"Do I know this man, this cow puncher?" said he. "Of course I know him, d.a.m.n him, and I know what he done, too. Such a high-handed act never ought to be tolerated, sir! Destroyin' property--why, a-destroyin' of life _and_ property, for he killed the pig--and this new family of citizens dependin' in part on the pig fer their sustenances this comin' season; to say nothin' of his nigh shootin' me up as I was crossin' the street from the post-office! Try him! Why, of _course_ we ought to try him. What show have we got if we go on this lawless way? What injucement can we offer Eastern Capital to settle in our midst if, instead of bein' quiet and law-abidin', we go on a-rarin' and a-pitchin' and a-runnin' wide open, every man for hisself? What are we here for, you, and you, and me, if it ain't to set in trile over such britches of the peace?"

"You're in," said Dan Anderson, succinctly. "Get over to your 'dobe.

We'll hold this trial right away. I reckon all the boys'll know about it by this time. I'll go over and get the prisoner. But, hold on! He ain't arrested yet. Who'll serve the warrant? Ben Stillson (the sheriff) is down on the Hondo, and his deputy, Poe, is out of town.

There ain't a soul here to serve a paper. Looks like the court was some rusty, don't it?"

"Warrant!" said the Justice, "warrant! You don't need no warrant.

Wasn't he seen a-doin' the act?"

"Oh, but it wasn't a real first-cla.s.s felony," demurred Dan, with some shade of conscience left.

"Well, I'll arrest him myself," said the Justice. "He's got to be brought to trile."

"Well, now," I ventured to suggest, "that doesn't look exactly right, either, since you are to try the case, Judge. It's legal, but it isn't etiquette."

Blackman scratched his head. "Maybe that's so," said he. Then turning to me, "S'pose _you_ arrest him."

"He can't," said Dan Anderson. "He's the prosecuting attorney--only other lawyer in town. It wouldn't look right for either the judge or prosecutor to make the arrest. Curly might not like it." This all seemed true enough, and we fell into a quandary.

"I'll tell you," said Dan Anderson at length. "I'd better arrest him myself. I'm going to defend him, so it would look more regular for me to bring him in. Looks like he wasn't afraid of the verdict. We ain't, either. I want you to remember, Judge, if you don't clear him--"

Here counsel for the Territory interrupted, feeling that the majesty of the law was not fully observed by threatening the trial judge in advance.

"Well, come along, then," said Anderson. "Let that part of it go.

Come over and let's get out the warrant."

I was not with them when the warrant was issued, though that part of the proceeding might naturally have seemed rather the duty of the prosecution than of the defence. Dan Anderson afterward told me that Blackman could not find his law book (he had only one, a copy of the statutes of Kansas) for a long time, and then couldn't find the proper place in it. Legal blanks did not exist in Heart's Desire, and all legal forms had departed from Blackman's mind in this time of excitement. Dan Anderson himself drew the warrant. As it was read later by himself to Curly at the Lone Star, it did not lack a certain charm. It began with "Greeting," and ended with, "Now, therefore, in the name of G.o.d and the Continental Congress." Anderson did not crack a smile in reading it, and so far as that is concerned, the warrant worked as well as any and better than some. Curly, because he felt that he was in the hands of his friends, made no special demurrer to the terms of the "writ," and in a few moments the Lone Star was empty and Blackman's adobe was packed.

CHAPTER IV

THE LAW AT HEART'S DESIRE

_Continuing the Story of the Pig from Kansas, and the Deep d.a.m.nation of his Taking Off_

"Order! order! gentlemen!" called Blackman, Justice of the Peace, clearing his throat. "This honorable justice court is now in session.

Gentlemen, what is your pleasure?"

He was a little confused, but he meant well. It seemed inc.u.mbent upon the prosecutor to make some sort of a statement, but the attorney for the defence interposed. He moved for the discharge of the prisoner on the ground that there was no Territorial law and no city ordinance violated; he pointed out that Heart's Desire was not a city, neither a town, but had never been organized, established, or begun, even to the extent of the filing of a town site plat; he therefore denied the existence of any munic.i.p.al law, since there had never been any munic.i.p.ality; he intimated that the pig had perhaps been killed accidentally, or perhaps in self-defence; it was plain that the prisoner was wrongfully restrained of his liberty, etc.

The ire of Blackman, J. P., at all this was something to behold. He to be deprived of his opportunity thus lightly? Hardly! He overruled the objections at once, and rapped loudly for order.

"The trile will go on," said he.

"Then, your Honor," cried Dan Andersen, springing to his feet, "then I shall resort to the ancient bulwark of our personal liberties. I shall sue out a writ of _habeas corpus_, and take this prisoner out of custody. I'll sue this court on its bond! I'll take a change of venue! We'll leave no stone unturned to set this innocent man free and restore him to the bosom of his family!"

This speech produced a great effect on the audience, as murmurs of approbation testified, but the doughty Justice of the Peace was not so easily to be reckoned with. He pointed out that there was no officer to serve a writ of _habeas corpus_; that the court had given no bond to anybody and did not propose to do so; that there was no other court to which to apply for a change of "vendew," as he termed it; and reiterated once more that the "trile must go on." The prosecution was, therefore, once more called upon to state the case. Again the attorney for the defence protested, a foreshadowing of his fighting blood reddening his face.

"I call for a jury," said he. "Does this court suppose we are going to leave the liberty of this prisoner in the hands of a judge openly and notoriously prejudiced as to the facts of this case? I demand a trial by a jury of the defendant's peers."

Blackman reddened, but was game. "Jury goes," said he. "Count out twelve fellers there, beginnin' next the door."

"Twelve!" said Dan Andersen, for the moment almost losing his gravity.

"I thought this court might be content with six for a justice's jury; but realizing the importance of this court, we are willing to agree on twelve."

It was so agreed. The jury took in every man in the little room but three. "They'll do for a veniry," said Blackman, J. P., learnedly.

Under the circ.u.mstances, one can perhaps forgive him for becoming at times a trifle mixed as to the legal proceedings.

At least, it was easy to agree as to the jury; for obviously the population of the place was fully acquainted with all the facts in the case, and each one had freely expressed his opinion upon the one side or the other. There seemed to be no reason for excusing any juror for cause; and upon the other hand, there are often very good reasons in a Land Before the Law for not bringing up personal matters of this kind.

Indeed, the trial judge settled all that. He looked over the twelve good men and true thus segregated, and remarked briefly: "They're his peers, all right. The trile will now proceed."

Whereupon he swore them solemnly and made a record in his fee book, to the later consternation of his jurors. "Ain't this court a notary, too?" said Blackman later. "And ain't a notary ent.i.tled to so much fee for administerin' a oath? And didn't I administer twelve oaths?"

There was small answer to this, after all. The laborer is worthy of his hire; and Blackman really labored in this case as in all likelihood few justices have before or since.

The prosecuting attorney, who, it may be seen, held his office much as did the justice of the peace, by the doctrine of _nemine contradicente_, now arose and made the opening statement. There, was some doubt as to whether this was a civil or criminal trial, but there was no doubt whatever of the existence of a trial of some kind; neither did there exist any doubt as to the importance of this, the first case the prosecuting attorney had ever tried, outside of moot courts. It was the first speech he had ever made in public, barring college "orations," carefully memorized, and an occasional Fourth of July speech, which might have been better for more memorizing. The attorney for the prosecution, however, arose to the occasion--at least to a certain extent. He spoke in low and feeling tones of the struggling little community of hardy souls thus set down apart in the far-off mountain country of the West; of its trials, its hopes, its ambitions, of its expectations of becoming a mountain emporium which should be the pride of the entire Territory; he went on to mention the necessity for law and order, pointing out the danger to the public interests of the community which must lie in a general reputation for ruffianism and lawlessness, showing how Eastern Capital must ever be timid in visiting a town of such reputation, apart from investing any money therein; then, changing to the personal phases of the case, he spoke of the absolute disregard of law shown in the act charged, mentioned the red-handed deed of this lawless and dangerous person who had thus slain a pig, no less the pride of the community than the idol of the family now bereft.

At this point the jury began to look much perturbed and solemn, and the prisoner very red and uneasy. Prosecution closed by offering to prove all charges by competent testimony. This latter was a dangerous proposition to advance. We could not well ask the jurymen to testify, and of the "veniry," more than half had now slipped out for a hurried and excited visit to the Lone Star, there to advise any possible new arrivals of what was going on at Blackman's adobe.

Counsel for the defence arose calmly to make his opening statement.

The man was a natural trial lawyer. It was simply destiny which had driven him into this comedy, as destiny had driven him to Heart's Desire. It was not comedy now, when Dan Anderson faced judge and jury here in Blackman's adobe. There came a swift, sudden chill, a gripping as of iron, a darkening, a shrinking of the heart of each man in that little room. It was the coming of the Law! Ah! Dan Anderson, you ruined our little paradise; and now its walls are down forever, even the walls of our city of content.

Dan Anderson stood, young, tall and grave, one hand in the bosom of his shirt, for hardly one present wore a coat. He had his audience with him before he spoke. When he began he caught them tighter to his cause, using not merely flowing rhetoric of speech, but the close-knit, advancing, upbuilding argument of a man able to "think on his feet,"--that higher sort of oratory which is most convincing with an American audience or an American jury.

The statement of the prosecution, said Dan Anderson, was on the whole a fair one, and no discredit to the learned brother making it. None would more readily than himself yield acquiescence to the statement that law and order must prevail. Without law there could be nothing but anarchy. Under anarchy progress was at an end. The individual must give up something of his rights to the state and the community.

He gave up a certain amount of liberty, but received therefor an equivalent in protection. The law was, therefore, no oppressor, no monster, no usurer, no austere being, reaping where it had not sown.

The law was nothing to be dreaded, nothing to be feared; and, upon the other hand, it was nothing to be scorned.

There must be a beginning, continued Dan Anderson. There must be something established. The pound measure was one pound, the same all over the country; a yard measure was a yard, and there was no guesswork about it. It was the same. It was a unit. So with the law. It must be the same, a unit, soulless, unfeeling, just, unchangeable. There was nothing indeterminate in it. The att.i.tude of the law was thus or so, and not otherwise. It was not for the individual to pa.s.s upon any of these questions. It was for the courts to do so, the approved machinery set aside, under the social compact, for reducing the friction of the wheels of society, for securing the permanency of things beneficial to that society, and for removing things injurious thereto. The Law itself was immutable. The courts must administer that Law without malice, without feeling, impersonally, justly.

In so far as there had hitherto been no Law in Heart's Desire, went on the speaker, thus far had our citizens dwelt in barbarism, had indeed been unfit, under the very definition of things, to bear the proud t.i.tle of citizens of America, the justest, the most order-loving, as well as the bravest and the most aggressive nation of the world. The time had now come for the establishment in this community of the Law, that beneficent agency of progress, that indispensable factor, that inseparable attendant upon civilization. Upon the sky should blaze no more the red riot of anarchy and barbarism. Upon the summit of the n.o.ble mountain overtopping this happy valley there should sit no more the grinning figure of malevolent and unrestrained vice, but the pure form of the blind G.o.ddess of Justice, holding ever aloft over this happy land the unfaltering sword and the unwavering scales, so that all might look thereon, the rightdoers in smiling security, the wrong-doing in terror of their deeds. This was the Law!

"And now, gentlemen of this jury," said Dan Anderson, "I stand here before you to make no excuses for this Law, to palliate nothing in the way of its workings, to set no tentative or temporizing date for the time of the arrival at this place of the image of the Law. I say to you here to-day, at this hour, that image now sits there enthroned above us. The Law is not to come--it has come, it is here!"

The old days were, therefore, done, he went on. Henceforth we must observe the Law. We were here now with the intention of observing that Law. Should we therefore fear it? Should we dread the decision of this distinguished servant of the Law? By no means. To show that the Law was no dragon, no demon, he would now, in the very face of that Law, proceed to clear this innocent man of that cloud of doubt and suspicion which for a brief moment the social body had cast upon him.

He would show to the gentlemen of this jury and to this honorable court that there had been no violation of the Law through any act of this honest, open-faced, intelligent young gentleman, long known among them as an upright and fair-dealing man. The Law, just and exact, would now protect this prisoner. The Law was no matter of haphazard. The prosecution must show that some specific article of the Law had been violated.

"Now," continued Dan Anderson, casting an eye about him as calmly as could have done any old trial lawyer examining the condition of his jury, "what are the charges made by the Territory? The prosecution specifies no section or paragraph of the statutes of this Territory holding it unlawful to shoot any dangerous wild beast at large in this community. But we do not admit that this prisoner shot anything, or shot at anything whatever. We shall prove that at the time mentioned he was engaged in a simple, harmless, and useful pastime, a pastime laudable of itself, since it tends to make the partic.i.p.ant therein a better and more useful citizen. There is no Territorial law forbidding any act which he is here charged with committing. Neither has the body social in this thriving community placed upon its records any local law, any indication that a man may not, without let or hindrance, do any act such as those charged vaguely against this good young man, who has only availed himself of his right under the Const.i.tution to bear arms, to a.s.semble in public, and to engage in the pursuit of happiness."

The prosecution, he said, had introduced reference to a certain pig, alleging that it was slain by the act of the prisoner. He would not admit that there had been any pig, since no _corpus delicti_ was shown; but in any event this was no civil suit now in progress. We were not here to a.s.sess value upon a supposit.i.tious pig, injured in a supposit.i.tious manner, and not represented here of counsel. No law had been violated. Why, then, his client had been thus ruthlessly dragged into court, to his great personal chagrin, his loss of time, his mental suffering, the attorney for defence could not say. It was injustice of a monstrous sort! Prosecution might well feel relieved if no retaliatory action were later taken against them for false imprisonment. This innocent young man must at once be discharged from custody.

When Dan Anderson sat down there was not a man in the jury who was not bathed in perspiration. Abstruse thought was hard at work. Blackman, J. P., perspiring no less than any member of the jury, drew himself up, but he was troubled.

"Evidence f'r the State," the Judge finally managed to stammer, turning to the attorney for the prosecution.

But it never came so far along as that. There was a sound of many footsteps; voices came murmuring, growing louder. The door was pushed open from without, and in came much of the remaining population of Heart's Desire, so far as it could gain room. The man from Leavenworth was there, his whiskers wagging unintelligibly. McKinney was there, and Doc Tomlinson and Tom Osby, and everybody else; and, pushing through the crowd, there came the Littlest Girl from Kansas, her ap.r.o.n awry, her hair blown, her face flushed, her eyes moist with tears.

"Curly!" cried she as at last her eyes caught sight of him. "Come right on out of here, this minute! Come along!"