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Dec 20

A Look Back with the County Executive: Frontier Law Enforcement

Posted on December 20, 2018 at 1:17 PM by County Executive

St. Charles County law enforcement history dates back to the late 1700s when Louis Blanchette served as the first civil and military commandant of San Carlos, which would become St. Charles. Later, after the Louisiana Purchase, Mackey Wherry was appointed as the first sheriff. Law enforcement was difficult in this growing frontier county, and the community was no stranger to major challenges and societal issues of the era. From the beginning, officers had to balance a wide range of responsibilities and demands in their work.

Louis Blanchette served as commandant of San Carlos until his death in 1793 and was succeeded by Charles Taillon, an experienced militia officer who had served in the defense of St. Louis against British attack in 1780. Francois Saucier was named commandant of Portage des Sioux, on the Mississippi River, in 1799. Their main duties were to enforce Spanish trade policies, protect their settlement from attacks by Native American tribes and maintain the peace. Spanish officials restricted the sale of alcoholic beverages by granting tavern licenses. Licensees who failed to report disturbances, the presence of criminals, vagabonds and prostitutes, or swearing and blasphemy, were fined or lost their licenses.  Residents were not permitted to travel more than 20 miles without a pass from the commandant stating the specific route to be traveled. Law enforcement was tough because criminals could escape the jurisdiction of Spanish officials by crossing the Mississippi River into British territory that later became part of the United States. With no separation of powers between the executive and judicial branches of government, the commandant made arrests and then judged those he accused. 

When American officials took control after the Louisiana Purchase, the Spanish commandant of the District of St. Charles was James Mackay. Congress put control of Louisiana under William Henry Harrison, governor of the Indiana Territory, and allowed President Thomas Jefferson to appoint a commandant for each existing district. The commandant’s primary responsibility was local government, but also commanded the regular federal troops, as well as the militia, in his district.  President Jefferson commissioned Return Meigs Jr. as a colonel, appointing him commandant of the St. Charles District.

Territorial Governor Harrison, following the concept of separation of powers in the U.S. Constitution, appointed independent local judicial and executive officials, including a sheriff. Commandant became primarily a military office, charged with removal of intruders, organization of the militia and coordination with federal troops. Mackey Wherry was appointed sheriff in the St. Charles District and ran a jail in the old Spanish fort, on a point commanding a view of the Missouri River and the surrounding prairies, in St. Charles. The first prisoner, a Native American from the Osage tribe, entered the jail on November 9, 1805. Under territorial law, the sheriff also was ex-officio collector and treasurer. When Wherry made the first assessment, his returns showed the population of the St. Charles District was 765, which included 275 heads of families, 95 taxable single men and 55 slaves. They owed taxes in the amount of $501.80. A separate officer, appointed by the governor, relieved the sheriff of his financial duties from 1806 until 1808. After that, he again became ex-officio collector and treasurer until statehood.           

Law enforcement was demanding enough without the added responsibilities of tax collection and financial management. The sheriff was sometimes called when wandering livestock led to conflicts between neighbors. The first fence law, enacted by the territorial Legislature in 1808, required landowners to fence out their neighbors’ livestock. If a landowner constructed a “lawful fence,” at least five feet six inches high and supported by strong stakes, then he had certain legal remedies against the owner of trespassing livestock. A justice of the peace could award actual damages for the first trespass; double damages and court costs for subsequent trespass; and on the third and later trespass, the landowner was authorized to kill and dispose of the trespassing livestock. To determine actual damages, the justice of the peace appointed three householders to determine whether the fence was lawful and the extent of the damages. 

A primary concern of the territorial government and the local sheriff was protection against attack by Native American tribes. While the French, who wanted only to trap furs, had good relations with the Native American population, the Americans, who wanted to farm their hunting ground, often did not. Circuit Court records from 1811 indicate none of the witnesses could appear at a trial in July, “thro fear of Indian hostilities.” Before 1812, the inhabitants of the St. Charles District were not at war with the tribes, but the tribes were at war with each other, and American settlers sometime got caught in the middle. Forts throughout the district provided safety for scattered settlers, who relied on each other for their security. James Callaway served as deputy sheriff of St. Charles County for several years under Captain Murray and raised his first company of rangers to provide protection for settlers in 1813. Another company of rangers was raised in the St. Charles District and commanded by Nathan Boone.

Most of the new settlers to the St. Charles District had come from Virginia and Kentucky and brought their slaves with them.  From the beginning, the sheriff enforced the territorial slave codes. When two slaves petitioned in 1805 for writs of habeas corpus claiming they were the daughters of an Indian woman and were being held illegally as slaves, the court granted them relief. When they took up residence in St. Charles their children fled their masters and joined them. Those who had held them in bondage petitioned for return of their property and the court ordered the sheriff to return the entire family to slavery while awaiting trial in St. Louis, where a jury ruled the sisters were of African descent and slaves of the petitioners. 

Ann, a black woman who had served as an indentured servant in Illinois, also brought a freedom suit in St. Charles County in 1816 seeking $500 damages. Mathias McGirk, her court-appointed attorney, alleged that Henry Hight “did then and there beat, wound, imprison, and ill-treat her, the said Ann, here imprison without any reasonable cause for a long time.” The court ruled in her favor but awarded only $5 in damages.

Because Congress had given the territorial governor the power to organize counties in those areas cleared of Native American title, Governor William Clark organized St. Charles County on October 1, 1812. While its southern boundary was the Missouri River and its eastern boundary the Mississippi River, the county had no definite boundaries to the west and north. Theoretically, the jurisdiction of its sheriff extended from the Missouri River on the south, to the British possessions on the north; and from the Mississippi River on the east to the continental divide on the west. Realistically, law enforcement reached no farther than the present counties of east-central Missouri. In 1816, Howard County was cut off from the western part of St. Charles County and organized into a separate county. That year, the territorial governor appointed Uriah Devore as St. Charles County Sheriff. Devore appointed Lewis Howell, son of Francis Howell Sr., as his deputy. The present eastern boundary of Boone County was established as the line between St. Charles and Howard counties. In December 1818, Montgomery, Warren and Lincoln counties were organized, reducing St. Charles County to its present boundaries, significantly reducing the jurisdiction of Sheriff Anthony Parham, appointed by the territorial governor that year.  

St. Charles County voters elected Benjamin Emmons III, Nathan Boone and Hiram Baber as delegates to a constitutional convention in May 1820. The Constitution adopted by the delegates provided that the governor appoint most county officials, including County Court judges, who then appointed a constable for each county township, whose arrest powers were the same as the sheriff. They also appointed a justice of the peace for each township, for whose court the constables served legal papers. 

The Constitution left the whole field of local government to legislative regulation, except that it provided for a sheriff and coroner in each county to be chosen by popular election, unless otherwise provided by the General Assembly. The Constitution required that the county sheriff be elected at the same time as state representatives for a two-year term.  As the sheriff was an officer of the Circuit Court, the circuit judge was entitled to break any tie after an election. The sheriff served “until a successor be duly appointed or qualified unless sooner removed for misdemeanor in office.” The Constitution provided for a term limit by stating the sheriff “shall be ineligible four years in any period of eight years.” If vacancies occurred, the governor would appoint a replacement who “shall not be thereby rendered ineligible for the next succeeding term.” Thus a sheriff could serve out a term after appointment or special election and still be eligible for two complete two-year terms. 

Former Constitutional Convention delegate Hiram Baber, who served as a U.S. Marshal and took the Census in St. Charles County in 1820, was elected St. Charles County Sheriff that same year. The Legislature required the sheriff/collector post a surety bond after his election. The County Court judges approved Baber’s sureties, who posted a bond for $3,580.69 to cover his obligations to collect state taxes, and $1,031.50 to cover collection of taxes to the county. When Sheriff Baber was re-elected two years later, he had to post a new bond. 

The sheriff provided security for the Circuit Court, and received a fee set by statute to serve all legal papers, including summonses, subpoenas, eviction orders, judgments, and other documents issued by that court. As further compensation, he received statutory fees for investigation, arrest, prosecution, custody, care, feeding, commitment, or transportation of persons accused of or convicted of a criminal offense.

The law required that Sheriff Baber execute judgments by taking possession of the property of a losing party in a lawsuit, called the judgment debtor, on behalf of the winner, called the judgment creditor, sell it and use the proceeds to pay the judgment. In the case of real property, the sheriff had to first place a lien on the title and seize it. This process was further complicated when, responding to the economic depression caused by the Panic of 1819, the Missouri General Assembly passed an act requiring creditors to take property worth two-thirds of the value of the original debt or wait two years to foreclose on the property. The first case involving the sheriff to reach the Missouri Supreme Court involved the application of that act, which had been repealed on January 11, 1822. The Supreme Court found, in the case of Ober v. St. Charles County Sheriff, that the plaintiff had become a creditor in March 1822 and ruled, “The statute for the relief of debtors and creditors does not extend to creditors who became so after the act was repealed.”

By the time Henry Mills was elected sheriff in 1824, the General Assembly no longer required him to serve as collector and treasurer. The Missouri criminal code was harsh, and Sheriff Mills established a whipping post and pillar on Main Street that he used for punishment of minor misdeeds. Because St. Charles was the state capitol and county seat, Mills was the keeper of a county jail, which also housed state prisoners. As an added duty, the county sheriff traditionally commanded the Missouri militia company from his county.

William Fulkerson was elected sheriff in 1826, the same year the state capital moved to Jefferson City. St. Charles lost its position of preeminence in Missouri politics, but local politics became more intense as the two-party system developed in the state and county. Sheriff Fulkerson was elected state representative as a Democrat in 1832 and later served as postmaster of St. Charles, a patronage position. Democrat Governor Lilburn Boggs was elected governor in 1836 and appointed former Sheriff Hiram Baber as state auditor. William M. Christy, who was elected sheriff in 1832 and re-elected in 1834, survived his political career without adopting a party label. During his second term, the Legislature outlawed whippings and pillory as forms of punishment for all except slaves. David McCausland, a Democrat, served consecutive two-year terms as sheriff after his election in 1838.     

At a time when county government provided few services, construction, maintenance and staffing of a jail was a big part of its budget. The County Court approved the purchase of two town lots from William Pettus and appropriated $1,200 for construction of a county jail on Main Street in St. Charles in 1832. The building specifications for the stone structure called for “the grating to be as strong as that of the St. Louis Jail.” While an 1835 law required county sheriffs to keep jails in “good and sufficient condition and repair,” they seldom did, and prisoners sometime were treated harshly. No provision was made for separate incarceration of children convicted of crimes under the adult criminal justice system.  An 1835 law allowed, but did not require, judges to confine convicted felons less than 16 years old for a year in the county jail, rather than at the state penitentiary, soon to be opened in Jefferson City. 

The death penalty was first used in the Territory of Missouri in 1810, and hanging was the primary method of execution.  County jails were the site of executions and county sheriffs were the executioners. St. Charles County Sheriff David McCausland was prepared to execute Edward Hunting at the county jail for murder in 1838, before the governor commuted his death sentence to 20 years in the state penitentiary. 

The Legislature again made the sheriff ex-officio county collector in 1835. McCausland made his annual return of taxes collected to the County Court, and executed orders issued by that court or its clerk. The sheriff was also an officer of the Circuit Court, for which he opened sessions and was required to be present throughout its entire proceedings. Prisoners could petition the Circuit Court judge when they believed a sheriff had exceeded his authority. Believing he was wrongly held by the sheriff in the St. Charles County jail, Patrick Hagan filed a writ of habeas corpus, was brought before the court in 1836, and was allowed to post a $50 recognizance bond. While the sheriff was charged with preservation of the peace and enforcement of the law, the poor roads, the reliance on horse-drawn transportation and the fact that the sheriff’s office was in St. Charles, the county seat, the first contact criminal suspects were likely to have was with the local constables of the townships.

Among the laws to be enforced were several “blue laws,” most prominent the prohibitions on gambling and Sunday activities. There were numerous arrests, and 16 prosecutions for violation of the anti-gambling statute in 1830. After a raid by the sheriff, the prosecutor charged a proprietor in 1838 with “keeping a common gaming house” where he allowed, “idle and evil disposed persons” to play cards. Gambling continued on the riverboats, where the jurisdiction of the local sheriff was questionable and federal enforcement lax.  

A statute passed by the Legislature in 1837, read:

Every person who shall either labor himself, or compel or permit his apprentice or servant, or any other person under his charge or control, to labor, or perform any work other than household offices of daily necessity, or other works of necessity or charity, or who shall be guilty of hunting game or shooting on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor and fined not exceeding fifty dollars.

At that time, the majority of voters in St. Charles County approved of such statutes and the sheriff dutifully enforced the “blue laws.” 

Other laws were not as popular with the American settlers, most of whom had come from Virginia and Kentucky, where the tradition of dueling was firmly entrenched. In 1820, native Virginian Felix Scott was challenged by his son-in-law to a duel after a heated political debate. The duel took place on Scott’s St. Charles County farm where Scott allowed his son-in-law to fire first.  When the shot missed, Scott laid his gun down and gave him a good pounding with his fists.” Such stories undoubtedly helped Scott gain election to the Missouri House and Senate, where he became president pro-tem.  Joshua Barton, the state’s first secretary of state, was killed in a duel in 1823 on “Bloody Island” in the Mississippi River and brought back to St. Charles to be buried on the property of his brother, David Barton. After years of heated debate, in 1835 the General Assembly made it a felony to duel and made it a misdemeanor to challenge someone to a duel. It was a law that sheriffs were reluctant to enforce and prosecutors reluctant to prosecute.  Some gentlemen in the county continued to settle their differences on the field of honor.  

These same men provided a paternalistic leadership in the county of St. Charles and the state of Missouri. Litigants were summoned to appear before a jury of “twenty good and lawful men, of the best and most understanding.” In St. Charles County, the jury pools selected by the sheriff or the County Court reflected those standards. Jury trials were not necessarily before a jury of one’s peers, but before men of wealth and standing in the community. Most such men were also slaveholders.