Backcountry Order Ways: The Border Idea of Order as Lex Talionis

Within this comity, personal relations between backsettlers were often brutally direct. The mother of President Jackson prepared her son for this world with some very strong advice. "Andrew," said she, "never tell a lie, nor take what is not your own, nor sue anybody for slander, assault and battery. Always settle them cases yourself."146

That folk saying was a classical expression of backcountry attitudes toward order, which differed very much from other regions of British America. In the absence of any strong sense of order as unity, hierarchy, or social peace, backsettlers shared an idea of order as a system of retributive justice. The prevailing principle was lex talionis, the rule of retaliation. It held that a good man must seek to do right in the world, but when wrong was done to him he must punish the wrongdoer himself by an act of retribution that restored order and justice in the world.

This backcountry idea of order rested upon an exceptionally strong sense of self- sovereignty. Something of the same principle had also existed in tidewater Virginia, where the gentry were fond of quoting the old English cliche that every man's home was his castle. But the people of the backcountry went a step farther. A North Carolina proverb declared that "every man should be sheriff on his own hearth."147 That folk saying had been brought to the backcountry from the borderlands of North Britain, where it existed in almost the same words: "Every man is a sheriff on his own hearth."148 This idea implied not only individual autonomy, but autarchy. Further, it narrowly circumscribed the role of government, for if every man were sheriff on his own hearth. then there was not very much work for a county sheriff to do, except to patrol the roads that lay in between.

The same ideas also appeared in the ordering institutions of the backcountry. There were official sheriffs and constables through out that region, but the heaviest work of order-keeping was done by ad hoc groups of self-appointed agents who called themselve' regulators in the eighteenth century, vigilantes in the nineteenth, and nightriders in the twentieth. This was not a transitional phenomenon unless one wishes to think of a transition five centuries long. Nor was it the reflexive product of a frontier environment, for other frontiers experienced little or none of it. It rose instead from a tradition of retributive folk justice which had been carried from the British borderlands to the American backcountry.

During the eighteenth century the back settlements suffered much from "banditti" whose depredations were punished by the summary justice of these self-styled "regulators." When, for example, one robber gang grew so bold that it tried to steal the horses of an entire congregation as they sat in church, the backcountry rose spontaneously. In retaliation' a "posse" of regulators reported it had "pursued the rogues, broke up their gangs, burnt the dwellings of all their harborers and abetters whipped 'em and drove the idle, vicious and profligate out of the province, men and women without distinction."149 Conflicts between bandits and "regulators" continued on the southwestern frontier for many generations. But it was not characteristic of the frontier itself. Nothing quite like it occurred on most parts of the northern frontier in New England or in the upper northwest.150

Vigilante movements began in the southern backcountry during the 1760s. Their legitimacy rested upon a doctrine called "Lynch's law," which probably took its name from Captain William Lynch (1742-1820), of Pittsylvania County, Virginia, and later Pendleton District, South Carolina. Captain Lynch was a backcountry settler of border descent. "Lynch's Law" began as a formal agreement among his neighbors:

Whereas, many of the inhabitants of Pittsylvania have sustained great and intolerable losses by a set of lawless men .. . we will inflict such corporal punishment on him or them, as to us shall seem adequate to the crime committed or the damage sustained.151

Lynch's law was swift and violent. Its victims were often flogged and sometimes killed without much attention to due process, or even to the evidence. One backcountry gravestone read: "George Johnson, Hanged by Mistake."152

This system of justice captured the two vital principles of backcountry order ways the idea that order was a system of retributive violence and that each individual was the guardian of his own interests in that respect. Even sheriffs in the backcountry shared the same ideal of retributive violence, and often took the law into their own hands. Alabama's Tombigbee County, for example, had five justices of the peace in 1810, of whom three were themselves fugitives. Two were wanted on charges of murder, and a third for helping an accused murderer break jail."153

The idea of retributive justice was also reflected in common forms of disorder throughout the southern backcountry. One example was the prevalence of the blood feud in the southern highlands. The custom of feuding had been very common on the borders of North Britain. Bloody strife continued for many generations between families on both sides of the border.

During the eighteenth century, this custom of the blood feud was introduced to the backcountry. In that new environment it flourished for more than two hundred years. Feuds occurred in many forms between individuals, families, clans and communities. They began in a variety of ways loss of property or reputation, political rivalries, sexual jealousies, moral insults and material injuries. In the classical feud between the Hatfields and the McCoys, the casus belli was a dispute over two razorback hogs which led to the killing of twenty people and the wounding of at least twenty more. Both families were of border stock; their feud arose more generally from an entire culture and its concept of order as retributive justice.

Another expression of lex talionis was the heavy preponderance of crimes against persons over crimes against property. One study of criminal indictments in Ohio County, Virginia (1801-10), found that murders and assaults were more common than all other crimes and misdemeanors combined, and more than five times as common as property offenses.154 This pattern persisted for two centuries. In the 1930s, an Appalachian lawyer wrote:

Our people . . . are as a rule only charged with crimes of impulse, such as assault and battery, homicides of the different degrees, etc., or crimes against prohibitory statutes which they think interfere with their personal freedom, such as moonshining, and~ offenses of that nature. Seldom do you find them accused of crimes such as larceny, burglary or what are known as social crimes.155

Treatment of the disorderly was also different from other regions of British America. Backcountry courts tended to punish property crimes with the utmost severity, but to be very lenient with crimes of personal violence. In Cumberland County, Virginia, during the eighteenth century, a court administered the following punishments: for hog stealing, death by hanging; for scolding, five shilling fine; for the rape of an eleven- year-old girl, one shilling fine."156 This structure of values continued for many generations in the backcountry. Historian Edward Ayers finds that in the southern upcountry during the nineteenth century, county courts "treated property offenders much more harshly than those accused of violence."157

This system of order created a climate of violence in the American backcountry which remained part of the culture of that region to our own time. The proverbs of the backcountry are full of the spirit of violence: "A word and a blow and the blow first," Carolinians would say. "Evil words cut mair than swords."158 This ethic of violence in the backcountry was far removed from the chivalric ideals of the tidewater elite. It is interesting that the proverbs of the backcountry justified the use of violence only when it promised to succeed. The backsettlers said:

Backcountry proverbs did not glorify fighting for its own sake, but fighting for the sake of winning. Here was an ethic of violence which had been formed in ambuscades and border-raiding. It had nothing to do with combats of chivalry or the idea of war as a gentleman's game. The classical example of this instrumental attitude toward violence was Andrew Jackson. A friend who knew him well for forty years said that "no man knew better than AndrewJackson when to get into a passion and when not. " James Parton commented that Jackson's anger was "a Scotch-Irish anger. It was fierce, but never had any ill effect upon his purposes; on the contrary, he made it serve him, sometimes, by seeming to be much more angry than he was; a way with others of his race.159

But backcountry violence also had another side. Andrew Jackson's strategy of controlled anger worked because most rage was genuine in this culture. Violence often consisted of blind, unthinking acts of savagery by men and women who were unable to control their own feelings. Much backcountry violence occurred within the family. Visitors recorded with horror the violence of parents against children, husbands against wives, and friends against neighbors....

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