USA > Indiana > The history of Indiana > Part 19
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The editor of the Western Sun placed several men in nomination, but frankly added that he had not seen any of them and did not know if any of them would serve.
Very little evidence has come down to us concern-
10 Annals, Fourteenth Congress, 1841; Dunn, Indiana, 417: Dillon, History of Indiana, 544; Vincennes Western Sun, under proper date; Statutes at Large, 1816, Sess. 1, ch. 57.
11 Western Sun. May 3. 1816.
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HISTORY OF INDIANA
ing this election. If there was any concerted action, any organization, any definite issue before the people, all trace of it has disappeared. The men selected were representative of the best talent in the State. The pre- vious General Assembly was represented in the con- vention by over half its members. Twenty-three of them subsequently served in the State Senate; seven- teen served in the House of Representatives ; Jonathan Jennings served two terms as governor; James Noble and Robert Hanna became United States senators ; Jennings and William Graham became representatives in Congress; Benjamin Parke, James Scott and John Johnson became distinguished judges, the former in the United States circuit court, the two latter in the State supreme court; Daniel C. Lane served seven years as State treasurer; John Badolet was in charge of the land office at Vincennes; William Polke was Indian agent at Fort Wayne; at least a dozen of them were preachers; a smaller number were lawyers. So far as the evidence at hand shows, there was not a bad man in the list. They were not only a creditable convention, but personally were creditable to the voters who chose them. It does not seem probable that even a majority of them could have been partisans to any man or party. Badolet was the Swiss companion of Albert Gallatin ; John DePauw was the son of a companion of Lafay- ette; Hugh Cull was a Methodist circuit rider ; Charles Polke was a Baptist preacher and the founder of Bap- tist churches, as were also Ezra Ferris and William Polke; Frederick Rappe was the adopted son of the founder of New Harmonie. William Hendricks, the first representative of the State in Congress, and its second governor, was the secretary of the convention.
The convention was in session from Monday, June 10, to Saturday, June 29, eighteen working days. The journal of the convention gives only the most meager details. The work of forming a constitution was dis-
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THE CONVENTION IN SESSION
tributed to committees. There was some discussion, no doubt, over the slavery and suffrage sections, but the Enabling Act left them no discretion in the former.
The constitution was not submitted to the voters for ratification. The president of the convention, Jonathan Jennings, was directed to issue to the county sheriffs writs of an election to be held, August 5, under the old election laws, for the choice of a governor, lieutenant governor, members of the General Assembly, sheriffs and coroners. It was the harvest season of the year and many of the members were anxious to get home. The crowd of fifty men taxed heavily the tavern ac- commodations of the village of Corydon. There was every inducement for completing the work as soon as possible. In this regard it stands in contrast to the convention of 1851, with its two thick volumes of talk.
The two senators and the representatives appeared at the opening of Congress, December 2, when the Senate, by resolution, December 6, and the House, by resolution introduced by William Henry Harrison, De- cember 9, declared the State a member of the Union.12
As would be inferred from the character of the members of the convention and the brevity of the ses- sion, there was nothing novel in the constitution. The political theory of these men was somewhat more dem- ocratic than that advocated by Jefferson. The consti- tution as finally adopted was a judicious compound of the constitutions of Ohio, Pennsylvania, Kentucky, and
12 Annals, Fourteenth Cong., Twentieth Session. No detailed study of the Convention of 1816 has ever been made. Dillon and Dunn gave a few pages to a bare outline of its work as gleaned from the scant record of the "Journal." The "Journal" was kept by William Hendricks, the secretary. No record was kept of the discussions in committee. There is evidence that a great deal of the short sessions was occupied by different members in laying political plans. The "Journal" has been recently re- printed in the 1912 Indiana Bar Association Report. This re- port also contains an able article on the Convention of 1816, by W. W. Thornton.
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HISTORY OF INDIANA
the United States. The first article, which was a bill of rights, restated the fundamental maxims of English government in almost the exact words of the Ohio law.
Article II, dealing with the separation of powers, which is an exact copy of article I of the Kentucky constitution, divided the powers into executive, legisla- tive and judicial. There is only one different word- "Indiana" is used in place of "Kentucky."
Article III, dealing with the legislative department, is a copy almost verbatim of the Ohio constitution. The date for State election is the first Monday of August, in preference to the Ohio date, which was on the sec- ond Tuesday of October. Representatives were to be chosen annually, as in Ohio, but senators were to serve three years, plainly a compromise between the two year term of Ohio and the four year term of Kentucky. The qualifications of representatives, 21 years of age, and senators, 25 years of age, were lower than in either State. Both had to be taxpayers, the same as in Ohio.
The voting qualifications were expressed in the same words as in the Ohio law, the voter being re- quired to be 21 years old, and one year a resident.
Judged from our time, there were remarkably few officers to be chosen at public election. They were the members of the General Assembly, governor, lieuten- ant governor, associate judges, sheriffs and coroners ; the coroner and lieutenant governor being merely emergency officers to fill possible vacancies. Only three offices were thus filled by popular election, legislator, governor and sheriff.
In harmony with the spirit of the times, nearly all power was placed in the hands of the General Assem- bly. The governor had only a suspensive veto, which could be overcome by a majority of each House. He appointed a few officers, principally judges of the su- preme court, but always by and with the advice and approval of the Senate. All circuit judges, and the
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THE NEW CONSTITUTION
secretary, auditor and treasurer of State were chosen by the General Assembly.
The most notable innovation in the Indiana con- stitution was Article IX, dealing with the subject of education. It has been noted that all the material dif- ferences between the Indiana and other constitutions were in favor of a wider democracy. Ohio had taken a short, halting step in the direction of public education, but the Indiana convention is entitled to the distinction of having first recognized the governmental obligation of educating all its citizens. Of all the sections of the constitution the one requiring that the General Assem- bly provide by law for a general system of education, ascending in a regular scale, from township schools to a State university, wherein tuition shall be gratis and equally open to all, was most democratic, and forward- looking. It took a century to put this article into suc- cessful operation.13
13 Journal of Constitutional Convention of 1816; Revised Laus of Indiana, 1824; Ben Perley Poore, Constitution and Charters; Laws of Indiana, 1817; Thorpe, Constitutions; Harding and Esarey, Messages of the Governors of Indiana, contains many of the documents for this period.
CHAPTER X
THE GOVERNMENT AT CORYDON, 1816-1825
§ 42 THE NEW CONSTITUTION IN OPERATION
THE summer of 1816 was a busy time with the voters and politicians of Indiana. The news of the passing of the Enabling Act reached the territory about May 1. The election of delegates to the constitutional convention was held May 13. The convention sat from the 10th to the 29th of June. The regular State and county election was held, August 5, and the First Gen- eral Assembly convened at Corydon, November 4, 1816. Jonathan Jennings was the central figure in all this activity. He had been the delegate in Congress in charge of the Enabling Act; he was a delegate in the constitutional convention; presided over its delibera- tions ; as its president it became his duty to issue writs of election and put the constitution into active opera- tion; and in the campaign he was the leading candidate.
The election of August 5, 1816, was warmly con- tested in some parts of the State. The Vincennes Western Sun, July 20, has ten columns devoted to let- ters of candidates. These letters make rather dull reading at present. There was no important issue be- fore the people. All voters belonged to the Republican Party and supported Monroe. An echo of the old-time struggle between the Wabash and Ohio settlements ap- peared in the campaign for governor between Jennings and Governor Thomas Posey. That there was some spirit in this contest is shown by the number of votes cast. Jennings received 5,211 to 3,934 for Posey,-a total of 9,145 votes out of a possible 12,112 shown in
252
253
ORGANIZING THE STATE
the enumeration less than a year previous. In the race for lieutenant governor only 7,474 votes were cast, of which Christopher Harrison, of Salem, received 6,570. In the race for Congress, William Hendricks defeated Allen D. Thom, receiver of public money at Jefferson- ville, and George R. C. Sullivan, an attorney of Vin- cennes, by decisive majorities. Sullivan withdrew from the race two days before the election, in the hope of throwing his support to Thom, but the announce- ment did not reach most of the counties till after the election.
The first session of the General Assembly met at Corydon, November 4, 1816, and remained in session till January 3, 1817. It was fortunate for the new State that so many good men were returned to the first session, for the constitution had left the organiza- tion of the State government very largely in the hands of the General Assembly. No State or local officers were elected by the people except the governor and sheriff and a deputy for each in case of emergency. By far the larger number of officers had to be provided by the General Assembly.
How much of its work was of this nature will be shown by a brief review. On the first day, November 4, the Houses organized, on the second, they met in joint session and canvassed the votes for governor and lieutenant governor, declaring Jennings and Harrison elected. On November 8 the Houses again met together and chose James Noble and Waller Taylor to represent the State in the United States Senate. November 16 William H. Lilly was elected auditor of State, and Daniel C. Lane treasurer of State. There was some tendency shown to parcel out the offices among the members but this was soon stopped by a vote of the House, which expressed it as the belief of that body that it would be a violation of the constitution to elect one of its own members to a State office. Robert A.
254
HISTORY OF INDIANA
New was chosen as secretary of State. November 14 the Houses, again in joint session, chose Jesse L. Hol- man, Thomas H. Blake and Joseph Bartholomew elect- ors to cast the vote of the State for James Monroe for President. December 20, in joint session, the General Assembly chose Benjamin Parke judge of the first cir- cuit court, David Raymond, judge of the second, and John Test judge of the third. Not only was it neces- sary to elect these officers but to outline and define the work of the various offices.
The constitution recognized the existence of town- ship government and assumed that it would continue. In one section it provided that a competent number of justices be elected by the qualified electors for a term of five years.1 In another place it provided that all town and township officers be appointed in such man- ner as shall be directed by law.2
It was made the duty of the board of commission- ers of the county to divide each county into a suitable number of townships and order an election to be held to choose justices, not to exceed three, for each town- ship. These justices were to be commissioned by the governor. At the request of the board of commission- ers the sheriff was authorized to appoint an election in- spector for each township, who might, if he thought necessary, divide the township into voting precincts.3
The constable of the township was made the minis- terial officer of the justice's court. He was appointed annually by the county board. The justices had county-wide jurisdiction over petty crimes and misde- meanors, and township-wide jurisdiction over civil cases involving not over fifty dollars.4
The board of county commissioners was directed to
1 Constitution. Art V. Sec. 12.
2 Constitution. Art. XI, Sec. 15.
3 Laws of Indiana, 1817, ch. 14.
4 Laws of Indiana, 1817, ch. 4.
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THE FIRST GENERAL ASSEMBLY
appoint a necessary number of freeholders in each township to supervise the laying out and repairing of the highways. For the road-working every male per- son between the ages of eighteen and fifty was liable for not more than six days' work. The commissioners were also empowered to appoint a lister in each town- ship to do the work now done by the township assessor.6 Then, for fear the legislators had left out some detail in the scheme of local government, the commissioners were authorized to do and transact any and all county business not provided for.7
An unforeseen business soon developed in the case of poor relief. A law of the next General Assembly directed the county commissioners to appoint two over- seers of the poor in every township, whose duty it should be to look after the worthy paupers. This was done by the overseers by auctioning off each individual pauper to the lowest bidder, that is, to the person who would care for him for the smallest amount. Children of the poor and orphans were bound out as apprentices, boys until twenty-one years of age, girls until eighteen. Vagrants, so decreed by the court, were sold out to the highest bidder, the proceeds of his work, if any, going to those dependent upon him, the balance going to the vagrant after he had served out his nine months' in- denture.
The constitution dealt briefly with the county. Article XI, section ten, provided that a recorder might be elected for each county if the circuit court clerk was unable to do the work; Article XII, section eight, pro- vided for the election of a sheriff and coroner for each county. The General Assembly was given power to create and organize counties but no specific form of county organization was laid down.
5 Laws of Indiana, 1817, ch. VIII
6 Laws of Indiana, 1817, ch. XIX.
7 Laws of Indiana, 1817, ch. XXVII.
256
HISTORY OF INDIANA
The first General Assembly constructed a simple system of commissioner government for the county. The form was almost the same as that of the present. There were three commissioners chosen for three year terms, one retiring each year. The circuit court clerk was clerk of the board, a duty now performed by the county auditor. The sheriff was, and still is, the minis- terial officer of the board. The commissioners had con- trol over the county affairs, levying county taxes and paying out the county money, controlling county roads and attending to and owning county property.8
The board was authorized to appoint a county treas- urer, to receive, care for, and pay out on order, all county revenues, procure and keep correct a set of legal weights and measures, appoint fence viewers, pound keepers, viewers to lay out new roads, select grand and petit jurors, appoint superintendents of school sections, election inspectors, poor overseers, and later to estab- lish ferries and taverns.9 It was no easy office in a new country.
The strongest department of our early territorial and State government was the judiciary. During the territorial era, however, the system had become unduly complicated, and in one or two particulars, was not working well. There had been disclosed a ridiculous in- consistency in the appellate court. The old territorial judges, three in number, went on circuit, and as circuit judges they often sat together. On appeal, although all three might sit together, one was a quorum and thus one might overrule a decision given on circuit by all three ; or one as supreme judge might overrule himself as a circuit judge; or, a lawyer might appeal a case and be sustained by one judge and the next year be reversed on the identical question by the other judge. The territorial General Assembly had tried to remedy
8 Laws of Indiana, 1817, ch. XV.
9 Laws of Indiana, 1817, ch. XVII.
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THE JUDICIARY
this, and, in the constitution, it was effectually cured by giving the supreme court appellate jurisdiction only and requiring two of the three justices to concur in all decisions. They were not allowed to hold circuit court and hence would be under no necessity of overruling themselves.
The State was divided into three circuits, in each of which a circuit court was organized. This court con- sisted of three judges, a president judge, appointed by the General Assembly, and two associate justices, elected by the voters of the county. It was a strange mixture of State and local government. Thus the First Circuit, composed of Knox, Gibson, Warrick, Posey, Perry, Pike and Daviess counties, had one president judge, Benjamin Parke, and fourteen associate justices, two for each county. The president judge was usually a skilled lawyer, but the associates more often knew little of the law. They were rather selected for their general worth and standing in the community. They were regarded as the leading men of the county and were often politicians.
Below the circuit courts was an army of justices of the peace, as stated under "Township Government." The system was given a modern appearance by lopping off all extraordinary tribunals of the common law, such as quarter sessions, chancery, probate, and other spe- cial courts. In place of these the circuit courts were endowed with common law and equity powers. A be- ginning was made also in simplifying the pleadings, though many of the ludicrous old writs of English common law survived to the great joy of the special pleader at the bar. The work of the convention and of the first General Assembly indicate the presence in these bodies of good lawyers. Chief of these, no doubt, were Isaac Blackford, Benjamin Parke, James Scott, John Johnson and Joseph Holman.
The organization of the courts was carried still
258
HISTORY OF INDIANA
farther by the second General Assembly, which not, only laid down the main lines of the civil code of the State as it exists today, but added a criminal code which received few changes except in the manner of punishment until after 1850.10 The whipping post, as a means of punishment, still disgraced the State, though the substitution of fines and imprisonment was noticeable in the code of 1818.11 All barbarous punish- ments disappeared in the code of 1824.12
In the State government the General Assembly was all-powerful. Many functions now performed by other agents were then retained as the duties of the General Assembly. It laid down new roads and streets and vacated old ones ; it chartered all municipal and private corporations from a county government to a county library ; it licensed ferries and taverns, fixing rates of service in either case; it elected United States senators
10 Laws of Indiana, 1818, ch. I-XIII inclusive.
11 Compare article by Judge D. D. Banta, Indiana Magazine of History, December, 1913, 234.
12 Vincennes Centinel, May 6, 1820: "On Thursday last the minds of our citizens were shocked by the shameful spectacle of a fellow citizen tied to a sign post and flogged like a dog under the sentence of the circuit court now sitting in our town. He was found guilty of a petty species of that same crime for which so many heroes and statesmen have been celebrated and for which their names have been given to posterity. The sight was truly disgusting and it was evident that the manly mind of the officer who executed the sentence revolted at the performance of that odious duty. The criminal code of Indiana is a disgrace to civilization and it ill becomes our lawyers to boast of their refinement, while they sanction this species of degrading brutality, or to laud their purgation from British brutality, while they harbor this relic of its foulest barbarism. Corporal punishments are worse than useless; for nine times out of ten they are fatal to the mind of the victim-he is lost to society-he sinks under a sense of shame; or is sensitive and revengeful; the petty felon becomes the hardened ruffian. If guilty he is then desperate, if innocent the scars on his shoulders keep knocking at his heart and calling for satisfaction in a voice that is never mistaken or unheeded."
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INDIAN TREATIES
and impeached squires ; it chartered a State bank, and granted divorces.
The General Assembly met annually and its meet- ing constituted the chief political event in the year's history. The politicians of the State gathered to its meetings, the newspapers of the State burdened them- selves, to the exclusion of all other news, with the minute details of the legislative journals. The elec- tioneering of candidates for the General Assembly was never ended. The candidates were present at the log- rolling in the spring and at the harvest in the summer ; at the huskings in the fall they talked with their consti- tuents about what the General Assembly should do when it met; on muster days the candidates and more important politicians, usually under the imposing title of "jinerall," reviewed the militia or led in the maneuvers.
The executive department was reduced to a mini- mum. The governor, drawing the highest salary in the State, $1,000 per year, could be absent from his post for weeks at a time. The secretary of State, auditor of State, treasurer of State, with duties similar to those pertaining to their offices at present, were small clerks drawing salaries of $400 each annually. The supreme and circuit judges drew $700 per year, while members of the General Assembly were paid $2 per day.
§ 43 INDIANS
WHEN Indiana was admitted into the Union the Indians still had a claim on about two-thirds of its soil. The Indian boundary line extended from a point on the west boundary of the State in Vermillion county, passing near Montezuma, in Parke county ; Gosport, in Owen county; to Driftwood river, a few miles east of Brownstown. This was the famous "ten o'clock" line. From Brownstown the boundary led in a broken line northeast to Greenville, Ohio.
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HISTORY OF INDIANA
During the summer of 1816 Benjamin Parke met the Weas and Kickapoos in council at Fort Harrison. They ceded a small strip of land on Vermillion river. The Indians seemed in an accommodating mood and the agent was hopeful that they would consent to go be- yond the Mississippi.13
Later in the year 1816 ex-Governor Posey, Judge Parke and a man named Sharpe were commissioned to hold a council with the Miamis, Pottawattomies and Delawares, but nothing was accomplished at this time. Two years later Governor Jennings, Benjamin Parke, then federal judge for the district of Indiana, and Gen. Lewis Cass, governor of Michigan territory, met the tribes at St. Mary's, Ohio, and succeeded in purchasing nearly all the Indian land south of the Wabash. The Delawares agreed to take a grant of land beyond the Mississippi, and the Weas, Kickapoos, Pottawattomies and Miamis, all having claims on the ceded territory, agreed to withdraw to the north of the Wabash. This ceded land was commonly known in Indiana as the "New Purchase." Three years were given the Dela- wares in which to gather up their property and leave the State. In the fall of 1820 the remnant of this once powerful tribe, whose ancestors had received Henry Hudson, on the Hudson, and William Penn, on the Dela- ware, took up their western march, the disheartened train passing Kaskaskia about the middle of October.14
In September, 1820, Judge Parke concluded negotia- tions by which the Kickapoos also abandoned the State, thus opening up the Wabash country as far north as the present site of Lafayette.
The government had early recognized its obliga- tions to aid the Indians, but though Congress had appropriated money liberally for the purpose, no last-
13 American State Papers; Indian Affairs, II, 91; United States Statutes at Large, VII, 145.
14 Vincennes Centinel, November 4, 1820.
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A BAPTIST MISSION
ing benefit had derived to the Indians. It was found impossible to regulate the trade between the white and red men so that the latter were treated fairly. In despair of regulating the independent traders by means of licenses and police, the government, in 1796, had taken the business into its own hands. Agents for the various tribes were appointed and factories established where the Indians might buy and sell at a fair and uni- form price.
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