For the Badge: The Good, the Bad and the Ugly of Law Enforcement in the Old West
(Note: For this section I am indebted to Candy Mouton and her
Writer's Guide to Everyday Life in the Wild West from 1840 - 1900, which is full of information, profiles and anecdotes.)
I: They Were the Law: The Men Who Kept the Peace
I know by now that if you’ve stuck with me this far you’re already sick of being told how wrong, wrong, wrong Hollywood got it, but if that’s the way you’re feelin’ pardner, I done got some more bad news a-for yer. Basically, you would have to realise that like just about every era, Hollywood writers, producers and directors let you see what they wanted you to see. The truth might have been shoe-horned in there somewhere, but chances were it would be mighty hard to find if you were to go take a looksee. In the parlance of the times, you could done send a whole goddamn posse after that there critter and still ride home empty. It’s not surprising though: when the reality of the Old West was people ekeing out a living, or trying to survive another day in a harsh and hostile country, who the hell wanted to go to the movies and see that? If there were rarely gunfights, horse rustlers, desperadoes riding into, out of or through town, banks and trains being robbed a rare occurrence, where’s the fun in that?
So western movies didn't quite make it up, but let’s say they exaggerated a little, stretching the truth almost to breaking point in the name of entertainment, and in so doing set in motion a train of events that has forever made us see a very specific view of the American West. It’s not necessarily all wrong, but most of it is. One thing that they got pretty much everything wrong on - for obvious and deliberate reasons, of course - were the profiles of the men who set out to do what few men dared in such a lawless and wild time, which was to keep the peace, lay down the law and protect their town. Let’s see if we can extract the reality from the fantasy, shall we? Ah come on! Saddle up, son: it’ll be fun.
Maybe.
Here’s a question for you: what do beavers have to do with American law? No, not
those kind! The animals, the ones who build dams, you know, the guys with the flat paddle-like tails and big teeth, beloved of cartoonists for chewing down mighty trees in a few bites. Yeah, like yer man above. Well apparently the first ever law used in the Old West was called “The Law of the Beaver”, and was a set of rules and regulations set up by the fur traders, to protect their commerce. These laws were English-made, but a relatively quick search does not yield any information, so I can’t tell you what they were exactly. It’s not all that important, as by the time the West began to open up, as we’ve already touched on in the piece on frontiersmen, this kind of trade was already sliding into something of a decline, so the only reason the Law of the Beaver is mentioned here is to show that it was the first proper legal framework in the west. And because it's funny. Yes, it is.
It was pretty soon superseded by borderlands law, and here we run into those jolly people who live mostly near a lake of salt and think the secret to a happy marriage is to have more than one wife. Yup, it’s the religion that gave us - or inflicted upon us, depending on your point of view regarding the pop music of the 1970s - the Osmonds. It seems the Mormons were literally a law unto themselves. Within the limits of Utah, they did what they liked and bowed to no county, state or federal agency. Utah was at the time a theocracy, and the Word of God took very much precedence over the word of Man.
There was of course vigilante justice. There has been vigilante justice all the way back to the Bible, and recently a type of vigilantism - no justice appended, you might note - was attempted on the steps of the Capitol Building in Washington. But in places where there was no real law at the time, men did indeed take that law into their own hands, leading to such things as posse and necktie parties, as justice was meted out at the barrel of a gun or the end of a rope, without going through all that tedious nonsense of trial or establishing guilt. We'll be taking a look at this a bit further on.
There was military law too. If you lived near a fort or barracks, and committed a crime you would most likely come under the jurisdiction of the army, You might be held in a military jail awaiting transport to the proper authorities, or if you were a soldier your case may have been decided by a military court, and they would be the ones to mete out the sentence. If there was a sheriff or marshal in the town in which, or near which the fort was built, soldiers from the garrison might be seconded to help him in rounding up criminals, holding trials or keeping the peace. If a soldier broke the law, even in a town where there existed law already in the shape of a marshal, deputy, sheriff or other law officer, his case would be handled by the army. If the sheriff or other law enforcement officer arrested a trooper he would most likely be handed over to the officer in charge of the fort. Where a sheriff or other peace officer existed though, military law would not apply to civilians, except perhaps in military matters (like maybe if they stole from the garrison or were found to be spies or something).
Cowboys riding on cattle drives were like sailors at sea, completely under the absolute authority of the foreman or cattle boss, at least while on the range. Just like the power a captain enjoyed aboard his ship, this was secondary to that of a sheriff or marshal if the cowboys rode into a town and there committed any crime. Miners had their own harsh system of judgement too, and this did not bode well for anyone not of a pale skin pigment. Spanish-Americans (although they had a greater claim to nativity than did the white settlers), Chilean, Mexicans, Chinese, Indians, all were considered as foreigners, and almost none of the laws set down by the miners assisted them or gave them any protection. Men unable to speak (due to the language barrier) to defend themselves were given no interpreters, no chance and no quarter. Most of the miners’ laws related to claims and claim-jumping, and some of their provisions were adopted by the US Government.
Anyone with the most basic knowledge of a western movie will know there were different types of law enforcement in the Old West. We’re all familiar with the sheriff, who, along with his deputy/ies would keep the peace in a town, usually having been an ordinary guy elected by the people. Many western movies have as part of their theme a man - usually a stranger - riding into a town which has been having difficulties with bad guys and has lost its sheriff(s), either through their deaths at the hands of aforesaid bad guys or their dramatically throwing the tin star in the dust, effectively resigning their post before they end up being dead at the hands of the aforesaid bad guys. It seems to me unlikely this could generally happen. I’m not saying it didn’t happen - life, and the law, was after all quite fluid in the Old West, and men and indeed towns had to be adaptable - but the usual idea was for the sheriff to be elected.
You’ve probably seen and maybe even participated in the election of a mayor, and it looks like the election of the sheriff would have been the same. Candidates put themselves forward, folks voted, and a sheriff was elected. So it seems unlikely the town or county would just hand the badge to anyone who they thought fit the bill. For one thing, people seldom agree, and the idea of a whole bunch of townsfolk nodding and saying “He’s the man” seems, well, far-fetched at best. There may very well, of course, have been times when desperate measures were required, but as a general rule I would say not. The sheriff was elected, and if he for some reason ditched or was otherwise unable to do his job, well, that was what a deputy was for. So there would have been a reasonably reliable chain of command already in force, making it highly unlikely the town would ever find itself in the position of needing a sheriff post-haste and having no candidates, or subordinates at least.
The top law enforcement officer though, against whom nobody would dare speak a word or try to assert his regional authority, was the US Marshal. Now so far as I know, this guy was different from the marshal who often seemed to be interchangeable with the town sheriff, but I’ll check. This fella was appointed by no less a personage than the President himself (with the approval of Congress), and had wide-ranging powers and jurisdiction almost everywhere. The position was so coveted that at one point in Albuquerque, New Mexico in 1882 there were over fifty applicants for the one job. The Judiciary Act, 1789, sets out the role of the US Marshal:
And be it further enacted, That a marshal shall be appointed in and for each district for a term of four years, but shall be removable from office at pleasure, whose duty it shall be to attend the district and circuit courts when sitting therein, and also the Supreme Court in the district in which that court shall sit. And to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States, and he shall have the power to command all necessary assistance in the execution of his duty, and to appoint as shall be occasion, one or more deputies.
Which would then indicate there was to be a US Marshal for each state, or territory as they were known then. I’m not sure if the authority of a marshal in say Wyoming was good in Colorado, but I would imagine the marshal there would be ready to help him out if, let’s say, he was chasing a fugitive from his territory who had crossed into that of his colleague. Although appointed by the President, marshals were typically patronised and kept in office by district judges, and weren’t even paid a proper salary until 1896, which shows how much the position was respected, even if only paid by fee, as it was in 1882, in our example above. Marshals were allowed to swear in posses to make up a hunting party for a fugitive (we’ll find out later how a posse was made legal, and how many unofficial ones there were, also whether a sheriff had the same authority when it came to them, as Hollywood would have us believe) and to make people deputies on the spot if needed, or even to second them from other law enforcement agencies.
As opposed to the sheriff, who was a local city or town or county official, marshals were employees of the federal government, and many had cut their teeth in the Civil War and were well able to handle themselves, however like most jobs that sound glamorous and exciting, the life of a marshal could be almost summed up in one word, that one most hated by all cops: paperwork. Marshals had many duties, including prisoner transfer, hire of staff for courts, disbursement of funds, serving subpoenas, summonses and warrants, and even renting the courtrooms and the jails.
But of course there were times when they could drag themselves away from the desk and the mountain of papers, and several well-known figures in the West were marshals, including Wyatt Earp and Bat Masterson. Generally speaking, their deeds have not been embellished - that much - by the movies, and we will be looking at their careers individually later on in this section. Perhaps less glamorously though, marshals were also required - until the repeal of the law in 1864 - to assist in the return of slaves fled from southern states and were also used to break up strikes, usually by violence and intimidation. They could, and did, ride long distances when word came to them of a fugitive over whom they would have jurisdiction (an escaped bank robber who had plundered one of the banks in their territory, maybe, or someone who had shot someone in their state and evaded justice) turning up in another and being reported to them as being there.