Barbary Coast legal : LUSENET : San Francisco History : One Thread

I am writing a fictional piece that takes place in San Francisco in 1850, and I'd like to maintain historical accuracy.

Part of the story includes a ship arriving from Hong Kong. The Captain hires a caretaker to remove a corpse from the craft once he pulls in. The caretaker suspects that the cause of death may have involved foul play and notifies the police. Would the police and/or district attorney have any jurisdiction to prosecute the Captain if the murder took place somewhere in the middle of the pacific?

-- Brant Blower (, October 20, 2004


The date of your fictional piece is important. California became a state on September 9th, 1850. Prior to that date it would be a federal crime (well, between 1846-1850), after that it would be a state issue. An example of this might be illustrated by the Birdman of Alcatraz (Robert Stroud). In 1909 he brutally murdered a bartender who had allegedly failed to pay a prostitute for whom Stroud was pimping in Alaska. Alaska, a US territory, was not yet a state so he was tried under federal law and served his time in federal penitentiaries.

-- Brant Blower (, October 21, 2004.

I think that is completely wrong.

Any crimes at sea during that time were supposed to be prosecuted by the Federal courts under something called Admiralty Laws. But there were no federal courts in San Francisco in 1850 and they didn't get established until after statehood in around the middle of 1851. So state courts in 1851 and earlier attempted to prosecute those cases. And state courts treated those cases as low priority plus they were not properly trained in the procedure of admiralty law whose laws and procedures were completely different. And admiralty law forbid trial by jury though often times California courts used trial by jury for crimes at sea so it was all wrong.

San Francisco also tried to establish a temporary admiralty court called the Court of First Instance which was modeled after the Mexican judicial system using American judges but that was also a big disaster. And the Court of First Instance would often send its cases to the California court only to have the California court send them back to the Court of First Instance because one court or the other didn't want to take the case or didn't have time to take the case or just bungled the case.

There was also bribing of court officials so many criminals got away without any punishment at all. That is why the vigilance committee of 1851 formed because too many criminals were getting away with crimes and the criminals were repeating their crimes because a lot of them were habitual criminals that came from Australia banished as from there as prison criminals.

Even though the Vigilance committee did not become officially organized until 1851, remnants of organized vigilance or mob justice had already been forming informally years earlier. So it is very likely that a murderer from a boat would have had to have dealt with mob justice because the existing courts in San Francisco were completely useless against crime. And mob justice surely would have formed from the panic of having a murderer run around loose being a threat to everyone.

This type of Mob justice did try to have their own trials but not following legal precedent and allowing their emotions to run wild with anger did not help in carrying out justice and could have ended up punishing the wrong people.

I am basing my thoughts on this by a case that occurred in 1851 shortly before the Federal Courts became established and right after the vigilance committee became established. It was the Captain Waterman case. Sailors arrived off a boat in San Francisco bloodied, beaten and emaciated and close to death. The sailors told people horror stories of what happened at sea. Don't remember if any of the crew died aboard. The local authorities did nothing to prosecute the Captain so a mob of thousands of San Franciscans got together to lynch Captain Waterman only to be stopped by the police and the vigilance committee themselves.

The problem with crimes at sea was that there was a law established called the federal act of 1835 which stated something to the effect that if a captain carries out any unusual punishment, torture, revenge without cause, they could be subject to a fine of up to $1000 or up to a 5 year prison sentence or both depending on the severity of the offense committed. But the problem with that law was that the captain would often use as defense that he needed to maintain discipline aboard ship and if that was the case then he was allowed to use brutality. But if it was established that an offense even if it ended up in death due to flogging or other torture was committed by a Captain due to some type of revenge or hate, they could still only be subject to a fine of up to $1000 or up to a 5 year prison sentence or both. And usually the punishment was only a financial penalty.

Captains and their officers by tradition usually received only fines for brutality cases even if the seamen should die from the brutality and there were hundreds of brutality cases like that. Obedience to the captain was first priority.

In your story, since the captain does not inform the police, it is obvious that he is in some way covering it up because he may have been involved. Even if it was discovered he was involved, he could claim the crewmate or perhaps passenger was behaving in such a manner to cause risk to everyone at sea and for the good of all the passengers he had to punish and subdue him which accidentally resulted in his death. The chances are he would be given a small fine and nothing more would be said about it after which the San Francisco mob would try to take things in their own hands. That is probably how it would haved worked out in 1850.

-- Harry Murphy (harrymurphy*, October 25, 2004.

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