USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 12
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divided into three districts, in each of which a Circuit court is established-the court to consist of one of the Judges ap- pointed by the government of the United States for the terri- tory, as President, and three associates, commissioned under the authority of the territory, and to have jurisdiction in all cases, at law and equity. The First circuit, comprising the counties of Knox, Gibson and Warrick, is assigned to me. The Legislature is empowered to make laws in all cases, for the good government of the territory, not repugnant to the laws of the United States. In the delegation of power, that which is not expressly given is reserved. Implications can not be admitted further than to carry into effect the power given. The laws of the United States being paramount to the laws of the territory, if they are found in conflict, the latter must yield to the former. Congress has defined the jurisdiction of the Judges appointed by the general government, and made one Judge, in the absence of the others, competent to hold a court. The Judges are co-ordinate and their jurisdiction ex- tends over the whole territory. They are the Judges in and over, and not of a part of the territory. As the Judges derive their jurisdiction and power from the government of the United States, they cannot be controlled, in the exercise of their functions, by persons deriving their authority from the government of the territory. The Judges appointed for the territory are limited by the laws of the United States to the exercise of a common law jurisdiction. The act, therefore, as it regards the organization and jurisdiction of the Circuit courts, is repugnant to the laws of the United States, and neither confers any powers, nor imposes any duties, on the Judges appointed for the territory by the United States. The general government has appointed for the territory three Judges, with a common law jurisdiction ; but when, where, and in what manner they are to hold court-or, rather, exercise the jurisdiction with which they are invested-Congress has not provided. I consider it the duty of the Legislature to do it. To you, sir, it belongs to watch over the affairs of the territory, and to see that the laws are faithfully executed; and, on account of the relation in which I stand to the territorial government, I have thought it my duty to make this repre-
WAYNE
FRANKLIN
DEARBORN
KNOX
JEFFERSON
SWITZER- LAND
WASHINGTON
CLARK
GIBSON
HARRISON
PERRY
POSEY
WARRICK
INDIANA AS IT APPEARED IN 1815 WHEN IT APPLIED FOR ADMISSION TO THE UNION.
By Ernest V. Shockley.
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sentation to you. The peculiarity of the case leaves me no other mode of stating my objections and the cause of my not conforming to the law. The Legislature has organized certain courts, and assigned me to perform certain duties ; but the law, constituting the one and directing the other, is unconstitu- tional; and, as I can derive no authority from it, it imposes no obligation. I shall, therefore, not hold the courts for the First circuit."
This letter not only shows the relation between the Federal, or Territorial courts, but also indicates the difficulty confront- ing the Legislature in constructing any satisfactory system so long as the territorial form remained. The act of 1813 had abolished the old program of courts and when the Judges refused to go on circuit according to its terms the people were left without Criminal courts.
At first it was thought Congress might furnish relief. With this purpose in mind, the Legislature framed a petition, which Jonathan Jennings, the territorial delegate, presented January 24, 1814. This petition begged Congress to instruct the Territorial Judges to submit to and perform certain judi- cial services required of them by the Legislature. A bill for this purpose was drawn and supported in Congress by Mr. Jennings. However, it was lost on third reading.
To remedy this situation, the Legislature then met, August 15, 1814. By the 30th of August it had a bill ready for the governor, dividing the territory into three circuits and author- izing the governor to appoint President and Associate Judges for each-a President Judge for each circuit and two Asso- ciate Judges for each county. The President Judge was re- quired by the statute to be a man learned and experienced in the law, who had regularly practiced in the courts during the three preceding years. Such Judges were to receive an annual salary of seven hundred dollars.
There was little in the law that was new or different from the law of 1813, except that the governor appointed Judges for the circuits in place of the Territorial Judges. The law left a tangle which no lawyer or lawmaker was able to unravel.
The law of appeal permitted cases tried in the Circuit (4)
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courts to be taken up for review, or perhaps re-trial, to the General or Supreme court. One Judge could and often did hold Supreme or General court. Two Judges could and usually did sit on the Circuit bench. Not infrequently one of the Judges sat, in appeal, on a case which he, himself, and another member of the Supreme court had decided in the first instance ; or one Judge might overrule a decision given by his two asso- ciates on circuit. Such a decision, of course, would very likely be reversed next time a similar case was taken up on appeal.
The legislators were not slow to see the dilemma. A me- morial prepared by the state Legislature was read in Congress, October 18, 1814. In part, it ran as follows :
"By a law of Congress, one of the Judges, appointed by virtue of the ordinance for the government of this territory, is authorized to hold a court. Thus one of the Judges, being competent to hold a court, may decide a principle or point of law at one term; and, at the next term, if the other two Judges are present, they may decide the same principle or point of law different. Thus, the decisions of the superior court, or- ganized, we presume, by the general government, finally to settle in uniformity the principles of law and fact, which may be brought before them by the suitor, may be, and frequently are, in a state of fluctuation : hence the rights of persons and property become insecure. There is another evil, growing out of the system of one Judge being competent to hold the supe- rior court, or that court which forms the last resort of the suitor in any government, and particularly in the territory ; for appeals are taken from all the courts of inferior jurisdic- tion in the territory to the court organized by the ordinance, which inferior courts are never constituted of less than two Judges. Thus, the suitor in the territory is frequently driven to the necessity of appealing from the judgment of two men to that of one. Hence the want of uniformity in the decisions of the court of the last resort. Anger and warmth in the suitor, and a confusion in our system of jurisprudence, is the result."
These letters and petitions show that our early lawyers at least had some pretty definite ideas on jurisprudence. The paper was not without effect. Jennings supported a measure
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through Congress which directed the Judges of the General court to hold two sessions of the court annually in each of the counties, Knox, Harrison and Franklin. Not only the county, but the town and day were set down. At least two of the Judges were required to be present at these courts, and no other Judge was allowed to sit with them on these occasions. This statute bears date of February 24, 1815.
As a final touch to this old territorial Supreme court, Con- gress, April 29, 1816, invested it with chancery powers as well as Common Law jurisdiction, to be exercised under the direc- tion of the territorial Legislature. But its days were over. The Congress had even then determined on statehood for Indiana, and all were turning their attention to the Constitu- tional convention.
We have only the most meager account of the Constitu- tional convention of 1816. Of the membership, a large num- ber-a majority-were lawyers. Among these, were some of the best men of the territory-Joseph Holman, Robert Hanna, James Noble, James Dill, James Scott, Davis Floyd, John John- son and Benjamin Parke. The two latter were among the very best lawyers in the territory. The committee on the judiciary consisted of Scott, Johnson, Dill, Milroy, Noble, Cot- ton and Lowe.
James Scott was then on the Supreme bench of the terri- tory, the last man appointed. He had been a practicing attor- ney five years and was still to serve his state long and satis- factorily. John Johnson had been selected, along with John Rice Jones, as early as 1807 to codify the laws of the territory. Like Scott, he later sat on the state Supreme bench. James Dill was an Irish lawyer of Lawrenceburg. He was a son-in- law of Governor St. Clair and served as clerk of the Dearborn court for twenty-six years. He was a lawyer of the old school. He never appeared in court except in wig and queue, knee breeches and silver buckles. Samuel Milroy was a lawyer, a trader, a farmer, and, above all, one of the organizers of the Jacksonian party in Indiana. His home was at Salem. Will- iam Cotton was a Judge of Switzerland county. William Lowe was an Associate Judge and a lawyer, who moved to
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Bloomington about 1818 and became one of the leading law- yers of that village.
We can easily believe the provisions in the Constitution were the work of Johnson and Scott, with perhaps the aid of Parke, who later was called home and did not return till after the first committee assignments-June 14. However, on the same day, he and Nathaniel Hunt were added to the commit- tee on the judiciary. Parke was also chairman of the gen- eral committee on revision. Judge Scott was chairman of the committee on the judiciary and made the committee report on June 17. The report was discussed in committee of the whole next day, Judge Parke presiding. Some amendments were made. On June 20 the report was again in the hands of the committee of the whole, General Noble presiding. On June 21, the judiciary report was taken from the hands of the com- mittee of the whole and turned over to a select committee com- posed of Parke, Holman, Cotton, Benefiel, Dill and Lowe. This is significant from the fact that Parke and Holman, two radi- cal anti-slavery men, took the place of Scott and Johnson, the latter of whom was the leader of the pro-slavery party, with which Judge Scott usually voted.
On the 22nd, Judge Parke reported a system differing somewhat from the one reported by Scott. In the Supreme court two of the three Judges were made a quorum, while Scott had required a full court. In the Circuit courts, the President Judge alone or the two associates could hold court, except that in a criminal case the President Judge must be present. Scott had not limited the associates, but had per- mitted any two of them to hold court in any case. In section four, Scott had permitted all judicial officers to hold office for life. Parke made the term seven years. Scott had required the Supreme court to sit at the capital, a limitation which Parke did not make. In the selection of Judges, Scott had allowed the governor to appoint President Judges, a power taken away by the Parke draft. Under the Scott plan, the clerks were to hold office at the pleasure of the courts, but under the new draft they were limited to a seven-year term. A twelfth section was added, on motion of General Noble, which provided for the election of a competent number of
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Justices of the Peace, to serve for five-year terms in each county.
On June 25, Article V, on the Judiciary, was again taken up. Several amendments were proposed and voted down be- fore the article was passed to engrossment. On the 27th the article was passed and the work of the convention, so far as the judiciary was concerned, was ended. It is sometimes assumed, from the brief time of the sitting of the Constitu- tional convention, that there was little discussion. Such is not the whole truth. There were only a few books available from which the members might refresh their ideas on any subject. The convention at one time suggested that the state reimburse the citizens of Harrison county who had voluntarily donated money with which to buy books for the use of the con- vention. The convention was in committee of the whole a short time each day; it was in regular session another brief period, and the remainder of the day was spent by the various committees in their work. If by discussion is meant long- winded speeches, then none was had, for there is no evidence of a single speech by anyone on any subject.
Article V of the completed Constitution (1816) consists of twelve short sections, covering scarcely two pages. The first section, which reads, "The judiciary power of this state, both as to matters of law and equity, shall be vested in one Supreme court, in Circuit courts, and in such other inferior courts as the General Assembly may from time to time direct and establish," is almost a word-for-word copy of the corre- sponding section in the Kentucky Constitution. The phrase, "in Circuit courts," is the only difference. The second article resembles very closely the Ohio provision in everything except the grant of original jurisdiction. It provides for a Supreme court of three Judges, two to form a quorum, with appellate jurisdiction only. The General Assembly was, however, em- powered to grant the Supreme court original jurisdiction in capital cases as well as in certain chancery cases in which the President of the Circuit court might be personally interested. The third section dealt with the Circuit court. It was to consist of a President Judge and two associates, the President to serve for a whole circuit, of which there were to be three,
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COURTS AND LAWYERS OF INDIANA
the two associates for a single county. This was a Common Law as well as a Chancery court. It also had complete crim- inal jurisdiction. The President alone, or both associates, could hold court. The two associates could not sit on a capital case nor in chancery. The General Assembly was given power to increase the number of circuits as the state grew. The Circuit court idea was evidently borrowed from Pennsylvania, as neither Ohio nor Kentucky had exactly such a court. The Indiana courts had a smaller number of Associate Judges than those of any other state. In Pennsylvania there were three or four; in Kentucky, no definite number; in Ohio, two or three. The Ohio Circuit court was the ordinary Common Pleas court with chancery jurisdiction.
Section four provided for a seven years' tenure for all Judges and five years for the Justices of the Peace. There was a strong faction in the convention favoring life tenure, but the seven-year term was finally accepted as a compromise. The first draft by Scott, as noted before, was for a life tenure of the Judges. Pennsylvania and Kentucky Judges held for life, and Ohio Judges for seven years. The change is due to the growth of what was later an element of Jacksonian democracy. The reign of the "spoils system" was beginning. The citizens of Indiana criticised the tenure for being too long rather than too short.
Section five made each Judge, of whatever rank, a con- servator of the peace. The section is copied bodily from the Ohio Constitution. Section six directs that the Supreme court shall hold its sessions at the capital and the Circuit courts shall be held in the respective counties. All other questions of time, place and frequency are left to the discretion of the General Assembly. This section is an outgrowth of the experi- ence of Indiana Territory.
Section seven deals with the choice of Judges and bears on its face evidence of considerable struggle in the convention. The tendency of the times was away from life tenure and executive appointment. This tendency by 1816 was gaining considerable force in the western part of the United States- Ohio, Indiana and Illinois being more radical than Kentucky and Tennessee. Even the first draft of this section by Scott
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CIRCUIT COURTS, 1816-52
had broken away from the custom in the old states, where Judges of all kinds were appointed by the governor. Ohio had made them elective by the Legislature on joint ballot. In Kentucky, local Judges were appointed by the executive on the recommendation of the representatives from the section or district where the Judge was to serve. The Indiana Con- stitution provided that the governor should appoint the Su- preme Judges, subject to the ratification of the Senate; that the General Assembly, on joint ballot, should select the Presi- dent Judges ; and that the voters at the regular elections should choose the Associate Judges and the Justices of the Peace, the latter for a five-year term. The section looks very much like a compromise.
Likewise, in the choice of the officers of the court there is seen the growth of the tendency toward popular elections and short terms. The Supreme court was permitted to appoint its own clerk, but the Circuit court clerk was elected by the voter, no one, however, being eligible without a certificate from a Supreme or President Judge. This made the office a fairly continuous one. It has been noted above that General Dill served Dearborn county in that capacity more than a quarter of a century. The regular term of the clerk was seven years, but it usually happened that an efficient and ac- commodating clerk remained in office much longer, in many cases a lifetime.
It is significant that the articles on the judiciary in the con- stitutions of Pennsylvania, Tennessee, Kentucky, Ohio and Indiana have twelve articles each. A comparison shows a startling similarity and indicates that Pennsylvania had more influence on the states of the Ohio valley than any other of the original states.
Indiana had profited by its sixteen years of experience. Its system as laid down in its Constitution not only took advan- tage of this experience, but also of that of its sister states. Conflicting powers, duplicate or concurrent jurisdictions, and uncertainty of sittings had been the bad features of the terri- torial system. Jurisdictions had been chopped up until the law was bewildering to its suitors. A part of the probate business was handled by Probate courts, part by Orphans'
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COURTS AND LAWYERS OF INDIANA
courts, part by Chancery or Common Pleas courts. An attor- ney might be able to practice in one of the courts and not in another. There had been jealousy and wrangling between the territorial and local Judges, to the consequent demoralization of the litigants. The chief criticism that can be made on the Indiana system of 1816 is that it continued the pernicious system of Associate Judges. In most cases they were more than merely useless or meddlesome. As compared with the many superb men who rode the circuits as President Judges they were a very inferior class. Yet it is only fair to say that many excellent citizens were Associate Judges. The new system was simple and clear cut. The first General Assembly met before the state was admitted. It sat for only a brief session and was occupied mainly with those things necessary to putting the new government into running order. The Con- stitution expressly directed that the old courts continue until the new were organized and ready for business. Immediately on its convening the Assembly took up the work of organizing the judiciary. The act of December 24, 1816, divided the state into three circuits. The First circuit was composed of Knox, Gibson, Warrick, Posey, Perry, Pike and Daviess. The General Assembly, on December 21, 1816, elected Benjamin Parke President Judge of this circuit. He was succeeded after a brief time by Isaac Blackford. An imaginary trip with him will give us some idea of the times and work from the stand- point of the courts.
Beginning his circuit at his home at that time, he held court at Vincennes from the last Monday of February during the ensuing two weeks. He then went to Princeton in time to open court on the second Monday of March. After a two- weeks' session there, he proceeded through the wilderness along the trail to the Ohio. His next court began at the county seat of Posey at Blackford, a town named for Judge Blackford, and located in the northeast corner of what is now Marrs township. There, where cornfields now hold sway, the county of Posey had just completed, or perhaps the builders were still working on, a magnificent court house, twenty-six by twenty, "to be built of logs of a handsome size, hewed down inside and out, one story and a half high, with one door fronting the
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CIRCUIT COURTS, 1816-52
street and one window right opposite the door, with six panes of glass, eight by ten each; lower floor to be well laid with plank of puncheon, the upper floor to be laid with plank with a convenient staircase from the lower; the house to be well covered with a clapboard roof, with ribs and weight poles well peeled; one chimney to be handsomely built of sticks and mortar; the house to be well chinked and daubed, and also to be well underpinned ; all the timber to be of some good lasting quality ; also one window to be cut in the gable end of the upper story finished as the window below; each one to be furnished with convenient shutters, all the other parts of said building to be finished and done in a workmanlike manner."
After a term of two weeks in this palace of justice, the Judge had to make his way to Darlington, in Warrick, where another new court-house had just been "reared" at a cost of two hundred and ninety dollars. He opened court here on the fourth Monday of March. (It may seem difficult to hold court at Blackford for two weeks after the third Monday of March and get to Darlington in time to open court the fourth Monday, but such was the law.) This court calendar seems inexplic- able, but as a matter of fact the President Judge stayed for the important trials only and usually left the last week of the session in the hands of the Associate Judges.
Proceeding eastward, our Judge had to traverse fifty miles of wilderness by the Evansville-Corydon postroad, or perhaps by boat to Troy, the county seat of Perry, where, in the house of Associate Judge McDaniel, he was due to hold court on the first Monday of April. Doubling on his trail after closing court at Troy, he headed north on the Maxville-Vincennes trail for Petersburg, where a new county government-Pike-was put in operation on February 1, 1817. His court here was to open on the second Monday of April, and on the following Monday he was due at Liverpool (now Washington), Daviess county.
Allowing one week for each appointment, although the statute said two weeks, provided there was sufficient business, it would thus require seven weeks, or approximately two months. The distance around the circuit was about one hun- dred and seventy-five miles, or twenty-five miles between ap-
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pointments. The travel alone would require at least a full week.
He was due for his second term of the year at Vincennes on the last Monday of May ; at Princeton on the second Monday of June; at the Posey county court-house on the third Monday of June; at Darlington on the fourth Monday of June; at Troy on the first Monday of July ; at Petersburg on the second Mon- day of July ; at Washington on the third Monday of July.
For his third trip, he started at Vincennes on the third Monday of September and opened his last court for the year at Washington on the third Monday of November. Thus for nine months of the year he was continually on the circuit. During the winter, courts were not in session at first. As new counties were formed and litigation increased, terms became longer and the whole year was consumed.
The Second circuit was composed of Clark, Jackson, Wash- ington, Orange and Harrison. David Raymond was selected by the General Assembly as the President Judge for this cir- cuit. He was an attorney from Vincennes, but what became of him does not appear. He served less than one year.
He held his first court at Charlestown on the third Monday of March, 1817. William Goodwin and John Beggs were his Associate Judges in Clark county ; Isaac Shelby was his clerk.
From Charlestown, the Judge made his way by the Dela- ware trail to Vallonia. Here, on the first Monday of April, 1816, the same David Raymond (the clerk spelled it "Ray- man") held court in the house of William Crenshaw. Joseph Kitchell and the well-known pioneer, John Ketcham, were his Associates. The first case on this old docket is a slander case of Joseph Kitchell against James Hutchinson. It was tried before four arbitrators.
From Vallonia, or Brownstown, where court was afterward held, this circuit rider went to Salem, thence to Paoli, and thence to Corydon and up the river home. He was due at Salem the second Monday of April, at Paoli the third Monday of April, and at Corydon the fourth Monday of April. He thus had only a week for each appointment, including the time necessary to travel from place to place. The maximum ses- sion of court at each place was twelve days, though it is evi-
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