USA > Indiana > The history of Indiana > Part 12
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But the actual French settlers could not be dealt with as the speculators had been. They had settled around the Post, had obtained land, and by their own labor had made their farms valuable. Clearly the claims to their farms rested on good faith and were favored by Sargent, who confirmed their titles where boundaries could possibly be ascertained. Even where no definite bounds could be determined these settlers were not dispossessed, as will be seen later.11
A fourth series of claims dated from the period of the Virginia government, 1779-1790. Although Vir- ginia ceded the land to the nation in 1783, the govern-
10 American State Papers, Public Lands, I, 21, 22; George Henry Alden, New Governments West of the Alleghenies Before 1780.
11 American State Papers, Public Lands, I, 5. A full list of the settlers at Vincennes for 1783 is there given.
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LAND TITLES AT VINCENNES
ment instituted by Col. John Todd was not superseded until the arrival of Secretary Sargent in 1790. How- ever, General Harmar stopped the granting of land upon his arrival at Vincennes in 1788.
When Todd left Vincennes he appointed Col. J. M. P. LeGrand his lieutenant. Like the commanders be- fore him, Colonel LeGrand granted land liberally to all new settlers. In his absence the same power was as- sumed by the court. The members of this court, Fran- cis Bosseron, Louis Edeline, Pierre Gameline and Pierre Querez, in their letter of explanation to Sargent, said they had been instructed to apportion land to all new settlers according to their needs. They insisted that they followed what they considered the law and their duty. This latter statement does not stand criti- cism, since they granted to each other all the public land claimed by the town, a quantity estimated at 10,000 square miles.
This humorous grant later caused considerable trouble. Land speculators, by whom the west has always been infested, bought up these claims, had them duly recorded, and sold the titles thus obtained to inno- cent settlers for whatever they could obtain. As much as 1,000 acres would be given for a horse or gun. Gov. William H. Harrison wrote to Secretary of State James Madison, January 19, 1802, that he was expecting 500 of these defrauded people to come into the territory to settle during the coming spring.
The lieutenant of Kaskaskia had likewise made numerous land grants in the Illinois Country. It was impossible to give any credence to the claims. Todd's instructions positively forbade him making land grants or authorizing any one else to do so. There was no evidence that Todd authorized it. Moreover, by a proclamation issued at Old Kaskaskia, June 15, 1779, he warned all persons against making settlements, especially on the bottom lands of the Mississippi, Illi-
152
HISTORY OF INDIANA
nois, and Wabash rivers.12 This was intended to keep out the squatters, whose manner of locating land was just then causing so much confusion in Kentucky. It is hardly necessary to state that all these claims under the Virginia regime were rejected by Sargent.
A fifth series of claims was founded on the act of Congress of March 3, 1791. This act followed the recommendation of Secretary Sargent made in his re- port to Jefferson, July 31, 1790, and confirmed a grant, previously made, of 400 acres to every head of a family residing in the Illinois Country in 1783. Besides these grants to heads of families, of whom there were 143, the act confirmed the grants made to actual settlers by the Piankeshaws and the grant of 5,000 acres to the town and known as the commons.
To each militiaman, enrolled August 1, 1790, who had not received land under any of the former pro- visions there were given 100 acres. This was not in payment for any services they had rendered but as an earnest for services soon to be needed in the approach- ing Indian war. Lastly, those persons who in good faith had improved their homesteads, thinking their titles good, were given a title.
These various conflicting titles seemed to defy ad- justment. A great many who had been heads of families in 1783 had died or moved away during the hard times following Clark's conquest. Of the 240 or more claims allowed under this law, only a few were in the hands of the original claimants. Francis Vigo held fifty-eight of these claims and others held quite as many.13
Secretary Sargent appointed four commissioners, James Johnson, Henry Vanderburg, Francis Vigo and
12 The proclamation is given in American State Papers, Pub- lic Lands, I, 11.
13 See Sargent's Report, American State Papers, Public Lands, I, 5-11.
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KNOX COUNTY ORGANIZED
Robert Buntin, to pass on the claims. All of these men were placed in the delicate position of judging the validity of their own titles. Johnson held seven; Van- derburg, thirty; Vigo, fifty-eight; Buntin, seventeen. However, judging from the reports which the com- missioners themselves made, the adjustment gave gen- eral satisfaction.
When the land office at Vincennes was established in 1804, the register and receiver, John Badollet and Nathaniel Ewing, who superseded the old commission- ers, had some trouble with Judge Henry Vanderburg, who, it seems, in at least one instance, had manufac- tured a title to 400 acres of land. All, no doubt, got as much land as they were legally entitled to and most of them got more. In going beyond the law the govern- ment was not more generous to these pioneers than they deserved. The work of locating, surveying, and finding the rightful owners to these claims occupied the attention of the territorial government as well as a great deal of that of the United States land office till 1807. A special complaint of the claimants around Vincennes was the payment of the high fees charged by the surveyors. Congress finally put an end to these by paying the surveyors out of the national treasury.14
§ 25 INDIANA A PART OF KNOX COUNTY
IN addition to adjusting the land claims, Acting Governor Sargent had been instructed to lay off a county around Vincennes. This was done June 20, 1790. It was named Knox, in honor of the Secretary of War. Its ample boundaries were, on the east, the great Miami, on the south, the Ohio river to Fort Massac, on the west, St. Clair county, and the Illinois
14 See the pathetic letters of P. Gibault in American State Papers, Public Lands, I, 16.
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HISTORY OF INDIANA
river to the junction of the Chicago and the Kankakee, thence due north to Canada, on the north, Canada.
John Small was appointed sheriff and became the executive head of the new county. The militia was organized and placed on an active footing under com- mand of Maj. Francis Vigo. Courts were organized, common pleas, quarter session, and probate. Andrew Heath was appointed a justice and John Mills a notary. Samuel Baird was appointed public surveyor. Having organized a complete county government for these poor, ignorant French peasants, who were better ac- quainted with the manorial government of the Middle Ages than that of the English county, Secretary Sarg- ent set out for Fort Washington, August 21, 1790. This was the first real, organized, civil government on the soil of the present State of Indiana. Its jurisdic- tion embraced all of Indiana and large parts of Ohio, Illinois, Wisconsin and Michigan. There was nothing striking or novel in its organization. All the common elements of the English county government were pres- ent. The chief functions were the preservation of order and the protection of the people. As was neces- sary the little community was put on a war footing.
The judges and secretary found moral conditions at Vincennes rather startling. Drunkenness and
gambling were common and murders occurred almost daily. The judges adopted laws which they hoped might remedy this. The first law, adopted July 19, 1790, forbade anyone selling liquor to the Indians in the territory, and forbade aliens trading with them at all. Most of the disorder was connected directly or remotely with the Indian trade. The second law, enacted seven days later, made it unlawful to sell or give liquor to the soldiers, and also forbade the soldiers to sell or pawn their arms, ammunition or clothing. A third law, adopted August 4, reciting that gambling was the curse of the little community, prohibited every
155
GOVERNMENT UNDER THE JUDGES
kind of gambling, and made illegal all gambling debts and contracts. The latter act also limited the use of firearms.15
The weight of the government was too much for this ancient community that had never felt a need for more than the advice of the priest and the will of the commandant. An early frost in the fall of 1790 killed most of their crops. The expense of having their land surveyed, regular service in the militia, the salaries of all the newly appointed officers; all of these extraor- dinary expenses coming together, and no money in the country to pay with, discouraged the French.16 This free self-government, so loudly praised by the Vir- ginians, was not entirely to their liking. Nor were they reconciled as the fact slowly dawned upon them that the good old times of the "old regime" were gone forever. The French citizens showed little capacity for political affairs and the offices were soon all in the hands of the Virginians. Excepting Colonel Vigo, who commanded the militia, and Robert Buntin, the re- corder, no Frenchman held office for any considerable period.
§ 26 GOVERNMENT UNDER THE JUDGES
As soon as the Ordinance of 1787 was proclaimed in the territory, the settlers on the Wabash and in Illinois became alarmed for their slaves. The French residents had been allowed to hold slaves under the kings of France and England. These rights had not been questioned by the Virginia government and no one expected any interference by the national author- ity. St. Clair gave it as his opinion that the Ordinance was not retroactive and hence would not affect slaves held at the time but would prevent more being brought
15 St. Clair Papers, II, 167.
16 Dillon, History of Indiana, 224; St. Clair Papers, II, 148.
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HISTORY OF INDIANA
into the country. This reassured the people but did not entirely allay their fears, as it was a question for the courts, and all knew the judges were hostile to the practice of slavery. A few masters, fearful of the new law, moved with their slaves over into the Louisiana Territory, where they were hospitably received by the Spanish governor. Other masters retained their slaves but made them indentured servants, hoping in that way to avoid the law.17
Trouble soon arose with the judges on the slavery question. Henry Vanderburg, one of the most in- fluential of the new settlers, had, apparently, brought slaves with him into the territory. When Judge George Turner, of the general court, arrived he and Vander- burg were soon involved in a quarrel. Vanderburg was probate judge, justice of the peace, and had lately been appointed one of the three commissioners to sell liquor to the Indians. Moreover, he was a friend of Governor St. Clair. Capt. Abner Prior, of the regular army and a deputy superintendent of Indian affairs, was also involved. In a letter to the governor, Judge Turner charged these men with some mysterious crime, which he did not name but promised to prove before the court. The men were no doubt guilty of that same species of robbery and peculation that has always dis- graced Indian agencies and, besides, Vanderburg had aided in defying the officers of Judge Turner's court, but the foundation of the trouble lay deeper. It was the judge's attitude on the slavery question.18
From the beginning of their service there had been friction between the governor and judges. The Ordin- ance of 1787 limited the lawmaking power of the
17 St. Clair Papers, I, 120, note 2, where the matter is well summed up; Dunn, Indiana, a Redemption from Slavery.
18 St. Clair Papers. II, 318, Governor St. Clair's letter to Luke Decker; 325, Judge Turner to Governor St. Clair; 330, Governor St. Clair to Judge Turner.
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THE SLAVERY QUESTION
judges to choosing statutes already in operation in some States. When they failed to find a suitable statute they did not hesitate to construct a new one. The gov- ernor called them to task for their liberty and a spirited correspondence was waged. Congress favored the governor, but the judges enforced them as if they had been approved.19
As mentioned before, the governor favored Vander- burg in his quarrel with Judge Turner. The latter evidently believed, though the matter was never before his court, that the Ordinance, once for all, put an end to slavery in the territory. Not only did he think it prohibited slaves from being brought into the territory but that it freed those already there. Although there were not more than two score slaves in Knox county at the time, their loss would have been considerable in the eyes of their owners. Governor St. Clair had already written Luke Decker, of Vincennes, that the Ordinance was not meant to free the slaves. Turner was an imperious self-willed man, and opposition made him careless of the rights of others. He soon found himself confronted by a grand jury indictment and a memorial to Congress praying for his impeachment. The memorial was the work of William St. Clair, an officer in the Illinois Country and a kinsman of the governor. Congress deemed it best not to try the im- peachment process on account of witnesses having to travel so far, and ordered the case to be tried by the courts. Turner resigned and left the territory, thereby ending the suit.20
The judges were not at any time above criticism and the governor not averse to fault-finding. In a letter to the President, December 15, 1794, he called
19 St. Clair Papers, II, 325, 353, seq; American State Papers, Miscellaneous, I, 82, 116; Burnet, Notes on the Northwest Terri- tory, 40.
20 American State Papers, Miscellaneous, I, 151, 157.
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HISTORY OF INDIANA
attention to the personnel of the court, composed at the time of Gen. Rufus Putnam, a director of the Ohio Land Company, Mr. Symmes, owner and agent of the Miami Company, and Mr. Turner, who held a large grant of land from Symmes and whose title depended on the validity of Symmes' title. A large part of the litigation that came before the court arose out of land deals to which these companies were parties. It is only necessary to call attention to the conditions to show how odious such a court would become.
The judges often engaged in land speculations. One of these embittered the relations of the governor and two of the judges throughout this period and divided the settlers of Ohio into two parties. Judge Symmes had contracted for a large tract of land from the old Treasury Board. The purchase was not com- pleted and the new Congress acted slowly. The original claim of the judge was to a tract extending up the Ohio twenty miles from the mouth of the Great Miami. The judge was not content with the first boundaries and soon extended his claims, at the same time sending his surveyors into the disputed territory. Governor St. Clair, in a public proclamation, warned him and all others to keep off of the land. Among the settlers who had bought lots of this disputed land from Symmes was Judge Turner, who, as noted above, pro- ceeded to improve the land after personal notice by the governor that he had no title. There is apparent in these transactions by the judges that same disregard of justice which has characterized all land speculators in their dealings with the United States.21
The judges had a difficult and important work to do. It was an irksome and unpopular task to lay the foundations of government in this western world, and subject a lawless people, even in a small degree, to the
21 The correspondence is given in St. Clair Papers, II, 339. seq.
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CIVIL GOVERNMENT ESTABLISHED
restraints of laws and courts. The law required that judges be resident freeholders of five hundred acres. Their meagre salaries of $800 each would hardly pay expenses on a circuit embracing Marietta, Detroit, Cincinnati, Vincennes and Kaskaskia. The roads were mere bridle paths, which led for hundreds of miles . through the Indian country. There were no taverns and the nights were spent on the lonely traces, in the dirty wigwams of the hospitable natives, or in the soli- tude of the forest with no protection but their blankets. In fair weather, in spring and autumn the trips were pleasant, but in the heat of summer and cold of winter the hardships tried the endurance of the strongest. Judge Parsons lost his life in an attempt to swim a flooded stream on one of these trips. Liberal praise is due these men who labored earnestly for the welfare of the rising commonwealths.22
§ 27 CIVIL GOVERNMENT OF THE NORTHWEST TERRITORY
THE attention of the white settlers was almost com- pletely absorbed by Indian affairs until the Treaty of Greenville, 1795. As indicated before, the judges had at different times enacted statutes where it was abso- lutely necessary. In this the judges had exceeded their powers. All such statutes had been disapproved by the House of Representatives, February 16, 1795. This rebuke by Congress brought the judges to a realization that they were not a sovereign body.23
The governor called the judges into session at Cin- cinnati immediately after the signing of the Green- ville Treaty, when they at once entered upon the selec- tion of a full code of laws for the territory. Of the thirty-eight statutes adopted, twenty-six were from
22 The best account of the early courts is in Burnet's Notes im the Northwest Territory.
23 Annals of Congress, Third Sess., 1227.
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HISTORY OF INDIANA
Pennsylvania, six from Massachusetts, three from Vir- ginia, and one each from New York and New Jersey. These laws, printed in Cincinnati, have since been known as the Maxwell Code, from the name of the printer. It is claimed that this was the first job print- ing done in the territory. The code, with the addition of a few statutes adopted in 1798, remained the only laws for the territory until the meeting of the first legislature in 1799.
The government of the territory was intended to be as simple and inexpensive as possible. At its head stood the governor, who was chief executive and com- mander of the militia. He was also a member of the general court for adopting laws. Next were the judges, three in number, appointed by the President for an unlimited term, and all but independent of the gov- ernor. Their highest duty was the adoption of laws from codes in force in other States. This latter limita- tion they disregarded and over the protest of the gov- ernor enacted laws which seemed best for the territory regardless of any restraint. Later, when Congress disapproved these, the judges at least chose the titles from older codes, but they still changed the body of the statute to suit territorial conditions. The practic- ing attorneys often complained of this illegality and at times threatened to test the constitutionality of the laws, but the reflection that the same court that made the laws was a last resort in testing their validity, caused the lawyers to abandon their purpose.24
This general court, all members sitting together or any two, was the highest judicial body of the territory. Its decisions could not be reviewed either by Congress or the Supreme Court. It had original and appellate jurisdiction in all civil and criminal cases, and exclu- sive jurisdiction in divorce trials. It was a common law court without chancery powers. It held regular
24 Burnet, Notes on the Northwest Territory, 312.
161
TRIP TO VINCENNES
sessions at Cincinnati in March, at Marietta in October, and at Detroit and the western counties when the judges could reach these places, the exigencies of the Indian war and of traveling making the times extreme- ly uncertain.
The following experience of Judge Jacob Burnet and Arthur St. Clair, son of the governor, will give some idea of the life of judges and lawyers of that period. In December, 1799, Mr. St. Clair and Mr. Burnet set out on a trip from Cincinnati to Vincennes on professional business, intending to remain and prac- tice law if the location were promising. Mr. Morrison, who was on his way from New England to Kaskaskia, with a view to settling on the Mississippi, accompanied them. They purchased a small Kentucky boat, some- times called an ark, in which they embarked with their horses and provisions. In the afternoon of the fourth day they arrived at the Falls of the Ohio, where they left their boat, mounted their horses and proceeded on their journey. About nine o'clock in the evening they discovered, at a little distance from the path they were traveling, the camp of four or five Indians, which they approached. After having shaken hands with the In- dians, they procured a brand of fire, proceeded some distance further on their way, and halted for the night. Having brushed away the snow from the spot they had selected for a camp and collected a good supply of wood for the night they kindled a fire, took some re- freshments, wrapped themselves in their blankets and lay down to sleep.
The next night they encamped in a rich valley, where they found an abundance of fallen timber, thus enabling them to keep up a warm fire through the night, before which they slept very comfortably till morning. During the night a couple of panthers, at- tracted by the light of the fire, approached sufficiently near to the camp to serenade the travelers with their
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HISTORY OF INDIANA
unwelcome music, but kept a respectful distance. The next day they encountered a severe snow storm, dur- ing which they surprised eight or ten buffaloes, shel- tering themselves from the storm behind the top of a beech tree full of dead leaves, which had fallen by the side of the "trace" and thus hid the travelers from their view.25 The tree and the noise of the wind among its dry leaves prevented the buffaloes from dis- covering the men till they had approached within two rods of the place where the animals stood. The latter then took to their heels and were soon out of sight. One of the men drew a pistol and fired, but without visible effect. That evening they reached White river, where they found an old cabin, deserted by its builder, in which a large wildcat had taken shelter, and seemed at first disposed to vindicate its right of possession. It was, however, soon ejected, and the travelers entered and occupied the premises without molestation during the night and without attempting to do personal violence to the tenant whom they had driven out. The next morning they arrived at Post Vincennes, where they tarried about a week. In the meantime Mr. Mor- rison proceeded westward. As soon as Messrs. St. Clair and Burnet had closed their business they set out for home, having abandoned the idea of engaging in the practice of law in that county, from a conviction that the profits of the business would not be an ade- quate compensation for the fatigue and loss of time to which it would subject them in making the trip from Cincinnati.
Before they left the post, Colonel Vigo furnished them with provisions for their return journey. These included a complete apparatus for striking and kindling fires. No occurrence of importance took place on the first day of the return trip. With the second began
25 The travelers were following the famous "Buffalo Trace." For a description of it see Wilson, History of Dubois County, 100.
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THE VINCENNES TRAIL
a snowstorm which continued during the day. About noon the lawyers halted to feed their horses and par- take of some refreshments. The snow was brushed from a log by the side of the "Trace," where they sat down and dined sumptuously on a frozen chicken, a biscuit and some old peach brandy, put up for them by their Vincennes friends. It was their calculation when they left Vincennes to camp that night on Blue river, but being mistaken as to the distance they did not reach the place till several hours after dark. The weather having then moderated, it commenced to rain, and the rain continued to fall during the greater part of the night.
As this crossing place was the best ford on the river it had been the common camping ground of travelers between the Falls and Vincennes, from the establish- ment of the Post. As a matter of course all the fuel that could be conveniently obtained had been used up. Nothing remained in the vicinity but the larger sized trees, which travelers, after a tedious day's journey, were not disposed to fell even though they might have the means. After rambling through the woods in the snow six or eight inches deep, they succeeded in gath- ering together at the place selected for their camp some dry limbs which had recently fallen. There they kindled a fire, sufficient to boil a pot of coffee and thaw a frozen roast chicken; but by the time their supper was finished their stock of fuel was exhausted, and their fire went out. Thus situated, their prospects for the night were anything but cheering, the ground cov- ered with snow, the rain falling plentifully, and their fire extinguished.
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