A history of St. Joseph County, Indiana, Volume 1, Part 19

Author: Howard, Timothy Edward, 1837-1916
Publication date: 1907
Publisher: Chicago, New York, The Lewis publishing company
Number of Pages: 826

USA > Indiana > St Joseph County > A history of St. Joseph County, Indiana, Volume 1 > Part 19

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HISTORY OF ST. JOSEPH COUNTY.

not to exceed nine justices of the peace, in each county ; and the number of terms of com- mon pleas court was increased from two to four in each year. It is to be remembered that there was then but one county for all Indiana. On July 2, 1791, an act was passed requiring that whenever persons enrolled in the militia should assemble at any place of public worship, they should arm and equip themselves as if marching to engage the enemy. By an act published August 1, 1792, a licensed tavern keeper or retailer of liquors was required to affix a sign on the front of his building, with the words, in large letters, "By authority, a tavern"; or "By authority, a retailer." On August 1, 1792, laws were enacted for opening and regulating highways ; and also for building court houses, jails, pil- lories, whipping posts and stocks, in every county.

An act, published on the same day, required attorneys on being admitted to practice law to take the following oath: "I swear that I will do no falsehood, nor consent to the doing of any, in the courts of justice ; and if I know of any intention to connit any, I will give knowledge thereof to the justices of said courts, or some of them, that it may be pre- vented. I will not wittingly or willingly pro- mote or sue any false, groundless or unlaw- ful suit, nor give aid or counsel to the same; and I will conduct myself in the office of an attorney within the said courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my client. So help me God."

By an act adopted in the summer of 1795,. the common law was formally adopted, and the laws for the decision of canses in the courts of the northwest territory declared, in the following words: "The common law of England, all statutes or acts of the British parliament made in aid of the common law, prior to the fourth year of the reign of King James the First, (and which are of a general nature, not local to that Kingdom,) and also the several laws in force in this territory,

shall be the rule of decision, and shall be con- sidered as of full force, until repealed by leg- islative authority, or disapproved of by con- gress."

VI. INDIANA TERRITORY.

See. 1 .- EXTENT OF THE TERRITORY .- By an aet approved May 7, 1800, congress provided, "That from and after the fourth day of July next, all that part of the territory of the United States northwest of the Ohio river, which lies westward of the line beginning at the Ohio, opposite to the mouth of Kentucky river, and running thence to Fort Recovery, and thenee north, until it shall interseet the territorial line between the United States and Canada, shall, for the purpose of temporary government, constitute a separate territory, and be ealled the Indiana Territory." The aet provided further, "That there shall be established within the said territory a gov ernment in all respects similar to that pro- vided by the ordinance of congress, passed on the thirteenth day of July, 1787, for the gov- ernment of the territory of the United States northwest of the river Ohio; and the inhabit- ants thereof shall be entitled to, and enjoy, all and singular, the rights, privileges and advantages granted and secured to the people by the said ordinance." A further provision of the aet creating the Indiana territory was, "That so much of the ordinance for the gov- ernment of the territory of the United States northwest of the Ohio river, as relates to the organization of a general assembly therein. and prescribes the powers thereof, shall be in force and operate in the Indiana territory. whenever satisfactory evidence shall be given to the governor thereof. that such is the wish of a majority of the freeholders, notwith- standing there may not be therein five thous- and free male inhabitants of the age of twen- ty-one years and upwards." But until there should be such five thousand inhabitants the representatives in the general assembly, if one should be organized, should be not less than seven nor more than nine; to be apportioned

HISTORY OF ST. JOSEPH COUNTY.

by the governor among the several counties, agreeably to the number of free male inhab- itants of the age of twenty-one years and up- wards. in each. As to the eastern boundary line, as fixed in the act, it was further pro- vided. "That whenever that part of the terri- tory of the United States which lies to the eastward of a line beginning at the month of the Great Miami river, running thence due north to the territorial line between the United States and Canada, shall be erected into an independent state. and admitted into the union on an equal footing with the original states. thenceforth said line shall be- come and remain permanently the boundary line between such state and the Indiana ter- ritory." A final provision was that. until the general assembly should determine otherwise. "Saint Vineennes, on the Wabash river, shall be the seat of government for the Indiana territory."

The Harrison mansion is the name given to the venerable building in which the legis- lature of the territory held its sessions and in which the governor resided and where the general court was held. The building is still in a good state of preservation; and efforts have often been made to have the state secure it as a historical museum.

The house, from an architectural point of view, as well as from its massiveness, seems remarkable. At the time it was erected its situation was a wilderness. far from civiliza- tion, and to get the materials for its con- struction. the glass, iron, etc .. meant a year or more of time before they could be delivered at Vineennes. Historical societies have en- deavored to have it kept as a lasting monu- ment to the memory of those who built so well and as a reminder that this was the birth- place of government. religion and education in the west. The building is two stories high. with a large attic, and a basement under the entire place. It was completed in 1805. The eeilings are thirteen and one-half feet high and the rooms are spacious. The walls are of brick and inside and out are eighteen inches

thick. The glass in the windows came from England, and it took two years to have it de- livered. The wood was sawed with the old- fashioned whip-saw, and all the nails were hand-forged on the grounds. The woodwork is hard-paneled. finished with beading and is of solid, clear black walnut. It is said that the walnut in the house today is worth a small fortune.

So came Indiana into existence, with a capi- tal of her own, and with even a freer form of government than that of the northwest ter- ritory, prior to its legislative stage. The area of this new Indiana territory ineluded all of the present state of Indiana, except a small wedge-shaped section in the southeast part of the state, east of a line running from a point on the Ohio opposite the mouth of the Ken- tueky river, northeasterly to Fort Recovery. in the state of Ohio, this line being the old Indian boundary line, between those points named in the treaty of Greenville. The new territory ineluded also a norrow strip less than three miles in width on the west side of the state of Ohio, north of Fort Recovery, and lying between the north and south line through Fort Recovery and the present boundary of the two states." The territory included besides, all of the state of Michigan lying west of the north and south line through Fort Recovery : also the whole of Illinois and Wisconsin : and so much of Minnesota as lies east of the Mississippi river. The limits of the Indiana territory, for a time, extended even west of the Mississippi. By an act approved March 26. 1804. congress attached to Indiana all that part of Louisiana west of the Missis- sippi and north of the thirty-third degree of north latitude, under the name of the District of Louisiana. At a session of the governor and judges of Indiana territory, held at Vin- cennes, beginning October 1, 1804, a number of laws were adopted for the District of Louis- iana. During the following year. however. by an act of congress approved March 3. 1805. this district was organized into a separate ter- a. Drake's Hist. American Indians, Chap. XIV.

HISTORY OF ST. JOSEPH COUNTY.

ritory." This was truly an imperial domain. Detroit, Sault Ste. Marie, St. Ignace, with eastern Michigan and all Ohio, remained in the northwest territory, until the admission of Ohio as a state of the Union, November 29, 1802, when the northwest territory, as a political division, ceased to exist. At that date also, congress attached to Indiana the remainder of Michigan, or Wayne county, as it was then called: and, in 1803, William Henry Harrison, as governor of the Indiana territory. assumed jurisdiction over all of Michigan, and extended the limits of Wayne county to Lake Michigan. Thereafter, until the formation of the territory of Michigan, June 30, 1805, Detroit. Sault Ste. Marie, and St. Ignace, as well as the sites of Ann Arbor, Grand Rapids, Kalamazoo and Niles, with all the valley of the St. Joseph, were in Indiana. So much of the ruins of old Fort St. Joseph's, if any. as remained after the Spanish invasion of our valley. in 1781, were in the territory. Chicago and St. Lonis were then in Indiana: and so were the sites of Milwaukee, St. Paul, Minneapolis and Duluth. Our inland sea, Lake Michigan, was wholly within the Indiana territory. The ambition of Napoleon is said to have been to make the Mediterranean a French lake; and he came near succeeding. La Salle made Lake Michigan a French lake; it was afterwards a British lake; and now. it is the only one of the great lakes that is wholly Ameriean; in the first years of the nineteenth century, it was an Indiana lake, surrounded on every side by Indiana ter- ritory.

See. 2 .- ORGANIZATION OF THE TERRITORIAL GOVERNMENT .- On May 13, 1800, the appoint- ment by the president of William Henry Harrison, of Virginia, as first governor of the Indiana territory was confirmed by the senate. Harrison had been secretary of the northwest territory. and also delegate in congress from that territory. On the next day, John Gibson, of Pennsylvania, a pioneer of distinction. was appointed first secretary of the territory.

a. Smith, Hist. Indiana, Vol. 1, p. 199.

It was to Secretary Gibson that the great chief Logan, in 1774, delivered his celebrated speech, known to every school boy.ª William Clark, Henry Vanderburg and John Griffin were appointed the first judges of the terri- tory. Harrison did not come to assume his office until January, 1801. John Gibson, the secretary, arrived at Vincennes early in July, 1800, and, as acting governor, proceeded to make appointments of territorial officers and to provide for the administration of the affairs of the new government, which was formally organized July 4. 1800. The first entry on the executive journal, dated at Saint Vincennes, July 4, 1800, reads as follows: "This day the government of the Indiana Territory commenced. William Henry Har- rison having been appointed governor; John Gibson, secretary ; William Clark, Henry Vander Burgh and John Griffin, judges in and over said Territory." This was the second time in the history of our commonwealth that July 4th, proved to be a notable day. It was on July 4, 1778, that George Rogers Clark surprised and captured Kaskaskia, then the capital of the British possessions northwest of the Ohio. thus opening up the first page of our history, as a part of the American Union ; and now again, on July 4, 1800, was organized the government of Indiana. as all incipient commonwealth of the republic.

On January 12. 1801. Governor Harrison having arrived at Vincennes and issued proc- lamation therefor, the governor and judges convened in legislative session and adopted laws for the government of the territory. This was the first body ever convened within the present limits of Indiana to make laws for our commonwealth. The ordinance of 1787 continued in force, so far as applicable, as also the laws already adopted for the gov- ernment of the northwest territory before the division.

See. 3 .- THE FIRST INDIANA COURTS .- The new court, called the General Court of the a. Dillon, Hist. Indiana, p. 408; Smith, Hist. Indiana, p. 198.

HISTORY OF ST. JOSEPH COUNTY.

Indiana territory, organized and held its first session at Vincennes, March 3, 1801. The court record opens as follows : "At a General Court of the Indiana Territory, called and held at Saint Vincennes the third day of March, in the year one thousand eight hun- dred and one. The commissions of the judges being read in open court, they took their seats, and present: William Clark, Henry Vander Burgh and John Griffin, Judges. Henry Hurst, Clerk of the General Court, having produced his commission from the governor and a certificate of his having taken the oath of allegiance and oath of office, took his place. John Rice Jones, Attorney-Gen- eral, produced his commission, and a certifi- cate of his having taken the oath of allegiance and oath of office." One of the orders made on this first day of court is of much signifi- cance. It was for the examination of certain persons "for counsellor's degree, agreeable to a law of the Territory." Among the persons so ordered to be examined as to his proficiency in the law was the Attorney-General himself, John Riec Jones. After obtaining their degree as counsellors, those distinguished gentlemen were required to appear at subsequent terms of court, to be examined for their second degree, for admission to practice as attorneys- at-law. Now-a-days it is the constitutional privilege of "every person of good moral character, being a voter," to be admitted "to practice law in all courts of justice." Which is the better system in "a government of the people, for the people, and by the people," may perhaps be a subject of debate. One may become a good lawyer, though admitted to practice without examination ; and he may be a poor lawyer, though admitted after the most severe examination. "The fault, dear Brutus, is not in our stars, but in ourselves that we are underlings."

The business of this early supreme court was very light, as compared with the business of the courts of our day. From the organiza- tion of the court, March 3, 1801, until the close of its last term, September 16. 1816,

just before the territorial form of government gave way to the establishment of a permanent state government, two manuscript dockets, or order books, one of 457 and the other of 120 pages were found sufficient to contain all the orders of the court. The court sat at Vincennes from its organization until 1813, when the seat of government was removed to Corydon, in Harrison county.

The general court, unlike the supreme court of our day, had original as well as appellate jurisdiction. The business, however, was usually appellate, the appeals being taken from the several county courts. Yet the most important case that came before the court was an original action for slander, brought by the governor, William Henry Harrison. against one William McIntosh, a wealthy Scotch resident of Vincennes, and said to be a relative of the distinguished Sir James Me- Intosh. The case was tried by a jury selected as follows: Forty-eight men were summoned by elisors, appointed by the court; of these, the plaintiff struck out twelve names, after which the defendant struck out twelve. From the remaining twenty-four a jury of twelve men was drawn by lot. The jury gave the governor a verdict for four thousand dollars. a part of which was remitted and the rest given to charity. The judges of the general court, like the judges of our supreme court in their respective circuits, had power to pre- side in the circuit courts; and we learn that Benjamin Parke, after whom Parke county was named, while judge of the general court. rode on horseback from Vincennes to Wayne county, to try a case of larceny. It is said that his judicial bench on that occasion was a log of wood. The case was one of petit lar- eeny,-exceedingly petty, indeed,-the theft of a pocket knife. The people of those days sought the just enforcement of the law upon the statute books, according to its true intent and meaning, rather than the making of many new laws. A speedy hearing, a fair trial, a prompt acquittal of the innocent, a certain conviction of the guilty, the taking of no

HISTORY OF ST. JOSEPH COUNTY.

man's property without right and the delay of no man in the recovery of what belonged to him,-these things seemed to our simple forefathers the true ends of the administra- tion of justice. They deemed the enforcement of the old laws of more consequence than the making of new ones. To remedy miscarriage of justice, they looked to the courts and to the officers appointed to administer the laws, rather than to the enactment of new laws.

The first judges of the general court were succeeded by Thomas Terry Davis, Waller Taylor, Benjamin Parke and James Seott. The last three occupied the bench until the territorial form of goverment came to a close, in 1816. The most distinguished of the judges, and one of the ablest public men in the history of Indiana, was Benjamin Parke. Soon after the close of his services as judge of the general court, he was appointed first judge of the United States district court for Indiana, serving from 1817 until his death, in 1835. Waller Taylor was also a man of distinction. While judge of the general court he served as major with Harrison at the battle of Tippecanoe. On the organization of the state government, in 1816, he was chosen as one of the first United States senators from Indiana, and served for two terms. James Scott, the third member of the general court at the time of its dissolution, was appointed one of the first judges of the state supreme court, and served for fourteen years. The attorneys-general for the territorial period were three in number,-James Rice Jones, Benjamin Parke and Thomas Randolph. Jones was one of the compilers of the Indiana code of 1807. Disappointed in his political aspirations, he went to Illinois, and after- wards to Missouri. He was a member of the first constitutional convention of Missouri, and afterwards member of the supreme court of that state. Thomas Randolph, the last attorney-general of the territory, was a cousin of John Randolph of Roanoke. He was killed at the battle of Tippecanoe, in 1811. The office of attorney-general ceased to exist from 7

his death until its re-establishment by the legislature, under the new constitution, in 1855. To Benjamin Parke, and to General Washington Johnston, another distinguished lawyer, our supreme court is indebted for the nucleus of its present library,-one of the finest west of New York City. The books of Parke and Johnston upon the shelves of this library are made the more precious by the autographs of those eminent men. The sal- aries of the judges of the general court were seven hundred dollars a year each; that of the attorney-general, at first sixty and after- wards one hundred dollars a year.

The questions brought for decision before the general court of the Indiana territory were in many cases quite different from those that have since engaged the attention of our courts. Legislation itself was different. Many acts now deemed criminal were then either sanctioned by the law, or at least looked upon with indifference or even indulgence. On the other hand, some offenses were then punished more severely than at present. Not only treason and murder, but also arson. horse-stealing upon a second conviction, and rape were punishable by death. Burglary, hog stealing and bigamy, in addition to other penalties, rendered the offender liable to be punished by whipping. But duelling was punishable only by a fine; although all offi- cers, whether legislative, executive or judicial. as well as attorneys-at-law, were required to take an oath that they had not given or ac- cepted a challenge to a duel. In their legisla- tion against corruption in elections, the men of those days seem to have been wiser than some of our modern legislators. They pun- ished the briber, the bribe-giver; while more recent laws, in many cases, have punished only the bribe-taker. Liquor laws also differed widely from our own. Tavern keepers might have their licenses revoked, not only for fail- ing to do their duty towards their guests, as to giving proper attention and providing wholesome food for man and beast, but also for failure to keep on hand "ordinary liquors

HISTORY OF ST. JOSEPHI COUNTY.

of good and salutary quality." Provisions of this kind. in favor of pure food and against adulteration, again seem to be receiving some attention from legislators, both in congress and in the general assembly.

As we have already seen, provision was made for the erection of pillories and whip- ping posts in every county for the punishment of criminals. And not only men, but even women, were publicly whipped for violations of law. Imprisonment for debt was also authorized by the laws of the territory, as it was then generally throughout the United States. Lotteries, on the contrary, now re- garded as not only illegal but even as im- moral, were in those days, rather favored by the law.

Sec. 4 .- LOTTERIES AND SLAVERY IN INDI- ANA .- By an act of the legislature, approved September 17, 1807. the Vincennes university was chartered by the legislature. It is the old- est educational institution of that rank in the state, if not in the west. Among the provi- sions of the charter was one for the raising of twenty thousand dollars "for the purpose of proeuring a library and the necessary philosophical and experimental apparatus" for such university. The trustees of the uni- versity were required to "appoint five dis- creet persons" as managers of the lottery, who were to have power "to adopt such schemes as they may deem proper, to sell the said tickets, and to superintend the drawing of the same, and the payment of the prizes." It was further provided that "said managers and trustees shall render an account of their proceedings therein at the next session of the legislature after the drawing of said lottery." It is clear that our worthy forefathers thought pillories and whipping posts suitable and proper means for the punishment of wrong- doers : and that they were also of opinion that money for the promotion of the higher educa- tion of the people. might properly be secured by the establishment of a lottery. It was not until February 3, 1832, that an act was passed by the legislature making the condnet-

ing of a lottery a misdemeanor; but even in that act, for the purpose no doubt of protect- ing the Vincennes lottery, there was a saving clause in favor of lotteries "authorized by law."" In the constitution of 1851. however, the prohibition was made absolute,-that "no lottery shall be authorized; nor shall the sale of lottery tickets be allowed." But, notwith- standing this distinct declaration in the eon- stitution, added to the previous statutory enactment, the trustees of the university still persisted in keeping up their lottery; and in this practice they were long sustained by the courts. As late as the May term, 1879. of the supreme court, the lottery pro- vision of the Vineennes university char- ter was held to be an inviolable con- tract, which neither the legislature nor even the people, in the framing of their con- stitution, could abrogate; and the Dartmouth college case and other high authority was cited in support of the decision. "We hold," said the court, in Kellum v. State. 66 Ind. 588, "that the lottery established by the board of trustees for the Vincennes university, under the fifteenth section of the territorial law for the incorporation of said university was and is a lottery authorized by law.' " It was not until the May term, 1883, of the court, in the case of State v. Woodward, 89 Ind. 110, that the Vincennes lottery was finally deelared illegal. The opinion in the case was the last written by the eminent jurist, James L. Wor- den ; and followed a then recent ruling of the supreme court of the United States.b

Another illustration of the persistence of customs which have long prevailed in a com- munity, is exhibited in the history of slavery in Indiana. To many persons the statement may be a surprise that human slavery ever existed within the borders of this state. We must remember, however, that, on the eon- quest of the northwest by George Rogers Clark, all this country became a part of Vir- ginia, under the name of the county of Illi-

a. Acts 1831, p. 269.

b. Stone v. Mississippi, 101 U. S. 814.

HISTORY OF ST. JOSEPH COUNTY.

nois. Our territory thus becoming a part of the state of Virginia, slavery had a legal foot- hold here, as it had there. Besides, the French, and also the Indians, held slaves in the ter- ritory previous to the Virginia conquest : the slaves so held being not only negroes, but also captive Indians." After the deed of cession by Virginia to the United States, it was uncertain for a time whether slavery should be reeog- nized or not; but, in the ordinance of 1787. for the government of the territory northwest of the Ohio, it was finally provided, in terms. that "There shall be neither slavery nor in- voluntary servitude in said territory, other- wise than in the punishment of crimes, whereof the party shall have been duly con- vieted." The same prohibition was carried into both our state constitutions. Yet, under the plea that, before the passage of the ordi- nance, slave property had been lawfully ac- quired within the limits of the territory, it was argued that the holders of such property could not be legally deprived of it. The argu- ment was even made that a mother being a slave, her children could be born only as slaves, and that the owner of the mother be- came the owner of the children so born.

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A history of St. Joseph County, Indiana, Volume 1, Part 19

Author: Howard, Timothy Edward, 1837-1916 Publication date: 1907 Publisher: Chicago, New York, The Lewis publishing company Number of Pages: 826

Author: Howard, Timothy Edward, 1837-1916
Publication date: 1907
Publisher: Chicago, New York, The Lewis publishing company
Number of Pages: 826