USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 10
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QUARTER SESSION AND COMMON PLEAS COURTS.
As mentioned above, Governor Harrison arrived at the capital on January 10, 1801. As soon as he had received the oath of office at the hands of Judge Clark, he issued a call for a meeting of the Legislature, composed of the Governor and three Judges, for the following Monday "for the purpose of adopting and publishing such laws as the exigencies of the government may require and for the performance of such other acts and things as may be deemed necessary and con- formable to the ordinances and laws of Congress for the gov- ernment of the territory."
This meeting, the first legislative body to meet in what is now Indiana, took place as called. It sat from the 12th till the 26th day of January and passed or adopted six laws, one act and three resolutions. Four of the laws dealt with courts, their procedure and jurisdiction. One resolution repealed most of the requirements for the admission of attorneys, which had been laid down by a law of the Northwest Territory. At
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least four of the acts have as their purpose likewise the repeal of laws handed down from the Northwest Territory.
The members of the court had very little legal ability, if we are to judge from their record as legislators. They were required under the Ordinance of 1787 to select and publish laws from the codes of the original states. The three resolu- tions, which are laws and not resolutions at all, therefore, so far as legality is concerned, have no value. Neither had they any power to repeal part of a law of the Northwest Territory and observe the remainder. The third, fifth and seventh laws were adopted from the Kentucky code, a liberty of choice for which they had no authority. The simplicity of expression used in these first laws also is proof that the person who wrote them was not a man of legal training. The following is a copy of the ninth law :
"The clerk of the general court's fees, for taking bond on issuing a writ of error or supersedeas-forty-three cents; for making a complete record of every cause, inserting a case agreed on special verdict, at large from the notes, and all deeds and other evidences at large, for every twenty words- two cents; for issuing a dedimus potestatum-thirty-five cents." A comparison of this with the long and cumbersome fee law of 1795 will show the difference between the parlance of the lawyer and layman. The chief purpose of the first meet- ing of the Legislature was to establish the courts and deter- mine their jurisdiction. For this purpose a law from the Pennsylvania code was selected. This is the same law that had been adopted by the Northwest Territory, June 6, 1795. The only change was the omission of section thirteen, which provided for the pay of the court officers and which could not apply in Indiana. This law is longer than the nine other acts together, covering in all ten pages.
The highest of the local courts ordained by this law was the General Quarter Sessions of the Peace. These sessions were held four times a year-in the county of Knox on the first Tuesdays of February, May, August and November. It took at least three Justices to hold this court, though a less number could adjourn until a quorum was present. If, in their opin- ion, there was public need, the Justices could hold extraordi-
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nary, or, as they called them, "private sessions." Between sittings the Justices had authority to take all kinds of recogniz- ances and obligations. Their power in this regard was similar to that of the ordinary justices of the peace in the United States today ..
All recognizances were certified to the next General Quar- ter Session, if for a crime triable in the Quarter Session court. If there were evidence or suspicion that a felony had been committed, then the recognizance was directed to the General court of the territory, usually called at that time by its old English name of Oyer and Terminer. If bail were forfeited the justice could only transfer the record to the General Court, whence a new process would issue. All forfeitures went to the territorial treasury.
The Quarter Session Justices were also unable to collect the fines assessed in their own court. All were to be "taxed, affeered and set, duly and truly, according to the quality of the offense, without partiality or affection, and shall be yearly estreated by the clerks of the said courts respectively, into the said general court of Oyer and Terminer."
The Quarter Sessions were required to hold at least three days or seventy-two hours each quarter. In order to expedite justice, and especially to aid sheriffs in the pursuit of fugi- tives, the processes or subpoenas of the Justices ran for the whole territory, regardless of county boundaries. The same was true of their power over witnesses.
All cases tried in the Quarter Sessions could be taken on appeal by a common writ of error to the Territorial or General court. This same rule applied to all courts of record in the territory, under the General court.
The General court or Supreme court of the territory met twice each year. The first session began at Vincennes on the first Tuesday of March and the second session at the same place on the first Tuesday of September "yearly and every year." The Judges, either all together or singly, had the power to issue writs of habeas corpus, certiorari, writs of error and all other remedial writs or general processes, all of which were returnable to the General court.
The course of an appeal was somewhat different from that
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of the present. The writ of error was returnable, as above stated, to the General court at Vincennes. However, after issue was joined the case was sent to the Circuit court, Oyer and Terminer, to be tried de novo, the practice in that regard re- sembling our appeal from a justice's court to the Circuit court. However, it was the court of last resort then which for convenience came down to the forum of the crime to try the issues both of the fact and law involved.
A midway court between the Quarter Sessions and the Su- preme court was the Circuit court of the county, presided over by one or more of the territorial Judges. There were only three of the Judges and an equal number of counties. They were only required by the law to hold court once a year in each county, the first Monday of October in Randolph and the third Monday of October in St. Clair. As a matter of fact, courts were held much oftener for jail delivery. The stated sessions were largely occupied with cases on appeal. A jail delivery session was held whenever several criminals were in jail, especially if one of them was held on a capital charge. It seems that one Judge could sit as a Circuit Judge, though it took at least two to hold a General court or Court of Appeal. A law of 1803 made it lawful for one Judge to hold either General court or Oyer and Terminer. This change was no doubt caused by the creation of new counties. Clark and Dearborn in Indiana had been organized by that time. A law passed at this same time provided that the Judges hold at least one session annually in these counties and in Wayne county at Detroit. This latter county was set off as the Territory of Michigan in 1805 and it is probable the Judges of Indiana never held court there.
The Judges of the Supreme court had general supervision of the lower courts, "to examine and correct all and all manner of errors of the Justices of the inferior courts in their judg- ments, processes and proceedings in the said courts, as well in all pleas of the United States, as in all pleas real, personal and mixed, and also to examine, correct and punish the con- tempts, omissions and neglects, favours, corruptions and de- faults of all or any of the justices of the peace, sheriffs, coro-
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ners, clerks and other officers within the said respective counties."
In order to insure the attendance of jurors, the Circuit court had authority to fine a defaulting juror eight dollars for each non-attendance; the Quarter Sessions Justices could fine a non-attending juror five dollars.
The Quarter Sessions were Criminal courts exclusively. The co-ordinate civil courts were the Common Pleas. These courts were held quarterly in each county. It took at least three of the Justices to hold pleas of assize, scire facias, re- plevins and all other common law pleas, either civil, personal or mixed. Any one of the Justices, during or between terms, could issue these writs cognizable at the next regular term of the court. They likewise had all the powers conferred on such Justices by the common law for compelling attendance and giving testimony.
Judgments by this court were turned over to the county sheriffs for execution. If the sheriff failed to find property, the plaintiff could plead that the defendant "skulked" or "lay hid," or had lands or goods in another county. An "alias execution" was, in the latter case, sent to the county in which the defendant had property. In the former cases the whole matter was certified to the General court. The Common Pleas sessions opened on the same days as the Quarter Sessions and were held by the same Justices. In other words, they were only the civil and criminal arms of the same court.
The practice in appeals was similar to that of today in its main features. Before a writ of error would issue to a lower court the case at issue must have been prosecuted to a final judgment or decree. The amount at issue must be at least fifty dollars in a civil suit or relate to a franchise or freehold. The appellant had to furnish bond and an authenticated copy of the record below. The transcripts must be in the hands of the clerk of the Supreme court before the expiration of the next succeeding term, providing there be as much as thirty days intervening, otherwise before the opening of the follow- ing term. If the appellant failed on appeal, he had to pay the appellee a sum not greater than ten per cent. by way of damages caused by the delay.
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The Supreme court might on appeal issue its own executive order or it might remand the case to the lower court for execu- tion. A writ of error might issue any time up to five years after the trial of the case.
By act of the Legislature, the old English Statute of Jeo- fails of 1752 was made the law of Indiana.
Bail was one of the most perplexing questions that came up before the early courts. It was necessary to give a wide range to the practice on account of the lack of jail facilities. On the other hand, it was easy to break bail and get out of the country. The sheriff often accepted bail on his own authority. This frequently proved worthless. In order to reduce this as much as possible, it was provided, where this failure of bail resulted in loss to a party to the suit, that the sheriff be required to plead to the case in place of the defaulted defend- ant and accept the penalty of the verdict.
A statute of limitations provided that practically all actions in tort or on similar pleas should begin within five years. Actions for assault, trespass and such like must begin within three years. Actions for slander had to be begun within one year from the time the words were uttered.
Negroes, mulattoes, or Indians were not allowed to testify except in pleas of the United States or except the case be between negroes, mulattoes or Indians. It was enacted in this connection that every person whose grandfather or grand- mother was a negro should be classed as a negro, and that every person who had one-fourth part or more of negro blood should be deemed a mulatto.
In actions of assault and battery or slander in the General court, if the jury returned a verdict for less than sixteen dol- lars and sixty-six cents, or if in a county court the verdict was for less than six dollars and sixty-six cents, the plaintiff was not to be allowed any costs.
JUSTICES' COURTS.
No direct provision was made for Justices' or Township courts under the governor and Judges of Indiana. Only by close reading of the laws and from outside references can one learn of the township government at all. Even before 1800,
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when the census was taken, we are assured the counties were laid off into townships. The vote in Knox county for delegate to Congress in 1809 was given by townships, there being seven townships at that time. (Western Sun, May 27, 1809.) The township government seems to have gone on unchanged by the division of the old Northwest Territory.
That such was the case is made certain by the second law passed by the first Indiana Legislature, August 12, 1805. This law is entitled, "An act to amend an act entitled an act estab- lishing courts for the trial of small causes." Now no such act had ever been published by the governor and Judges, or by the Legislature up to that time. The reference is plainly to the law of the Northwest Territory, approved December 2, 1799. This act constituted the Justices of the Peace courts for the territory and is the basis for the courts as they exist today.
The necessity of the Justice was not new in the territory even in 1799. When the courts were established by the second act of the governor and Judges, August 23, 1788, provision had been made for the Justices of the Common Pleas to issue writs between terms. And "for the more speedy recovery of small debts and demands contracted within the territory it shall and may be lawful for one or more of the Judges of the Common Pleas, in their respective counties, to hear and de- termine all debts and demands contracted as aforesaid whether upon bonds, bill, note-book account, or assumpsit in fact or law, wherein the sum demanded shall not exceed five dollars."
If for no other reason than convenience and cheapness, the courts must have been popular. A trip of fifty miles to the county seat to sue on a debt of five dollars would be discourag- ing to say the least, especially as traveling then was attended with such difficulties. A defect of this arrangement soon appeared, however, in the lack of an executive officer for the Justice. The sheriff, the only person to carry out the order of the Common Pleas Justice, lived at the county seat and his service was expensive.
Accordingly, at their meeting, at Cincinnati on November 6, 1790, the governor and Judges directed, by law, the Com- mon Pleas Justices of each county in their regular session to appoint annually in every county one or more constables, each
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to serve his township especially and the county generally "and generally to do and perform all duties and services incumbent on him as an officer of the township or county, or of the several courts at law."
So satisfactory was this species of litigation that the gov- ernor and Judges went a step farther (June 3, 1795,) and, in a law headed "A Law for the Easy and Speedy Recovery of Small Debts," gave these special courts exclusive jurisdiction without appeal, over "all said debts and demands under five dollars." In cases involving from five up to twelve dollars the Justices had concurrent jurisdiction with the Common Pleas court, with the right of appeal to the latter court. On appeal, the case was tried de novo. A full list of fees was made out for all the Justice's action and he was further recognized by being made the special protector of the poor of his township, the curator of estrays and boats found drifting.
Finally, in an elaborate act by the Legislature of the North- west Territory, as noted above, entitled "An Act Establishing Courts for the Trial of Small Causes," the Justice of the Peace courts were put on a firm basis in the Northwest Territory.
The jurisdiction of the Justice was made coextensive with his township. Every action for debt or other demand except where a contract or bond was to be construed, or a covenant, replevin, or actions involving title to land, was cognizable in his court. His processes ran throughout the township only. The constables of the township were his executive officers. He was required to keep a complete record of all cases. Ap- peals were allowed to the Common Pleas if perfected within twenty days, provided the penalty to be avoided exceeded two dollars. The parties might choose referees to decide the issue, in which case no appeal would lie.
This then was the basis for the Justice courts of Indiana Territory. It was this kind of court which Governor St. Clair established at Clarksville in 1790 and over which he appointed William Clark to preside. Abraham Huff, Marston G. Clark and John Noble Woods, of the same place, were evidently only Justices of the Peace, since it is hardly possible they attended the regular Common Pleas courts at Vincennes. Although there is no evidence that the Justices had any criminal juris-
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diction, it is hardly believable that petty criminals were taken to Vincennes from Clarksville for trial.
The act of the Indiana Legislature referred to above amended the Justices' practice so that their jurisdiction was county-wide instead of township-wide. The constable was also given power to execute his process throughout the county. A stay law was added so that a judgment of twelve dollars could be stayed fifteen days and any sum above that could be stayed thirty days. There must have resulted considerable confusion from the lack of a clear boundary between the Common Pleas and Justice of the Peace courts. A law of December 6, 1806, forbade any Judge of the Common Pleas from acting as a Justice of the Peace. The same law otherwise defined the practice. The plaintiff was required to bring his suit where the debt was contracted or where the plaintiff resided, or where the defendant was. If brought in any distant township in order to vex the defendant, he was liable to be dismissed at his own cost. The jurisdiction was extended to all personal property not exceeding eighteen dollars in value. The stays were all extended, that for twelve dollars and upward being made ninety days.
So far as known, the first Justices of the Peace appointed by Governor Harrison, except John Gibson, appointed on February 1, 1801, for the whole territory, were William Wells and William Burnet for Knox county, August 29, 1801. These, together with Adhemar St. Martin, a Justice for St. Clair county, received the oath of office September 1, 1801. Jean Bap- tist Barbau was appointed for Randolph county, October 27; Pierre Compte, for the same county, October 29; Lewis Labo- sierre, for St. Clair county, October 29; Antoine Champs, for the same county, October 30; David Robb, an Irishman from down about where Princeton now is, for Knox, December 26; John Kinsey, for Knox, March 10, 1802; Lieutenant Wiley, for St. Clair county, March 12; John Campbell and Robert Dick- son, for St. Clair county, August 19. Thus runs the record of appointments throughout the sixteen years of the Executive Journal; many names well known in early Indiana history appear in the list, such as Jonathan McCarty, William Prince, James Lemon, Patrick Shields, Aquila Rogers, Enoch McCarty,
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John Beggs, Jacob Zenor and scores of others. One is con- vinced that the governor took considerable pains to select substantial men for these responsible positions. The peace and orderliness of the neighborhood often depended entirely on the character of the Justice of the Peace. The names of all these territorial Justices of the Peace are given in the histories of the counties for which they were appointed.
A further division of the work of the Justices appears in the law of August 15, 1805, providing for the appointment by the governor of as many Notaries Public as he thought the business of the rapidly growing territory demanded.
ORPHANS' COURTS.
On July 28, 1800, Acting-Governor Gibson appointed Robert Buntin clerk of the Orphans' court of Knox county ; on August 1, Robert Morrison was appointed clerk of the Orphans' court of Randolph county; on the same day John Hay was appointed to a similar position for St. Clair county ; on February 4, 1801, Samuel Gwathmey was appointed clerk of the similar court for the new county of Clark. These appointments show beyond a doubt that this court was in existence in all the counties. No separate Judges for these courts appear to have been appointed, so the duty of presiding must have devolved on some of the other Justices. Since the prothonotary of the Common Pleas was always clerk of the Orphans' court, it seems the Common Pleas Justices presided. A law of August 22, 1805, permitting the Common Pleas Jus- tices to authorize guardians, upon proper showing, to sell town lots, would also go to prove that the Common Pleas or Quarter Session Justices (they were nearly always the same) presided.
No law directly establishing the Orphans' Court or out- lining its jurisdiction or practice appears among the acts of the governor and Judges, so it is necessary again to refer to the Maxwell Code. At first the business of the Orphans' court was transacted by the Probate Judge under the law of August 1, 1792. This power was taken from the Probate Judges by the act of July 14, 1795. In the meantime, however, a separate court for the transaction of this business had been created by the law of June 16, 1795.
(3)
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This law empowered and directed the Quarter Session Justices in every county to hold a court of record, to be styled the Orphans' court, during the same week as the county Quarter Sessions and at the same place. The Justices were directed to call before them "all and every such person and persons who, as guardians, trustees, tutors, executors, admin- istrators, or otherwise, are or shall be entrusted with, or anywise accountable for, any lands, tenements, goods, chattels, or estates belonging or which shall belong to any orphan or person under age; and cause them to make and exhibit, within a reasonable time, true and perfect inventories and accounts of the said estates; and to cause and oblige the Judge of pro- bate, or such person or persons for the time being, as shall have the power of probate of wills, and granting letters of administration, in this territory, or their deputies, upon appli- cation made in that behalf, to bring or transmit into the said Orphans' court, true copies or duplicates of all such bonds, inventories, accounts, actings and proceedings, whatsoever, now or hereafter remaining or being in their respective offices, or elsewhere within the limits of their authority, as do or shall concern or relate to the said estates or any of them."
The quotation from the long, wordy law sets forth suffi- ciently plain the subject matter of the courts and the Judges who presided, as well as the jurisdiction from which it was taken. The chief purpose of the law was to have the guardians report to a different Judge than the one who appointed them. It would perhaps lessen the chance of collusion. Noth- ing was commoner then among genteel rascals than to plunder guardian estates. It was common also to apprentice orphans, a practice open to wide abuse. Over this practice the Orphans' court was supposed to keep a sharp eye. The court was abolished by the act of August 24, 1805.
CORONERS' COURTS.
On August 1, 1800, Acting-Governor Gibson appointed John Whitesides coroner of St. Clair county ; February 4, 1801, Governor Harrison appointed Peter McDonald coroner of Clark county; July 9, 1802, Dr. Jacob Kuykendall was ap- pointed coroner of Knox. Throughout the territorial period
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there are frequent records of the appointment of coroners- enough that it seems sure the office was kept occupied in each county.
The law under which they acted is to be found in the Northwest Territory code, dated, Marietta, December 21, 1788. "It shall be the duty of the coroner, by a jury of the county, to inquire concerning the death of a person slain, who dies sud- denly or in prison, and his inquisition so taken he shall certify to the next General court holden within the county, or to the court of General Quarter Sessions holden for the county. And it shall be the duty of the coroner to execute process of every kind wherein the sheriff is a party or interested in the suit, or for other just cause is by law rendered incapable to execute the same. And in case the sheriff for any reason is committed to gaol, the coroner shall by himself or such person as he shall appoint be keeper of the gaol during the time the sheriff shall remain a prisoner."
The substance of this act was included in the Revision of 1807 of the Indiana laws. No substantial change has taken place either in the constitution or purpose of the court to the present time. Its importance is gradually diminishing.
PROBATE COURTS. 1792446
On July 28, 1800, Acting-Governor Gibson appointed Henry Vanderburg a Probate Judge for Knox county; August 1, he appointed John Edgar, Probate Judge for Randolph county ; January 14, Abraham Westfall took the place of Van- derburg as Probate Judge of Knox county (the former had taken up his duties as Supreme Judge) ; February 4, 1801, Jesse Rowland was appointed Probate Judge of Clark county. These and other appointments indicate conclusively that a Probate court was open in each county from the beginning of the territory in 1800.
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