USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 11
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42
As with the Orphans' and Justices' courts, it is necessary to go back to the Maxwell Code for the constituting law. There is no mention of the courts in the laws of the governor and Judges of Indiana Territory. The third law of the North- west Territory, enacted at Marietta, August 30, 1788, was the foundation.
36
COURTS AND LAWYERS OF INDIANA
"There shall be appointed one Judge of Probate in each county whose duty it shall be to take the proof of the last wills and testaments and to grant letters testamentary and letters of administration and to do and perform every matter and thing that doth, or by law may appertain to the probate office, excepting the rendering definitive sentence and final decree."
The Judge held at least four sessions in his county and could hold as many more as he saw fit at any time and place business might require. This officer was the custodian of all papers, bonds or other evidence of probate business. An appeal lay from all his decrees to the General court of the territory. The probate clerk kept a careful record of all papers and proceedings and furnished copies of them when required.
It does not appear just why this work was cut out of the general jurisdiction of the Common Pleas or why it should have been made the work of a special court in a country so sparsely settled. The probate law was rather intricate, espe- cially where it dealt with real estate, and Governor Harrison found it difficult to keep the offices filled with competent men. The fees were very low as compared with lawyer fees at pres- ent, though they ranked favorably with those of other officers of the time.
The Indiana officers evidently were not impressed with the necessity of the Probate court. At the first session of the Territorial Legislature, which met July 29, 1805, the Probate courts were unceremoniously abolished, their jurisdiction being conferred on the Common Pleas court in the act consolidating the county courts of the territory.
CHANCERY COURTS.
The organization of a court of Chancery had some ulterior history back of it. Attention has already been called to the fact that there was considerable dissatisfaction on the part of the lawyers of the old Northwest Territory because there was no appeal from decisions of the Territorial court to the General courts. This was the worse because the Territorial courts were entirely without chancery jurisdiction. Frequent-
37
COURTS OF INDIANA TERRITORY
ly the ruling of a single judge according to the rules of law only was the final word on an important matter.
On April 3, 1802, a petition, signed by James Johnson, a lawyer of Vincennes, formerly from Pennsylvania, and his fellow Justices of the Common Pleas of Knox county, was read, asking that the provision of the Ordinance of 1787 be set aside or revised so that the Judges of the Indiana courts might have chancery powers. And although Congress in a long act overhauled the judicial system, it seems at the time no account of the petition was taken further than the custo- mary reference to a committee. Still the agitation must have borne fruit, for the matter was taken up again in the eighth Congress. The committee report on the expediency of vesting courts in Indiana and other territories with equity powers was made by John Boyle, later a Chief Justice of Kentucky, then serving his first term in Congress. He was later a terri- torial governor of Illinois. During the last eight years of his life he presided over the United States District court of Ken- tucky.
"The courts without equitable jurisdiction," ran his re- port, "will inevitably, in some instances, become the instru- ments of iniquity, instead of the administrators of justice. Fraud, accident and hardships, ingredients in many of those transactions of human life which constitute the basis of litiga- tion, entrenched within legal forms and veiled with specious but deceitful appearances, are many times not within the reach of a tribunal, vested with common law powers only. To develop and relieve against them, an equitable jurisdiction is necessary."
The committee on this point recommended, "That it is expedient to vest the powers usually exercised by a court of Equity in the Judges of the United States in the Indiana and other territories."
The petitioners had asked that, for the purpose of securing uniformity of decision, appeals be allowed from the Territorial courts to the United States Supreme court. The committee was not impressed with this plea, though it admitted the neces- sity of uniformity in decisions. It expressed a high regard for the Indiana court, stating that no charge of unfairness or
38
COURTS AND LAWYERS OF INDIANA
lack of ability had been made. The adverse report on this point, however, was based more on the inconvenience of the practice than on opposition to the justice of the demands. "So vast is the distance from the Territorial courts to the Supreme court of the United States that the mischief resulting from the necessary delay, expense, and inconvenience of prosecuting or defending writs of error and appeals, cannot, in the opinion of the committee, be compensated by any advantage to be derived from the revision of the courts of the Territories by the Supreme court of the United States." The committee therefore recommended that the right of appeal be not allowed.
Congress, however, seems to have been guided more by the inherent justice of the case than by the inconvenience pointed out by the committee, for, on March 3, 1805, a bill received the President's signature, not only giving chancery power to the Territorial Supreme court, but also giving the right of appeal from its decisions to the Supreme court. This right of appeal, of course, would only extend to such cases as the United States courts would have an interest in. Indiana Territory thus, under the lead of two or three fearless lawyers, rid itself of an offensive system under which the Northwest Territory labored fifteen years.
Having clothed these federal or territorial Judges with equity powers, the first Legislature of the territory (1805) lost little time in establishing a Chancery court all their own. Why they did not follow up the hint given by Congress and invest their Common Pleas courts with chancery power does not appear. Instead, they attempted to encumber their judicial system with one more unnecessary tribunal. How- ever, a lawyer accustomed to practice before our courts can- not easily appreciate the difficulty offered by a common law jurisdiction alone. A defendant might between terms sell out, pack up his goods and get away and there was no power to stop him. A man might suffer irremediable injury and a Common Law court had no power to protect him except by a suit for damage after the injury was done. Section six of the law was therefore a great boon to the lawyers on the frontier. It provided that this court should remain open always so as to
1
39
COURTS OF INDIANA TERRITORY
grant writs of ne exeat, injunctions, supersedeas, and certior- ari processes.
The court consisted of one Judge, to be appointed by the governor, to serve during good behavior. He was to hold at least two sessions annually at Vincennes. "In all suits in the said court the rules and methods which regulate the practice of the High Court of Chancery in England so far as they shall be deemed applicable to this court by the Chancellor shall be observed." Pleadings might be sworn to before any Justice in the territory, and depositions might be taken anywhere in the discretion and on the order of the court. Rule days were the first Saturdays of January, April, July and October. The court's writ of fieri facias held the property of the person against whom it was directed from the time it was issued.
The only objection to the court, and this one objection pre- vented its being useful, was that to do its intended duty, it required a Judge and a clerk in the office during the whole year. This necessitated a considerable salary, since it re- quired a good lawyer to administer an Equity court.
The law was signed August 22, 1805. On the following September 2, John Badollet, a Swiss companion of Albert Gallatin, was appointed Judge of the new Chancery court. March 1, Thomas Terry Davis, even then called "Honorable," was appointed to take the place of Badollet, who had resigned. November 24, 1807, Waller Taylor, also "Honorable," one of the first United States senators from Indiana, succeeded Davis on the Chancery bench. These appointments, or rather the resignations, for they were all first-rate men, indicate that the position was not very lucrative. The law was amended in 1806 and it seems the pay of the Judge increased slightly.
While it would perhaps have to be conceded that the law- yers of Indiana Territory were not the equals of their con- temporaries in Kentucky and Ohio, it is equally clear that in constructive legal ability they surpassed the lawmakers of either early Kentucky or early Ohio. A tendency which was later to give Indiana a great system of courts was manifesting itself thus early. From the beginning there had been dissatis- faction with the numerous tribunals of the common law. In the effort to lessen the number of independent and co-ordinate
40
COURTS AND LAWYERS OF INDIANA
courts and at the same time widen the jurisdiction, Governor Harrison seems to have been in harmony not only with the lawyers but also the lawmakers. The governor rarely if ever opposed the clearly expressed wish of the people or their Legislature.
Accordingly, one of the acts of the first Legislature, August 24, 1805, was a general consolidation of the county local courts. Over the Circuit and Supreme courts the Legislature had little control, since these Judges were commissioned by the President, but it made short work of the complicated and confusing mess of Quarter Sessions, Common Pleas, Probate and Orphans' courts. All were consolidated into one County court under the historic name of Common Pleas. Instead of the score or so of Justices in each county, the governor was now required to appoint three Judges for each county, at least two of whom were of the quorum; that is, it required a ma- jority of them to hold court. They were required to hold six stated sessions annually in each county. Instead of the wretched fee system, each Judge was put on a salary of two , dollars and fifty cents per day for time necessarily used. If a quorum were not present on the first day of the term, the sheriff was directed to adjourn court till the next day and if no Justices were then present he would adjourn until court in course. The fees that formerly went to Justices were there- after to be collected by the sheriff and turned over to the county on the first days of January and July. Instead of there being four different clerks, with as many separate records, there was to be under the new law only one clerk whose busi- ness it was to keep one set of records for the one court. It was indeed a great step in the direction of our present simple system of County courts.
In the Revision of 1807, chapter XXII, there is a law giv- ing the Common Law courts equity powers in a number of classes of cases. In several acts there are provisions for ex- pediting suits and requiring immediate execution of court processes, indicating even then some impatience with the law's delays. A long law of 1807, chapter XLVI, lays down the general rules that were observed in the practice before all the courts. These laws were plain and practical and will bear
41
COURTS OF INDIANA TERRITORY
close inspection. There are few things in them except the Latin names of a few processes which would seem strange to the wide-awake Indiana lawyer of today. In some instances they would push him along the road to final judgment some- what more rapidly, perhaps, than he is accustomed to go'at present. There are of course hundreds of cases in our pres- ent practice for which he would find no remedy in these early laws. Litigation was not encouraged. A very early law laid a general tax for the benefit of the county on litigants at court. For instance, on each appeal a tax of one dollar had to be paid into the county treasury. On every suit filed in Common Pleas a tax of fifty cents was paid. On each certi- ficate under the seal of the clerk a tax of fifty cents had to be paid. These were not fees or court costs, but money paid for the use of the general county fund, the same as poll tax.
TERRITORIAL PRACTICE.
The following incidents and descriptions are given, with- out much attention to order or arrangement, for the purpose of illustrating the general features of court practice and the life of an attorney of those days. No doubt each incident is extraordinary. Otherwise it would not have been preserved. Only those incidents of unquestioned historical standing have been included.
When a territorial Judge was sent to hold a court of Oyer and Terminer, he usually took commissions for two other local men to sit with him. Thus when, on September 28, 1801, Governor Harrison sent Judge Vanderburgh to Kaskaskia to hold a Jail Delivery, he appointed John Edgar and Pierre Menard to sit with him, Vanderburgh carrying the commis- sions with him. There are other instances of this kind in the Executive Journal. The practice saved money to the treasury, since the territory had to pay travelling expenses, and also made it possible to hold court oftener than if two of the Judges went on circuit together.
There were frequent complaints to the governor of irregu- larities by his courts. About the close of the year 1801 a grand jury of Cahokia made a presentment against John Du- moulin, presiding Judge of the St. Clair county Quarter Ses-
42
COURTS AND LAWYERS OF INDIANA
sions, charging him with acting "tyranically, corruptedly and illegally" while Judge. The governor at once commissioned Shadrack Bond, George Achison, James Lemon, William Beggs, John Francis Perrey, Benjamin Ogle and Nicholas Jar- rol to "sit" on the said Dumoulin and report the findings forth- with to the governor. The Legislature had jurisdiction over cases of impeachment. No report as to the fate of Dumoulin is available, but several cases of impeachment were tried by the territorial Legislature.
February 23, 1802, Davis Floyd, of Clark county, was ordered by the governor to proceed to Kentucky and receive from the governor of that state Martin Williams, John Will- iams and a man named Churchelow, charged with the murder of some Delaware Indians. The criminals had fled to their old home and had there been apprehended and were being held perhaps for reward.
John Harbin, of Knox county, was ordered, August 18, 1803, to go to Tennessee and bring back to Knox county Robert Slaughter, who was charged with the murder of Joshua Har- bin. Other instances show that the extradition of persons charged with crime was carried on then much the same as now. July 4, 1806, James Edgar, sheriff at Kaskaskia, was sent to New Orleans to receive and return to Kaskaskia Michael Squires, charged with the murder of Abraham Stanley.
The following item will suggest a cause for most of these arrests in neighboring states : "June 21, 1806, a proclamation was issued by the governor and a reward of three hundred dollars offered to any person or persons who would appre- hend and deliver to the sheriff of Knox county James Reed, a prisoner, confined in the jail of said county charged with the murder of a Delaware Indian and who, on the night of May 18, escaped from the same, and a further reward of one hun- dred dollars for the discovery of any accomplice or accessory to the escape and a full and perfect pardon on conviction of the accomplice or accessory."
The governor was not afraid to use his pardoning power. But from his well-known regard for the opinion of others it may safely be inferred that most of his pardons were given
ยท
43
COURTS OF INDIANA TERRITORY
to correct mistakes of trial courts. On September 16, 1802, there is a record of the pardon of Michael Joseph, condemned on a charge of rape to stand twice in the pillory, to be impris- oned six weeks, and pay a fine of fifteen dollars.
In October, 1808, a special session of the General court convicted Abraham Hiley of the murder of John Coffman at Vincennes and sentenced him to be hung. It seems the evi- dence was not clear. After the rope was around his neck the governor issued a respite. Again it seems he was taken out for execution, but was pardoned. Perhaps his demeanor had something to do with the pardon. January 16, 1809, the gov- ernor issued a partial pardon to William H. Fitz Freeman. He had been sentenced to be whipped, fined and jailed. The latter penalty was remitted. On the same day the governor pardoned Wappenuchkinewa, a Wea Indian, in the Vincennes jail on a charge of horse stealing.
December 9, 1809, on petition from a "number of the most respectable citizens of Clark county," the governor pardoned John Ingram. He had been convicted of horse stealing and sentenced to death. The pardon is said to have arrived after Ingram was on the scaffold. The list of pardons might be continued, but the cases given are enough to show that the power was frequently used.
There are many instances on record where the governor appointed an attorney to defend a prisoner at bar. Likewise there are frequent cases in which he appointed a special prose- cutor for a given case. Thus, James Clark was appointed to prosecute Robert Slaughter, who was brought up from Ten- nessee on a charge of murder.
The following is a copy of an indictment by a grand jury of Clark county. It was presented to the court of Oyer and Terminer, April 1, 1802:
"That Moses McCan of said county, yeoman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, did on the 16th day of January in the year of our Lord, one thousand eight hundred and two, at the hour of five in the afternoon of the same day, with force and arms at Clarksville, in the county aforesaid in and upon an Indian man of the Shawnee tribe in the peace of God
44
COURTS AND LAWYERS OF INDIANA
and the United States then and there (the said Indian not having any weapon drawn, nor the aforesaid Indian not hav- ing first stricken the said Moses McCan) feloniously, mali- ciously, and of his malice aforethought did make an assault, and that the aforesaid Moses McCan, with a certain toma- hawk made of iron, of the value of two dollars, which the said Moses McCan in his right hand then and there had and held, in and upon the head of the said Indian, did strike, giving to the said Indian one mortal wound of the breadth of two inches and of the depth of one inch, of which said mortal wound he, the said Indian, in the day aforesaid died; and so the jurors aforesaid do say that the said Moses McCan him, the said Indian, on the said 16th day of January in the year aforesaid at Clarksville aforesaid in manner and form aforesaid, felon- iously, maliciously, and of his malice aforethought did kill against the peace and dignity of the United States; and the said jurors further present that the said Moses McCan not having the fear of God before his eyes but being moved and seduced by the instigation of the devil, on the 16th day of January, in the year first mentioned, at the time of five o'clock in the afternoon of the same day . . . did make an assault, and the said Moses McCan with a certain poking-stick made of the value of five shillings, which the said Moses McCan in his right hand there and then held, in and upon the head of the said Indian . did strike, giving to the said Indian and there with the said poking-stick aforesaid in and upon the head of the said Indian one mortal wound of the length of two inches and of the depth of one inch, of which he, the said Indian, on the day aforesaid died; and so the jurors aforesaid upon their oaths aforesaid, do say that the said Moses McCan, him the said Indian on the said 16th day of January in the year aforesaid at Clarksville, in the county of Clark in manner and form aforesaid feloniously, maliciously, and with his malice aforethought, did kill, against the peace and dignity of the United States."
An instance from one of the first sessions of the Dearborn County court will illustrate a situation that was liable to con- front a Judge at most any time. A more than commonly per- verse witness was on the stand. The Judge and one lawyer
45
COURTS OF INDIANA TERRITORY
were doing their utmost to keep the witness within legal bounds. The latter argued his side of the case manfully until, losing his temper, he seized a heavy clapboard and struck viciously at the Judge's head. The Judge threw up his arm to parry the blow, and received a broken arm. The witness was immediately ordered jailed for contempt. There being no jail, he was bound hand and foot, his head placed between the lower rails of a heavy worm fence and left a few hours till his temper cooled off. This court was held in the double log cabin of Dr. Jabez Percival, a Revolutionary patriot, and one of the Judges.
The earliest court of which we have any record in Wayne county was held at the home of Richard Rue, a short distance south of Richmond. No grand jury was impaneled until the next sitting. This grand jury, whose names are preserved in Young's "History of Wayne County," reported to Jesse D. Holman, Circuit Judge, one of the most distinguished Judges of the time. The court, it seems, held its sessions in the woods, a few backwoods chairs and convenient stumps being used for seats. A log at a respectable distance served for a grand jury "room." Seated on this log, the fathers of the county took thought of their future society. Judge Hoover, in his memoir, says Judge Benjamin Parke held a court in this county in the shade of a large tree.
The records of Warrick county also offer a picture of the early Territorial courts. The first session was held at the house of Baily Anderson, July 14, 1813, Benjamin Parke pre- siding. The grand jury consisted of sixteen men. The first indictment was drawn by this grand jury against John May, who had passed to Daniel Rhoads eight hundred and twenty dollars of counterfeits on the Russellville branch of the State Bank of Kentucky. This same jury also indicted Joshua Elkins for selling a pint of whiskey to William Stevens with- out a license. Thomas Higgins, one of the grand jurors, be- came intoxicated and was fined five dollars and costs. It is significant of the times that no Judge was present at the next two stated meetings of this court, so they were adjourned by the sheriff. Judge Blackford held the next session at the home of Daniel Rhoads.
46
COURTS AND LAWYERS OF INDIANA
The Territorial court of Perry should have met April 3, 1815, but no Judge appeared. However, three months later Judge Blackford opened a court at the house of James Mc- Daniel, Jr., of Troy. There was a grand jury of twenty-two men impaneled. Davis Floyd was prosecutor. George Tobin was indicted for usurping the office of Justice of the Peace, but he succeeded in having the indictment quashed. Davis Floyd and William Prince seem to have been the only "law- yers" present. No court house was built till 1817 in this county. --
CHAPTER III.
THE CIRCUIT COURTS, 1816-1852.
There was continual dissatisfaction throughout territorial times with the Circuit court. As the number of criminals in- creased with the increase of population, and also with the failure of the courts, the people clamored for a more active Circuit court. It must be kept in mind that the reorganized Common Pleas court had no power over felons, further than to commit them to jail, whence they usually escaped. There were in 1813 ten counties, with seats of justice at Vincennes, Jeffersonville, Lawrenceburg, Corydon, Madison, Brookville, Salisbury (Wayne county), Evansville, Princeton and Salem. A glance at the map will show how difficult it was for three Judges to make these ten places four times per year and hold court a month or so at each place.
In order to remedy this situation, the Legislature, Decem- ber 31, 1813, reorganized the system, dividing the counties into three circuits, over each of which one of the Territorial Judges was to preside.
Here, now, was an interesting situation for the courts. The Judges, Benjamin Parke, James Scott and Waller Taylor, had been appointed by the President of the United States and of course held their commissions from him. It was their duty to preserve order in the territory, but they were not subject to the disposition of the territorial Legislature.
Judge Parke did not wait for the case to come up in any regular way, if indeed it could possibly have been brought. It would have involved a mandamus suit before the very Judges whom it was sought to mandate. As soon as Judge Parke heard of the work of the Legislature, he wrote Governor Posey, February 7, 1814, as follows :
"By an act entitled 'An act reorganizing courts of Justice,' passed at the late session of the Legislature, the territory is
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.