USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 9
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There was apprehension at Vincennes from the very begin- ning of the Northwest Territory. Many of the inhabitants were slaveholders and there was uncertainty as to how the Judges would construe the provisions of the Ordinance of 1787 with regard to slavery. Under the French kings the French settlers had held slaves unmolested. Most of the early Amer-
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ican settlers at Vincennes were likewise not averse to the prac- tice and were holding slaves at the time. Large numbers of the French on this account moved across the Mississippi into Spanish territory, where they were assured that all their rights would be respected. Other masters freed their slaves after binding them by indentures. Still others, chiefly Amer- icans, decided to face the threatening danger boldly. Of the latter class, Judge Henry Vanderburgh, a Revolutionary vet- eran of New York, was a good example. It may be observed here that all the Supreme Judges of the Northwest Territory were men of pronounced anti-slavery sentiments. Governor St. Clair had expressed it as his opinion that the Ordinance of 1787, which prohibited slavery, was not retroactive; that while it might and would prevent slaves being brought into the territory, it could not free those already held therein when the law was enacted. While this assured the people somewhat, it did not entirely allay their fears, since they knew it was a matter for the courts and not the governor to decide. Van- derburg, who had brought slaves with him to Vincennes, was not averse to a contest with Judge Turner, who held court in Vincennes in 1794. Moreover, Vanderburgh at the time was Probate Judge, Justice of the Peace and one of three commis- sioners empowered to sell liquor to the Indians. The difficulty is not explained fully in the correspondence, but it seems that Vanderburgh prevented the sheriff (his friend) from carry- ing out orders of the higher court. Judge Turner de- nounced the Probate Judge to Governor St. Clair and threat- ened impeachment. The Governor, who opposed Turner's in- terpretation of the law, succeeded in quieting the matter at least for a time. However, an Illinois grand jury, incited by the proslavery faction, presented to Congress formal charges against Vanderburgh, but before they were brought to a trial Turner resigned.
Judge Turner also attempted to break up the illicit liquor traffic then going on with the Indians. His investigations soon led him to Capt. Abner Prior as the head of this trouble. Prior was also one of the liquor commissioners and at the same time a captain in the regular army in the company stationed at Fort Knox, a few miles above the village. Again the governor tried
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to quiet the matter, but without success. When the quarrel was at its height the company of soldiers was removed and the issue was never brought to trial.
These and a score of other cases which might be recited show how onerous was the task imposed on the early courts of the Northwest. The Judges had a most important mission to perform in reducing a lawless people scattered over a wilderness empire to the restraints of orderly society. It was most fortunate for the young states about to be created that the Judges were men of sterling character and fearless courage.
A brief survey will show what a large part the Judges and courts played in local territorial government. Circuit courts, as stated above, were established throughout the territory in the county seats. Only a territorial Judge could preside over these. For this purpose the Judges rode the circuit. One Judge could hold these courts, though frequently two or more sat together. Besides the regular sessions, supposed to be quarterly, the Judges could hold special sessions when occa- sion warranted. These special sessions were called "jail de- liveries," being usually called when the sheriff notified the Judge that several prisoners were in jail; especially was this advisable if one of the prisoners were a murderer or horse thief who would probably hang.
The highest of the local courts were the Common Pleas and the Quarter Sessions. The former was a civil court, having jurisdiction over civil pleas between citizens of the same county. In the unsettled society of the frontier there was end- less litigation for this court. It ranked somewhere between our Justice court and the county Circuit court. It was very difficult in Vincennes in the early days to get competent Judges for this court. Three Common Pleas Justices usually sat to- gether, one of whom should be a lawyer, though one of them, the lawyer, frequently held court alone.
The Quarter Session courts were of equal rank with the Common Pleas and usually presided over by the same Justices. They had jurisdiction over petty crimes and misdemeanors, such as gambling, provoke, assault and battery, and drunken- ness. There were three of these Justices for each court, any
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one of whom could issue a common law writ for apprehending a criminal and receive bail after the culprit was arrested. For reasons of convenience it was desirable to select these Justices from the various parts of the county. If the evidence showed that a felony had been committed the Justice "bound over" the criminal to the Circuit court.
These minor courts, which ought to have been as free as possible in their action, were limited by all the formalities of the Common Law and many to which the Common Law was a stranger. Of the thirty-eight laws found in the Maxwell Code, not fewer than thirty deal directly with court procedure and the limits of jurisdiction.
The whole local government was in the hands of the Justices. Under the Act of 1788 one or more Justices could hear petty cases out of court time. Their criminal processes ran in every county in the territory. All debt cases where the sum involved was not over five dollars came under their cog- nizance. They could force jurors to sit, under penalty of a heavy fine. In many cases the board of Justices served as county commissioners. Where this was not the case the Jus- tices appointed the commissioners, one of whom they named each year to serve three years. If any public improvement were contemplated by the county, such as building a bridge or a court house, it had to be decided upon by the board of Jus- tices. The Justices received the wolf scalps and gave the owner an order on the county treasurer therefor. For each township they appointed annually two overseers of the poor, who levied the poor rate, looked after the poorhouse, paid out all public charities and cared for orphans, always subject to the control of the Justices.
The Justices of the Quarter Sessions appointed all fence viewers. The latter, in turn, had the power of saying what a legal fence was. The Justices recommended tavern keepers to the governor, by whom they were licensed. After the tav- ern keeper had secured his license he must go to the Justices to get his rate card, specifying the exact amount to be charged for each and every service. It was also the Justices' duty to see that this rate card was observed. Under the gaming law the Justices could summon anyone except a freeholder before
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them and put him under bond for good behavior. The Jus- tices clearly held the future of the government in their hands. Nor was this extraordinary. In all the southern colonies, as well as in England, the country squires were the conservators of peace and order. This was not a condition created in oppo- sition to the will of the people. The Justices as a rule were the substantial citizens of the community and performed these judicial functions, not for any gain in sight, for the pay was inconsequential, but purely from motives of public spirit.
Very much has been said, ignorantly, about the harshness of the laws of the Northwest Territory. Judged by our stand- ards of today, they do seem harsh. But marvelous progress has been made in the century since then. In the field of trans- portation, we have the automobile in place of the ox team; in wearing apparel, we have broadcloth in place of buckskin; on the farm we have the harvester in place of the sickle; we have the breechloading gun instead of the flintlock; we have hotels instead of hollow trees for the travelers.
Why should not also lawyers and law courts make some progress in such a wonderful age? The cruelty of the laws of the Northwest Territory of 1790 must be judged not by the laws of today, but by the laws elsewhere in 1790.
England at this time boasted of two hundred and twenty- three capital crimes. There are scarcely that many crimes known to our courts today. Hangings were a daily attraction at the larger English prisons. Charles Wesley, in 1776, said he preached a sermon to about twenty condemned criminals and they all died penitent. A third of a century after 1790, conspirators were hanged and decapitated, and their bloody heads exhibited on posts at Temple Bar, London. The criminal law of America has never been so bloodthirsty as that of England, but still one is not struck with its gentleness. In Massachusetts, Connecticut and Rhode Island, so late as 1789, there were ten capital crimes. Delaware had twenty-four. A number of these latter were occasioned by the institution of slavery.
An excellent view of the criminal law of the period can be had by a study of Jefferson's attempt at that time to reform the criminal law of his state. Jefferson, as is known of all
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men, was a humanitarian far in advance of his time. His reform would most certainly be in the direction of leniency and amelioration. His principle of punishment was to suit the punishment to the crime. Thus one who killed by poison should die by poison ; the duelist who killed his man was to be left hanging on the gallows-tree till the birds picked his bones ; every person who maliciously maimed another should be maimed similarly. Larceny was to be punished by the pillory ; public deceivers should be ducked and whipped. The stocks, ducking stool, branding iron, whip, cropping knife, jail, rope, wheel, stake and cage were all known in America and most of them in use. Negroes were still burned at the stake in Dela- ware and New York; it was even provided that in aggravated cases they should be burned with green wood so as to prolong the misery.
Another line of reasoning will show that the Northwest courts were not more barbarous than other courts. Congress limited the Judges in their lawmaking capacity to the selection of laws then in effect in older states. It follows that the most atrocious laws cannot be worse than the worst in some of the states. The character of the Judges warrant the inference that the common good of society was the leading purpose in their legislative activity.
Imprisonment for debt, even as low as five dollars, was the law; petit larceny drew a penalty of fifteen lashes well laid on the bare back, together with a payment to meet the expenses of the whipping. A law of 1798, passed by the Territorial Legislature, provided that anyone guilty of maiming or dis- figuring another might be imprisoned for six months and then sold to the highest bidder as an indentured servant for a period of five years. A law of 1792 provided that "there shall be erected and established in each and every county not having the same already established therein a good and convenient court-house for the legal adjudication of causes and a strong and sufficient common jail or prison for the reception and con- finement of debtors and criminals, well secured by timber, iron bars, grates, bolts and lock, and also a pillory, whipping post, and so many stocks as may be convenient for the punishment
(2)
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of offenders and every jail so to be erected shall consist of two apartments one of which shall be appropriated to the reception of the debtors and the other shall be used for the safe keeping of persons charged with crimes." A law of the same session provided that if a prisoner escaped by reason of the negli- gence of the jailer, the latter should pay whatever fine or suf- fer whatever punishment was due the escaped criminal. In view of these and other instances which might be given it be- comes apparent that the laws and the court procedure were barbarous enough.
The Marietta statutes of 1788, which were in effect only a short time, defined nine crimes, for two of which there was no penalty provided. Three of these were capital-treason, mur- der, and arson if a death resulted. Fine, imprisonment as long as forty years, and thirty-nine stripes were the punishments for burglary and robbery. A perjurer was in hard luck. He could be fined, given thirty-nine lashes on the bare back, dis- franchised and put in the pillory. The thief was fined and whipped ; if unable to pay the fine, he could be sold for seven years to someone who would pay the fine. The forger was fined, disfranchised and put in the pillory. Fifty cents was the first fine for drunkenness, one dollar for the second. If the fine was not paid the culprit must go to the pillory. Profanity and Sabbath breaking were pointed out in a law as practices unbecoming a good citizen, but no penalties were defined. Had these offenses been made punishable in the western counties the courts would have been overwhelmed.
As stated above, the Justices controlled the politics, what little there was, even down perhaps till the Civil War. They virtually appointed the tavern keeper, who in his turn con- trolled the rowdies of the neighborhood, The sheriff was fre- quently not in sympathy with the Judges of the Circuit court, whose processes he was supposed to carry out. An echo of this is seen in the law of 1792, which virtually compelled the sheriff to take the place of the escaped criminal. On the other hand, the sheriff may easily have been blamed in those old times for many jail deliveries which he could not possibly pre- vent. A jail hastily constructed of green poles, with a des-
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perate criminal on the inside and his friends on the outside, was at least a precarious situation for an honest sheriff.
The West at that time was full of desperate criminals. This condition was not peculiar to the Northwest. Every frontier is largely a dumping ground for the social misfits of settled society. In the history of crime there are few worse criminals to be found than the professional horsethief. The Northwest was full of them. They continued to infest the country until the railroad and telegraph made their business impossible. Counterfeiters rendezvoused in the wilderness and deluged the back country with their spurious products. Less skilled thieves were satisfied with stealing cattle and hogs, which ranged the forest half wild. Another class of criminals frequently in evi- dence, though rarely convicted, carried on illicit trade with the Indians, using liquor as a means of debauching the Indians and cheating them out of the furs they had collected.
In concluding this chapter, it is only justice to acknowledge the deep debt of our state to the pioneer courts and lawyers. The lawyers were by far the best educated class of men in that early society. The struggle which they carried on successfully with the powers of crime and confusion required not only pro- fessional skill and great physical courage, but it also required the vision of seers who could see in that wild society the possi- bilities of great states. It required skill and patience to dis- cern the good and the evil, discrimination to separate them and, while driving out the vicious, to nurture carefully the forces of progress.
CHAPTER II.
COURTS OF INDIANA TERRITORY-1800-1816.
GENERAL CONDITIONS.
While a discussion of the bar of Indiana is not strictly a part of this chapter, it is manifestly impossible to get a clear idea of courts without some knowledge of the character of the lawyers who constitute them. Courts are neither better nor worse than the lawyers who conduct them.
The first General Assembly of the Northwest Territory had enacted a strict law governing the admission of attorneys to practice. One of these provided for a residence requirement of one year; another requirement was a four-year course of reading under a practicing attorney. After this the applicant had to undergo a rigid examination by the Judges. The sec- ond act of the Governor and Judges of Indiana Territory, January 20, 1801, repealed both the above provisions. Why this change was made does not appear conclusively, though one cannot avoid the suspicion that the early Judges of Indiana Territory were men of lesser ability than their predecessors of the Northwest Territory. Governor Harrison was not a lawyer, and military men as a rule have not had very much patience with the refinements of the law. William Clark, Henry Vanderburg and John Griffin, the territorial Judges, were not lawyers of the first rank, such as had graced the courts of the Northwest Territory. It must not be expected then that the courts of Indiana Territory ranked in ability with those of the older territory.
On the other hand they may have gained in directness what they lost in polish and formality. The old territorial courts had failed in what is now Indiana and Illinois. The
Lake Superior
Lake Huron
Lake
Miohigan
Lake Erie
INDIANA
TERRITORY
NORTHWEST
TERRITORY
Knox County
St. Clair
Randolph
INDIANA TERRITORY, 1800.
By Ernest V. Shockley.
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highly formal and specialized courts which were understood and appreciated by the New Englanders in Ohio found no response among the Southern immigrants who made up the larger portion of the settlers in Indiana Territory. The same observation is true with regard to the French at Vincennes, Cahokia and Kaskaskia.
One of the chief reasons for dividing the Northwest Terri- tory had been the failure of the courts to enforce the law. The old territorial court had found it impossible to visit the west- ern settlements often enough to enforce any respect for its authority. Not only the lawless element, but even the inferior Judges and county officers, often found themselves in oppo- sition to the territorial Judges. It has already been noted how Judge Turner stirred up so much trouble on one of his western trips that he was threatened with impeachment and finally forced to resign. The trouble was not only in the natural law- lessness of the frontier and the distance from the territorial capital, but, to a considerable degree, it lay in the attitude of the people themselves toward courts and lawyers. The New England settlers in Ohio came, many of them directly and the others indirectly, from long-settled communities where law courts and lawyers were regarded with a veneration closely approaching that paid the clergy. The settlers of Indiana and Illinois, on the other hand, might be called "professional" or "chronic" pioneers. For a century they and their ancestors had rarely felt the restraining hand of the law. The few law- yers they had known had little dignity and much less learning. Each settler was accustomed to do that which seemed right in his own eyes, restrained only by his own sense of justice, which was usually keen, or by fear of summary punishment at the hands of a vigilance committee. One who does not realize this deep difference between the settlers of Ohio and Indiana will not appreciate the debt due the Indiana courts.
The Act of May 7, 1800, which provided for the organiza- tion of Indiana Territory, stipulated that there should be es- tablished in the new territory a form of government in all respects similar to the one organized in 1788 in the old terri- tory. This was guaranteed and demanded by the Ordinance of 1787. Even in appointing the officers for the new territory,
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President Adams observed the different character of the popu- lation of the two territories. Harrison, Gibson, Clark, Van- derburg and Griffin were all typical pioneers.
John Gibson, the secretary of Indiana Territory, a Penn- sylvanian, brother-in-law of the Mingo chief, Logan, an Indian trader and a frontiersman, arrived at the Indiana capital in due time and, acting as governor, proclaimed the new govern- ment on July 4, 1800. The simplicity, informality and noise- lessness of the whole proceeding is in marked contrast to the pomp and ceremony observed at Marietta twelve years before. The secretary's itemized accounts in the Executive Journal resemble in form a fur trader's journal. In the whole chroni- cle, covering the history of the government from July 4, 1800, to November 7, 1816, there is nothing but the briefest state- ment of acts done in the simplest way. It is strictly a pioneer chronicle. There was no bluster, no parade, no pomp, but the government nevertheless was very busy.
When the Northwest Territory was divided there was no break in the administration of the laws. The new territory took advantage of the Northwestern Code, which had been per- fected by the two sessions of the first General Assembly of the Northwest Territory. It will be remembered that the govern- or and Judges had no power to enact a law, but must content themselves with choosing statutes from the older states. By accepting the work of the General Assembly they thus secured a code for Indiana Territory adjusted in a large measure to the needs of a pioneer community. The governor and Judges had, or at least exercised, the right of repealing parts of these laws, though they rarely, if ever, added to one of them. Con- gress gave color to this assumption by the Indiana government through an act of March 2, 1801, which provided that suits already begun in the part of the old territory set off for the new should continue to final settlement as if no separation had occurred. This, of course, had the effect of continuing the old courts and by force of circumstances continued both the laws administered and the jurisdiction.
The governor and Judges made no effort to re-enact the laws of the Northwest Territory. Whether they feared thus to raise the question directly or whether no one ever doubted
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that the Northwest laws were to continue in force does not ap- pear, but the latter seems the fact. The great advantage of the old code to the new government was apparent to all.
The census of 1800 gives the location and population of the various settlements in the new territory. Practically all of them were on the boundary and most of them on navigable waters, but the problem of travel was just as difficult in the new territory as it had been in the old.
On the Great Lakes were several settlements, chief of which was Mackinaw, with two hundred and fifty-one inhabitants. The other settlers and traders in Michigan and Superior num- bered at least three hundred and fifty; the only other real set- tlement was at Green Bay. On the upper Mississippi, at Prai- rie du Chien, there were sixty-five traders and trappers. The largest body of settlers was in the American bottoms opposite and below St. Louis. Cahokia numbered seven hundred and nineteen, with five hundred and thirty-six more settled in close proximity. Kaskaskia numbered four hundred and sixty- seven, with five hundred and forty-six outlying, most of them at Prairie du Rocher. In the settlement at Fort Massac were ninety settlers; while further up the Ohio at Clark's Grant- the present Clark county-were nine hundred and twenty-nine settlers. In and around Vincennes were one thousand five hundred and thirty-three persons, the largest and most com- pact settlement in the territory. The numbers were pretty evenly divided between the present states of Illinois and In- diana-about two thousand five hundred in each. There were two hundred and ninety-eight colored persons reported in the territory, of whom one hundred and sixty-three were free and one hundred and thirty-five, slave.
The French largely outnumbered the Americans in all the settlements except the one at Clark's Grant. There were many Americans in all the settlements, but hardly enough before 1800 to make their influence felt.
If one may judge from the haste of the acting-governor, it seems that the local government in the western part of the old Northwest Territory had completely fallen down. The secre- tary, John Gibson, was present at Vincennes on July 4, 1800, the date on which the new territorial government was to go
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into effect. £ Harrison did not arrive till January 10, 1801. Secretary Gibson, however, did not await his coming, but, on the 22d of July, proceeded to fill the county offices. James Johnston, Pierre Gameline, Luke Decker, Abel Westfall, An- toine Marrishall, Jonathan Purcell, Abraham Huff, Marston G. Clark and John Noble Woods were appointed Justices of the courts of Quarter Sessions and Common Pleas for Knox county. The last three named lived in Clark's Grant, the others in and around Vincennes. Six days later Robert Bun- tin was appointed prothonotary clerk of the General Quarter Sessions court and clerk of the Orphan's court. Henry Van- derburg was appointed Probate Judge. The inference is that these offices were vacant, or otherwise the old officers could have continued till the arrival of Governor Harrison. On No- vember 5, 1800, Benjamin Beckes and Ephraim Jordan were added to the list of Common Pleas and Quarter Session Jus- tices. The other two counties, St. Clair and Randolph, both of which were in the present state of Illinois, were equipped with similar officers by the first of August.
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