USA > Illinois > Cass County > Historical encyclopedia of Illinois and history of Cass County, Volume II > Part 14
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CHAPTER XI.
COURTS, BENCH AND BAR.
JUDICIAL SYSTEM UNDER CONSTITUTION OF 181S -- DIVISION INTO JUDICIAL CIRCUITS-LAWS MADE AND REPEALED REGARDING JURISDICTION-IN- CREASE IN POPULATION MADE NECESSARY MORE CIRCUITS-PROVISION FOR SELECTION OF JUDGES -FREQUENT CHANGES IN JUDICIARY SYSTEM- ELECTION OF SUPREME JUSTICES-LAW OF 1841- REORGANIZATION OF JUDICIARY UNDER CONSTITU- TION OF 1SAS-OFFICES CREATED BY THE LEGIS- LATURE-VESTING OF JUDICIAL POWERS-PRESENT JUDICIAL POWERS-FIRST COURT HELD IN CASS COUNTY-BEARDSTOWN MADE COUNTY SEAT-IN- TERESTING EARLY COURT DOCUMENTS-SECOND TERM CASS COUNTY CIRCUIT COURT-FIRST JURY
EAST SIDE OF MAIN STREET, VIRGINIA MANN HOTEL ON THE CORNER
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SOUTH SIDE OF COURT HOUSE SQUARE, VIRGINIA
BALTIMORE AND OHIO SOUTHWESTERN RAILROAD STATION, VIRGINIA
NORTH MAIN STREET, VIRGINIA
VIEW IN THE RESIDENCE PORTION-CITY OF VIRGINIA
SCENE ON HENDERSON LAKE. VIRGINIA
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HISTORY OF CASS COUNTY
TRIAL-FIRST GRAND JURY-GRAND JURY CASES -- COUNTY SEAT REMOVED TO VIRGINIA-DISTIN- GUISHED JURISTS-BEARDSTOWN AGAIN BECOMES COUNTY SEAT-OPENING CIRCUIT COURT AT
BEARDSTOWN-HON. DAVID WOODSON ELECTED JUDGE FIRST JUDICIAL CIRCUIT-CIRCUIT COURT CASES-NEVER A JUDICIAL EXECUTION IN CASS COUNTY-TRAVELING LAWYERS-JUDICIAL DIG- NITY-A CELEBRATED TRIAL-RECITAL OF FACTS -CAMP MEETINGS-NOT ALL ATTENDANTS RE-
LIGIOUS-HORSE RACING-LIQUOR DRINKING- QUARRELS-MAN DIES FROM INJURIES-NORRIS AND ARMSTRONG INDICTED FOR MURDER-ARM- STRONG TAKES CHANGE OF VENUE-NORRIS SEN- TENCED TO PENITENTIARY-ABRAHAM LINCOLN ENTERS CASE-ARMSTRONG TRIED AT BEARDSTOWN -MR. LINCOLN ACTS AS HIS ATTORNEY-CLEARS HIS CLIENT BY AN ALMANAC-CORRECTING FALSE STATEMENTS-MANY LINCOLN BIOGRAPHIES RE- LATE THIS TRIAL-ANOTHER ALMANAC STORY REFUTED-ASTRONOMER TESTIFIES-COMMEMORA- TIVE TABLET PLACED ON OLD COURTHOUSE-LIST OF CIRCUIT JUDGES-COUNTY COURT JUDGES- BEARDSTOWN CITY COURT-LIST OF STATE'S AT- TORNEYS.
JUDICIAL SYSTEM UNDER THE CONSTITUTION oF 1818.
Under the constitution of 1818, the first con- stitution of the state, the judicial power of the state was vested iu one Supreme court, and such inferior courts as the General Assembly might from time to time ordain and establish. The Supreme court was to consist of a chief justice and three associate justices; but the assembly was giveu power to increase the num- ber of supreme justices after the year 1824.
Justices of the Supreme court, and judges of inferior courts, were appointed by the joint bal- lot of both branches of the General Assembly, aud commissioued by the goveruor, and were to hold office during good behavior or until the eud of the first session of the General Assembly which should be beguu aud held after the first day of January, 1824. Until the expiration of that time the justices of the Supreme court were to hold circuit court iu the respective coun- ties, in manner provided by law, but after that period the supreme justices were not to hold the circuit courts unless required to do so by law. The justices of inferior courts and also justices of the Supreme court might, for reasonable cause, which would not be a sufficient ground
for impeachment, be removed from office by two- thirds vote of each branch of the General As- sembly ; but with the express provision that no member of either house, nor any oue connected with a member of cither house, nor any one con- uected with a member by consauguiuity or af- finity, should be appointed to fill a vacaucy caused by such removal. The justices of the Supreme court and judges of inferior courts were giveu power to appoint their owu clerks.
DIVISION INTO JUDICIAL CIRCUITS.
A sufficient number of justices of the peace were to be appointed for each county. Under the provisions of the constitution mentioued above the state was, by the legislature, divided iuto four judicial circuits, within which the chief justice and the associate justices were assigned to perform circuit court duty, which they continued to do until 1824. The legisla- ture, however, alert to exercise every preroga- tive which the constitution conferred upou it, or did not deuy to it, immediately upon the ex- piration of the time limit after which it might increase the number of supreme justices, or re- lieve them of circuit court duty, passed an act, declaring that in addition to the justices of the Supreme court, there should be appointed by the General Assembly five circuit judges, who should continue in office during good behavior, and by the same act the state was divided iuto five judicial circuits, thus relieving the Supreque judges of circuit court duty. This act was passed on December 29, 1824, but only remained in force for a little over two years, for on Janu- ary 4, 1827, the succeeding legislature repealed that act and again divided the state into four judicial circuits, once more requiring the su- premc justices to hold the circuit courts in the respective districts. From that time ou, nntil an act passed January 8, 1829, went into effect, the supreme justices held all the circuit courts of the state. By the act of Jauuary 8, 1829, provision was made for the appointment or elec- tion by the General Assembly of a circuit judge who should hold circuit court in a district to which he might be appointed, north of the Illi- nois River. Pursuant to that act a circuit judge was elected and the Fifth Judicial Circuit was created, in which the judge elect was required to preside, while the supreme justices were to continue to perform the duties of the circuit judges in the other four judicial districts.
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HISTORY OF CASS COUNTY
For a period of six years the courts moved along in good order, and to the entire satistac- tion of litigants who won, and to the lawyers who were successful. Two General Assemblies had met and adjourned without attacking the judicial system. Just what it was that so en grossed the attention of the legislature at those two sessions to such a degree that they neglected the opportunity of legislating judges into office and out of office, is not definitely known. The legislature of 1835, however, came up to the neglected question with avidity, and on Janu- ary S of that year passed an act repealing the laws requiring the justices of the Supreme court to hold circuit court, and enacted a law creat- ing the Sixth Judicial Circuit, and providing for the election by the General Assembly at that session, of five judges, in addition to the one then authorized by law, who should preside in the several circuit courts then or thereafter required to be held in the several counties of the state. Pursuant thereto the five circuit judges were elected by the legislature and the supreme justices again relieved from circuit court duties. This system continued until 1841. In the meantime, as population increased and necessity required, additional judicial circuits were created, the Seventh on February 4, 1837, and the Eighth and Ninth Judicial Circuits on February 23, 1839, and for each new circuit cre- ated an additional judge was elected.
The provision of the first state constitution which placed the selection of judges of the su- preme and inferior courts in the hands of mem- bers of the legislature made it extremely diffi- cult to separate the judicial system from party politics, and keep the selection of judges free from the influence and machinations of design- ing politicians. The tolly of the method was early manifested ; even the very first election of Supreme court justices resulted in the selection of one of the three associate justices as a polit- ical appointment, pure and simple. William P. Foster, one of the three associate justices ap- pointed by the first legislature, was not even a lawyer, and had never given any attention to the subject of law. He, however, after receiving the appointment, evidently felt himself entirely out of place, and did not attend a single sitting of the court, nor did he consider a single opinion or case presented to the court. He was ap- pointed October 9, 1818, and resigned July 7, 1819.
The frequent changes in the judicial system,
as previously mentioned, were due almost wholly to politics and political agitation, and the per- sonal ambition of place hunters who, in many instances, were totally unqualified for judicial position. This condition of affairs, however, was not limited to Illinois, but could be found in other states. Nor can it be truthfully said that such conditions only belonged to that period. Politics have in many instances and ages inter- fered with the best methods of administration of justice, and put into power men unqualified for the distinction conferred upon them. The causes of the almost revolutionary changes in the judicial system which occurred in 1841 had their origin in a scheme to change the political complexion of the Supreme court. Of the four judges of that court, the chief justice and two of the associate justices were Whigs. As they were appointed for life or good behavior, there was no way to get rid of them except through their resignation or impeachment. As the men who then occupied the supreme bench were highly capable and men of the utmost integrity, impeachment was out of the question. It was not likely that they would resign, so there was nothing else to do, to effect the desired results, but increase the number of judges, and secure their appointment from among those of a dif- ferent political faith from those now presiding.
ELECTION OF SUPREME JUSTICES.
Therefore, the plan proposed and advocated with demagogic fervor, was to legislate the nine circuit judges out of office, and to provide for the election of five additional supreme jus- tices, making nine altogether, and requiring them to hold the circuit courts. There was not the slightest reason for the change. except for ulterior motives, as no complaint whatever was made of the manner of conducting the circuit court business by the circuit justices provided by previous legislatures. However, to make the scheme more plausible and to induce the sup- port of the more timid among the Democratic members, the provisions concerning the holding of circuit courts by the supreme justices was suggested. The proposition met with bitter op- position among the Whigs, but after a great deal of debate passed both houses, and went to the governor for his signature. Governor Carlin, with the supreme court justices acting with him as a council of revision, promptly vetoed the bill. It went back to the senate where it had
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HISTORY OF CASS COUNTY
originated, and was by that body passed over the veto by a large majority, but it did not fare so well in the house, as it got by with but one majority over the necessary number to carry it over the veto. The legislature then met in joint session and completed its efforts in that direc- tion by electing by a strict party vote the fol- lowing named Democrats as supreme justices under the new law : Samuel H. Treat, Walter B. Scates, Sidney Breese, Stephen A. Douglas and Thomas Ford. Although these men were fairly good lawyers, yet only two of them re- mained on the bench long enough to become able jurists. They were elected February 15, 1841. and Ford resigned August 4, 1842, and Breese resigned December 19, 1842, having ten days previously been elected to the United States Sen- ate by the legislature then in session. He had for his principal opponent Stephen A. Douglas, his associate on the bench. Douglas resigned the next year, June 28, 1843. Judge Treat re- mained on the bench until the new constitution of 1848 changed the entire system, and he was then elected as one of the supreme judges of the new court. He was one of the most dis- tinguished jurists of the state and served on the bench as circuit judge, supreme judge and as a federal judge altogether forty-eight years, a longer period than any other judge in the history of Illinois.
By the law of January 11, 1841, nine judicial districts were created for the entire state, and the nine supreme judges were required to hold the circuit courts. This system prevailed until the judiciary was reorganized under the consti- tution of 1848.
Under the 1818 constitution the probate mat- ters were conducted by a probate judge, for sev- eral years, and then by a probate justice of the peace. These were not constitutional offices, Lut were created by the legislature, under the grant of power given by the constitution. The county commissioners' court, so called by act of legislature, was not a part of the judicial sys- tem mentioned in the constitution, but was cre- ated by legislative act alone, and was for the purpose of managing the county business alone, and the court had no jurisdiction of any suits between litigants, civil or criminal, but there al- ways has been some confusion about that court and its jurisdiction, occasioned by the fact that the constitution of 1848 created a county court, with a county judge to preside, and provision for two justices of the peace to sit with the
judge in the transaction of all business, and further, they were given charge and management of the county's business, taking the place of the county commissioners' court. This system pre- vailed until the constitution of 1870 went into effect.
JUDICIAL POWERS.
By the terms of the constitution of 1848 the judicial powers were vested in one Supreme court and in Circuit and County courts, and justices of the peace. The Supreme court con- sisted of three judges, and the state was divided into three grand divisions, and at least one term annually was to be held in each of the grand divisions. There were nine Circuit court divisions, with a circuit judge elected for each division, and they were required to hold at least two sessions ot court annually in each county. A radical change and one of great importance was the manner of selecting the judges. They were to be elected by vote of the people in the several divisions, except that if the legislature saw fit to do so, it might provide for the elec- tion of the three supreme judges, or one every three years after the first election, by the vote of the entire state instead of by districts, thus taking the matter of the election of judges and of creating a court system, out of the hands of the legislature, placed the courts on a more perma- nent basis, and during the whole time of opera- tion under the constitution of 1848, the courts were presided over by an able corps of judges, with no fear of being legislated out of office each change of the moon.
PRESENT JUDICIAL POWERS.
By the constitution of 1870, which is now in force and effect, the judicial powers were and are vested in one Supreme court to consist of seven judges, Circuit courts, County courts and justices of the peace. The County court is made a court of record, and wholly separated from the county civil business. The legislature was granted power to provide for other courts for cities and incorporated towns. An inferior Ap- pellate court could be created by legislature, and such was created, and there are now four appellate court districts. The judges are by law taken from among the circuit court judges. The constitution further provides that Probate courts may be established in counties of over
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HISTORY OF CASS COUNTY
50,000 inhabitants, and jurisdiction of all pro- bate matters then transferred from the couuty courts to the probate courts. Several counties of the state have probate courts, but there should be no confusion. Couuty courts are often spoken of as probate courts and the county judge is often called probate judge. This is incorrect. County courts and county judges are entirely distinct from probate courts and probate judges, having altogether a different jurisdiction, but it is true that county courts have jurisdiction of all probate matters unless a probate court is established.
When Cass County was organized, the state judicial system was operating under the law enacted in 1835, which system it will be remem- bered was that supreme court justices held ses- sions of Supreme court only, and there were a number of circuits with circuit judges elected for each circuit. The act creating Cass Couuty provided that it should be a part of the First Judicial Circuit, the judge thereof to appoint a clerk for the Circuit court and hold court at such times as he should designate.
FIRST COURT HELD IN CASS COUNTY.
The first court held in Cass County was cou- vened at Beardstown, November 13. 1837, in an upstairs room of a frame building on lot 5, in block 11, owned by Augustus Knapp. It was not only provided in the act creatiug the county that the county seat should be at Beardstown until the voters determined the permanent local- ity, but the voters had decided at the election held in May previous that Beardstown should be the county seat of the new county, The con- stitution of the state provided that the judges of the various courts should appoint a clerk of the respective courts, and when the court met Judge Jesse B. Thomas, who held the first term, ap- pointed N. B. Thompson clerk of the Circuit court. Mr. Thompson had been elected re- corder for the county at the election held the previous August. Jesse B. Thomas, Jr., was a nephew of Hon, Jesse B. Thomas, who was presideut of the first State Constitutional Con- vention, and one of the first two United States senators elected from Illinois, Judge Thomas was commissioned circuit judge of the First Ju- dicial Circuit, July 20, 1837, and resigned in 1839. The court was formally opened by Lemon Plasters, sheriff-elect of the new county, but this session of the court only lasted two days. No
trials were had, owing to the fact that prior to the couvening of court there was no sheriff or other officer qualified to summon a jury, either grand or petit, or traverse, as the petit jury was then called.
INTERESTING EARLY COURT DOCUMENTS.
The principal business of the court was the qualifying of the new county officers, approving their bonds, etc. The bond of the circuit clerk was in the sum of $2,000, and was made to the governor of the state. The bond of the sheriff was for $1,000, and run to the people. It is interesting, however, to note that one of the first written documents considered, and ordered of record, was the declaration of Herman Lip- pert, an alien born, seeking naturalization as a citizen of the United States of America. From this declaration, which is subscribed and sworn to by Herman Lippert, before the circuit clerk, we learu that Mr. Lippert was about forty-three years of age, having been born in the towu of Eichelheim, on October 17, 1794 A. D .; that he belonged to the German nation, and owed alle- giance to the government of Hesse-Darmstadt. He further stated that he emigrated from Bre- men on March 3, 1834 A. D., and landed at the city of New Orleans about June 3 of the same year. On the same day Charles Coerper, a native of Messenheim, Hesse-Darmstadt, also filed a similar declaration. Although the name of the vessel in which these emigrants came is uot mentioned in their declaration as is required under the present law of naturalizations, yet it is evident they both came in the same ship, for each states that he sailed from Bremen on March 14, 1834 A. D., and landed at New Orleans, La., about June 3, 1834. Charles Coerper was about thirty six years old, having been born in the town of Messenheim, above mentioned, on De- cember 22, 1801. Fifteen other persons filed declarations for naturalization at the same term of court. They were as follows: Henrich Schmidt, Henry Menke, Augustus Theodore Menke, John Luechke, Henry Havekluft, Heury W. Lubben, Christian Frederich Krohe, August Edward Vogel, John Jeremiah Altman, John Adolph Krohe, John Henry Rohn, John B. Bueb, Pompeus Phillippi, and Alexander Phillipi.
The court evidently did not believe in wasting time as at the close of the first day, court was adjourned to seven o'clock next morning, a pretty early hour for the middle of November.
O
CHARLES BLUME
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HISTORY OF CASS COUNTY
The record, however, shows nothing done on the second, which proved to be the last day of the term, except the entering on the records of appli- cations for naturalizations as mentioned above, and the court adjourned, sine die. The second term of the Cass County Circuit Court convened at Beardstown, May 21, 1838. The clerk of the court entered on the record, "present, Hon. Jesse B. Thomas, Jr., judge," but while the "Jr." is added to Judge Thomas' name in several places by the clerk, yet in any of the signatures on the records of the judge himself, the "Jr." does not appear.
Twenty-nine cases were disposed of the first day of court; one of them being a trial by jury, and as this was the first jury trial in the county, may be rightly considered of some interest. The case was entitled "The people vs. James Berry," but was a civil case. It involved the matter of damages accruing by reason of open- ing a new road, appealed from a justice of the peace. The jury was composed of the following named persons : John Ayers, William Nelms, Robert Lindsey, Thomas Wiggins, Alexander Culberson, Jesse B. Pierce, Stephen D. Lee, Daniel Schaeffer, Reuben Hager, Lanus Carr, Isaac Plasters and Amos Dick. The jury as- sessed the damages at $25.85, and the court gave judgment accordingly, and further ad- judged that the county of Cass should pay the costs and the amount of the judgment to the claimant before proceeding to open the. road.
FIRST GRAND JURY.
The first grand jury impaneled in Cass County was summoned for this term of court, and was composed of the following named persons : Thomas Wilbour, foreman ; Isaac Spence, Augus- tus Knapp, William Shoopman, Benjamin Strib- ling, Jolın Daniels, Phineus Underwood, James H. Blackman, Alexander Hoffman, Robert Gaines, Ephraim Mosely, John Robeson, Elijah Carver, John P. Dick, William McAuley, Marcus Chandler, Henry L. Ingalls, Jeremiah Bowen, Jeremiah Northern, Henry Hopkins, John Mc- Donald and Amos Hager.
FIRST JURY TRIAL.
The grand jury had business at the first term also. They found thirty indictments, two for selling liquor illegally, one for murder, and twenty-seven for gaming and keeping a gaming
house. The jury was evidently no respecter of persons, for among those indicted for gaming was a high official of the court and county. Some few stood trial and were found guilty and paid a fine, others pleaded guilty and also paid a fine, with costs. The indictment for murder was against Nathan alias Nathaniel Graves, for the killing of a Mr. Fowle. A public sale was in progress near a small general store kept by Joseph McLane, about the present site of Phil- adelphia. Mr. Fowle and Alexander Beard, one of the very early settlers in that part of the county, were sitting outside the store on a log, engaged in a friendly conversation, when Graves rode up on horseback, and without speaking a word drew a pistol and shot Fowle dead. Most of the men at the gathering were at a little distance giving atttention to the sale, and did not realize what had happened. Those who were near were so astonished that they made no move toward apprehending Graves, who, it appears, was well known in the county. He im- mediately dashed down the road. At the time Graves came up, Richard McDonald, also a well known citizen of the neighborhood rode up, but from an opposite direction, and witnessed the whole tragedy. He called to the men to arrest Graves, and rode after him. When Graves saw he was being rapidly overtaken, and could not escape without disposing of McDonald, he turned, dismounted and drew a knife. Mr. McDonald, however, was no coward, and he grappled with Graves, defending himself against the knife as well as he could, catching Graves by the throat, and struggled with him until severely wounded. Help arrived, Graves was overpowered and placed under arrest. He was taken to Beards- town and placed in the calaboose, as the county jail had not yet been erected. Precaution, how- ever, was taken to have Graves guarded. After the indictment was returned into court, Graves moved for a change of venue, which was allowed, and the case was sent to Greene County. The principal witnesses, Alexander Beard, Jo- seph McLane, Richard McDonald and Zebedee Wood were placed under recognizance in the sum of $1,000 to appear at the July term of the Greene County Circuit Court. The case never came to trial, as Graves, after he was taken to Greene County, broke jail and made his escape to Kentucky, his former home. He was lost siglit of for years, but it was told that he died near his old home, of natural causes.
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HISTORY OF CASS COUNTY
COUNTY SEAT MOVED TO VIRGINIA.
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There is no record of any further Circuit court in Cass County until May, 1839. In the mean- time the county seat had been moved to Virginia, The county commissioners claimed that under the failure of Beardstown to comply with the terms of the act locating the county seat at Beardstown, and having contracted with Dr. Hall for the erection of a courthouse and jail at Virginia, which buildings were reported as completed and ready for occupancy, the official records were ordered removed to that place. The removal was delayed until the act of legis- lature of March 2, 1839, mentioned in another chapter, fixed as a penalty for failure to comply with the requirements of the act, a forfeiture of office of any county officers so failing or re- fusing to remove the records, etc., to Virginia. The May term, 1839, was convened at Virginia and presided over by Judge William Thomas, who had succeeded Judge Jesse B. Thomas, who had resigned in February of that year.
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