Gregg's Commerce of the Prairies, 1831-1839, part 2

by Josiah Gregg

A council or convention of the wise men of the nation was convened on the first of July, 1839, who framed a constitution, of which the following are the general features, it being somewhat similar to one previously adopted in {265} the 'Old Nation.' The three powers, legislative, executive and judicial, are distinguished and established. The legislative consists of a National Committee and Council. The former is composed of two and the latter of three members from each of the eight or ten districts into which the nation was to be divided—elected for two years by the people. They convene annually on the first Monday in October, and each house elects a presiding officer out of its own body. Bills are introduced, discussed and passed according to parliamentary usage.

The executive, called Principal Chief, and an assistant chief, are elected for four years by the people. The executive has the usual veto and pardoning power. He is assisted by an 'Executive Council' of five, and the common cabinet of secretaries. The judiciary consists of a Supreme and Circuit Court, and the ordinary justices of the peace. Trial by jury is secured; and the common law of England appears to have been generally adopted. Religious toleration is guarantied, but no person can hold a civil office who denies the existence of a God, and a future state of rewards and punishments.[197]

According to laws subsequently enacted by the same council, the punishment for murder is death; and for an attempt to kill, a fine correspondent to the damage, for the benefit of the injured party: for rape, a hundred lashes—but [p310] for infanticide, only twenty-five to fifty![198] Whipping seems the punishment {266} for all inferior crimes; which is the same with the Choctaws and Creeks, among whom the executioners are called the 'light-horse,' a kind of police-guard, also formerly in use by the Cherokees, but now their place is supplied by a common sheriff and posse.

As is to be inferred from their institutions, the Cherokees stand first among the 'red men' in refinement, though in industry, morality, and sobriety, they are no doubt excelled by the Choctaws and Chickasaws, who are reckoned the most quiet and Christian-like Indians of the border.

No laws have yet been passed to enforce the payment of debts, except by the Cherokees; and these found it necessary to suspend their operation for two years. Even the most improved have not prohibited polygamy by any law; though, from the example of the whites and of the more civilized among them, as well as the exertions of the missionaries, it is growing out of repute with most of the border nations. It is still occasionally practised, however; and the ruder classes among them all, I believe, sometimes still take any number of wives, and divorce them at pleasure. But the more enlightened are married by preachers, or authorized civil officers.

With the united nation of Choctaws and Chickasaws, the executive power is vested in four chiefs, called in Choctaw mingoes, who are selected one from each of the districts into which the country is divided, {267} and of which the Chickasaw tribe constitutes one.[199] These chiefs are vested with the usual veto and pardoning powers, and are elected [p311] for four years. Most of their other constitutional provisions resemble those of the Cherokees. The Choctaws, as well as the Creeks, punish the crime of murder with death by shooting, which is generally executed immediately after trial, by the 'light-horse.'

It has become evident, however, that written laws and courts of justice, judges and juries, are still rather in advance of the state of civilization of the ruder classes, even among these most enlightened tribes. It has been found very difficult to bring them under their subordination. They have had, notwithstanding, a salutary effect in many cases, and especially with regard to murder. Among most of these nations (as well as the wild tribes), it was formerly the custom to leave the punishment of homicide to the relatives of the murdered. With the Choctaws and Cherokees, in particular, the entire clan or family of the murderer were held responsible for the crime; and though the real offender might escape, the bereaved family had a right to kill any one of his nearest relatives that could be found, up to the most remote kindred. There seemed no exceptions for accidental homicide, or killing in self-defence: the Mosaic precept of 'life for life' must be fulfilled, unless satisfactorily commuted. This savage custom had at least one salutary effect, however: the relatives themselves, instead of assisting {268} the escape, as so often occurs in civilized life, were generally the first to apprehend and bring the fugitive criminal to justice.

But among the Choctaws, at least, any one might take the place of the murderer, and in the death of the substitute the law was satisfied, and the true criminal remained exempt. An intelligent and creditable Choctaw related to me an affecting incident, for the truth of which he vouched. An Indian had remained responsible for the appearance, on a certain day, of his brother, who had killed a man. [p312] When the day arrived, the murderer exhibited some reluctance to fulfil the pledge, when the other said to him: "My brother, you are no brave—you are afraid to die—stay here and take care of my family—I will die in your place:" whereupon he immediately attended the appointed spot, and was executed accordingly.

The highest honor known among them, in fact, being that of a 'great brave,' it reflected the greatest credit to meet death boldly. Instead of being visited by his tribe with infamy for the crime he had committed, it rather tended to make his name illustrious, if he met the consequences without fear or flinching: whereas, any effort to avoid death was attributed to cowardice. It would have been esteemed quite as ignominious for the murderer to flee the established forfeit of his life, as for a 'gentleman' under the 'civilized code of honor,' to back out from a duel.

But among most of the frontier, as also the {269} wild tribes, a commutation, though not honorable to the perpetrator, was and still is permitted, except by the Cherokees and Choctaws. Any recompense which would satisfy the bereft family, released the murderer from further penalty.