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:—
A certain justice, in the same state of Illinois, was one day trying, for an aggravated assault, a man who was too much intoxicated fully to realize the import of the proceedings or the dignity of the court. He was continually interrupting witnesses, contradicting their testimony, and swearing at the justice. It soon became evident that he must be silenced or the trial adjourned. The justice's patience at length gave way. He ordered the constable to take the obstreperous culprit to a creek, which ran near the office, “and duck him until he was sober enough to be quiet and respect the court!” This operation the constable alone could not perform, but in due time he brought the defendant back dripping from the creek and thoroughly sobered, reporting, at the same time, that he had availed himself of the assistance of two men, Messrs. B—— and L——, in the execution of his honor's commands. The trial then went quietly on, the defendant was fined for a breach of the peace, and ordered to pay the costs: one item of which was two dollars to Messrs. B—— and L—— “for assisting the constable in ducking the prisoner!” But, as the justice could find no form nor precedent for hydropathic services, he entered the charge as “witness fees,” and required immediate payment! The shivering culprit, glad to escape on any terms, paid the bill and vanished!
Whatever might have been the prevailing opinion, as to the legality of such a proceeding, the ridicule attaching to it would effectually have prevented any remedy—most men being willing to forgive a little irregularity, for the sake of substantial justice and “a good joke.” But the summary course, adopted by these magistrates, sometimes worked even greater injustice—as might have been expected; and of this, the following is an example:—
About the year eighteen hundred and twenty-six, there lived, in a certain part of the west, a man named Smedley, who, so far as the collection of debts was concerned, was entirely “law-proof.” He seemed to have a constitutional indisposition to paying anything he owed: and, though there were sundry executions in the hands of officers against him—and though he even seemed thrifty enough in his pecuniary affairs—no property could ever be found, upon which they could be levied. There was, at the same time, a constable in the neighborhood, a man named White, who was celebrated, in those days of difficult collections, for the shrewdness and success of his official exploits; and the justice upon whom he usually attended, was equally remarkable, for the high hand with which he carried his authority. But, though two executions were placed in the hands of the former, upon judgments on the docket of the latter, months passed away, without anything being realized from the impervious defendant, Smedley.
Whenever the constable found him in possession of property, and made a levy, it was proven to belong to some one else; and the only result of his indefatigable efforts, was the additions of heavy costs to the already hopeless demand.
At length, however, White learned that Smedley had traded horses with a man named Wyatt, and he straightway posted off to consult the magistrate. Between them, the plan of operations was agreed upon. White levied first upon the horse then in the possession of Smedley, taking him under one of the two writs: he then levied the other execution upon the horse which Smedley had traded to Wyatt. The latter, apprehending the loss of his property, claimed the first horse—that which he had traded to Smedley. But, upon the “trial of the right of property,” the justice decided that the horse was found in the possession of Smedley, and was, therefore, subject to levy and sale. He was accordingly sold, and the first judgment was satisfied. Wyatt then claimed the second horse—that which he had received from Smedley. But, upon a similar “trial”—after severely reprimanding Wyatt for claiming both horses, when, on his own showing, he never owned but one—the justice decided that the property in dispute had been in the possession of Smedley at the rendition of the judgment, and was therefore, like the other, subject to a lien, and equally liable to levy and sale! And accordingly, this horse, also, was sold, to satisfy the second execution, and Wyatt was dismissed by the justice, with no gentle admonition, “to be careful in future with whom he swapped horses!” A piece of advice which he probably took, and for which he ought to have been duly grateful! Fallen humanity, however, is very perverse; and it is at least supposable, that, having lost his horse, he considered himself hardly used—an opinion in which my legal readers will probably concur.
Before leaving this part of my subject, I will relate another anecdote, which, though it refers more particularly to constables, serves to illustrate the characteristics of the early officers of the law—justices, as well as others:—
The constable who figured so advantageously in the anecdote last related, had an execution against a man named Corson, who was almost as nearly “law proof” as Smedley. He had been a long time endeavoring to realize something, but without success. At length, he was informed, that Corson had sued another man, upon an account, before a justice in a distant part of the same county. This, the delinquent officer at once saw, gave him a chance to secure something; and, on the day of trial, away he posted to the justice's office. Here, he quietly seated himself, and watched the course of the proceeding. The trial went on, and, in due time, the justice decided the cause in favor of Corson. At this juncture, White arose, and, while the justice was entering up judgment, approached the table. When the docket was about to be laid aside, he interposed:—
“Stop!” said he, placing his hand upon the docket, “I levels on this judgment!” And, giving no attention to remonstrances, he demanded and obtained the execution. On this he collected the money, and at once applied it to that, which he had been so long carrying—thus settling two controversies, by diligence and force of will. He was certainly a valuable officer!
Thus irregular and informal were many of the proceedings of the primitive legal functionaries; but a liberal view of their characters must bring u
s to the conclusion, that their influence upon the progress of civilization of the country, was, on the whole, decidedly beneficial.
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VII.
THE PEDDLER.
“This is a traveller, sir; knows men and Manners.”—
Beaumont and Fletcher.
Previous to the organization of civil government, and “the form and pressure” given to the times by this and its attendant circumstances, the primitive tastes and habits of the western people, excluded many of those artificial wants which are gratified by commerce, and afforded no room for traders, excepting those who sold the absolute necessaries of life.
In those days, housekeeping was a very simple matter. Neither steam-engines nor patent cook-stoves were yet known, as necessary adjuncts to a kitchen; the housewife would have “turned up her nose” in contempt of a bake-oven: would have thrown a “Yankee reflector” over the fence, and branded the innovator with the old-fashioned gridiron. Tin was then supposed to be made only for cups and coffee-pots: pie-pans had not yet even entered “the land of dreams;” and the tea-kettle, which then “sang songs of family glee,” was a quaint, squat figure, resembling nothing so much as an over-fed duck, and poured forth its music from a crooked, quizzical spout, with a notch in its iron nozzle. If its shut-iron lid was ornamented with a brass button, for a handle, it was thought to be manufactured in superior style. Iron spoons were good enough for the daintiest mouth; and a full set of pewter was a household treasure. China dishes and silver plate had been heard of, but belonged to the same class of marvellous things, with Aladdin's lamp and Fortunatus's purse. Cooking was not yet reduced to a science, and eating was like sleep—a necessity, not a mere amusement. The only luxuries known, were coffee and sugar; and these, with domestics and other cotton fabrics, were the chief articles for which the products of the earth were bartered.
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