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In the late 19th and early 20th centuries, a huge oak tree stood east of Shattuck Avenue near Strawberry Creek in old Berkeley. It was variously known as Gibbet Oak, Vigilante Oak, and Hanging Oak.  

A rumor persisted that in the 1850s a horse thief had been captured by ranchers who, wishing to return to their work and tired of waiting for the judge, tried the man themselves and hanged him from that tree. 

There was certainly a huge oak on that spot, probably hundreds of years old, but no one could confirm the hanging. William Waste, an early Berkeley resident who was the first member of the State Bar of California, a graduate of Hastings Law School, and a member of the State legislature who would become Chief Justice of the California Supreme Court, had never heard of the incident—and he was known as a local history buff.  

Clarence Merrill, son of Berkeley’s first druggist, Berkeley postmaster, and operator of the city’s first telegraph service for 30 years, said he had heard the story, but, from what he gathered as a boy, no one was ever hung there. William Warren Ferrier, a premier Berkeley historian and author, agreed with that conclusion. 

This slate of early Berkeley luminaries clearly disbelieved the story of the hanging. So where did it come from? While the origin of the story is unknown, it appears to have been recounted by one of the great editorialists and working-class heroes of early Berkeley—the expressman known in town as the “Boss Baggage Buster of Beautiful Berkeley,” John E. Boyd. In 1902, the Berkeley Gazette published a story written by Boyd in which Cloromeda Mendoza was hanged on this tree. The Gazette reprinted this story on Jan. 14, 1908. 

Interestingly, Boyd had perpetuated quite another myth about the tree many years earlier. This version of the story appeared on April 2, 1887, in the Berkeley Advocate in a letter to the editor: 

Talking to an old timer on the occasion of the recent trials in East Berkeley he gave me an account of the first trial ever held in what is now the town of Berkeley, and thinking that the story would be interesting to your readers I jotted down the particulars which are as follows: It appears that early in the year ’51 a warrant was issued by Judge Blake against a man named William Harding who resided on San Pablo avenue about where Duffy’s saloon now is [San Pablo Avenue near Folger Street], charging him with stealing hogs. The accused was arrested by a constable named Kellogg, and brought before Judge Blake at his residence in what is now known as the Poinsett house on Shattuck avenue, near Strawberry creek. A jury was quickly found and the court sat under the old oak tree which is still standing on the left of the railroad track. After the court was called to order, the prisoner pleaded “not guilty” and the jury impanneled. One of the jurymen announced that he was as dry as Strawberry creek and the prisoner at once offered to pay for the liquor if any person would go after it. The nearest gin and sugar establishment was at Temescal kept by Smith Bros. and a man known as “Whiskey Jack” volunteered to be the messenger if any one would lend him a “bronco.” The horse was soon ready two demijohns were hung in grain sacks, one on each side and the rider started with “Temescal and whiskey only 3 miles away.” Eager eyes watched for his return and soon a cloud of dust announced the looked for messenger. 

The demijohns were quickly brought forth and all hands took a hearty drink which was soon followed by another. The judge then proposed to proceed when one of the hilarious jurymen proposed that all the liquor be drank up and then they would not be “hankerin” after it. All hands agreed to the suggestion, the liquor was soon disposed of and the court started to resume business when one of the jurymen said that he be hanged if he ever sat on a jury without whiskey and he was not going to begin now. Another adjournment took place and the prisoner handed over seven Mexican dollars and Whiskey Jack was soon riding away for more “juice.” He quickly returned, another drink was taken and the business of the day resumed. Before the evidence was all in Whiskey Jack had made two more trips for supplies and about two o’clock in the afternoon the judge charged the jury who soon retired to deliberate. The jury room was under the other oak tree near the creek, each juryman first rolled his coat up for a pillow and after lighting his pipe lay down to deliberate. The prisoner, constable and spectators all picked out a soft place under the other tree and soon the majority were snoring. At this juncture Mr. Clark (who now and for many years past has been in the employ of Capt. Bowen) gave the prisoner a wink and pointed to the foothills. The prisoner took the hint and not waiting to take a formal adieu, or not liking to disturb the sleeping multitude, quickly crept away through the tall grass. He remained hidden in the hills for about two weeks, his hiding place being near the pile of rocks situated on what is now known as Capt. Boswell’s ranch, and being supplied with provisions by his friend Clark. After remaining in hiding a short time, a boat was procured for him and he made his escape to San Francisco. Many years have passed since the above occurance but I never pass the old oak trees without thinking of the story of the first court in Berkeley as told to me by an old pioneer.  

—John E. Boyd  

One possible explanation for the two differing stories told by the same John E. Boyd is that the later story was published at a time when many residents were attempting to save the tree from developers who planned to chop it down. In 1896, the city culverted Strawberry Creek, which had run down Allston Way, to make Allston Way a real street. The Berkeley chapter of the Native Sons of the Golden West offered to save the tree by donating an ornamental iron fence around it where it stood in the street by the southern curb, near where Eddy’s ice cream parlor later stood. It seems probable the later story was manufactured simply to save the tree. In the end, the developers won the fight. The tree was felled in 1908: 

Acting upon the order of Superintendent of Streets Turner two laborers were at work today cutting down the historic oak tree which has been standing since time immemorial on Allston way, a short distance from Shattuck avenue. This gnarled old tree was standing long before Allston way or even Berkeley was thought of and is the one oak in the uptown district which unites the past with the present. 

Out of a spirit of sentiment the tree has been left standing while all the other trees in the neighborhood have been destroyed. When Allston way was graded care was taken not to injure this tree and it stood unmolested until this morning. Then Turner gave his orders and the tree is now a thing of the past, not even a relic. Improvements are to be made on this street and it was found necessary to destroy this old landmark.  

Aye, cut it down, this old landmark 

Tis but a relic of the past; 

Though for ages it has stood 

The storm king’s wintery blast. 

What though it sprang from mother-earth 

Ere the white man reached this land, 

Before kind earth did yield its gold 

To the grasping Gringo’s hand. 

No matter if an outlaw met his death 

By Judge Lynch’s stern decree— 

No matter if the court was held 

Beneath the old oak tree. 

No matter of the statement made 

By one of Berkeley’s sages, 

No matter if the wise Le Conte 

Said, ’tis a relic of past ages. 

Aye, cut it down, ye ruthless sons 

Of Berkeley’s lovely clime; 

Aye, cut it down and burn it up— 

It has outlived its time. 

— Boyd, the Boss Crank of Berkeley, Berkeley Daily Gazette, Jan. 14, 1908 

EDITOR’S NOTE: This is the first of a three-part series featuring stories of forgotten Berkeley history excerpted from Richard Schwartz’s new book Eccentrics, Heroes, and Cutthroats of Old Berkeley. Schwartz has been writing California history books and giving talks for more than 20 years. His other books include The Circle of Stones: An Investigation of the Circle of Stones in Stampede Valley; Sierra County, California; Berkeley 1900: Daily Life at the Turn of the Century and Earthquake Exodus, 1906: Berkeley Responds to the San Francisco Refugees.  

Eccentrics, Heroes and Cutthroats of Old Berkeley is sold at local book stores, lumber yards, hardware stores, gift shops, movie theaters, and other local and online merchants. For a list of the locations where the book is available and information about Schwartz and his other books, see www.RichardSchwartz.info. 

The Planet will publish parts two and three of this series in upcoming issues. 

Image: Courtesy Berkeley Firefighters Association. 

This 1888 photograph of the area just east of Shattuck Avenue and Allston Way shows the hanging oak on the right. Strawberry Creek runs along along the bottom of the image.