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Robert Aitken was an associate editor of Litigation and a lawyer in Palos Verdes Estates, California. He passed away on December 6, 2011. Marilyn Aitken is a freelance writer. They coauthored Law Makers, Law Breakers and Uncommon Trials, published by the ABA.
There was no law and order in the Idaho Territory east of the Bitterroots, where one of the world’s largest gold strikes took place at Alder Creek in May 1863. Stages carrying miners and merchants to the small settlement of Nevada City and the larger neighboring boom town of Virginia City were regularly ambushed by “road agents,” who forced passengers to hand over pouches of gold dust. No territorial courts existed; the chief justice had not been sworn in and refused to act. He was waiting to become governor when this remote area would be split off and be called Montana Territory. Law enforcement was typified by Henry Plummer, a notorious sheriff, who appointed members of his robber band as deputies. Then the corpse of Nick Tiebold (Tbolt) was discovered.
In December 1863, the trial of George Ives for Tbolt’s murder took place, an epic spectacle with a cast of at least a thousand: lawyers, prosecutor, judge, jury, and a huge crowd of spectators deciding the verdict. Justice was swift, but a trial took time. In those lawless days, it was more efficient to entrust the enforcement of order to a small band of prominent citizens. Memoirs and journalism celebrated the resulting spree of hangings, but history, while understanding the fury against lawlessness that fueled the early vigilante actions, provides a harsher account of the private war that continued even after a court system was established.
Nick Tbolt, a young German whose parents had been killed by Indians, was a favorite of his employer, William “Old Man” Clark, who sent him to retrieve some mules. Clark’s mules had been boarded at the ranch of George Ives, a handsome, sometimes violent, horse rancher. Tbolt’s frozen body was found in the snow by William Palmer, a Nevada City saloon keeper. He had been shot in the head and dragged into the brush. Palmer walked to a nearby hut for assistance, but “Long John” Franck and George Hilderman, part-time employees of Ives, refused to help.
Told of the terrible discovery, Clark, along with James Williams, a natural leader, headed a posse that tracked Franck and the elderly Hilderman to Ives’s ranch. After threats of execution, Franck identified Ives as Tbolt’s killer and pointed to where Ives was hiding. Ives cheerfully submitted to arrest, but on the journey to Nevada City, he suggested a horse race. Ives galloped ahead and kept on going. Eventually, his horse tired, and he was recaptured.
Now the posse and townspeople had to determine Ives’s fate. They decided to conduct a trial, even though some in the crowd favored immediate hanging. Ives asked to be tried in Virginia City, the nearby mining camp where he had friends, but the posse voted to keep the trial in the Nevada mining district. F. Allen, A Decent, Orderly Lynching: The Montana Vigilantes (2009).
The next morning, Wilbur Fisk Sanders, a young lawyer and the nephew of the unsworn Chief Justice Sidney Edgerton, met the lawyers who would represent those arrested for the murder of the “Dutchman”: James M. Thurmond, John D. Ritchie, and Harry Percival Adams Smith. “These three lawyers,” Sanders wrote in his delightful account of the trial, “were somewhat remarkable characters, all of them out to thwart the administration of justice by all the means they could invent.” Col. W. F. Sanders, “The Story of George Ives,” in X. Beidler: Vigilante (H. F. Sanders and W. H. Bertsche Jr. eds. 1957).
Arriving in Nevada City, Sanders was advised that because the lawyers practicing in Alder Gulch had all been engaged to defend the murderers of Tbolt, “they greatly desired I should remain to prosecute the defendants.” In agreeing to prosecute, Sanders said that he “would push it with the utmost vigor, and if the guilt of the accused was certain, that the retribution should be swift and absolutely remorseless.”
Ives’s lawyers wanted a trial before a judge and a jury of 6 or 12 men, but it had already been voted that the trial should take place before the miners en masse, presided over by Judge Byam. A motion was made that lawyers not be permitted to participate in the trial, which naturally was opposed by the defense lawyers. Someone asked Sanders his opinion, so he mounted a wagon and stated that if lawyers were permitted to participate, he was sure that everyone’s interests would be protected and truth would prevail.
Sanders moved that the defendants should be tried separately. Franck was now Ives’s main accuser and witness for the prosecution. Hilderman appeared feeble-minded and of little importance. For Ives, 12 jurymen each from the two districts would listen to the proof, but their duties would be merely advisory. The miners, with their guns, would decide guilt. By the time the trial started, the miners numbered more than one thousand.
The trial was moved to the main street in Nevada City, where there were seats in a big wagon and a semicircle of benches for the jurors. Behind them were armed guards and, in the background, a big crowd of onlookers. Palmer was the first witness, and he told the story of discovering Tbolt’s corpse.
The trial continued the next day with the testimony of Franck, who explained how Tbolt had appeared at Ives’s ranch and presented Clark’s order for the mules. When Tbolt paid the bill, his buckskin purse was weighed to determine the value of the gold dust within. Three or four hundred dollars remained in the purse after the transaction. Franck said that after Tbolt left with the mules, Ives followed him and returned a short time later with the mules. Noting that it was cowardly to shoot a fellow in the back, Ives said that he had “holloaed,” and when Tbolt turned his head, he shot him and took his purse and the mules. Sanders records that the defense lawyers called Franck a traitor for squealing on Ives and argued that a traitor should never be permitted to escape. “Before Ives’s case was disposed of,” Sanders wrote, “his several lawyers seemed to think they had firmly established the proposition that whatever was the result for Ives, ‘Long John’ [Franck] should certainly be executed.” Sanders, supra.
Stage drivers provided information about Ives’s connection to highway robberies and murders, but they were excused from testifying because their lives would be in danger. On the last day of trial, Sanders believed that testimony left no doubt that Ives had killed Tbolt as charged, that Ives had committed a half-dozen other murders, that he had “pursued the vocation of highway robber” for months along the roads leading to Salt Lake City, and that he was a hardened criminal with an insatiable appetite for blood.
Sanders observed that “the counsel for Ives were discouraged and some indulged in libations much beyond what prudence would have dictated, though none but Mr. Ritchie seemed to have their keenness of intellect impaired.” The crowd listened to the defense lawyers “without bad temper, but a spectator would burst out with a witty remark or cut down a labored argument with a common sense remark.” Ritchie appealed to the softer side of human nature. Thurmond followed Ritchie, “who, having become physically exhausted, repaired to some neighboring place of entertainment where liquid delights, as they are misnamed, were dispensed, and having somewhat over-estimated his capacity in that regard, during the balance of the arguments sat around muttering his discontent at the ‘outrages’ that he saw in progress before him.” Thurmond’s plea for Ives was able, according to Sanders, but it fell on deaf ears, especially in light of the fact that Ives did not testify.
The 24 jurymen returned with a written report that Ives was guilty of the murder of Tbolt as charged, but it was signed by only 23 jurors, Henry Spivey having “declined to sign if not from any dissent, but for prudential reasons.” Sanders immediately made a motion that the verdict be approved. Without delay, the motion was carried “with a very loud shout, more than 4/5 of the citizens voting for the same.” Sanders instantly made another motion that George Ives be now “hung by the neck until he was dead,” which was seconded and passed. Ives’s friends, somewhat dazed by the swiftness of the motions, tried to have Long John hanged at the same time.
Ives asked Sanders to delay the execution until the next morning so he could write a letter to his mother and sister. While considering the request, Sanders heard John X. Beidler, who had been valuable as a guard, shout what became a famous remark: “Sanders, ask him how long he gave the Dutchman!” Ives was placed on a dry-goods box under a dangling rope. He uttered a few words protesting his innocence, and the box was kicked from under him. Ives’s friends shouted threats, and Sanders was surrounded by a guard day and night for the week he remained in the Gulch.
The main criminal was dead. The cases against Hilderman and Franck remained. The lawyers reappeared. Hilderman wanted to remain in the area, but he was ordered to leave. Franck was allowed to remain in the territory. Thus the trial ended, but Sanders’s concluding remarks foreshadowed Montana’s vigilante movement:
Four days had been expended by at least fifteen hundred men out of deference to the forms of American institutions, and when the prosecutions were finished, and the community knew no more than it did when they were begun, a number of people began to inquire whether each tragedy required so much attention, and how much time would be left to pursue the ordinary vocations if this deference was to be continued, and speculations as to forming a Vigilance committee grew in coherence and strength.
We had our confidence strengthened by the splendid fidelity of the miners of Alder Gulch, and by their unshaken resolve that that which they achieved they would preserve, despite the robbers who had so long infested the country, and on the evening of the next day, I think it was, the nucleus of a Vigilance committee was formed, thereafter to grow to large proportions and to determine that in the heady struggle between order and crime, order should win the final mastery. But that is another story.
And it was.
Unlike the open Ives trial, the Vigilance Committee was a secret society. James Williams was elected executive officer, and “while a prosecutor was not provided for, the captains and lieutenants, desiring to acknowledge the valiant conduct and inestimable services of Mr. Sanders, elected him prosecutor’s office.” Merchants and ranchers made up the committee. Gone were defense lawyers and rules of law. Suspects were caught, questioned, and urged to confess. There was no appeal. The bylaws stipulated that “the only punishment that shall be inflicted by this committee is DEATH.” In Lew. L. Callaway Jr.’s book based on his father’s memoirs, a chapter detailing one of the expeditions is called “The Power of the Road Agents Broken.” The subtitle explains “Capture, trial, and hanging of Yager and Brown. Astounding disclosure by Brown that Sheriff Henry Plummer was chief of the road agents. Plummer, Stinson, and Ray hanged January 10, 1864.” Lew. L. Callaway, Montana’s Righteous Hangmen (Lew. L. Callaway Jr. ed. 1982).
The committee continued to rid the territory of robbers. The next day was the last for “Dutch” John Wagner and Joe “The Greaser” Pizanthia. “On January 13, the companies captured Plummer’s top six men in Virginia City. One escaped temporarily, but the other five were hanged and their bodies left dangling side by side for two hours. Hunter, the man who had escaped, was later found and met his death on February 3, 1864. The reaction of most settlers was relief that the trails would be safe. Twenty-one men were hanged during the first six weeks of 1864, and the evidence was that they were guilty. Allen, A Decent, Orderly Lynching.
Next to meet the noose would be the extraordinary Joseph Alfred Slade. Born to a respectable family in Illinois, Slade had an uneventful life until he killed a man during a quarrel and fled west. He became an Indian fighter. Mark Twain, in Roughing It, claimed Slade killed three warriors, cut their ears off, and sent them to the tribal chief. Slade, sober, was a successful division agent for the Overland Stage. Drunk, he was a terror, displaying the dried ears of an enemy named Jules and demanding they serve as legal tender to pay his bar debts. During his final spree in Virginia City on March 9, 1864, Slade threatened a judge and interrupted the peace but did not commit a capital offense. The executive committee decided they had humored him long enough. They assembled 200 miners who arrived while the Vigilance Committee was in session. They decided he should be hanged immediately, before his attractive wife, who was racing on horseback to the scene, could bring a rescue force. The judge of the people’s court was ignored when he begged the crowd to spare Slade’s life. Williams gave the order, “Men, do your duty.” Callaway, supra.
Thomas Dimsdale was the champion of the Vigilance Committee. He wrote a newspaper column and a book, The Vigilantes of Montana, and commented that “[t]he death of Slade was the protest of society on behalf of the social order and the rights of man.” He said it was a “stern necessity.” Lew. Callaway claims that except for this execution, the vigilantes of Montana have been “well-nigh universally commended. For this act, they have been fiercely condemned and as vigorously commended.”
The work of the original vigilantes was almost finished in the summer of 1864 when two men, James Brady and Jim Kelly, botched a killing of a third man. Williams heard the shots, and Kelly and Brady were arrested. Brady was identified by the victim, who was in critical condition. Brady was tried by the committee and confessed he had fired the shot. The death sentence was executed. There was not enough evidence against Kelly for the death penalty, but the committee had decided to expand its punishment for lesser offenses, and he received 50 lashes. When Williams learned that Kelly was involved later in a robbery, the vigilantes caught up with him and carried out a death sentence. After the hangings of Dolan, an associate of Kelly’s, and another man named Jack Silvie, James Williams retired as head of the Vigilance Committee.
Hon. Hezekiah L. Hosmer, newly appointed chief justice of Montana, opened the first federal court, in temporary quarters, in Virginia City’s Planter Hotel on December 5, 1864. He praised the early work of the Vigilance Committee, but he stated that the functions of the vigilantes were no longer necessary. “Let us erect no more impromptu scaffolds,” he said. “Let us inflict no more midnight executions.” He threatened to call on the grand jurors to indict the vigilantes on charges of murder if they did not stop. They stopped for almost a year, but the hangings began again in Helena on November 21, 1865. Thomas Dimsdale died naturally in September 1865, but other newspapermen defended the vigilantes.
Just as the murder of Tbolt had triggered the big murder trial and started the vigilante movement, the lynching of a Chinese man, Ah Chow, in Helena in 1870 turned the public against the vigilantes. A miner named John R. Bitzer claimed that as he passed Ah Chow’s cabin, he heard noises and rushed inside to rescue a woman being beaten. Ah Chow shot Bitzer in the groin. Another version was that Bitzer was making advances on Ah Chow’s girlfriend and Ah Chow came upon the scene. In any case, Ah Chow disappeared. John X. Beidler found him, claimed the reward, and turned him over to the vigilantes, who quickly lynched him on the “Hanging Tree.” They attached a sign to his back with the warning: “Beware! The vigilantes still live.”
Three months later, in April 1870, two thieves were tried and hanged by an informal people’s court while a crowd watched. A photograph was circulated of the Hanging Tree with Joseph Wilson and Arthur Compton hanging side by side and a group of adults and children looking on. They became victims 49 and 50, the final results of vigilante justice.
Territorial justice was now available under the direction of the 300-pound governor, Benjamin F. Potts, appointed by President Ulysses S. Grant. A territorial penitentiary was built in 1871, the courts became stronger, and the first legal execution took place in 1875. Alder Gulch lost population as miners headed for the latest gold rush in the Dakota Territory. Helena became Montana’s territorial capital. Robert Fisk of the Daily Herald newspaper pushed for railroads as a way of expanding Montana’s population so that it could become a state. The first passenger train arrived in Butte in December 1881, bringing among the newcomers an assortment of vagrants and petty criminals. Montana’s newspaper editors became nostalgic for the good old days of the heroic vigilantes, and Fisk called for a new Vigilance Committee.
In 1882, the numbers 3-7-77 appeared in several places in Butte and then in Helena. The meaning of the numbers has never been proved, but the message was clear. If those numbers were posted on your door or tent, you either had to leave town or you’d end up in a grave that could be 3 feet wide, 7 feet long, and 77 inches deep. The new vigilantes insisted they did not intend to carry out executions and meant only to scare off the unwanted. In 1883, when an accused killer named John A. Jessrang refused to admit guilt, a mob put a noose around his neck but didn’t kill him. He was returned to jail, and the mob returned three weeks later and hanged him in his cell after Fisk’s newspaper column in the Herald urged his execution. Fisk reconsidered and wrote an editorial advocating a “decent, orderly lynching when there was a particular atrocity in the crime and there can be no mistake as to the criminal. But beating, kicking and dragging through the streets, both before and after death, is too brutal to excuse. . . .”
Summary justice continued from time to time until it lost acceptance in the first half of the twentieth century. The numbers 3-7-77 became a symbol of frontier nostalgia appearing on road signs and even on the shoulder patch and car door shield of the Montana Highway Patrol in 1956 (where it remains today). The 1864 vigilantes have become mythical heroes. No one mentions their successors. Allen, A Decent, Orderly Lynching; Allen, “Montana Vigilantes and the Origins of 3-7-77,” Montana, the Magazine of Western History (2001).
James Williams, ex-vigilante leader, married a shrewish woman, drank too much, lost his herds in the disastrous winter of 1887, and committed suicide by drinking laudanum. His snow-covered body was found in some deep willows, a discovery not unlike that of the corpse of Tbolt.
Wilbur F. Sanders, prosecutor of the George Ives trial, became a member of the territorial legislature and was a U.S. senator. For 30 years, he was the president of the Montana Historical Society.