Justice Mark Dillon and the cover of his book, Montana Vigilantes
Justice Mark Dillon and the cover of his book, Montana Vigilantes (Photo: NYLJ/Rick Kopstein)

With an outdoors-oriented vacation to Montana winding down, Justice Mark Dillon, his wife and four children were looking for something else to do. On the last day, they stumbled on a ghost town, starting the 54-year-old New York appellate judge on the road to a chronicle of the Wild Wild West’s vigilante movement.

Dillon, a Second Department justice from the far less rugged lands of Westchester County, had not been a western history buff before his trip to Montana. But he was intrigued by monuments and exhibits he saw related to the vigilante movement of the nineteenth century in the lawless frontier territory. His interest eventually led to a book—his first—about vigilantism, told from a legal perspective.

“The Montana Vigilantes: 1863-1870: Gold, Guns, and Gallows” (University Press of Colorado/Utah State University Press) was published in December. “It has been wonderfully successful,” said Michael Spooner, the director of the scholarly imprint that brought out the book.

According to Spooner, the book quickly sold out a printing of 1,000 and is in its second; if demand holds up, he anticipates a paperback edition within a year. These may seem to be puny figures in the world of commercial New York publishing, but Spooner said they are respectable for an academic press, where it is not uncommon to sell 350 to 500 copies of a book over its entire life.

“Montana Vigilantes” also has been nominated for the “Reading the West” annual book awards of the Mountains & Plains Independent Book Sellers Association. Spooner said its scholarship is “very solid,” validated in a referee process. But he said that the book also had “crossover appeal” among Westerners who liked to read about their region.

A 1984 graduate of Fordham Law, Dillon has served as a town justice, county court judge and Supreme Court justice. He was re-elected to the Appellate Division in November.

Q: What conditions in 1860s Montana fostered the growth of vigilantism?

A: Gold was discovered in significant quantities in Montana in 1863. The federal government formed the Montana Territory in 1863 to obtain legal jurisdiction over the gold, which was needed by President Lincoln to help finance the costs of the Civil War. Prospectors went to the territory to find the gold and a criminal element followed them to rob and kill for it. Lincoln was so preoccupied with the Civil War that he initially failed to appoint judges, U.S. attorneys, and U.S. marshals to the territory, which contributed to the lawlessness of the society. Transporting gold by horseback and stage coach over remote mountain trails made easy targets for the criminals. The rate of robbery and murder became so high that a vigilante committee was formed to hunt down the criminals and hang them in response. Cruel methods of interrogation were used to obtain information from suspects. Many criminals received trials that were as little as five minutes and sometimes a few hours, but many suspects received no trials at all. The sheriff of Bannack was the titular head of the criminal organization in the region until he and two deputy sheriffs were caught and hanged. The heroes of the book are the lawyers and judges who eventually established a system of criminal justice that was credible enough that it displaced vigilantism by the end of 1870. The book chronicles the conditions that led to vigilantism and the vigilante “trials” that followed from 1863 to 1870, with an analysis of the sufficiency, credibility, and admissibility of the evidence in each, and a description of the hangings that typically followed the trials.

Q: What kinds of men joined the vigilantes?

A: Men that were tough as nails, just like the criminals they hanged. It was a very different society. And yes, vigilantism was purely male-on-male.

Q: Given the climate of lawlessness, did the vigilantes have any other choice?

A: That’s the interesting historical question. The federal government failed to provide Montana Territory with meaningful police, prosecutors or judges, so the vigilantes took law into their own hands to fill the vacuum. Thomas Dimsdale, who was a newspaper editor in Alder Gulch at the time, asked the rhetorical question: “Is it lawful for citizens to slay robbers and murderers when they catch them; or ought they wait for policemen where there were none, or put them in penitentiaries not yet erected?” The book is written as an objective reporter of what happened and why.

Q: Does your evidence indicate that any innocent men were punished by the vigilantes?

A: Yes. 94 executions are discussed in the book, some in more detail than others based upon the availability of the historical evidence. J.A. Slade was hanged on March 10, 1864 for mere drunk and disorderly conduct. R.C. Rawley was hanged on Oct. 31, 1864 in part for his free speech criticisms of vigilante activities. James Brady was hanged on June 15, 1864 for murdering his crime victim, even though the victim never actually died from the injuries sustained. Leander Johnson was hanged on March 12, 1866 in the belief that he had stolen cattle from a rancher, but after his death, the cattle, which had merely wandered off, returned to the property on their own accord. The evidence against Ah Chow was at best questionable when he was hanged on Jan. 24, 1870, as his vigilante sentence may have been motivated more by anti-Chinese prejudice than by actual proof of guilt.

Q: How did the due process accorded by the vigilantes to suspected lawbreakers differ from contemporary norms?

A: There were significant differences even though the U.S. Constitution and many of its amendments were the law of the land in Montana at the time. Vigilantism was a condoned force there in the 1860s. Montana’s vigilantes were not lawyers, owned no law books, and wished to dispense justice in a manner that was firm, fast and fatal. It wasn’t until a 100 years later, in the 1960s, that the U.S. Supreme Court rendered landmark cases that define due process as we know it today, such as Brady, Mapp, Gideon, Escobedo, and Miranda. Historically, the vigilantes should probably be judged against the norms of their own times and not by the norms we know today, though the contrast between the two is quite compelling.

Q: Why did you decide to write a book about the vigilantes?

A: I wondered how the Montana Territory in the 1860s, which was governed by the U.S. Constitution, could resort to and tolerate vigilantism. I decided to write a law review article comparing 1860s due process in the western territories with 1860s due process in the eastern United States. The historical and legal subject matter proved to be so large that I ditched the law review article in favor of a full-blown book.

Q: How long did it take you to complete the research and writing?

A: The research and writing of the book took about two years, and the university publishing process added an additional year and a half. The book required two extended research trips to Montana during the summers of 2010 and 2011, where I mined original source materials available at the Montana Historical Society such as 150-year-old diaries, letters, newspaper articles, reminiscences, photographs, and government documents. I visited many of the historic sites, ghost towns, and museums. Materials at the University of Montana in Missoula and the National Archives in Maryland were also helpful. I consulted various historians in Montana, Idaho and California and reviewed all of the historical literature written since the 1860s. All of these sources allowed me to piece together the story of Montana’s bloody vigilantism, overlaying my own analysis of the legal issues and implications of what was happening at the time. No book has ever examined the subject matter through a legal prism.

Q: Was the task of writing a book challenging?

A: Yes and no. The actual research and writing was like piecing together an historical puzzle, which was not particularly difficult. The true challenge was finding the time to work on the project. The bar knows that the work of the Appellate Division is very demanding, and on top of that I teach as an adjunct professor at Fordham Law School. I could only work on the book project primarily full-time during summers or mid-year vacations, and also occasionally very late at night or on weekends. A project of this type is detail-orientated. The book is 449 pages and contains about 2,800 footnotes, with most of the footnotes citing multiple sources.

Q: Do the contemporary Montanans express admiration for the vigilantes?

A: In some ways, yes, because it is part of the fabric of the state’s history. The shoulder patch of today’s Montana Highway Patrol depicts the “3-7-77″ logo that is a vigilante symbol. Helena celebrates its heritage each year with its Vigilante Parade. There is a football arena in Beaverhead County named Vigilante Field. Some streets in Helena and elsewhere are named after persons who were known vigilantes. Certain ghost towns in Montana are preserved for tourism and history. Of course, no one in Montana actually condones vigilantism today.

Q: Did anything about your findings surprise you?

A: Yes, the extent of the cruelty of both the criminals and the vigilantes during the period. For instance, violence was so common it was said that the shooting of a man in a barber shop would not interfere with the business of shaving.

Q: The jacket of your book describes you as a “legal historian.” What do you think of that description?

A: The description was not true going into the book, but since the manuscript survived a rigorous review process by historians in order for the publisher to proceed with the project, the description might have become true. I am researching a different 1860s topic with the expectation of producing another book of legal history, but it will take four to five years to turn around.