USA > Indiana > A history of Indiana from its exploration to 1850 > Part 12
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A fourth series of claims dated from the period of the Virginia government, 1779-1790. Although Virginia ceded the land to the nation in 1783, the government instituted by Col. John Todd was not superseded until the arrival of Sec- retary Sargent in 1790. However, General Harmar stopped the granting of land upon his arrival at Vincennes in 1788.
When Todd left Vincennes he appointed Col. J. M. P. LeGrand his lieutenant. Like the commanders before him, Colonel LeGrand granted land liberally to all new settlers. In his absence the same power was assumed by the court. The members of this court, Francis Bosseron, Louis Ede- line, Pierre Gameline and Pierre Querez, in their letter of explanation to Sargent, said they had been instructed to apportion land to all new settlers according to their needs. They insisted that they followed what they considered the
11 American State Papers, Public Lands, I, 5. A full list of the settlers at Vincennes for 1783 is there given.
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law and their duty. This latter statement does not stand criticism, since they granted to each other all the public land claimed by the town, a quantity estimated at 10,000 square miles.
This humorous grant later caused considerable trouble. Land speculators, by whom the west has always been in- fested, bought up these claims, had them duly recorded, and sold the titles thus obtained to innocent settlers for what- ever they could obtain. As much as 1,000 acres would be given for a horse or gun. Gov. William H. Harrison wrote to Secretary of State James Madison January 19, 1802, that he was expecting 500 of these defrauded people to come into the territory to settle during the coming spring.
The lieutenant of Kaskaskia had likewise made numer- ous land grants in the Illinois Country. It was impossible to give any credence to the claims. Todd's instructions positively forbade him making land grants or authorizing any one else to do so. There was no evidence that Todd authorized it. Moreover, by a proclamation issued at Old Kaskaskia, June 15, 1779, he warned all persons against making settlements, especially on the bottom lands of the Mississippi, Ilinois, and Wabash rivers.12 This was in- tended to keep out the squatters, whose manner of locating land was just then causing so much confusion in Kentucky. It is hardly necessary to state that all these claims under the Virginia regime were rejected by Sargent.
A fifth series of claims was founded on the act of Con- gress of March 3, 1791. This act followed the recommenda- tion of Secretary Sargent made in his report to Jefferson July 31, 1790, and confirmed a grant, previously made, of 400 acres to every head of a family residing in the Illinois Country in 1783. Besides these grants to heads of families, of whom there were 143, the act confirmed the grants made to actual settlers by the Piankeshaws and the grant of 5,000 acres to the town and known as the commons.
To each militiaman, enrolled August 1, 1790, who had not received land under any of the former provisions there
12 The proclamation is given in American State Papers. Public Lands, I, 11.
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were given 100 acres. This was not in payment for any services they had rendered but as an earnest for services soon to be needed in the approaching Indian War. Lastly, those persons who in good faith had improved their home- steads, thinking their titles good, were given a title.
These various conflicting titles seemed to defy adjust- ment. A great many who had been heads of families in 1783 had died or moved away during the hard times follow- ing Clark's conquest. Of the 240 or more claims allowed under this law, only a few were in the hands of the original claimants. Francis Vigo held fifty-eight of these claims and others held quite as many.13
Secretary Sargent appointed four commissioners, James Johnson, Henry Vanderburg, Francis Vigo and Robert Buntin, to pass on the claims. All of these men were placed in the delicate position of judging the validity of their own titles. Johnson held seven, Vanberburg, thirty, Vigo, fifty-eight, Buntin, seventeen. However, judging from the reports which the commissioners themselves made, the adjustment gave general satisfaction.
When the land office at Vincennes was established in 1804, the register and receiver, John Badollet and Nathan- iel Ewing, who superseded the old commissioners, had some trouble with Judge Henry Vanderburg, who, it seems, in at least one instance, had manufactured a title to 400 acres of land. All, no doubt, got as much land as they were legally entitled to and most of them got more. In going beyond the law the government was not more generous to these pioneers than they deserved. The work of locating, sur- veying, and finding the rightful owners to these claims oc- cupied the attention of the territorial government as well as a great deal of that of the United States land office till 1807. A special complaint of the claimants around Vin- cennes was the payment of the high fees charged by the sur- veyors. Congress finally put an end to these by paying the surveyors out of the national treasury.14
13 See Sargent's Report, American State Papers, Public Lands, I, 5-11. 14 See the pathetic letters of P. Gibault in American State Papers, Public Lands, I, 16.
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§ 25 INDIANA A PART OF KNOX COUNTY
IN addition to adjusting the land claims, Acting Gover- nor Sargent had been instructed to lay off a county around Vincennes. This was done June 20, 1790. It was named Knox, in honor of the Secretary of War. Its ample bound- aries were, on the east, the great Miami, on the south, the Ohio river to Fort Massac, on the west, St. Clair county, and the Illinois river to the junction of the Chicago and the Kankakee, thence due north to Canada, on the north, Canada.
John Small was appointed sheriff and became the execu- tive head of the new county. The militia was organized and placed on an active footing under command of Maj. Francis Vigo. Courts were organized, common pleas, quar- ter session, and probate. Andrew Heath was appointed a justice and John Mills a notary. Samuel Baird was ap- pointed public surveyor. Having organized a complete county government for these poor, ignorant French pea- sants, who were better acquainted with the manorial gov- ernment of the Middle Ages than that of the English county, Secretary Sargent set out for Fort Washington August 21, 1790. This was the first real, organized, civil government on the soil of the present State of Indiana. Its jurisdiction embraced all of Indiana and large parts of Ohio, Illinois, Wisconsin and Michigan. There was noth- ing striking or novel in its organization. All the common elements of the English county government were present. The chief functions were the preservation of order and the protection of the people. As was necessary the little com- munity was put on a war footing.
The judges and secretary found moral conditions at Vincennes rather startling. Drunkenness and gambling were common and murders occurred almost daily. The judges adopted laws which they hoped might remedy this. The first law, adopted July 19, 1790, forbade anyone selling liquor to the Indians in the territory, and forbade aliens trading with them at all. Most of the disorder was con- nected directly or remotely with the Indian trade. The sec-
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ond law, enacted seven days later, made it unlawful to sell or give liquor to the soldiers, and also forbade the soldiers to sell or pawn their arms, ammunition or clothing. A third law, adopted August 4, reciting that gambling was the curse of the little community, prohibited every kind of gam- ing, and made illegal all gambling debts and contracts. The latter act also limited the use of firearms.15
The weight of the government was too much for this ancient community that had never felt a need for more than the advice of the priest and the will of the commandant. An early frost in the fall of 1790 killed most of their crops. The expense of having their land surveyed, regular service in the militia, the salaries of all the newly appointed offi- cers; all of these extraordinary expenses coming together, and no money in the country to pay with, discouraged the French.16 This free self-government, so loudly praised by the Virginians, was not entirely to their liking. Nor were they reconciled as the fact slowly dawned upon them that the good old times of the "old regime" were gone forever. The French citizens showed little capacity for political af- fairs and the offices were soon all in the hands of the Vir- ginians. Excepting Colonel Vigo, who commanded the mili- tia, and Robert Buntin, the recorder, no Frenchman held office for any considerable period.
§ 26 GOVERNMENT UNDER THE JUDGES
As soon as the Ordinance of 1787 was proclaimed in the territory, the settlers on the Wabash and in Illinois became alarmed for their slaves. The French residents had been allowed to hold slaves under the kings of France and Eng- land. These rights had not been questioned by the Vir- ginia government and no one expected any interference by the national authority. St. Clair gave it as his opinion that the Ordinance was not retroactive and hence would not affect slaves held at the time but would prevent more being
15 St. Clair Papers, II, 167.
16 Dillon, History of Indiana, 224; St. Clair Papers, II, 148.
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brought into the country. This reassured the people but did not entirely allay their fears, as it was a question for the courts, and all knew the judges were hostile to the prac- tice of slavery. A few masters, fearful of the new law, moved with their slaves over into the Louisiana Territory, where they were hospitably received by the Spanish gover- nor. Other masters retained their slaves but made them in- dentured servants, hoping in that way to avoid the law.17
Trouble soon arose with the judges on the slavery ques- tion. Henry Vanderburg, one of the most influential of the new settlers, had, apparently, brought slaves with him into the territory. When Judge George Turner, of the general court, arrived he and Vanderburg were soon involved in a quarrel. Vanderburg was probate judge, justice of the peace, and had lately been appointed one of the three com- missioners to sell liquor to the Indians. Moreover he was a friend of Governor St. Clair. Capt. Abner Prior, of the regular army and a deputy superintendent of Indian affairs, was also involved. In a letter to the governor, Judge Tur- . ner charged these men with some mysterious crime, which he did not name but promised to prove before the court. The men were no doubt guilty of that same species of rob- bery and peculation that has always disgraced our Indian agencies and, besides, Vanderburg had aided in defying the officers of Judge Turner's court, but the foundation of the trouble lay deeper. It was the judge's attitude on the slavery question.18
From the beginning of their service there had been friction between the governor and judges. The Ordinance of 1787 limited the lawmaking power of the judges to choos- ing statutes already in operation in some State. When they failed to find a suitable statute they did not hesitate to construct a new one. The governor called them to task for their liberty and a spirited correspondence was waged.
17 St. Clair Papers, I, 120, note 2, where the matter is well summed up; Dunn, Indiana, a Redemption from Slavery.
18 St. Clair Papers, II, 318, Governor St. Clair's letter to Luke Dec- ker; 325, Judge Turner to Governor St. Clair; 330. Governor St. Clair to Judge Turner.
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Congress favored the governor, but the judges enforced them as if they had been approved.19
As mentioned before, the governor favored Vanderburg in his quarrel with Judge Turner. The latter evidently be- lieved, though the matter was never before his court, that the Ordinance, once for all, put an end to slavery in the ter- ritory. Not only did he think it prohibited slaves from being brought into the territory but that it freed those al- ready there. Although there were not more than two score slaves in Knox county at the time, their loss would have been considerable in the eyes of their owners. Governor St. Clair had already written Luke Decker, of Vincennes, that the Ordinance was not meant to free the slaves. Turner was an imperious self-willed man, and opposition made him careless of the rights of others. He soon found himself confronted by a grand jury indictment and a memorial to Congress praying for his impeachment. The memorial was the work of William St. Clair, an officer in the Illinois Country and a kinsman of the governor. Congress deemed it best not to try the impeachment process on account of witnesses having to travel so far, and ordered the case to be tried by the courts. Turner resigned and left the terri- tory, thereby ending the suit.20
The judges were not at any time above criticism and the governor not averse to fault-finding. In a letter to the President, December 15, 1794, he called attention to the personnel of the court, composed at the time of Gen. Rufus Putnam, a director of the Ohio Land Company, Mr. Symmes, owner and agent of the Miami Company, and Mr. Turner, who held a large grant of land from Symmes and whose title depended on the validity of Symmes' title. A large part of the litigation that came before the court arose out of land deals to which these companies were parties. It is only necessary to call attention to the conditions to show how odious such a court would become.
The judges often engaged in land speculations. One of
19 St. Clair Papers, II, 325, 353, seq; American State Papers, Miscel- laneous, I, 82, 116; Burnet, Notes on the Northwest Territory, 40.
20 American State Papers, Miscellaneous, I, 151, 157.
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these embittered the relations of the governor and two of the judges throughout this period and divided the settlers of Ohio into two parties. Judge Symmes had contracted for a large tract of land from the old Treasury Board. The purchase was not completed and the new Congress acted slowly. The original claim of the judge was to a tract ex- tending up the Ohio twenty miles from the mouth of the Great Miami. The judge was not content with the first boundaries and soon extended his claims, at the same time sending his surveyors into the disputed territory. Gover- nor St. Clair, in a public proclamation, warned him and all others to keep off of the land. Among the settlers who had bought lots of this disputed land from Symmes was Judge Turner, who, as noted above, proceeded to improve the land after personal notice by the governor that he had no title. There is apparent in these transactions by the judges that same disregard of justice which has characterized all land speculators in their dealings with the United States.21
The judges had a difficult and important work to do. It was an irksome and unpopular task to lay the foundations of government in this western world, and subject a lawless people, even in a small degree, to the restraints of laws and courts. The law required that judges be resident freehold- ers of five hundred acres. Their meagre salaries of $800 each would hardly pay expenses on a circuit embracing Mar- ietta, Detroit, Cincinnati, Vincennes and Kaskaskia. The roads were mere bridle paths, which led for hundreds of miles through the Indian country. There were no taverns and the nights were spent on the lonely traces, in the dirty wigwams of the hospitable natives, or in the solitude of the forest with no protection but their blankets. In fair weather in spring and autumn the trips were pleasant, but in the heat of summer and cold of winter the hardships tried the endurance of the strongest. Judge Parsons lost his life in an attempt to swim a flooded stream on one of these trips.
21 The Correspondence is given in St. Clair Papers, II, 339, seq.
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Liberal praise is due these men who labored earnestly for the welfare of the rising commonwealths.22
§ 27 CIVIL GOVERNMENT OF THE NORTHWEST TERRITORY
THE attention of the white settlers was almost complete- ly absorbed by Indian affairs until the Treaty of Greenville, 1795. As indicated before, the judges had at different times enacted statutes where it was absolutely necessary. In this the judges had exceeded their powers. All such statutes had been disapproved by the House of Representa- tives February 16, 1795. This rebuke by Congress brought the judges to a realization that they were not a sovereign body.23
The governor called the judges into session at Cincin- nati immediately after the signing of the Greenville Treaty, when they at once entered upon the selection of a full code of laws for the territory. Of the thirty-eight statutes adopted, twenty-six were from Pennsylvania, six from Mas- sachusetts, three from Virginia, and one each from New York and New Jersey. These laws, printed in Cincinnati, have since been known as the Maxwell Code, from the name of the printer. It is claimed that this was the first job printing done in the territory. The code, with the addi- tion of a few statutes adopted in 1798, remained the only laws for the territory until the meeting of the first legisla- ture in 1799.
The government of the territory was intended to be as simple and inexpensive as possible. At its head stood the governor, who was chief executive and commander of the militia. He was also a member of the general court for adopting laws. Next were the judges, three in number, appointed by the President for an unlimited term, and all but independent of the governor. Their highest duty was the adoption of laws from codes in force in other States. This latter limitation they disregarded and over the protest of the governor enacted laws which seemed best for the ter-
22 The best account of the early courts is in Burnet's Notes on the Northwest Territory.
23 Annals of Congress, Third Sess., 1227.
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ritory regardless of any restraint. Later, when Congress disapproved these, the judges at least chose the titles from older codes, but they still changed the body of the statute to suit territorial conditions. The practicing attorneys often complained of this illegality and at times threatened to test the constitutionality of the laws, but the reflection that the same court that made the laws was a last resort in testing their validity, caused the lawyers to abandon their pur- pose.24
This general court, all members sitting together or one alone, was the highest judicial body of the territory. Its decisions could not be reviewed either by Congress or the Supreme Court. It had original and appellate jurisdiction in all civil and criminal cases, and exclusive jurisdiction in divorce trials. It was a common law court without chan- cery powers. It held regular sessions at Cincinnati in March, at Marietta in October, and at Detroit and the west- ern counties when the judges could reach these places, the exigencies of the Indian war and of traveling making the times extremely uncertain.
The following experience of Judge Jacob Burnet and Arthur St. Clair, son of the governor, will give some idea of the life of judges and lawyers of that period. In Decem- ber, 1799, Mr. St. Clair and Mr. Burnet set out on a trip from Cincinnati to Vincennes on professional business, in- tending to remain and practice law if the location were promising. Mr. Morrison, who was on his way from New England to Kaskaskia, with a view to settling on the Missis- sippi, accompanied them. They purchased a small Ken- tucky boat, sometimes called an ark, in which they em- barked with their horses and provisions. In the afternoon of the fourth day they arrived at the Falls of the Ohio, where they left their boat, mounted their horses and pro- ceeded on their journey. About nine o'clock in the evening they discovered, at a little distance from the path they were traveling, the camp of four or five Indians, which they ap- proached. After having shaken hands with the Indians, they procured a brand of fire, proceeded some distance
24 Burnet, Notes on the Northwest Territory, 312.
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further on their way, and halted for the night. Having brushed away the snow from the spot they had selected for a camp and collected a good supply of wood for the night they kindled a fire, took some refreshments, wrapped them- selves in their blankets and laid down to sleep.
The next night they encamped in a rich valley, where they found an abundance of fallen timber, thus enabling them to keep up a warm fire through the night, before which they slept very comfortably till morning. During the night a couple of panthers, attracted by the light of the fire, approached sufficiently near the camp to serenade the travelers with their unwelcome music, but kept a respectful distance. The next day they encountered a severe snow storm, during which they surprised eight or ten buffalos, sheltering themselves from the storm behind the top of a beech tree full of dead leaves, which had fallen by the side of the "trace" and which hid the travelers from their view.25 The tree and the noise of the wind among its dry leaves prevented the buffalos from discovering the men till they had approached within two rods of the place where the animals stood. The latter then took to their heels and were soon out of sight. One of the men drew a pistol and fired but without visible effect. That evening they reached White river, where they found an old cabin, deserted by its builder, in which a large wildcat had taken shelter, and seemed at first disposed to vindicate its right of possession. It was, however, soon ejected, and the travelers entered and occupied the premises without molestation during the night and without attempting to do personal violence to the ten- ant whom they had driven out. The next morning they ar- rived at Post Vincennes, where they tarried about a week. In the meantime Mr. Morrison proceeded westward. As soon as Messrs. St. Clair and Burnet had closed their busi- ness they set out for home, having abandoned the idea of engaging in the practice of law in that county, from a con- viction that the profits of the business would not be an ade-
25 The travelers were following the famous "Buffalo Trace." For a description of it see Wilson, History of Dubois County, 100.
GOVERNMENT OF NORTHWEST TERRITORY 145
quate compensation for the fatigue and loss of time to which it would subject them in making the trip from Cincinnati.
Before they left the post, Colonel Vigo furnished them with provisions for their return journey. These included a complete apparatus for striking and kindling fires. No oc- currence of importance took place on the first day of the return trip. With the second began a snowstorm which con- tinued during the day. About noon the lawyers halted to feed their horses and partake of some refreshments. The snow was brushed from a log by the side of the "Trace," where they sat down and dined sumptuously on a frozen chicken, a biscuit and some old peach brandy, put up for them by their Vincennes friends. It was their calculation when they left Vincennes to camp that night on Blue river, but being mistaken as to the distance they did not reach the place till several hours after dark. The weather having then moderated, it commenced to rain, and the rain con- tinued to fall during the greater part of the night.
As this crossing place was the best ford on the river it had been the common encamping ground of travelers be- tween the Falls and Vincennes, from the establishment of the Post. As a matter of course all the fuel that could be conveniently obtained had been used up. Nothing remained in the vicinity but the larger sized trees, which travelers, after a tedious day's journey, were not disposed to fell even though they might have the means. After rambling through the woods in the snow six or eight inches deep, they suc- ceeded in gathering together at the place selected for their camp some dry limbs which had recently fallen. There they kindled a fire, sufficient to boil a pot of coffee and thaw a frozen roast chicken; but by the time their supper was fin- ished their stock of fuel was exhausted, and their fire went out. Thus situated, their prospects for the night were any- thing but cheering, the ground covered with snow, the rain falling plentifully, and their fire extinguished.
Determined, however, to make the best of their situa- tion, they scraped away the snow, and with their coats and blankets wrapped themselves up as snugly as they could, and laid down for the night. Their saddle-bags served as
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pillows and their saddles were so placed as to shelter their heads. In this manner they slept as soundly as circum- stances permitted till morning. When they arose from their beds they were as wet as they possibly could have been had they slept in the bed of the river. Having no fire, they ate a cold breakfast, tempered it with a little peach brandy, then saddled their horses and started for Louisville, where they arrived about dark on Christmas evening. Being very much fatigued they partook of a good supper and retired to comfortable beds.26
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