Elwood's horse from his stable, last night--but I took him myself,
by arrangement, so as to accuse Grayson of the theft, and drive him
to leave his new farm.
"THOMAS DRISCOL."
Elwood blushed as he came to the words "by arrangement," but read on
without speaking. Grayson then related the manner in which he had
entrapped the lieutenant, and the joke soon put him in a good humor. The
regulators were called in, and heard the explanation, and all laughing
heartily over the capture of Driscol, they insisted that Hannah and her
husband should mount, and ride with them to Elwood's. Neither of them
needed much persuasion--the whole party rode away together--the "lads
and lasses" of the neighborhood were summoned, and the day and night
were spent in merriment and dancing.
Grayson and his wife returned on the following morning to their new
home, where a life of steady and honorable industry, was rewarded with
affluence and content. Their descendants still live upon the place, one
of the most beautiful and extensive farms upon that fertile prairie. But
on the spot where the disputed cabin stood, has since been built a
handsome brick-house, and I pay only a just tribute to amiable
character, when I say that a more hospitable mansion is not to be found
in the western country.
This was the last attempt at "regulating" in that region, for emigration
came in so rapidly, that the supremacy of the law was soon asserted and
maintained. Whenever this came to be so, the regulators, of course,
ceased to be types of the state of society, and were succeeded by other
characters and institutions.
To these we must now proceed.
[NOTE.--The following is a copy of a compact, such as is spoken of
in the story of the "The First Grave," entered into by a company of
regulators in somewhat similar circumstances. I am not sure that I
can vouch for its authenticity, but all who are familiar with the
history of those times, will recognise, in its peculiarities, the
characteristics of the people who then inhabited this country. The
affectation of legal form in such a document as this, would be
rather amusing, were it not quite too significant; at all events,
it is entirely "in keeping" with the constitution of a race who had
some regard for law and its vindication, even in their most
high-handed acts. The technical phraseology, used so strangely, is
easily traceable to the little "Justice's Form Book," which was
then almost the only law document in the country; and though the
words are rather awkwardly combined, they no doubt gave solemnity
to the act in the eyes of its sturdy signers:--
"_Know all men by these presents:_
"That we [_here follow twelve names_], citizens of ---- settlement,
in the state of Illinois, have this day, _jointly and severally_,
bound ourselves together as a company of Rangers and Regulators, to
protect this settlement against the crimes and misdemeanors of, all
and singular, every person or persons whomsoever, and especially
against _all horse-thieves, renegades, and robbers_. And we do by
these presents, hereby bind ourselves, jointly and severally as
aforesaid, unto each other, and to the fellow-citizens of this
settlement, to punish, according to the code of his honor, Judge
Lynch, all violations of the law, _against the peace and dignity of
the said people of_ ---- settlement; and to discover and bring to
speedy punishment, _all illegal combinations_--to rid the country
of such as are dangerous to the welfare of this settlement--to
preserve the peace, and _generally to vindicate the law_, within
the settlement aforesaid. All of which purposes we are to
accomplish as peaceably as possible: _but we are to accomplish
them one way or another_.
"In testimony whereof, we have hereunto set our hands and affixed
our seals, this twelfth day of October, _Anno Domini_, eighteen
hundred and twenty.
"(Signed by twelve men.)
"Acknowledged and subscribed in the presence of
"C---- T. H----n,
"J---- P. D----n,"
and five others, who seem to have been a portion of "the
fellow-citizens of this settlement," referred to in the document.]
FOOTNOTES:
[77] See note at the close of this article.
[78] The "Sangamon country," as the phrase was then used, included all
the region watered by the river of that name, together with the counties
of Cass, Morgan, and Scott, as far south as Apple creek.
VI.
THE JUSTICE OF THE PEACE.
"I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong."--
MERCHANT OF VENICE.
The reign of violence, when an evil at all, is an evil which remedies
itself: the severity of its proceeding hastens the accomplishment of its
end, as the hottest fire soonest consumes its fuel. A nation will
endure oppression more patiently immediately after a spasmodic rebellion
or a bloody revolution, than at any other time; and a community requires
less law to govern it, after a violent and illegal assertion of the
law's supremacy, than was necessary before the outbreak. After having
thrown off the yoke of a knave--and perhaps hung the knave up by the
neck, or chopped his head off with an axe--mankind not unfrequently fall
under the control of a fool; frightened at their temerity in dethroning
an idol of metal, they bow down before a paltry statue of wood.
Men are not easily satiated with power, but when it is irregular, a
pause in its exercise must eventually come. And there is a principle of
human nature, which teaches, that whatsoever partakes of the mob-spirit
is, at best, but temporary, and ought to have a speedy end. This is
especially true of such men as first permanently peopled the western
country; for though they sometimes committed high-handed and
unjustifiable acts, the moment it was discovered that they had
accomplished the purposes of order, they allowed the means of
vindication to fall into disuse. The regulator system, for example, was
directed to the stern and thorough punishment of evil men, but no sooner
was society freed from their depredations, than the well-meaning
citizens withdrew from its ranks; and, though regulator companies still
patrolled the country, and, for a time, assumed as much authority as
ever, they were not supported by the solid approbation of those who
alone could give them lasting strength. They did many outrageous things
for which they were never punished, and for some years, the shield which
the good citizen had raised above his head for protection and defence,
threatened to fall upon and crush him. But the western people are not
the first who have been temporarily enslaved by their liberators,
though, unlike many another race, they waited patiently for the changes
of years, and time brought them a remedy.
As the government waxed stronger, and public opinion assumed a
direction, the regulators, like their predecessors, the rangers, found
their "occupation gone," and gradually faded out from the land.
Proclamations were issued--legislatures met--laws were enacted, and
officers appointed to execute them; and though forcing a legal system
upon a people who had so long been "a law unto themselves," was a slow
and difficult process, it was powerfully assisted by the very disorders
consequent upon their attempts at self-government. They had burnt their
hands by seizing the hot iron-rod of irregular authority, and were,
therefore, better inclined to surrender the baton to those who could
handle it. Like Frankenstein, they had created a power which they could
not immediately control: the regulators, from being their servants, had
come to be their masters: and they willingly admitted any authority
which promised deliverance. They had risen in wrath, and chastised, with
no hesitating hand, the violators of their peace; but the reaction had
taken place, and they were now content to be governed by whatsoever
ruler Providence might send them.
The state governments were established, then, without difficulty, and
the officers of the new law pervaded every settlement. The character
which I have selected as the best representative of this period, is one
of these new officers--_the early justice of the peace_.
So far as history or tradition informs us, there was never yet a country
in which appointments to office were invariably made with reference only
to qualification, and though the west is an exception to more than one
general rule, in this respect we must set it down in the common
category. The lawyer-period had not yet arrived; and, probably, there
was never an equal number of people in any civilized country, of whom a
larger proportion were totally ignorant of legal forms. There were not
three in each hundred who had ever seen the inside of a courthouse, and
they were quite as few who had once looked upon a law-book! Where such
was the case, some principle of appointment was of course necessary,
other than that which required fitness, by training, for the office
conferred; and it is probable that the rule adopted was but little
different to that in force among those who have the appointing power,
where no such circumstances restrict the choice.
Men were appointed conservators of the _peace_, because they had
distinguished themselves in _war_; and he who had assumed the powers of
the law, as a regulator, was thought the better qualified to exercise
them, as a legal officer! Courage and capacity, as an Indian-fighter,
gave one the prominence requisite to his appointment; and zeal for the
preservation of order, exhibited as a self-constituted judge and
executioner, was a guaranty for the faithful performance of new and
regular duties.
Nor was the rule a bad one. A justice of the peace chosen upon this
principle, possessed two qualities indispensable to an efficient
officer, in the times of which we write--he was prompt in the discharge
of his duties, and was not afraid of responsibility. To obviate the
danger, however, which might arise from these, he had also a rigid sense
of justice, which usually guided his determinations according to the
rights of parties in interest. This, the lawyers will say, was a very
questionable trait for a judicial officer; and perhaps it _is_ better
for society, that a judge should know the law, and administer it
without reference to abstract justice, than that his own notions of
right and wrong should be taken, however conscientiously, as the
standard of judgment: for in that case, we shall, at least, have
uniformity of adjudication; whereas, nothing is more uncertain, than a
man's convictions of right.
But, in the times of which we are writing, society was not yet
definitely shaped--its elements were not bound together by the cohesive
power of any legal cement--and no better rule was, therefore, to be
expected, than the spontaneous suggestions of common sense. The minds of
men were, moreover, habituated to a certain course of thought and
action--(such as naturally obtains in a new state of society, where the
absence of organization remits them to their own exertions for
safety)--and it was, therefore, impossible that any artificial system
should be at once adopted. The people had been accustomed to such
primitive associations, as they had entered into "for the common defence
and general welfare" of their infant communities; the rule of action had
been swift, and sometimes very informal punishment, for every
transgression; and this rule, having very well answered its purpose,
though at the expense of occasional severity and injustice, they could
not immediately understand the necessity for any other course of
proceeding.
One of the characteristics of the early justice, then, was a supreme
contempt for all mere form. He called it "nonsense" and could never
comprehend its utility. To him, all ceremony was affectation, and the
refinements of legal proceeding were, in his estimation, anti-republican
innovations upon the original simplicity of mankind. Technicalities he
considered merely the complicated inventions of lawyers, to exhibit
their perverse ingenuity--traps to catch the well-meaning or unwary, or
avenues of escape for the guilty. The rules of evidence he neither
understood nor cared for; he desired "to hear all about" every cause
brought before him; and the idea of excluding testimony, in obedience to
any rule, he would never entertain. He acted upon the principle--though
he probably never heard of the maxim--that "the law furnishes a remedy
for every wrong;" and, if he knew of none in positive enactment, he
would provide one, from the arsenal of his own sense of right. He never
permitted anything to obstruct the punishment of one whom he had
adjudged guilty; and, rather than allow a culprit to escape, he would
order his judgment to be carried at once into effect, in the presence,
and under the direction of the court.
He had a strong prejudice against every man accused of crime; and
sometimes almost reversed the ancient presumption of the law, and held
the prisoner guilty, until he proved himself innocent. He had unbounded
confidence in the honesty of his neighbors and friends, and was
unwilling to believe, that they would accuse a man of crime or
misdemeanor, without very good cause. When it was proven that a crime
_had been committed_, he considered the guilt of the prisoner already
half established: it was, in his judgment, what one, better acquainted
with legal terms, might have called "a _prima facia_ case," devolving
the _onus probandi_ (or burthen of proof) upon the accused. And this may
have been one cause of the frequent resort to _alibis_--a mode of
defence which, as we have already remarked, is even yet in great
disrepute. If a defence, of some sort, was not, then, very clearly and
satisfactorily made out, the justice had no hesitation in entering
judgment, and ordering immediate punishment; for the right of appeal was
not generally recognised, and the justice took original and final
jurisdiction, where now his duties are merely those of preliminary
examination and commitment.
In civil controversies--where such causes were presented for
adjudication, which, however, was not very often--the order of
proceeding was quite as summary. The justice heard the statements of the
parties, and sometimes, not always, would listen to witnesses, also;
then, taking the general "rights, interests, claims, and demands," of
both sides into consideration--and viewing himself, not as a judicial
officer, but as a sort of referee or arbitrator--he would strike a
balance between the disputants, and dismiss them to their homes, with a
significant admonition to "keep the peace." He usually acted upon the
principle--no very erroneous one, either--that, when two respectable men
resort to the law, as arbitrator of their controversies, they are both
about equally blamable; and his judgments were accordingly based upon
the corollary, that neither deserved to have all he claimed. This was
the practice when any decision was made at all; but, in most cases, the
justice acted as a pacificator, and, by his authority and persuasion,
induced the parties to agree upon a compromise. For this purpose, he not
unfrequently remitted both fees and costs--those due to the constables,
as well as his own.
An instance of this pacific practice has been related to me as follows:
Two neighbors had quarrelled about a small amount of debt, and, after
sundry attempts to "settle," finally went to law. The justice took them
aside, on the day of trial, and proposed a basis of settlement, to which
they agreed, _on condition_, that all costs should be remitted, and to
this the magistrate at once pledged himself. But a difficulty arose: the
constable, who had not been consulted in the arrangement, had had a long
ride after the defendant, and having an unquestionable right to demand
his fees, was unwilling to give them up. The justice endeavored to
prevail with him by persuasion, but in vain. Finally, growing impatient
of his obstinacy, he gave him a _peremptory order_ to consent, and, on
his refusal, _fined him_ the exact amount of his fees _for contempt_,
entered up judgment on the basis of the compromise, and adjourned the
court!
The man who thus discourages litigation at the expense of his own
official emoluments, may be forgiven a few irregularities of proceeding,
in consideration of the good he effects; for although under such a
system it was seldom that either party obtained his full and just
rights, both were always benefited by the spirit of peace infused into
the community. It would, perhaps, be well for the country now, were our
legal officers actuated by the same motives; unfortunately, however,
such men belong only to primitive times.
But the love of peace was not accompanied, in this character, as it
usually is, by merciful judgment, for, as he was very swift in
determining a prisoner's guilt, he was equally rigid in imposing the
penalty. The enactments of the criminal code were generally so worded as
to give some scope for the exercise of a compassionate and enlightened
discretion; but when the decision lay in the breast of our justice, if
he adjudged any punishment at all, it was usually the severest provided
for by the statute. Half-measures were not adapted to the temper of the
times or the character of the people; indeed, they are suited to _no_
people, and are signal failures at all times, in all circumstances.
Inflicting light punishments is like firing blank cartridges at a mob,
they only irritate, without subduing; and as the latter course usually
ends in unnecessary bloodshed, the former invariably increases the
amount of crime.
_Certainty_ of punishment may be--unquestionably _is_--a very important
element in the administration of justice, but as nothing so strongly
disinclines a man to entering the water as the sight of another
drowning, so nothing will so effectually deter him from the commission
of crime, as the knowledge that another has been severely punished for
yielding to the same temptation. The justice, however, based the rigor
of his judgments upon no such argument of policy. His austerity was a
part of his character, and had been rendered more severe by the
circumstances in which he had lived--the audacity of law-breakers, and
the necessity for harsh penalties, in order for protection.
It will be observed that I say nothing of juries, and speak of justices
of the peace, as officers having authority to decide causes alone. And,
it must be recollected, that in the days of which I am writing, resort
was very seldom had to this cumbersome and uncertain mode of
adjudication. In civil causes, juries were seldom empanelled, because
they were attended by very considerable expense and delay. The chief
object, in going to law, moreover, was, in most cases, to have _a
decision_ of the matter in dispute; and juries were as prone to "hang"
then as now. Suitors generally, therefore, would rather submit to the
arbitration of the justice, than take the risk of delay and uncertainty,
with a jury. In criminal causes, the case was very similar: the accused
would as lief be judged by one prejudiced man as by twelve; for the same
rigorous spirit which actuated the justice, pervaded also the juries;
and (besides the chance of timidity or favor in the justice) in the
latter he must take the additional risks of personal enmity and
relationship to the party injured. Thus, juries were often discarded in
criminal causes also, and we think their disuse was no great sacrifice.
Such a system can derive its utility, in this country, only from an
enlightened public sentiment: if that sentiment be capricious and
oppressive, as it too often is, juries are quite as likely to partake
its vices as legal officers: if the sentiment be just and healthy, no
judicial officer dare be guilty of oppression. So that our fathers lost
nothing in seldom resorting to this "palladium of our liberties," and,
without doubt, gained something by avoiding delay, uncertainty, and
expense.
The reader will also observe, that I say nothing of higher courts. But
the lines between the upper and lower tribunals were not so strictly
drawn then as they now are, and the limits of jurisdiction were,
consequently, very indefinite. Most of the characteristics, moreover,
here ascribed to the justice of the peace, belonged, in almost an equal
degree, to the judges of the circuit courts; and, though some of the
latter were men of respectable legal requirements, the same off-hand
mode of administering the law which distinguished the inferior
magistrates, marked the proceedings of their courts also. Both
occasionally assumed powers which they did not legally possess; both
were guided more by their own notions of justice, than by the rules of
law; and both were remarkable for their severity upon all transgressors.
Neither cared much for the rules of evidence, each was equal to any
emergency or responsibility, and both had very exalted ideas of their
own authority.
But the functions of the justice were, in his estimation, especially
important--his dignity was very considerable also, and his powers
anything but circumscribed. A few well-authenticated anecdotes, however,
will illustrate the character better than any elaborate portraiture.
And, for fear those I am about to relate may seem exceptions, not fairly
representing the class, I should state, in the outset, that I have
selected them from a great number which I can recall, particularly
because they are _not_ exceptive, and give a very just impression of the
character which I am endeavoring to portray.
Squire A---- was a plain, honest farmer, who had distinguished himself
as a pioneer and ranger, and was remarkable as a man of undoubted
courage, but singularly peaceable temper. In the year eighteen hundred
and twenty, he received from Governor Bond of Illinois, a commission as
justice of the peace, and though he was not very clear what his duties,
dignities, and responsibilities, precisely were, like a patriot and a
Roman, he determined to discharge them to the letter. At the period of
his appointment, he was at feud with one of his neighbors about that
most fruitful of all subjects of quarrel, a division-fence; and as such
differences always are, the dispute had been waxing warmer for several
months. He received his docket, blanks, and "Form-Book," on Saturday
evening, and though he had as yet no suits to enter and no process to
issue, was thus provided with all the weapons of justice. On the
following Monday morning, he repaired, as usual, to his fields, about
half-a-mile from home, and though full of his new dignity, went quietly
to work.
He had not been there long, before his old and only enemy made his
appearance, and opened upon him a volley of abuse in relation to the
division-fence, bestowing upon his honor, among other expressive titles,
the euphonious epithet of "jackass." A---- bore the attack until it came
to this point--which, it would seem, was as far as a man's patience
ought to extend--and, it is probable, that had he not been a legal
functionary, a battle would have ensued "then and there." But it was
beneath the dignity thus outraged, to avenge itself by a vulgar
fisticuff, and A---- bethought him of a much better and more honorable
course. He threw his coat across his arm, and marched home. There he
took down his new docket, and upon the first page, recorded the case of
the "_People of the State of Illinois_ vs. _John Braxton_" (his enemy).
He then entered up the following judgment: "_The defendant in this case,
this day, fined ten dollars and costs, for_ CONTEMPT OF COURT, _he
having called_ US _a jackass_!" On the opposite page is an entry of
satisfaction, by which it appears that he forthwith issued an execution
upon the judgment, and collected the money!
This pretext of "contempt" was much in vogue, as a means of reaching
offences not expressly provided for by statute; but the justice was
never at a loss for expedients, even in cases entirely without
precedent, as the following anecdote will illustrate:--