Lyman E. Munson must have admired the forms in the white sandstone cliffs overlooking the Missouri River as he approached Fort Benton in early July 1865. He had been on the steamboat from St. Louis for 53 days and was on his way to Helena to take up his new post as one of three justices appointed by President Abraham Lincoln to the newly formed Montana Territorial Supreme Court.
En route he had passed through the territory of hostile tribes and waited while vast herds of bison crossed the river. In his 1904 memoir, he wrote, “Excitement on these occasions lifted us into pleasurable emotions regardless of possible events on the morrow.”
Upon his arrival in Helena, he was to be immediately confronted with the need for law and order in the new territory: “There was suspended to the limb of a tree, a man hung by the Vigilante Committee the night before, which was the eighth specimen of similar fruit encased in leather boots that tree had borne in so many months.”
Munson was born in Massachusetts in 1822, graduated from Yale Law School and had practiced law in New England prior to his appointment. The new Territory of Montana had been created by an Act of Congress on May 26, 1864, in response to the gold rush following the discovery at Alder Gulch in June 1863. That act provided for the appointment of three justices to constitute the Territorial Supreme Court, to serve as territorial district judges, and to serve as judges of the U.S. District Court.
This meant that the justices would be wearing three judicial hats and would be hearing appeals of cases tried by their colleagues. Munson’s colleagues on the court, Hezekiah Hosmer of Ohio and Lorenzo Williston of Pennsylvania, had arrived the previous year. The original third appointee, whom Munson replaced, had declined to serve. The historical accounts make no mention of Munson’s wife and children.
Previously, the only “courts” in Montana were “miners’ courts,” created by the miners themselves without any legal basis, but whose judgments were respected nevertheless. There were as yet no laws in the new territory. But, bringing traditions of self-government from their diverse homes, the miners organized mining districts and created their own governments. They adopted unofficial laws developed in earlier mining frontiers which served as common law. They elected unofficial judges to try cases in open court and parties were represented by lawyers. “Peoples’ courts” and “vigilance committees” dealt with the rampant crime plaguing the mining camps. Dozens of alleged criminals had been hung before the justices arrived, and a considerable number thereafter. We will never know how many were actually guilty.
After the overland journey of 140 miles from Fort Benton, Justice Munson arrived in Helena on July 9, 1865. He recalled, “This was a lively camp, three thousand people were there, street spaces were blockaded with men and merchandise, ox trains, mule trains and pack trains surrounded the camp waiting a chance to unload. The saw and hammer were busy putting up cabins and store houses, and in constructing sluice boxes for the washing out of gold, which was found in nearly every rod of its valley soil.”
The new court created three far-flung judicial districts. Munson was assigned to the First Judicial District, which stretched from present-day Whitehall to Havre, and from Helena to Harlowton. Munson would have traveled regularly between Helena, Diamond City (in the Big Belt Mountains, now vanished) and the territorial capital of Virginia City. Lawyers, of whom there were at least 30, also traveled from court to court. Not surprisingly, most litigation concerned placer mining, water rights and access to public lands. Many novel legal issues were addressed with little law or precedent. Before 1869, opinions of the court were seldom delivered in writing.
Later Chief Justice Decius Wade wrote: “To these isolated places, the coming of court was the event of the year, the harvest time; and with beer or whiskey at twenty-five cents per drink, and other things in proportion, the expectations were never disappointed. Everything was carried on at high pressure and with lavish hand. ... Every place of business had its scales for weighing out gold dust, and every lawyer carried a buckskin pouch for the reception of fees — which in amount would have astonished an eastern lawyer and dazed an eastern client.”
Wade recalled that at first there were no courthouses, and trials were carried out in log cabins or other crude structures. When Chief Justice Hosmer opened the first judicial session in Virginia City in December 1864, court was held in a hotel with the judge seated atop two dining tables and behind a third table that served as his bench. The first courthouse in Helena was a dance hall on Wood Street. In 1868, this was replaced by a blocky stone structure located just north of the present courthouse, built in 1887.
While some citizens were reluctant to cede authority to the new courts, most welcomed them, at least for civil matters. Eighty cases from the miners’ court were turned over to Munson upon his arrival. When he opened his first court in August 1865, Justice Munson impaneled a grand jury and instructed members that, while vigilante justice had previously been a necessity of the times, “the proper disposition of criminal cases is in the courts of law, with an open, day-light trial, and with those guaranties of fairness and impartiality that laws provide.” Chief Justice Hosmer had given similar instructions to his grand jury the year before. Privately though, citizens recommended that the judges continue to let the “vigilance committees” deal with criminal matters.
In his memoir, Munson relates that, while he wanted criminal cases to be handled by the courts, one of his judicial colleagues told him, “I am content to let the Vigilantes go on, for the present; they can attend to this branch of jurisprudence cheaper, quicker and better than can be done by the courts — besides, we have no secure jails in which to confine criminals.” The other justice agreed: “if you attempt to try one of those ‘Road Agents’ in the courts, his comrades will get him clear, or if he should be convicted, the lives of the witnesses who testify against him, and of the judge who sentences him, will not be worth the shoes they wear.”
Nevertheless, in December 1865, Munson, acting as district judge, presided over the first lawful murder trial in Montana Territory, the infamous Daniels case. Jim Daniels had been convicted of manslaughter and was serving his term in Virginia City, when he was released by acting Gov. Thomas F. Meagher upon petition (and “while under the influence of an unfortunate habit,” Munson later wrote). Upon learning of this, Munson traveled to Virginia City to ask Meagher to revoke his order and have Daniels rearrested. When Meagher refused, Munson wrote him an open letter, published in the newspapers, rebuking him for exceeding his authority, and ordered the U.S. marshal to rearrest Daniels. Meanwhile, Daniels had returned to Helena, made threats, and the next morning, was found dangling from a big ponderosa pine in Davis Gulch.
In another case, a convicted murderer sentenced by Munson to hang, was pardoned by President Andrew Johnson and escaped en route to federal prison. These outcomes probably did little to inspire confidence in the new judicial system.
The territorial judiciary became embroiled in post-Civil War politics. Justice Munson, a so-called “radical” Republican abolitionist from New England, arrived in Montana Territory among a population where Democrats, more sympathetic to the South, were in the majority. Legislative assemblies in the territories were popularly elected, but the governor, secretary and justices were federally appointed. This led to some resentment of the federal appointees and friction between the Democrat-dominated territorial Legislature and the largely Republican judicial and executive officers. Though territorial secretary and acting governor Meagher had been appointed by a Republican president, he had switched his loyalties to the Democrats.
When an issue arose as to whether the second territorial Legislature called by Meagher was lawful, a majority of the Supreme Court, including Munson, ruled that it was not, and the court nullified the laws enacted by the Legislature. This pleased the Republicans but angered the Legislature and the acting governor, who ignored the ruling. In retaliation, the legislature created a new remote judicial district in eastern Montana and required Munson to live there. Although Munson’s term as justice ran until April 1869, he left the territory in 1868, resigning for family reasons according to his daughter. He returned to Connecticut where he practiced law for many years and died in 1908 at the age of 86.
Three more justices succeeded Munson in the First Judicial District between 1868 and 1875. This rapid turnover reflects the rigors and frustrations of bringing law to frontier Montana. Nevertheless, due process of law finally took hold in Helena, and the last unlawful execution occurred in 1870, while they continued elsewhere in Montana for another 15 years.