Chapter 14

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 us to the conclusion, that their influence upon the progress of civilization of the country, was, on the whole, decidedly beneficial.

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.

French cloths and Parisian fashions were still less known than silver spoons and "rotary stoves." The men wore homemade jeans, cut after the _mode_ of the forest: its dye a favorite "Tennessean" brownish-yellow; and the women were not ashamed to be seen in linsey-wolsey, woven in the same domestic loom. Knitting was then not only an accomplishment, but a useful art; and the size which a "yarn" stocking gave to a pretty ankle, was not suffered to overbalance the consideration of its comfort. The verge of nakedness was not then the region of modesty: the neck and its adjacent parts were covered in preference to the hands; and, in their barbarous ignorance, the women thought it more shame to appear in public half-dressed, than to wear a comfortable shoe.

They were certainly a very primitive people--unrefined, unfashionable, "coarse"--and many of their sons and daughters are even now ashamed to think what "savages" their parents were! In their mode of life, they sought comfort, not "appearances;" and many things which their more sophisticated descendants deem necessaries, they contemned as luxuries.

But, in the course of time, these things began to change, for simplicity is always "primitive," and the progress of refinement is only the multiplication of wants. As the country was reduced to cultivation, and peace settled upon its borders, new classes of emigrants began to take possession of the soil; and, for the immediate purposes of rapid advancement, and especially of social improvement, they were better classes than their predecessors: for, as the original pioneers had always lived a little beyond the influences of regular civilization, these had remained within its limits until the pressure of legal organization began to grow irksome to their partially untamed spirits. There was, indeed, an unbroken gradation of character, from the nearly savage hunter, who visited the country only because it was uninhabited, except by wild beasts, to the genuine _citizen_, who brought with him order, and industry, and legal supremacy.

The emigrants, of whom we are now writing, constituted the third step in this progression; and they imported along with them, or drew after them, the peculiarities belonging to their own degree of advancement. Their notions of comfort and modes of living, though still quite crude, indicated an appreciable stage of refinement. They were better supplied, for example, with cooking utensils--their household furniture was not so primitive--and in wearing apparel, they manifested some regard to elegance as well as comfort. Social intercourse disseminated these ideas among those to whom they were novel; where, previously, the highest motive to improvement had been a desire for convenience, the idea of gentility began to claim an influence; and some of the more moderate embellishments of life assumed the place of the mere necessaries.

The transition was not rapid nor violent, like all permanent changes, it was the work of years, marked by comparatively slow gradations. First, tin-ware, of various descriptions, became necessary to the operations of the kitchen; and that which had been confined to one or two articles, was now multiplied into many forms. A housewife could no more bake a pie without a "scalloped" pie-pan, than without a fire: a tin-bucket was much more easily handled than one of cedar or oak; and a pepper-box, of the same material, was as indispensable as a salt-cellar. A little tea was occasionally added to the ancient regimen of coffee, and thus a tin-canister became necessary for the preservation of the precious drug. With tea came queensware: and half-a-dozen cups and saucers, usually of a dingy white, with a raised blue edge, were needful for the pranking of the little cupboard.

But it was not only in the victualing department that the progress of refinement could be traced; for the thrifty housewife, who thought it proper to adorn her table, and equip her kitchen with all the late improvements, could not, of course, entirely overlook "the fashions:" the decoration of her person has been, in all ages, the just and honest pride of woman. Linsey-wolsey began to give place to calicoes and many-colored prints; calf-skin shoes were antiquated by the use of kid; and ribands fluttered gracefully upon new-fashioned bonnets. Progress of this kind never takes a step backward: once possessed of an improvement in personal comfort, convenience, or adornment, man--or woman--seldom gives it up. Thus, these things, once used, thenceforth became wants, whose gratification was not to be foregone: and it is one of the principles governing commerce, that the demand draws to it the supply.

There were few "country stores," in those days, and the settlements were so scattered as to make it sometimes very inconvenient to visit them. From ten to twenty miles was a moderate distance to the dépôt of supplies; and a whole day was usually consumed in going and returning. The visits were, therefore, not very frequent--the purchases for many weeks--perhaps months--being made on each occasion. This was a very inconvenient mode of "shopping," even for the energetic women of that day; and, since the population would not justify more numerous "stores," it was desirable that some new system should be introduced, capable of supplying the demand at the cost of less trouble, and fewer miles of travel. To answer this necessity there was but one way--the "storekeeper" must carry his wares to the doors of his customers. And thus arose the occupation of the _Peddler_, or, as he called himself, the "travelling merchant."

The population of the country was then almost exclusively agricultural--the mechanic arts belong to a more advanced period. The consequence was, that the first articles carried about from house to house, were such as are manufactured by artisans--and the chief of these was tin-ware.

The tinkers of the rural districts in older countries, were, however, not known in this--they were not adapted to the genius of the people. The men who sold the ware were, scarcely ever, the same who made it; and, though the manual dexterity of most of these ready men, might enable them to mend a broken pan, or a leaky coffeepot, their skill was seldom put in requisition. Besides, since the mending of an old article might interfere with the sale of a new one, inability to perform the office was more frequently assumed than felt.

In the course of time--as the people of the country began to acquire new ideas, and discover new wants--other articles were added to the peddler's stock. Calicoes were often carried in the same box with tin pans--cotton checks and ginghams were stowed away beneath tin-cups and iron-spoons--shining coffee-pots were crammed with spools of thread, papers of pins, cards of horn-buttons, and cakes of shaving-soap--and bolts of gaudy riband could be drawn from pepper-boxes and sausage-stuffers. Table-cloths, of cotton or brown linen, were displayed before admiring eyes, which had turned away from all the brightness of new tin plates; and knives and forks, all "warranted pure steel," appealed to tastes, which nothing else could excite. New razors touched the men "in tender places," while shining scissors clipped the purses of the women. Silk handkerchiefs and "fancy" neckcloths--things till then unknown--could occupy the former, while the latter covetously turned over and examined bright ribands and fresh cotton hose. The peddler was a master of the art of pleasing all tastes: even the children were not forgotten; for there were whips and jew's-harps for the boys, and nice check aprons for the girls. (The taste for "playing mother" was as much an instinct, with the female children of that day, as it is in times more modern; but life was yet too earnest to display it in the dressing and nursing of waxen babies.) To suit the people from whom the peddler's income was derived, he must consult at least the appearance of utility, in every article he offered; for, though no man could do more, to coax the money out of one's pocket, without leaving an equivalent, even _he_ could not succeed in such an enterprise, against the matter-of-fact pioneer.