Law and Order in the Old West

Judge Roy BeanA big deal is made in any examination of the Old West of law and order. It’s hard to think about any Old West set-up without thinking about the sheriff…and outlaws. Whether he’s the white hat-wearing hero of the day or the crooked, corrupt misery in people’s lives, the lawman is a key western figure.

This holds true for the town of Cold Springs, Montana, where my Montana Romance series takes place. If you’ve ready any of the books, you know that the good folks of Cold Springs have had a devil of a time getting a good sheriff. At the same time, they have a stalwart defender in Christian Avery, the justice of the peace and hero of the latest installment of the series, In Your Arms.

But what exactly is a justice of the peace? What did they do and who would they have been? How does that fit in with the sheriff in any town or the government?

In the early days of the west, law was unorganized and piecemeal. So many of the towns of the west grew up overnight based on the natural resources nearby (gold, land, cattle). Often local law was decided by a town council or less formal organizations of citizens and enforced by vigilante groups—which basically meant random groups of concerned citizens who had had enough lawlessness.

The exception to this, by the way, was San Francisco. Even in its earliest days, San Francisco had a formal police force. As early as 1849, the city had laws and a dedicated force of men patrolling the streets and cleaning up crime. Then again, San Francisco was way ahead of a lot of cities in the west.

As for most cities, as you might imagine, as settlements grew, populations increased, governments were more codified, and territories turned into states, the law was more carefully enforced. Men—and yes, sometimes women, believe it or not—were hired with the specific purpose of maintaining order in a city. However, what that lawmen was called varied from place to place. Sheriff, marshal, policeman, or constable, the title didn’t matter. In fact, it can get downright confusing when looking at western history figuring out who outranked who or what their duties entailed based on titles alone.

Now there's a famous lawman!  Wyatt Earp

Now there’s a famous lawman! Wyatt Earp

For some locations at a few very specific times—Dodge City, Kansas in the 1870s, for example, or Lincoln County, New Mexico in 1878—a lawman had his hands full. The thing about the vastness and independence of the Old West was that it attracted, shall we say, non-conformist, anti-social types, like the James-Younger gang, the Wild Bunch, or the entire mess of personal armies made up of killers that were involved in the Lincoln County War. We think of the entire Old West as being all about outlaws, but more than a few contemporaries lamented the fact that so many of the troublemakers came from back east and were only in the west because it was easier to hide out.

Most lawmen of the Old West, however, never fired their gun in the line of duty. In fact, even though we in the modern world have this picture of robbery and murder being the big crimes of the west, in reality those infractions made up a teensy percentage of offenses. Most lawmen spent their time dragging drunks to jail to sleep it off, collecting debts and taxes, hassling vagrants, and settling petty disputes. Not exactly the stuff of pulp fiction.

More than that, the position of sheriff (marshal, policemen, constable, whatever it was called) was usually a temporary one. Often the sheriff was appointed by the town council. Just as often they left the job and did something out. Now and then lawmen turned on the law and became criminals themselves. A good sheriff was worth his weight in goal, as the town of Cold Springs well knows and will find out in the final book of the series, Somebody to Love (coming April 2014-ish).

Okay, but what about other aspects of the law? What about justice of the peace? What about Christian Avery?

Actually, the justice of the peace was an essential fixture in a society that was spread out and often far away from actual courts. Big cities, like Denver and good old San Francisco, had court systems where major crimes were tried. Smaller cities didn’t have that luxury. There were traveling judges who made a circuit through various territories to hear cases, but they only made to any given town once in a very blue moon.

What to do in the meantime? Elect a justice of the peace. The justice of the peace didn’t have to be a lawyer (like Christian is) or connected with law or justice in any way. The job of the justice of the peace was to solve disputes and mete out justice when a judge was not available. He could be anyone elected by the town or appointed by the town council. In a lot of cases, he was a well-trusted man from the community, someone who everyone else agreed could be fair and impartial in the face of a dispute.

But if there’s one thing you remember about law and order in the Old West, let it be this: There wasn’t really as much serious lawlessness as the media has portrayed. So much of life on the frontier was about surviving and building a new community in the wilderness that there wasn’t time for routine crime. The biggest problems were those connected to survival: horse and livestock theft, land disputes, fights between neighbors, and crimes against women committed by unruly men who had been away from women for too long. Still, men like Christian Avery, Justice of the Peace, were important figures in western society.

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