Chapter 13

"Nothing but that," answered Grayson, decidedly; "and if you don't give it to me, when your regulator friends arrive, instead of me, they will find you, swinging from this beam by the neck!" And, seeing his victim hesitate, he again tugged at the rope, until the same signs were exhibited as before--only a little more apparently.

"Ho--hold, Grayson!" begged the frightened and strangling lieutenant; and, as his executioner again relaxed a little, he continued: "Just let me up, and I'll do anything you want."

"That is to say," laughed Grayson, "you would rather take the chances of a fight, than be hung up like a sheep-stealing dog! Let you up, indeed!" And once more he dragged the rope down more vigorously than ever.

"I--didn't--mean that--indeed!" gulped the unhappy official, this time almost strangled in earnest.

"What _did_ you mean then?" sternly demanded Grayson, relaxing a little once again.

"I will write the certificate," moaned the unfortunate lieutenant, "if you will let one arm loose, and won't tell anybody until the ten days are out--"

"Why do you wish it kept secret!"

"If I give such a certificate as you demand," mournfully answered the disconsolate officer, "I shall have to leave the country--and I want time to get away."

"Oh! that's it, is it? Well--very well."

About an hour after this, Driscol issued from the house, and, springing upon the horse, rode away at a gallop toward Elwood's. Here he left the animal, but declined to enter; telling Hannah, who happened to be in the yard, to say to her father that "it was all right," he pushed on toward home--tenderly rubbing his throat, first with the right hand and then with the left, all the way. Three days afterward, he disappeared from the settlement, and was heard of no more.

Grayson waited until near nightfall, and then took his way, as usual, to a little clump of trees, that stood near Elwood's enclosures, to meet Hannah. Here he stayed more than an hour, detailing the circumstances of the accusation against him, and laughing with her, over the ridiculous figure cut by her father's respectable lieutenant. Before they parted their plans were all arranged, and Grayson went home in excellent humor. What these plans were, will be seen in the sequel.

Eight days went by without any event important to our story--Hannah and Grayson meeting each evening, in the grove, and parting again undiscovered. On the ninth day, the former went to the house of a neighbor, where it was understood that she was to remain during the night, and return home on the following morning. Grayson remained on his farm until near sunset, when he mounted his horse and rode away. This was the last of his "days of grace;" and those who saw him passing along the road, concluded that he had yielded to the dictates of prudence, and was leaving the field.

On the following morning, the regulators assembled to see that their orders had been obeyed; and, though Elwood was a little disconcerted by the absence of Driscol, since it was understood that Grayson had left the country, the meeting was considered only a formal one, and the presence of the worthy lieutenant was not indispensable. They proceeded in high spirits to the premises, expecting to find the house deserted and waiting for an occupant. Elwood was to take immediate possession, and, all the way across the prairie, was felicitating himself upon the ease and rapidity of his triumph. What was their surprise, then, on approaching the house, to see smoke issuing from the chimney, as usual--the door thrown wide open, and Grayson standing quietly in front of it! The party halted and a council was called, but its deliberations were by no means tedious: it was forthwith determined, that Grayson stood _in defiance of the law_, and must be punished--that is, "lynched"--without delay! The object of this fierce decree, all unarmed as he was, still stood near the door, while the company slowly approached the fence. He then advanced and addressed them:--

"I think the ten days are not up yet, gentlemen," said he mildly.

"Yes, they are," answered Elwood quickly; "and we are here to know whether you intend to obey the authorities, and leave the country?"

"I think, Elwood," said the young man, not directly replying, "this matter can be settled between you and me, without bloodshed, and even without trouble. If you will come in with George and John [his sons], I will introduce you to my wife, and we can talk it over, with a glass of whiskey."

Another consultation ensued, when, in order to prove their dignified moderation, they agreed that Elwood and his sons should "go in and see what he had to say."

Elwood, the elder, entered first: directly before him, holding her sides and shaking with laughter, stood his rosy daughter, Hannah!

"_My wife_, gentlemen," said Grayson, gravely introducing them. Hannah's laughter exploded.

"O, father, father, father!" she exclaimed, leaning forward and extending her hands; "ain't you caught, beautifully!"

The laugh was contagious; and though the elder knit his brows, and was evidently on the point of bursting with very different emotions, his sons yielded to its influence, and, joining Hannah and her husband, laughed loudly, peal after peal!

The father could bear it no longer--he seized Hannah by the arm and shook her violently, till she restrained herself sufficiently to speak; as for him, he was speechless with rage.

"It's entirely too late to make a 'fuss,' father," she said at length, "for here is the marriage-certificate, and Grayson is your son!"

"I have not stolen your horse, Elwood," said the bridegroom, taking the paper which the father rejected, "though I have run away with your daughter. And," he added, significantly, "since if you had this land, you would probably give it to Hannah, I think you and I had better be friends, and I'll take it as her marriage-portion."

"If you can show that you did not take the horse, Grayson," said George, the elder of the two sons, "I'll answer for that: but----"

"That I can do very easily," interrupted the young husband, "I have the proof in my pocket."

He caught Elwood's eye as he spoke, and reassured him with a look, for he could see that the old man began to apprehend an exposure in the presence of his sons. This forbearance did more to reconcile him to his discomfiture than aught else, save the influence of George; for, like all passionate men, he was easily swayed by his cooler children. While Hannah and her brothers examined the marriage certificate, and laughed over "the stratagem," Grayson drew Elwood aside and exhibited a paper, written in a cramped, uneven hand, as follows:--

"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.