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Andrea McDowell to Address Legal History Forum on "California Lynch Law, 1848-56"

Andrea McDowell, Ribicoff Fellow at YLS, will speak at the Legal History Forum about "California Lynch Law, 1848-1856: 'The Might of the Sovereign People'" on February 18, 2003, at 12:00 p.m. in the Faculty Lounge. The talk is free and open to the public, but please e-mail if you wish to attend.

In California, in the years 1848-1856, "the miners in the gold mining camps ran more or less their own criminal justice system," says Andrea McDowell. This was "lynch law," under which the community in a gold mine came together to try someone suspected of committing a crime.

McDowell describes the procedure: "When the actors had the time and inclination to follow normal common law procedure as closely as possible, they began by electing a judge and sheriff and selecting a jury; the accused might be allowed counsel, but this was one of the questions put to the miners? meeting. The trial then proceeded more or less like one in a normal court and eventually the jury delivered a verdict. In the end, however, it was the crowd that decided the fate of the accused by voting to accept or reject the jury?s decision."

Though the phenomenon is termed "lynch law," the punishments varied from lashings to mutilation to hanging. And sometimes suspects were released for insufficient evidence or apparent innocence. McDowell writes, "For the great majority of miners, the term 'lynch law' carried no negative connotations; it was simply the operative criminal law of the diggings just as the local mining code was the basis of property law." Many instances of lynch law were recorded in miners' diaries and in the letters they sent home to their families, and these were McDowell's primary sources of information.

The practice started in the years 1848-49, when there was no formal government in California. But, as McDowell notes, the instances of lynch law actually increased after California approved a constitution and a territorial government was put in place. She explains, "There is no doubt, however, that bad alcaldes and sheriffs on the one hand and unwieldy criminal procedures on the other caused lynchings to degenerate. The miners now felt that, to get justice, they had to try and execute suspects quickly before the legal authorities took them into custody. Lynchings became shorter and wilder."

McDowell descries some distinctly American characteristics in the phenomenon of lynch law. "It's the American tradition of egalitarianism . . . carried to a logical extreme," she says. The miners believed that they were in the right, because the lynching was an expression of the will of the people.

McDowell's paper goes on to ask some broader interpretive questions about this period of wild law. "How did [lynch law] come to be accepted by almost all Americans in the mines? Was it ?necessary? as the miners argued? What would have been the alternatives? . . . What could a principled man have done to promote justice, if anything?"