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Determined, however, to make the best of their situation, they scraped away the snow, and with their coats and blankets wrapped themselves up as snugly as they could, and laid down for the night. Their saddle-bags served as pillows and their saddles were
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HISTORY OF INDIANA
so placed as to shelter their heads. In this manner they slept as soundly as circumstances permitted till morning. When they arose from their beds they were as wet as they possibly could have been had they slept in the bed of the river. Having no fire, they ate a cold breakfast, tempered it with a little peach brandy, then saddled their horses and started for Louisville, where they arrived about dark on Christmas evening. Being very much fatigued they partook of a good supper and retired to comfortable beds.26
Circuit courts were established throughout the territory. Each was presided over by one of the terri- torial judges, who were required to ride the circuit every year. It only required one judge to hold circuit court while at least two must sit at general court. Be- sides the regular session the judge could hold a special session or, as it was called, a jail delivery whenever there was need. This was usually done when the sheriff reported several prisoners in jail, especially if one of them was a murderer or horsethief who would probably hang.
Below the circuit courts were the common pleas and quarter sessions. The former tried civil pleas be- tween citizens of the county. There was plenty of work for this court in Vincennes, but few competent judges could be found. The courts attempted to administer both the common law and the statutes.
The quarter sessions was occupied with petty crimes such as assault and battery, drunkenness and gambling. The governor was directed to appoint a sufficient number of justices so that one or more would be in every neighborhood. Three of them could open court and hear the pleas. Any one of the justices could issue the common law writs and accept bail from per- sons committed to jail.
26 Burnet. Notes on the Early Settlement of the Northwestern Territory, 72-75.
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LOCAL GOVERNMENT
Of the thirty-eight laws found in the Maxwell Code not less than thirty deal primarily with the establish- ment of jurisdiction and the procedure of courts. The whole local government was in the hands of these local judges and justices. The meetings of the various courts were the principal events in the counties.
Each county had a sheriff, treasurer, coroner, clerk, and one or more constables. All were appointed and commissioned by the governor. County lines were not definite and the processes of the court ran for the whole territory. Jurors were forced to attend by a heavy penalty for failure. The pay of the officers was meager enough and yet it was a burden to the taxpay- ers. The traveling expenses of the territorial judges, attorney-general, clerk of the territorial court, and their servants were paid from the territorial treasury, but their local expenses had to be paid by the county.
The local or county government, as stated above, was very largely in the hands of the justices of the common pleas. There were three county commission- ers, one of whom was appointed by the justices annu- ally to serve three years. The voters of each township elected an assessor annually. The commissioners and assessors met together as a county board for the trans- action of county business. They passed on the claims against the county, allowing the good and rejecting the bad. The valid claims were summed up, and a tax levy, sufficient to pay them, was made for the ensuing year.
Each constable made out a list of the property and polls of his township, from which the assessor made out the tax duplicate for each township. The assessors and commissioners again met together and elected a collector for each township. The collector then took the duplicate for his township and collected the tax, which he turned over to the county treasurer. If any one refused to pay his tax the court proceeded against
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HISTORY OF INDIANA
him the same as for debt, took his property, and if enough property was not found put the person in jail. If a taxpayer felt that his taxes were too high he could appeal to the commissioners sitting as a board of equal- ization.
The justices of the common pleas decided upon any public improvement for the county, such as building a courthouse, jail or bridge; but the actual work was supervised by the commissioners or assessors. The justices received the wolf scalps, and gave an order on the county treasurer for the bounty. They appointed annually for each township two overseers of the poor. who levied the poor rate, or tax, built or rented a poor- house, dispensed the public charity, and found homes or employment for orphans. At every step they were under the direction and control of the justices. The latter presided over the orphans' court, and attended to all probate matters.
The justices of the quarter sessions appointed the fence viewers, who decided what constituted a legal fence, and in case of dispute passed on the legality of the fence in question. The justices recommended tavern keepers to the governor who, alone, had the power to license them. But after the license was ob- tained the justices made out a complete table of rates for every service of the tavern keeper. Under the gaming law the justices could summon any man, ex- cept a freeholder, before them and place him under bond for his good behavior. Thus it is not too much to say that these justices of the common pleas and quarter sessions-the same men usually held both offices-conducted the local government in the North- west Territory.
Some of the penalties inflicted by the courts forcibly remind us of the changes of a century. For petit larceny the penalty was immediate public whipping, on the bare back, not to exceed fifteen lashes. A strong
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THE CRIMINAL CODE
sentiment existed against imprisonment for debt, and a law of this code forbade it longer than from one term till the second day of the next, unless it appeared that the debtor was able to pay and would not.
Considering the possibilities of a criminal for mischief under frontier conditions, and the great num- ber of vicious men who came from the east to the borders to gratify their criminal natures, we are rather surprised at the mildness of the law and the absence of lynching and other extra-legal punishments. Some of the harsher features of the law were due to expedi- ency rather than to choice. Horse thieves were hung because the pioneers had neither jails nor jailers to take care of long-term criminals; and partly because many horse thieves were also murderers. Public whipping, a brutalizing and demoralizing spectacle any place, is explained in many cases by the lack of prisons. Such jails as existed would not hold a desperate man, even if the sheriff tried to do his duty. Often the sheriff was hand in glove with the lawless element. The chief executive officer of the county was the sheriff. The first sheriff of Knox county and thus the first in Indiana was John Small, a citizen of Vincennes. One cannot help feeling, with the creoles of Knox county, that the government was too elaborate for such a poor community; but it served as a training school in the forms of government, and taught men so that they were able to administer the law when the population increased.27
... 27 Besides Laws of the Northwest Territory see Burnet, Notes on the Early Settlement of the Northwestern Territory; Dillon, History of Indiana; William Henry Smith, The St. Clair Papers; Daniel Waite Howe, The Laws and Courts of the Northwest and Indiana Territories; D. D. Banta, "The Criminal Code of the Northwest Territory," in Indiana Magazine of History, December, 1913; George E. Howard; An Introduction to the Local Constitu- tional History of the United States. The latter is not reliable for Indiana. The Maxwell Code was printed at Cincinnati 1796, and contains the laws then in force.
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HISTORY OF INDIANA
By the terms of the Ordinance of 1787 the North- west Territory passed to the second grade as soon as it had an adult white male population of 5,000. The population reached the required number in 1798. Gov- ernor St. Clair then issued his proclamation calling on the people to elect representatives. Knox county was apportioned one member in a legislature of twenty-two. John Small was our first representative in a law-mak- ing body. He was an old resident of Vincennes and, as noted before, had served as sheriff. He was a man of very ordinary ability and had little influence among the able lawyers who represented the eastern counties, or what is now Ohio.
The legislature, as directed by the proclamation, met at Cincinnati, February 4, 1799. Its first duty was to nominate ten men, from whom the President of the United States was to select five to act as a Legisla- tive Council. Vincennes was honored by having its citizen, Henry Vanderburg, chosen president of the Council. He was a Revolutionary soldier of the Fifth New York Regiment of the Continental Line. Since no laws could be enacted until the President had se- lected the members of the Legislative Council, the representatives adjourned till September 16, 1799.28
The work of this first legislature was considerable. The laws of the governor and judges had not proved satisfactory. Judge Burnet, who practiced in the ter- ritorial courts, called them a miserable apology for a code. The important work of the legislature was the revision of these laws. The burden of this duty fell on the lawyers of the eastern counties.
Before the members settled down to their task they elected a delegate to represent the territory in Congress. In the course of three weeks of electioneering the race narrowed down to Arthur St. Clair, son of the gover-
28 Perkins and Peck, Annals of the West, 507; St. Clair Papers, 438, 446, seq., where the minutes of the session are given.
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THE FIRST LEGISLATURE, 1799
nor, and William Henry Harrison, a son-in-law of Judge Symmes, and the secretary of the territory since the promotion of Winthrop Sargent. Harrison was elected by a majority of one, October 3, 1799. He at once resigned his secretaryship and hastened to Phila- delphia, where Congress was already in session when he arrived.
After this election the legislature went to work on the revision of the laws. The old laws were nearly all repealed or amended and a long list of new ones en- acted. The members showed their position on the slavery question by rejecting the petition of some Vir- ginia planters who asked permission to move into the territory with their slaves. A member gave it as his opinion that the assembly was unanimous in its opposi- tion to slavery. This may have been true although both the Vincennes members owned slaves at the time.
The legislature instructed Harrison to use every effort to induce Congress to fulfill the promise of the Ordinance of 1787 with respect to schools by setting aside the sixteenth section in every township for their aid. A protest was sent to Congress against the un- qualified veto of the governor, and the property re- quirement for voting. The most difficult task the legis- lature met was to draw up a statute in response to a memorial from the commoners of Vincennes. The petitioners held lands in common on the prairie just outside the village. It was their custom to meet at the church door after worship in order to decide matters relating to planting, harvesting, fencing, pasturing and the like. The syndic, whose business was to enforce these church decisions, of late had found his duty more and more difficult. There was endless neighborhood friction and bickering. The legislators finally enacted a law patterned after the old folkmoot laws, which an- swered the purpose. The legislature rose, December
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HISTORY OF INDIANA
19, after enacting thirty-nine statutes and voting an address to the people.
§ 28 HARRISON IN CONGRESS
MR. HARRISON was elected by the party opposed to Governor St. Clair. He was moreover in full sympathy with the Republican spirit of the West as opposed to the Puritanic, Federalistic tendency of the old officials, many of whom had won distinction in the Revolution. He was never a political partisan, though he was always outspoken on any question that engaged his attenticn.
His constituents in the Northwest Territory de- sired three things-relief from the abuses of the gen- eral court, a division of the territory, and a land law more agreeable to the settlers. To the accomplishment of these things Mr. Harrison at once applied himself. He kept out of party struggles in Congress and culti- vated the good-will and friendship of all.
On December 6, 1799, Harrison offered a resolu- tion that a committee be appointed to inquire into the judicial system of the Northwest Territory and recom- mend changes. It is a proof of the high opinion the congressmen had of him that they allowed him to be- come chairman of this committee. The land question was not less important to every settler. No one could buy land without placing himself in the grasp of the big land companies. The government at Philadelphia had never succeeded in shaking off the lobby of specu- lators which had been on its back ever since it came into possession of western lands. It had never sold less than 4,000 acres in a block, and the speculators de- clared that if the government sold directly to settlers the land market would be ruined.
If Harrison accomplished anything he would have to fight the speculators. He soon took in the situation and decided what to do. On December 24, 1799, he
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NORTHWEST TERRITORY DIVIDED
asked for a committee to. inquire into the land system of the Northwest Territory and the method of its sale. No more important business came before this Con- gress and yet the speaker showed his appreciation of a son of a signer of the Declaration by appointing Har- rison chairman of this committee. On this committee were some of the best men in Congress, among them Mr. Gallatin, who at this time read a petition from 176 actual settlers-squatters-praying that land be sold in small lots so they could get it without being robbed by speculators. What these squatters really wanted was the right of pre-emption in order to get the bene- fit of their improvements. At the same time the Judici- ary Committee was considering a plan to divide the territory. Mr. Harrison thus had all his plans before Congress within a month after his arrival.
The Judiciary Committee reported March 3, 1800, in favor of the division of the territory by a line run- ning due north from the mouth of the Big Miami river. Among other reasons for the division, the committee urged the following: From southeast to northwest the territory extended fifteen hundred miles. The two most widely separated places for holding court were thirteen hundred miles apart. This fact alone would prevent the administration of justice. In the three western counties-Knox, St. Clair and Randolph- dur- ing a period of five years there had been only one ses- sion of a court having power to punish felonies. This made the country a rendezvous for criminals. The same was true of the civil courts. Local civil offices were left vacant for years. The territory lay open to both England and Spain, each ready to cultivate opposition to the American government among the settlers. So far had their spirit grown that there was then little fear of, or respect for, the government in the Illinois Country. Trade that should come to Ameri- cans was being diverted to the English and to the
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HISTORY OF INDIANA
Spanish. Even the law of 1791, confirming the land titles of the settlers, had never been executed.
On March 20, a bill for the division of the territory was reported to the House. The only objection was, that it would cause unnecessary expense. This was overcome by Mr. Harrison in a spirited argument, March 28, assisted by a timely petition from the Illinois Country. The bill passed the House on the twenty- eighth.
The Senate substituted a bill providing for a slight- ly different boundary. The House refused to accept the substitute and the Senate voted to stand by its own bill. Seeing that the Senate was determined Mr. Har- rison and his friends decided to recede and the Senate bill became a law, May 3. Two of Mr. Harrison's measures were thus carried at the same time; for the chief trouble with the courts had been the inability of the judges to travel from county to county.29
Meanwhile Harrison was busy with the land laws. No other question interested the common people of the territory so much. February 24, 1800, the House, in committee of the whole, took up the report on the sale of public lands. A bill was drawn providing that town- ships be divided, and that lots of three hundred and twenty acres each be offered for sale at two dollars per acre, with the privilege of paying in easy install- ments without interest. Rights of pre-emption were allowed, men who would establish grist mills were favored, land offices were to be located at convenient places, and the whole attitude of the government to- ward the settler reversed. The bill became a law and Harrison was justly proud of his work in Congress.30
These successes make one feel that the nation lost
29 See Annals of Congress under dates indicated. For the law see United States Statutes at Large, Sixth Cong. Sess. I, ch. 41. 30 United States Statutes at Large, Sixth Congress, First Sess., ch. 55.
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A NEW LAND LAW
a great statesman when he resigned. His ancestry and training gave him standing in the East, while his experience on the frontier enabled him to understand and appreciate the West. The laws he secured are worthy of the first delegate from the territory.
CHAPTER VII
INDIANA TERRITORY, 1800-1816
§ 29 ORGANIZATION OF INDIANA TERRITORY: FIRST GRADE
THE eastern boundary of the new territory was a line beginning opposite the mouth of Kentucky river and running thence to Fort Recovery and from that point due north to Canada. The disagreement be- tween the House and Senate on the bill for separation had been over this boundary. The House favored the line due north from the mouth of the Big Miami, and the Senate favored the line given above. The reason for the action of the Senate was that the land was open for settlement only as far west as the Greenville bound- ary line, which ran from Fort Recovery to the mouth of Kentucky river. To make the western boundary of Ohio a line due north from the mouth of the Big Miami would leave the settlers in this wedge-the gore-prac- tically without government, since their capital would be at Vincennes. As bounded by the Senate bill, there would be no public land for sale in the new territory, and so the expense of government could be kept at a minimum until Ohio should become a State. The south- ern boundary of the territory was the Ohio river, the western was the Mississippi river, and the northern the Dominion of Canada. The capital was to be at Vincennes, and the territorial government in all essen- tials the same as that described above for the North- west territory.
The act of separation was to take effect, July 4, 1800. It was necessary, then, that active measures be
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INDIANA IN 1800
taken at once to constitute the new government. Presi- dent John Adams already had his mind made up when the organizing act was passed concerning the officers, and, on the Tuesday following the signing of the bill, he nominated Harrison for governor. The position was not very attractive. Life at the frontier posts even today is considered tedious and it was far worse then. Besides there was scarcely a western post at that time with a reputation as objectionable as that of Vincennes. Its location away from the main lines of travel, the difficulty of reaching it, its notoriety for scenes of drunken brawls and Indian fights, made Harrison hesi- tate before accepting the position. For territorial secretary the President chose John Gibson, and for judges he chose William Clark, Henry Vanderburg and John Griffin.
The census of 1800 gave to Indiana territory a population of 6,550. These were fairly well distributed over the country. In Clark's Grant, known at that time as the Illinois Grant, at the Falls of the Ohio, were 929 settlers. In and around Vincennes there were 2,497, including 50 traders on the Wabash and 28 colored persons held as slaves. In and around Kaskas- kia, separated from Vincennes by 200 miles of forest and prairie traversed by a single trail, were 1,103 per- sons, including the little settlement of 90 persons down at Fort Massac, on the Ohio. In and around Cahokia, 100 miles up the Mississippi river from Kaskaskia, there were 1,255 settlers. These four settlements were all well ordered pioneer communities.
Besides these there were 251 inhabitants at Michil- limacinac, on the channel that joins Lakes Michigan and Huron, 700 miles from any of the other settle- ments. At Prairie du Chien, 600 miles up the Missis- sippi from Kaskaskia, were 65 traders and settlers. On Green Bay, 200 miles west of Michillimacinac, was a population of 50. At Peoria, on the Illinois river,
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HISTORY OF INDIANA
were 100 settlers; and 300 were enumerated under the heading "boatmen from Canada," the familiar coureurs de bois of the fur trade.1
Harrison did not arrive at the Indiana capital till January 10, 1801. In his absence the government de- volved on the secretary, John Gibson. Whether he had any instructions from the governor does not appear, but at any rate Secretary Gibson proceeded, imme- diately upon his arrival, July 22, 1800, to set up the new government. He appointed justices for the vari- ous courts, clerks, a sheriff, a justice of the peace, a treasurer, and a recorder. On August 1 the work of organizing the militia was taken up and a full corps of officers appointed. At the same time appointments were filled out for the civil officers of St. Clair county.
As soon as the governor arrived at Vincennes he summoned the judges to meet, January 12, for the purpose of enacting such laws as were necessary. Dur- ing this period a practice grew up that later caused serious criticism of the governor. An illustration will make it plain. John Gibson was secretary of the terri- tory. He was appointed a justice of the peace, Febru- ary 1. February 3, he was made county recorder of Knox county ; February 4, he was made a judge of the quarter sessions court. No doubt there was a lack of good men to fill these responsible offices, but the Ameri- can people have never accepted the idea of an office- holding class. Especially has such a class been un- popular among the western people.2
1 Census of 1800; Dunn, Indiana, 295.
2 The best authority for this period is the Executive Journal of Indiana Territory. This is preserved in the office of the Sec- retary of State at Indianapolis. It is published in Vol. III, Pub- lications of Indiana Historical Society. This journal was not kept from day to day but items were frequently entered long after the event. For this reason it is open to some criticism for ac- curacy. See also Homer J. Webster, William Henry Harrison's Administration of Indiana Territory.
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INDIANA TERRITORY
In that part of the Northwest territory set off as Indiana territory there were two counties already or- ganized in 1800. The oldest of these was St. Clair, organized by and named for, Governor St. Clair, April 27, 1790. Knox county had been organized by Secre- tary Winthrop Sargent, June 20, 1790. Wayne county had been organized by Governor St Clair, August 15, 1796. It included northern Ohio, Indiana north of a line from Fort Wayne to the south end of Lake Mich- igan, a small part of Illinois, eastern Wisconsin, and all of Michigan. The county seat, however, was at De- troit, which, with nearly all the settled part of the county, remained in the Northwest territory by the division of 1800.
The Ohio Enabling Act, April 30, 1802, laid down the present northern boundary of Ohio and attached that part of old Wayne county north of the Ohio line to Indiana territory. By proclamation of January 24, 1803, a new Wayne county was created, bounded on the west by a meridian, tangent to the western shore of Lake Michigan, on the south by a parallel, tangent to the southern point of Lake Michigan, and on the east and north by Canada.
The Ohio Enabling Act also detached from Ohio a wedge-shaped territory on its western border, bounded by a meridian through the mouth of the Big Miami, the Greenville Treaty line from Fort Recovery to the mouth of the Kentucky river and the Ohio river. This strip, usually known as the "gore," by proclamation of Governor Harrison was, for purposes of government, attached to Clark county.
March 26, 1804, the Louisiana Purchase was divided, and that part north of the thirty-third parallel was placed under the jurisdiction of the governor and judges of Indiana territory. The district, however, was never a part of Indiana territory. Laws had to be enacted for the new district the same as for a separate
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