during the French regime, but the first permanent settlement was
begun in 1781 by Indian traders. For the expedition thither the
following year, see J. Long’s _Voyages_, volume ii of our series, pp.
186-191. During the War of 1812-15 Prairie du Chien was alternately
in possession of the Americans and British; see _Wisconsin Historical
Collections_, xiii, pp. 1-164. Upon the return of peace, the Americans
built Fort Crawford (1816) which was for many years a military post and
Indian agency.--ED.
[99] Lieutenant Pike obtained the site for this fort from the Indians
in 1805, but no use was made of it until 1819, when Fort St. Anthony
was begun at the mouth of Minnesota (St. Peter’s) River. Upon the
recommendation of General Scott, who inspected it in 1824, the name
was changed to Fort Snelling, in honor of the military officer who
directed its construction. It was sold by the government at private
sale in 1857; but a congressional inquiry ensuing, a new arrangement
was made in 1871, whereby the fort was retained and the remainder of
the military reservation transferred to the purchaser.--ED.
[100] In the Indiana enabling act passed in 1816, Congress granted
to that state for a seat of government, any four sections of land
thereafter to be acquired from the Indians. Commissioners appointed
by the legislature selected the present site of Indianapolis in 1820.
However, it was then a wilderness over sixty miles from any store, and
the government was not actually transferred thither until 1825.--ED.
[101] Patrick Kennedy was a trader at Kaskaskia, in the Illinois
country, during British ascendency. The expedition referred to was
undertaken in search of copper mines, and extended as far as the mouth
of Kankakee River. His journal of this tour is published in Hutchins,
_A Topographical Description of Virginia_ (London, 1778).--ED.
[102] The historic Missouri question was settled by the Missouri
Compromise, passed by Congress February 27, 1821, admitting Missouri
as a slave state, but decreeing that slavery should be excluded from
all other territory north of latitude 36° 30′ N. (the south boundary of
Missouri).--ED.
LETTER XIV
Lawyers--Doctors--Clergy--Mechanics--Justices of the
Peace--Anecdotes--Punishments--Reflections.
_Jeffersonville, (Indiana,)
March 10, 1819._
The greater part of my letters from America have hitherto been
addressed to our late brother John. Since we have now to deplore that
he is removed {168} from all correspondence with us, I shall direct
this to you.
There are many particulars in the condition of this country, that
must appear surprising to any one who has not seen a community
in its infantine state. We have here lawyers who have not been
regularly educated in the knowledge of their profession. Blackstone’s
Commentaries are considered the great medium of instruction.
The young man who has carefully read these, and who has for a short
time wrote for a practising attorney, is admitted to the bar. It is
said that even the latter part of this preparatory course has, in
many instances, been dispensed with. The occupation of barrister
and attorney is usually performed by the same practitioner.[103] He
transacts with clients, writes and pleads before courts of justice, or
before a squire, as occasion requires. If we may judge from grammatical
and orthographic inaccuracies, we must be apt to believe that, although
some of them may be esteemed as lawyers, they are not good English
scholars. Lawyers here, as elsewhere, take their stand as being of
the first class in society, and a great proportion of our back-wood
legislators, in State assemblies, and in the general government,
are elected from among this body of gentlemen. Such are many of the
counsellors who grow up in Transmontane-America; but it would be unfair
to omit noticing that men of a very different character arise here.--I
shall only mention one example in Henry Clay, a Kentuckian lawyer, who
has for eight years made a distinguished figure in the conspicuous
situation of speaker of the House of Representatives at the capital.
Mr. Clay was commissioner on the part of the United States, at
the treaty of Ghent, in 1814, and plenipotentiary for commercial
arrangements with Great Britain in 1815. The profession {169} also owes
much of its respectability to the ingress of young gentlemen of liberal
education from the Atlantic States, who make diligent research in the
history of cases, and whose libraries are usually stored with law
authorities, and the best models of forensic eloquence in the English
language.
The medical men here are all _doctors_, nor is the inferior degree,
surgeon, at all recognised. In new settlements, many practise on life
and limb who have not obtained the diploma of any medical school. The
smallness of their laboratories renders it probable, that the universal
medicine is included. Here, too, there are honoured exceptions; and
the medical colleges instituted at Cincinnati and Lexington may soon
furnish more accomplished practitioners.
The clergy would perhaps excuse my not giving their order the
precedence, if they were told that men hold forth here, who can have no
pretensions to qualifications derived from human tuition. Many of their
harangues are composed of medley, declamation, and the most disgusting
tautology. I have chiefly in view itinerant preachers of the methodist
sect, who perhaps cry as loud as ever did the priests of Baal. Their
hearers frequently join in loud vociferations, fall down, shake, and
jerk in a style, that it would be in vain to attempt to describe.
Incapacity is not confined to those situations that ought to be
filled with men of learning, but extends to the rudest branches of
the mechanical arts. It is not thought wonderful to see a blacksmith
without a screw plate; and I have known of several very plain pieces
of joiner work that were stolen for patterns by unqualified workmen.
Almost every well-finished article is imported, and {170} so long as
this impolicy is continued, handicraft must remain in a low state.
We have here justices of the peace who would not be promoted to
the office of constable in some older communities. They are mere
petty-foggers, who are occasionally employed in collecting debts, and
raising suits to be brought before their own tribunals. In these cases,
they act in the double capacity of agent for one party, and judge,
and have no repugnance against collecting their fees in the hour of
cause. I shall relate two anecdotes. One of these _gentlemen_, who
lives at no great distance from the spot where I write, was hearing the
representations of two opponents in open court. They disagreed, and
commenced a fight. The squire, not adverse to this sort of decision,
joined with the constable and some other people in forming a ring for
the combat. A negro man and a white woman came before the squire of a
neighbouring township, for the purpose of being married. The squire
objected to the union as contrary to a law of the State, that prohibits
all sexual intercourse between white and coloured people, under a
penalty for each offence, but suggested, that if the woman could be
qualified to swear that there was black blood in her, the law would not
apply. The hint was taken, and the lancet was immediately applied to
the Negro’s arm. The loving bride drank the blood, made the necessary
oath, and his honour joined their hands, to the great satisfaction of
all parties.[104] The last of these squires {171} was not elected by
the people, but appointed under the late territorial government of
Indiana. He is a naturalized citizen of the United States, but a native
of England.
The election of a magistrate, is an affair that usually occasions a
considerable sensation in a little town. The most respectable citizens
naturally support the candidate that has the real interests of society
at heart; and the more licentious are as naturally averse to promote
the man who, they believe, would punish themselves. It is, therefore,
the relative numerical strength of the two parties, that frequently
determines the character of a town judge. It is understood, that in
new towns by the Ohio, the unruly part most commonly prevail, and that
as they advance in population and wealth, the more orderly people take
the sway. A case has come under my notice, where the conduct of {172}
a squire was at variance with the practices of a large proportion of
his constituents. He had resolved on exerting his power to suppress
fighting, swearing, and breach of the Sabbath, and to exact the
statutory penalties against the two last of these offences. On a
Sabbath soon after his election, a man carrying a gun and a wild duck
passed his door. He intimated his resolution of having the offender
brought to justice; but the culprit gave him much abusive language,
with profane swearing, and threatened to beat him for the interruption.
The squire soon perceived that he was losing his popularity, and that
his opposition to the will of the sovereign people was injuring his
business, and for that reason resigned his commission. In cases where
the squire is supposed to be remiss in the execution of his duty, the
people sometimes interfere extrajudicially. At this place, a tailor’s
shop was lately broke into by night, and a quantity of goods carried
away. On the following day, a stranger and the lost property were
discovered in an empty house adjoining. He was instantly carried before
one of our magistrates. On being interrogated, he confessed being
found in the house, but denied having any concern with the booty. The
squire dismissed him. But the young men of the town who had assembled
to hear the examination, were too sensible of the strength of the
presumptive circumstances of the case, and of the admitted act of
housebreaking, in entering the uninhabited apartment, to allow him to
escape with impunity. They caught him at the door, led him out behind
the town, where they tied him to a tree, and put the cowhide into the
hand of a furious young man, who happened to be half intoxicated.
The whipping was performed with such vigour, that the blood sprung
in every direction. A gentleman of {173} Cincinnati told me, that, a
few years ago, the citizens of that place had found it expedient to
punish in the most summary way; and that he had several times acted as
presiding judge, in what was called a court of uncommon pleas. Whipping
uniformly followed conviction. Cincinnati has now outgrown that stage
of population, that admits of this sort of jurisprudence, and is better
regulated than certain large European cities.
Sanguinary punishments are almost universally deprecated. The best of
citizens are opposed to them from philanthropic motives; and the worst
view them as subversive of liberties. A considerable proportion of the
humane, and perhaps most of the vicious, concur in arguing, that man
has no right to take away the life of man in the punishment of any
offence. A doctrine purporting, in plain terms, that the right or power
in the individual to commit crime, is stronger than that in society
to punish or to protect. Although this extremely lenient principle
has a vast multitude of supporters, it has not been introduced into
the criminal code of any state in the Union. Treason, murder, arson,
and piracy committed on the high seas, remain on the list of capital
crimes. The first of these offences is defined by the constitution
of the United States, as consisting “only in levying war against
them; or in adhering to their enemies, giving them aid and comfort.”
No infliction, on this ground, has been found necessary since the
epoch of the Federal Union. Other offences, as forgery, burglary,
robbery, larceny, &c. being treated as inferior misdemeanours, the
machinery of the executioner is seldom put into operation; and a
benevolent penetentiary system is adopted in parts of the country
where the population is sufficiently great to bear the expense. New
{174} settlements cannot afford the large establishments combining
the accommodation for solitary confinement and labour. Whipping is
therefore resorted to, as a matter of necessity rather than of choice.
It is chiefly to be lamented, that chastisement does not produce
immediate evidence of reformation, as the sufferer usually removes to
another part of the country; and may resume the character of gentleman,
even while his back is raw from the recent correction.
It is with painful sensations that I recollect of the illiberal and
ungenerous reflections, uttered by the minions of a faction in your
country, against supposed barbarism in this. Their favourite topics, as
to officers in the Militia becoming tavern-keepers, and tavern-keepers
acting as Justices of the Peace; the derided punishment of whipping,
and the equality of a sovereign people, might at least be mixed with
some allowances for local circumstances; or, if they please, in
making a contrast with the boasted condition of Great Britain, it is
obviously uncandid to draw the subjects of their animadversions from
the fag end of the United States, in the very act of being peopled
by a heterogeneous mixture, uniting in it a considerable proportion
of the most uncultivated of Americans and Europeans; not excluding
fugitives, who have fled before their creditors, and the public
prosecutors of England. Waving this consideration altogether, a very
striking comparison may be made out in detail. The officers of the
United States’ Militia are not professional soldiers, but citizens.
They are not disposable tools, to be employed in foreign aggressions,
or removed in time of peace from Maine to Georgia, and _vice versa_, to
intimidate into submission fellow citizens who are not their personal
acquaintances or immediate {175} kindred; but remain at home, where
they attend trainings, voluntarily and gratuitously. They are at
liberty to follow tavern-keeping, or any other kind of honest industry,
and do not burden their country with a half pay list. Justices of
the Peace, however unqualified they may be, and whatever disgrace
the conduct of individuals brings upon themselves, are not appointed
by the influence of a faction. They are not the “thorough paced”
ministerialists who “have been recruiting officers for the war, instead
of Justices of the Peace;”[105] nor are they the hirelings who promote
the revenue from which their own pensions are drawn, by levying ruinous
fines _upon an unrepresented people_, for the slightest infractions on
excise laws, or game laws. The punishment of whipping has been already
mentioned, with the causes of its being adopted in the back-woods.
Perhaps it might be difficult to assign reasons equally satisfactory
for resorting to it in the populous city of Dublin. The practice is
comparatively humane in America, as it is applied in cases that would
be punished with death in Great Britain. The States of Kentucky and
Ohio have erected penetentiaries, not for the purpose of punishment
alone, but also for the reformation of offenders. The horrible prison
scenes witnessed by Howard, Neild, Bennet, Buxton, Fry, and other
philanthropists in Britain, have no counterpart in America.[106] We
know of no examples here of imprisonment for a debt of a shilling,[107]
or for a supposed fraud of one penny.[108] Nor have I ever heard of
the verdict of an American {176} coroner’s inquest, announcing in their
verdict the death of a prisoner for want of food.[109] Debtors are
not obliged here, to sleep edgeways, for want of the breadth of their
backs on a prison floor.[110] Nor has any poor boy been imprisoned for
a month in Bridewell for selling religious tracts without a hawker’s
license.[111] The equality that consists in universal suffrage; the
absence of privileged orders, and unrestrained industry, is the
enviable felicity of the American nation. The people are, themselves,
the lords of the soil, and acknowledge no superiors who can dictate
to them in the election of other representatives than those of the
community. There are no boroughs where the members monopolize the
business of the place, or who chase away the stranger as if he were
an enemy; or who can exact town taxes contrary to the will of their
fellow citizens. Public accounts are not kept from public inspection.
There is no separate borough representation to be hired over, or owned
by the partisans of a ministry. The clergy are here exalted to the
dignity of citizens, whose interests are identified with those of the
people. Their condition, relatively to that of their adherents, is
in every respect similar to the situation of dissenting clergymen in
Britain. America elevates {177} no spiritual Lords, on wool-sacks, in
her senate, to oppose the introduction of parochial schools. Nor is
there any political body, which courts an alliance with the clergy.
I have never heard of any parson who acts as a Justice of the Peace,
or who intermixes his addresses to _the Great Object of religious
worship_, with the eulogy of the Holy Alliance. The free scope given
to industry is highly conducive to national prosperity. Every man is
allowed to exert his talents, in the pursuit of any honest scheme,
and in any part of the country, without being prevented by intolerant
restrictions or internal taxes. His profits are his own; and he has
no dread of their being wrested from him by the idle drones that
infest other countries. Hence it is, that the United States abound in
enterprizing people, who remove, without hesitation, to any part where
they can suppose any advantage may arise, and adopt projects that would
neither be tolerated nor thought of by people fettered by the trammels
of impolicy. The first failure of a scheme is not here contemplated
as finally ruinous, as a backward step is much more easily retrieved
than in countries more thickly peopled, and where the avenues of
commerce are narrowed by artificial obstructions. There are no branches
of manufactures or professions of any kind, restricted to those who
pay licenses to the government. The farming interest has no monopoly
against the manufacturing: nor has the manufacturing any positive
prohibition against the farmer. Local attachments are much weakened
by the open prospects of an extensive country, by the abolition of
primogenitureship, and by the introduction of laws that promote
family justice. The citizen is not bound to a particular spot for
the preservation of his privileges; for he can enjoy {178} the same
rights all over the Union. The mechanic and the labourer do not remain
unemployed in their native township, to establish their right to the
poor’s rates; for industry is not taxed in paying bounties to idleness.
The landholders of England may quietly enjoy the obeisances of their
pauper dependents, and pay in return their poor’s rates. They may be
assured, that the more equalized citizens of America are not ambitious
of this interchange of benefits; and that the excess of public burdens
has not yet rendered it customary for Americans to desert their own
country, and to resort to France, on account of the cheapness of
provisions.
The present state of North America affords the most conclusive
testimony of the sound policy of a free and unrestricted trade. The
United States allow commerce to regulate itself, according to its
own interests, except in cases where the conduct of other nations
imposes the necessity of following another course. Under legislative
forbearance on this subject, the country has made unexampled progress
in improvements and population. Under the jealous and illiberal
government of Spain, Florida remains a contemptible province, that
has scarcely a name amongst colonies. Under the fostering care and
restrictions of England, Canada continues to be but a mere remnant of
this great continent.
FOOTNOTES:
[103] In Great Britain attorneys are not permitted to plead in court on
behalf of their clients; that is the work of the barrister, who must
previously have belonged to one of the inns of court. Attorneys (or
solicitors) institute actions, advise clients, draw up legal papers,
and act as assistants to barristers.--ED.
[104] Equivocations of this sort have been so often noticed in the
United States, that they must be looked on as notorious. The practice
of naturalizing foreign seamen by the solemn farce of an old woman’s
first cradling bearded men, and then swearing that she rocked them;
and that of procuring pre-emption rights to land in new territories,
by sowing only a few grains of corn, and subsequently swearing that a
crop has been cultivated on the tract claimed, have been so frequent,
that it would be invidious to particularize. In England, affidavits are
often managed in a simpler way. _Swallowing_ a custom-house oath is
there a well known expression. Mercantile houses of London have kept
persons, called swearing clerks, to vouch for transactions, on being
paid at the rate of sixpence for each oath. If it is not true that
men stand at Westminster Hall with straws in their shoes, indicating
their willingness to undertake any dirty job, it is time that the foul
imputation were washed from that _pure_ fountain of justice. Before
prosecutions for conspiracies had become so fashionable in England
as they are now, a witness on behalf of the crown was convicted of
ten separate perjuries. It would appear that a false oath is a morsel
so hard, that it requires cooking before it can be masticated by the
immoral in America, and that a less delicate class in England can gulp
it down in the raw state. Without making any comment on regulations
that protect revenue at the expense of morality; those laws that set
the interests, and the very personal liberties of men at variance with
their consciences, and without inquiring how far evasive subterfuges
may palliate the conduct of the _ignorant_ in their own eyes, or in the
sight of the _great being_ invoked; it is suggested, in explanation,
that popular institutions have the innate property of impressing an
external reverence for the law, on the worst of men.--FLINT.
[105] Walker’s Review of Political Events, p. 125. London, 1794.--FLINT.
[106] This succession of philanthropists, whose labors extended over
the century from 1750-1850, worked tirelessly to stir up English public
sentiment against their criminal code, which contained over two hundred
and nineteen offenses punishable by death, and their deplorable system
of prison management. Consequently early English travellers were
particularly interested in the American system. In 1831 a Parliamentary
Commission was sent to investigate the prisons of Pennsylvania and New
York, and upon its return certain American methods were adopted.--ED.
[107] Evidence of Mr. Law, keeper of the Borough Compter, before the
Police Committee, 1814.--FLINT.
[108] Inquiry into Prison Discipline, by Thomas Fowell Buxton, Esq., M.
P.--FLINT.
[109] The case of J. Burdon in Tothilfields prison in 1817.--FLINT.
[110] In February, 1818, twenty persons confined in the Borough
Compter, slept in a space twenty feet long and six wide. The fact was
confirmed by the governor.--FLINT.
[111] G. M. a boy of about fourteen years of age; he was confined along
with twenty men and four boys. He was employed by one of them to pick
pockets, and steal from the other prisoners. Caught a fever in jail,
which was communicated to his father, mother, and three brothers, one
of whom died. From being a sober, orderly boy, he was changed into
a confirmed thief, and stole his mother’s Bible and his brother’s
clothes.--_Buxton’s Inquiry._--FLINT.
{179} LETTER XV
Outline of the American Constitution--From the frequency of
Revolutions in Europe, the instability of the American Republic is not
to be inferred.
_Jeffersonville, (Indiana,) Feb. 27, 1820._