One day he came to my office and said: "Judgey, I am going to try a suit at Le Sueur to-morrow that involves $2,500. It is the biggest suit we have ever had in the valley, and I think it ought to have some Latin in it, and I want you to furnish me with that ingredient." I said: "Tom, what is it all about? I must know what kind of a suit it is before I can supply the Latin appropriately, and especially as I am not very much up in Latin myself."
He said the suit was on an insurance policy; that he was defending on the ground of misrepresentations made by the insured on the making of the policy, and he must have some Latin to illustrate and strengthen his point.
I mulled over the proposition, looked up some books on maxims, and finally gave him this, "Non haec in federe veni," which I translated to mean, "I did not enter into this contract." He was delighted, and said there ought to be no doubt of success with the aid of this formidable weapon, and made me promise to ride down with him to hear him get it off. So the next day we started, and in crossing the Le Sueur prairie, Cowan was hailed by a man who said he was under arrest for having kicked a man out of his house for insulting his family, and he wanted Tom to defend him. The justice's court was about a mile from the road, in a carpenter shop, the proprietor of which was the justice. Tom told him to demand a jury, and he would stop on his way back and help him out.
When we arrived at Le Sueur we found that the case could not be heard that day, and, starting homeward, about four o'clock we reached the carpenter shop. There we found the jury awaiting us. We hitched the team, and I spread myself comfortably on a pile of shavings to witness the legal encounter. The complaining party proved his case. Cowan put his client on the witness stand, and showed the provocation. Then he addressed the jury. His defense was, want of criminal intent. He dwelt eloquently on the point that the gist of the offense was the intent with which the act was committed, and when it appeared that the act was justified, there could be no crime. Then, casting a quizzical glance at me, he struck a tragic attitude, and thundered out: "Gentlemen of the jury, it is indelibly recorded in all the works of Roman jurisprudence, 'Non haec in federe veni,' which means there can be no crime without criminal intent." The effect was electrical; the jury acquitted the prisoner, and we drove home fully convinced that the law was not an exact science. With what effect Tom utilized his Latin in the insurance suit I have forgotten, or was never advised.
INDIAN STRATEGY.
In the summer of 1856 I had the celebrated battery commanded by Major T. W. Sherman of the United States Army (better known as the Buena Vista Battery, from the good work it did in the Mexican war) on duty in the Indian country, on account of a great excitement which prevailed among the Indians. The officers of the battery were Major Sherman, First Lieutenant Ayer, and Second Lieutenant Du Barry. Its force of men was about sixty, including noncommissioned officers. I think it had four guns, but of this I am not certain.
One day, after skirmishing about over considerable country, we made a camp on the Yellow Medicine river, near a fine spring, and everything seemed comfortable. The formation of the camp was a square, with the guns and tents inside, and a sort of a picket line on all sides about a hundred yards from the center, on which the sentinels marched day and night. I tented with the major, and seeing that the Indians were allowed to come inside of the picket lines with their guns in their hands, I took the liberty of saying to him that I did not consider such a policy safe, because the Indians could, at a concerted signal, each pick out his man and shoot him down, and then where would the battery be? But the major's answer was, "Oh, we must not show any timidity." So I said no more, but it was just such misplaced confidence that afterwards cost General Canby his life among the Modocs, when he was shot down by Captain Jack. Things went on quietly, until one day a young soldier went down to the spring with his bucket and dipper for water, and an Indian who desired to make a name for himself among his fellows followed him stealthily, and when he was in a stooping posture, filling his bucket, came up behind him, and plunged a long knife into his neck, intending, of course, to kill him; but as luck would have it, the knife struck his collarbone and doubled up, so the Indian could not withdraw it. The shock nearly prostrated the soldier, but he succeeded in reaching camp. The major immediately demanded the surrender of the guilty party, and he was given up by the Indians. I noticed one thing, however; no more Indians were allowed inside the lines with their guns in their hands.
When the prisoner was brought into camp a guard tent was established, and he was confined in it, with ten men to stand guard over him. These men were each armed with the minie rifle which was first introduced into the army, and which was quite an effective weapon.