USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 8
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Those customs which, after long use, have been found good, are incorporated in these fundamental laws and so a code grows from year to year and from century to century. It would be no more accurate to say the boy of ten was the same as the sage of eighty than to say the Laws of Numa were the same as the Institutes of Justinian, yet in each case the one grew imperceptibly into the other.
The most stubborn conflicts of history have occurred over the laws and courts-the Constitution of society. Men look upon their courts and laws as the expression of their national or social character. A changing and uncertain system of laws indicates an unstable people, a vacillating character, light and frivolous. For these reasons, changes in fundamental laws are apt to be resisted much as individual persons resent asper- sions on their own private character and reputation. The Civil Wars of Rome, the French Revolution, and our own War between the States are instances of how tenaciously the people oppose sweeping changes in their national laws and courts. It is pointed out by historians that the strong nations of the world are those which have best preserved their legal systems through long stretches of time. The American Colo- nies in the great Declaration called the world to witness that England had violated the principles of her Common Law, the preservation of which, in the eyes of the colonists, was worth more than the preservation of their own lives.
Courts and lawyers are as a rule conservative. There are several reasons not only why this is so, but why it should be so. The law follows the old maxim of trying all things and holding fast to that which is good. "Weary lawyers with endless tongues" have pleaded before perpetual courts since the dim dawn of history. All manner of theories and rules have been advocated by attorneys to settle all kinds of dis- putes. From the maze of these pleadings, courts have been compelled to choose what rules seemed best. They have learned to hold fast to their ancient landmarks until their footing on the new was secure. Then, also, widespread prop- erty interests depend on the abiding nature of the law. A slight change in a rule of law may require vast changes in business and society. Such change necessarily must be made
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slowly, else both business and society give up in despair and become either anarchistic or hopeless. The result in either case is disastrous. A third cause of the conservatism of courts and lawyers is found in the nature of the education of lawyers. Until quite recently the great majority of them have been educated by "reading law" with older lawyers. This tradi- tional teaching is essentially conservative. The courts in their decisions must give heed at all times to previous decisions, otherwise unendurable chaos in society would result. On the other hand, courts are ever on the alert to re-interpret laws to meet new conditions or new inventions.
A society hardly can be said to be civilized until it has some established means by which personal or business diffi- culties may be adjusted-some kind of legal system. If this be a just observation, then the civilized existence of society in Indiana began, in theory, July 13, 1787, when the Confedera- tion Congress enacted the Ordinance of 1787. There had been civilized people in the land for almost a century preceding, but the inhabitants of Vincennes had no system of legal tribunals to which to answer. The authority of the priest and the military commandant went unchallenged. When Virginia organized the country in 1778 and 1779 as the county of Illinois, John Todd was sent out as civil governor. Before he could accomplish much he lost his life in the Battle of Blue Licks, August 18, 1782. The statute under which Colonel Todd acted provided that the laws and customs of the French inhabitants should remain in force. A so-called "Court of Vincennes" was organized at Vincennes in June, 1779, but the only important business carried on by it seems to have been the granting of land. As a conservator of the peace or a dis- penser of justice this court is hardly worthy of consideration.
As mentioned above, the first systematic government of Indiana, founded on general laws and competent courts, dates from the passage of the Ordinance of 1787. Among other provisions, the Ordinance directed Congress to appoint "A court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in five hundred acres of land, while in the exercise of their office ; and
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their commissions shall continue in force during good be- havior." All judicial proceedings were to be held "according to the course of the common law." Complete religious free- dom was guaranteed to all persons.
The three Judges together with the governor were also authorized to "adopt and publish in the district, such laws of the original states, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress from time to time, which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved by Congress." "For the prevention of crimes and injuries, the laws to be adopted shall have force in all parts of the district, and for the execution of process, criminal and civil, the governor shall make proper divisions." The general guarantees of English civil liberty were reenacted, slavery was prohibited, and primogeniture abolished. Thus was a competent court provided and a com- prehensive jurisdiction established for the whole Northwest Territory of which the present Indiana was a part.
Congress lost little time in putting the contemplated gov- ernment into action. The settlers on the north side of the Ohio were demanding a government. Therefore, on October 5, 1787, Congress selected for the difficult work of inaugurat- ing the first colonial government of the United States Gen. Arthur St. Clair, a Scotchman by birth and a soldier of the French and Indian and Revolutionary Wars. Eleven days later, Congress selected as the three territorial Judges, Samuel Holden Parsons, John Armstrong and James Mitchell Varnum. On the 16th of the following January, Armstrong declined the appointment and John Cleves Symmes was appointed instead. On July 9, 1788, Governor St. Clair arrived at Marietta, the capital of the Northwest Territory. Six days later he read a proclamation formally instituting the new government.
As soon as the new Constitution of the United States be- came operative it was necessary to reorganize the Marietta government. President Washington reappointed most of the territorial officers in 1789. William Barton was appointed to succeed Varnum, who had died January 10, 1789. Barton declining to serve, the position was filled by the appointment
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of George Turner. Judge Parsons, having lost his life while trying to swim his horse across a swollen stream, was suc- ceeded by Rufus Putnam in 1790. Putnam continued in office six years, when he resigned to become surveyor-general. He was followed by Joseph Gilman. Judge Turner became involved in a quarrel with his constituents and resigned in 1796. Return Jonathan Meigs took his place. Meigs, Gilman and Symmes continued to serve till after the division of the territory in 1800.
The first collection of statutes adopted for the Northwest Territory was known as the Maxwell Code, from the name of the printer in Cincinnati. It was published July 14, 1795. These, however, were not the first statutes adopted by the governor and Judges. They had met at Marietta in 1788 and passed ten statutes. Other legislative sessions were held from time to time down till June 1, 1795, when Governor St. Clair and Judges Symmes and Turner met at Cincinnati and adopted from the laws of the states thirty eight statutes. By far the greater number of these were taken from Pennsylvania. In 1798 the general court met again at Cincinnati and adopted eleven brief amendments to the Maxwell Code, thus completing the law-making for the Northwest Territory, while Indiana was a part of it. The general nature of this code will be dis- cussed later, since it formed, in large part, the basis for the courts and pleadings of early Indiana Territory. The laws passed by the first session of the General Assembly did not generally go into force in Indiana Territory on account of the separation occurring so soon afterward (May 7, 1800).
The first courts of the Northwest Territory were consti- tuted by an act of the Old Congress, August 23, 1788. A gen- eral or circuit court was established for the entire territory. This court, held by all members sitting together or by one alone, was the highest trial court in the system. It met annu- ally at Marietta in October, at Cincinnati in March and at Detroit, Vincennes and Kaskaskia, when one of the Judges was able to reach those places, an event very problematical. The lesser courts had no jurisdiction in Indiana and will not be described here.
Dr. S. P. Hildreth, in the American Pioneer, gives the fol-
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lowing description of the opening of the first court at Marietta, September 2, 1788:
"The procession was formed at the Point [where most of the settlers resided], in the following order :- 1st, The high sheriff, with his drawn sword; 2nd, the citizens; 3rd, the offi- cers of the garrison at Fort Harmar; 4th, the members of the bar; 5th, the supreme judges; 6th, the governor and clergy- men ; 7th, the newly appointed judges of the court of common pleas, Gen. Rufus Putnam and Benj. Tupper.
"They marched up a path that had been cut and cleared through the forest to Campus Martius Hall [stockade], where the whole countermarched, and the judges [Putnam and Tup- per] took their seats. The clergyman, Rev. Dr. Cutler, then invoked the divine blessing. The sheriff, Col. Ebenezer Sproat, (one of nature's nobles), proclaimed with his solemn 'O yes' that a court is opened for the administration of even-handed justice to the poor and the rich, to the guilty and the innocent, without respect of persons; none to be punished without a trial by their peers, and then in pursuance of the laws and evidence in the case. Although this scene was exhibited thus early in the settlement of the State, few ever equaled it in the dignity and exalted character of its principal participators. Many of them belong to the history of our country in the dark- est as well as the most splendid periods of the Revolutionary War. To witness this spectacle, a large body of Indians was collected from the most powerful tribes then occupying the entire West. They had assembled for the purpose of making a treaty. Whether any of them entered into the hall of justice or what their impressions, we are not told."
The old pioneer was proud of the performance and hangs lovingly on the picture. One does not have to point out that we here have, at the very beginning of the judicial life in the Northwest, a union of the ceremonial spirit of New England with the courtliness of Virginia.
The General court, or, as it was generally called, the Ter- ritorial court, corresponded most nearly to our Circuit court. It was a Common Law tribunal without chancery powers. It had original as well as appellate jurisdiction in all civil and criminal cases. In capital and divorce cases it possessed exclu-
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sive jurisdiction. It differed from our Circuit courts chiefly in that it was a dernier ressort. It could revise and reverse the decisions of all courts below it, even though one of its own justices had presided. Even the Supreme court of the United States could not review its decisions. This last condition gave it a very possible means of tyranny. Congress restricted those who practiced at its bar. This court was also a legislative body with ample power. The fact that it administered these same laws without the right of appeal from its decisions made it a very possible means of tyranny. Congress had restricted the court in its legislative capacity to the power of choosing laws already in force in some state. The court disregarded this limitation and in its earlier years legislated like a sov- ereign body. A brief comparison of the early laws with those from which they were supposed to be drawn will show in a brief time the liberty it assumed.
Many of the lawyers chafed at this unwarranted power, but all recognized their helplessness, since no appeal might be had. Another circumstance added to the dissatisfaction on this point. Many of the cases brought before the court, espe- cially at Marietta and Cincinnati, related to land deals. In these cases it often happened that one of the Judges, or fre- quently the whole court, was directly interested. Judge Symmes was the proprietor of all the land between the Big and Little Miami. He had seized a large tract of land to the east of this grant and had set his surveyors to work. The Gov- ernor had ordered him to stay off, but the Judge went on and sold the land. Judge Turner purchased a large tract of land from Symmes. Varnum, Putnam and Parsons were all connected with the Ohio Company. The attorneys might well despair of winning a land case against such a court. How- ever, excepting an occasional flurry, the court and attorneys got along amicably during the twelve years while Indiana was a part of the Northwest Territory.
The Judges of the Territorial court were men of distinc- tion and widely recognized ability. Parsons was born in Con- necticut, graduated from Harvard, and began practicing law in 1759. He served in the Legislature of his native state, and rose to the rank of major-general in the Revolutionary army,
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serving on the commission that tried Major Andre. Arm- strong, who served only a few months, was a Pennsylvanian by birth, a student at Princeton, a soldier of the Revolution, later a United States senator, and minister to France at a most critical period. He is well known as an author. Varnum was from Massachusetts, a graduate of Brown, and a soldier of the Revolution. He served in the Continental Congress, and was one of the first lawyers of his day. Symmes was a New Yorker by birth, had sat in the Continental Congress and at the time of his appointment was serving as a judge in New Jersey. Gen. Rufus Putnam's name and career are too well known to all readers of United States history to require a sketch here.
Return Jonathan Meigs was a native of Connecticut, and a graduate of Yale. He was the most famous of this group of men, all of whom are well known to fame. After his serv- ice on the bench, he sat on the Supreme Bench of Ohio, served as governor, became a United States Judge in Michigan Terri- tory, a general in the War of 1812, a United States senator, and a cabinet member under Madison and Monroe. All were high-class men. Among the practicing attorneys also were many noteworthy men, but further notice of them would be out of place here. One of them, Jacob Burnet, of Cincinnati, a native of New Jersey and a graduate of Princeton, in his "Notes on the Northwestern Territory," has left us the best extant description of this old court.
Riding the circuit in the old days was not an unmixed pleas- ure. In passing from one county seat to another it was often necessary to spend ten or twelve consecutive nights in the wilderness. The party usually consisted of the three Judges, a clerk, young Arthur St. Clair, and from five to ten attorneys. No lawyer thought of staying at home and practicing in his home court only. In making the trip from Marietta to Cincin- nati, the trail-only a bridle path through the woods-led across at least a score of streams, varying in size from a small mill stream to the Scioto river, the largest of which had to be crossed by swimming their horses. The attorneys carried their books and papers in old-fashioned leather saddlebags. In swimming the streams they put these around their necks to
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keep the papers dry. They usually carried provisions for them- selves and horses for the entire trip, and slept in the open air, with their saddles for pillows and their cloaks for coverings. In spring and fall the traveling was not so disagreeable, but in hot or cold weather it was-in winter, on account of cold, in summer, on account of mosquitoes and chiggers. The follow- ing short sketch from Jacob Burnet's "Notes on the North- western Territory" is worth preserving for the picture it presents :
"On our return journey from Detroit to Cincinnati we crossed the Maumee river at Roche de Boeuf by the advice of Black Beard, a personal friend [Indian] of Judge Symmes, who lived in that neighborhood, and with whom the party breakfasted. As a matter of precaution we hired his son to accompany us in the capacity of guide. He led us through a succession of wet prairies, over some of which it was impossi- ble to ride, and it was with great difficulty we were even able to lead or drive our horses through the deep mud which sur- rounded us on all sides. After two days and a half of inces- sant toil and difficulty we arrived at the same Indian village in which we had been so hospitably treated and so much amused on our outward trip. To our great mortification and disappointment we were informed that Blue Jacket had re- turned from Cincinnati a day or two before with a large quan- tity of whiskey and that his people were in a high frolic. This information was soon confirmed by the discovery that the whole village, male and female, was drunk. We were received, however, with great kindness, but it was in a style we were not disposed to permit.
"An old withered-looking squaw, very drunk, was extremely officious. Knowing that Mr. St. Clair, one of the party, was the attorney-general of the Territory and son of the Governor, her attentions were principally conferred upon him-she kissed him, and exclaimed 'You big man-governor's son,' then turning to the rest of the party, said with marked con- tempt, 'You be milish,' and then kissed Mr. St. Clair again. It was certainly one of those rare occasions, on which men of sensibility and delicacy feel the advantage of being placed at a low grade on the scale of dignity.
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"It was manifestly impossible to remain in the village, and the only alternative was to proceed on our journey. It was late in the afternoon; we were much fatigued, and had a wet swampy path of twelve miles to pass over, to the St. Mary's through a valley swarming with gnats and mosquitoes. It was a choice of evils ; but as there was no room to hesitate, we saddled our horses and started. Night overtook us in the mid- dle of the swamp. There being no moon, and the forest very dense, it was found impossible to keep the path, much less to see and avoid the quagmires on every side. We had no alter- native and were compelled to halt till morning. To lie down was impossible, from the nature of the ground; and to sleep was still more difficult, as we were surrounded with gnats and mosquitoes. After remaining in that uncomfortable condition five or six hours, expecting every moment our horses to break away, daylight made its appearance for our relief. About sunrise we arrived at the old fort, Adams, at the crossing of the St. Mary's, then occupied by Charles Murray and his squaw, where we got breakfast, and proceeded on our way to Cincinnati."
Governor St. Clair made no effort to extend civil govern- ment to the western part of his territory till the beginning of 1790. Leaving Marietta about the first of January, he pro- ceeded down the Ohio to Cincinnati where he organized Ham- ilton county ; on January 8 he reached the rapids at Fort Steuben, now Jeffersonville. He did not lay out a county for the settlers on Clark's Grant, but he did organize a court, the first court of the Northwest Territory organized in what is now Indiana. William Clark, of Clarksville, was appointed justice of the peace and captain of the militia of the town and vicinity. John Owens was made lieutenant. It seems that the William Clark above referred to was the youngest brother of George Rogers Clark, though it may have been the William Clark who was appointed Judge of Indiana Territory in 1801, or it possibly may have been the William Clark who was sur- veyor-in-chief of Clark's Grant, and who had his headquarters at Clarksville. Among the residents of Clarksville in 1784, both William Clark and John Owens are given. Whoever the justice, the court seems to have had little business, if indeed
-
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it continued its existence down till the organization of Clark county. The Governor tarried only a short time at the Falls and then proceeded on his way to the Illinois country. He fully intended to go from Kaskaskia to Vincennes, but the threatening condition of the Indians made it necessary for him to return directly to Fort Harmar at Marietta.
When Governor St. Clair returned to Ohio he left Winthrop Sargent, his secretary, with instructions to go to Vincennes and organize a local government. Sargent set out at once for Vincennes, where he arrived in a short time and (June 20, 1790) laid off the county of Knox. Its ample boundaries in- cluded most of Indiana and Illinois, comprehending all the set- tlements in what is now Indiana. On the Ohio river it took in the northern bank from the Great Miami, in Ohio, to Fort Massac, in Illinois. John Small, a gunsmith and a local poli- tician, who later served in the Legislature of the Northwest Territory, was appointed sheriff. John Mills was made notary, a position of some importance among the French inhabitants.
On July 3, Acting-Governor Sargent organized the County court for Knox county. The Judges of the Common Pleas court were Pierre Gamelin, Louis Edeline and James Johnson ; the Justices of the Quarter Session were Antoine Gamelin, Paul Gamelin and Francis Busseron. A Probate court was established and Antoine Gamelin appointed Judge; Samuel Baird was made prothonotary and clerk; John Mills was made recorder of deeds; James Johnson and Luke Decker were named justices of the peace; and, last of all, Christopher Wyant was named coroner.
No wonder the poor French settlers of Vincennes at once petitioned Congress to be relieved of the blessings of freedom and self-government! They were accustomed to an inexpen- sive government, very much resembling the manorial system of the Middle Ages. The law of the land since the time of Crozat had been called rather grandiloquently the Coutume de Paris. Evidently no one knew what the "customs" of Paris were, so the commandant and priest, who, together, had been the whole government of the French settlements for nearly a century, had administered the Coutume de Pays, or customs of the country, somewhat after the fashion of the Common Law.
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The French had come to America during the Ancien Regime and consequently were not imbued with any of the republican principles of the revolution. They saw no need of either laws or law courts and a lawyer was to be avoided of all men. The majority of the first court officers were French and showed no capacity for political affairs. The government soon fell into the hands of the Americans, where it remained.
Whether they were responsible or not, there was certainly plenty of work for these first Indiana courts to do. Conditions at Vincennes, so far as lawlessness was concerned, were about as bad as could well be imagined. No higher tribute can be paid to the early lawyers of Indiana than is involved in a com- parison of Vincennes at the time of the visit of Count Volney, with it in 1810 after an American court had been in power ten years.
Vincennes after 1790 was also the seat of a Circuit or Ter- ritorial court such as met at Detroit, Marietta and Cincinnati. The visits of the Supreme Judges of the Northwest Territory were most especially noted for their infrequency. It was stated in Congress, while discussing a separation of the North- west Territory in 1800, that during a period of five years there had been in the three western counties of Knox, St. Clair and Randolph only one session of a court having competent juris- diction to try and punish felons. Such a country, of course, soon became a rendezvous for criminals of the worst type. The Judges are hardly to be blamed. The distance from Cincin- nati to Vincennes by river was about one thousand miles ; from Marietta to Kaskaskia, over one thousand five hundred miles; from Detroit to Vincennes, over five hundred miles through an unbroken wilderness. The same neglect was often observed in the local courts. Offices were left vacant for years because no one would perform the unpleasant and unpopular duties for the meager pay offered.
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