History of Cook County, Illinois From the Earliest Period to the Present Time, Part 69

Author: Andreas, A. T. (Alfred Theodore), 1839-1900
Publication date: 1884
Publisher: Chicago : A.T. Andreas
Number of Pages: 875

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The Constitution of 1848, as has been scen, 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 Cirenit 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 nut 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, helt 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. Mecker, 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 snit, 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 should 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.

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NATHANIEL POPE .- Few if any of the men identi- 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 Lake Michigan," to 42º 30", north latitude. It had hitherto been understood that if Congress decided to establish five rather than three States out of the " ter- 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 18, 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- 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 crysipelas 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- ably, if not always brilliantly, in every field 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

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 member of the Legislature, 1840-42, was a Whig of pronounced convictions, and indorsed by two of the most prominent members of the party and of the Bar 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 conscientionsness, as well as professional ability, judicial impartiality, and unbroken vigor of mind.

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 " Janc" against the steamer "Sam Ward," for dam- age to the former in being run into by the latter vessel.

POLICE AND MAVOR'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. rs. the same. At the May term of the Cir- cuit Court another of these cases, Elihu Granger vs. Canal Trustees, was similarly decided by Judge Dickey.

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

The question at issue was whether the privilege of pre-emption was to be regarded as covering one hun- 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 suhi- 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 of blocks, as the case might he, 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 he accepted as eminently equitable. The puhtie recognized that the decision was rather liberal than otherwise. The impet- tous first pronuncement in favor of the claimants was amended by the soher second thought developed and fostered hy the arguments before the courts.

The canal lands, through the munificence of Con- gress, had been withdrawn for a great natural ohjert 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 marted 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-emptim or at publie sale, within a legally platted town or city, could only boy in such lots or blocks as the law there recognized.

Fixst Fratrive: SLAVE CASE .-- in 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 front 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- holders. Among other obstacles thrown in the way of the owner's representatives in this case, was the demand that they should prove by any other hearsay testimony that Missouri was a slave State ! Had the decision been differem, it is probable Crawford E. Smith wonkl have been no nearer to getting possession of his chattel, as " the underground railroad" was at that time in active operation here.

At the September term of the Cook County Court of Comman Pleas to the Bench of which he had been elected upon the death of Giles Spring, Judge Mark Skinner found an overloaded docket The most im- portant criminal case was "The People &. Martin ('Brien," for the murder of Stephen Mahan, The trial lasted three days, and no other defense was made than that the prisoner acted in the heat of passion, and to re- dress an injury offered to one of his relatives by the de-

ceased. He was convicted of manslaughter, and sen- tenced to eight years in the penitentiary with ten days of each year in solitary confinement.

Judge Skinner sat almost continuously for seven months, including the regular term in February. 1852. cleared the docket of his court, and kept its business under control for the remainder of his term.

The city had heen for several months preparing to throw a hridge across the river on Lake Street, at cun. siderahle expense for those times, when in February. 1852, an injunction was asked of the United States District Court, which Judge Drummond refused. Navi- gation had its interests, and so had the city. The prin- ciple was understood to he that the right to navigate the river and the right to cross it by bridges are co- existent, and neither could be permitted to essentially impair, much less destroy the other. They were to be su harmonized as to afford the least possible obstruction por interruption to each other.

In September another murder case was tried before Indge Skinner, "The People as. John O'Neil, for the mariler of Michael Brady." On Saturday, May 29, 1852, at iz o'clock at night, Michael Brady, a black- smith, residing on Indiana Street, corner of LaSalle. was killed hy his neighhor, John O'Neil, a tinner. For some time there had been a standing quarrel between them. On the day of the murder, Brady called a little girl of O'Neil an opprobrious epithet. Swearing to be revenged, O'Neil waited at the door of Brady's house, and when the latter appeared, struck him over the head with a heavy club, fracturing his skull, and he expired in a few minutes. O'Neil ded, but was captured the next night, in a house ten miles out of town in the North Branch woods, by Owen Dungherty, Constable, accom- panied by Daniel T. Wood. Deputy Sheriff. When he saw the officers he attempted to escape, hut was seized by Dougherty, brought into town and lodged in jail. On trial, he was convicted of manslaughter and sentenced in five years in the penitentiary.

In virtue of the law of 1851, establishing a police court. Henry I .. Rucker and Frederick A. Howe had been chosen by the Common Council as Police Justices, mainly for the trial of violations of city ordinances and the lower gradle of criminal offenses. Besides these there were six other Justices of the Peace, two for each division of the city.

1.F.WIS C. KERCHEY A ..- One of the most singular characters of the early Bench and Bar of Chicago was the well-known and eccentric Justice of the Peace, I .. (. Kercheval, who died, rather unexpectedly, December 8, 1852. Mr. Kercheval was for many years a member of the judicial fourth estate, hanging on the outer circle of the judiciary. Few Judges were more quick to note and resent a contempt or more ready to vindicate the honor of the court. In 1839 he was Inspector of Cus- toms for the port of Chicago, in which office he was succeeded by George W. Dole, in June, 1841. Some time afterwards he was elected and commissioned a Justice of the Peace ; and was for many years a con- spicuous representative of his class. " He rises before me to-day," says Eastman, "as distinct as when I used to meet him in the streets, straight as a pine, unbending : in oak. drant and tough as hickory ; with his tall, Miscular torm, his grizzled hair, hlue brass buttoned coat, and his soklier-like bearing, proud as Julius Cæsar. and imperious as the Czar, always neatly dressed, with rleanly shaved face, and-a rara avis in those muchily times-well polished hoots."

He was a person of good natural intelligence and ability and touk pride in his official station ; but becine

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badly demoralized by the high-living habits of the period. He slept in his office, kept no records, but tried to discharge his other duties as a Justice with fidelity and in accord with the dictates of natural honor.

PALLAS PHELPS was another quaint character of the period, and with mock dignity nicknamed by some wag of the Bar as "Chancellor" Phelps. He is said to have been here several years before 1840, and he is known to have been admitted to the Bar in 1843. He liked to try his cases in the newspapers, and dispensed with the luxury of an office. With even the best law- yers, cases were not numerous in those days, and Mr. l'helps was able to carry all the papers relating to his current business in his hat, Justin Butterfield, the acknowledged wit of the Chicago Bar, never missed an opportunity of playing on the eccentricities of l'helps. He made frequent references to his commodious office, " as big as all out doors," and would vary the joke by inquiring if he had any room to let. On rainy days when Chicago crossings were marvels of muddy con- sistency, the wit of the profession was wont to rally its butt, amid the plaudits of admiring listeners, about the beastly condition of his "office." When the first sprink- ling cart was brought into requisition here, Butterfield on meeting Phelps saluted him with affected courtesy, which his dupe, proud of the attention, cordially recip- rocated, saying, " A fine morning, your honur ! A very fine morning!" " Yes, indeed," replied Butterfield,. "and I am glad to find you improving the opportunity, Mr. Phelps, to have your office sprinkled." Whenever Phelps had a case. Mr. Butterfield would inquire, with mock gravity, which of the papers he was to try the case in, or before which of them he should file his brief. Mr. Phelps survived this period many years, and finally disappeared from public notice in the whirl and pre- occupation of the great city.

CHICAGO COURTS 1853 TO 1857 .- Early in Janu- ary, 1853, the Chicago Hydraulic Company applied to the Circuit Court for an injunction against the Board of Water Commissioners to stop the further progress of the new water-works, in the South and West divisions, claiming the exclusive right under their charter to sup- ply those sections. The same company had asked for a second injunction to prevent the city from collecting the water-tax. Judge Dickey rejected both petitions. The first could not be granted because exclusive privi- leges cannot be inferred, and their charter did not ex. pressly confer them. A government, municipal or other, does not debar itself by implication fram grant- ing a like power to other corporations, 1: only debars itself from hindering the first in the exercise of the privileges granted. And although a section of the act establishing the Water Commissioners imposed the obli- gation of buying the property of the Chicago Hydraulic Company it was not to be understood that such purchase was a condition precedent to the beginning of opera- tions. The remedy of the complainants was by manda- mus or other process, not by injunction. The right of the city to collect the water-tax, for similar reasons could not be denied.

February 7, the first term for 1853 of the Couk County Court of Common Pleas, was held in the new court-house which had been begun eighteen months be- fore, and Judge Skinner congratulating the Bar on the privilege of occupying their new roon, where there was no fear of the walls or benches breaking down.

THE RECORDER'S COURT,-By an act, approved February 12, 1853. "an inferior court of civil and crimi- nal jurisdiction, which shall be a court of record," was

established under the above name, having "concurrent jurisdiction within said city with the Circuit Court in all criminal cases, except treason and murder, and of civil cases where the amount in controversy shall not exceed one hundred dollars. * Said Judge and Clerk shall be elected by the qualified voters of said city, and shall hold their offices five years. * * * All recognizances, taken before any Judge, Justice or Magistrate in said city, in criminal cases, shall be made returnable to said Recorder's Court. . * * All ap- peals from decisions of Justices of the Peace within said city shall be taken to said Recorder's Court. * * * Appeals may be taken from said court to the Circuit Court of Cook County in all cases. * * The regu- lar terms of said court shall be held on the first Mon- day of each month."

The first term of the Recorder's Court began April 4. 1853. with Robert S. Wilson as Judge and Philip A. Hoyne as clerk, both having been duly chosen by the votes of the people, at the regular city election of the previous month, as provided by act of February 12, es- tablishing the court.

March 28, 1853, before Judge Skinner of the Cook County Court of Common Pleas, was argued the request of James H. Collins for an injunction against the Illi- nois Central Railroad. The petitioner argued in his own behalf, aided by I. N. Arnold and J. M. Wilson, while James F. Joy, of Detroit, was instructed with the advo- cacy of the railroad's interest. That corporation had purchased from the General Government the made land sonth of the Goverment pier. To get to it they had to lay the railroad track through the edge of the lake, hack of Mr. Collins's dwelling. He claimed the owner- ship to the middle of the lake and contested the right- of-way. The final result was that the railroad corpo- ration paid off his claim, as well as the similar one of Charles Walker tried the following year. Several years later, by its " influence " with the General Assembly, it attempted to secure, as against the city as well as the General Government, the whole "lake front" and almost as broad an expanse of the lake itself as was claimed by Mr. Collins, originating a quadrilateral con- tention which has not yet been definitely determined.

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History of Cook County, Illinois From the Earliest Period to the Present Time, Part 69

Author: Andreas, A. T. (Alfred Theodore), 1839-1900 Publication date: 1884 Publisher: Chicago : A.T. Andreas Number of Pages: 875

Author: Andreas, A. T. (Alfred Theodore), 1839-1900
Publication date: 1884
Publisher: Chicago : A.T. Andreas
Number of Pages: 875