"This is to certify, that it was not Josiah Grayson who took Robert

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:--

Western Characters; or, Types of Border Life in the Western States · 第 12 / 19 段