1
CHAPTER I
INTRODUCTION
In the early nineteenth century, travelers heading for the Missouri frontier
experienced poor weather, uncomfortable surroundings, lack of privacy, and fatigue.
When they finally arrived at their destination or simply made the decision to stop where
they were and settle, they worked hard at building new communities. In the eighteenth
century, initial waves of immigrants stopped when they reached the “boot heel” or
southeast region of Missouri; later pioneers made their way up through the central prairie
region to the north and west. They built their own roads, educated their children
privately, and socialized at home or in the company of neighbors. Writing about early
Missouri life, a memoirist noted that settlers had “[a] common interest and a common
sympathy [which] bound them together with the strongest ties. They were a little world
to themselves. Among these pioneers there was realized such a community of interest
that there existed a community of feeling.”1
Settlers’ achievements were numerous but costly. Those who settled in early
Missouri battled loneliness and hunger, an intimidating terrain, unexpected obstacles to
land ownership, and other frustrations. But, for the most part, they confronted and
overcame these fundamental problems in order to survive and construct new lives. The
landscape had to be tamed and put to good use. Vigorous and resilient economies were
essential, no matter how small or large the community. Public order and a sense of
neighborhood and stable institutions were equally essential, and a spirit of community
would prove an immense help. In all of this, law was more clearly an ally than an
1 History of St. Charles County, Missouri (1765-1885), with an introduction by Paul R. Hollrath
(n.p., 1997), 108.
2
impediment. The key to executing and interpreting local law were two public entities,
both controlled by the justice of the peace: the local justices’ court and the county court
of commissioners.
Contrary to much recent scholarship, Missouri’s neighborhood courts managed by
justices of the peace kept alive the notion of community justice for much of the
nineteenth century. Local legal cultures retained their character, resisting trends toward
state superintendence of law and judicial services that would reduce residents’ access to
courts. Localism and continuity, then, were far more characteristic of nineteenth-century
Missouri than nationalization and modernity. Changes in local judicial arrangements and
law were more apparent than real.
Attachment to local ways and local judicial institutions persisted over decades—
despite population growth, civil war, diversity in ethnic origins of immigrants, financial
panics and other problems. Residents of villages and towns remained attached to their
local justices’ courts and overwhelmingly supported county courts of commissioners. By
the late 1870s, economic activity in Missouri—that is, growing industrialization,
technological improvement in transport of goods, and increases in non-agricultural
market transactions—along with changed priorities within state government and a
transformed body politic suggest a cultural sea change. Yet people continued to demand
more justices of the peace.
People in early Missouri found comfort in local judicial services, which formed
part of the pattern of community life. The very nature of settlement, of ‘taming’ the
frontier for the purpose of creating a community, demanded a communal spirit and
willingness to do whatever had to be done. Township justices’ courts in Missouri,
3
worked on the basis of generally accepted notions of justice and fairness. Where a high
court judge sought the precise meaning of a statute before making a ruling, the justice of
the peace did not depend so heavily upon positive law that he failed to take into account
common notions of what was fair and right. He could do so because he was not
expected to withdraw into a separate space inhabited by ‘the law’ in the performance of
his duties. Indeed, much of the reason for the effectiveness of Missouri’s neighborhood
courts was the supple nature of their practice of law. Early Missourians cherished courts
of the neighborhood for their intimacy, clarity in law, and connection with daily living
patterns.
This study firmly situates law within a frontier community and asks how it
performed—not how lawmakers and others intended or believed it to perform. It
considers legal events as active happenings, rather than as outcomes of a legal code of
conduct. This project examines local justice from an institutional perspective and in
addition takes account of the human voices hidden within cases. A discussion of early
Missouri’s courts of the neighborhood, anchored in the counties and frontier towns,
necessarily addresses how these courts actually behaved within communities. In early
Missouri, justices of the peace performed the duties of the office under varying
circumstances. Justices’ courts and county courts of commissioners were designed
around local needs and interests. Communities themselves thus acquired a significant
voice in the narrative.
The subject of the work, then, is neither court nor community, but the interactions
between them. How did courts shape neighborhoods, and vice versa? Where did legal
4
meanings reside—in the statutes written the state capitol, in the neighborhood, or
somewhere else? While appeals courts issue rulings that can touch and change people’s
lives sometimes in very deep ways, people do not think about the court itself, even if the
effects of the ruling are life-altering. But in the tiny settlements and small towns of early
Missouri, residents knew the justices who ran their local and county courts, so they knew
where much of the law that affected them came from and who made it. Further, residents
acted to participate in dispensation of local justice and government. Briefly, local justice
possessed a vibrant life in the rural communities of nineteenth-century Missouri that grew
out of attributes of the institutions themselves and of the nature of community life then.
Meanings emerge from the intensely personal, human exchanges between ordinary
people and the justices of Missouri’s neighborhood courts.
Scholars have displayed little interest in constructing histories of the thousands of
neighborhood courts that existed at one time or another in colonial and early America.
This is particularly true in post-Revolutionary studies. In the absence of information
regarding lower courts, law-and-society scholar Lawrence Friedman writes that, “[t]he
“further down one goes in the pyramid of courts, state or federal, the thinner the trickle of
research. Yet it is certain that the everyday courts, churning out thousands of decisions
on questions of debt, family affairs, and title to land, were of vital importance to society .
. . the role and function of lower-court judges probably changed greatly between 1790
and 1840; and there were probably great differences between East, West, and South. But
little about form, function, and staff is definitely known.”2
2 Friedman, A History of American Law, (New York: Simon & Schuster, Inc., 1985), 139.
5
Probably a larger body of work would be in place if not for minor courts’
collective poor reputation as judicial bodies and a powerful scholarly tradition to the
contrary. Both legal scholars and the public dismiss lower (local) courts as literally
inferior to high courts and high court judges. Even studies of lower courts use dismissive
language in discussing them. One 1949 PhD dissertation on the evolution of Missouri’s
early trial courts asserts that circuit courts decided “[t]he most important cases” . . . small
causes remained for the local courts to adjudicate.”3 A view of local courts as
incompetent comes out of entrenched views regarding the competence and character of
justices of the peace. Roscoe Pound opines that American probate courts were poorly
regarded in part because they had amateur, lay judges,4 and Willard Hurst believes that
lower court judges were not thought to have the same high morals and professional skills
as judges on the higher courts.5 While such criticisms may have possessed merit with
respect to an individual judge or court, they were taken to apply broadly to the office of
justice of the peace. Unfortunately, people looked no further. Even scholars like Pound
and Hurst, though they keep a distance from negative commentary, are incurious
concerning the role and functions of minor courts.
Not only have courts of the neighborhood been viewed as incompetently run and
engaged in trivia, as subjects of historical interest they meet competition from other fields
of legal history. These include more traditional topics, such as family law, the rules
3 James Griffith Harris, “the Background and Development of Early Missouri Trial Courts,” 108,
178.
4 Roscoe Pound, Organization of Courts (Boston: Little, Brown and Company, 1940), 5, 22, 140,
156, 159.
5 James Willard Hurst, The Growth of American Law, The Law Makers (Boston: Little, Brown and
Company, 1950), v. 87-88, 99.
6
governing the market place, or questions about federalism. Public law and the role of the
federal supreme court continue to be primary subjects, along with civil rights, including
the history of slavery before the Civil War, and the 1960s’ struggle for restoration of
rights to blacks; women, American Indians, and other groups. More recently scholars
have begun to explore colonial legal history and legal history as culture, in part as
culture, in part as a reaction against a long history of institutional and doctrinal
preoccupations. Certainly, writers of American legal history in the past few decades have
emphasized social rather than institutional histories of law. Put differently, recent
accounts of early American legal developments have reflected interest in local and
personal questions—the law of domestic relations, custody, the law of indenture, slavery,
and related private property questions.6
Graduate students have produced much of the literature about judicial bodies
managed by justices of the peace within the British Empire. Unfortunately, because in
the main their work is unpublished, it also goes unnoticed.7 Legal historians have access
6 See Peter Charles Hoffer, Law and People in Colonial America (Baltimore: The Johns Hopkins
University Press, 1992) for transformations in British law in colonial America, with references to inferior
courts; Roger Thompson, Watertown, Massachusetts 1630-1680 (Amherst: University of Massachusetts
Press, 2001) for a discussion of community disagreements and their resolution; (David Konig, Law &
Society in Early Massachusetts: Essex County, 1629-1692 (Chapel Hill: The University of North Carolina
Press, 1979), 65, 88, 108, for law as replacing religion in uniting and integrating communities as
communal feeling and the churches lost their power.
7 See, as examples Charles Austin Beard, “The Office of Justice of the Peace in England in its
Origin and Development” (Ph.D. diss., Columbia University, 1904); Paul Franklin Douglass, “The Justice
of the Peace Courts of Hamilton County, Ohio” (Ph.D. diss., University of Cincinnati, 1931; Sharon Jean
Bice Engelman, “Patronage and Power: A Social Study of the Justice of the Peace in Late Medieval Essex”
(Ph.D. diss., Brown University, 1977); William Louis Gaines, “The Justice of the Peace in England, 1835-
1888: Chapters in English Local Government” (Ph.D. diss., Yale University, 1951); Egbert R. Isbell, “The
English Justice of the Peace and the Central Government in the Reign of James I” (Ph.D. diss., University
of Michigan, 1934); John Richard Knipe, “the Justice of the Peace in Yorkshire, 1820-1914, A Social
Study” (Ph.D. diss., the University of Wisconsin-Madison, 1970); Paul R. Murray, “The Justice of the
Peace in California” (Ph.D. diss., Stanford University, 1953); Isham Gregory Newton, “The Minor
7
to two very early works, both technical guides: George Webb’s Justice of the Peace and
Richard Burn’s The Justice of the Peace and Parish Officer appeared in 1736 and 1764
respectively; the latter, notes Holly Brewer, was widely read by contemporaries in the
American colonies.8
Though few works devoted exclusively to inferior courts are few, the literature
does not lack references to judicial entities serving local and county jurisdictions.
Scholars have viewed law and the judiciary through a variety of lenses. Some view
minor courts against a backdrop of politics and sites of official power within government,
while others look at judicial law in terms of culture and the relationship between inferior
courts and change over time. Historians also examine the power of minor courts to
influence societies. A few analyze courts of the neighborhood as institutions. The sole
monograph to deal with justices of the peace of the far west discusses early local courts in
Washington Territory as judicial institutions within communities. Finally, a fairly recent
body of literature on the western frontier has begun to emerge, most of which examines
crime and violence, with particular attention to legal conflict resolution, informal
methods of controlling violence, crowds, and economic implications of crime-filled
environments.
Judiciary in North Carolina, With Special Emphasis on the Justice of the Peace” (Ph.D. diss., University of
Pennsylvania, 1956); Julius Long Stern, “His Brother’s Keeper, the Buckinghamshire Justice of the Peace,
1678-1689” (Ph.D. diss., Princeton University, 1960); Dennis Lambert Toombs, “An Empirical Study of
Texas Justices of the Peace” (Ph.D. diss., University of Houston, 1982).
8 Holly Brewer, “Age of Reason? Children, Testimony, and Consent in Early America,” in The
Many Legalities of Early America, Christopher L. Tomlins and Bruce H. Mann, eds. (Chapel Hill: The
University of North Carolina Press, 2001), 299, 311.
8
In colonial studies, the landscape is much more varied, with scholars discovering
ways in which New England colonists coped with fundamental social and political
differences between England and their new environments. Kenneth Lockridge and
Sumner Chilten Powell have explored changing sites of law and the importance of such
changes to community life. Lockridge has examined village life in Dedham,
Massachusetts between 1636 and 1686 for signs of altered patterns of daily patterns and
differences in ideas about law and governance. He observes that, in the beginning, daily
living was simple, unitary, and organic. An annually-elected board of selectmen ran the
town, using undifferentiated judicial, executive, and legislative functions. Though the
town meeting in theory had sufficient power to exercise considerable control over the
board, it did not do so in the early years of the town’s existence. Town meetings
exercised much more power during the late 1690s and later, as the “great men” of the
town left or died, taking with them the founding values of town life; “voluntary unity”
failed as the population increased and became more diverse, and calls to segment the
town into more, smaller towns became urgent.9 Sumner Chilton Powell similarly
concludes that disharmony arose in Sudbury, Massachusetts, as the population increased
and town officials refused to allow new town foundations.10 Harmony, then, was the rule
in these and other early communities (mainly in New England) due to homogenous
populations, the essential simplicity of daily routines, and sufficient living space for all.
9 Sumner Chilton Powell, Puritan Village, The Formation of a New England Town (Middleton,
Wesleyan University Press, 1963), 118-126; Kenneth Lockridge, A New England Town, the First Hundred
Years—Dedham, Massachusetts, 1636-1737 (New York: W. W. Norton and Company, Inc., 1970) 84-85,
174-175.
10 Powell, Puritan Village, 100, 108, 118-126.
9
Problems set in, however, as populations grew and became more diverse, and social and
economic relations more complex.
Other legal histories of the colonial era deal with law as a depository of custom
and tradition. These works argue that tradition drove early law in the sense of
representing early settlers’ moral values and customary practices. They point out that,
over time, communities moved away from custom toward formal, written law. David
Allen compares regional variations in English life with American New England
experiences and finds that early New England communities imitated those of the mother
country in making local law that consisted mostly of remembered custom. Towns later
developed “diverse local institutions,” but these lost ground, as acts of county courts,
which represented the colony, linked local communities more closely with central
authority.11 According to Bruce Mann, both customary values and conceptions of
community shaped legal environments. There, “law [became] less identified with
community and more with society,” as townspeople came to prefer a formal written legal
system to replace the former law based on custom. Mann sees critical links between
changes in law and the dynamics of social relations, functions of community, and the
tendency of legal disputes to send “tremors throughout the spectrum of the parties’
relations.”12
11 David Allen, In English Ways: The Movement of Societies and the Transferal of English Local
Law and Custom to Massachusetts Bay in the Seventeenth Century, xv, 209.
12 Bruce Mann, Neighbors and Strangers: Law and Community in Early Connecticut, Studies in
Legal History, White, G. Edward, ed., 4.
10
None of the colonial studies cited above elaborate to any significant degree on
distinctions between neighborhood courts and higher courts. The crucial difference lies,
rather, between informal and formal law, with the latter eventually forcing out the former.
Those historians thus emphasize change over preservation. Peter Hoffer, Ralph
Wooster, and Timothy Breen, however, argue that continuity, not change, characterized
delivery of justice in early communities. In his introductory essay to a collection of
primary documents taken from colonial judicial records of Richmond County, Virginia, 13
Peter Hoffer notes that courts of justices of the peace acted as effective instruments for
the delivery of justice, earning strong local support which enabled them to operate in
highly independent fashion and maintain local control of judicial law. Wooster has
contributed an important study of antebellum judicial systems in states of the lower south
in which he concludes that inferior courts in Florida, Texas, and other southern states
held substantial authority. Local judicial entities were extremely popular, with the
“number of justices of the peace per county . . . steadily increasing in the nineteenth
century, especially in Alabama.”14 Breen argues that “colonial historians have over
estimated the importance of change in pre-Revolutionary America. They are often too
eager to hustle the colonists down the road toward modernization. As cultural
anthropologists have shown, institutional forms can change in traditional societies, often
13 Ed. with an introduction, William B. Scott, trans., Criminal Proceedings in Colonial Virginia,
Records of Fines, Examination of Criminals, Trails of Slaves, etc. from March 1710 [1711] to 1754,
American Legal Records vol. 10 (Athens, GA: the University of Georgia Press, 1984).
14 Ralph Wooster, The People in Power, Courthouse and Statehouse in the Lower South 1850-1860
(Knoxville: the University of Tennessee Press, 1969), 67, 81.
11
quite dramatically, without altering the value system upon which these institutions are
based.” Says Breen,
migrants succeeded in constructing a physical embodiment of their
commitment to localism. Each community built a meetinghouse that
served both civil and ecclesiastical functions. It provided a central
place where men and women regularly assembled . . . the very act of
meeting together became in itself a ritual act that reinforced the
sense of community. The buildings took on a symbolic significance
. . . that is difficult for us to appreciate fully today. In early
Virginia, where buildings often collapsed from neglect within a
generation and where the planters dispersed along the rivers, there
was no visible symbol of community analogous to the New England
meetinghouse. In the eighteenth century, however, county
courthouses began to serve some of the same functions. 15
Rather than viewing courts as agents or recipients of change, historians such as
Hendrik Hartog and Robert Ireland have dealt with justices of the peace courts as
institutions. In his monograph on eighteenth century county courts in Massachusetts,
Hartog faults studies that scrutinize their powers and attributes but ignore their
institutional identity. None, he claims “exhibit much concern for the integrity of an
institution.” Hartog believes that what is needed is a body of work on local legal entities
as sites of official authority and power. “[W]e need to look to the business of such a
court as a whole, to the interrelationships of the issues that came before it, and to the
functional integration of its responses to those issues. We need, in effect, to think of a
sessions court as a distinct institution located in a particular community.16 John Wunder
has approached Hartog’s view in his study of local justice in Washington Territory in
15 T. H. Breen, Puritans and Adventurers: Change and Persistence in Early America (New York:
Oxford University Press, 1980), xvi, 79.
16 Hendrik Hartog, “The Public Law of a County Court; Judicial Government in Eighteenth Century
Massachusetts,” in American Journal of Legal History vol. 20, no. 4 (October 1976): 282-329.
12
which he discusses jurisdictional powers and practices of Washington’s early courts.
Wunder concludes that justices of the peace in the American northwest played a critical
role “in the creation and development of a new American society . . . [i]f a justice wanted
to influence community behavior or restrict some activity, he had the legal power to
achieve this end.”17 Robert Ireland provided an institutional study of the county courts of
antebellum Kentucky; however, while other scholars claim popular support for courts run
by justices of the peace, Ireland finds that constituents were highly dissatisfied with the
county courts of antebellum Kentucky, to the point where they petitioned the state
legislature with complaints about them. Courts decided cases in “inconsistent” fashion
and mishandled their responsibilities in internal improvements and taxation. Moreover,
they were overly involved in partisan politics, to the point where “[e]ntrenched factions
in county courts seemed to stress loyalty over performance.”18
Works dealing with inferior courts in western places focus their peacekeeping
function. A new work by Mark Ellis on developments in the legal culture of the Great
Plains takes account of the role of justices of the peace between 1867 and 1910. He finds
an important role for justices’ courts, which delivered “community-based justice” when
neighbors quarreled. Ellis comments that, despite their limited civil and criminal
authority, they effectively resolved everyday cases and were both accessible and familiar
to settlers.19 Robert Dykstra has little to say directly concerning minor courts in his 1968
17 John Wunder, Inferior Courts, Superior Justice: A History of Justices of the Peace on the
Northwest Frontier, 1853-1889 (Westport: Greenwood Press, 1979), 121, 175-176.
18 John Ireland, The County Courts in Antebellum Kentucky (Lexington: University of Kentucky
Press, 1972), 34, 61, 76-77, 158.
19 Mark Ellis, Law and Order in Buffalo Bill’s Country: Legal Culture and Community on the Great
Plains, 1867-1910, Law in the American West, ed. John R. Wunder (Lincoln: University of Nevada Press,
2007), 148.
13
monograph on frontier cattle towns, but his arguments bear on colonialists’ perceptions
of links between harmonious relations and homogeneity in communities. In the five
cattle towns that Dykstra studied, the appearance of harmony applied only to agreement
on major issues. These towns, he maintains, were not “simple social unit[s],” despite
appearances. Agreement on important issues masked conflict on other subjects. Indeed,
“each community was a truly pluralistic society.” Dykstra cautions the local historian not
to fall into the trap that sees local communities as “cohesive, sociologically simple
communities swept forward by the dynamics of growth.”20
Inferior courts in the eighteenth and nineteenth centuries utilized the
neighborhood’s ideas about fairness and justice. Accordingly, the scholar accustomed to
thinking of law as a formal, technical enterprise sponsored by the state, may not approach
America’s minor courts because their study does not seem to promise the traditional
rewards earned in researching state and federal appeals courts, bodies more likely than
local institutions to rely upon formal legal pronouncements. While there remains much
to be gained through investigation of important cases issued by the appeals courts, their
histories and the personalities associated with them, appeals courts supply but a portion
of the narrative. Legal history that takes on the huge number of an earlier America’s
minor courts can offer us glimpses into the ways in which law works with the
imagination to produce ways of living, of getting along together, of advancing social and
economic relationships on the ground. For American legal history to be complete, we
need to produce the histories of local courts that once served thousands of communities in
the United States.
20 Robert Dykstra, The Cattle Towns (Lincoln: University of Nebraska Press, 1968), 364-365.
14
A concept of law that is organic, changing, and culture-filled, is difficult to
maintain in the face of an account of law that defines it strictly as a technical discipline
which is properly managed by lawyers and legal specialists writing in the field. The law
that operates in everyday life draws from beliefs; customs; individual and collective
moral judgments; social practices; patterns in domestic life; written rules; and unwritten
rules, which may be so deeply embedded in common experience as to go unperceived as
rules. One of the assumptions of this study is that law from below can engage legal
systems; in other words, a law is not real in one critical sense until it works its way
somehow into a human life. This ought to suggest the wisdom of examining linkages
between laws on the books and how people relate to each other in daily life if we wish to
better understand the sources of law.
Certain ancient traditions, such as obedience to one’s parents or protection of
those who cannot care for themselves, may appear less like law and more like unthinking
habits. Yet obedience to parents belongs to very old ideas of family governance, and
most societies have considered care of the weak and dependent a communal
responsibility. One may refuse to obey the rules parents establish at peril, and a society
that behaves callously toward its dependent members is thought to be uncivilized.
Laura Nader notes that “research problems of law in society [are hampered by the
fact that] law is conceived of . . . being a system independent of society and culture . . .
[I]n the case of legal scholars in particular, their ‘professionalism’ seems to encourage
such a position.” So hostile is the environment that, at a recent meeting of the Law and
15
Society Association, a suggestion that the Association’s name “be changed to “Law in
Society” was met by a sharp retort: ‘It is law and society, and not law in society.’ ”21
Nader’s argument that legal research is hampered by a technical view of law
touches upon a major difficulty in studying law’s operations in earlier societies. Legal
records invariably connect law with human beings; in fact, law makes no sense without
human beings. Animosity toward a culture-filled idea of law is more understandable if
once considers its possible roots. While they may not say so, some scholars who reject
the study of law as lived by human beings may fear that removing the state from law
threatens a view of the state as the giver and embodiment of law. If the state is not the
rightful, unique maker of law, its sovereignty, not to mention its raison d’être, is called
into question. Further, where does one go to affirm the legitimacy of law? The state may
suffer serious damage or even collapse if its authority as the only legitimate source of law
is undercut by a competing view. The state, however, is bolstered, not weakened, by a
claim that law is culture-filled. Rather than silencing the voice of the state,
comprehension of the interactive and constitutive qualities of law allows for fullness and
flexibility. Missouri’s neighborhood courts were effective over course of the nineteenth
century for many reasons, one being the supple nature of law as employed by them.
The movement known as law and society has spawned a literature and
methodology of its own, based partially on anthropological practices.
Legal anthropology emerged in the first decades of the twentieth
century, as scholars in Europe, Great Britain, and the United Stats
turned to the customary law of the indigenous societies of Africa . . .
[and]a research emphasis on local jurisdictions, customary law, the
role of the chief and counselors in mediation and adjudication,
21 Laura Nader, Law in Culture and Society (Berkeley: University of California Press, 1969), 8.
16
disputes and their outcomes, and the relationship of dispute
settlement to the broader fabric of village life.22
A law project under Laura Nader’s leadership “sought new possibilities close to
the ground, among the actual disputes and dispute-resolution practices at the grassroots.
The empirical emphasis of these and other studies enabled scholars to appreciate the
relationship between local “legal” practices (that might or might not have had the status
of official law), local social structures, and the dynamics of local political interests.”23
Legal theorists and historians have depicted law’s cultural content in various
ways. For Paul Kahn, “the rule of law is neither a matter of revealed truth nor of natural
order. It is a way of organizing a society under a set of beliefs that are constitutive of the
identity of the community and of its individual members. It is a way of understanding the
unity of the community through time and self.”24 Kahn argues for “Law’s power . . . to
present the world one way rather than another.”25 Larry Kramer claims that justifications
of state power, such as the divine right of kings, “or telling themselves that ‘the people’
have a voice . . . are interpretations: strategies to explain the world; ways to make sense
of our traditions and customs, our practices, and our day-to-day experience.”26 Oliver
Wendell Holmes is famous for the argument that law and morality are not the same; law
and acceptance is more like it. “I once heard the late Professor Agassiz say that a
22 Carol J. Greenhouse, Barbara Yngvesson, and David M. Engel, Law and Community in Three
American Towns (Ithaca: Cornell University Press, 1994), 5-6.
23 Ibid.
24 Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: The
University of Chicago Press, 1999), 6.
25 Ibid., 135.
26 Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford:
Oxford University Press, 2004), 205.
17
German population would rise if you added two cents to the price of a glass of beer. A
statute in such a case would be empty words, not because it was wrong, but because it
could not be enforced.”27 Holmes believed, too, that law was shaped by more than bare
logic; he urged scholars to look to tradition to find the content of particular rules of law,
to seek the “social end” that a rule of law pursues.28 Law-and-society scholar Kermit
Hall once argued that the critical legal scholar (Horwitz) considered law to be nothing but
politics, the chosen tool of the capitalist class.29 And in a review of Morton Horwitz’ The
Transformation of American Law: 1870-1960: The Crisis of Legal Orthodoxy, Daniel
Ernst refers to John Commons’ understanding of law as an “organic product of social
exchanges” that result in customs that “even the most powerful state cannot override.”30
Taken collectively, these opinions understand law as influencing and emerging out of
human interactions.
But a culture-oriented concept of law and legal ‘doings’ runs the danger of
drowning in vagueness.31 Karl Llewellyn begs scholars to keep human beings in mind
when writing about law, noting that “ ‘Law’ without effect approaches zero in its
27 Oliver Wendell Holmes, “The Path of the Law,” Harvard Law Review vol. x, no.8 (March 25,
1897): 457-478.
28 Ibid.
29 Kermit Hall, The Magic Mirror: Law in American History (New York: Oxford University Press,
1989), 7.
30 Daniel Ernst, “The Critical Tradition in the Writing of American Legal History,” Yale Law
Journal vol. 102, no. 4 (January 1993): 1019-1076.
31 This study defines culture more or less in the terms articulated in Law and Community, cited
earlier. In its introduction, the book’s authors discuss legal anthropology’s concern for the “relationship of
legal processes to cultural norms and, in particular, the multiple sources of order in society—law, custom,
religion, myth, and so forth.” They point to a conviction among anthropologists during the 1970s and
1980s that the “reality of law is profoundly local.” Finally, they address their research to “ways in which
law engages systems of local meaning.” Greenhouse, Yngvesson, and Engel, Law and Community, 3, 9-
10.
18
meaning . . . there can be no broad talk of ‘law’ or of ‘the community’; . . . it is a question
of reaching the particular part of the community relevant to some particular part of law.”
Though the public spaces where law often resides are real enough, the particularity of law
and community Llewellyn points to is located in life’s smaller spaces where individuals
and families live, work, form institutions, and experience human life in all of its immense
detail. Indeed, law’s genius lies in specificity, in the relation between the rule and the
human being who must live with it.
A view that divorces law from its practice and sources carries negative
implications for the study of America’s neighborhood courts. Equal damage may be
produced by doubts that states’ judicial systems have historical relevance. Lawyer-
historian Stuart Banner argues that no one writes state legal histories because there is not
much to write about—states’ judicial systems were more or less alike. In Banner’s
words, “[a]n American state in the nineteenth century was simply not a meaningful unit
in the development of the law. . . . Individual states bore very few state-specific legal
characteristics.” 32 To judge from the availability of information on state systems,
Banner’s opinion is shared by others.
Judicial arrangements established by American state legislatures situate lower
courts structurally with respect to other judicial bodies, while powers held by lower
courts describe their legal obligations to nineteenth-century communities. These data
vary from state to state and over time. Kermit Hall has argued that states copied from
each other far less than is assumed; further, that data on states’ courts has been “largely
32 Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750-1860, Legal History of
North America, gen. ed. Gordon Morris Bakken (Norman: University of Oklahoma Press, 2000), 133.
19
ignored” by scholars. 33 If state judicial systems appear alike, it is because only the
broad outline is examined and because alterations mandated by state legislatures over
time are ignored.
Michigan’s 1835 constitutional convention established a high court, court of
chancery,34 county probate courts, and justice of the peace courts in townships. The
elective justice of the peace was a powerful individual, with authority to hear civil actions
of less then one hundred dollars, shut down illegal gambling dens, hear cases of trespass
and traffic violations, register stray animals, and more. The constitution referred to
“associate judges of circuit courts,” but did not explicitly create them.35
Ohio’s system, created in 1802, initially included a state supreme court, county
courts of common pleas with exclusive probate jurisdiction, and justices of the peace.
Common pleas judges held original equity jurisdiction where the sum did not exceed
$500 as well as original jurisdiction over litigation dealing with land title and other civil
disputes involving sums no greater than $100. The state was divided into three circuits,
to be operated by judges of the common pleas courts.36
33 See Hall, “The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected
Judiciary, 1846-1860,” in The Historian, vol. 45, no. 3 (May 1983): 337-354. “Progressive Reform and the
Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850-1920,”
in American Bar Foundation Research Journal, vol. 1984, no. 2 (Spring 1984): 345-369.
It is true that states of the nineteenth century established legal systems with common features,
including adoption of the common law and notion regarding politics and rights. When Missouri joined the
Union in 1821, it created a judicial system comparable to those of other states. Even following major
reworking of original systems, Missouri and other nineteenth-century states maintained systems that shared
important elements. However, real distinctions also appear.
34 Only nine states created separate equity courts, and among states taken from the Northwest
Territory, Michigan alone established a court of chancery. Bonnie A. Speck, unpublished paper, 2002.
. 35 Michigan Constitution (1835), art. vi, Michigan, Revised Statutes (1838), part 3, title 1, c. 5.
36 Ohio Constitution (1802); Ohio, An act, directing the mode of proceeding in the courts of
chancery, Acts (1804), sec. 1.
20
Judicial systems in Ohio and Michigan shared specific characteristics. First,
courts were arranged hierarchically, with jurisdictional authority linked to a court’s
structural positioning. Jurisdictional awards reflected differences in categories of subject
matter and relative weights. Second, Ohio, Michigan, and Missouri created powerful
local structures that resolved a huge volume and variety of disputes throughout the
nineteenth century. Also, the justice of the peace not only served as a judge but acted as
an investigative officer, a function now served by police officers and detectives. Third,
not one of these judicial systems escaped aggressive remodeling by state legislators. In
each instance, courts endured legislative renovations to an almost obscene degree.
Michigan remade its judicial system within ten years, “render[ing] the 1835
system virtually unrecognizable.” Between 1835 and 1846, the sole substantive change
was to add a criminal court for Wayne County. But 1846 revisions went much further.
In a March 1846 speech, one Michigan lawmaker declared “that the people require a
liberal reform—that they shall have a court at home which shall be their own court, and
that they may elect their own judges.”37 By year’s end, Michigan lawmakers had
dismantled the court of chancery, with equity jurisdiction transferred to the four new
circuit courts run by judges of the supreme court. Michigan at the same time created
county courts, which effectively replaced circuit courts in civil actions at law. These were
courts of record with jurisdiction over civil matters not exceeding $500, except for
ejectments, probate, and causes under the exclusive jurisdiction of the justice of the
peace. In addition, county courts were empowered to hear appeals in civil actions from
justices’ courts and to conduct proceedings in mortgage foreclosures. The revised
37 Detroit Free Press, 16 March 1846.
21
judicial code extended the authority of the justice of the peace to sums not exceeding
$250 in civil matters; in criminal matters, justices received authority to hear larceny
charges not to exceed $25; assault and battery of a private nature and not in connection
with another offense; damaging or destroying road signage; injuring or killing farm
animals where damages did not exceed $25; and willful trespass with intent to remove
property. These were in addition to already-existing powers of justices of the peace.38
In Ohio, the state court system was left untouched between courts 1802 and 1851.
However, the constitutional convention of 1850-1851 resulted in a number of changes.
The new plan featured district courts under the authority of judges of the state’s high
court and common pleas courts. Common pleas courts, meanwhile, were organized into a
system of nine districts. Common pleas lost probate jurisdiction to new probate courts,
each of which was headed by a single judge, who was to be elected. Common pleas
judges and justices of the peace also became elective offices. Judicial authority was
further flattened in 1853 in a measure that permitted county probate judges to issue the
writ of habeas corpus.39
In Ohio, Michigan, and Missouri, hierarchy, categorization in law, and the
traditional offices of judge, clerk and other offices of the court were common, as was
statutory assignment of jurisdiction, election of lower court judges, and adherence to the
ancient heritage of English common law and practices of Anglo-American judges. It was
common for states to multiply courts in newly-created systems and to leave jurisdiction
38 Michigan, Revised Statutes (1846), ch. 89, sec. 9, ch. 92, sections 1,3; ch. 94, sections 1-8.
39 Ohio, Defining the Jurisdiction and regulating the Practice of Probate Courts, Statutes (1853), ch.
1, sec. 3, art. 3.
22
muddied, with probate and review powers particularly “unsystematic and confused,”
according to Pound.40 In fact, states were prepared to take aggressive action to alter
nineteenth-century judicial systems. States’ practices may, indeed, have been
unsystematic, but we might understand them alternatively as experiments—experiments
meant to deal with population growth and diversity of interests. Lop-sided court systems
may be viewed as attempts to try new institutions and institutional arrangements, and at
the same time manage nineteenth-century state budgets, some of which foundered
severely at one time or another. Variations between judicial systems described are clear,
did not occur in a vacuum, and therefore were not byproducts of a common or shared
professional legal culture, assuming one existed. In Missouri, changes to the state’s
judicial system were made frequently.
Though the evolution of Missouri’s judicial arrangements is not the subject of this
study, it should be noted that most structural change bypassed the lower courts until late
in the nineteenth century. Even then, superficial change shielded from view the
persistence of tradition in the neighborhood.
Despite strikes against the view binding law to culture and indifference to states’
experiments with judicial structures, it remains possible to write legal histories that
incorporate larger notions of law existing within formal systems. Morris Arnold has
published a major judicial history concerning his home state’s judiciary, with attention to
the role of informal understandings of law, showing that more nuanced legal histories are
40 Roscoe Pound, Organization of Courts, 5, 22. States generally granted probate courts the
jurisdictional authority that had been divided in England between courts of law and equity, and church
courts. For example, probate courts often handled petty criminal and civil cases, although “this meant an
unfortunate loss in dignity,” and tended to result in appeals to higher courts. Willard Hurst, The Growth of
American Law, 96.
23
possible. Unequal Laws unto a Savage Race: European Legal Traditions in Arkansas,
1686-1836 deals with Upper Louisiana’s legal culture during the period between
European occupation and to U.S. statehood, concluding that American common law and
custom triumphed over French and Spanish civil law partially because the clientele for
the European legal regimes disappeared following American acquisition of the region and
new immigrants’ reliance on “simply regulat[ing] their lives by whatever light nature
could provide them.”41
Local justice in this country possesses an exceedingly personal and individual
nature. In acknowledging custom as historically legitimate in the American settlement of
Upper Louisiana (Missouri), Arnold explains how, in the absence of any formal system
of law, Missouri pioneers made custom and tradition work in early neighborhoods.
The bulk of subject matter in this study is concentrated in the period between
Missouri statehood and the end of the Civil War in 1865. The discussion includes some
post-war history in order to convey a sense of the Missouri that evolved out of the war
and unavoidable change and to suggest how extra-legal events challenged neighborhood
justice and governance.
41 Morris Arnold, Unequal Laws unto a Savage Race: European Legal Traditions in Arkansas, 1636-
1836 (Fayetteville, Arkansas: University of Arkansas Press, 1985), 112. Stuart Banner discusses custom
and common sense as regulating daily life in early Missouri but dismisses them on the ground that they are
not ‘real’ law and in any event fell before the imposition of a formal system of law with which they could
not compete following the Louisiana Purchase. Banner further presses a view that the Missouri legal
system itself was produced by lawyers and reflected a national professional ‘lawyerly’ culture biased in
favor of written law. In other words, Missouri law was a formal technical expression of the will of the
state. The informal law utilized by people during Spanish rule came from “tradition . . . norms derived
from unwritten sources . . . a . . . general sense of justice . . . [and] custom and a generally shared sense of
fairness as well as the written law.” However, “our legal vocabulary lacked, and still lacks . . . a word that
accurately describes these norms. One can call them ‘customs’ or ‘traditions’ but because custom and
tradition in our legal system are elevated to the status of law only in narrow, well-defined situations, those
names do not adequately describe their role in Upper Louisiana.” When American judges appeared after
1803, they spoke of the earlier system of unrecorded law as lacking in law “altogether.” Stuart Banner,
Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750-1860, 37, 52, 93.
24
Chapter II, “Stuctures of Local Justice,” deals with local structures of justice
against a backdrop of relationships with other public entities within Missouri state
government. It discusses independence and autonomy as characteristic of both justices’
and county courts and the role of local support generated within Missouri communities as
an important factor in producing the relative freedom with which those courts operated.
In addition, it deals with statutory powers, operating methods and structures of justices’
and county courts in terms of how the local judiciary maintained its influence. The
chapter describes other bodies within the state judicial system, problems with special
local courts, and a brief history of the justice of the peace as an English institution.
Special difficulties created by legislative interference with local judicial structures
receive particular emphasis.
Chapter III, “An Ordered Society,” explores how justices’ courts and county
courts of commissioners in Missouri helped to preserve social arrangements and
understandings necessary to antebellum Missouri society. It pays attention as well to
some post-war state policies that contained racist content. Local perceptions of some
people as ‘insiders’ and others as ‘outsiders’ found support in provisions in state law that
awarded enforcement to local judicial bodies. The chapter points out similarities between
black law and more general laws of dependency in Missouri, and discusses ways in
which social values were protected by county courts of commissioners in regulation of
economic activity. There is some discussion of the importance of the relationship
between court and community in legal practices.
25
Chapter IV, “The Economic Order,” explores the separate roles of township
justices’ courts and county courts in economic transactions and relationships. Justices’
courts civil dockets were overwhelmingly dominated by money disputes; debt litigation
is discussed within the context of debt as a feature of Missouri life. Significant attention
is paid to problems with availability of currency, circulation of assets, and idiosyncratic
practices of justices’ courts with relation to execution of judgments. The chapter explains
how county courts of commissioners functioned in the management and promotion of
county and local economies, with attention to jurisdictional in licensing and regulation of
business. Considerable discussion is devoted to internal improvements with respect to
how they were accomplished by county governments and affected local economies.
Chapter V, “Public Disorder and Violence,” emphasizes the primary role of the
justice of the peace in containing violence in early Missouri. It discusses the wide variety
in disorderly acts; causes of violence, criminal investigations, and the trying of criminal
misdemeanors. In addition, the chapter discusses the examining, or investigatory role of
justices’ courts in rural Missouri, a little-known and understood task of justices of the
peace and one which involved justices in the trying of felony offenses. The chapter
emphasizes the justice of the peace as primary conservator of peace within townships and
explores the relative incapacity of justices to deal with mob and gang violence, as well as
how justices themselves in several well-known instances contributed to violent outcomes.
Chapter VI, “Conclusion,” summarizes the dissertation’s arguments. It also
discusses post-war conditions in Missouri, with emphasis on economic and social
changes in daily living patterns and the physical restoration of war-damaged lands. The
26
chapter presents questions for further study by scholars of local legal and judicial history,
including the role of lawyers in western places. It concludes that continuity and localism
were far more characteristic of places in nineteenth-century Missouri than change and
modernity.
27
CHAPTER II
A FRAMEWORK FOR JUSTICE
“It is obviously beyond the scope of this work to digest and explain the statutes
conferring powers and obligations upon the justices of the peace, for to do this would be
to write the social and economic history of the period.”42
Missouri’s constitution of 1820 established a supreme court, courts of chancery,
circuit courts, justices of the peace, and “such inferior tribunals as the general assembly
may, from time to time, ordain and establish.” The supreme court possessed a “general
superintending power” over all inferior courts of law, the circuit courts “a superintending
control” over the lower courts “and over justices of the peace in each county, in their
respective circuits.” The constitution also ordered the creation of “inferior” courts to
govern the counties and handle probate functions.43 Under its constitutional power to
establish inferior courts, the state legislature periodically turned to special local
legislation to create minor courts in local jurisdictions. The most prominent of these
were probate courts; however, probate administration caused ongoing disagreements
among lawmakers, who appeared unwilling to settle on any single jurisdictional site for
very long. The constitution failed to mention lawyers, but a statute of 1873 provided for
the election of prosecuting attorneys for the county courts.44 Private attorneys
42 Charles Austin Beard, The Office of the Justice of the Peace in England in its Origin and
Development, Studies in History, Economics, and Public Law, eds. Faculty of Political Science of
Columbia University, vol. 20, no. 1(Union, NJ: The Lawbook Exchange, Ltd., 2001), 59.
43 Missouri, Constitution (1820), art. 5, sec. 1.
44 Missouri, AN ACT to amend an act entitled “An act to abolish the offices of circuit and county
attorneys, and provide for the election of prosecuting attorney,” approved March 9, 1872, by adding a new
section thereto, to be denominated section five, Laws (1873).
28
represented clients in civil and criminal cases. Practicing lawyers began to immigrate to
Missouri very early in the nineteenth century but were not represented in great numbers
for a considerable period; meanwhile, other young men studied law and joined the bar in
jurisdictions within the state.
The lynchpin of the administration of justice throughout Missouri was the justice
of the peace. This study concerns township justices’ courts, county courts of
commissioners, and, to a lesser degree, special local courts. Justices’ courts and county
courts were permanent judicial bodies; indeed, justices of the peace were active in
Missouri during the territorial period.45 Special local courts also provided important
judicial services but differed in basic ways. First, they were not, and were not intended to
be permanent components of the state system; every special local court was created by an
act of the legislature, to suit a particular jurisdiction. Second, each special local court
enjoyed jurisdictional powers that were custom-fitted to it. Third, special local courts did
not cover the state but existed only where they had been fashioned by statute.
It is unlikely that very many justices of the peace practiced law, particularly
during early pioneering times. Local historical accounts take great care to identify
professional men in the community, presumably because a profession identified a
member of the elite. An early record of the first meeting of the Saline County Circuit
Court supplies names of the judge, prosecuting attorney, clerk, sheriff, and attorneys “in
attendance.” Members of the grand jury empanelled on that day were indicated
separately. They included Jacob Ish, who was appointed justice of the peace for
45 “The judicial power of the territory was vested in a superior court, inferior courts, and justices of
the peace.” Missouri, Preface, Revised Laws (1845), v.
29
Jefferson Township.46 Daniel Colgin provides another example of a non-lawyer who
became a justice of the peace. Colgin was a tailor who opened a tailor shop in the town
of St. Charles in 1812; from his shop he fashioned trousers and shirts from deer skins.
Colgin was elected a justice of the peace in 1814.47 William E. Alexander was a farmer
and stockman in Saline County. When he married Ann Short of Cape Girardeau County,
he settled there and was elected a justice of the peace.48 Thomas Shackelford, a
bricklayer, served as one of the first group of county justices for Saline County.49
These men were typical of holders of the office throughout Missouri’s counties.
The important qualities in a justice of the peace were knowledge of the neighborhood, a
reputation for sound personal character, swift response when called to act, and
commitment to law. They drew support not from an expert knowledge of the mysteries
of law, but from a belief that they could be trusted to rule fairly. Unlike the higher
courts, Missouri’s neighborhood courts did not deal with constitutional law, appeals, or
civil actions above a specific monetary limit. While township justices bore a significant
responsibility to rule on whether specific violations were felonies, they did not try them.
Local courts supplied practical, day-to-day judicial and administrative services. Justices’
courts tried ‘minor’ civil and criminal matters and investigated suspicious incidents.
County courts of commissioners governed counties, administered probate matters, and
tried cases of alleged insanity, money disputes that grew out of administration of an
46 N.a., History of Saline County, Missouri (St. Louis: Missouri Historical Society, 1881), chap. 6,
“Early Historical Events,” no page no., 194.
47 St. Charles Families,
http://homepages.rootsweb.com/~schmblss/home/History/PioneerFamilies/StCharles/Fami
48 Collage of Cape County, vol. 18, no. 4 (March 1999), 52.
49 Assoc. eds. John R. Hall, Mrs. J. C. Egan, Mr. and Mrs. William Elder, Saline County History
(n.p., Saline County Historical Society, n.d.), 368.
30
estate, and violations of county ordinances respecting required private donations of labor
by residents. Both justices’ courts and county courts were led by justices of the peace.
The office of justice of the peace in the United States originated in England in the
late thirteenth century.50 The primary reason for creating the office was to control
massive social disorder in England and encourage political and religious conformity. The
justice was commissioned to “hear and determine felonies and trespasses done against the
peace . . . and to inflict punishment reasonably according to law and reason and the
manner of the deed ”51
When English justices met as a group, they formed the county court, whose
governing responsibilities including enforcing commercial regulations and otherwise
supervising businesses; trying misdemeanor offenses; directing internal improvements;
overseeing care of the poor, children, and other dependent persons; enforcing sumptuary
laws and other class regulation; and policing religious practices. English justices
punished parties who violated commercial regulations, but they also implemented
policies intended to facilitate commercial activity. As Beard explained, “a great number”
of laws were intended not only to “control the processes of industry . . . . [but to]
encourage it.” Many measures were part of a general overhaul of trade and poor laws.
Indeed, “the whole industrial system was under the supervision of the justices of the
peace.”52 Justices supervised road construction and maintenance of bridges and public
buildings, including jails (which they also governed, utilizing rules that they had
50 Perhaps the best known is Charles Beard’s The Office of the Justice of the Peace in England.
Studies in History, Economics, and Public Law, ed. by Faculty of Political Science of Columbia
University, vol. xx, no. 1 (Union, New Jersey: The Lawbook Exchange, Ltd., 2001).
51 Source, quoted in Beard, Office, 40.
52 Ibid., 93-95, 98, 102, n. 1.
31
written).53 Justices not only controlled criminal offenses, but, under Henry VII, replaced
grand juries, which were thought to be corrupt; that law, however, was repealed Henry
VIII for reasons that are not clear; however, Beard conjectured that the original reason for
replacing the grand jury with the local justice may have had less to do with jury
corruption than with a royal desire to create “dependable royal servants.”54
General duties were laid out in a general commission, the most recent of which
appeared in 1590. This instrument authorized the justice to punish law breakers, supplied
instructions for the holding of sessions and ordered justices “to hear and determine in
cases of indictment, and commanded that an acting or “ancient justice of the peace”
administer the oath of office to the new office-holder. By his oath, the justice swore to
deliver equal justice to rich and poor, to enforce the laws without prejudice, to make
honest return of fines, and to exact no illegal fees.55
Core duties of the office of the English justice of the peace closely resembled
those of the justice in Missouri. In both England and the United States, justices of the
peace were generalists, each a jack-of-all-trades. Both were lay persons rather than legal
professionals (as we now use that term) and performed public service on a part-time
basis, not as a primary occupation. English and American justices worked within similar
market environments, according to Lewis Atherton, who notes that the “business
structures of Missouri’s towns in 1821 more nearly resembled that of medieval European
cities than of twentieth-century America. . . . As in the Middle Ages, regulations as to
53 Ibid., 9, 81, 83-85.
54 Ibid., 101-102.
55 Ibid., 141-143.
32
quality of workmanship and prices still applied in some fields of production.” Hendrik
Hartog confirms such similarities in a reference to Jon Teaford’s view of “the early
American city as a reflection of the regulatory traditions and practices of the medieval
English borough.”56
Justices of the peace at one time commonly operated thousands of local and
county courts in the United States. The office was more flexible than any other judicial
office associated with state judicial systems. In Tennessee, for example, “[t]he single
justice of the peace assumed constantly increasing jurisdiction in civil cases.” Duties
included administrative tasks and peacekeeping; in addition justices were authorized to
hear cases involving slave crimes, vagrancy and dueling (“unless the consequence of a
duel was murder”).57 John Wunder notes that the justice of the peace in the old
Northwest Territory “personally investigated disputes to obtain the truth” and played a
critical role “in the creation and development of a new American society . . . If a justice
wanted to influence community behavior or restrict some activity, he had the legal power
to achieve this end.”58
The first duty of the justice of the peace was conservation of peace in the
neighborhood. As primary peacemaker, he attempted to mend quarrels between
56 Lewis E. Atherton, “Missouri’s Society and Economy in 1821”; Hendrik Hartog, Public Property
and Private Power: The Corporation of the City of New York in American Law, 1730-1870 (Ithaca, NY:
Cornell University Press, 1983), 35.
57 James Griffith Harris, “The Background and Development of Early Missouri Trial Courts,”110,
116. Griffith traces court systems in England and its North American colonies, courts of the Northwest
Territory and those of the Southern frontier. He describes popular attitudes toward judges, courts, and the
law, including the common law.
58 John Wunder, Inferior Courts 1853-1889, 121.
33
neighbors before they could escalate into violence, which was possible, particularly if the
dispute lasted long enough for friends and family to become affected by it.59 But the
justice also acted as an early policeman. In order to determine the seriousness of an
assault, he might conduct a formal inquiry, and perhaps call upon witnesses or others,
members of the neighborhood. In the new settlements of the western frontier, no other
law enforcement official possessed equal authority to investigate and examine. Finally,
though justices’ courts shared certain jurisdictional powers with the circuit court, in
practice the former was usually the court of choice for filing smaller civil actions and
trying assaults that did not maim or kill. Not insignificantly, the justice of the peace was
also the highest ranking representative of government in the township.
Statutes described the duties and jurisdictional authority of the office of justice of
the peace in Missouri. Most major legislation concerning justices’ courts (those operated
by township justices of the peace) appeared in the 1820s, 1830s, and 1840s. A territorial
law of 1818, enacted during a period of heavy immigration and organization of new
counties,60 granted justices’ courts jurisdiction in property actions, including cases of
trespass and actions to recover damages to a person or to property of up to fifty dollars.
The law excluded cases which involved land titles, as the federal courts resolved all legal
disputes in which ownership of land and title formed a primary element in the litigation.
The measure also granted justices the right to subpoena witnesses anywhere within the
county. Either plaintiff or defendant could request a jury trial with a jury of twelve (if
59 Hattie Mabel Anderson, A Study in Frontier Democracy: The Social and Economic Basis of the
Rise of the Jackson Group in Missouri, 1815-1828, Part II, The Evolution of a Frontier Society in Missouri,
1815-1828 (Columbia, MO: University of Missouri Press, 1935), Reprinted from the Missouri Historical
Review (April 1938 to April 1940), 18.
60 Missouri, Preface, Revised Statutes of the State of Missouri (1845), vi.
34
either objected to a jury of six) when claims exceeded twenty dollars in damages or debt.
Upon judgment, the constable was to gather “six good and lawful men, householders of
his township” for the purpose of “try[ing] the right of property” named in the execution.
If the losing litigant appealed the ruling to the circuit court and that court affirmed it, the
loser paid additional fees in the form of “security or securities in the appeal bond or
bonds.”61 One clear purpose of the statute was to prevent frivolous appeals to circuit
courts; another, by implication, was to uphold the legitimacy of decisions of justices’
courts. The relationship between residents of the township and the local court was
reciprocal. When residents took part in the work of the justices’ court, they
acknowledged its authenticity and worth as a community institution. At the same time,
trials and examinations conducted by the local court put a stamp of dignity on human
relations. In cases where a litigant won a money judgment, the court relied upon the
judgment of local householders, all respectable members of the community, to lend
legitimacy to court-ordered executions.
In 1820, the first General Assembly of the new state of Missouri enacted new law
for the direction of justices of the peace. A general statute of 1820 described the
appointment of justices and how they were to be commissioned. It also instructed new
justices on taking the required oath, supplied tenure of office and reasons why a justice
might be removed, and articulated the “powers and duties of justices.” The right to issue
the writ of habeas corpus was not included among those powers, nor was it named in
61 Missouri, AN ACT supplementary to the several laws of this territory defining the powers and
duties of justices of the peace in matters of a civil nature and for other purposes, Acts, (1818), sections 1, 2,
5.
35
other law concerning the office of the justice of the peace enacted during that session.62
Indeed, during early statehood, Missouri legislators passed laws concerning jurisdictional
powers, only to repair them later as they learned of gaps and ambiguities. In the absence
of laws that addressed specific circumstances, justices called upon common sense and
their personal understanding of their duties.
The writ of habeas corpus was considered fundamental among the inhabitants of
England and the early United States. According to Article Two of the Laws of the
Northwest Territory, “The inhabitants of the said territory shall always be entitled to the
benefit of the writ of habeas corpus.”63 Yet nothing in the Law appears to grant justices
of the courts of quarter sessions, either in term or acting individually, authority to issue
the writ. This puzzling lapse in territorial law came home to roost shortly after Missouri
became a state.
The situation itself was not particularly novel.64 Edward Cassady, a resident of
Cape Girardeau, was imprisoned for a contempt of court of an unspecified nature in the
Cape Girardeau County Jail on April 13, 1823, for a period of forty-eight hours. The
order was delivered orally by Judge Thomas of the fourth judicial circuit. Cassady,
understandably distressed to find himself in jail, and ill with a high fever, contacted his
regular attorney, one G. Bird, who had been able to appear with him at court due to an
illness of his own, and asked what could be done to get him released. Bird saw his client
62 Missouri, An Act prescribing the powers and duties of Justices of the Peace, and the manner of
their appointment (Acts) 1820.
63 Ed. with introduction, Theodore Calvin Pease, The Laws of the Northwest Territory, 1788-1800,
Law Series, vol. 1 (n. p., Illinois State Historical Library, 1925).
64 All material concerning the case from this point on is taken from the Independent Patriot of
December 4, 1824. Bird’s first name is unknown and could not be supplied by the Missouri Bar
Association.
36
and agreed to act. He first consulted with the Clerk of the Court regarding a written order
of commitment and was told that the only record would appear in the minutes, as soon as
the order was entered. The sheriff informed Bird had jailed Cassady on the judge’s verbal
instructions. The Independent Patriot printed Mr. Bird’s account:
After having taken this trouble to satisfy myself what corse I ought
to pursue, I formed the opinion that Mr. Cassady was illegally
deprived of his liberty, and that my feelings as a man, and the duties
of my profession required that I should lend him my aid.” I thought
the sheriff had no authority to detain Mr. Cassady without a Warrant
of commitment, or at least a copy of the order by which he was
committed.
It was not at all clear that a contempt of court had been committed in the presence
of the judges, and the minutes stated no reason for the charge. Bird knew that the sheriff
had jailed Cassady on a verbal order. Unsure whether a justice of the peace possessed
legal authority to issue a writ of habeas corpus, he consulted a man who he called Mr.
Ranney (probably William Ranney, an attorney and first judge of the Cape Girardeau
Common Pleas Court),65 who thought that probably a justice did have the power and
encouraged him to see David Armour and Peter R. Garrett, both justices of the peace, to
serve the writ.
Bird applied for the writ to both of the justices and to Judge Thomas. Armour and
Garrett issued the requested writ. However, the circuit judge refused, put the justices
under recognizance for a seven day period before discharging them “on the ground of
ignorance of the Law;” found two other attorneys who had become involved in the case
guilty of contempt, and fined Bird fifty dollars.
65 Ellis and Ranney Family Papers, 1787-1948, R251, Western Historical Manuscript Collection,
University of Missouri-Rolla. Hereafter WHMC-UMR. Spellings as in original.
37
Cassady’s lawyer was adamant in his view that. “by this statute,” it was
“clearly to be inferred, that every citizen of this state is entitled to the Writ of Habeas
Corpus as a matter of right, where he is not detained by a good and sufficient warrant of
commitment.” Speaking of the ‘contempt’ which had earned him a fifty dollar fine, Bird
declared, “But my crime is for applying for that great writ of liberty (which is guaranteed
to every citizen of the state) for a man who was, in my opinion, entitled to it by the Laws
of the Land.”66
According to the newspaper, it had received news of the business in
correspondence from an unnamed member of the public, who urged that something be
done to correct the inadequacies in the law of contempts. The correspondent especially
resented what he regarded as high-handedness by the circuit judge.67 Beyond that, the
incident showcased the sheer ambiguity of portions of early Missouri law; even the
lawyers in the case were not confident that the law on habeas corpus allowed justices of
the peace to issue it. A justice of the peace might appear empowered to issue the writ, if
the alternative were to turn for relief to the high court that issued the order to jail the
defendant in the first place. Bird himself expressed no uncertainty in the matter, saying
“I believe also that however unwise it might be by Law to give the power to Justices of
the peace; yet that it was better that they should exercise it, than that any citizen of this
State should be deprived of his liberty without a particular specification of his offense.”68
The passive conduct displayed by the justices of the peace in the Cassady case seems to
66 Independent Patriot, December 4, 1824.
67 Ibid.
68 Ibid.
38
remove them as interested participants, but their role really was a central one, for their
lack of capacity to act produced the results.
One of the lessons of the Cassady case was that judicial powers needed to be
clearly articulated. A supplementary measure enacted in 1820 permitted justices of the
peace to question litigants and their witnesses under oath in debt actions based on note,
book account or bill assumpsit, and to “enter up judgment and issue executions.”
However, it limited justices’ jurisdiction to the boundaries of the township where the
justice resided.69 Where the measure of 1818 had permitted justices to subpoena
witnesses, the new law allowed the justice to obtain sworn testimony and designated the
categories of debt actions that might be tried in justices’ courts.
Additional law, passed in 1822, dealt with criminal jurisdiction. The law denoted
the right of justices’ courts to try defendants charged with misdemeanor crime—a right
without which justices would have been prevented from performing their sworn duty to
keep the peace. Justices were permitted to arrest and imprison persons who committed
“an affray, or shall unlawfully assault or threaten another in a menacing manner, or shall
strike another, within this state,” providing the assault did not “[extend] to life or limb.”
The defendant was entitled to a jury trial (with twelve jurors), and, if found guilty, could
be fined up to eighty dollars. If the defendant evaded arrest, the justice was to “diligently
enquire, “whether such breach of the peace [had] been made or committed, and thereof
shall hear and determine according to law.” A defendant could choose to be tried in
circuit court, but in that event the defendant was required to post bond or, alternatively,
wait in the county jail for the next term of the circuit court. Where a justice did not
69 Missouri, An Act supplementary to an act supplemental to the several laws defining the powers
and duties of Justices of the Peace, in matters of a civil nature, Acts (1820), sec. 1.
39
observe a breach of the peace himself, but received information on oath or affidavit
attesting that one had been committed and yet did not prosecute, he and other officials
involved would “be found in default of the due execution of this act.”70
The 1822 measure provided important information to be utilized justices. First, it
defined what constituted a criminal breach of the peace: striking another person or
showing a “menacing” manner. Second, it clarified procedure. The text essentially
removed practical barriers to prosecution of disorderly behavior. Finally, the measure
meant to support the justice of the peace. While it warned him of penalties for failing to
investigate suspicious incidents, it also supported his authority should he find himself
obligated to undertake an unpopular prosecution.
In other statutes of the 1822 session, justices were granted permission to try civil
actions “in final process, subpoenas for witnesses, and also in trials for forcible entry and
detainer only; but in mesne process, to wit: (summons, attachments and warrants)”,
jurisdiction was restricted to the township where the justice resided. The same law
permitted justices to marry people and to “receive and certify acknowledgements of
deeds and relinquishments of dower any where [sic] within their respective counties.71
Distinction between final and mesne process implicitly recognized an important
element of neighborhood law. Authority in final process was uncontroversial: a ruling
had been made; therefore, no harm could come from allowing any justice of the peace
within the county to exercise final powers. But intermediate process presented a risk in
that the outcome of the trial was as yet undetermined. In such situations, the measure
70 Missouri, AN ACT to allow Justices of the peace jurisdiction in cases of breaches of the peace,
upon certain conditions, Acts (1822), sections 1, 2, 3, 5.
71 Missouri, AN ACT to define the jurisdiction of justices of the peace in civil proceedings, Acts
(1822), sec. 1.
40
ensured that the justice who issued a search warrant or summons to appear would be the
township justice, who was assumed to possess both discretion and familiarity with the
neighborhood. Where a justice resided in a township other than where the case was being
tried, he might not have as much familiarity of relevant personal relationships or physical
ability of a potential witness to answer a summons, for example, as a justice of the
township—who, when he issued a search warrant or summons to appear would be
naming his neighbors.
In acknowledging deeds and relinquishments of dower, the justice of the peace
officially declared that the terms of the document were legally binding on the parties.
This “signing off” duty is regarded today as no more than a matter of form, probably
because it is performed in the United States by a notary public, whose office has far less
status than it carries in Europe and other parts of the world. In Missouri, justices went to
some trouble to ensure that, when a woman signed the relinquishment of dower, she had
not been pressured or threatened into the act.72 The statute performed an important
service for women in protecting an ancient property right of wives. At the same time it
acknowledged the justice’s intimate knowledge of persons, places, and events in the
neighborhood. The procedure employed by the Saline County Court in June, 1839 is
typical of the process. Samuel Batterton and his wife Susan Batterton appeared before
the justices on that day, and Mrs. Batterton’s identity was sworn to by two “credible
persons personally known to the court.”
72 Maryland, Virginia, and South Carolina employed similar procedures. In colonial times, all three
colonies passed laws that required married women to be examined privately. In South Carolina, in fact, a
wife was examined by the chief justice of the province. Marylynn Salmon, Women and the Law of
Property in Early America, Studies in Legal History, ed. G. Edward White (Chapel Hill, NC: University of
North Carolina Press, 1986), 18-19.
41
[Susan Batterton] being by the court first made fully acquainted with
the contents thereof on an examination separate & apart from her
said husband acknowledged & declared that she executed the said
Deed & Relinqished her Dower in the lands & tenements therein
mentioned voluntarily freely & without compulsion or undue
influence of her said husband.73
Procedure was a major concern in justices’ courts. Legislators gathering for the
Sixth General Assembly in Jefferson City in 1830 made few statutory changes in state
law that year, but they took steps to hasten executions on judgments in debt actions tried
in justices’ courts. The law did away with uncertainty over what constituted correct
procedure in justices’ courts, upholding informal practices; enforced the legitimacy of
orders issued by justices’ courts; and facilitated the search and attachment of property in
satisfaction of judgments.
[N]o writ of attachment, hereafter to be issued, either by a circuit
court or a justice of the peace, shall be dissolved, nor the property
taken thereon be restored, nor any garnishee discharged, nor any
bond by him given be cancelled, nor any rule entered against the
sheriff discharged, on account of any insufficiency of the original
affidavit, if the plaintiff, or some credible person for him, shall file a
legal and sufficient affidavit, in such time and manner, as the courts
or justices, respectively, shall in their discretion, direct; and in that
event, the cause shall proceed as if the original affidavit had been
sufficient.74
The measure blocked a strategy that might be used to obtain relief from justices’
courts’ rulings, in effect hobbling debtors’ efforts to prolong litigation and thus avoid
paying.75 In separate legislation, lawmakers ordered that, “when an appeal shall be taken
73 Minutes, Saline County Court, 1839-1846, 1862-1865, C18976, microfilm, Missouri State
Archives, Jefferson City, MO. Though in this case, the entire county court was involved, a single justice of
the peace could have approved the document.
74 Missouri, AN ACT supplementary to an act to provide a method of proceeding against absent and
absconding debtors, approved February 6, 1825, Laws (1830).
75 This did not prevent litigators from trying. In a case heard by a Ray County justice of the peace in
1844, the defendant requested an appeal based on claims that the summons “was not executed in due form
42
from the judgment of a justice of the peace in the circuit court, no objection as to the
proceedings of such justice, shall be valid, but the circuit court shall proceed to try the
cause upon its merits.”76 Eliminating procedural failings as a basis for requesting an
appeal helped to buttress the ability of justices’ courts to maintain their reputation for
swift resolution of disputes.77 The General Assembly ordered that “hereafter it shall and
may be lawful for any justice of the peace . . . to hear and determine all such actions,
according to equity and good conscience, in a summary way, without the form of
pleading; and it is hereby declared to be the duty of such justice of the peace to give
judgment in all things, according to right and justice between the parties litigant before
him.”78 The law thus affirmed justices’ discretionary powers; beyond that, it affirmed
the authentic nature of commonly understood notions of justice in deciding actions at
law.
In addition to trying misdemeanor offenses, justices of the peace investigated
suspicious incidents in the neighborhood. Earlier law penalized justices and other
officials for failing to look into disorder in the neighborhood. In 1831, the legislature
empowered justices to investigate assaults in order to determine whether an offense
represented a misdemeanor or a felony. According to the revised statute, “no assault,
battery, affray, riot, rout or unlawful assembly, shall be held or considered an indictable
& not in time” and that the judge had a personal relationship with the plaintiff. The appeal was granted, but
probably on the basis of possible bias rather than errors in process. Ray County Justices of the Peace
Docket Book, 1836-1851, C1215, WHMC-UMC.
76 Missouri, AN ACT supplementary to an act establishing Justices Courts and regulating the
collection of small debt, approved the twenty-first day of February eighteen hundred and twenty-five; and
to regulate the issuing of executions in certain cases, Laws (1830), sec. 3.
77 James Harris Griffith, “The Background and Development of Early Missouri Trial Courts,” 260.
78 Missouri, AN ACT supplementary to an Act establishing justices’ courts, and regulating the
collection of small debts, Laws (1830), sec. 1.
43
offence, but that the same shall be prosecuted and punishable in a summary mode, before
justices of the peace.” Exceptions, which would automatically require the act to be
treated as a felony, included assault with intent to maim, wound, kill, or commit a rape or
a robbery, and any assault involving shooting or stabbing. Justices were instructed to
determine whether “menacing” words, attitudes, or actions, may have justified the
assault; in such a case, the defendant might receive more lenient treatment.79
By 1841, further expansion of Missouri’s population into places north and south
of earlier settlements along the Missouri River encouraged the legislature to increase civil
jurisdiction of justices of the peace so that township courts could handle a greater number
of disputes.80 New law granted justices’ courts concurrent jurisdiction with circuit courts
in civil actions involving sums between $50 and $150, further protected justices’ courts’
rulings from appeals based on procedural grounds, and ordered the election of justices of
the peace “at the next general election after the vacancy in the office occurred.”81 As the
Civil War commenced, lawmakers acknowledged the impact of new transportation
technology in a measure that recognized property loss caused by railroads. In concurrent
jurisdiction with circuit courts, justices’ courts received permission to try law suits filed
against railroads “to recover damages for the killing, crippling, or injuring of horses,
mules, cattle, or other animals, by the officers, agents, servants, or other employees of
79 Missouri AN ACT declaring assaults, batteries, riots, routs and unlawful assembles, [sic] not
indictable offenses, Laws (1830), sections, 1, 2, 3.
80 Dorothy B. Dorsey, “The Panic and Depression of 1837-43 in Missouri,” Missouri Historical
Review, vol. 30, no. 2 (January 1936), 132-161.
81 Missouri, AN ACT to amend an act entitled “An act to establish justices’ courts, and to regulate
proceedings therein, Laws (1841), sections 4, 6, 7, 8. 10.
44
such companies, without regard to the value of such animals or the amount of the
damages claimed for killing, crippling or injuring the same.”82
Justices’ courts flourished, then, because they supplied local residents with
convenient access to reliable judicial resolution of commonplace altercations and
disputes. But they were designed as well to function as trial courts in civil and criminal
causes and to act as investigative bodies. Early Missourians in developing regions also
needed rule-making institutions with the power to determine the neighborhood’s
sentiments and to administer fundamental services, for which purposes county courts of
commissioners were established. Like justices’ courts, county courts were staffed by
justices of the peace.
County courts were ubiquitous from colonial times forward. A number of
scholars have commented on their roles in early American legal systems. Unlike
Missouri, other colonies and states often combined the functions of justices’ courts and
county courts of commissioners to form a single entity. According to Peter Hoffer, “[i]n
almost every colony, the county court was the workhorse of justice.” Such bodies heard
civil suits, including litigation between planters, servants, and yeomen, and resolved
testamentary matters, “performed the regulatory tasks of the English quarter sessions
courts and disposed of serious misdemeanors.”83 David Konig emphasizes the
community-building work performed by Massachusetts’ county courts, which helped to
settle intramural town land disputes and integrated subgroups and outsiders into the
82 Missouri, AN ACT to extend the Jurisdiction of Justices’ Courts, Laws (1861).
83 Peter Charles Hoffer, Law and People in Colonial America, 26.
45
community.84 In colonial Virginia, county courts provided government services and
shared political authority with the colony's legislature. Like their English counterparts,
Virginia's counties “enforced the law and saw to the needs of their respective
communities,” and enjoyed jurisdiction in both civil and criminal matters, admiralty,
ecclesiastical subjects, and administration of county government. Virginia’s county
courts were created by and derived many of their powers from legislative acts; by 1661 or
1662, they possessed a “nearly absolute” power which encompassed “a wide arc of
colonial life.”85 In early national Kentucky, duties were much the same as those of other
county justices, with one exception: in an unusual grant of authority, Kentucky’s early
county courts heard appeals from rulings of individual justices of the peace. Kentucky’s
county justices did not enjoy reputations for competence or professionalism; they were
better known, according to John Ireland, for failure to keep order in court, general
ineptitude, and domination of “almost all local patronage.” But, though few were alleged
to be lawyers (most Kentucky justices in the 1850s were farmers), it is clear from the
careful drafting of “a few” official papers that some justices were well-educated men who
probably knew sufficient law to perform their duties capably.86 County courts in North
Carolina exercised administrative and judicial powers.87 In Illinois, they presided over all
84 David Thomas Konig, Puritan Massachusetts, 5, 7-9, 46, 65, 88, 148.
85 Warren M. Billings, John Selby, Thad W. Tate, Colonial Virginia: A History, Milton M. Klein
and Jacob E. Cooke, eds., A History of the American Colonies in Thirteen Volumes (White Plains: KTO
Press, 1986), 72-73.
86 Robert M. Ireland, The County Courts of Kentucky (n.p., The University Press of Kentucky,
1972), 14, 3, 62, 148, 150, 152.
87 Isham Gregory Newton, “The Minor Judiciary in North Carolina, With Special Emphasis on the
Justice of the Peace,” Ph.D., diss., University of Pennsylvania, 1956, 40.
46
probate matters and held criminal and civil jurisdiction.88 Lawrence Friedman notes that
county courts were agents of “social control,” managing a community’s morals,
commercial activity, inheritance, internal improvements, and similar matters.89
The most helpful source of information concerning the background of the
Missouri county court remains William Bradshaw’s old “History of the Missouri County
Court.”90 According to Bradshaw, Missouri’s county governments existed in territorial
times. Their functions initially were performed by a court of quarter sessions composed
of justices of the peace and established in 1804; the court administered the districts into
which the Louisiana Territory had been divided. It also heard civil and criminal common
law cases and equity matters. In 1806, a board of commissioners assumed the governing
powers of the court of quarter sessions. The board of commissioners was dismantled in
1813 and the administrative and probate work transferred to a newly-established common
pleas court, composed of three judges named by the territorial governor. In 1815, those
tasks were transferred once again, this time to a county court consisting of three local
justices of the peace. One year later, in 1816, the county court was abolished and replaced
by a circuit court. The circuit courts retained their administrative and probate powers
until 1820, when those matters were transferred to newly re-invented county courts. With
the exception of two years between 1825 and 1827, when they did not handle probate
matters, their powers have remained more or less intact. Though its managerial functions
clearly overshadow its trial work, it would be wrong “to assume that the county court is
88 Illinois Constitution (1848), art. 5, sections 16, 19.
89 A History of American Law (NY: Simon & Schuster, 1985), 40.
90 William Bradshaw, “History of the Missouri Court,” Missouri Historical Review, vol. 25, no. 3
(April 1931): 387-403. All material in this section is taken from Bradshaw’s account.
47
purely an administrative body, for it still possesses a few minor judicial and quasi judicial
powers and privileges.91
The remodeled county courts of 1820 varied in structure and mode of operation.
Most, but not all, consisted of three justices. Terms of office varied. Some county
justices were elected at large, some on a district basis. 92 At the time, Missouri was a
new state, and public officials were preoccupied with organizing a state government and
ensuring their state’s financial health and political credibility. They obviously relied on
local institutions to establish and maintain order during this unstable period. The terms
of the statute that created the county courts charged them—in theory, at least—with
literally unlimited governing duties within county boundaries. It is not surprising that
sitting justices read their duties broadly:
Be it further enacted, That there shall be, in each and every county
of this state, a judicial tribunal, to be styled the County Court, which
court shall have original jurisdiction over all matters of county
concern, shall appoint guardians, and shall have full power to grant
letters, testamentary and of administration, and settle the accounts of
executors, administrators and guardians, and shall have all the
jurisdiction and power heretofore vested in the circuit courts; in all
matters relating to constables, county lines, elections, ferries, idiots,
lunatics and persons of unsound mind, the poor, minor and orphans,
prison and prison bounds, probate of wills, county revenue, bridges,
roads and highways, taverns and tavern keepers, townships,
vagrants, weights and measures; and shall in general have all the
powers and exercise all of the duties which by the existing laws are
given to, or required of the circuit courts in those cases.93
91 Ibid.
92 Ibid.
93 Missouri, An Act Establishing Circuit and County Courts, Acts (1820), chap. 25, sec. 10.
48
The overall effect of the 1820 statute was to transfer administrative powers from
circuit courts to the reinvented county courts, whose statutory powers, like those of the
township justice of the peace, increased over time. The scope of county courts’ powers
may be sensed in the 1820 statute. Responding to demands for democracy, the legislature
in 1830 transformed county courts from appointive bodies to elective ones. County
justices were elected to terms of four years, constables to terms of two years. If a justice
should move to a different county or otherwise be unable to finish out his term, a sitting
justice or justices had the power to offer to the governor the name of some suitable
person to take his place on the bench.94
In 1839 court courts of commissioners received authority to appoint an attorney,
who would work at county expense. The county attorney would “prosecute and defend,
in behalf of each county,” with compensation to be determined by the county court. 95
No county was ordered to hire an attorney, which suggests indecision on the question or
perhaps legislative sensitivity to differences between the size of one county’s purse and
another’s. In 1845, counties were granted rights to own and sell real property on behalf
of the county and “to audit and settle all demands against the county.”96 In 1843,
lawmakers authorized each county court to appoint an attorney in instances where a
pending case made it appropriate; in addition, county courts were ordered to appoint an
attorney “to prosecute and defend on behalf of the county” all cases “in which the county
94 Missouri, ACT to provide for the election and appointment of county Court Justices and
Constables, Laws (1830), sections 1, 3.
95 Missouri, AN ACT to provide for the appointment of county Attorneys, Laws (1843).
.
96 Missouri, An Act to enable counties to make contracts, and hold and convey real estate, Revised
Laws (1845), sections 1, 2; Missouri, An Act to establish courts of record, and prescribe their powers and
duties, Revised Laws (1845), sec. 15.
49
may be interested.” Appointments were limited to twelve months, though the court could
remove the appointee before his term ended, without providing a reason, apparently.
Grounds for removal are not stated in the law; the county attorney served, then, at the
county’s pleasure.97 County courts’ fiduciary powers were strengthened ten years later in
a measure creating treasuries within county courts.98
At their debut legislative session in 1820, Missouri lawmakers enacted a statute
intended to create a firm tax base. The law authorized county courts to collect state and
county taxes. Taxable goods included land and buildings, slaves, farm animals, pleasure
carriages, furniture and watches and chains. Bounty lands and all lands belonging to the
state and federal governments were excluded from taxation. Each county court was to
appoint an assessor and collector “who shall be respectable householders and reside
within the same [county]” to one-year terms. The text failed to provide a method for
division of taxes between the state and the county.99
Missouri’s county courts, like the early English courts, were heavily involved in
market oversight. In the same 1820 session that produced a state tax law, justices of
county courts were authorized to license billiard tables and regulate ferries; license liquor
and wine retailers, peddlers and retail merchants; and license and tax auctioneers. In a
typical arrangement, the statute dealing with peddlers and retail merchants imposed a tax
97 Missouri, AN ACT to provide for the appointment of county Attorneys, Laws (1843).
98 Missouri, County Treasuries, An Act to establish and regulate county treasuries, Laws (1855),
article III, section 1.
99 Missouri, An Act to provide for Levying, Assessing and Collecting, State and County Taxes, Acts
(1820).
50
of between fifteen and two hundred dollars per license in every six month period, the
amount to “be fixed in the discretion of the court or clerk in vacation, due regard being
had to the value of the stand and amount of business done by such retailer or peddler.” 100
Auctioneers paid taxes in amounts that depended on the cost of the item sold. The most
stringent terms were applied to wine and liquor retailers, perhaps due to a concern that
such businesses might sell alcohol to slaves; it was the sole commercial licensing
measure to require a grand jury to investigate possible violations.101
Temperance reform does not appear to have motivated passage of the law, though
it made many women into activists and influenced public policy elsewhere. Alcohol
consumption was said to drive men from their families, and from God, “who never made
alcohol.” Morton Keller has commented that the party system became a vehicle for a
number of causes, including temperance and prohibition. Temperance laws, by the
1850s, illustrated a governmental interest in molding personal behavior to conform to a
standard. In Missouri, however, reformers made little headway. Only in Greene County
did residents put heavy pressure on the county court to prohibit alcohol sales. In August,
1851, the county responded to a public petition and agreed to stop issuing dramshop
licenses. It reversed itself shortly thereafter on receiving a petition from the opposing
side. In January, 1851 the county rescinded that order, and in April it rescinded the
100 Missouri, An Act taxing Billiard Tables and regulating Ferries, Acts (1820); Missouri, An Act
imposing a Tax on licences to retailers of Merchandize and Pedlers, Acts (1820); Missouri, An Act to
license Auctioneers, and impose a tax on Auction Licences and Sales at Auction, Acts (1820); Missouri,
An Act to license and regulate Retailers of Wines and Spirituous Liquors, Acts (1820). Grocers were the
subject of a separate law of 1829, probably because grocers sold hard liquor in addition to sugar, flour, and
the like. This measure included language which reserved for the county a portion of tax paid on the license.
Missouri, An Act, to License Grocers, Laws (1829).
101 Missouri, An Act to license and regulate Retailers of Wines and Spirituous Liquors, Acts (1820).
51
January order. The Sons of Temperance, formed in 1849, provided much of the feeling
against alcohol sales, but the group gave up in the end and put their hopes into changing
public attitudes.102
County courts and the earlier district courts apparently oversaw internal
improvements in Missouri from very early times. In initial legislation adopted in 1820,
counties were made responsible for highways, bridges, swamp removal, and other
internal improvements. In 1839, the Missouri legislature responded to the near-
impossibility of getting from one place to another within the state by granting county
courts the authority to incorporate private entities and hire them for road construction and
other improvements.103 Previously, white male residents of counties had been
responsible for surveying, construction, and maintenance.
In addition to providing governance, and regulation of business practices, the
levying and collecting of taxes, and supervision of internal improvement projects, county
courts of commissioners held responsibility for probate matters and subjects affecting the
social order. Local control of social practices supported the economic and political goals
102 Laura F. Edwards, Considered Strife and Confusion, the Political Culture of Reconstruction
(Urbana, IL: University of Illinois Press, 1997), 126; Joel H. Silbey, The American Political Nation, 1838-
1893 (Stanford, CA: Stanford University Press, 1991), 180; Jonathan Fairbanks and Clyde Tuck, Past and
Present of Greene County, Missouri, Early and Recent History and Genealogical records of Many of the
Representative Citizen, ch. 10, p.9.
Http://thelibrary.springfield.missouri.org/lochist/history/paspres/ch10.html Accessed March 10, 2010;
History of Greene County, Missouri, Written and Compiled From the Most Authentic and Official and
Private Sources, Including a History of the Townships, Towns and Villages, Together with Condensed
History of Missouri: the City of St. Louis; a Reliable and Detailed History of Greene County—Its Pioneer
Record, War History, Resources, Biographical Sketches and Portraits of Prominent Citizens; General and
Local Statistics of Great Value, and a Large Amount of Legal and Miscellaneous Matter; Incidents and
Reminiscences, Grave, Tragic and Humorous (St. Louis: Western Historical Company, 1883), 222-223.
103 Missouri, An Act giving the County Courts authority to incorporate and grant charters to
individuals and companies, for the purpose of bridging streams, and to encourage the improvements of
roads, Laws (1839), sections 1, 5.
52
of the state and rendered the county courts essential in preserving ideal racial and class
relations.
For all practical purposes, justices’ courts and county courts of commissioners
together occupied a distinct political space in which they held little in common with other
entities in the state’s judicial system. Put differently, they functioned as more or less
independent units rather than as fully integrated members of a state system of courts.
Official contacts between neighborhood courts and the higher courts consisted mostly of
routine business transactions when a case was appealed to the circuit court or when a
justice of the peace forwarded a felony to the circuit court for trial. The independent
nature of county governance can be seen in a county ordinance passed by the Greene
County Court in 1839, in which the court removed itself from enforcement of an act of
the state legislature: “Ordered by the Court—That the act concerning groceries, . . .
approved February 1839, be and the same is hereby repealed and of no effect in the
county of Greene.” The law on groceries had to do with regulating the sale of “ardent
spirits.” The county based its repeal of the law on a statute providing that that “county
courts may, at any term of their court, preempt their county from the operation of this act
by an order directing that the same shall not extend to or be in force in their county.”104
The 1820 constitution had made the circuit courts responsible for supervision of
the lower courts but did not supply instructions on how to proceed with the task, either at
that time or later—despite an initially thin body of statutory law and possession of
discretionary powers which gave neighborhood judges wide latitude in using their
personal judgment. Justices’ and county courts operated virtually without oversight
104 History of Greene County, 190.
53
during the early and mid-nineteenth century. Their independence is especially notable in
view of the fact that few justices of the peace were practicing lawyers.105 True, Missouri
law did not require that holders of the officers be trained in the law, but judges of the
higher courts were expected to have a legal education,106 and the layman status of most
justices probably contributed to the comparatively low status of the office. Justices’
courts received solid local support, not because they demonstrated the formality and
precision characteristic of the circuit courts, but rather because the justice “could usually
be trusted to judge equitably.”107
Scholars investigating judicial power and authority in colonial and nineteenth-
century America have found that powerful neighborhood courts were the rule, not the
exception, and have linked their power to local networks of supports. In The People in
Power, Courthouse and Statehouse in the Lower South 1850-1860, Ralph Wooster
concludes that most nineteenth-century southerners considered the county government to
be their local government and felt a greater attachment to county government than to the
central colonial or state government.108 Not only did county government possess the
virtue of the known and familiar, local elites often were attracted to a place on its bench.
“By the close of the Colonial era the idea of county government was so firmly established
in most areas of the South that positions of responsibility on the county level were sought
105 Occasionally a justice of the peace who was also a lawyer advertised the fact in a newspaper
advertisement. James Glasscock, a justice of the peace in Pettis County, offered his services as a lawyer in
the May 7, 1858 edition of the Marshall Democrat. The same newspaper on March 14, 1860 printed an ad
placed by W. T. Williams, a notary public, attorney, and justice of the peace in Miami, Missouri.
106 Circuit judges were to be “learned in the law.” Doubtless the same applied to judges of the state
supreme court. Missouri, An Act establishing Circuit and County Courts, Acts (1820), sect. 1.
107 James Griffith Harris, “Background and Development of Early Missouri Trial Courts,” 261.
108 Ralph Wooster, The People in Power, Courthouse and Statehouse in the Lower South 1850-
1860 (Knoxville: The University of Tennessee Press, 1969), 81.
54
and secured by the most important social and economic leaders of the colonies.” The
presence of members of the ruling class on the county bench added to the county’s
prestige; at the same time, the relatively high socio-economic status of county officials
reduced possibly negative impact of judges’ lack of a legal education. As in Missouri,
most justices of the peace and county judges who served in the lower south do not seem
to have been practicing lawyers.109
Peter Hoffer’s introduction to Criminal Proceedings in Colonial Virginia deals
with the administration of criminal justice in Richmond County, Virginia. Like Wooster,
Hoffer notes that county institutions were held in high regard. While “[i]n theory, the
local courts were subordinate to the central courts of the state,” in actuality they
functioned in remarkably independent fashion.110 Justices of Virginia’s colonial county
courts were appointed by the governor and heard both civil and criminal matters. The
judicial system of colonial Virginia included a General Court, which heard capital
offenses, and courts of oyer and terminer. Both were served by grand juries and some
petit juries, with the governor and his councilors as judges. Serious crimes were tried,
not by courts on circuit, but by a criminal court that remained in the capitol.111
Of county justices in Virginia, Hoffer writes that “the ultimate impact and
effectiveness of local justice derived from its responsiveness to the realities of local status
and class distinctions.”112 Local criminal justice relied on both formal law and customary
109 Ibid., 69, 81-82, 97. Wooster attributes the absence of legal professionals to the practice of
rotation in office.
110 Hoffer, Criminal Proceedings in Colonial Virginia, Records of Fines, Examination of Criminals,
Trials of Slaves, etc., from March 1710 [1711] to 1754, xvii.
111 Ibid., xvi-xvii.
112 Ibid., xx-xxi.
55
values. Put differently, local criminal justice was communal justice. Virginia’s judges
followed in the footsteps of English justices of the peace, who always inquired into
“family connections” in the course of their duties.113 Hoffer connects the potency of
Virginia’s local courts to the social aspects of neighborhood law and the judge as a
fixture of local justice. First, most criminal cases were minor and originated within the
county, and because a minor criminal violation was not subject to appeal, petty crimes
tended to stay within the county: only felonies were tried in Williamsburg. Thus, the
minor offender could not avoid the physical proximity of neighbors and members of the
bench. Further, regular attendance by the county justice “gave local justice legitimacy
and continuity,” as a “core” of justices attended court days every year, and sometimes
every session. Familiarity with persons came with service with the court over long
periods; accordingly, they knew parties in criminal cases, just as the accused came to
know the justices and their families. Justices enjoyed enhanced status when they held
offices in addition to the county judgeship, such as sheriff, coroner, or juryman, giving
local residents opportunities to view them in multiple positions of authority. Finally,
justices tended to be wealthy and close to powerful persons; importantly, they were not
obliged to perform their duties against the backdrop of an educated, professional cadre of
higher court judges, as “[t]he highest court in the colony was not composed of
professional judges.” 114
County courts in early national Missouri differed in some respects from those of
colonial Virginia and other southern places. However, their independence flowed from
113 Ibid., xxi.
114 Ibid., xvii-xix.
56
some of the same elements identified by Hoffer and Wooster: the nature of their tasks,
almost total absence of supervision by the court assigned the duty, and strong support
within communities. Like local courts in other places, Missouri’s justices’ courts and
county courts owed much of their power to networks of trust and loyalty within the
community and rightfully so. In regular sessions of the county court, justices conducted
the county’s business, determining locations for new road construction, scheduling male
residents for community service, approving county expenditures, and accepting or
rejecting bids for government services and goods—with county residents’ interests and
needs in mind. For example, county justices often allowed interim payments to survivors
in instances where settlement of an estate was protracted. Similarly, when county justices
ruled from the bench debt litigation associated with estate settlement, refusal-to-work
cases and other violations of county ordinances, they decided conscientiously in almost
all instances. Nor did county justices ignore residents’ preferences in conduct of the
public business, which often required approval from a majority of the county’s
population. County courts normally treated property sales as a matter of routine but
treated challenges seriously. For example, in a session of the Saline County Court held
on May 13, 1839, resident Ransom Wells was joined by a few of his neighbors in
objecting to a sale of public property planned by the court, on the ground that fewer than
a majority of inhabitants had approved the sale, “Upon which showing the Court doth
order that the sale thereof be suspended.115
115 Saline County Court, Minutes, 1839-1846, C18976, microfilm, Missouri State Archives, Jefferson
City, MO.
57
Faithful attendance at sessions of the county court and continuity in office, factors
common among Virginia’s county justices, marked county service in Missouri as well.
Attention to official duties was encouraged by Missouri state law, and regular attendance
reinforced by a provision in state law that required the county clerk to record “the times
. . . and the number of days” each attended. As their salaries depended upon it and were
not extravagant, it is likely that most justices were present for regular court sessions.116
The great bulk of county business was crushingly monotonous, but even the most
tedious transactions mattered within the neighborhood. In 1870, the Saline County Court
voted to review requests for structural changes to existing roads; rejected a petition for a
dram shop license on the basis that it lacked the signatures of a majority of the taxpayers
and citizens of Marshall; paid “Mrs. Mary Mead . . . $25 for the support of Mrs. Castor;”
approved the purchase of a ferry operator’s license to Alphonzo Bowler; and appointed
Henry B. Lewis to serve as constable for Elm Wood towns.117 The cumulative effects of
such routine decision-making over time may help explain the Missouri tradition that no
one should have to ride for more than a day to reach the county seat.118
Township justices’ courts and county courts of commissioners were created
directly and by implication in the state constitution. The 1820 constitution granted civil
jurisdiction to circuit courts in all cases “which shall not be cognizable before justices of
the peace.” The existence of county courts was implied in the constitution’s creation of a
116 Missouri, An Act establishing Circuit and County Courts, Acts (1820), sec. 17.
117 Saline County Progress, report of County Court of Commissioners meetings, April 4, 1870, May
4, 1870.
118 Marian M. Ohman, “Missouri County Organization, 1812-1876,” Missouri Historical Review vol.
76, no. 3 (April 1982): 253-281. Paul Kahn also pressed for study into “the multitude of ordinary decisions
at the microlevel of everyday transactions.” Paul W. Kahn, the Cultural Study of Law: Reconstructing
Legal Scholarship (Chicago: the University of Chicago Press, 1999), 135.
58
supreme court, a chancellor, circuit courts, and “such inferior tribunals as the general
assembly may . . . ordain and establish.”119
However, Missouri lawmakers from time to time created other judicial bodies,
known as special local courts, particularly during the last quarter of the nineteenth
century. Two types of special courts were established. The first appeared when town
governments were remodeled. These included permanent mayors courts, police courts,
and recorders courts. Other special courts not associated with municipal bodies were
established by lawmakers for specific purposes. These included common pleas, probate,
common pleas and probate, law and equity, and other judicial categories. The latter
category of special courts should not be understood to supply judicial authority where
none had been previously established—probate, for example—but rather to correct what
lawmakers perceived as deficiencies in delivery of justice. A law and equity court for
Jackson County, created in 1873, probably was intended to ease pressure on the existing
circuit court for the county. The judge for the law and equity court possessed the same
qualifications as the circuit judge, and rules for the new court were taken from circuit
procedure. The two courts enjoyed concurrent original jurisdiction in civil matters “of
law and equity” except where land titling was concerned, where authority remained
solely with the circuit court. The law and equity court in addition received sole
jurisdiction to hear appeals from rulings of inferior courts of the county (probate
exempted) and had oversight of them. From the nature of its jurisdictional powers and
qualifications of the judge, it is clear that the new court would function to relieve the
circuit court’s civil docket and administrative responsibilities with respect to inferior
119 Missouri, constitution (1820), art. 5, sections 1, 6.
59
courts. It follows that the new court was not necessarily meant to be a permanent judicial
fixture.120
Government in early Missouri was intensely local. While legislators did not
neglect large interests of the state in adopting new laws, the sheer number of statutes of a
special local nature is staggering. At times the general assembly passed three or four
times as many special local acts as general ones. In the session of 1862-1863, legislators
enacted fifty pages of general laws and two hundred eight pages of special local laws, for
example.121 An 1849 statute that created a probate court to serve Hickory County
explicitly allowed its judge to perform marriages, issue habeas corpus, and practice as an
attorney. In the same session, a bill to establish probate courts in Schuyler, Ripley,
Mercer, Shannon, and Know counties said nothing of the power to solemnize marriages,
issue the writ of habeas corpus, or practice as an attorney. Finally, legislators used a
single statute to except the probate court for Polk County from repeal of earlier law that
had established probate courts in Greene, Barry, Newton, and Cedar counties.122 A
probate court was created in 1861 for Dunklin County and abolished in 1866.123
120 Missouri, AN ACT to establish a law and equity court for Jackson county, Laws (1873), sections
1, 2, 3, 5. Equity jurisdiction resided with a superior court of chancery created in 1820 and with the state’s
circuit courts. The superior court of chancery heard appeals in equity matters heard by circuit courts and all
litigation against the state. Missouri, An Act establishing a Court of Chancery, Acts (1820), sections 8, 13;
Missouri, An Act establishing Circuit and County Courts, Acts (1820).
121 William L. Bradshaw, “History of the Missouri County Court,” 392.
122 Missouri, AN ACT to establish a probate court in the county of Hickory, Laws (1849), sections 1,
15, 19; Missouri, AN ACT to establish Probate Courts in the Counties of Schuyler, Ripley, Mercer,
Shannon, and Knox, Laws (1849), Missouri, AN ACT relative to the probate court in Polk County, Laws
(1849).
123 AN ACT repealing an act entitled “an act establishing a Probate Court in the county of Dunklin,”
Laws (1865).
60
Lawmakers enacted many statutes that created local, repealed their creation or amended
their jurisdiction, at times within a very few years.
Special local law was a subject of heated argument. William Bradshaw writes of
special legislation that
[t]he encouragement of frequent changes was the worst defect of
special legislation. It also allowed the legislature to meddle in local
affairs for purely political reasons to aid one party or faction in a
county at the expense of another. Perhaps an abundance of
interesting and valuable information could be unearthed by
investigating and analyzing the underlying motives for the special
laws of this period.124
Bradshaw may well be correct in his analysis, but at times lawmakers obviously made
special local courts in order to relieve burdens on existing bodies. Judicial business
pressed the bench; according to the Marshall Democrat of December 12, 1869, the
docket of Saline County’s Court of Common Pleas scheduled twenty-seven cases for the
first day of the December Term of 1869, eight cases for the second day, ten for the third,
and nine for the fourth.
Local courts that functioned as de facto justices’ courts (police, recorders, and
mayors courts) were established as components of remodeled municipal government. A
major advantage was that they offered the face-to-face delivery of justice offered in
township justices’ courts. They clearly were intended to improve public services to
residents; at the same time, they reflected population growth and movement toward more
complex municipal government.
John Wunder describes local institutional arrangements in Washington Territory
as demonstrating “complexity and diversity . . . Several different types of urban justices
124 Ibid., 388.
61
of the peace were created by the legislature; these justices were called a variety of
names, were selected by numerous devices, and performed different functions.”125
Incorporation of a municipality acted as one means of creating an urban court on the
model of the township justices’ court. Population centers, when incorporated as towns,
boasted a judicial officer designated as a “committing magistrate.” Recorders’ courts
existed in Vancouver, Seattle, and other places. Wunder believes that recorders courts
were modeled on mayors courts, which were created during a time when Washington was
part of Oregon Territory, between 1848 and 1853. Four Washington cities had an official
designated simply as a “judicial officer,” an appointed position; one of the qualifications
was that the officer holder had been a justice of the peace prior to appointment to office.
In Seattle, the police justice enjoyed “exclusive original jurisdiction over all violations of
city ordinances.”126
The mayors court of Boonville, Missouri, provides an example of the versatile
nature of these bodies. The mayor of Boonville assumed the role of the justice, and city
hall (or some other official building) replaced the front parlor or town meeting place on
the prairie where the justice of the peace kept office hours. The jurisdictional authority of
the mayors court of Boonville embraced matters that normally would be under the control
of a rural justice of the peace; in addition, the mayor held jurisdiction in city ordinances.
As an example, Boonville passed an ordinance in June of 1839 that forced owners of
slaughter houses to clean up animal hides and other remains. Failing to do so was a
minor offense punishable in the mayors court, which lists two convictions in 1840 and
125 John Wunder, Inferior Courts, 87.
126 Ibid., 80-91.
62
another in 1841. The Boonville Court also had the power to control market practices,
such as when and where sellers might set up shop, and in 1845 charged an individual
with selling on the street during hours that the city market operated. 127
Mayors courts were rare, but Missouri established several police and recorders
courts. These were not unique to Missouri but existed as well in Washington Territory
and in Nebraska. Nebraska’s nineteenth-century police courts were similar to justice of
the peace courts. They were created when cities with populations greater than 15,000
elected a police judge, who heard misdemeanors and forwarded serious cases to the
state’s district courts. Mark Ellis has characterized the Nebraska police courts as keepers
of “public order and community standards.” Persons charged with drunkenness,
prostitution, gambling, or disorderly conduct, were tried in the police court. According
to Ellis, such offenses offended families and hurt business.128
Police and other such municipal courts were extremely useful to municipalities.
They enforced matters normally placed under the jurisdiction of the rural justice of the
peace, and they were able to deal with town ordinances. The result was reduced cost for
the town and greater convenience for residents. In Missouri, when special local courts
assumed jurisdictional powers normally exercised by the rural justice in that location,
terms of the statute explicitly stated the physical boundaries affected. For example, the
charter for the city of Canton was amended in the 1873 session to include a recorders’
court with sole jurisdiction over violations of the town charter and town ordinances; the
127 Missouri, Boonville, Mayors Court Records, 1840-1848, microfilm, C2980, WHMC-UMC.
Mayors courts were not common in nineteenth-century Missouri, and in fact, staff at the Missouri State
Archives did not locate any other records.
128 Mark Ellis, Law and Order, 134-135.
63
recorder shared jurisdiction “with all justices of the peace in all civil and criminal cases
within the town limits, arising under the laws of the state.”129 In the same legislative
session, both the mayor and recorder of Sedalia held jurisdiction over breaches of the
peace, misdemeanors, and violations of town ordinances “occurring in the city, and all
that tract of country extending one-half mile outside of the city limits.”130
When a special local court was inserted into a local system, it could not have
helped but create turmoil—not once, but twice: first when a court was created, and later,
when it was abolished. The presence of a special local court required the legal
community to operate with a new member and made for systemic strains. In cases where
litigation already had been introduced, or litigants had made arrangements to sue in a
court that was affected, the introduction of a special court could cause delays and distress.
Local residents were not unaware of a potential for problems. A group of citizens who
wrote to Senator Benecke in February of 1873 concerning jurisdictional modifications
assured him that “This is an independent Move not intended to interfere or effect any
other court interest in our County.”131
Special judicial bodies were vulnerable to changes in local conditions as well as
to shifting political alliances and individual ambitions. One extreme illustrates problems
that might occur with establishing a special local court. In 1849, the Missouri legislature
established a probate court for Hickory County, Missouri that not only assumed
129 Missouri, AN ACT to amend an act entitled “An act to amend the charter of the town of Canton,
and consolidate the several acts relative thereto,” approved March 20, 1871, Laws (1873), art. 4, sections 1,
3.
130 Missouri, AN ACT to revise the charter of the city of Sedalia, in Pettis county, Laws (1873), sec.
26.
131 Benecke Family Papers, folder 1506, C3825, WHMC-UMC.
64
jurisdiction in probate, but it also effectively dismantled the existing county court by
forcing its judges out of office. It then replaced them with other justices of the peace for
the county.132 The act granted the new probate court original and exclusive jurisdiction
in probate matters: appointment of guardians, administration of estates, supervision of
contracts of indenture, and the like. The new probate judge was authorized to design a
seal for official documents (until it was ready, he could use “a scrawl”). Though the
statute did not require him to take the oath of a justice of the peace, the probate judge was
to be a conservator of the peace. He also could marry couples, issue the writ of habeas
corpus, and acknowledge deeds and conveyances.133
Provisions of the Hickory County bill recognized the status of the probate judge
and granted him the usual trappings of office, including the seal. The judge’s position
was salaried, but he also received “the same fees that are now allowed to the clerks of the
courts for similar services.” In addition, “[t]he probate judge . . . shall discharge the
same duties and receive the like compensation as now provided by law in relation to
clerks of county courts.” He possessed authority “in vacation” to “do all things in
relation to granting letters testamentary and of administration which may now be done of
the clerks of the several county courts in this State.” Finally, the measure made clerks of
the county and circuit courts eligible for the office.134
In point of fact, qualifications for the office were sufficiently broad (the probate
judge was to be at least twenty-five years old, a resident of the county, and certified by
132 Missouri, AN ACT to establish a probate court in the county of Hickory, Laws (1849).
133 Ibid., sections 2, 9-11, 15,18.
134 Ibid., sections 8, 15, 30.
65
the governor following his election win) to extend eligibility to most of the adult white
males of Hickory County. The measure seems tailored to facilitate election of the county
clerk to the position of probate judge, possibly because the county could be assured that
the newly-elected probate judge had experience in probate matters.
The law removed Hickory County’s then-existing county court of commissioners
from their places on the bench and replaced them with the justices of the peace of the
county “or any three of them.” Specifically, “every justice of the peace in each municipal
township in the county shall be allotted to attend at least one term of said court for the
next ensuing year.”135 The upshot was that the county’s justices of the peace operated
their own justices’ courts and also served on the county court of commissioners, although
not at the same time. The statute thus increased both the number of each justice’s
contacts within the county and his familiarity with its affairs and people, a result which
would increase the chance that local justice would reflect neighborhood values and ways.
The plan was peculiar. The language of the statute did not reveal why sitting
members of Hickory County’s county court were being removed from office. The county
had been organized in 1845, which meant that county commissioners had been in office
for barely four years when the measure passed. They could hardly have had time to
acquire poor reputations based upon incompetence, so it remains unclear why such
sweeping law was enacted.
The Hickory County law is closely described because it furnishes an example of
the Missouri’s legislature’s willingness, for better or for worse, to intervene in local
government. Commentators such as Bradford probably would have considered the
Hickory County law an ill-advised legislative manipulation of institutional structures.
135 Ibid., sections 22, 23.
66
Others might view it as a legitimate response by state lawmakers to changing “local
needs” of an institutional nature. Some special courts created by legislative fiat were
deeply resented at heart by a few citizens. In a letter to Missouri legislator Henry
Newman, a constituent wrote that a newly-elected member of the state legislature owed
his victory to a promise do away with the Brunswick County Court of Common Pleas
once in office—a promise he disregarded once elected, despite an overwhelming mandate
by the county’s electorate. “The feeling in the County here against this action of the
Legislature is intense and Old Man Lay is looked upon now by Many as one of the Most
vile things that walks the earth and in some localities he would not be safe from violence
until the people quiet down a little.”136 If the correspondent is to be believed, Brunswick
County’s residents clearly felt that their trust had been violated, which was one of the
inherent problems associated with special courts. Very often, they were suspected of
serving purposes that were not wholly legitimate.
Favor for one local court over another often was expressed in correspondence
between local jurisdictions and officials in Jefferson City, the capitol of Missouri. At
times, citizens were disturbed by the expenses of government. Jack W. Price wrote from
a small town in Chariton County in January of 1873 that, with regard to township
organization,
the law should be so amended as to give the County Court the
liberty to redistrict the County in not more than six Townships, and
only for the purpose of assessing, collecting taxes, and to manage
roads in each Township. This arrangement will save a great deal of
expense and this is what the tax payers want. The probate court act,
ought to be repealed and let the County Court do all probate
136 Benecke Family Papers, folder 1504., C3825, WHMC-UMC.
67
business which will save several thousand dollars to our County and
benefit tax payers materially.137
Special local courts often assumed control of probate matters previously within
the jurisdiction of county courts of commissioners. Indeed, county courts had enjoyed
probate jurisdiction since the beginning of statehood. But between 1845 and 1875, the
state passed 200 special laws regarding probate jurisdiction alone. Transfer of probate
matters to a special court could serve to relieve a crowded county docket or promote
entrenched interests (such as property development). What made probate matters useful
was the very nature of probate as a set of interrelated tasks which, furthermore, seldom
were changed by new rules of great significance. The “chief question [between 1827
and 1877] was whether probate functions should be handled by the county court as
provided by the general laws or vested in a separate probate court.”138 Often, lawmakers
awarded probate jurisdiction to special courts of common pleas. In other instances,
courts might share control of probate matters. In Cape Girardeau County, probate
matters were controlled concurrently in an arrangement passed in 1851 between the
county court and a special court of common pleas.
Officials in 1865 considered an idea to create permanent probate courts with civil
and criminal jurisdiction, and another to establish a probate court for every senate district;
one proposal would have made the judge of probate an ex officio president of the county
court.139 None succeeded. The legislature preferred to treat probate as itinerant
jurisdiction. In 1865, special courts of probate were fashioned for twenty-seven of
137 Ibid.
138 Bradshaw, “History of the Missouri County Court,” 395.
139 Ibid.
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Missouri’s 114 counties. The law specified that the new courts would be separate from
the county court; however, it allowed the new probate judges per diem pay when serving
as president of the county court. In addition, he earned fees like those paid the clerk of
the county court, and “such other compensation as the County Court” thought suitable.140
The pay provisions for those probate judge arose their doing two jobs as judicial officers.
A separate statute passed in the same session made those probate judges members of their
county courts. The law saved taxpayers’ monies and consolidated offices; also, it
represented fair treatment of an official with dual responsibilities to the electorate. In
April of 1872, the legislature created probate courts in eight more counties. Unlike the
judges of 1865, the new justices of probate were to receive no compensation other than
fees for services; in addition they served as their own clerks.141
A comparison between the 1865 and 1872 statutes demonstrates that one of the
more serious deficiencies of special legislation was lack of consistency. The functions of
a probate court are simple enough: the administrative tasks do not change in a
fundamental manner regardless of the size or character of an estate. There is no
superficial explanation for paying the probate judge of one county a salary, to be
determined at the pleasure of the county court, plus fees, while the pay of a probate judge
of a different county was restricted to fees. That is precisely what happened between the
140 The statute contained racially-charged language that reflected tensions of the late war. It required
that the judge of the probate court in each of the Missouri counties affected be a “white man.” The measure
is notable not only for its racial hostility but also because it constituted an attempt to openly politicize the
judiciary. Legislators may have felt that enactment of so many courts of probate at once presented a
political opportunity to assert white control that they could not let pass. AN ACT to establish Courts of
Probate in the counties of Ralls, Jasper, Livingston, Barton, Lawrence, Wright, Nodaway, Chariton,
Mississippi, New Madrid, Pemiscot, Christian, Johnson, Buchanan, DeKalb, Butler, Howell, Stoddard,
Webster, Sullivan, Warren, Linn, Phelps, Carter, Grundy, Scott and Oregon, define their jurisdiction, and
provide for the election of Judges of Probate, Laws (1865).
141 Missouri, AN ACT to establish probate courts in the counties of Randolph, Adair, Maries,
Jefferson, Audrain, Boone, Cape Girardeau and Bollinger, Laws (1872).
69
1865 law and the 1872 enactment. It is possible that the 1865 statute, which would
permit only white men to run for election to the office, was intended to favor the interests
of the white office-holder, but evidence is sparse.
Special local judicial bodies were a standard feature of nineteenth-century
Missouri justice, but by the 1830s, lawyers were not. In 1837, Edward Partridge, a new
arrival in Caldwell County, Missouri, wrote to his brother, James, to encourage him to
emigrate. “If you study Law,” he wrote, “we want you here as a counselor we have no
lawyer here, by coming here to study, you could get admitted at the bar, much sooner
than you can there.”142 According to one source, of all of the counties comprising the
13th judicial circuit of the state in 1855, the only one with a resident lawyer was the
county of Greene.143
American lawyers arrived in Missouri in large numbers following the Louisiana
Purchase. Federal plans for a court and a board of land commissioners, along with the
prospect of lower courts, acted “like a vacuum that sucked lawyers west.” 144 They
tended to cluster in St. Louis, the largest city, where the land commission was located. In
St. Louis in 1821, there were 6.6 lawyers per 1,000 residents, “astonishingly high for the
period.”145 By 1845, the St. Louis business directory listed 131 attorneys. Many
lawyers entered local and state politics and, like others, were deeply interested in making
142 Edward Partridge to James Partridge, 1827, Edward Partridge collection, C1622, WHMC-UMC.
143 James R. Cox, “History of the Springfield Metropolitan Bar Association,” Springfield
Metropolitan Bar Association online, http://www.smba.cc/SMBAHistory.cfm
144 Banner, Legal Systems in Conflict, 101.
145 Ibid., 104.
70
money from land speculation (some who bought land eventually became farmers as
well).146
A man who was already a practicing lawyer could enter the Missouri bar without
much difficulty. Provided his credentials appeared sound, he had only to pass a local bar
examination upon arriving in a Missouri community. The bar examination could be
improvised on the spot and may not have been the same for any two or three candidates.
Due to the fact that admission to the bar was a local matter, anytime a lawyer wished to
practice in a different court, he was obligated to seek admission to the bar of that court.147
As in other jurisdictions, newcomers studied with a local judge or respected attorney
prior to admission to the bar, and, like practicing attorneys who had immigrated to
Missouri, took the local bar examination in order to be licensed.
William Francis English has published widely on Missouri subjects and finds that
many lawyers in early Missouri started their careers in township justices’ courts.148 If a
lawyer could not get trial work, private debt collection was a common sideline. Even the
146 Ratios of lawyers to the general population in early Missouri are extremely difficult to know. Bar
associations in Missouri did not exist in the nineteenth century. While the Springfield Bar Association’s
comment suggests scarcity, Banner finds lawyers almost rushing into Missouri following the Louisiana
Purchase. Wunder notes that “many” lawyers dame to Washington Territory without indicating anything
more precise about numbers. John Wunder, Inferior Courts, Superior Justice, 122. Mark Fernandez, in
his book on the early judicial system in Louisiana, presents no information on the prevalence of lawyers.
Mark F. Fernandez, From Chaos to Continuity, the Evolution of Louisiana’s Judicial System 1712-1862
(Baton Rouge: Louisiana State University Press, 2001). Local histories also offer little help.
147 Ibid.,, 108.
148 The Pioneer Lawyer and Jurist in Missouri, vol. 21, no. 2, in University of Missouri Studies
(Columbia: University of Missouri, 1947), 74.
71
most highly-paid attorneys engaged in the practice; Abiel Leonard, who went to become
a governor of Missouri, collected debts for private clients.149
That state lawmakers experimented with many neighborhood courts was not
unusual for the time, and though litigants may have felt inconvenienced at times by the
timing of law that altered jurisdictional authority, the parties to suits managed well
enough. Lawyers were not always available, though it is clear that they worked in early
Missouri, albeit in uncertain numbers. The constant in early Missouri’s judicial system
was its system of justices’ courts and county courts of commissioners. Together, they
introduced order on the ground and brought essential governmental services to early
settlers. Without their presence, communities would have had short lives. With their
contributions, communities had sufficient structure and protection from forces of disorder
to plan for future growth and prosperity.
149 E. M. Samuel to Abiel Leonard, October 11, 1841, folder 159, John Sappington to Abiel Leonard,
June 20, 1828, folder 45; Adam McKee to Abiel Leonard, November 30, 1839, folder 137; all Abiel
Leonard papers, C1013, WHMC-UMC.
72
CHAPTER III
AN ORDERED SOCIETY
In early Missouri, social practices and custom combined with positive law to
provide the underpinnings of an orderly society. Commonly accepted social statuses
supplied core building blocks for state policy aimed at producing a harmonious society.
Individual acceptance of an assigned status and the appropriate conduct provided the key
to peace in the community. Missouri’s county courts of commissioners shaped
communities through regulation of economic practices, provisions for the poor and other
dependent persons, probate administration and other powers. Justices’ courts in
Missouri held broad powers in civil jurisdiction, and while the bulk of civil suits
concerned money, fair application of law eased litigants’ hard feelings and promoted
harmony in the community. Though the politics of gender always affects status, the state
did not reduce women’s rights and privileges under law to a degree that would have
distinguished Missouri from other states. Neighborhood courts, however, were charged
with enforcement of Missouri’s racial culture, both before the Civil War and afterward.
In Missouri, social patterns proved their resiliency through war, privation, and growing
diversity within the population. The earliest immigrants carried with them traditional
practices that had applied to daily living arrangements from home.
Aside from St. Louis and a few small commercial outposts south of the city on the
eastern border, frontier Missouri was a land of immense forests, swamplands, and prairies
where the grass grew as tall as a man. White Americans found themselves in the
company of Indian tribes, as well as French and Spanish residents. The French had
claimed Louisiana earlier in the century but relinquished control to Spain in 1762. Spain,
73
however, delayed taking command until 1769, and then returned it to France in 1800.
The French population labored to replicate French-style domesticity in communities
beside the Mississippi River between St. Louis and Ste. Genevieve; indeed, the village of
Ste. Genevieve around 1800 is said to have been “the most typical French settlement in
all Upper Louisiana.”150 Following the Louisiana Purchase, many of the French
remained in Missouri; Indians, too, remained on the land and resisted efforts to force
them out. Germans were drawn to Missouri throughout the nineteenth century, as well as
Americans from Virginia, Tennessee, Ohio, New York, and Massachusetts.151
Many immigrants brought slaves with them. According to a complier of the
history of Greene County, William Fulbright, his brothers Levi and John, and brother-in-
law A. J. Burnett emigrated to Greene County in 1829 and “pitched their tents in the
wilderness. They brought with them their families, and a number of negroes, among
whom was Aunt Hannah, so well known to all citizens of Springfield, claiming to be over
a hundred years old, and to have assisted in the construction of that first little pole
cabin.”152
150 Atherton, “Missouri’s Society and Economy in 1821,” Missouri Historical Review vol. 93, no. 1
(October 1988): 2-25; Dr. J. Viles, “Population and Extent of Settlement in Missouri Before 1804,”
Missouri Historical Review, vol. 5, no. 4 (July 1911), 187-213.
151 According to Steve Aron, two-thirds of Missourians claim to descend from residents of Virginia,
North Carolina, Kentucky, and Tennessee.” American Confluence: the Missouri Frontier from Borderland
to Border State, A History of the Trans-Appalachian Frontier, Walter Nugent and Malcolm Rohrbough,
eds, (Bloomington: Indiana University Press, 2006), 236.
152 Fulbright’s family came from North Caroline. His mother was thought to be German or Dutch in
origin. History of Greene County, Missouri, Written and Compiled From the Most Authentic and Official
and Private Sources, Including a History of the Townships, Towns and Villages, Together with Condensed
History of Missouri: the City of St. Louis; a Reliable and Detailed History of Greene County—Its Pioneer
Record, War History, Resources, Biographical Sketches and Portraits of Prominent Citizens; General and
Local Statistics of Great Value, and a Large Amount of Legal and Miscellaneous Matter; Incidents and
Reminiscences, Grave, Tragic and Humorous (St. Louis: Western Historical Company, 1883), 141.
74
While the family servants are mentioned with affection, the presence of slavery
initially was downplayed. Before the 1820s, when newspapers treated the subject, they
assumed a descriptive tone. The Missouri Gazette in June, 1819, for example, recorded
“an influx of people . . . with their maid servants and men servants . . . the white-headed
children, and curly-headed Africans.” In January, 1826, the Gazette noted that “[o]ur
population is daily more heterogenious .”153 By the early 1820s, a tone of alarm
appeared as whites noticed an increase in the number of slaves. Situated in what is
known as the Little Dixie region, so called because of the many settlers from the South,
Saline County was said to have “a considerable slave population, which was constantly
being increased;” in 1824, the county court began to appoint regular slave patrols.154 But
racial tensions were not as marked elsewhere in Missouri, if the calling out of slave
patrols is any indication. In places where slavery did not form a significant part of the
economy, relationships between blacks and whites appear to have been less remarkable.
Daily life on the frontier offered pleasure as well as work and hardship. Though
everyone worked, fatigue never seemed to keep them from socializing at the end of the
day. One scholar noted in 1970 that “whole families would ride twenty miles or more to
a dance, even with babies on the saddle in front of them.” People visited, especially on
Sunday. There were fiddlers’ contests, wrestling and weight-lifting for the men. These
competitions sometimes ended in violence. Dancing was popular among the young
people, and work joined pleasure in house-raisings, sap-collecting, corn-shucking, and
153 As quoted in Harrison A. Trexler, “Slavery in Missouri Territory,” Missouri Historical Review
vol. 3, no. 3 (April 1909): 79-198. Spelling as in original.
154 N.a., History of Saline County, Missouri (St. Louis: Missouri Historical Society, 1881), 196.
75
other group tasks.155 A Missouri custom known as bonnet day originated around 1826,
at the Big Shoal Meeting House in Clay County; there, on the second Sunday in May
each year, the local women attended religious service wearing their finest millinery.156
Settlers took pride in extending hospitality, especially to the occasional traveler who
happened by in hope of rest and refreshment. The visitor was fed, and after supper, the
men passed the jug while the beds were prepared. At bedtime, the traveler was led to his
special bed—special because it had a bit of stuffing, unlike the flat family pallets laid out
on the floor in front of the fireplace.157
Immigrants enjoyed some degree of religious life, but it was difficult for a vey
small congregation to support a minister, so services tended to be irregular and
sometimes took the form of a camp meeting. The degree to which religion acted as a
fixture in the community depended partly on settlement patterns. For example, Cape
Girardeau, one of the oldest counties in the state, boasted a bible society by 1824. A
newspaper article described a “numerous and respectable meeting held in the Town of
Jackson” on the subject of forming such an organization.158 Roman Catholic
missionaries were sent by the St. Louis bishop to central Missouri, where German
immigrants had settled. Father Ferdinand Helias traveled to Osage County in May, 1838;
a year later, a settler wrote that he had formed a congregation of 400 people. He annoyed
residents, however, by refusing to allow Catholics to read certain newspapers and getting
155 Mary Alicia Owen, “Social Customs and Usages in Missouri during the Last Century,” Missouri
Historical Review vol. xv, no. 1 (October 1920): 176-190.
156 Ibid.
157 Ibid.
158 Independent Patriot, June 19, 1824.
76
involved in politics. Eventually, he was sent home. Other Germans in early Missouri
were Evangelicals, Methodists, and Lutherans.159 In 1835 Arrow Rock Township in
Saline County hosted the Methodist Conference “with over 100 preachers in
attendance.”160
Missourians in frontier communities recognized social practices that conferred
distinctions in personal status, some of which were formally recognized in state law.
Privileges and restrictions reflected notions that molded relations between classes in
Missouri: hierarchy, mutual obligation, the crucial importance of property, and the use of
formal law to conserve cherished ways. Thus, white persons who paid taxes supported
the care of old, sick, and poor persons; at the same time, dependent individuals had
limited freedom to move about, choose their companions, and the like. Slaves could not
determine their place of residence, sell their own labor, or marry, but received food,
clothing, and medical care161 and at least in theory were protected from deliberate injury
to life and limb inflicted by owners. Throughout the nineteenth century, the state relied
159 Robyn Burnett and Ken Luebbering, German Settlement in Missouri New Land Old Ways, 44-45,
47.
160 Frank Clinton Barnhill, History of Freemasonry in Saline County (n.p., Missouri Lodge of
Research, 1956), 7.
161 In Greene County, doctors G. P. and W. L. Shackelford charged $3.50 for seeing a “Back Boy” in
1838, Jane M. Adams received $150 for “taking care of old negro woman” in 1860, Mrs. Blackman was
paid $3 for midwife services for “negro Girl, Louisa” on February 1, 1850, and H. M. Parrish was paid a
total $7.50 for “Visit & Med. Two Negro Women” on February 23, 24, and 25, 1849. Probate records for
the county show payment of $1 for “sewing furnished Negro man” in 1848, “thirty cts for cutting coat for
Negro man Richard” in 1854, 75 cents for “One Rounabout Coat for a Negro Man” in 1842, and $2.50 for
“7 ½ lbs. of wool roles . . . clothing for old mareah children” in 1853. One particularly striking entry
written by William Dye records the death of a “Negro girl” on December 17, 1834; she was “furnished with
a dress and a sheet . . . and was decently buried in a coffin made by myself.” N. c. Slave and Medical and
Funeral Expenses (n. p., n. p., n. d.), 29,30, 33; Clothing and Related Expenses for Slaves (n. p., n. p., n.
d.), 34-35. http://thelibrary.springfield.missouri.org/lochist/blfamilies/BF%20Pages%20121-168.htm
Accessed May 17, 2005.
77
upon county and local judicial officials to uphold traditional order through statutory law
and custom.
Race was the most significant indicator of status in Missouri. It was not the only
one, nor did effects of racial policies apply uniquely to blacks. In the counties that
comprised Little Dixie, for example, a white person would have been imprudent to
openly befriend a free black in front of neighbors, and sexual intimacy between black
men and white women was a crime. But as all blacks and mulattos were deemed inferior
to whites, perceptions of the common good suggested the propriety of maintaining them
in dependent and subordinate situations under the control of whites. Members of other
dependent groups were affected by statutory law that affirmed political powerlessness
and loss of personal autonomy. Missouri law concerning vagrants, paupers, orphans, the
mentally ill and other classes of dependent persons was not as stringent as the state's
black code, however, as the poor and disabled did not pose similar threats to white
survival and dominance.
Slave law was articulated in Spanish law first issued in 1769; in addition, the
Catholic church published a “sort of canon law” known as “the Laws of Las Seite
Partidas,” which were enforced “as late as 1820.”162 Slave traditions were carried into
state law when Missouri entered the Union in 1821. But, even in territorial times, it had
an ambiguous character. Under the 1724 code a slave could sue his master for failing to
feed and clothe him adequately, although he could not testify against him. On the other
hand, he could testify against whites other than his master. A magistrate was deemed
162 Harrison A. Trexler, “Slavery in Missouri Territory,” Missouri Historical Review, vol. 3, no. 3
(April 1909): 179-198.
78
guilty of extortion if he accepted money from a slave accused of a crime. The 1804 code
prohibited blacks from bearing witness except in cases where the United States sued as
plaintiff against a black or mulatto “or in a civil suit where blacks were alone parties.”
Trexler find several cases during that period in which masters had been accused of assault
and battery after slaves had been declared illegally held in bondage. In two 1818 cases, a
slave accused of trying to poison the family received a new trial as requested by his three
attorneys, and two lawyers represented a black girl accused of murder. In general, the
slave in territorial Missouri exhibited greater liberality than did the codes enacted later.163
Freedom suits were an old form of litigation in Missouri. Territorial law of 1807
allowed slaves to sue for freedom, and some won.164 The law governing freedom suits
allowed a slave to petition to sue for freedom as a poor person; if granted standing, the
slave claimed a number of protections. These prevented others from doing harm to the
slave, e. g., preventing him from attending court, or taking him out of the court’s
jurisdiction. But the law also disallowed damages to the slave should he win his suit for
freedom. Either party was permitted to take the suit to the state supreme court.165 Unlike
some law affecting slaves, the freedom suit bill looked remarkably even-handed, even
fair.
As Missouri’s slave code developed, it was accompanied by laws designed to
control free blacks and mulattos. Later on, it was joined by an emerging body of
163 Ibid.
164 George R. Lee, “Slavery and Emancipation in Lewis County, Missouri,” Missouri Historical
Review, vol. 65, no. 3 (April 1971): 294-317..
165 Missouri, Revised Statutes (1845), Ch. 69.
79
dependency-related law. Race and dependency were subjects of legislation throughout
the nineteenth century but began to appear more frequently during the 1830’s and 1840’s.
In virtually all cases, statutes became increasingly restrictive.
Before the Civil War, slaves accounted for an increasing portion of Missouri’s
population. As shown below, the percentage of slaves in the general population of the
state did not change dramatically with time. But, in absolute terms, increases were
significant; and certain places showed high concentrations of slaves. The three counties
whose populations are shown below were established early. All figured importantly into
Missouri’s economy and culture during the nineteenth century. Cape Girardeau and
Saline were among the very oldest counties in the state. Greene County was organized in
1833, about thirty years later than the other two, and took its first census in 1840. In
Cape Girardeau County the ratio of whites to slaves actually rose between 1830 and
1860, while it remained virtually at a standstill in Greene County. But Saline County
exhibited a radically different pattern of race distribution: the percentage of slaves rose
from thirty-three percent to just under fifty percent between 1830 and 1860. The
explanation for the increase in numbers of slaves is that farmers in Saline depended very
heavily on slave labor for crop production,166 while those in the other two counties did
166 Initially Little Dixie farmers tried to duplicate the agriculture of the upper south, according to
Douglas Hurt. Cotton was tried but did not work out because the climate was too cold. Wheat and corn did
better, and, with hemp, enhanced the region’s reputation for agriculture Hemp became a spectacular
success for a time, but profits fell before problems associated with preparation of the hemp for market,
grading, and falling prices as the Panic of 1857 approached. However, prior to the war, before immigration
shifted to the west, and while traffic on the Missouri River remained heavy, hemp produced good profits
for the region; “[i]ndeed, without slavery, hemp production would not have been economically viable.”
Nonetheless, farmers in the region continued to use slaves for tobacco and cereal crops and as domestic
servants and manual laborers in towns. R. Douglas Hurt, Agriculture and Slavery in Missouri’s Little Dixie
(Columbia: University of Missouri Press, 1992), 65, 69, 121, 123; Authorene Wilson Phillips, Arrow Rock,
The Story of a Missouri Village (Columbia, Missouri: University of Missouri Press, 2005), 109.
80
not. These increases help explain why Missouri law increasingly surrounded slaves’
conduct with restrictions and harsher punishments in the years before the Civil War.
1830 1840 1860 1870167
STATE
General 149,455 1,182,012 1,721,295
White 1,063,489 1,603,146
Slave 25,096 114,931
CAPE
GIRARDEAU
White 6398 13,961
Slave 1026 1533
GREENE
White 8,020 11,509
Slave 677 1,668
SALINE
White 2,141 9,800
Slave 706 4,876
Connections between social arrangements, protection of slavery, and controlling
black violence were close ones in the minds of antebellum Missourians. Black laws may
be discussed from the perspective of the deed or of the perpetrator. Missouri’s black
code was not a criminal code or civil code in an ordinary sense of the word. Laws
167 (2004), Historical Census Browser Retrieved March 10, 2010, from the University of Virginia,
Geospatial and Statistical Data Center: http://fisher.lib.virginia.edu/collections/stats/histcensus/index.html
81
addressing the status and control of blacks, both free and bonded, are of a different
nature. Some laws aimed at maintaining a slave regime by prohibiting specific conduct
by whites and penalizing it. Some of these laws were aimed at all white Missourians,
who were thus expected to uphold social policies. Other laws were created with the
commercial sector in mind: steamboat operators or tavern keepers offered blacks
something they might want, such as liquor, or escape over water. Whites were
determined to prevent business operators from succeeding. Still other statutes named acts
which, if committed by slaves, were subject to corporal punishment, but did not apply to
whites; slaves needed a pass outside the plantation, for instance. Finally, some measures
dealing with minor slave offenses appear to form part of a criminal code. The minor
1830 statute on slave misdemeanors, described below, serves as an example—but
surround misdemeanors with weirdly constructed procedures and penalties that clearly set
them apart from ordinary criminal law. The only statutes that identify slave acts as legal
violations in a manner that seems more or less usual are those concerning serious crimes,
most of them violent. Accordingly, the slave code set forth procedures for trying and
punishing slaves accused of murder and rape, acts that would be criminal whether
committed by blacks or whites. Even then, some qualities in the statute make it not seem
to be about the offense itself but about the offender.
The Missouri slave code represented the harshest treatment that the law imposed
on persons possessing no visible support. Significantly, an important statute of 1830
granted jurisdiction over most slave offenses to township justices of the peace—that is, to
a local justices’ court. According to the law, a slave who committed “any . . . thing
properly known or recognized by existing law as a misdemeanor . . . shall be taken before
82
any Justice of the peace in the township where the offence is committed.” The judge was
instructed to “maturely and impartially [consider] all the evidence adduced in the case”
before ruling; if found guilty, the slave could receive up to thirty-nine lashes of the whip.
If the owner of the slave requested a jury trial, the judge was obligated to grant it; in that
case, the jury would determine the outcome. Justices also held jurisdiction where a slave
stood accused of property theft of less than $20, with the same penalty. The measure
explicated the slave’s right to trial by jury, declaring that “this section shall not be so
construed in any case, as to deprive the slave or slaves accused of the offence in this
section mentioned, of an impartial trial by jury.”168 The issuance of a slave’s grant of a
trial did not appear in subsequent slave measures.
Other laws aimed to control or forbid conduct that would not be considered a
violation of law in the case of a white. All measures either explicitly assigned
jurisdiction to the justice of the peace or understood it to rest there. In 1832, the
legislature combined two objectives in a statute that prohibited blacks’ access to liquor
and aimed to keep slaves away from white churches, with special emphasis on Sunday as
a day of worship. It forbade tavern keepers to allow slaves and free blacks to gather at
taverns and drink alcohol, “especially on the Sabbath Day,” and also prohibited slaves
from disturbing church services. The tavern provision punished the owner or keeper of
the business, fining him or her between five and fifteen dollars per offense. An exception
provided that a slave sent by a master to purchase alcohol could go onto the premises, as
long as the slave had a note from the owner to show that the errand was legitimate. In a
168 Missouri, AN ACT to change the manner of trying Slaves for misdemeanors and certain Crimes,
Laws (1830).
83
second provision, a slave caught disrupting white religious services could be tried before
a justice of the peace and given up to twenty lashes of the whip.169
By the late 1830’s and early 1840’s, legislators increased their use of law in order
to advance race-based policies and discourage opposition to them. Two such laws spoke
directly to whites. The first, enacted in 1837, aimed to protect legal slavery in Missouri
by reducing public discussion of its merits. Violations were not controlled by the justice
of the peace, but the statute conveys the sense of a political and racial climate focused on
safeguarding legal slavery, and, along with it, the legal apparatus that supported slavery,
which was under the control of justices. The statute criminalized speech that promoted
the anti-slavery cause and opposed slavery, whether delivered through “writing,
speaking, or printing.” The first offense carried a $1000 fine; a third offense was
punishable by life in the state penitentiary.170 The statute failed to identify jurisdiction,
but the nature of the violation and severity of the penalties suggests that cases would go
to a circuit court.
The second statute authorized county courts to appoint neighborhood patrols. The
act did not specify the patrols’ purpose or purposes, but the object clearly was to police
the movements of slaves, identify those who were away from their owners' property
without written permission, and punish them accordingly.171 Actually, counties had been
appointing patrols for years without state-enabling legislation. According to the author of
a Clay County history, “County courts usually named patrols for each neighborhood in
169 Missouri, AN ACT to prevent mischief and dishonesty among Slaves and Negroes, and for other
purposes, Laws (1832).
170 Missouri AN ACT to prohibit the publication, circulation or promulgation of the abolition
doctrines, Laws (1837).
171 Missouri, AN ACT supplementary to “An act concerning Patrols, Laws (1837).
84
the county, and where they failed to name the patrols, the citizens of a neighborhood
would name them. It was the duty of patrols to watch . . . where negroes were likely to
be or congregate and when found after nine o’clock without a written pass . . . that negro
or negroes were punished by the patrols then and there, administering a sound thrashing.
White male residents acted as policemen when they performed as members of slave
patrols in their townships. The statute authorizing appointment of patrols clothed them
with collective authority as they searched for slaves and covered their subsequent acts
with legitimacy. Slave patrols supply a very strong example of construction and
enforcement of law by neighborhoods. Legislative enactments defined where slaves were
supposed to be at all times, explained the required pass, and indicated forbidden
behaviors and relationships; they supplied the formal law, in other words. But the
community itself, in the appearance of the slave patrol, decided itself how it would
proceed on encountering a slave in specific circumstances. No wonder it was said that
that “ghosts [and] hobgoblins held no greater terror to the average negro than patrols.”172
Elsewhere, the state attempted to rid itself of slaves most likely to present a
danger to the white community. Though on its face it dealt with punishment for a felony
conviction, the truly significance of the bill was located in the provision for expelling a
slave. It first provided a severe penalty for a felony conviction: any slave convicted of a
felony was to receive “on his bare back any number of lashes, not exceeding thirty-nine.”
The more significant portion of the bill gave the appropriate court discretion to expel
slaves from the state at his or her owner’s expense. Such a slave could not return to
172 W. H. Woodson, A History of Clay County, Missouri (Topeka: Historical Pub.Co.,1920), 88.
85
Missouri for twenty years, “without lawful permission.”173 It was unlikely that a slave
would receive such permission, and legislators no doubt felt that a twenty-year period
spent out of Missouri would significantly reduce the possibility of a return.
Another cluster of measures dealing with slavery passed in 1841. Two punished
whites. One had the effect of penalizing steamboat operators, who were known to
facilitate slave escapes. Under the measure, slave owners would sue steamboat operators
who transported a slave on a steamboat without obtaining the owner's permission “by
action of debt” for the value of the lost slave.174 The law seemed more concerned with
the monetary loss of a slave than with stopping escapes, though legislators may have
reasoned that a threat to steamboat operators’ pocketbooks would discourage them from
assisting would-be escapees.175
A second enactment applicable to whites punished an owner whose slave had
hired out his own labor without permission by a fine of up to $100. It was undesirable
for a slave to act independently; moreover, a slave who hired himself out undoubtedly
would keep his wages, and the object was to maintain slaves in a penniless state, to
ensure feelings of dependency on the master and, by extension, on all whites. Finally, in
essentially running a private business venture that their owners knew nothing about,
slaves who made deals away from owners’ property would more likely succeed, and
Missourians did all they could to prevent slaves wandering about where their movements
could not be observed
173 Missouri, AN ACT amendatory to an act concerning crimes and punishments, Laws (1837).
174 Missouri, AN ACT supplementary to an act, entitled “An act concerning Slaves” Laws (1841).
175 Sometimes escape attempts drew the sympathy of whites. John S. Doak of Greene County was a
slave trader known for his brutality as a master, “[so] that it was not strange his slaves should run away.”
The escapees commonly had “crooked and stiff fingers, “frost-bitten toes,” and bodily scars. History of
Greene County, 246.
86
A third statute in 1841 dealt with freedom suits. A county sheriff who hired out a
slave who was suing for freedom could retain any wages earned by the slave and loan
them out at interest. The earnings would remain in with the county, regardless of whether
the slave won the litigation.176
Missouri revised the state code in 1845. The new code included many measures
meant to fill what legislators perceived as gaps in previous slave law. Goals included
controlling slaves’ movements, reducing contacts between slaves and whites, and making
it more difficult for slaves to escape successfully. Justices of the peace received power to
arrest any slave wandering about without permission or a pass and order stripes at his
discretion. A slave suspected of “riots, routs, and assemblies, and seditious speeches . . .
and insolent and insulting language of slaves to white persons” would be tried, and, if
found guilty, would be “punished with stripes, at the discretion of a justice of the peace.”
A slave suspected of having harbored an escaped slave might be tried before a justice of
the peace, and, if found guilty, whipped. No more than five slaves could meet at any one
time on the plantation of any person other than their owner’s unless they met for worship
or “some other lawful purposes.” Any white person or free black or mulatto found at an
illegal gathering would be penalized as well. The white would pay a ten dollar fine,
while a black or mulatto could receive up to thirty lashes ordered by a justice of the
peace. Any justice of the peace could try slaves who stood accused of disrupting a
religious service and punish them with thirty lashes he found them guilty (up from twenty
176 Missouri, AN ACT amendatory of an act, entitled “An act concerning Slaves,” approved 19th
March, 183, Laws (1841); Missouri, AN ACT amendatory of an act, entitled “An act to enable persons held
in slavery to sue for their freedom,” approved 27th January, 1835 Laws (1841).
87
lashes as specified in 1832).177 Some offenses did not specify jurisdictional authority,
including permitting a slave to trade in alcohol; however, on the suspicion of any of the
violations in the article, a grand jury was supposed to be empanelled, and, if appropriate
issue a presentment. This would authorize the township justice of the township to
“proceed thereon” in causes “cognizable” in a justices’ court. Similarly, any person who
engaged in an economic transaction with a slave without first gaining the owner’s
permission was liable to indictment by a grand jury. The revised code devoted several
paragraphs to preventing whites from bringing into Missouri “any slave belonging to any
person, not a resident of, or bona fide emigrant to, this state, shall be punished by fine,
not exceeding two hundred and fifty dollars, to be recovered by indictment.” The
measure made exceptions for whites who traveled through the state with slaves, or who
inherited slaves from persons who died while residing in other states. If a county peace
officer or any white person discovered a slave wandering about, or working for someone
without proof of having an owner in-state, he was to take the slave before a justice of the
peace for commitment to the county jail.178
Such provisions served as public warnings to whites who might sympathize with
slaves, but they had particular meaning for slave owners, who tended to resist what they
considered to be nothing more than interference with their rights as household governors.
177 Missouri, An Act concerning slaves, Revised Statutes (1845), art. 1, sections 3-4, 8- 9, 17-22, 25-
26, 29, 33. Harriet Frazier describes an 1849 case in Cape Girardeau brought under the insulting language
provision. The slave requested and received a jury trial and was found guilty; however, the ruling was
appealed to the circuit court. Frazier believes that courts bothered with “such trivia” as a means of keeping
slaves in their places. Slavery and Crime in Missouri, 1773-1865 (Jefferson, NC: McFarland & Company,
Inc., Publishers, 2001), 151.
178 Missouri, An Act concerning slaves, Revised Statutes, (1845), art 1, sections 3-4, 8-9.
88
Whites feared and abhorred sexual relations between white women and black
men. Under 1845 Missouri law, sexual intercourse between black men and white women
was punished with castration, “to be performed under the direction of the sheriff, by some
skilful person.” Castration was applied in cases where a black or mulatto attempted to
rape or had raped a white woman, married or had sexual intercourse with a white woman,
or escaped with a white woman less than eighteen years of age. The law says nothing
concerning the legal status of the black or mulatto, leaving it to apply, at least in theory,
to either a bonded or free individual. However, Missouri law usually used the word
‘slave’ when in references to slave conduct. A white person who had “assisted” a black
or mulatto in the commission of such crimes was equally subject to castration.179 By
contrast, penalties levied against whites found guilty of the same crimes were between
three and five years in the state penitentiary.180
Missourians were well aware of the potential danger of free blacks joining forces
with slaves to commit violence against whites. Statutes sought to reduce opportunities
and modify the legal status of free blacks to more closely resemble that of slaves.
Mechanisms included laws to discourage residency and the right to own a weapon. Other
law aimed to prevent transport of free blacks into the state. Justices of the peace held
jurisdiction. In most instances, that meant that the offending black would be brought
before a justice of the peace to be examined and tried, and, if found guilty, be thrust into
jail.
179 Ibid., CRIMES AND PUNISHMENTS, ch. 47, sections 31-32. Regarding free blacks’ freedom
to marry, I have not located a Missouri statute on that subject.
180 Ibid., sections 26-30.
89
In order to encourage free blacks to emigrate from the state, Missouri required
free blacks and mulattoes to “obtain a license, or otherwise acquire a right to reside
within the state.” The license originated with the county court. The black had to pay a
one thousand dollar bond and supply “satisfactory evidence” that he or she was qualified
to receive a residency license. Once the license had been purchased, it did not remain
with its owner but was left with the county court “for safe keeping.” Any black who
refused to surrender the license on being requested by a township or county official ran
the risk of receiving up to thirty lashes, on the order of “any justice of the peace of the
county.”181 Because the measure maintained silence on what it meant by satisfactory
evidence of fitness to receive a license, county officials could exercise discretion in
individual cases. Justices could refuse to allow a license for any reason, and, as the
statute did not provide a mechanism for appeals, the applicant could not mount a legal
challenge. The language of the law allowed county courts to act liberally or not; if
feeling in the neighborhood ran high against the presence of free blacks, the county court
had the capacity to respond accordingly. Statutes with the flexibility to allow justices of
the peace to act with discretion worked in favor of local custom.
A license was issued on the recommendation of a respected white person.
Without the reference (or some equivalent), there was virtually no chance for a free black
to acquire a residency license to allow him or her to stay in the state. The language of the
state law permitted local communities to determine, alone, what they would accept as
satisfactory evidence of qualification for the license. The terms of state law, then,
allowed justices of the county court and local residents to act in concert in interpreting
181 Missouri, FREEDOM, Revised Statutes (1845), sections 7-11, 14-16, 18, 19, 22-29.
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and enforcing the residency law. Recommendations followed no particular format and
could be of any length. Sometimes a recommendation showed genuine compassion
toward the petitioner. A. O. Nash wrote to the Marion County Court in February of 1852
regarding a black woman who wished to reside within the state.
At the request of Peter Campbell (a fine man of colour) I make the
following statement. His wife Peggy was born a Slave in Virginia
co. and the property of my father Abner Nash. After the death of
my father My Mother Emigrated to this State in the year 1832 and
brought with her the Said Slave Peggy where the said slave has lived
ever since and was sold in the year 1851 to Peter Campbell her
husband. Peggy’s character I can safety say to the Court is without
reproach, she is Honest, Correct in Morals, and her disposition
naturally mild & in every respect worthy under the Law to receive
her final Papers & by complying with the Law to remain in the state.
A free black also required a license in order to own a weapon. The license
presumably protected individuals’ right to have a weapon in their possession. The
weapons license was purchased from a justice of the peace, who could revoke the license
at any time. If a white person discovered a gun or other weapon in the possession of a
free black or mulatto, and the black could not produce a license, the black might be taken
before a justice of the peace and tried. If the justice accepted the “proof” of illegal
possession, the black or mulatto lost the weapon to the informant, who was permitted to
retain it “for his own use.” The statute presented two immediate problems for the owner
of the weapon. First, the free black with the weapon needed to remember to keep the
license on his or her person whenever carrying the weapon. Second, the fact that a justice
might revoke a weapons license without cause made its purchase absurd in the first place.
It not only encouraged whites to steal, but it also robbed the black man of a symbol of
power and manhood that attached to all white men without question. In an important
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sense, then, one of the achievements of the law was to emasculate free black men. The
law forced blacks to purchase a county weapons license that failed to protect the privilege
that it was supposed to deliver.182 The ability of the county court to restrict free blacks’
legal access to weapons enhanced its role as the keeper of local practices and norms.
Free blacks, unlike whites, could not expect their legal status to be recognized as a
matter of course, and, in fact, state racial policy assumed that a black was a slave unless
proven otherwise; thus, any unknown black entering Missouri was treated as a slave. For
a free black, that meant that the first problem to solve was that of legal status.
“It shall be the duty of every sheriff, constable, coroner and
marshal, whenever he shall know . . . that there is in his county, . . .
a negro or mulatto, not authorized to reside within this state, to
apprehend such negro or mulatto, and take him before some justice
of the peace. . . . Whenever any negro or mulatto shall be brought
before any justice or other officer, such magistrate or court, unless
satisfied that such negro or mulatto is a free person, shall commit
him as a runaway slave.”
If convicted of being a runaway slave, a free black or mulatto might receive
twenty lashes of the whip and be fined court costs incurred in connection with the trial in
justices’ court. If the defendant did not pay, he or she was hired out by the county and
the wages earned were applied toward costs. The measure did not provide guidelines for
calculating costs, but left the amount to the discretion of the county.183 Failure to specify
amounts of fees left local authorities free to determine these sums, with the result that the
defendant had no recourse if courts imposed unreasonable amounts. A convicted black
thus might labor for an indefinite time in order to complete payment of court fees.
182 Missouri, An Act concerning free negroes and mulattoes, Revised Statutes (1845), sections 2, 3.
183 Ibid., sections 23, 27, 29-30.
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With the end of legal slavery in the United States, social patterns and labor usages
dating from the slave era did not immediately die in Missouri. In Arrow Rock Township
in Saline County, the population of blacks was reduced by thirty-six percent between
1860 and 1870, yet sixty percent of them continued to work in white households.184
Blacks in some Missouri places formed groups of their own for self-protection and other
purposes. In Saline County, where slave labor had been deemed essential to the county’s
economy, former slaves banded together to form a community called Pennytown 185
Violence against blacks continued. In New London, Missouri, for example, the black
New London Christian Church, was subjected to harassment by whites who stood outside
the church before services began on Sunday and insulted worshippers going inside. On
other occasions, ruffians broke the church’s windows and offended the women inside.
Once, in October of 1869, a male passer-by took two shots at the main door of the
church, fortunately striking no one.186
Prior to the Civil War, then, statutes concerning race and slavery consumed far
more attention than any other dependency law. However, blacks and mulattoes were not
alone in suffering “outsider” status enforced by law. Other dependent classes saw limits
to their right to locomotion, to select their companions, and to control property.
184 Dr. Gary Kremer, “Life in Post-Civil War Missouri,” presented before Friends of Arrow Rock,
September 17, 2000. http://www.friendsar.org/postcivil.html Accessed March 17, 2010.
185 Wilson Phillips, Arrow Rock, The Story of a Missouri Village (Columbia: University of Missouri
Press, 2005), 72, 108.
186 Gregg Andrews, “The Racial Politics of Reconstruction in Ralls County, Missouri, 1865-1870,” in
ed. with an introduction, Thomas M. Spender, The Other Missouri History: Populists, Prostitutes, and
Regular Folk (Columbia: University of Missouri Press, 2004), 25-26.
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Missouri’s policies on dependency were not unusual. Other states took shifting
attitudes toward the poor during the nineteenth century. In his study of social order in
antebellum America, David Rotham discusses attitudinal changes toward poverty during
the nineteenth century, beginning with the colonial era. Commenting on a tendency to
associate poverty with cities, he notes that extreme poverty could be found in rural as
well as urban centers.
Americans in the antebellum era . . . gave unprecedented attention to
the issue of poor relief. . . . Observers feared that paupers were
draining the nation’s resources, demoralizing its labor force, and
threatening its stability . . . It was not the actual number of poor in
antebellum society that logically and predictably altered the colonial
perspective. Rather, nineteenth-century Americans judged the issue
from a new viewpoint, so that he who had once been an accepted
part of the community now became an odd and even menacing
figure. . . . this was an agricultural society, and major causes of
poverty were to be found in the low wages paid to the farm help, the
seasonal layoffs, the absence of any protection against sudden
disaster, illness or injury to those unable to purchase and settle a
freehold of their own. 187
Statutory law enacted in the 1820s indicated that Missouri was slowly working
out changes in policies in provisions to care for poor persons and members of other
dependent groups. The measure separated dependent persons from the general
population, and, as is the tendency with institutionalization, reduced their rights. The
initial act was a simple, straightforward measure to institutionalize disabled minors.
Passed in 1838, the statute set aside two thousand dollars annually for the education of
“deaf and dumb” children between eight and eighteen years of age at an asylum located
187 David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New
Republic, (Boston: Little, Brown and Company, 1971), 154, 160-161.
94
in St. Louis County. The measure allotted forty dollars to the superintendent of the
Carondelet Asylum for each pupil educated during the previous six-month period.
Curiously, the law failed to specify standard subjects of instruction. The superintendent
submitted a written report every six months, providing information on the condition of
the place and general facts about the resident population. It does not appear that any
audit was performed or that any inspections were scheduled or made: as soon as the
report was submitted to the state’s Auditor of Public Accounts, that official was to “draw
his warrant on the Treasurer in favor of the superintendent of said asylum.”188
Neighborhood courts were not called upon to act in this law. It is mentioned for
two reasons. First, it initiated a particular strategy, which emphasized fiscal concerns
over the rights and needs of the inmate population and was silent on any civil rights.
Second, county courts were deeply involved in enforcement of subsequent dependency
laws.
Elsewhere, in 1843, local courts were clearly present. The legislature passed a
measure that clearly demonstrated the state’s commitment to indoor relief, for instance.
Lawmakers ordered county courts to construct and superintend institutions to house the
poor and undertake responsibility for their care. However, counties received little
guidance in terms of the content and quality of daily care. Each county was authorized to
buy land to construct a poor house; levy a tax to pay building expenses, including labor
and materials; appoint poor house superintendents; establish rules to govern inmates,
supply inmates with materials for making products to be sold by the court for inmates’
188 Missouri, AN ACT to provide for the education of Deaf and Dumb children, between the ages of
eight and eighteen years, Laws (1838).
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support; appoint a person to handle the finances of the poor house; and replace
superintendents as necessary.189
The logical next move was to simplify procedures regarding the welfare of
dependent persons. Accordingly, in 1845, the legislature defined “[a]ged, infirm, lame,
blind or sick persons, who are unable to support themselves” as poor persons within the
meaning of the statute. The definition served as the most direct means of extending to all
dependent persons the same legal status attached to the poor, an important state goal. The
amended law made clear that the real problem was not the disability, which served as an
excuse; in fact, a community's fiscal resources were always affected as a result of caring
for dependent individuals.
During the session of 1845, the legislature enacted a private bill that effectively
privatized the care of orphans.190 If not the sole or primary purpose of the law, it
established a legal entity with powers similar to those of a Missouri county court as
guardian and overseer in the lives of poor and orphaned apprentices. The measure
incorporated a home for orphans and named as its managers a private group of women,
“Emeline Hough and associates.” The statute authorized the corporation to accept poor
and orphaned children into the home. Where a parent was still living, the home would
accept the “surrender” of the child by the mother or father. Once under the authority of
the orphan’s home, a child was bound out to “virtuous families” until the age of eighteen
or marriage. The statute did not indicate any physical location for the home, nor did it
189 Missouri, AN ACT to authorize the county courts of the several counties in this State to
erect Poor Houses, whenever they shall deem it expedient, Laws (1843), sections 1-6.
190 Missouri, AN ACT to incorporate the Orphan’s Home, Laws (1845).
96
refer to buildings, grounds, or property that the corporation owned. If the corporation
represented solely a legal entity, with no physical address, probably every child under its
care received outplacement.
The arrangement sounds very like an indenture, although the word itself does not
appear in the law. It is not clear how managers of the orphan’s home would acquire the
legal power to sign contracts of indenture and supervise placements in the manner of a
county court. On the other hand, it may have made little practical difference, as the
home’s management could always fall back on the vaguely stated but “absolute” powers
that that measure provided. Presumably, officers could remove a child from an
unsatisfactory placement if his or her best interests suggested it, though the measure is
silent on what might constitute reasonable care and support.
In addition to granting the “board of managers” entire control over its charges, the
statute gives the board complete control over all income and disbursements. A key
provision required the parent of a child under the care of the home to compensate the
institution for “expenses incurred in his, her or their relief” if the parent wished to take
the child back home. The law apparently operated throughout the state.
More than thirty years, state lawmakers appropriated money to support the
Industrial Home for Orphan and other Indigent Children of Missouri. The home was to
be run by the incorporated Widow’s and Orphan’s Home Society in Jackson, Saline
County, where the projected institution would be built. The appropriations bill, which set
aside $5,467, had followed legislation to establish the institution. Trustees were to
provide “care, custody, maintenance and education of such destitute and indigent children
as may not have the care, support and protection of a competent parent or guardian.” The
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grant of money seemed to be a one-time-only financial award. At any rate, there was no
reference to a budget year or conditions for renewal of the grant. Release of the funds
was conditioned upon acceptance by the Society of the real estate itself, which had been
owned originally by the Society, then conveyed to the state. At the time of the bill’s
enactment in 1877 the state was “the owner in fee simple.” The statute does not supply
details regarding the children’s care. It also leaves vague the meaning of “competent
parent” and the mechanism for selecting children for placement in the home. Financing
of the institution and title to the property itself are unclear. It is also unclear whether the
Widow’s and Orphan’s Home had any connection with the Orphan’s Home incorporated
in 1845.191
There can be no question that the state’s strategy made poor relief more efficient
and likely less costly. County courts were centrally involved. They routinely made
individual payments toward the care of dependent persons, either to the individual
himself or herself, or to a caretaker. In a piece listing expenses of the St. Genevieve
County Court for the year 1823, the Independent Patriot included $75 paid to a local
pauper, while the same newspaper reported a payment of $36 to “Daniel Houser for
supporting Desioa a deranged woman” and $25 to “Jonathan Johnson for supporting
Matthew Hardin a poor person.”192
Every time a county court disbursed such payments, it necessarily made an
individual judgment in allowing the claim in the first place, and second, deciding the sum
191 Missouri, AN ACT appropriating money to pay the accruing and necessary debts and expenses of
the Industrial Home for Orphan and other Indigent Children of Missouri, and directing the conveyance of
certain real estate to the Widow’s and Orphan’s Home Society, Laws (1877).
192 The name of the pauper is illegible. December 27, 1823; January 3, 1824.
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to be paid. The county payments above provide only disbursements. We do not know
whether a caretaker submitted a bill of sorts, named a sum that seemed reasonable, or
whether court simply came up with a calculation of its own. The new poor house plan at
least evened out support of dependent persons, treating them more or less equally. This
is not to claim that paupers and other vulnerable members of the community received
better treatment when institutionalized, though for some probably was true. Treating
poverty as a primary category and other disabling conditions as sub-categories within it
eased institutionalization of a larger population group, and using the single institution of
the poor house was cost-effective.
The terms of the statute—“ infirm,” “sick, even “aged”—were sufficiently
imprecise to create maximum utility for counties. Commitment to an institution was not
the worst that could happen to a dependent person, of course, especially if he or she
lacked family or close friends willing to assume the responsibility. From that standpoint,
the Missouri policy recognized a communal obligation to care for its more vulnerable
residents. On the other hand, if the statutory language is taken at face value, inmates of
the county poor houses enjoyed very little, if any, freedom of action. They lived
according to rules composed by the county court and had no effective means of refusing
orders of the county-appointed superintendent, who possessed “power to cause persons
kept at such a poor-house, who are able to do some useful labor, to perform the same by
reasonable and humane coercion.”193 In practical terms, the state deposited into the
hands of the superintendent and members of the county court powers not unlike those
193 Missouri, AN ACT to provide for the support of the poor, Revised Laws (1845), ch. 134,
sections 1-3, 9-10.
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enjoyed by slave owners. How inmates fared depended on county resources and the
community’s understanding of its obligations, filtered through the court, toward
vulnerable residents.
A separate law of vagrancy was passed in 1845.194 According to the statute,
vagrants comprised “able-bodied” individuals found “loitering or rambling about,” who
did not work and lacked a visible means of support. A man was a vagrant who begged or
had deserted his family and left them without funds. In addition, “[a]ll keepers or
exhibitors of any gaming table or gambling device, and all persons who travel or remain
in steamboats, or go from place to place, for the purpose of gaming are deemed and
treated as vagrants.”
Again, justices of the peace were centrally associated with controlling vagrancy.
Suspected vagrants were arrested on orders of the justice of the peace and tried by jury in
his court. The measure mandated a jury, which was to “inquire whether the person be a
vagrant or not.” The use of a jury suggests that neighbors of the defendant would be
expected to be better acquainted with circumstances in the defendant’s life than even the
justice of the peace. Then, too, the justices’ court was supposed to rule with fairness in
mind, and the jury’s knowledge would help ensure a more just result for the defendant.
Upon conviction, the violator was hired out “at the court house door . . . for the term of
six months, to the highest bidder, for cash in hand.” Husbands and fathers who had
deserted their families would have been a special source of anxiety to public officials for
two reasons. First, a family that consisted of a woman and children, but lacked a husband
and father, did not conform to the very popular image of the time of the pioneering
194 Missouri, AN ACT respecting vagrants, Revised Laws (1845), sections 1-3, 9-10.
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family. Second, a man-less family was more likely to require financial assistance than a
family with a man, and the money might have to come from the public purse.
While vagrancy violations do not crowd the records, they were fairly usual. In
Cape Girardeau, a justice arrested Peter, a free black man, in 1832 on a vagrancy charge;
in 1871, James H. Stewart, “a colored boy,” was arrested and his case sent on up to the
circuit court for trial.195 If the vagrant were a minor, the offender could be committed to
jail to wait for the next term of the county court, At that time, he would be placed in an
indenture and taught a trade.196
Vagrancy apparently was a deeply shameful designation. In the late nineteenth
century, attorney S. H. Water wrote to a friend concerning a few local cases, ending the
letter with joking reference to an acquaintance by the name of Harkins: “I notified
Harkins that if he did not leave town and County by 3 P.M. Saturday I would have him
arrested as a vagrant & he left instantly.”197
Vagrancy posed implications for the public cost of poor relief. Any person
committed to the county poor house was supposed to be a county resident. By definition,
vagrants wandered about and had no permanent home. Their place of residence, then,
was uncertain: hence, the use of a jury to investigate the vagrant’s circumstances. A
vagrant who was committed to the county poor house was another fiscal burden on
195 Justice of the Peace Criminal Docket Book, 1832-1889, Cape Girardeau Archive Center, Jackson,
MO.
196 Missouri, AN ACT respecting vagrants, Revised Laws (1845), sections 1-5. We know that the
statute excluded black minors, who under law could not be taught a trade.
197 George Ambrose, folder 1, R641, WHMC-UMR.
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taxpayers, but a vagrant whose labor was hired out produced income for the county.198 It
was therefore as much a matter of economy, as one of justice, to take great care in
deciding the future of a person charged with vagrancy.
Dependency could describe many conditions, not including insanity, which
involved a mental deficiency rather than a physical disability or inability to show income.
An 1843 law declared that county courts would determine cases of alleged insanity and
authorized the presiding judge to convene a special term if necessary in order to try such
cases.199 Under that statute, a six-man jury in Carter County in February Term, 1868,
found Mary Loyd “perfectly insain” on the basis of evidence presented by an examiner,
and ordered her sent to the “State Lunitice Asylum.”200 Wealthy persons who were
mentally unstable or those with wealthy connections probably were been cared for at
home.
Apprentice law always had been designed to supply cheap labor to farmers and
householders and control the movements of poor people, blacks, and other disempowered
persons. Indentured apprenticeships differed from other legal statuses in several respects,
notably the fact that indentures applied only to children. Additionally, the indentured
servant eventually was released from his or her contract. A written contract described the
terms, including the number and kind of gifts the worker would be given upon his or her
release from the indenture, such as a bible, a little money, and some clothing. Here, as
198 Hendrik Hartog discusses settlement law and vagrancy in just these terms, pointing out the
dilemma for a local jurisdiction if a proper determination of a person’s residential status could not be made.
“The Public Law of a County Court: Judicial Government in Eighteenth Century Massachusetts.”
199 Missouri, AN ACT to amend “an act relative to insane persons” Laws (1843).
200 Carter County Court Records vol. A 1859-1882, WHMC-UMC.
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elsewhere, the state made the county court an active party to the indenture; indeed,
without the signature of a county judge, the agreement was not binding. Masters were
required to keep apprentices in Missouri, a requirement that facilitated judicial
supervision. Where disputes erupted between masters and indentured servants, county
judges decided the case. An apprentice could be moved from one household to another as
well, if the court considered it advisable.201
Indenture contracts differed very little from one another. One typical document
describes the terms to which William Houpt and his brother, six-year-old James Houpt,
agreed in 1845 in Cape Girardeau County. The boy’s father had died, and the guardian
determined, with the approval of the county court, to apprentice both boys to a man
named George Cramer, who promised to teach them cigar-making. Cramer also agreed
to teach them
to read and write & the ground rules of arithmetic the Compound
rule & The rule of Three and at the expiration of their term of
service shall give them each a new Bible two new suits of clothes to
be worth forty dollars and one hundred dollars of Current money of
the united States each and that he will not remove said apprentices
out of the Jurisdiction of This State & that he . . . will constantly
find and provide . . . Sufficient food raiment & lodging & all things
necessary.202
Whether a situation was referred to as an indenture or as an apprenticeship was to
some degree a matter of language. Indenture law when applied to white children,
moreover, had precise features that did not necessarily apply in the case of black children.
201 Missouri, AN ACT concerning apprentices, Revised Laws (1845), sections 2, 8, 13-14, 21.
202 Indentures, G. H. Cramer, Master of Wm. & James Houpt, Cape Girardeau County Archive
Center, Jackson, MO.
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The lists below represent children signed to indentures in Cape Girardeau County and
Greene Count, respectively.
CAPE GIRARDEAU COUNTY INDENTURES203
Name Age Trade Taught Year
Jesse Brent 14 farming 1840
John E. Briant 12 farming 1847
Washington Copeland 13 farming 1844
James Clubb no age farming 1848
Jane Clubb 13 housekeeping 1849
John Clubb 11 farming 1849
Andrew Jackson Estes 10 farming 1842
Lydia L. Estes 8 housekeeping 1842
Elizabeth Ford 10 housekeeping 1847
William Giles 11 miller’s trade 1844
Jasper A. Glasscock* no age farming 1844
Tennessee G. Glasscock* 11 housekeeping 1845
Jenifer Glasscock 13 farming 1845
Mary Hoskins ? housekeeping 1849
Michael Hoffstatler no age coopering 1847
Charles Houpt 10 brickmason 1845
James Houpt 6 cigar-making 1845
203 Indentures, Probate Records, Cape Girardeau County Court, Cape Girardeau County Archives,
Jackson, MO. All information was transcribed unedited from the original record.
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William Houpt 8 cigar-making 1845
Albert E. Melton 12 farming 1841
John McCarty 19 carpenter 1844
Bozell McIntosh 12 farming 1842
Catharine Patterson 10 housekeeping 1849
Andrew Perdue 17 farming 1841
Rolen Perdue** 12 farming 1843
Miller Phillips 15 farming 1847
Henry Planert 12 farming 1847
William Henry Poe “infant son of Simon blacksmithing 1842
Poe, De’d”
Andrew Priestly 10 “Art or Mystery 184
of farming”
Thomas A. Punch 15 farming 1849
Julia Ann Sadler 9 housekeeping 1840
John W. Seavors 8 farming 1848
David D. Self (poor) 9 farming 1844
Jacob Self (poor) 15 farming 1844
Hesekiah Self (poor) 10 farming 1844
James Steely 15 farming 1841
Joseph Traller 16 farming 1847, 1849
Loid Odine Westoner 8 farming 1842
(poor)
* Tennessee was the daughter, Jenipher the son.
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** Rolen Perdue’s mother, Ruth Hampton, placed him in the indenture.
GREENE COUNTY INDENTURES204
Trade
Race/sex Age taught Year
white boy 14 farming 1833
white girl 10 no trade 1833
white boy 12 no trade 1833
white boy 7 no trade 1833
white boy 5 no trade 1838
white boy 14 no trade 1839
white boy+++ 16 tailor 1840
white boy, orphan 10 farming 1841
white boy, orphan 17 farming 1841
white boy, orphan 9 farming 1841
white boy 12 saddler 1840
white boy, orphan 11 farmer 1841
white boy 16 farming 1841
white boy 10 farming 1842
white boy 15 farming 1843
white boy 12 farming 1843**
white boy 9 farming 1844
white boy 1 yr., 9 mos., farming 1844 (August 7)
204 Record of Indentures 1833-1854, no. 19, Greene County Archives and Records Center,
Springfield, MO.
106
name Isaac Glover ++
white boy 13 farming 1844
white boy 11 farming 1844
white boy 15 farming 1846**
white boy 12 farming 1847*
white boy 10 farming 1847*
white boy 10 farming 1849
white boy, born 9-17 (18)-49 no trade 1850
white boy 11 farming 1850
white boy 11 farming 1850 (same boy as
above, 3 months later,
different indenture)
++ Baby son and heir of Jack Glover
+++ Consent of the boy’s father given
“Children of colour—will teach them farming but not reading, etc.”
black boy, 2 yrs., 5 mos., 9 days
black boy, 5 yrs., 11 mos., 6 days
black girl, 2 yrs., 5 mos.
White boy 14 farming 1853
White boy 7 farming 1853
White boy 5 farming 1853
White boy, 17 illegible illegible
bound out to a woman
White boy 3 no trade 1853 or 1854
107
Black boy 2 farming 1854
* Brothers
** Same boy; apparently earlier indenture didn’t work out, or perhaps owner
died
Most of the children were white. White girls were to be taught housekeeping,
which was what most women eventually did, whether they married or remained at home.
One black girl, two years and five months old, was to be taught farming, which was
consistent with the tradition of putting slave women to work in the fields. In the
meantime, the child would serve as a financial burden on the family. Most white boys
were to be trained as farmers, though a few had opportunities to learn other trades—not
so for the black boys listed, who faced futures as farm workers. It is difficult to imagine,
in any event, that black and white boys spent their days doing other than as farm
laborers—albeit learning all the while.205
Several children came from poor families; it is not clear why the fact of their
families’ poverty was recorded. Most of the children were old enough to work, but three
white male infants, seemingly only a year or two in age, would cost money to support
with no return for at least four or five years. Possibly they were accepted by family
friends or relatives in order to ease the struggles of a surviving widow, if one existed.
Duplication of family names suggests that all of the children of a family were orphaned at
once or came from exceedingly poor families who saw no choice but to give them up to
the county.
205 Indentures, Probate Records, Cape Girardeau County Court; Record of Indentures 1833-1854,
Greene County.
108
No one knows how much work apprentices were supposed to perform and under
which conditions, nor do we know how much education the white children actually
received. Farming is hard work, and at the end of the day, it may have taken precedence
over time with school books. There is no ready evidence, of course, that masters and
mistresses would treat apprentices other than kindly or would neglect their duties toward
them. If they did, the child could take his or her complaints to county justices.
Whether Missouri indentures were intended to serve farmers’ needs for workers,
or to provide care, education, and training in a trade, it is clear that county courts
managed local labor markets in farming communities. In most instances, we do not know
exactly how children came to the attention of the county court. Did families of some of
the children approach a justice of the peace? Did a farmer or the cigar-maker, perhaps,
mention needing a laborer or two? Children could be placed in indentures under
provisions in the 1845 vagrancy law. It stipulated that a minor thought to qualify as a
vagrant could be bound into an apprenticeship arranged by a county sheriff, at the
direction of the county court, there to remain until the age of twenty-one.206 Information
about just how specific indentures and apprenticeships were arranged would help us to
understand locations and movements of power in early rural communities.
Indentures acted as both social and labor contracts. The idea that the master or
mistress would supply the type of care and attention expected of a parent is implicit in the
terms of a typical contract. In addition, “the person to whom the apprentice is bound
shall make an affidavit that he will faithfully perform the duties required by the
indenture, and enjoined on him by law, which affidavit shall be endorsed on the
206 Missouri, AN ACT respecting vagrants, Revised Laws (1845), sec. 6.
109
indenture.”207 Even with the protection that the affidavit provided, probably
circumstances varied—possibly greatly—between one indenture and another. That
information likely is embedded in family histories and correspondence, and accounts of
local happenings.
A charge of unfitness could disqualify a parent from keeping a child and worked
efficiently as a means of revoking parental rights. If the father of a family were deceased,
and the mother deemed unfit, the child easily could be placed in an indenture. That was
the case with William Alexander, thirteen years old, the son of James Murray, his
deceased father, and Elizabeth Murray, who was said to have “suffered said child to grow
up in habits of idleness without any visible means of obtaining an honest livelihood and
abandoned all care of him.” The boy entered into an indenture on November 21, 1868,
“he having no guardian, and by his free will consent and choice of the said Wm.
Alexander Murray, hath placed and Bound himself as apprentice to John H. Young . .
.”208
It is difficult to know whether the charges against Elizabeth Murray were based in
fact. What did it mean that she had “abandoned all care of him”? Had she turned him
out of the family home? Had she discontinued supplying him with food and clothing?
And what can one make of the boy’s “free will consent”? A minor and thus lacking legal
status of his own, he was caught between the county authorities, his mother, who,
according to the indenture no longer wanted him, and his master-to-be. The terms of the
portion of the indenture shown here hint at the difficulty of gaining definitive information
about the lives of children pledged to indenture contracts and apprenticeships. On one
207 Missouri, AN ACT concerning apprentices, Revised Laws (1845), sec. 3.
208 Greene County Probate Court, Greene County Archives, Springfield, MO
110
hand, the county may have taken dreadful advantage of Elizabeth Murray, in which case
both she and her boy were poorly served by the law. But it is possible that she was the
incompetent mother the county claimed her to be, and the indenture represented the best
possible solution for the child for the moment.
Circumstances of black children placed in apprenticeships are unknown. They
may have lost their parents (or at least the father), parents may have voluntarily
relinquished their care, or they may have been taken from their families. As was true in
the case of William Alexander’s indenture, there is no record of a statement from a
mother or father. Because Missouri statutes often were superficially race-neutral (in order
to avoid charges of racism made by abolitionists and supporters of black equality), it is
difficult to infer special injuries to black mothers from apprenticeship law. However, if
white mothers (like William Alexander’s) could be deprived of offspring due on highly
subjective grounds due to provisions in Missouri law, black mothers must have been even
more likely to lose custody of children. A statute in the revised code of 1845 addressed
terms of apprenticeship for black and mulatto children. It prohibited masters from
teaching “colored apprentices[s]” to read, write, or know arithmetic. “But,” the measure
declared, “he shall be allowed at the expiration of his term of service, a sum of money in
lieu of education, to be assessed by the county court.”209 The provision emphasized the
power of the county court to supervise features of an indenture and to order masters to
make money payments in amounts decided by the court.
Following the Civil War, Missourians enacted law that allowed county authorities
to take children from their parents with even less difficulty. An 1877 measure dealing
209 Missouri, AN ACT concerning apprentices, Revised Laws (1845), sec.10.
111
with writs of habeas corpus facilitated placement of minor children in apprenticeships
and minimized the difficulty of breaking up black and poor families. The law, “AN ACT
to provide for the custody of minor children in proceedings in habeas corpus, between the
parent of such minor and any person not the parent,” enabled the court to award custody
of a child to the parent upon issuance of a writ of habeas corpus “unless it appear that
such father or mother has been adjudged according to law incompetent or unfit for the
duties of guardian of such minor, or that such minor has been legally apprenticed, or is
legally held for violation of law [italics mine].”210 The statute does not mention the race
or color of the parent or child, or the financial means of the parents, nor does it make an
exception of race or financial status.
Legal powers of justices’ courts and county courts as described above pertained to
enforcement of measures directed to individuals’ legal status as social beings. The power
to license and regulate commercial ventures, on the other hand, affected the size and
shape of the market place, and this authority resided with county courts of
commissioners. County courts were not required to sell a license to all potential
purchasers, so not every business owner or operator was assured of being able to sell his
goods.211 In licensing only businesses they approved, county courts managed
communities’ moral climates and minimized the influence of conniving entrepreneurs.
Beginning with 1820, county governments received authority to tax ferries and billiard
210 Missouri, Laws (1877). The statute fails to state which court would have jurisdiction in a custody
hearing in such an issue; presumably it would be a county court, but that is not certain.
211 State legislators at times behaved compassionately if a person could not afford the necessary
license. Legislators in 1843 passed bills to permit Archibald E. Conn, Moses Fuqua, and Andrew J.
Shannon to peddle without a license. Missouri, AN ACT to authorize Archibald E. Conn to peddle without
license; Moses Fuqua authorized on certain terms, to peddle in this State without a license; AN ACT to
authorize Andrew J. Shannon to peddle without a license, Laws (1843).
112
tables,212 retailers and peddlers,213 auctioneers and sales at auction,214 and sellers of wine
and liquor.215 In later law, clock peddlers and clock dealers were covered by the
licensing requirement.216
Businesses such as billiard parlors and taverns had moral implications in which
the public took an interest. Other commercial activity did not pose a threat to a
consumer’s moral values but could inflict harm by overcharging or offering shoddy
goods for sale. Because licenses were valid only for six months, and often were
accompanied by conditions, regulated businesses probably were more likely to be good
neighbors than businesses unable or unwilling to meet requirements.
Protecting the neighborhood from dishonest business owners was a fitting task to
engage the resources of the county court. But the licensing power held open
opportunities for government officials to gain close knowledge of a business’s operations,
financial status, staffing, and so on. It is not suggested that county justices used their
knowledge about local businesses improperly, only that the information was available
and could be put to use. The power to license steamboats, for example, gave a county
judge access to information concerning routes and passenger lists. Authority to license
auctioneers and peddlers told counties the numbers and identities of independent sellers
212 Missouri, An Act taxing Billiard Tables and regulating Ferries, Acts (1820), ch.. 31.
213 Missouri, An Act imposing a Tax on licenses to retailers of Merchandize and Pedlers, Acts (1820),
ch. 40.
214 Missouri, An Act to license Auctioneers, and impose a tax on Auction License and Sales at
Auction, Acts (1820), ch. 47.
215 Missouri, An Act to licence and regulate Retailers of Wines and Spirituous Liquors, Acts (1820),
ch. 49.
216 Missouri, AN ACT concerning clock pedlers and clock dealers, Laws (1849).
113
in the neighborhood, a matter of some importance in terms of identifying vagrants and
protecting the community from corrupt practices. The ongoing duty of a county court to
collect taxes from a grocer put the grocer in a position of having to reveal how much he
sold and provide a listing by item class, information that informed the court if the grocer
habitually adjusted his scales to weigh short or misrepresented the goods he sold.
County courts spent a great deal of time with probate matters. In early Missouri
settlements, where stable patterns of daily living relied upon factual knowledge of
persons and events, county courts enjoyed advantages in administering testamentary law.
Justices heard debt litigation that arose from the probate process, heard and usually
approved administrators’ regular reports of estate activity, named guardian for minor
children, settled administrators’ and guardians’ annual accounts, and approving final
distribution of assets. Most debt litigation was for the purpose of entering the
indebtedness on the record and was not contested. Thus, the administrator of the estate of
William Edwards, deceased, sued the administrator of the estate of Thomas L. Taylor,
deceased in November of 1839 in the Saline County Court. The defendant waived notice
of the Plaintiff’s demand, and neither party requested a jury. Upon reviewing the
evidence, the court ruled for the plaintiff, awarding $11.96 from the defendant’s estate.217
The case represents the usual outcome in litigation filed during probate of an estate.
While the economic effects of probate were obvious, personal relationships could
be deeply involved in estate settlement. Henry Achtermann died in 1869 in what was
ruled a hunting accident while turkey-shooting with friends. The shooter William Hager,
probably was related to the justice of the peace, also named William Hager, who ruled
217 Minutes, Saline County Court, 1839-1846, 1863, 1864, 1865, C18976, microfilm, Missouri State
Archive, Jefferson City, MO.
114
that the shooting was accidental. Achtermann’s estate entered probate the following year,
1871. While the identity of the original administrator is not known, the administrator de
bonis non (who assumes the office of administrator if the person firs named does not
complete the administration process) was William Hager. Whether that individual was
Hager, the shooter, or Hager, the justice of the peace also is unknown. In any event, it is
likely that the county and township, where Achtermann had made his home, accepted the
finding of accidental death and Hager’s innocence in the tragedy. At least the portion of
the population that composed the community’s elite probably accepted Hager, who
clearly was a member of a more leisured class than some. 218
Family members did not always disagree on money aspects of estate settlement.
In 1842, Wylie Abernathy, resident of the county of Cape Girardeau, died. His widow,
Sarah, (who served as guardian to her children) renounced her right to serve as
administrator in April of that year and allowed Robert Taylor to serve in her place. Two
years later, almost to the month, Sarah signed a receipt for $106 received from the estate,
noting that the money included $76 “taken at the appraisement by Widow.” It appeared
that she was satisfied with the settlement—until 1845, when she joined litigation over the
estate with her children, claiming rights to a slave named Ned. In 1846 Sarah requested a
ruling against Taylor, on the ground that “said administrator on his final statement
claimed and obtained vouchers for the sum of one hundred and seventy dollars to which
he was not entitled and for which there is no voucher and the (illegible) amount allowed
to the administrator is excessive the amount allowed to the administrator for estate
218 Probate Index, Cape Girardeau County, Box 83, Bundle 1537, Cape Girardeau Archival Center,
Jackson, MO.
115
services is excessive and unjust. The settlement of said administrator is erroneous and
defective.” 219
The social order in a relatively highly populated society can be complex, as well
as difficult to maintain. A society may use several tools to control arrangements so that
order and the values and interests of the ruling class will prevail. In nineteenth-century
Missouri, the type of orderly society favored by many whites depended upon imposing an
impaired legal status on blacks. Key elements of secondary status were extended to other
categories: paupers, crippled persons, and so on. More positively, order also relied upon
straightforward and honest businesses to serve communities, on the ethical settlement of
estates, and on provision of proper care for children. Many duties of the justice of the
peace in the neighborhood were associated with enforcing the social order. The social
order, in turn, helped to determine the content, boundaries, and effects of economic
transactions.
219 Spelling of the family name appears as Abernathie and as Abernathy. Cape Girardeau Probate
Files, Wylie Abernathy, decedent,1842, Box 91, bundle 827, Cape Girardeau County Archive Center,
Jackson, Mo.
116
CHAPTER IV
THE ECONOMIC ORDER
Great optimism accompanied Missouri’s transformation from territory to state.
Immigrants came in waves, particularly following the end of hostilities in the War of
1812. But with the Panic of 1819, the flow of wagons heading west thinned, land prices
tumbled, and some “town sites became fields again.” 220 Merchants faced demands from
eastern creditors to pay for goods bought on credit, while farmers sat with crops they
could not sell. Some immigrants from Kentucky and Tennessee felt too discouraged to
stick it out and returned home. Good times returned in the mid-1830s, but periodic
panics and political events produced uneven economic conditions that persisted for
decades.221
Missourians’ early struggles were profoundly affected by two judicial entities, the
justices’ courts located in townships and county courts of commissioners. These bodies
held broad powers which enabled them to influence local and county economies to a
significant degree. In township justices’ courts, judgments in actions of debt often
allowed creditors to collect money owed them; if the debtor did not pay, the court
frequently seized assets to satisfy the judgment. County courts of commissioners,
meanwhile, carried out responsibilities with long-term and short-term effects on the
economic health of communities and individuals. Justices on county courts negotiated
contracts for public projects, facilitated the supply of laborers to local residents, regulated
220 Dorothy B. Dorsey, “The Panic of 1819 in Missouri,” in Missouri Historical Review vol. 29, no. 2
(January 1935): 79-91.
221 Dorothy B. Dorsey, “The Panic and Depression of 1837-43 in Missouri,” Missouri Historical
Review vol. 30, no. 2 (January 1936):132-161.
117
businesses, supervised administration of the estates of deceased persons within the
county, and more. County courts maintained their functions throughout the century, with
the exception of probate authority which shifted erratically over time and came to rest in
1877 in a system of newly-created probate courts.222
In 1819, one observer watched immigrants as they passed through St. Charles day
after day, proceeding across the Missouri River on the ferry. “As many as one hundred
people per day,” he noted, “as many as nine wagons at a time, harnessed with from four
to six horses.” The land was well worth the struggle. A German official who came to see
for himself claimed that “the ground is so black from the humus that has accumulated
since primitive times, that it seems one were walking on beds of coal.”223
Missouri offered prime agricultural assets.224 Cattlemen said that Little Dixie’s
“lush grazing lands” were “superb;” its soil was excellent, so rich in quality that a farmer
could grow crops indefinitely, according to local lore. The Missouri Democrat crowed,
“For corn and small grain it may be truly said that the whole of Missouri, with the
exception of some of her mineral regions, is admirably adapted.”225 The boot heel region
of the southeast was better known for timber and mineral deposits; Cape Girardeau, in
fact, sits on a bed of marble. Counties in the southwestern portion of Missouri belong to
the Ozark region, with “rich and beautiful prairies in the western areas and timber land
with a clay soil on the east.” That region, too, was rich in various minerals. One scholar
222 Missouri, AN ACT establishing probate courts, Laws (1877).
223 Atherton, “Missouri’s Society and Economy in 1821, ” 5.
224 Fully eighty percent of immigrants in 1821 intended to turn to agriculture to provide sustenance.
Ibid.
225 October 29, 1858.
118
called them “inexhaustible. The Iron Mountain alone,” he added, “would supply the
world with iron.”226
Regardless of where pioneers chose to settle, the first task was to find land.
Settlers sought water for household use, animals, and transporting goods to market; and
wood, for construction and fuel. A nearby spring usually provided enough water for the
house and farm, and, before the advent of steamboats in the mid-1820’s,227 market goods
could be sent downstream on a flatboat. Wood was used in “houses, bridges, plant roads,
fuel, fencing, hinges on doors, curbing for wells, door latches and . . .
chimneys.”228Settlers bartered goods and services, and worked together to reduce the
need for hired labor. Animals—horses and cows and hogs—ran wild; farmers coaxed
hogs back home with corn when butchering season began; cows returned “regularly” to
care for fenced-in calves, and horses seemed to make their way back naturally.229 In case
an animal failed to return, farmers marked them in some fashion to prove ownership.
In general, farmers were limited to subsistence farming for the first few years, but
when they succeeded in producing a surplus to send to market, transporting goods was
difficult. If a farmer could not send goods by water for one reason or another and was
forced to use land routes instead, an immense struggle ensued. The mud was miserable,
226 R. Douglas Hurt, Agriculture and Slavery in Missouri’s Little Dixie (Columbia: University of
Missouri Press, 1992), 138; R.. A. Campbell, ed., Campbell’s Gazetteer of Missouri from Articles
Contributed by Prominent Gentlemen in Each County of the State, and Information Collected and Collaged
from Official and Other Authentic Sources, by a Corps of Experienced Canvassers (St. Louis, R. A.
Campbell, Publisher, 1875), 103-104, 216,582; Marshall Democrat, October 29, 1858.
227 The first steamboat in Missouri, the Independence, left St. Louis bound for the little town of
Franklin in Saline County, arriving on May 28, 1819. Frank Clinton Barnhill, History of Freemasonry in
Saline County (n.p.: Missouri Lodge of Research, n.d.), 6.
228 Atherton, “Society and Economy,” 15.
229 Ibid.
119
and roads existed in name only; even state roads “cannot even be likened to modern-day
Missouri dirt roads.” Travelers often carried axes in order to cut down trees, if necessary,
so that they could get through.230 As for the appearance of early settlements, one
historian claims that, in 1821, most towns and villages were remarkably alike in design
and architecture; Franklin, Missouri looked like “a miniature St. Louis.”231 In St. Charles
County, the earliest buildings were “a cross between ‘hoop cabins’ and Indian bark huts.”
Later, when there were enough men in the neighborhood to raise a log cabin, those
became the style.232 Women helped; certainly they did their share of heavy labor, such as
cutting down trees, taking out tree stumps, splitting logs, and “building homes.”233
Missourians’ family records are filled with the remarkable experiences of the
women and men who settled the state. An account of the survival of Joseph Rountree
and his family, who helped to found the town of Springfield in southwest Missouri’s
Greene County, reads like an exotic tale. They arrived on January 16, 1831, a cold time to
begin a new life. The nearest railroad was in Rolla, 120 miles away; to reach it, a person
in Springfield was obliged to use “a rough, rocky wagon road, up and down hill” over the
Ozark Mountains. The family was able to produce plenty of food on the family farm, but
there was very little money. Wheat was hand-cut, put up into bundles, and the sheaves
thrown upon the barn floor to be threshed by running horses. Shoes and boots were made
by the local shoemaker, but were not intended to fit a specific pair of feet. For light and
heat, the Rountree family had tallow candles and a fire in the large kitchen fireplace.
230 Ibid.
231 Ibid.
232 Paul R. Hollrath, History of St. Charles County, 1765-1885 (n. p, n. p., 1997), 9.
233 Robyn Burnett and Ken Luebbering, Immigrant Women in the Settlement of Missouri, (Columbia:
University of Missouri Press, 2005), 24.
120
Everyone worked on the farm, cutting hay with a scythe and grain with a cradle. The
family raised cotton, sheep for wool, and flax for linen, which the Rountree women spun
and wove into cloth for the family’s clothing. The men and slaves were responsible for
cutting and harvesting grain. While they lacked luxuries, the family had a sufficiency,
which permitted them to keep their store purchases down to salt, coffee, and sugar, and a
few dyes for textiles.234 Even in especially small settlements, people could buy groceries
and perhaps a few manufactured items, paying the merchant with crops, beeswax, meat,
tobacco and other goods.235
Missouri was a slave regime; hemp and tobacco growers in Saline County and
other counties within the region known as Little Dixie succeeded with labor provided by
a large slave labor force.236 Elsewhere in the state, where farmers did not use slave labor,
pioneer families worked to establish productive farms. Their first priority was to grow
enough food for the family’s consumption, but they also kept an eye on the market.
Availability of labor was an obvious and ongoing concern. County courts occupied a
position to supply residents with workers through its superintending role with respect to
indentures. But counties also took the lead in the planning and construction of roads and
the transport of goods, and they also provided cost-effective care for persons within the
234 Rountree Family Papers, R325, Western Historical Manuscript Collection, University of Missouri-
Rolla.
235 Atherton, “Missouri’s Society and Economy in 1821,” 22.
236 Planters in Louisiana and Mississippi first used hemp rope to tie bundles of cotton for shipment to
market. The practice spread to west to Kentucky, and Kentuckians who emigrated to Missouri raised hemp
as a commercial crop. During the 1840s, hemp became a major crop, and by the 1850s, hemp brought $200
per ton. Excess product on the market, , lack of currency, bank failures, and the poor quality of much of
hemp that was being shipped contributed to a permanent decline in hemp as a major agricultural crop. But
hemp was a profitable crop for many planters in Little Dixie who raised it as a large-production crop with
the use of slave labor. Hurt, Little Dixie, 103, 120-121, 123.
121
community who lacked visible support. Township courts operated by justices of the
peace contributed to the health of local economies in the settlement of debt. Justices of
the peace resolved disputes in debt and in other civil causes, such as the recovery of
widow’s dower; compensation for damages in instances where slaves were injured;
injuries to farm animals; and other causes.
Justices’ courts specialized in minor civil actions involving sums up to $150.237
In nineteenth-century Missouri outposts, people sued to collect small sums of money, at
times as little as a dollar or two. In an 1824 case filed in Callaway County, to example, a
landlord sued a tenant for $1.83 in rent; when the tenant lost, he requested an appeal and
it was granted.238
When a plaintiff filed suit in a justices’ court to recover a debt and won, the
judgment required the defendant to pay and normally to assume court costs as well. If
the defendant could or would not pay, the usual procedure was to issue a writ of
execution in order to permit the sheriff or constable to conduct a search for saleable
assets.239 When there were no assets, either because the defendant owned no property or
had left the country with his or her possessions, litigators were disappointed. That was
not always the case, however; often assets were located to satisfy the judgment. On other
occasions, a defendant waited a few weeks or months before paying the judgment. W. H.
237 Missouri, AN ACT to amend an act entitled “An act to establish justices’ courts, and to regulate
proceedings therein, Laws (1841), sec. 7.
238 Missouri, Callaway County, Cote Sans Dessein Township, Justice of the Peace Docket Book,
1816-1817, 1821-1827, C0966, Western Historical Manuscript Collection, University of Missouri-
Columbia. The justice of the peace was William H. Dunnica.
239 Missouri, AN ACT to amend an act entitled “An act to establish justices’ courts, and to regulate
proceedings therein, Laws (1841), sections 4, 6, 7, 8. 10; Missouri, AN ACT supplementary to an act
entitled “an act to provide for the recovery of debts by attachment,” Laws (1838).
122
Duffield waited a full two months to collect his $4.12 ½ cents from James Tuggle in a
debt action filed in April of 1843 in a Ray County justices’ court. Unhappily, Duffield
had mislaid the original account, which encouraged Toggle to request a dismissal.
Instead, Judge William Berry allowed a continuance to give Duffield time to locate the
missing paperwork. Whether he found it or managed to persuade the judge without proof
is not indicated, but judgment went to the plaintiff and was paid in full two months
later.240
The recovery of assets carried weight in a society where ready money was in
extremely short supply.241 By the late 1820s, most specie in circulation was brought back
on the Santa Fe Trail, with the Mexican dollar and bullion serving as “almost the only
source of hard money in Missouri in the years preceding the panic[.]”242 Justices’ courts
could not manufacture money, but they were able to use the coercive powers of the state
to compel payment of debt and thus liberate money for circulation. When a debt was
paid, either because the defendant paid or the sheriff seized assets in satisfaction of the
judgment, plaintiffs had more money to purchase needed goods, save for hard times, or
help another.
Debt actions in nineteenth-century Missouri varied in amounts claimed as
owning, categories of debt, and disposition of cases. Debt was ubiquitous on the frontier;
240 W. H. Duffield against James Tuggle, Ray County Justice of the Peace Docket Book, 1836-1851,
C1215,Western Historical Manuscript Collection, University of Missouri-Columbia.
241 M.. M. Parsons wrote to Abiel Leonard in June of 1832 that he could not send the money that he
owed Leonard because “the greater part of the money was in the hands of my father and he was absent.”
It is difficult to appreciate the physical nature of money in that era and the correspondingly tenuous nature
oftentimes of financial transactions. Availability of cash was affected by early law that prohibited
circulation of private notes. Abiel Leonard, papers, folder 320, C1013, Western Historical Manuscript
Collection, University of Missouri-Columbia; Missouri, An Act to prevent the circulation of private Bank
notes, Acts (1820).
242 Dorsey, “The Panic and Depression of 1837-43 in Missouri,” 135.
123
owing money and being owed were normal, everyday conditions. Few settlers could
weather the first years without borrowing, and there were plenty of people willing to
lend. Charles Matthews of New Madrid County found debt to be a very good thing.
Matthews “knew New Madrid County well. He was born and raised there, and he knew
the land. He concentrated on making loans to the farmers in that county and secured his
loans by taking a mortgage on the farms. He found it could be as lucrative to loan money
on those farms at rates of 8 to 10 percent as to own the farms himself.”243 Matthews was
not alone in using debt to make money. Willis and James Hughes of Ray County were
plaintiffs in debt actions throughout the 1830s and 1840s. They, too, did well in the
money-lending business.244
It is possible to discern few substantial patterns in Missouri debt litigation.
Specific townships provide examples. Out of sixty-five money suits filed the month of
April in Byrd Township (Cape Girardeau County) between 1818 and 1842, sixty were
resolved in the justices’ court. Winning plaintiffs often waited months to collect. The
Byrd Township court often issued more than one execution: two and three writs of
execution on the same judgment were not unusual, and executions frequently were stayed
for a month or longer—even where the sum owed was merely a few dollars. Of ten suits
filed in April, 1830, the debtor in one case did make a payment until July, in another
case, the debtor paid in August, and in a third case, in September. A litigant won a suit to
collect $2.50, but the court was forced to issue two executions in order to get the
243 Edward C. Matthews III, Matthews: the Historic Adventures of a Pioneer Family (n.p., Southeast
Missouri State University Press), 64.
244 Ray County Justice of the Peace Docket Book 1836-1851, Justices P. Ewell, W. Berry, and W. L.
Bransford, C1215, Western Historical Manuscript Collection, University of Missouri-Columbia.
124
judgment satisfied. Another plaintiff won a suit for $4.50, but payments were spread
over several months, with $2 in May, $2.37 ½ in June, and $4.37 ½ in August.
Immediate satisfaction of a judgment was rare. In a jury trial over a debt of twelve cents,
the defendant apparently paid immediately on judgment. In two suits filed in April,
1830, one for $20.50 and the other for $10, judgment was satisfied immediately.245
Obviously it was easier to win an action of debt than to collect on it in Byrd Township.
These suits involved various sums of money, outcomes, and types of debt. Suits
were based on open debt, note, due bill, account, due bill, and assumpsit. Sums ranged
from $90.75 (April, 1833) to twelve cents (April, 1818). At times, the court awarded not
only the sum of the debt, plus interest and court costs, but damages as well. In litigation
held in April, 1833, the plaintiff sued for $90.75 owed on a due bill; the first execution
was issued in April, the second in May, the third in July, and the fourth in April, 1834, at
which time the case was sent onto the circuit court. In one suit from 1833, the plaintiff
was forced to accept in payment “a Book of the Gospel . . . one epaulet, and also . . . two
beds.”246
245 Ed., Catherine Stoverink, Abstracts and Index of the Docket Books for the Justices of the Peace
Byrd Township, County of Cape Girardeau, State of Missouri (Jackson: Cape Girardeau County Archive
Center, 2004).
246 Ibid., vol. 1, Docket Book of Zenas Priest, J.P. 1805-1820; vol. 2, Docket Book of Peter R.
Garrett, J.P., Frederic T. Overfield, J.P., A. H. Brevard, J.P., Jeremiah Ranney, J.P., 1828-1839; vol. 111,
Docket Book of John W. McGuire, J.P., Alread Wheeler, J.P., W. J. Cline, J.P. Cases were drawn from
April of each year for the years selected. If a justice could not locate assets within the township where he
held jurisdiction, he forwarded the paperwork to the circuit court, which searched for attachable assets
elsewhere in the county. Judging from instances in which multiple executions were issued, it is likely that
plaintiffs were not desperate to collect money owed in all instances, and were prepared give the debtor
plenty of time to pay. The Byrd Township debt actions suggest that it would be unwise to infer from
litigation that a debtor was necessarily in trouble financially. Debtors may or may not have been
financially distressed; plaintiffs may not have pressed debtors very seriously to pay up; and depth of feeling
over debt litigation appears to have had little or nothing to do with the amount owed.
125
Nineteen suits were filed in the Byrd Township court during the month of April,
1818, almost twice as many as in April of the period through 1842. Six cases were filed
in April, 1830 and ten in April, 1833, and only one in April, 1834, and that one was
continued because the justice failed to come to court. It is difficult to know whether the
diminishing number of money suits filed reflected economic conditions or other factors.
In Missouri, 1833 was a period of hardship, as it was in many places. But in 1818,
settlers were pouring into Missouri and times were promising; the large number of suits
filed may point to a large number of money transactions, rather than a distressed
economy and subsequent poverty. Other than a decrease in the number of money actions
filed in Byrd Township over a (roughly) thirty-year period, and slow payment of
judgments, with defendants paying over a period of months (if at all), few patterns reveal
themselves.
Throughout nineteenth-century Missouri, creditors also sued over unpaid
promissory notes, open accounts, and book accounts. They sued for damages. Nephews
sued uncles, and sons and daughters sued fathers. Neighbors sued neighbors. Businesses
sued customers. Debt cases dominated the dockets of justices’ courts. Of over 100 cases
heard between 1841 and 1848 by Virgil Pratt, justice of the peace for Maidenkirk
Township in Scotland County, most dealt with debt.247 Of roughly 200 civil actions filed
between 1821 and 1865 in a single township in Cape Girardeau County, the vast majority
consisted of debt litigation. These included several cases of debt with damages, one case
of unpaid rent, one debt action filed to recover house rent and the hire of a “mulatto boy,”
several attachments, book accounts, and unpaid notes.
247 Justice Docket, Scotland County, Missouri, Maidenkirk Township, C1245, microfilm, Western
Historical Manuscript Collection, University of Missouri-Columbia.
126
Personal standing in the community had little to do with status as a creditor or
debtor. Willis R. Webb, a resident of Byrd Township during the 1830s, was a litigant
twenty-four times in debt or debt-related actions in the township justices’ court between
August of 1830 and June of 1839. In every instance but one, he was the defendant. The
sums that he owed ranged from one dollar (two cases, once in August 1830 and again in
December 1831) and fifty dollars (December 1837). He was sued by individuals,
business firms, and estates.248 Each time Webb was sued, the judgment was satisfied in
full (with one exception, and that outcome is unclear), at times following a delay of a
month or two, at times immediately. Obviously Webb was not a pauper; he owned
property of some sort, and the property he owned was sufficient to pay off his creditors.
Webb was not always in debt; in fact, for about three years, between 1834 and 1837, his
name was absent from the docket books for the court.249
Webb’s neighbors had to have known the state of his finances and his paying
habits, as dates of the law suits indicate he was a resident of Byrd Township for at least
nine years and was sued on an average of almost three times a year. No doubt residents
talked about Webb; in a small town, it would have been odd if they had not. People
many have extended credit to Webb because his pattern of debt was not unusual in the
community at that time. It is possible, too, that extension of credit or cash was regarded
less as a transaction with the power to alter status and personal relations, than as a
courtesy between neighbors, perhaps a momentary matter of convenience. If that is so, it
might help to explain why people were willing to lend or borrow and why trials for debt
248 Abstracts and Index, Justices of the Peace, Byrd Township, 42, 46-47, 51-53, 56, 62, 67, 69, 97,
104, 110, 121, 126-127, 129, 132.
249 He may have been absent from the area, of course.
127
produced so little animosity. Moreover, people may have known that he was good for the
money, eventually, and that his creditors would profit in the end.
People did gossip about others’ financial affairs, seemingly with little
encouragement. A brother of Abiel Leonard, M. Leonard, wrote to Abiel on May 2, 1841
concerning some hogs that he had sold the previous autumn. The purchaser, William M.
Harris, still owed him money for the hogs, and friends of Leonard, Colonel Briscoe and
Henry Coram, accosted him on the subject in a meeting arranged for that purpose. Harris
gave the two men the impression that he lacked funds and could not borrow money to pay
the debt, but, wrote M., “From what Briscoe & Coram could learn it appears that his
neighbors think him perfectly able to pay his debts but that he is a hard man to git money
out off.”250 In a situation such as this one, where there is outright intent to defraud,
neighbors expressed moral disapproval and did what they could to help the party who had
been hurt in the exchange. Leonard’s friends knew Harris’ capacity to pay because
people who lived in the place had their own view of what was just determined to help
right the wrong that Harris had committed.
But not everyone could repay a debt. In Missouri’s frontier settlements, only a
few people owned very much property. Banks did not exist in the state until 1836, and an
early attempt to establish state loan offices as substitutes for banks was unsuccessful.251
250 Abiel Leonard, Papers, folder 155, C1013, Western Historical Manuscript Collection, University
of Missouri-Columbia.
251 State banks failed very early in Missouri history, and a subsequent attempt by the state legislature
to create a common source of currency fell before a federal ruling. The validity of Missouri loan office
certificates was called into question in Craig v. Missouri , 29 U.S.4 Pet. 410 (1830), in which a majority of
the U.S. Supreme Court under Chief Justice Marshall ruled that the Missouri law authorizing establishment
of loan offices throughout the state violated the federal constitutional prohibition against emitting bills of
credit. http://supreme.justia.com/us/29/410/case.html. The Supreme Court decision was only the final
blow. According to Dorothy B. Dorsey, loan office certificates “were discredited almost as soon as issued,
128
If local people lacked cash to pay their debts, it was because there was very little in
circulation. The fact of being a defendant in a debt action was not proof that a person
was habitually over-extended, lacked the sense to manage money, or could not be trusted;
it meant only that the defendant owed money to another party who had decided to sue to
collect. Poverty was seldom a permanent condition. Indeed, a person’s fortunes could
change drastically in the space of just a few years. Joseph Burden of Greene County,
Missouri, for example became a wealthy slave-owner within a brief period. Between
1851 and 1856, his personal wealth almost doubled; where he had owned only six city
lots, by 1856, he was paying taxes on 69 acres.252 Sidney Ingram, also a Greene County
resident, owned one horse and one mule in 1833, for a total value $126. By 1834, Ingram
had only the horse. One year later, however, he owned taxable property consisting of a
slave, one horse, one cow, and a watch, for a total value of $475. Ingram had a very good
year in 1843 as the owner of four slaves, two horses, ten cows, a watch and real estate in
Springfield worth $450. The slaves alone were valued at $1300, and total property
owned at $3628. He had died by 1851.253
Litigators were not above manipulating sums in order to put a law suit under the
jurisdiction of a justices’ court. Robert Barnes probably was an attorney, judging from
the language in his letter to Abiel Leonard in 1832. Barnes was representing a slave
owner named Simpson against a steam boat company and its captain. Apparently a slave
owned by Simpson had worked on the boat until it had burned, but had not been paid for
with the result that the currency situation, instead of being improved, was, if anything, made worse.”
Dorsey, “The Panic of 1819 in Missouri,” 88.
252 N.A., Greene County Tax Assessor’s List 1851-1852, (Springfield: Ozarks Genealogical Society,
Inc., n.d..), 11, 146.
253 Ibid., 12, 60, 72, 110.
129
his labor. Barnes directed Leonard to collect the man's wages and forward them to him.
“If it should be necessary to commence a suit in this case (as I suppose will be the case), I
suppose it would sooner be collected by bringing it before a Magistrate [justice of the
peace], and if the amt is too large for that course, you enter a credit of $2.20[.]”254
Defendants in debt actions seldom protested creditors’ claims, and, indeed,
postponing payment until the creditor filed suit to collect was one way to avoid payment.
The strategy was not unique to Missouri; in early Connecticut, too, debt litigation was
seldom contentious, as Bruce Mann discovered: “debtors never contested more than 10
percent of the actions on written instruments entered against them. . . . Instead, they
appeared in court and confessed judgment against themselves, or they did not appear at
all and allowed judgment to go against them by default.”255 Postponement of payment
appears to have been the case in two actions filed by Samuel Hahn in the Holt County
justices’ court over the winter of 1851-52. In the first action, John Masters, a resident of
Lewis Township, was sued for $2.00 in late 1851. The money was the amount of his
subscription toward construction of a bridge in the township; he lost on a default
judgment, was served with an execution, and paid in full on January 6, 1852. In a second
case, Hahn sued U. Z. Bozarth for his $2.00 payment. After receiving credit for $1.50
that he claimed as a setoff, Bozarth paid in the remaining fifty cents immediately after the
trial ended.256
A debtor who failed to pay on time, however, was not necessarily dishonest or
putting the money toward a different purpose. An agricultural economy is helpless
before the effects of nature, and Missourians’ encounters with disaster came and went
throughout the nineteenth century. Cholera passed through Missouri periodically and
always took a toll on farming families. It first appeared in 1832 and 1833. A week after
254 R. A. Barnes to Abiel Leonard, Abiel Leonard, papers, C1013, folder 63, Western Historical
Manuscript Collection, University of Missouri-Columbia.
255 Mann, Neighbors and Strangers, 39-40.
256 Samuel Hahn against U. Z. Bozarth, Samuel Hahn against John Masters, Holt County Justice of
the Peace Docket Book, 1845-1852, C12020, microfilm, Missouri State Archives, Jefferson City, MO.
130
its first appearance in 1833, people began to flee their homes, and hundreds died.257 Six
people died from cholera in the town of Marshall when the disease appeared in Saline
County in the summer of 1849. The summer of 1854 was the driest summer in Missouri
history; in Saline County, no rain had fallen during the entire previous season and the
corn crop across the state was ruined.258
Greene County farmers suffered badly in 1857 from the failure of crops the
previous year. In the spring, lack of cereal grains produced famine which throughout the
Missouri Ozarks. Indeed, in Ozark County, the spring term of the circuit court was
canceled because there was not enough food in the town to feed the judges, attorneys,
litigants, and usual crowd of onlookers.259 Throughout these early decades, manmade
257 “Cholera of 1833,” Welcome to Marion County, Missouri: Part of MoGenWeb,
http://www.rootsweb.com/~momarion/cholera.htm.
258 William Barclay Napton, Past and present of Saline County Missouri (Indianapolis: B. F. Bowen
& Company, Publishers, 1910), 132-133.
259 History of Greene County, 245.
131
troubles also held Missourians back, including lack of a steady operating currency and260
imprudent land speculation.261
Rather than gamble on collecting the full amount of a debt owed, plaintiffs at
times settled out of court. However, this need not mean that the act of filing a law suit
served no purpose. The prospect of a trial brought the parties together in the same
physical space, thus affording them an opportunity to discuss the situation and seek an
alternate solution. Consider two debt actions from 1870, in one of which the plaintiff
charged a neighbor with taking a pony which the plaintiff claimed as his own property.
The constable seized the horse, returned it to the plaintiff, and ordered the defendant into
court; once they met, the parties settled “by Plaintiff keeping the horse and paying the
costs of the Justice and constable and defendant paying the Witnesses which was allowed
by this Justice.” The other case was “an account of $15.42 for suit by attachment against
James G. Reed and a [sic] attachment . . . made returnable on T2 [second] day of
260260 At the first session of the General Assembly in 1820, lawmakers enacted legislation prohibiting
circulation of private bank notes, in order to prevent private banks and business concerns from making and
passing their own paper currency. The state was suffering badly from delayed effects of the Panic of 1819.
In a letter printed in the Missouri Gazette, a citizen, speaking of the county tax collectors, asked “where is
the money to come from to pay the tax as well as other debts—every species of circulating medium having
disappeared? That broom of destruction, the sale of public lands, has swept off all of our currency, and our
private land rights remaining unconfirmed, are of no value. . . This is the beginning of woe! Missouri, An
Act to prevent the circulation of private Bank Notes, Acts (1820);. Dorsey, “The Panic of 1819 in
Missouri,” 86. Western states suffered generally due to an unfavorable trade balance with eastern states.
In Missouri, lack of money resulted in reliance on barter, which, while it perhaps contributed to neighborly
feeling and interdependence, lacked the universality of cash. Atherton, “Missouri’s Society,” 22. Missouri
did not experience the Panic of 1837 as seriously as other places until the middle of 1841, aside from a
temporary reaction in St. Louis. Even the decline in land sales did not result in a disastrous fall in land
prices. However, wide variations in currency values finally affected the state, bringing about hard times
toward the end of 1841, and throughout 1842 and 1843. Dorsey, “Panic and Depression of 1837-43 in
Missouri,” 144-145, 153.
261 By 1820, land prices in Missouri had fallen sharply, and newspapers no longer advertized land
sales. Due to a great decrease in immigration, farmers who had bought land in order to sell it to new
settlers were forced to hang onto it or lose money on their purchase price. Property was worth so little that
“the accumulated labor of years is not now sufficient to pay a trifling debt, and property some years since
which could have sold for eight to ten thousand dollars, will scarcely, at this time, pay a debt of five
hundred.” Ibid., 82.
132
November 1870 my Regular Law day.” As it happened, the parties “settled the case
between them Selves each one to Pay half the cost by Plaintiff keeping the hogs which
they have Paid.”262
Though most debt actions involved white men suing other white men,
occasionally women or blacks were parties to litigation. When women sued, outcomes do
not reflect apparent gender bias on the part of the judge. In December of 1828, Mariah S.
Clodfelter took George W. Lovell to court over an unpaid note in the amount of $38.75,
debt and damages. Either Lovell did not have the money and absconded simply to avoid
the sheriff, or he absconded with the money; in any event, he did not appear and default
judgment went to the plaintiff for the $38.75 debt and damages, plus costs. A writ of
execution was issued, but no property could be located.263 Similarly, Elizabeth Robinson
sued John S. Wills in July of 1844 for $16.25 owed on a note, plus damages of eighty-
eight cents and received a default judgment from justice of the peace R. A. Huffard. For
reasons not stated, the award was reduced to $13.25, including “[d]ebt and damages also
costs.” And in a case continued from the court’s April term, Catharine S. Kimbrough
sued Jesse Day on a note for $90.00, plus damages of $5.60. A summons issued on
March 9, 1845 was continued until late July of 1845. “[T]he plaintiff appeared by his
attorney but the Deft. came not but made default . . . [I]t is therefore considered that the
plaintiff have and [collect] . . . the sum of $95.60.” Huffard was the judge in this case as
262 W. O. Zanyan against W. H. Stalsworth, Shirley V. Taylor against J. G. Reed, Holt County
Justice of the Peace Docket Book, 1870-1877, C12020, microfilm, Missouri State Archives, Jefferson City,
MO.
263 Cape Girardeau County Justice of the Peace Civil Cases, 1821-1841, Box 1A, no. 320, Cape
Girardeau County Archive Center, Jackson, MO.
133
well.264 Mary B. Nowlin of Greene County authorized attorney James M. Thompson in
1863 to attempt to collect $1640 owed to her on a note signed by Peyton Nowlin,
presumably a relative.265
While these cases do not show open gender bias, neither do they reveal the true
attitude of the judge toward the appearance of a woman plaintiff in the official space of
the court. What they do show is that in early Missouri, women creditors accessed the
legal system and succeeded in winning judgments against people who owed them money.
They demonstrate as well that the community accepted the appearance of women in
court.
No examples of civil litigation by free blacks prior to the Civil War appear in
county courts. When blacks were part of money disputes in debt actions prior to the Civil
War, normally they appeared as subjects rather than litigants. An 1820 trial, for example,
pitted Mosely & Cropper, Medad Randol and Jenifer Sprigg as plaintiffs against
defendant John Packie “for the use of James Edmonds.” The suit does not supply
Edmonds’ status, but it appears that Edmonds was a slave who had been hired out to
Packie, and that Packie had failed to hand over to the plaintiffs the wages that Edmonds
had earned. This kind of law suit, in which a slave’s labor was contracted out to
264 Elizabeth Robinson against John S. Wills; Catherine S. Kimbrough against Jesse Day, Justice of
the Peace Docket Book, no. 231, 1835-1855, Greene County Archives, Springfield, MO. It is puzzling that
the plaintiff in Kimbrough was referred to as “he,” rather than “she.” It also is not clear why the record
book refers to a “term” of the court. Unlike circuit courts, justices’ courts did not hold terms; rather,
justices held court every week.
265 Elizabeth Remy Dobbs Thompson, folder 1, R671, Western Historical Manuscript Collection,
University of Missouri-Rolla.
134
temporary employer who kept the wages, was not unusual.266 Suits for damages also
could involve slaves. John Baker of Montgomery County sued James Owen in 1853 for
“damage for striking a Negro Man[.]” The jury ruled for the plaintiff and fined the
defendant one dollar plus costs.267
Justices’ courts played an important role in settling disputes over indebtedness
and facilitating movement of assets in local economies. County courts had a more
complex group of duties with respect to economic matters, with far-reaching results.
County courts conducted trials in civil actions, though not as many as in justices’ courts.
In other activity, county justices influenced local markets through commercial regulation.
Counties also deeply affected economic transactions through responsibilities in road and
bridge construction.
Where money was the issue, many trials heard by county justices arose from the
probate process. In such trials, creditors made claims against the estate of a deceased
person. Normally there was no genuine argument over whether a sum was owed, and the
parties sometimes settled amicably out of court. The county court of Saline County in
early 1840 conducted several bench trials in which the estate of George Francisco was
sued for small sums: $33.19, $83.69, and $50.25. The plaintiff recovered in each
instance, and the transcripts do not indicate whether the parties actually disputed any
266 Mosely & Cropper, Medad Randol, and Jenifer Sprigg against John Packie, Cape Girardeau
Justice of the Peace Civil Cases, 1821-1841, Box 1A, no. 320, Cape Girardeau County Archives, Jackson,
MO. The case probably came up in probate.
267 John Baker against James Owen, Robert C. Fulkerson Record Book, 1837-1854, C3804, Western
Historical Manuscript Collection, University of Missouri-Columbia.
135
facts; indeed, the trials probably functioned as a means of recording the debt for legal
purposes.268
Many trials associated with estates under probate concerned creditors’ claims, but
justices also dealt with disagreements over the distribution of assets. Most estates, such
as that of Charles Finley, were settled without difficulty. Finley, who lived in Cape
Girardeau County, died in late 1808 or early 1809. He was fairly well-to-do, with two
horses, forty hogs, seven sheep, three beds and bedsteads, two rifles and two bake ovens,
a spider (used for cooking on the hearth), a copper tea kettle, saddles, a tin trumpet, a
brass candlestick, seven cows, and “some bookes.” When it came time to settle the
estate, the livestock had to be gathered together for counting, a fact we know because the
estate shows that three men split $18.00 between them for spending a week chasing down
livestock, while two men were paid $12.00 to keep guard over the livestock for six days,
until they could be sold. A minor dispute over payment of a note for $49.68 against the
Findley estate was settled on March 27, 1811.269 It is not clear whether Findley left a
will. His wife survived him, but there is no record of future claims against the estate.
Henry Hand’s death, on the other hand, created enormous disturbance within his
family. Hand died in 1830 or 1831. A document purported to be his will was recorded on
24 July 1831.270 The document bore his signature, though its appearance suggests that
an attempt was made to obliterate it. The will specified that Henry’s wife, Sarah, was to
enjoy the use of his estate for as long as she lived; afterward, the assets would be divided
268 Saline County Court, minutes, microfilm, C18983, microfilm, Missouri State Archives, Jefferson
City, MO.
269 Charles Finley, decedent, 1809, Probate Files, Box 24, Bundle 675, Cape Girardeau County
Archive Center, Jackson, MO.
270 Some of the documents in the case carry one year, some the other.
136
between his two married daughters, Martha Daughaty and Mary Gosa. It was a
substantial estate: two hundred acres of real estate, fourteen slaves, forty-four animals,
miscellaneous farm equipment and tools, household goods, tables, beds, chairs, two
mirrors, and a clock with its own case. The slaves were valued at sums between $175
and $700. Ten years later, following Henry Hand’s death, a grandson and granddaughter
came forth to claim one-third of his estate on the ground that he had repented the 1831
will and had “erased his signature thereto . . . and therefore died intestate,” making the
document on file in the clerk’s office “false and fraudulent.” Henry and Martha were the
offspring of William Hand, a son of Henry and also deceased, who had not been named
in his father’s will (the will claimed by Henry Hand’s grandson as false). The law suit
was resolved in May of 1844, in a ruling that awarded Henry and Martha title to a black
female slave and her child from the estate. It is not known whether the county court
proceeded on the allegation concerning the authenticity of the will on file in the county
probate office.271
John Jameson, a lawyer, wrote to Abiel Leonard in 1843 to ask his legal advice
concerning a will that he expected to be contested. Jesse Evans, the “Old Man,” was a
resident of Fulton, Missouri and “between 90 and 100 years old.” He was evidently well-
to-do. His son, Joseph, had recently moved in with him and according to Jameson had
convinced Jesse to write a will that left Joseph virtually all of his property. Others, who
had expected to inherit, reacted to the turn of events by requesting that Jameson help
them break the will on the basis of mental incapacity (apparently Jesse had been mentally
271 Estate of Henry Hand, Wills, Box 66, Bundle 1256,Cape Girardeau County Archive Center,
Jackson, MO. As a point of interest, in 1843, while the case remained in the hands of the county court,
young Henry held the office of clerk to the county court of Marshall County in Kentucky.
137
incapable for some time). Jesse was among the living at the time that Jameson wrote his
letter, and, choosing a more conservative course for the time being, he asked that Leonard
assist the heirs in “secur[ing] the property,” in order to prevent Jesse's son from going
through all of the assets while his father still lived. The Old Man's death was expected at
any time, making a swift response desirable. There is no indication how the matter
ended, unfortunately.272
Because the county court held jurisdiction in all testamentary matters, it also
proceeded when a married man died and his wife sued to recover dower. Mahala
Hendricks sued J. E. Twitchell in the Greene County Court in 1871, asserting that as
William Hendricks’ widow, she was entitled to a portion of land which her husband had
owned and which had been sold following his death. Twitchell had bought the property,
and in her suit, she accused him of having “wrongfully defrauded her.” The defendant
first responded by questioning Hendricks’ legal claim to the property. He then argued
that, even if Hendricks’s widow possessed the dower rights she claimed, the land had
been in its natural, “wild” state at the time he purchased it; that he had made
improvements on it; and that for that reason, the widow should receive nothing more than
minor monetary compensation—certainly she was not entitled to “the one third in kind or
value assigned her[.]”273
Twitchell did not convince the court, which appointed two commissioners to set
off the widow’s dower portion of the property. The commissioners’ written instructions
permitted them to “select such portion of said improved or unimproved land as they may
272 Letter from John Jameson to Abiel Leonard, Abiel Leonard, papers, C1013, folder 173, Western
Historical Manuscript Collection, University of Missouri-Columbia.
273 Mahala Hendricks versus J.E. Twitchell (1871), no. 1646, Greene County Archive Center,
Springfield, MO.
138
see proper.” Of course, improved land would have greater value than unimproved land,
with the difference affecting the widow’s award. In his report to the court, A. M.
Appleby, one of the commissioners, set the value of the dower portion of the real estate at
$525, noting carefully at the time that he was “acquainted with the value of land in this
neighborhood of this tract.” Twitchell failed in an attempt to persuade the court to throw
out the commissioners’ recommendations on the ground that the two men had not
followed their instructions.274
The court’s strategy in these actions was characteristic of counties’ methods in
governing and resolving local disputes. After ruling for the widow, the justices appointed
two local men of good character and repute, who lived in the neighborhood and knew
enough of the value of local real estate, to work out the details of the judgment—in this
case, setting off a portion of the property to satisfy the dower claim and providing a
valuation. Much of the case’s importance is tied to the commissioners’ calculations, for
while the court issued the judgment, it did not decide the precise amount of the award;
rather, it left the monetary determination to the judgment of the neighborhood. While the
justices probably supported the widow’s cause out of concern that she receive justice,
they also had practical reasons. The litigation was about private property rights, but its
outcome held economic implications for the public sector. Because the court supported
her claim of unsatisfied dower rights, and its judgment was upheld in the commissioners’
award of money, Mahala Hendricks’ financial status was substantially improved, making
it less likely that she would later become a burden on the public purse.275
274 Ibid.
275 See Hendrik Hartog, Public Property and Private Power: The Corporation of the City of New
York in American Law, 1730-1870 (Ithaca: Cornell University Press, 1983) for a discussion of changing
139
The significance of probate rulings is appreciated when the effects of decisions
are considered over time. When a resident died and left property, among persons who
hoped to inherit, land probably created more interest than any type of property owned by
the estate. Slaves, however, were not far behind. Questions surrounding inheritance of
slaves could cause sharp quarrels if the will failed to be explicit on the subject. Even if it
did, a dispute could always develop later on. In order to settle disputes—even better, if
possible, diffuse some hard feelings—the state called for counties to appoint “three
disinterested competent persons, fairly and impartially to audit and settle, under oath, all
the claims of the several persons claims as distributes[.]”276 If a large portion of the
deceased person’s estate consisted of slaves, the will could order their sale, or the heirs
on their own might determine to sell them and divide the proceeds. The minutes of the
Saline County Court in May 1839 list a petition submitted by of Robert C. Land “&
others” containing a request that the court sell the slaves belonging to the deceased
Frances Land.277 In February, 1840, justices of the Saline court granted permission to
David Palmer, administrator of the estate of the late Notley Thomas, to sell “a quantity of
hemp & to hire at private hiring the slaves of said estate[.]”278
A county court could offer protection of inheritance rights beyond a bare exercise
of duties. As an example, justices of the Greene County Court in 1843 ordered that
slaves of the estate of A. Staley remain with his widow “and under her control” [italics
conceptions of local government, citizen participation, and the relationship between local communities and
the state in early New York City.
276 Missouri, AN ACT supplementary to an act concerning executors and administrators, Acts (1822),
sect. 4.
277 Saline County Court, Minutes, C18983, microfilm, Missouri State Historical Society.
278 Ibid.
140
mine] for her use and “support of minor children.”279 Others may have mounted claims
to the slaves, leading the justices to include protective language in their orders.
Probate jurisdiction embraced matters beyond estate settlement to the care of
dependent persons. One of the county court’s duties was to deal with paupers in the
neighborhood. The normal procedure was to sell their labor at auction. Just as slaves
were purchased at auction, paupers presented themselves for sale. John M. Williams, “a
pauper,” was contracted out to Joseph Weaver of Greene County in May 1841, and,
during the summer of 1843, “John Bonds filed his petition to be let as a pauper to the
lowest bidder for 12 months.”280 According to field specialists for the Missouri State
Archives who work with local records and are familiar with nineteenth century practices,
paupers continued to be sold on the steps of the Howard County court house well into the
latter portion of the century.
The position of a pauper who was hired out differed from that of a slave in that
the slave was legally bound for life unless he could purchase his freedom or was
emancipated. In other respects, the pauper’s life was not wholly different from the
slave’s and may not have been materially better. In fiscal terms, what distinguished the
pauper’s situation was the immediate and direct economic benefit to the county.281 As
property, slaves were subjects of taxation. But assessing and collecting taxes was time-
279 Compiler Marsha Hoffman Rising, Greene County Missouri Probate Records: Wills, Minutes,
Bonds, Letters of Administration, 1833-1871 (Greene County Archive Center, Springfield, Missouri, n.d.).
280 Greene County Court, Minute Book A., no. 106, Missouri State Archives, Jefferson City, MO.
281 Slave owners paid property taxes on slaves over the age of three at the rate of twenty-five cents
for each hundred dollars of the slave’s value. The tax process began with an assessor appointed by the
county court, who visited every property owner or person “possessing or having the care or management of
any property taxable by law” within the county to make a list of the taxable. The tax also acted as direct
income to the county. Missouri, An Act to provide for Levying, Assessing and Collecting, State and
County Taxes, Acts (1820), sections 1, 4.
141
consuming and taxpayers did not always pay immediately. On the other hand, sale of a
pauper’s labor was guaranteed in a single transaction. It was a highly effective means of
generating county income, and at the same time assured that the public purse would not
be lightened by expenses incurred through support of the pauper.
Probate jurisdiction embraced labor arrangements which allowed county courts to
seize black minors found wandering or loitering about the neighborhood and bind them
into apprenticeships. The law is similar to Missouri’s law of indenture, which probably
provided a model for the law and also was administered by the county courts. County
justices’ jurisdictional authority enabled them to manipulate local supplies of labor
through indentures, labor arrangements for black minors, and the sale of paupers’ labor.
In effect, county courts opened up the labor supply for employers. It is doubtful that
counties randomly rounded up paupers and children in order to sell off their labor or bind
them to labor contracts. It is important to take into account the discretionary aspect of
these powers. In other words, county justices were not obligated to allow an indenture to
go forward, any more than they were obliged to remove every black child found
wandering in the county. The statutes told the court what it could do, not what it must
do.282 Labor needs, concern for a child’s welfare, parents’ economic burdens, residents’
wish for the neighborhood to present a respectable appearance, perhaps even the early
notion that people should not live alone but should live within a household entered into
counties’ arrangements for dependent persons.
Just as county courts acted to ensure that paupers would not impose burdens on
the county budget and that black minors would be put to work, they possessed a general
282 Missouri, An Act concerning free negroes and mulattoes, Revised Statutes (1845), sections 4, 5.
142
responsibility over all dependent persons. The institution of the county poor house
provides an excellent example.283 Authorized by the state of Missouri to erect and run a
poor house in each county, county courts released bids for construction work, bought
construction materials, and paid a poor house superintendent to manage the place.
Inmates were supplied with materials purchased by the county (presumably from local
sources) and were expected to fashion these into items; the items were then sold and
presumably the proceeds went toward inmates’ support. The first individual to benefit
from the poor house plan was the legal owner of land purchased by the county as a site
for the institution. Greene County Court Judge W. B. Farmer in 1855 recommended the
county purchase 200 acres of land belonging to James Douglass; the court approved his
selection and made a substantial partial payment of $1000 to Mr. Douglass for the
property.284 A listing of direct beneficiaries of Missouri’s poor policies would show the
superintendent of the poor house, the contractor who won the bid to construct the poor
house, suppliers of materials used in its construction, the source or sources for materials
used by inmates to make products to sell, suppliers of food, clothing and other
necessities, workers who maintained the building and grounds, and medical professionals
to provide care for sick inmates. In addition, in terms of efficiency it is likely the
community as a whole benefited (although calculating a figure might be impossible) from
outdoor, rather than indoor, relief. Though state legislators wrote the statute that ordered
counties to construct and operate poor houses, they did not supply standards of care,
select inmates, or visit supervise a county’s care of the poor. Each county supported the
283 Missouri, AN ACT to authorize the county courts of the several counties in this State to
erect Poor Houses, whenever they shall deem it expedient, Laws, (1843), sections 1-6.
284 History of Greene County, 232.
143
expenses of the poor house located in it through taxes and other mechanisms. Care of
inmates thus varied from county to county, depending on a county’s financial resources
and notions of an appropriate standard of living for inmates.285
The exercise of probate powers immediately affected private individuals, with
secondary effects reaching the community at large. But the state also granted county
governments key powers within the marketplace, which in turn influenced local
economies and social policies.
The selling of licenses and regulation of business provided counties with income
and authorized justices to control commercial activity. Income from licenses could be
meaningful; further, licensing served as a multi-purpose tool to accomplish state and
county objectives. The license sold to peddlers and merchandisers of goods imported
from outside Missouri, for example, carried a state tax of between fifteen dollars and two
hundred dollars every six months, “which amount or sum shall be fixed in the discretion
of the court or clerk in vacation, due regard being had to the value of the stand and
amount of business done[.]”286 The license promoted market development by
encouraging sellers to deal in Missouri-made goods and, at the same time, made sure that
285 Unlike other dependent persons, who were classed as “poor” for the purpose of housing them in
county poor houses, insane persons at times were held in the county jail. While it was not feasible to place
them around others, sentiment to consider other means of caring for mentally unsound persons emerged in
the late 1840s. The result was a new state insane asylum, constructed in Fulton and managed by a board of
managers who were required to visit the facility several times annually and generally take active roles in
management of the place. Part of the justification for the asylum was that it would provide a large
economic benefit to the state in the form of savings over current methods of care. Patients whose care
could be provided with private funds continued to have private care and were admitted to the hospital only
if there were empty beds. Richard L. Lael, Barbara Brazos, and Margot Ford McMillen, Evolution of a
Missouri Asylum: Fulton State Hospital, 1851-2006 (Columbia: University of Missouri Press, 2006), 9, 14,
17-18. http://site.ebrary.com.proxy.lib.wayne.edu/lib/wayne.doc
286 Missouri, An Act imposing a Tax on licences to retailers of Merchandize and Pedlers, Acts
(1820), sec. 2.
144
the state tax would be levied fairly on sales of out-of-state goods. Auctioneers paid a
state tax of three dollars on chattel goods and a percentage of the sale price on every sale
of real estate, while the license itself was purchased for $100 every six months. To
ensure that auctioneers complied with the law they were required to report all sales to the
county clerk “from time to time[.]”287
Retailers of alcohol paid a remarkably low twenty dollars every six months for a
license; however, if the seller were caught selling alcohol to a slave, “directly or
indirectly,” he forfeited his license, which would not be renewed, and paid a fifty dollar
fine.288 Sales of alcohol were problematic in terms of state social policies, but any
dangers were reduced by licensing conditions and loss of the right to do business if those
conditions were violated.
License sales indicate that, even in small, isolated communities, settlers enjoyed
some of the comforts of a civilized life. Licenses granted by the Cape Girardeau County
Court in 1823 included ten issued to retail merchandisers, eleven to retailers of wines and
spirits—one sold to a woman with the interesting name of Scarlet Glascock—four to
tavern keepers, and one to the keeper of a billiards parlor.289 Businesses were scattered
among Cape Girardeau’s towns, one of the principal being Cape Girardeau, described in
1870 as the “chief city of the county.” The first store there opened in 1806, two years
before Cape Girardeau incorporated as a village. In 1818, the village had two stores and
287 Missouri, An Act to license Auctioneers, and impose a tax on Auction Licences and Sales at
Auction, Acts (1820).
288 Missouri, An Act to licence and regulate Retailers of Wines and Spirituous Liquors, sections 2, 6.
289 Independent Patriot, Jackson, MO. January 17, 1824.
145
“about fifty houses.” A tanyard and “still house” were built at about that time, as well.
When steamboats began to stop in the town, it grew substantially, and in 1836 the Cape
Girardeau Patriot began publication. In 1853, the city received its first bank. The war
put an end to growth, but commercial activity resumed afterward. By March, 1867, local
businesses included twelve grocery and “provision” stores, five breweries, a distillery,
fourteen shoe stores, three hardware stores, eleven blacksmith shops, twenty-seven dry
goods stores, and others. 290 By the early 1870s, Cape Girardeau boasted three cigar
factories, two whole grocery and liquor businesses, four saddle and harness makers, four
breweries, and roughly sixty stores of unspecified sorts.291 Besides providing
information regarding the goods and services that people bought over the years, and the
kinds of activities that formed daily life, facts about commercial activity demonstrate
how county governments manipulated businesses. Justices could determine which
categories of business to permit in a town, how many to allow, and who would be
permitted to engage in business. The fiscal benefit to county governments and residents
from these license sales is clear. Commercial licenses were sold to grocers, tavern
owners, auctioneers, peddlers, ferry boat operators, billiard parlor operators, and foreign
insurance agencies.292 Fees varied, and some businesses, such as grocers, were required
290 N. a., History of Southeast Missouri Embracing an Historical Account of the Counties of Ste.
Genevieve, St. Francois, Perry, Cape Girardeau, Bollinger, Madison, New Madrid, Pemiscot, Dunklin,
Scott, Mississippi, Stoddard, Butler, Wayne and Iron and Including a Department Devoted to the
Preservation of Persona, Professional and Private Records(Chicago: Goodspeed Publishing Co., 1888),
411-415.
291 Ed. R. a. Campbell, Campbell’s Gazetteer of Missouri From Articles Contributed by Prominent
Gentlemen in each County of the State, and Information Collected and Collated from Official and Other
Authentic Sources, by a Corps of Experienced Canvassers St. Louis: R. A. Campbell, Publisher, 1875),
106-108.
292 Ibid.; Missouri, An Act taxing Billiard Tables and regulating Ferries, Acts (1820);
Missouri, AN ACT to license Foreign Insurance Agencies, Laws (1837).
146
to perform regularly scheduled accountings which provided the basis for a sales tax, also
paid to the county.
The licensing authority was a useful tool possessing both short-term and long-
term economic advantages. It should be noted first, that, like the residence and weapons
licenses required of free blacks and mulattoes, a commercial license was a gift of the state
in the person of the county court. Because state law supplied no criteria for being able to
purchase a license, the court had leeway in determining who would have a license and
who would not. Such decisions molded the character of a local business community, and
power to restrict the numbers and types of businesses allowed county judges to protect
commercial operators from competition.
It would be too much to claim that in frontier settlements, every tavern owner,
grocer, or peddler hawking goods door to door possessed a valid operating license.
However, once on the books, licensing statutes were disregarded at the business
operator’s risk; penalties for not being licensed to operate normally not only imposed a
fine but closed the business down. Even circuses “and other public exhibitions” were
taxed by most of Missouri’s counties in a special act passed in 1849, with the money
going into the county treasury where it was to be kept with other funds for common
147
schools.293 Statutes that granted licensing powers to county courts permitted those
entities to control commercial activity across frontier Missouri. Licensing not only
protected businesses, but the practice minimized the risk that consumers would be taken
in by con artists attempting to sell them inferior goods or disappear after making the sale.
Besides regulating markets, acts of county courts of commissioners influenced
economic activity through construction and maintenance of highways and bridges, insane
asylums, poor houses, jails, and other public buildings. Projects were financed by taxes
levied by the county courts. This 1839 law, which authorized county courts to engage in
long term development, gave them the right to
grant charters to individuals, companies or corporations, to
construct or erect bridges over streams and causeways, or otherwise
improve roads over swamps . . . on public roads and highways . . .
for any term or period of time, not to exceed ten years, except where
the cost of said bridge or road shall exceed three thousand dollars, in
which case, the period , or term of time, for which said courts may
grant charters, shall not exceed twenty years; and when said bridge
or road shall cost more than five thousand dollars, said charter may
extend to a time not to exceed thirty years, at the discretion of the
court . . . The said courts shall have power to receive propositions
for the erection of bridges, and the construction of roads; to enter
into contracts, and stipulations relating to the same . . . No charter
shall be granted by the county courts under this act, when one third
of the taxable inhabitants of the county where application is made,
shall remonstrate against granting said charter; nor shall the courts
aforesaid grant any charter contemplated by this act, at the same
term at which the application may have been made for the same.294
County courts were charged with responsibility for all roads within the state not
specifically designated state highways. Accordingly, they devoted enormous attention to
293 Missouri, AN ACT concerning circuses and other public exhibitions, Laws (1849), sections 1, 3.
294 Missouri, An Act giving the County Courts authority to incorporate and grant charters to
individuals and companies, for the purpose of bridging streams, and to encourage the improvements of
roads, Laws (1839), sections 1, 5.
148
road construction and maintenance. Road business dominated the first session of Greene
County’s first county court in March of 1833. Over a four-day period, besides making a
number of county appointments, organizing townships, and dealing with probate matters,
county justices declared a road leading from Springfield to Fayetteville, Arkansas
Territory a public road and appointed commissioners to mark out an extension to it;
appointed commissioners to lay out a road from Bledsoe’s ferry to “an indefinite point on
the Twenty-five Mile prairie; ordered a public road to be viewed and marked out from
Springfield to Boonville; and ordered the review of a road between Springfield and Swan
Creek. All of these projects required the labor of local residents.295 Counties sometimes
cooperated with each other in road-building projects, too. In 1836, the counties of
Greene and Morgan built a “main” road to run from Versaille in Morgan County,
continuing through Greene County, and ending at the Arkansas border. Costs were borne
by the two counties. The road was much used by travelers afterward on their way to and
from Boonville, according to local lore.296
As a result of such dogged efforts, settlers journeying in Missouri for the first
time in the 1830s traveled on roads that had not existed for the first waves of immigrants
ten and twenty years earlier. When Saline County was organized, it had no roads at all;
295 History of Greene County, 158-159.
296 Ibid., 175. An 1833 statute established a fund, proceeds of which were dedicated to internal
improvements undertaken by counties. The arrangements made county courts into ex officio boards of
internal improvement charged with responsibility for planning, overseeing construction of, and paying for
projects including the construction of public roads and bridges. Each county was to identify a project, put
out bids for the work and have construction proceed. The county clerk would notify the state auditor of
costs, and upon receipt of the auditor’s approval, the state treasurer would issue a warrant to the county
debiting the amount from the county’s fund, the size of which was based on the county census. The sole
difficulty with the plan was that it did not supply any monies for private roads. Missouri, AN ACT
directing the subdivision of the Three Per Cent. Fund among the several Counties of the State, to the
purposes of Internal Improvement, within the same (1833).
149
most settlements were made along the edge of the river, and people traveled on the water
if they wanted to go anywhere. Writing of hard times in the mid-1850s, a local historian
comments that, in Greene County, “long distance[s] from railroad or river transportation
made a short crop a serious matter in those days.”297
Meeting minutes of county courts show payments for all manner of services and
goods associated with building and keeping up highways. In Saline County, the court in
1870 approved a payment of $57—a not inconsiderable sum in those times—to T.
Boatright for services as a road overseer; Sam Paul was paid $22 for opening a road; and
James Martin received $12 for lumber for road use; a man named Rockhold was paid
$150 for serving as road commissioner.298 One resident had lent a sum of money to the
county for internal improvements; he received $96 “for cash advanced on road.”299
Missouri’s county governments assumed fiscal responsibilities for internal
improvements and had the onerous chore of scheduling residents to perform roadwork.
Some jobs were not so time- or energy-consuming as others: surveying, for example,
meant that a farmer would have to devote whatever time was required for the task, but
after turning in his report, his work ended. Regular construction and repair, however,
were jobs of manual labor, and these were rotated among residents. James Finley was
appointed in the August term of 1842 by Saline County justices to serve as overseer of a
road that began at Dr. Sappington’s place and ended at A. G. Wood’s fence line; the
297 Fairbanks and Tuck, Past and Present of Greene County, Missouri, p 10 of 15,
http://thelibrary.springfield.missouri.org/lochist/history/paspres/ch10.html.
298 Saline County Progress, May 4, 1870.
299 Ibid.
150
appointment was for one year, during which time Finely was expected to keep the road
open and in good condition. 300 The labor of hundreds, possibly thousands of Missouri
residents over the nineteenth century must have represented an enormous sum of money.
Using county tax money to pay for roads seems reasonable on the basis that many
if not most roads were looked upon as local, in the sense that mainly people in the
neighborhood used them to visit, transport goods, go back and forth to raise a barn or
help deliver a baby, or pay a bill. However, those ‘local’ roads also formed a political,
social, and economic asset to the state, and a statewide network.
With road construction across the state more or less under the control of county
courts, the state thus relinquished statewide transportation policies to courts run by
justices of the peace. In 1874, lawmakers passed new law that encompassed large
changes in transportation policy. Besides putting into place a comprehensive plan for
construction and maintenance of roads, it emphasized the role of residents in deciding
locations for new road construction and imposed uniform standards of road construction
for all new roads, still to be built by county courts. 301
The new measure authorized each county to appoint a road commissioner,
specified dimensions of public roads, and supplied standards for road construction: “All
public roads shall be cleared of trees and limbs of trees, which may incommode
horsemen or carriages; and no stumps in any public road shall exceed eighteen inches in
300 Minutes, Saline County Court, 1839-1846, 1863, 1864, 1865, C18976, microfilm, Missouri State
Archives, Jefferson City, MO.
301 Missouri, AN ACT in relation to roads and highways, providing for establishing, opening and
repairing the same, Laws (1874).
151
hight, [sic] and wet grounds and small water-courses shall be causewayed or bridged in
such manner as to enable horsemen and carriages to pass with safety.” A new county
surveyor (also appointed by the county court) would be an “ex officio commissioner of
roads and bridges.” Adjoining counties were encouraged to connect roads that would
meet or come close to meeting each other, if boundary lines were not there to prevent it.
Finally, the state prohibited action by county commissioners to initiate new road
construction in the absence of an application by residents in a petition bearing the
signatures of at least twelve persons, all householders of the municipal township or
townships through which proposed road would run; the state called for three of the
petitioners to be residents “the immediate neighborhood[.]”302
The measure seemed to suggest that counties were not as open as they might have
been to residents’ wishes regarding road construction. The record suggests otherwise.
County courts had made it a practice for years to receive and respond to citizen petitions,
well before the 1874 road bill. In Saline County, for example, the court appointed three
residents in July of 1821 to mark out a road “petitioned for by Lewis Rees and
others[.]”303 Justices did not always respond positively to requests, of course. Citizens
of Saline County who petitioned for a bridge to be built over Bear Creek in November of
1831 went away unsatisfied.304
302 Ibid.
303 The road that Rees requested was the first road built in the county when it was first organized.
Asst. eds., John R. Hall, Mrs. J. C. Egan, Mr. and Mrs. William Elder, Saline County History (n.p., Saline
County Historical Society, n.d.), 369.
304 Ibid., 370. It would have been naïve for legislators to conclude that county courts consciously
practiced indifference to the public interest, petition or not petition. The same local history records a road
“to commence at Burton Lawless’ ferry from thence the nearest and best way to Salt Fork between
Parmers’ and Findlay’s Mills and from thence the most direct way to Cheeks Scott works and make a
152
County courts were highly experienced in planning and organizing internal
improvements. They naturally wished to play a part in bringing rail transport to their
jurisdictions. Indeed, “railroad mania” affected many residents. State, county and local
governments participated in subsidizing the railroads, often at great cost and without
much to show for their investments. Before 1861, the only railroad to have been
completed in Missouri was the Hannibal and St. Joseph, funded mainly by eastern
interests.305 Four years later, most railroad lines that had begun construction were in
default (except for the Hannibal and St. Joseph) and the state had only 810 lines of rail.
One project, initiated in 1866 to bring lines into southwestern Missouri, failed due to
workers’ strikes for higher wages, poor quality of English rails and incompetent
management by the railroad itself; by June of 1867, Southwest Pacific had completed
only twelve miles of track.306 Little progress was made until 1868, when the legislature
voted to complete funding for the railroads. “By the end of 1870, [the railroads] had laid
an additional 626 miles, and all of the lines had been finished to their original intended
destinations.”307
Voters themselves exhibited railroad fever, voting to support bond issues, “often
in the hundreds of thousands of dollars.” After the war, when plans were announced for
the Cape Girardeau & State Line Railroad to go through the city of Cape Girardeau,
report thereon to the court at their next term.” The route clearly was intended to make it possible for
residents to use the ferry’s services and get to the mills. Residents also could appeal their property taxes:
“A special term of court was begun and held [on June 20, 1832] for the purpose of hearing appeals taken
the assessments lists and for other purposes.” Ibid.
305 Parrish, A History of Missouri, 205. See Parrish for a highly detailed account of the history of
railroads in Missouri.
306 Ibid., 207, 211, 213.
307 Ibid., 216.
153
“large majorities” of voters approved a subscription of $150,000, along with a similar
sum from the township of Cape Girardeau. When the miles of track never materialized,
results for the city were disastrous. Worse yet, “the heavy indebtedness thus recklessly
incurred did not present an inviting aspect to manufacturers and other capitalists.”308
Nonetheless, railroads eventually provided huge economic benefits for the state,
accounting for a 56 percent gain in population during the decade of the 1860’s; other
figures indicate that population density was greatest where the railroads ran through.309
Acts by county courts with respect to rail expansion probably provided much of
the motivation for statutes that sought to rein in county justices’ fiscal exercises of power.
“To explain the reasons for the adoption of these restrictions,” notes William Bradshaw,
“would require an analysis of county investments in railroad securities during the era of
railroad speculation in Missouri[.]”310 Entitled “Abuses of Public Trust” a statute enacted
in 1872 aimed at preventing prevent financial losses to counties and townships due to
improprieties committed by county justices. Simply put, it prohibited county justices
from investing in any railroad venture without a two-thirds vote of the county electorate.
A violation by “any justice of a county court, member of a city council, or member of a
board of trustees of any incorporated town, who shall hereafter vote to donate, take, or
subscribe stock for such county, city, or incorporated town in, or loan the credit thereof
to, any railroad company, or other company, corporation, or association, . . . shall be
308 Ibid., 222; N.a., History of Southeast Missouri, Embracing an Historical Account of the Counties
of Ste. Genevieve, St. Francois, Perry, Cape Girardeau, Bollinger, Madison, New Madrid, Pemiscot,
Dunklin, Scott, Mississippi, Stoddard, Butler, Wayne and Iron, and Including a Department Devoted to the
Preservation of Personal, Professional and Private Records (Chicago: Goodspeed Publishing Company,
1888), 415.
309 William Parrish, A History of Missouri, 223.
310 William Bradshaw, “History of the Missouri County Court,” 400.
154
adjudged guilty of a felony[.]”311 Lawmakers in the same session passed a measure
making appropriation of county funds for personal use a misdemeanor punishable by five
years in the state penitentiary312 The state later mandated that money collected by
counties to pay interest on railroad bonds, but had been left unspent, go toward finance of
home mortgages, or purchase of U.S. bonds or Missouri state bonds.313
Finally, county courts possessed a power of appointment (or patronage) which
carried political and economic benefits. Appointments were used to reward friends or
persons whose friendship was desired. The value of a county appointment was noted by
critics of official policy toward the poor. In a reference to the county poor house in
Saline County, the Saline County Progress charged that “[i]f representations which have
been made to us by sundry reliable citizens be correct, this public institution is sadly in
want of “Reconstruction.” It has been the means of speculation to divers [sic] relatives
and friends of men who have had a position upon the County Court bench since the
war.”314 There can be no question that county judges were able to surround themselves
with friends and supporters through appointments to all manner of public office, and the
acknowledgement and gratitude that flowed from them helped to shape county and local
affairs. In an 1825 county election result that produced the ‘wrong’ result, one Lafayette
County resident wrote to Abiel Leonard, then a clerk with the court. “Dear Sir, to my
311 Missouri, AN ACT to protect counties, cities and incorporated towns from combinations
between railroad companies, county courts, city councils of cities, and boards of trustees of incorporated
towns, Laws (1872).
312 Missouri, AN ACT to punish certain abuses of public trust, Laws (1872).
313 Missouri, AN ACT to authorize the several county courts of this State to loan out or invest certain
moneys, Laws (1875), sections 1, 2, 7.
314 November 18, 1870.
155
utter astonishment the election terminated thus for Miller 177 Hon Todd 109 Hon. E. C.
Carr nine and for Rufus Easton none. Our sheriff the pretended friend to Judge Todd
voted together with his father and brother for Genl Miller.”315 There is no question that
offices often were the result of finagling. That it looked like favoritism or self-interest in
some quarters is clear, and no doubt it often was the case. David Barton of Washington,
Missouri, was vitally interested who would be appointed to the office of register for the
town of Franklin. He discussed the question to his friend Abiel Leonard in
correspondence whose meaning is not entirely clear. Obviously there was a great deal of
competition for the post of Register at Franklin, and the figures suggest that it was worth
a substantial amount of money in one way or another. Barton wrote that he had received
Leonard’s letter of October 27 regarding the position. “Miller’s resignation,” he added,
“is not yet received; but, to avoid smuggling I and John Scott have recommended Mr
Boggs for the office. . . . My good friend Gen McRea has reported himself robbed of
upward of $9000 . . . From the blood of Ewing I expect he will be robbed also when the
receipts amount to 4 or 5,000.316
Appointment to public service earned no such gratitude from settlers, who
served, whether they wished to, or not, on slave patrols, as surveyors, as supervisors of
road repairs or assistants to administrators in the probate of estates. These appointments
were made by the judges of county courts and were less in the nature of patronage than
scheduling work time; some jobs were compensated, but not extravagantly so. If
residents refused to show up when scheduled, they could be sued by the county. In 1828,
315 Abiel Leonard, Papers, no. C1013, folder 34, Western Historical Manuscript Collection,
University of Missouri-Columbia.
316 Letter to Abiel Leonard from David Barton, Abiel Leonard Papers, folder 334, C1013, Western
Historical Manuscript Collection, University of Missouri-Columbia.
