USA > Illinois > Illinois in 1818, 2nd ed > Part 19
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judge Stuart resigned." This resignation did not, however, im- prove conditions, for William Sprigg, who was appointed to take the place of Stuart, absolutely refused to recognize the right of the legislature to regulate the court. On February 23, 1814, Bond wrote that he was "trying to get a law passed to compel our judges to perform such duties as our Legislature have required of them."211
Two years experience with the courts of common pleas ap- parently convinced the people of the necessity of having trained judges, and in December, 1814, the legislature reversed its action of 1812. The court of common pleas was again abolished and its administrative functions transferred to a county court of three men, while the United States judges were organized as a supreme court and directed to hold two courts annually in each county and a court of appeals at the capital. Upon the former devolved the judicial functions formerly exercised by the courts of common pleas. It was expected that the judges would divide up the counties into circuits and hold the local courts individually, but these were to be termed sessions of the supreme court in or- der to avoid objections which the judges had raised to any breaking up of the unity of their court. There was nothing in the act to prevent all or several of the judges from holding court jointly in each county if they so desired, as had been done when there were only two counties. Judges Thomas and Sprigg, however, at once addressed a letter to the legislature protesting against the change and denying the authority of the legislature over them. They took the position that the supreme court estab- lished by the act was a new court to which "the court established by the ordinance" was to be subjected, and asserted that "an ap- peal from the same court to the same is a solecism."
The legislature forwarded the letter to Governor Edwards and requested of him an opinion upon the subject, which he fur- nished at great length in a communication of December 12, 1814. The governor explained that the words of the ordinance "are that 'there shall be appointed a court, to consist of three judges, who shall have a common law jurisdiction,' but how, when or
211 House Files, March 14, 30, 1812; Laws of 1812, p. 15-16, 46-48; Pope's Digest, 2:311-312; Washburne, Edwards Papers, 103, IIO.
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where that jurisdiction is to be exercised is not pointed out, and therefore it is subjected to the modification and direction of the Territorial Legislature."212 The judges still refused to acknowl- edge the validity of the law, and on December 21 the legislature forwarded all the documents to congress together with a memo- rial praying for relief. One sentence of this memorial reads : "There being no intermixture of party spirit or individual hos- tility with this proceeding, the objections of the Judges to exe- cuting the law doubtless arise, more from a conviction in their own minds of the want of Power in the Legislature to pass it, than from any indisposition on their part to perform the duties therein assigned to them." This was probably a bit of subtle sarcasm, for the judges were certainly not anxious to assume any additional burdens and the politicians were certainly grouping themselves into supporters and opponents of Governor Edwards, of whom the former upheld the judiciary law and the latter supported the judges. Together with these documents in the house files is a long letter from Edwards, dated January 2, 1815, and recounting the arguments in favor of the validity of the law.
The result of this appeal to congress was the passage of an act "regulating and defining the duties of the United States Judges for the territory of Illinois" which required them to hold circuit courts in each county. That this victory of the Edwards party was not won without opposition is evident from Benjamin Stephenson's review of his work as a delegate in congress, in which he says: "With regard to our judiciary system, I should a. all times, have been happy to see such a one established, as would, if possible, have been agreeable to the judges, and con- venient to the people. But I felt it my duty to oppose, and I did oppose with success, the attempt that was made when this sub- ject was before the last congress, to destroy the circuit system, and to have a general court to sit in two or three places only."213
Just at this point in the fight, Griswold, the one judge who had not actively opposed the territorial law, died; and the efforts of the two factions to get their respective candidates appointed
212 A Law Establishing a Supreme Court and Documents (Kaskaskia, 1814) ; Edwards, History of Illinois, 86-92.
213 Statutes at Large, 3:237-239; Intelligencer, June 19, 1816.
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throw light on the alignment of men in 1815, particularly in Gal- latin county. Griswold died in Shawneetown, August 21; and four days later a meeting was held there at which a petition was circulated in favor of Thomas Towles of Kentucky as his suc- cessor. The men present at this meeting were Towles himself, Leonard White, Benjamin Talbott, Thomas Sloo, and John Caldwell. The opposition at once put up Jeptha Hardin, a Ken- tuckian, who had been practicing law in Gallatin county since 1813 and a man who, according to John Reynolds "possessed a strong original mind, and seemed to disdain scholastic educa- tion." Hardin's chief support came from Judge Thomas; and his political manager in the campaign appears to have been Joseph M. Street, clerk of both the county and circuit courts of Gallatin county. Towles, however secured the appointment.
The victorious faction at Shawneetown in this contest was composed largely of men connected with the United States saline, and in that way closely associated with Edwards, who had been appointed superintendent of the saline in 1809. Leonard White was United States agent at the saline, while Sloo and Caldwell were register and receiver of the Shawneetown land office and thus concerned with the reservation. Towles himself, accord- ing to information given to Hardin by Caldwell, "was at the lick" with White and Talbott when Griswold died, and may have been connected with the saline in a private capacity. The men op- posed to Towles were also opposed to the management of the saline, and in 1816 they sent two petitions to congress against the renewal of the lease of John Bate. Street's name is first on one of these and Hardin's on the other. It would seem prob- able, therefore, that the saline was a considerable factor in Illi- nois politics. It added a business interest to the struggles over the patronage.
Among the members of the anti-Edwards faction at this time was Elias Kent Kane of Kaskaskia, one of the most promising of the younger lawyers, and a "keen, shrewd, talented politician." Born in New York and educated at Yale, he began practice in Illinois in 1814 when only twenty years of age. From the first he seems to have been on terms of intimacy with Judges Thomas and Sprigg, and Street considered him a person of influence in 1815. Another member of this faction and an intimate friend
NINIAN EDWARDS (From original painting owned by Chicago Historical Society
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of Kane was John McLean, a young Kentuckian, who came to Shawneetown in 1815 and was admitted to the bar the following year. Mention should also be made of Thomas C. Browne, an- other lawyer from Kentucky, who located in Shawneetown in 1812 and who threw in his lot with the Edwards men. In 1815 Browne was one of the leaders in an attempt to deprive Street of his position as clerk of the circuit court.
The usual alignment of party leaders during the territorial period runs Edwards, Pope, Cook, White, and Browne on one side and Bond, Thomas, Michael Jones, Kane, and McLean on the other. This is derived from a statement of John Reynolds, who began to take an interest in politics about 1818, and it is in the main correct.214 The Michael Jones referred to may have been the young lawyer who was located in Shawneetown as early as 1812 and who played a prominent part in politics after the ad- mission of the state. He was a half brother of Jesse B. Thomas and a brother-in-law of Hardin so that his family affiliations were with the anti-Edwards party. There was another Michael Jones, however, a native of Pennsylvania, who came to Kas- kaskia in 1804 as register of the land office, and held his position there throughout the territorial period. He had been the candi- date of the Harrison faction against Thomas for delegate from Indiana territory in 1808 and served for a time as lieutenant- colonel of the militia, from which position Edwards removed him in 18II. There was bitter feeling between him and the gov- ernor over the settlement of land claims also, and he could doubt- less be included as a member of the faction opposed to the gov- ernor.215
214Street to Kane, March 26, 1815 and Hardin to Kane, September 29, 1815, in Chicago Historical Society manuscripts; Lippincott, "Early Days in Madison County," no. 13; Reynolds, Pioneer History, 330; Reynolds, My Own Times, 210.
215 Illinois Gazette, August 5, 1826; James, Territorial Records, 18, 28; Washburne, Edwards Papers, 71-78; Reynolds, Pioneer History, 351.
The secondary writers have all treated these two men as one, the usual statement being that he moved from Kaskaskia to Shawneetown in 1814. The conclusion that there were two men of this name was first based on a comparison of signatures and on a cumulation of circumstantial evidence. Finally, however, positive proof was found in a letter from Edward Humph- reys, receiver of the land office at Kaskaskia, to the commissioner of the general land office, dated November 30. 1822, which announces the death of "Col. Mich. Jones Regr. of the Land Office at this place" on the twenty- sixth. Land records in the auditor's office, Springfield.
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The placing of Bond's name first in Reynolds' list has led many local historians to speak of the opposition to Edwards as the Bond party. The real leaders of this faction, however, at the close of the territorial period were Thomas and Kane; and there is no strictly contemporary evidence to indicate that Bond was counted as a member of the party until, as first governor of the state, he fell under the influence of Kane, the secretary of state. Bond had been considered a member of the Harrison faction in the Indiana territorial legislature, and in 1809 he ob- jected strenuously to Edwards' proposition that he go into an election with William B. Whiteside for the position of colonel of the militia, then held by Bond. Whiteside received the ap- pointment. In 1812, however, as has been seen, Bond was elected delegate to congress, and his letters to the governor dur- ing his term indicate that at that time they were working in per- fect harmony. Bond came back from Washington in 1814 with an appointment as receiver of the land office at Kaskaskia. Two years later when Nathaniel Pope resigned the secretaryship to run for the position of delegate to congress, Bond secured Pope's support for the position of secretary and wrote confidentially to the governor: "I now ask, and flatter myself, that you will support my view."216 The appointment went to Captain Joseph B. Phillips of Tennessee, who was the first chief justice of the supreme court of the state and the candidate of the Thomas and Kane party for governor in 1822, but there is no evidence that Edwards was in any way responsible.
The truth seems to be that Bond and many of the other men, such as Pierre Menard and Dr. George Fisher, who had been prominent in politics during the period when Illinois was a part of Indiana territory, held aloof from both of the new factions and relied upon their popularity with the voters for political preferment. Menard represented Randolph county in all three sessions of the legislature of Illinois territory, serving as presi- dent of the council, while Fisher was the representative from the same county and speaker of the house in the first and third legislatures. In 1816 these two men had only to announce their
216Lippincott, "Early Days in Madison County," no. 13; Washburne, Ed- wards Papers, 42-46, 93-98, 101-117, 126, 150.
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candidacy in order to assure their elections, and the same ap- pears to have been true of Bond whenever he aspired to an elec- tive office.
On the whole, it would appear that the political factions dur- ing the last years of Illinois territory may be characterized as combinations of men for the purpose of holding or seeking ap- pointive offices, either local or territorial. The people as a whole played little part in politics, for the only elections were those for delegate and members of the legislature every two years. It is doubtful if any considerable number of voters considered them- selves as members of either of the political parties, and in the elections they were concerned less with questions of policy re- garding the territory as a whole than with what the representa- tives whom they sent to the legislature could procure for their particular county. This local interest was often a desire for a dam, a ferry, a road, or some other public improvement ; and in 1818 the legislature was satirized as "discussing, whether nature had designed such and such rivers to be navigable or not." In 1816 the important issue of the judiciary system was pend- ing, but the fight in St. Clair county centered around the purely local issue of the division of the county, and the candidates pledged themselves to give primary consideration to local inter- ests. In Randolph, as has been noted, the popular candidates had little opposition, regardless of their stand on territorial is- sues, and such seems to have been the situation wherever no local issue was at stake.217
The action of the third territorial legislature on the judiciary question illustrates the lack of political convictions on the part of the members and the absence of strict party affiliation.218
217 Intelligencer, September 9, 1818, July 9, 24, 1816.
218The list of representatives in this legislature in the Illinois Blue Book, 1913-1914, p. 133, is inaccurate and incomplete. It is supplemented in the following list from a vote reported in the Intelligencer of December 25, 1817. All of these men were elected in 1816 and all were present at the second session. Davenport may not have attended the first session but there is evidence that all the others were present, in the issues of the Intelligencer for December 4, II, 18, 25, 1816, and January 22, 1817. George Fisher (Speaker), Randolph; C. R. Matheny, St. Clair; William H. Bradsby, St. Clair; Nathan Davis, Jackson; M. S. Davenport, Gallatin; Joseph Palmer, Johnson; Seth Gard, Edwards; Samuel Omelveny, Pope; Willis Hargrave, White; John Mordock, Monroe; - -- Gilham, Madison; Edward N. Cullom, Crawford.
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The United States law of 1815 having proved unsatisfactory in some of its details, the legislature of 1816 asked congress to make certain changes and also to give to the legislature the power to make such changes as might be required in the future. This request was granted by a law of April 29, 1816, but un- fortunately the phraseology of the act was such that the judges could claim that it would be of no effect after the close of the following session of the legislature, although the obvious intent of congress was merely to limit those parts of the law making specific provisions for the time being and to leave the legislature absolutely free to regulate the judicial system of the territory in the future. The interpretation of the judges, if accepted, would have had the effect of throwing the question back into the same situation as before the passage of the United States law of 1815, with only the brief and doubtful language of the Ordinance of 1787 to fall back upon.
At the first session of the third territorial legislature, a com- mittee of the house on the "state of the Judiciary" reported a bill "to establish circuit courts of their own creation; to give a salary of about $800-to have two judges; and to hold three courts in each county." This bill, if enacted, would have relieved the United States judges of circuit work entirely, but the mem- bers of the legislature felt that the people of the territory should not be called upon to pay for service which they had a right to demand of the United States judges. Another bill was substi- tuted, therefore, which practically continued the system then in force under the United States statute, and this was enacted into a law. Judges Thomas and Towles held courts in their circuits in accordance with this act although the former expressed doubts of its validity, but Judge Sprigg absolutely refused to recognize the act on the ground that the United States law had expired and that the territorial act was a violation of the ordinance. In March when he should have been making his first round of counties, he was on his way to Maryland. He returned to the territory in October and shortly afterward announced his re- fusal to obey the law. As a result the people of the circuit as- signed to him were deprived of facilities for the determination
Two FLINTLOCK DUELING PISTOLS
A BEAR TRAP. THE PISTOL WAS LOADED, THE BARBS PUSHED TOGETHER AND BAITED WITH MEAT AND THE HANDLE FASTENED TO A TREE OR STAKE. WHEN THE BEAR PULLED AT THE BAIT, BOTH BULLETS WERE FIRED, AND THE BARBS SPREAD OUT, CATCHING HIM IN THE MOUTH OR THROAT
GUN USED BY WESTERN TRAPPERS [Originals of these weapons in Missouri Historical Society, St. Louis]
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of lawsuits, and criminals went untried.219
When the same legislature met for its second session in Decem- ber, 1817, it was obvious that something must be done to relieve the situation. Representatives Bradsby and Matheny of St. Clair opposed any concession to the judges and advocated "an appeal to that tribunal which is competent for that purpose." This would have meant more delay, however, and the majority of the legislature appears to have been governed by expediency. The first bill considered would have reestablished the old courts of common pleas but this was killed in committee of the whole house and a measure was adopted similar to the one which failed to pass in the first session. This provided for two circuit judges appointed by the governor, with salaries of a thousand dollars a year. The United States judges were relieved of all circuit duty and required to hold only four general courts a year, two at Kaskaskia and two at Shawneetown. "The object of this act," commented the editors of the Intelligencer, "is to remove the in- conveniences under which the people labor, in consequence of the refusal of one of the U. States Judges to act, and because it is believed to be a better system than to allow the same Judges to hold courts of original jurisdiction, and of appellate jurisdic- tion also."220 That the legislature was not entirely subservient to the judges is indicated by the fact that it adopted resolutions requesting the delegate in congress to lay before the house of representatives charges against Judge Sprigg for his refusal to hold courts as required by the territorial law and for absenting himself from the territory "for an unreasonable time."221
219 Street to Kane, March 31, 1817, in Chicago Historical Society manu- scripts, 52 :167; Intelligencer, December 4, 11, 18, 1816, October 23, Novem- ber 6, 1817.
220 Intelligencer, January 13, 1818. See also, Ibid., December 25, 1817; Laws of Illinois Territory, 1817-1818, p. 90-98. This act also restored the "Justices' Court" composed of all the justices of the peace in each of the counties, such as had existed from 1809 to 18II.
221 Intelligencer, January 13, 1818. According to Edwards, History of Illinois (28), Richard Graham was appointed judge April 20, 1818. If this is correct Sprigg. must either have resigned or have been removed. At the first session of the first general assembly of the state in October, 1818, he failed in an attempt to secure a nomination for the office of United States district judge for Illinois. House Journal, I general assembly, I session, 28
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When in November, 1817, the question of advance to state- hood was suddenly thrust before the people of Illinois, the polit- ical situation may be summed up as follows : two coteries of poli- ticians, the one led by Edwards and the other by Thomas and Kane, were opposing each other in a contest of several years standing over the patronage and the judiciary; Menard, Bond, and others of the old established politicians, relying on their personal popularity, refused to align themselves with either of the factions; while the people, a simple people concerned prin- cipally with local interests and the advancement of material prosperity, readily gave their votes to any man who had won their personal liking. Besides these there was a small band of antislavery men watching and waiting for the opportune mo- ment in which to free Illinois from any semblance of slavery.
CHAPTER VIII
THE MOVEMENT FOR ADMISSION
The undemocratic features of the American territorial sys- tem have frequently proved unpalatable to the people of the territories. Thus the house of representatives of Indiana terri- tory on October II, 1808, adopted resolutions requesting con- gress to permit the delegate and members of the council to be elected by the people and to repeal "that part of the Ordinance which vests in the Governor of this Territory an absolute nega- tive on all acts; and also that part which confers on him the power of proroguing and dissolving the General Assembly."222 As has been already noted congress passed an act in 1809 grant- ing the first plea of the petitioners, but leaving the powers of the governor unchanged.
The still more democratic form of government allowed to Illinois territory by the act of 1812 was unsatisfactory to the members of the legislature, and in 1814 a memorial was drawn up praying for the repeal of the clause in the ordinance which gave the governor an absolute veto. "To freemen," it reads, "this clause wears the aspect of slavery-vesting our Executive with a Despotism that can frustrate the most deliberate and well digested measures of our Council and House of Repre- sentatives. . The good people of this Territory have the privilege, the trouble and the vast expense of electing and send- ing Representatives in a Legislative Capacity to convene and to consult together for the public good but by their mutual and most elaborate exertions they become not law-makers but only
222House Files, October 19, 1808.
(207)
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recommenders of laws."223 Two years later, January 13, 1816, another memorial, much more moderate in tone but to the same effect was sent to congress. This asked not only that the execu- tive veto be abolished, but also that the legislature might have a part in the appointive power. Congress denied the request, and the issue reappeared in the campaign of the following summer. A writer in the Intelligencer, who signed himself "Aristides" de- plored "the colonial and degraded state of this country, under the government of the Ordinance, that accursed badge of des- potism, which withholds from the people, the only true source of all power, a participation in those rights guaranteed by the constitutions of every state in the union." The voters of the territory were urged to see to it that the delegate to be elected should "advocate a redress of colonial grievances, and honestly exert his influence to obtain that change (so long withholden) which will place us on that proud eminence of freemen."224
Apparently "Aristides" had in mind merely a modification of the territorial government for the time being; but he went on to state that "the present rapid influx of population, that grow- ing and prosperous state of the country, justifies the belief that it will not be more than 3 or 4 years before we will burst the chains of despotism, by which we are now bound, and stand a sovereign and independent state." The people were urged, therefore, "to begin to think and talk about that form of state government that so soon must take place."
The editors of the Intelligencer apparently considered that "a redress of colonial grievances" could come only with transition to statehood, for in their comment on the communication they declared that they considered "the question not very important at present, as the population of the territory will not in all prob- ability, within the time for which the present delegate is to be elected, entitle us to the redress alluded to. So soon as the pop- ulation is sufficient we hope that those evils will be obviated by a state government."225 There is, however, no evidence that
223 Miscellaneous Assembly Papers, December 19, 1814, secretary of state's office.
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