arrested at Fort Lupton for assisting Gordon to escape. They were old friends of Gordons .336 Sheriff Middaugh also arrested James Latta and a Mr. Hewett for helping Gordon escape.337 It was not clear from the records if any of them were tried or punished. July 28, 1860 Du nn Arrested for Horse Stealing Location: Colorado City Crime: Theft Process: Judge: Prosecution: Defense: Outcome: Whipped and banished A party pursui ng James Gordon discovered and gave chase to three suspicious 334 Gower, Kansas Territory, 309; Rocky Mountain New s, Sept ember 25, 27 29, October 1 3, 5, 6 15, 1860. 335 Hall, History of Colorado, Vol. 3, 241; Rocky Mountain News Oct. 10, 1860. 336 New York Tribune, August 1, 1860. 337 Rocky Mountain News Sept 12, 1860.

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155 looking persons near the South Platte River twelve mile s downstream from Denver Samuel K. Dunn was captured, another escaped, and the third drowned trying to cross the river. Dunn was immediately brough t back to the city and placed under guard. He said his comrades were Jesse Ogden and Frank Mulligan (who drowned) Dunn w as tried and sentenced to receive twenty five lashes and ordered to leave the country within twenty four hours. When the whipping was administered Dunn fell nearly senseless and the remainder of the punishment was remitted. He left Denver on a wagon train.338 July 29, 1860 Ennis shot John Park Location: Colorado City Crime: Shooting Process: Judge: Prosecution: Defense: Outcome: James Ennis shot John Park through the neck at a card table in Colorado City ( Ennis also shot Teef in Denver earlier in July and was involved in the attack on the Rocky Mountain News office.)339 July 29, 1860 Horse Thief Location: Colorado City Crime: Shooting Process: Judge: Prosecution: Defense: Outcome: A Mexican thief stole two horses and was executed.340 338 Rocky Mountain News July 25 and August 1, 1860; Western Mountaineer July 26, 1860. 339 Western Mountaineer August 2, 1860. 340 Western Mountaineer August 2, 1860; Barry, Albert D. Richardsons Letters, 48 9.

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156 July 1860 M an Shot Location: Denver Crime: Shooting Process: Judge: Prosecution: Defense: Outcome: A person of color shot another five t imes. The victim recovered.341 July 1860 Merk killed Eads Location: Denver Crime: John Merk shot Charles H. Eads Process: Prosecution: Defense: Outcome: Cha rles H. Eads had been subject to bouts of insanity. He wandered about the streets half naked knocking into people he met. He was caught and taken to the hospital from which he escaped. He went a tin shop and then through the back door where Eads hit Merk on the head with a large stone. After Merk recovered from the blow, he seized a pistol and f ired at Eads as he was approaching a tent that was occupied by a woman who cooked for the owner of the shop.342 July 1860 German s tole twenty five dollars Location: Clear Creek Diggings, Golden City Crime: Theft Process: Judge: Prosecution: Defense: Outcome: 341 Barry, Albert D. Richardsons Letters, 42 3. 342 Rocky Mountain News August 1, 1860, Barry, Albert D. Richardso ns Letters, 48 9.

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157 A man was found guilty of stealing twenty five dollars. The mining district judges administered twelve lashes. Then they g ave him $4.80 because he was in ill health and out of money They instructed him to leave the gulch.343 July 1860 Smith Dom estic Abuse Location: Denver Crime: Smith abused and neglected wife and children; Homicide Process: Prosecution: Defense: Outcome: Smith abused his wife and three children. They left him and started for Denver under the protection of two men they had met. Smith followed W hen the men were searching for their horses, Smith fired a shotgun and his wife and children, wounding his wife in the hip. He tried to shoot one of the men but the man shot first and killed Smith.344 July 1860 Laughlin shot Devl i n Location: Denver Crime: Homicide Process: Prosecution: Defense: Outcome: Jim Laughlin shot Pat Devlin (or Develyn) who died of his wounds a few days later. T he ir quarrel started over claim. A jury of the citizens reviewed the case and acquitted Laughlin as acting in self defense.345 Aug 29, 1860 Clark Killed Huff Location: Golden City Crime: Homicide 343 Barry, Albert D. Richardsons Letters, 41. 344 Barry, Albert D. Richardsons Letters, 44. 345 Western Mountaineer August 2, 1860; Barry, Albert D. Richardsons Letters, 36, 44 5, 54.

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158 Process: Judge: Prosecution: Defense: Outcome: It began with a dispute over water rights. A miners meeting was called to settle the dispute but after the meeting, Huff and Clark quarreled again. Huff assaulted Clark, throwing him to the ground and holding him down. They rose and then Huff again fell and died with a knife wound in the heart. Clark was immediately arrested, tried, convicted of m anslaughter in the third degree and banished from the district.346 Aug 30, 1860 Horse Thieves Location: Denver Crime: Horse thieves Process: Judge: Prosecution: Defense: Outcome: Bradleys ranch was robbed of twenty five head of horses and mules. He started out in search of them with a party of eight men and returned this morning with no results other than finding some of the horses dead.347 Sept 1, 1860 McCleary and Brainard Assau lt Irwin Location: Golden City Crime: Assault with Intent to Kill Process: Judge: W.T. McWhirt Prosecution: J.N. Odell Defense: Outcome: C itizens of Golden City formed a court to try C. A. McCleary and T. C Brainard for 346 Western Mountaineer Sept 13, 1860. 347 Western Mountaineer Sept 6, 1860

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159 an assault upon J. B. P Irwin with intent to kill. The tri a l was conducted in an orderly and satisfactory manner but resulted in a h ung jury Prisoners were released .348 Sept 4, 1860 John Shear hanged Location: Denver Crime: Man Hanged Process: Judge: Prosecution: Defense: J. F. Kirby Outcome: On September 4, 1860 a body was found hanging from a tree about a mile up the Platte on the east side. It was recognized as John Shear. Fastened to it was a piece of paper that said: The man was hung. It was proven that he was a horse thief. The body was cut down. Sheriff Middaugh assembled a coroners jury and held an inquest.349 Shear had been tried for theft in Denver upon his arrival in April 1859. A t vari ous times after that he was implicated in horse and cattle stealing, bu t not prosecut ed. A confession from a horse thief named Shear as one of the leaders of a gang horse thieves along with James Gordon and A. C. Ford. Some said that the gang had more than fifty members and some were prominent men in Denver.350 Sept 1, 1860 More Horse Thieves Location: Denver Crime: Horses Stolen Process: Judge: Prosecution: Defense: J. F. Kirby Outcome: 348 Western Mountaineer Sept 6, 1860 349 Rocky Mountain News Sept 4, 1860. 350 Rocky Mountain News Sept 5, 12, 1860; Western Mountaineer Sept 13, 1860.

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160 A man with four stolen horses in his possession was caught a few miles away from Denver but he escape d an d came to Denver. About noon he stole a horse on Blake street, and head ed out of town. Sheriffs Harrison and Snider pursued him and he was caught at Hendersons ranch and br ought back to Denver. T wo men who stole the famous Black span of S. O Hemenway were also taken into custody.351 Mr. Johnson of Mountain City caught one horse thie f and sent him back to Mountain City. Mr Cochran also had a valuable horse stolen from his ranch nine miles up the river. 352 Sept 4, 1860 A. C. Ford Mu rdered ? Location: Six miles from Denver Crime: 1 man kidnapped and killed Process: Prosecution: Defense: Outcome: A group of masked men on horseback stopped a coach heading east from Denver and removed Auraria attorney A. C. Ford.353 Some sources claimed Ford was his way to t estify in Lawrence on Gordons behalf.354 However, Richard Sopris wrote that Ford was the head of an organization of horse and cattle thieves, and tried to leave town when he realized a vigilance committee was on his trail.355 After Ford disappeared, t he Rocky Mountain News wrote that recent developments pointed to Mr. Ford as the president of the horse thief gang.356 It is also interesting to note that A. C. Ford was one of a number of attorneys who jointly took out an advertisement in the News stating th at they were going to close their 351 Western Mountaineer Sept 6, 1860 352 Rocky Mountain News Sept 12, 1860. 353 Santa Fe Gazette Nov 18, 1860. 354 Gower, Kansas Territory, 307 8; Santa Fe Gazette Nov 18, 1860. 355 Richard Sopris Fifty Years Ago, Trail 1 no. 11 (April 1909): 5; Gower, Kansas Territory, 307 8. 356 Rocky Mountain News Sept 5, 1860.

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161 offices in Denver at the end of August due to the unsettled jurisdictional issues.357 According to an article in the Santa Fe Gazette, Ford was taken a few miles away from the usual road and shot. When his body was found it was riddled with buckshot and one large caliber bullet and pinned to his coat was a slip of paper with the words: Executed by the Vigilance Committee.358 T he Santa Fe Gazette claimed that Ford bore a very fair character in Council Bluffs, Iowa However Iowa records say otherwise. Coles history of the Iowa legal profession describes Ford as a shrewd, keen, successful jury lawyer , but also as a man who was in the habit of telling very strange things and was the best liar in town .359 Will L. Clark t e lls a story about how the 1857 spring term of a district court in Iowa was never held because the judge instead repaired to the saloon with A. C. Ford, of Council Bluffs spent the time allotted for the term, in giving the infant city a crimson tint. Other less reliable sources connect Ford with various political intrigues and fraud schemes in Iowa.360 I am not convinced that Ford did not fake his own death. While there are accounts by anonymous persons of finding his body, the body was reported to have been buried on the plains in a grave known to but a few , and not brought back to Denver. It was identified by Fords watch, a classic plot device of someone who wanted to disappear. Ford also wrote a will before leaving everything to his girlfriend Sar ah Jane Vailles even though he supposedly had a wife elsewhere.361 Cole had lived in California before moving to Iowa.362 357 Rocky Mountain News Sept 4, 1860. 358 Santa Fe Gazette Nov 18, 1860; Rocky Mountain News Sept 12, 1860. 359 Chester C. Cole, The Court and Legal Profession of Iowa, Vol II Chicago: H. C. Cooper, Jr., & Co. 1907, 9445. 360 Wi ll Leach Clark, History of the Count ies of Woodbury and Plymouth, Iowa, ( Chicago: A Warner & CO.,189091) 1335 361 Western Mountaineer Sept 13, 1860. 362 Cole states that A. C. Ford came to Iowa from California about 1850 where he had been a blacksmith by

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162 The 1860 Census for Indian Valley Township 5, Sierra, California, lists an A C Ford living in a rooming house with a S arah Ford Is this a coincidence? The Denver census taken on July 27, 1860 shows A C Ford living there. The Indian Valley was taken August 24, 1860. Ford had already announced his attention to leave Denver at the end of August. He could have already rented rooms in Indian Valley and installed Sarah there. She may have answered the census taker or the landlord might have. There are more questions than answers about Fords exit from Denver .363 Sept 10, 1860 Linscott and Lammon Arrested for Horse Stealing Location: G olden City Crime: Horse Stealing Process: Prosecution: Defense: J. F. Kirby Outcome: Linscott and Lammon were arrested near Ralstons Creek on the charge of horse stealing. T he prosecution attempted to present the confession of one of them, but the court ruled the confession was not voluntary, and thus not admissible as evidence. T he jury men we re unable to agree upon a verdict ten wanted to acquittal and two were for conviction. The meeting voted to release them .364 Sept 25, 1860 McCleary and Son Assault August Ingleman Location: Golden City Crime: Assault with Intent to Kill Process: Judge: Prosecution: Defense: trade, but by his own efforts acquir ed some general legal education. Cole, Legal Profession of Iowa, 944. 363 1860 U.S. Census California and Kansas Territory. I believe an entire book could be written about Ford. 364 Western Mountaineer Sept 13, 1860.

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163 Outcome: D. McCleery and son were tried by the citizens of Golden City on the charge of assault ing August Ingleman with intent to kill. The jury failed to agree and M cCleary and his son were released.365 Oct 1860 Jefferson Convention Unrest Location: Denver Crime: Disturbing the Peace Process: Judge: Prosecution: Defense: Outcome: The i nflux of people into Denver for the Jefferson Territory Convention resulted in some of our usually quiet citizens to indulge in a lit tle amusement in the way of shooting. A bottle was broken. No other damage. Fist fight broke out between delegates Dr. B P Rankin and Judge H. P. A. Smith.366 Oct 1860 Patrick Dwyer Arrested on Kansas Writ Location: Golden City Crime: Homicide? Process: Judge: Prosecution: Defense: Outcome: Patrick Dwyer was arrested in Golden under a writ from Breckinridge County K .T. A m eeting of the people determined that the inquest in Breckinridge County had determined the death was accidental and thus the writ was flawed The meeting let him go The meeting also said Eastern Kansas had no jurisdiction over our criminals and consequently we have none 365 Western Mountaineer Sept 27, 1860. 366 Rocky Mountain News Oct. 10, 1860.

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164 over hers. 367 Oct 1860 Clear Creek Miners Destroy Nevada Gulch Ditch Location: Denver Crime: Disturbing the Peace Process: Judge: Prosecution: Defense: Outcome: Armed posse of Clear Creek miners destroyed the Nevada Gulch ditch. Afterwards miners held meeting to outlaw damaging the ditch .368 Oct 1860 Dispute between Black Hawk Mill an d Consolidated Ditch Co. Location: Black Hawk/Central City Crime: Process: Judge: Prosecution: Defense: Outcome: Nevard, Illinois, Central, Russell and Eureka D istricts held a Miners Meeting to object to an injunction served upon Cons olidated Dit c h Company by the sheriff of Arapahoe C ounty on behalf of the Black Hawk Mill Co. A c ommittee of five was app ointed to draft resolutions to respond.369 Oct 1860 Simpson Arrest ed for Stealing Location: Denver Crime: Theft Process: Citizens Meeting Judge: Prosecution: Defense: 367 Western Mountaineer O ct 18,1860, 368 Western Mountaineer O ct 18,1860, 369 Western Mountaineer Oct 17 and 18, 1860.

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165 Outcome: Sentenced to 21 lashes and banishment Simpson was arrested for stealing a sack of coffee, a sack of flour four cans peaches, a jar of pickles, a sack of dried apples two side s of bacon, a gun, and a lot of bedding. Prisoner pled guilty but said he was drunk. He was sentenced to 21 la s hes and banishment.370 Nov 1860 McClure threatened Goldrick Location: Denver Crime: Man threatened at gunpoint Process: Trial before j udge Judge: Judge Downing Prosecution: Defense: Outcome: Required to post $2000 bond for a year McClure saw a less than flattering story about himself in the St. Louis Democrat written by Observer, a pseudonym O. J. Goldrick used. At gunpoint McClure demanded a nd obtained a signed retraction of the false and slanderous words. Goldrick c omplained and McClure was arrest ed. McClure was taken before Judge Downing of Denvers municipal court McClure said that he did not recognize Denvers municipal government and would not be tried He walked out the door. He was a rrested again that night tried, found guilty, and ordered to pay a $2000 bond to guarantee he would not disrupt the peace for one year. McClure refused to pay the bond. Downing ordered him confined in the C.A. Cook & Co. buil ding. Shortly before 1 a. m. the next morning Charlie Harrison, Edward Wynkoop, and twenty other men stormed the building and overwhelmed the guards After he was freed, McClure barricaded himself in the post office. City Marshal James Shaffer led 50 [or 200] 370 Western Mountaineer Nov 1, 1860.

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166 men to post office. After some mediation and misdirection by Wynkoop, McClure finally appeared at Judge Downings office and paid the bond. Wynkoop later insisted that as county sheriff, he merely had assumed the custody of the prisoner which does not excuse for his behavior .371 Nov 30, 1860 Waters killed Freeman Location: Six miles from Denver Crime: 1 man kidnapped and killed Process: Judges: William Person, General Marshall, and E. H. Hart Prosecution: H. P. Bennet, J. Bright Smith, and General L. L. Bowen Defense: C. P. Happ and C. C. Carpenter Outcome: Some accounts list the date of this murder as November 30 and others as December 7. T hey all agree that Freemans bloody wagon was brought to Denver on December 10 by M. C. Fisher s fre ight train. When the wagon was recognized belonging to Freeman the primary suspect was Patrick Waters, a man who worked for Freeman. Ned Wynkoop appointed W. T. Shortridge deputy sheriff and sent him to track down Waters. Shortridge tracked him to Cottonwood Springs, Nebraska Territory. Waters had Freemans rifle and horse in his possession. Shortridge brought Waters back to Denver. The A. F. & A Masons met on December 16 and appointed members Wynkoop, Byers, Pollard, Thomas, and Wanless to locate Freemans body and return it to Denver for proper burial. According t o Isern, the Masons voted not to hinder Waters defense. The group took Waters with them to find the body. Waters refused to cooperate. They threatened him with hanging right there, even putting a rope around his neck. Waters confessed but claimed it was an accident. Then he showed Wynkoop where he hid the body. A Peoples 371 Kraft, Wynkoop, 41 2, 45; Isern, Wynkoop, 5; Hafen, Wildman Letter s 266.

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167 Court was organized on December 19 and Waters was tried and convicted. He was hanged on December 21.372 Dec. 1860 Cochrane Attacks Goff Location: Denver Crime: Man struck in head with pistol; Friends argue with perpetrator Process: Prosecution: Defense: Outcome: On the afternoon of Sunday, December 2, 1860, Wynkoop was at the Criterion, when he and Harrison learned that another of Harrison s employees, Andy Goff, had been struck i n the head with a revolver by James Cochrane and lay close to death. The y immediately set out to find Cochrane. As soon as they did, they began cursing at him. Their anger built until they yanked out their pistols, but they managed not to lose control or f ire a shot. The incident ended without bloodshed.373 Dec. 2, 1860 Harrison shoots Hill Location: Denver Crime: Man argues with several men in bar; Fights with owner and is shot Process: Tried by Denver court Prosecution: Defense: Outcome: Hung jury On December 2, 1860, James Hill entered the Criterion Saloon. He was drunk and continued an argument with Edward Wynkoop that had started earlier in the day. Both men drew their pistols. Charlie Harrison and, O. B. Thom as, another bartender, interceded and to ld Wynkoop to move to the other end of the bar. Thomas asked Hill if he wanted to go 372 Isern, Wynkoop, 35; Kraft, Wynkoop, 535; Rocky Mountain News Dec 26, 1860 Kania and Hartman, Bench and Bar 20; Williams, Peop les Courts of Denver, 300302. 373 Kraft, Wynkoop, 51.

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168 outside to talk. Hill called him an S. O. B. Harrison told him no one insulted his bartenders. Hill reached for his revolver but Harrison jammed his finger between the tri gger and the guard. At the same time, he drew his own revolver with the other hand and fired four times hitting Hill twice. Hill died the next morning. Charlie Harrisons trial began on December 4 and but ended the next day in a hung jury, 10 for acquittal and 2 for conviction. Smiley wrote that Harrison left Denver a short time after he killed Hill and joined Sterling Prices army organizing in Arkansas for the confederacy and was killed.374 Dec 14, 1860 Kelly v. Doyle Location: Denver Crime: Homicide Pro cess: Trial by jury Prosecution: Defense: Outcome: On December 14th Patrick Kelley killed Richard Doyle, his partner in the Club House over a business dispute. Kelley was tried for murder in a Jefferson Territory Court. He argued that if he had committ ed the crime it was no t murder but manslaughter at the most. The Court instructed the jury that the law of the territory only conferred jurisdiction on the court in cases of murder. The jury returned a verdict of not guilty as charged in the indictment and Kelley was released.375 The Rocky Mountain News objected to this outcome and insisted that they should return to the exclusive use of Peoples Courts.376 Feb 2, 1861 Homicide or H oax? Location: Nevada City (Nevada Gulch Mining District) 374 Rocky Mountain News December 5, 1860; Kraft, Wynkoop, 51 2; Smiley, History of Denver 349; Noel, The City and the Saloon: Denver 18581916, (Lincoln, NE: University of Nebraska Press, 1982): 22, 24, 26. 375 Smiley, History of Denver 349; Hafen, Wildman Letters 271 note 28. 376 Rocky Mountain News Dec 26, 1860.

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169 Crime: Homicide ? Process: Judges: Prosecution: Defense: Outcome: T wo men and two women were s een together on the streets at night Then a fight broke out between the men, shots were fired, one of them fell and the other esca pe d. T he w om e n carr ied the fallen man off S pectators were too afraid to pursue them in the dark. In the morning, they found a pool of blood. The citizens w er e indignant A miners meet ing was called and a committee of t en citizens were appointed to act as a Vigilant Committee to investigate Eventually the two female s were traced to their hiding place and were found to be a couple youngsters on a lark, and the pool of blood came from a butcher .377 While this was not crime, I think the story demonstrates how seriously that the people took crime. March 12, 1861 Widgenstein shot bystander Location: Denver Crime: Homicide Process: Prosecution: Defense: Outcome: Edward Wynkoop intervened in a fight in the St. Charles Saloon between Mark Buckskin Widgenstein and Thomas Evans. Evans attacked Widgenstein with a knife, Wynk oop struck Evans on the head with his revolver. The scuffle spilled into the street; Widgenstein seized a pistol, Wynkoop leaped aside and Widgenstein fired, killing Edwin Morris a bystander. City Marsh al James R. Shaffer arrived to arrest the fighters.378 377 Rocky Mountain News F eb 6, 1861 378 Isern, Wynkoop, 3; Hafen, Wildman Letters 27980.