History of Chicago. From the earliest period to the present time, Part 126

Author: Andreas, Alfred Theodore
Publication date: 1884
Publisher: Chicago, A. T. Andreas
Number of Pages: 1340

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447

THE BENCH AND BAR.

edited and owned by lawyers, but of the opposite school in politics: " Judge Dickey has during the session of the court shown himself a good lawyer, a sound reas- oner, and a dignified, impartial Judge. The rules of the court were submitted to the Bar on the last day of the term, and meeting with their entire approbation were ordered printed." About ten days later, the Weekly Democrat of May 28, said : " He has made his court very popular, and the Bar would not consent to dis- pense with it or him, upon any terms whatever." The new court clearly met the wishes of the public at the outset, but as will be seen, its docket soon became clogged by the swift-swelling tide of law business in Chicago.

'The most notable criminal case of the year 1845, in either court was the Fahey manslaughter, sufficiently cletailed elsewhere in this work.

At the close of the first year and fourth term of the Cook County Court, the Weekly Democrat of February 24, 1846, thus eulogized its presiding officer: " Judge Dickey grows in popularity every succeeding court he holds. His dignity, urbanity, and well-balanced legal mind commend him to all who have anything to do with the court." At their August term an agreed case in relation to assessment for protecting the lake shore was argued before him, and decided against the city. His court as well as the Circuit Court were kept busy with ever increasing judicial business of Chicago. Judge Caton supplied the place of Judge Young at one term of the Circuit Court in 1846, but as soon as the latter got well enough to hold court he presided at a special term, beginning June 15, and yet the docket was al- ways full.

Judge Young resigned January 25, 1847, to take office in Washington, and his successor, Jesse B. Thomas, Jr., was commissioned two days later. He held the office until December 4, 1848, when the new judicial system provided by the constitution of that year went into force. By an act of the Legislature in the spring of 1847, with a view to harmonize the terms of the two courts in Chicago, the two terms of the County Court in August and November were replaced by one term in October. James Curtiss having been elected Mayor, his place as clerk of this court was filled by Louis D. Hoard, appointed thereto by Judge Dickey. The May term opened with three hundred and seventy- eight cases on the docket; of these two hundred and sixty-eight were common law, fifty-seven chancery, and fifty-three people's cases, but none of any class possess- ed historic interest.

FIRST LAW SCHOOL IN CHICAGO .- On the first Monday in December, 1847, the first law institute, or school, was opened under the auspices and with the en- dorsement of the Bench and Bar of Chicago, by John J. Brown, a member of the Bar having a reputation for general scholarship as well as professional learning, and special proficiency as a jury advocate and orator. The announcement which appeared in the Daily Democrat of November 30, was rather grandiloquent and preten- tious, but the comprehensive scope outlined perhaps not above his powers, when supplemented. as proposed, by lectures from members of the profession of acknowl- edged ability in special lines. Mr. Brown was a native of Virginia, settling at Danville, Ill., in 1839, had acquired some reputation in that section. He was the unsuccessful opponent of William rithian for the State Senate in 1840, but was elected Representative to the same General Assembly. About 1846, he removed to Chicago, and after a year or more of practice here, pro- jected his law school, as above. The impression made

on the Bar of Chicago, and of the other sections of the Seventh Circuit where he became known, was quite favorable. He was regarded as an able advocate, scathing in sarcasm and merciless in vituperation. On the hustings as well as at the Bar he could give and take with the best. It was remarked, however, that his scope was really narrow, he adroitly using one or two lines of thought and anecdote, with almost endless var- iation. "He had his faults," says Linder, "as we all have, over which it is our duty to draw the veil of chari- ty; but no foul blot or stain was ever fixed upon his character as a lawyer or as a man. * * He was an honor and an ornament to the Bar of Illinois." "He was nat- urally a retiring and misanthropic man," says Eastman. "the lenses through which he looked at life seemed to be ever clouded-the glimpses of sunshine rare. * * Had his natural temperament been different, had his health been better, had life been more roseate, he would, as the years rolled on, have made for himself a high and honored name. * * He was undoubtedly the great master of withering and remorseless irony when aroused, of satirical and scornful gibe, then at the Chicago Bar of sarcasm, that when given full rein had something almost sardonic in it. To this end, his vehe- ment gestures, his eyes, his tall flexible person, and his leonine hair, all added emphasis, and woe to those upon whom the razor-like edge of his tongue fell when unbridled."

THE JUDICIARY BY THE CONSTITUTION OF 1848 .- The organizing clauses were as follows :

I. "The judicial power in this State shall be, and is hereby vested in one supreme court, in circuit courts, in county courts. and in justices of the peace, Provided, that inferior local courts. of civil and criminal jurisdiction, may be established by the Gen- eral Assembly in the cities of this State, but such courts shall have a uniform organization and jurisdition in such cities.

2. " The Supreme Court shall consist of three Judges, two of whom shall form a quorum : and the concurrence of two of said Judges shall in all cases be necessary to a decision.

3. " The State shall be divided into three grand divisions, as nearly equal as may be, and the qualified electors of each division shall elect one of the said Judges for the term of nine years."

7. "The State shall be divided into nine judicial circuits, in each of which one circuit judge shall be elected by the qualified electors thereof, who shall hold his office for the term of six years, and until his successor shall be commissioned and qualified : Pro- vicled, That the General Assembly may increase the number of cir- cuits to meet the future exigencies of the State." They were in- creased accordingly to thirty before the Constitution of IS48 was replaced by that of 1870."

S. "There shall be two or more terms of the Circuit Court held annually in each county of this State, at such times as shall be provided by law; and said courts shall have jurisdiction in all cases at law and equity; and in all cases of appeals from inferior courts. "

16 to 19. " There shall be in each county a court to be called a county court. One county judge shall be elected by the qualified voters of each county, who shall hold his office for four years, and until his successor is elected and qualified. The jurisdiction of said court shall extend to all probate and such other jurisdiction as the General Assembly may confer in civil cases, and such criminal cases as may be prescribed by law. where the punishment is by hne only. not exceeding one hundred dollars. The County Judge, with such Justices of the Peace in each county as may be designated by law. shall hold terms for the transaction of county business, " replacing the County Commissioners Court and Judge of Probate of the first Constitution, as well as the Probate Justices of later legislative in- stitution.

some supplementary provisos were added in "the schedule." or appendix to this constitution : among others, these : " The Judges of the Supreme Court shall have and exercise the power- and jurisdiction conferred upon the present Judges of that court : and the said Judges of the Circuit Courts shall have and exercise the powers and jurisdiction conferred upon the Fudges of thise courts, subject to the provisions of this constitution. . . . The Conk and Jo Davies County Courts shall continue to exist, and the Judge and other officers of the same remain in office uniil other- wise provided by law."

448

HISTORY OF CHICAGO.

THE PRE-EMPTION CLAIMS TO CANAL LAND .- In January, 1848, the trustees of the Illinois & Michigan Canal brought suit against one Mr. Miller, before H. L. Rucker, Justice of the Peace. Sixteen other suits, differing only in the names of the defendants, depended on the result ; some two hundred persons were directly interested. The claim was for one hundred and sixty acres to each original pre-emptor, or his later representa- tive, on the canal lands, within what became the city limits, as elsewhere, by the general pre-emption acts of Con- gress. 'T'he canal trustees awarded two blocks to each, as a full equivalent for one hundred and sixty acres of com- mon Government lands. This was not satisfactory to the claimants, and the question was taken into the courts. In this case against Miller, the canal trustees claimed rent for his land since January, 1847, at which time a two years' lease from them had expired. Miller's lawyers, Thomas Hoyne and Patrick Ballingall, undertook to show that he held his pre-emption right by virtue of settlement and improvements made in, and subsequent to 1836, that ignorant of his rights he signed a lease which the trus- tees presented to him in 1842, which lease was never legally executed ; that the estoppel by taking a lease only applied during the existence of that instument, and did not prevent the pre-emptor from setting up his title under the laws of the State. The opinion of Judge Caton and other members of the Supreme Court were : cited and presented to the jury by Mr. Hoyne. Two juries disagreed, and when the third was summoned the excitement ran very high, but when they returned a verdict for the defendant, popular enthusiasm knew no bounds. The question came up again, in another form, under Judge Spring, in 1851, and was again de- cided against the canal trustees, but the higher courts as will be seen eventually reversed these popular decis- ions of the lower courts.

THE FIRST UNITED STATES COURT at Chicago was opened in July, 1848, in the absence of Justice John McLean, of the Circuit Court, by Judge Nathaniel Pope of the District Court, with his son, William, as clerk. Some lawyers were licensed to practice before it, and other preliminary business done, but no case of importance is known to have occupied the attention of the court at that term.

The Constitution of 1848, as has been seen, re- stored the circuit judiciary abolished for partisan pur- poses in 1841, and transferred the election of all Judges from the General Assembly to the people. Judge Hugh T. Dickey, of the Cook County Court, was nom- inated for the Seventh Circuit by the Democrats, and was elected without opposition from the Whigs. He resigned his previous judgeship, and was commissioned as Circuit Judge December 4. 1848.

February 2, 1849, a decision was rendered in Wash- ington by Justice Woodbury, of the Supreme Court, against the city of Chicago, in the case taken up by bill of injunction, and referring to the pretended right of the corporation to open and keep open the streets and alleys in the Fort Dearborn addition. The deci- sion was in effect that the powers of the corporation did not extend over that region, and that the fee-simple to its streets and alleys was still vested in the United States.

THE MAYOR'S COURT-In his second inaugural message to the Common Council in March, 1849, Mayor Woodworth thus sketched the need of such a court : "Situated as we are on the main channel of communi- cation between Western lakes and Southern rivers, there is found here a class of individuals, who, regarding the rights of none, are almost daily in the commission of

crime as a means of converting to their use the sub- stance of their fellow-men. This state of things calls loudly for the organization of a well regulated police. It has been suggested by some that the Mayor should hold a court for the trial of persons charged with a vi- olation of the city ordinances. If the Common Council desire the establishment of such a court, they will receive from me a willing co-operation."

In pursuance of that idea a Mayor's court was in- stituted as authorized by the city charter, and on April 26 it was ordered, and notice given to all police constables, that violators of any city ordinance be brought before the Mayor, daily, at 9 o'clock, in his of- fice in the north room of the market.

COOK COUNTY COURT .- Giles Spring was elected to the judgeship made vacant by the resignation of Mr. Dickey, and was commissioned April 14, 1849. At the May term he found about four hundred civil, one hun- dred chancery and a proportionate number of criminal cases.

In June a term of the Circuit Court was held by Judge Dickey, but both courts, however efficiently pre- sided over, were unequal to the complete dispatch of the accumulating judicial business of Chicago. A num- ber of cases were determined at each successive term. but the rapid influx of trade and population outran the best speed of the courts, never remarkable for quick- ness of procedure.

Early in July Judge Pope, of the United States Court, held the annual term provided to Chicago in the law-rooms of Buckner S. Morris, with William Pope as clerk ; ' Archibald Williams, District Attorney : Benja- min Bond, Marshal, and George W. Meeker, Commis- sioner. The court adjourned August 11, having lasted some five weeks and disposed of over twenty-five im- portant cases. Among others a marine case, which ex- cited much interest at the time, was determined. In No- vember, 1848, the propeller " Ontario" collided with the barque " Utica," on Lake Huron. The owners of the latter brought suit, and the court decreed to them for damages $790.91 and costs.

At the October term of the Cook County Court, Judge Spring had the largest criminal docket since the establishment of the court in 1845. There were at the opening of court sixty-one cases, and the Grand Jury re- turned eight or ten additional indictments. By act of November 5, 1849, the General Assembly ordered that to the title of Cook County Court should be added the words of common pleas. This was designed to dis- tinguish Judge Spring's court from the County Courts of administration and probate established by the new con- stitution to replace the courts of county commissioners. The original County Courts, instituted by the act of 1845 were only two in number, for Cook and Jo Daviess counties, occasioned by the growth of Galena and Chi- cago, and were served by one judge. It was now pro- vided by the new act that the Cook County Court of Common Pleas and the Circuit Court of Cook County should have equal and concurrent jurisdiction; that the terms of the former shoukl begin on the first Mondays in February and September, and of the latter on the cor- responding days in May and November, and that all ap- peals from justices should be taken to which ever term of either court came next after the date of such appeal.

The year 1850 was marked by the decease of several members of the judiciary, more or less connected with Chicago. Nathaniel Pope of the United States District Court, in January: Jesse B. Thomas, Jr., ex-Justice of the Supreme Court of Illinois, in February, and Thomas Ford, ex-Circuit Judge and ex-Governor, in November.

Isaac N. Arnold

449

THE BENCH AND BAR.

NATHANIEL POPE .- Few if any of the men identi- for lost time, being a man of great energy, bright intel- lect and quick perceptions. Successful in the dispatch of business, a number of his decisions were reversed, but perhaps no larger percentage than most of the lower courts. February 19, 1850, President Taylor commissioned Thomas Drummond, of Galena, to suc- ceed Nathaniel Pope, deceased, as United States Dis- trict Judge for Illinois. Mr. Drummond had been a fied with the early history of Illinois, have exercised so potent an influence upon the destiny of Chicago as Judge Pope. The delegate of Illinois Territory in Con- gress in 1818, he conceived and executed that farsighted measure of statesmanship, demanded as he urged by National as well as State interests, of removing the northern boundary of Illinois from the "east and west line drawn through the southerly bend or extreme of . member of the Legislature, 1840-42, was a Whig of Lake Michigan," to 42º 30', north latitude. It. had , pronounced convictions, and indorsed by two of the hitherto been understood that if Congress decided to. most prominent members of the party and of the Bar establish five rather than three States out of the "ter- of Illinois-Edward D. Barker, of Galena, member of Congress, and Justin Butterfield, of Chicago, Commis- sioner of the General Land-office. The selection has ever since been regarded as an excellent one, and Judge Drummond entered at once on the discharge of his duties. He held a term of his court in Chicago.in 1850 ; has continued to hold them of increasing length and in larger number for a generation, and happily the end is not yet. Though now entering upon his seventy- fifth year, he holds his own among the jurists of the day, commanding universal respect for firmness, inde- pendence, courage and conscientiousness, as well as professional ability, judicial impartiality, and unbroken vigor of mind. " ritory northwest of the Ohio," an alternative provided by the ordinance itself, the line referred to was the pre- determined boundary between Illinois and the future State to the North. Mr. Pope set himself to work to secure a wider interpretation, and to enlist influential members in the support of his view, and succeeding in persuading Congress that the Ordiance of 1787 had itself empowered them to make the departure which he advocated. Among the results of the change intro- duced by him and ingrafted on the enabling act of April IS, 1818, authorizing the people of Illinois to form a State constitution, was the retention of Chicago within Illinois, instead of relegating it to the then Michigan Territory, and the later State of Wisconsin. An imper- At the May term of the Circuit Court in 1850, among the many cases of no special interest was one of a class that perhaps deserves mention as a reminder to the reader of a particular phase of Chicago's growth. A verdict of $575 was given the owners of the schooner " Jane" against the steamer "Sam Ward," for dam- age to the former in being run into by the latter vessel. ial city demands an imperial State as well as a local commercial location. But the story of Nathaniel Pope's life in its completeness belongs to the State of which he was one of the most notable founders, rather than to any single point within its borders. Indeed his most effective argument for the change he advocated was based on the broad ground of national interest, and the permanency of the Union, in which he claimed for Illinois a sort of keystone position, touching the South- ern and Western States, through the Ohio and Missis- sippi, and the Northern and Eastern through the Great Lakes. Situated on the main channel of communica- tion between Northern lakes and Western rivers, Illinois would hold together the wide-extending borders of the States.

JESSE B. THOMAS, JR., whose life covered the period from 1806 to 1850, was associated with the Bench and Bar of Chicago only during the last few years of his active work, while as a State officer he was more or less conspicuous since 1830. He was commissioned as Judge of the First Circuit March 20, 1837, and resigned in 1839. He was appointed Associate Justice of the Supreme Court August 16, 1843, to fill the place left vacant by the election of Stephen A. Douglas to the Twenty-eighth Congress. This he resigned two years later, and formed a law partnership with Patrick Ball- ingall; but was again appointed to the same office, to replace Judge Young, as stated. He had also filled the offices of State Senator, Attorney-general of the State, and Representative in the General Assembly. He died of erysipelas February 20, 1850, with a reputation-as official, lawyer, Judge and citizen-for integrity, worth and honor that have made his name respected through- out the State, which he had served faithfully and credit- abiy. if not always brilliantly, in every fickl of labor to which he was summoned.

THOMAS FORD, although twice connected with the judiciary of Chicago, and still earlier associated with its Bench and Bar as Prosecuting Attorney of the Fifth Circuit, by reason of his later elevation to the Govern- orship of Illinois, belongs to the history of the State rather than the history of Chicago. The February term of the Court of Common Pleas was somewhat delayed by an illness of Judge Spring, but he soon made up

POLICE AND MAYOR'S COURTS .- In the compre- hensive act of the Legislature, approved February 14, 1851, which was designed as supplementary to as well as amendatory of the city charter of March 4, 1837, in chapter twelve, sections eight and nine, are found these provisions relating to this subject : " The Common Council shall have power to designate two or more Jus- tices of the Peace in any actions for the recovery of any fine or any ordinance, by-law, or police regulation of the City Council, anything in the laws of this State to the contrary notwithstanding. Such Justices shall have power to fine or imprison, or both, in their discre- tion, where discretion may be vested in them by the ordinance or regulation, or by this act. The Mayor may hold a police court.

"Execution may be issued immediately on the ren- dition of judgment. If the defendant in any such action have no goods or chattels, lands or tenements, whereof the judgment can be collected, the execution shall require the defendant to be imprisoned in close custody in the jail of Cook County, or bridewell. or house of correction, for a term not exceeding six months, in the discretion of the magistrate or court rendering judgment ; and all persons who may be com- mitted under this section shall be confined one day for each fifty cents of such judgment and costs. All ex- penses incurred in prosecuting for the recovery of any penalty or forfeiture, when collected, shall be paid to the Treasurer for the use of the city."

At the February term of this court in 1851, the last at which he presided, Judge Spring delighted the hearts of the pre-emption claimants, by deciding for the plaintiffs in the cases of Daniel Brainard as. Board of Trustees of Illinois & Michigan Canal, and of Thomas Dyer et al. vs. the same. At the May term of the ('ir- cuit Court another of these cases, Elihu Granger ;. Canal Trustees, was similarly decided by Judge Dickey.

450

HISTORY OF CHICAGO.

But at the June term of the Supreme Court at Ottawa, to which the two first-named cases were appealed, these decisions were reversed, Justices. Treat and Trumbull concurring, with Justice Caton dissenting.

pre-emption was to be regarded as covering one hun- · cleared the docket of his court, and kept its business under control for the remainder of his term.

The question at issue was whether the privilege of dred and sixty acres in a legally platted division of a town or city, as in the broader domain of unsettled Government lands. The lower court had decided sub- stantially in the affirmative. The Supreme Court now reversed that decision, holding that the proper pre- emption privilege of persons whose claims were situated as described was that such lots or blocks, as the case might be, as were covered by their actual improvements, should be open to them as preferred purchasers at the appraised valuation. This was substantially the award made by the trustees themselves before the cases were taken into court; and when thus sustained by the highest court in the State, came to be accepted as eminently equitable. The public recognized that the decision was rather liberal than otherwise. The impet- uous first pronouncement in favor of the claimants was amended by the sober second thought developed and fostered by the arguments before the courts.

The canal lands, through the munificence of Con- gress, had been withdrawn for a great natural object from the domain of the general pre-emption laws, and were at this time entirely amenable to State laws. A great public benefit was not to be marred by a strained sentimental interpretation of pre-emption privileges in favor of a few and against the broad commercial in- terests of the State, if not of the whole nation. Those who bought by pre-emption or at public sale, within a legally platted town or city, could only buy in such lots or blocks as the law there recognized.

FIRST FUGITIVE SLAVE CASE .- On the 7th of June, 1851, before George W. Meeker, United States Com- missioner, was arraigned one Morris Johnson, alleged to be a runaway slave. Crawford E. Smith, of Lafayette County, Mo., by power of attorney to Samuel S. Martin, of Chicago, had him arrested as his slave, William, who had escaped from his premises July 4, 1850. After a trial which occupied three days besides postponements, the prisoner was discharged on the 13th, ostensibly because of a discrepancy between the writ and the record. The former called for a copper-colored negro, five feet five inches in height, while the latter showed a dark enough negro to be called black, while he measured - possibly by a trick of the measure-five feet eight inches. His acquittal was largely due to the unpopularity of the law, and the unwillingness of the Bench, Bar and people of Chicago to act as negro-hunters for Southern slave-

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History of Chicago. From the earliest period to the present time, Part 126

Author: Andreas, Alfred Theodore Publication date: 1884 Publisher: Chicago, A. T. Andreas Number of Pages: 1340

Author: Andreas, Alfred Theodore
Publication date: 1884
Publisher: Chicago, A. T. Andreas
Number of Pages: 1340