Papers Of Abraham Lincoln

In force Jun[June] 1, 1841.

An ACT to prevent the unlawful driving away of cattle and other stock by drovers and others.
1

Persons driving stock further than five miles, may be reclaimed by owner.

Penalty for driving away.

Sec.[Section] 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That whenever any drover or other person or persons engaged in driving horses, cattle, mules, hogs or sheep through any part of the State of Illinois, Illinois, shall drive off, or shall knowingly and willingly suffer or permit to be driven off from the premises of any citizen of said State, or from the range in which the stock of any such citizen usually run,2 to any distance exceeding five miles from such premises or range, any horses, mules, neat cattle, hogs or sheep belonging to such citizen, it shall be lawful for the owner of any such stock so driven off, to follow and reclaim the same wherever it may be found, and for the taking and driving away, or suffering or permitting to be driven away of such stock, the said owner shall be entitled to recover of and from said drover or other person or persons guilty thereof, for each head of horses, mules, neat cattle, hogs or sheep, so driven away, twice the value thereof, to be recovered in an action of debt before any justice of the peace of the proper county,3 or any court having competent jurisdiction thereof; Provided, however, That if the drovers shall not pass any habitation within said five miles, and shall separate said cattle or other stock from the drove at the next habitation, in such case, said action shall not accrue to the owner of the said property. 4

Actions under this act.

Proviso.

Sec. 2. In any action commenced under the first section of this act a capias may issue against the defendant or defendants, upon the plaintiff stating on oath that he believes some one or more of his cattle or other stock has been driven off by a drover, and that he believes the same to be of a certain value, to be endorsed on the writ, and the proceedings thereon shall be the same as in other actions commenced by capias: Provided, however, That no exception shall be taken to the form of the oath aforesaid.

Under judgment Fi. Fa.[Fieri Facias] may issue.

Sec. 3. Whenever judgment shall be rendered against any person or persons, under the provisions of this act, by any justice of the peace, a fi. fa. may issue thereon against the goods and chattles of any such defendant or defendants, without affidavit as required in other cases. This act to take effect from and after the first day of June next.5

Approved, Feb[February]. 3, 1841.

1Achilles D. Dollins introduced HB 44 to the House of Representatives on December 19, 1840. The House amended the bill on December 30 and referred the bill to a select committee. The committee reported back on January 6, 1841, and recommended several amendments, to which the House concurred. The House passed the bill on January 18. The next day, the Senate referred the bill to the Committee on Public Roads. The committee reported back the bill on January 21 and recommended an amendment, to which the Senate concurred. The Senate passed the bill as amended on January 25. The House passed the amended bill on January 30. The Council of Revision approved the bill on February 3 and the act became law.
Illinois House Journal. 1840. 12th G. A., 137, 143, 158, 165-66, 194, 202, 240, 286, 305, 323, 329; Illinois Senate Journal. 1840. 12th G. A., 178, 181, 187, 208, 226.

2Early Illinois farmers commonly turned livestock loose to graze freely on the prairies in mild weather. Open-range methods of livestock raising were common into the 1850s and in some areas continued until the 1870s, when the advent of inexpensive, durable barbed wire made possible the fencing of large tracts of grazing land.
Paul C. Henlein, Cattle Kingdom in the Ohio Valley, 1783-1860 (Lexington: University of Kentucky Press, 1959), 19, 62-64; Allan G. Bogue, From Prairie to Corn Belt (Chicago: University of Chicago Press, 1963), 73-79, 140.

3The House of Representatives passed an amendment on December 30, 1840, adding “before any justice of the peace of the proper county”. Representatives believed that owners of cattle driven away would get redress faster from the local justice of the peace than from the respective circuit court.
Illinois House Journal. 1840. 12th G. A., 165; Illinois State Register (Springfield, IL), 8 January 1841, 2:3-4.

4The General Assembly added this proviso in response to those who argued that the first habitation might not have a suitable place to separate livestock or a pen to place livestock not belonging to the drovers.
Illinois State Register (Springfield, IL), 29 January 1841, 2:5-6.

5During debate on December 30, 1840, Joseph W. Ormsbee, Abram R. Dodge, and other representatives argued that HB 44 was necessary to protect the agricultural community from losses incurred when livestock became interspersed, no matter the cause, with herds being driven through a given area. David M. Woodson and others felt the bill was unfair to cattle drivers, who could not prevent local cattle from becoming inter-mixed with their herds.
Illinois State Register (Springfield, IL), 8 January 1841, 2:3-4.