USA > Missouri > A History of Missouri from the Earliest Explorations and Settlements Until the Admission of the state into the union, Volume III > Part 2
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5
CENSUS
No official record has been preserved of its proceedings but from the Missouri Gazette it appears, that one of the first laws enacted related to weights and measures, a subject as well can be imagined of general interest to the people. By another act the office of sheriff was estab- lished. Laws relating to crimes and their punishment also received attention. An act was passed providing that a census should be taken of the male population of the territory in order to fix the basis of repre- sentation. Courts of Common Pleas were created and their jurisdic- tion defined. The first bank of the Missouri territory - the Bank of St. Louis - was chartered. A new county was organized and appropriately named Washington out of territory cut off from the county of Ste. Genevieve. This new county embraced the lead mining district and Mine à Breton was made the county-seat and then first named Potosi. Of course provision was made for the compensation and pay of the members. This embraces the most important subjects of legislation of the first session. When the legislature adjourned it was to meet again for a second session in the following December.
For some reason the speaker of the first session did not act at this adjourned session and George Bullit of Ste. Genevieve was elected as speaker. It then appeared that under the census which had been taken under the act passed at the first session that the white male population of the county of St. Charles ANDREW SCOTT was 1,096, of St. Louis 3,149, of Ste. Genevieve 1,701, of Cape Girardeau, 2,062, of New Madrid, 1,548, and of the county of Arkansas 287. The new county of Washington which had been detached from Ste. Genevieve had a population of 1,010. The total male population of the territory then was 11,393 and allowing the same number for white females and 2,000 for slaves and free blacks the total population of the territory was at least 26,000. Under the census of 1810 the population was 20,845 of all classes. At this second session of the legislature the new county of Washington was represented by Dr. Israel M'Gready. Perhaps the most important law adopted at this adjourned session was an act defining the boundaries of the several counties, about which some vagueness existed prior to this time.
The second General Assembly of the territory met in St. Louis
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HISTORY OF MISSOURI
on the 5th of December, 1814. The number of representatives under the new census was twenty and all members were present on the first day of the session. In this General Assembly St. Charles county was represented by John Pittman, Peter Journey and John G. Heath; St. Louis county by five members, Barnabas Harris, Richard Caulk, William C. Carr, Robert Simpson and Kincaid Caldwell; Washington county by two members, Nicholas Wilson and Philip McGuire; Ste. Genevieve county by three members, Richard S. Thomas, James Caldwell and Augustine De Mun; Cape Girardeau county by five members, Stephen Byrd, George F. Bollinger, - -, Robert English and Joseph Sewell; New Mad- rid county by three members, John Davidson, George G. Hart and Henry H. Smith and Arkansas county by one member. James Cald- well was elected Speaker of the House and Andrew Scott. re-elected Clerk. William Sullivan was made Doorkeeper. William Neeley was presiding officer of the Council, Rev. James Maxwell having died. Charles Lucas took the place of Seth Emmons as a repre- sentative in the Council from St. Louis also deceased since the last session, and John Rice Jones took the seat of Rev. James Maxwell, these new members of the Council having been appointed by the President. This legislature met in the old Sanguinette log house on Second street. No record of the proceedings of the first session has been preserved. The first law suppressing vice and immorality on the Sabbath day was enacted by this legislature. An Act was passed to regulate the fiscal affairs of the territory and the office of Territorial Auditor established. The subject of roads and highways, a matter which has engaged the attention of every legislature since that time, also became the subject of anxious solicitude.
The second session met in January, 1815, at the house of Madame Du Breuil. Some change in the representation seems to have taken place, by resignation or otherwise. Washington county at this adjourned session was represented in the House by Hardage Lane and Stephen F. Austin; Ste. Genevieve county by Isidore Moore; New Madrid county by Dr. Robert D. Dawson, and Arkansas county by Henry Cassiday, while Matthias McGirk represented St. Charles county in the Council. St. Louis now was growing in importance and real estate rapidly increased in value and this led to the pass- age of an act providing for the survey of the town. By another law a county court was established in each county except Arkansas
7
THIRD TERRITORIAL ASSEMBLY
county, these courts to be composed of the justices of the peace of the several counties. The clerks of these courts were made ex-officio recorders of the several counties. Under another law the new county of Lawrence was organized. The most important law adopted was that which created two judicial circuits for the territory, the counties of St. Charles, St. Louis and Washington constituting the northern and Ste. Genevieve, Cape Girardeau and New Madrid the southern circuit. This Act abolished the office of Attorney-General and created the office of Circuit Attorney.
The third territorial General Assembly elected in 1816 was com- posed of Hugh McDermid, - Evans, and Spencer of St. Charles county; Edward Hempstead, James Mackay, John Coons, John W. Honey, Barnabas Harris, Jesse Murphy, and John E. Allen of St. Louis county; Hardage Lane and Stephen F. Austin of Washington county; Nathaniel Cook, Isidore Moore and John McArthur of Ste. Genevieve county ; George F. Bollinger, Robert English and John Dunn of Cape Girardeau county; Dr. Robert D. Dawson of New Madrid county; Edward Hogan of Arkansas county; and Alex. S. Walker of Lawrence county. Edward Hempstead was STEPHEN F. AUSTIN Speaker of the House and William Neeley, President of the Council. For this General Assembly the Council was elected and St. Charles was represented by Ben Emmons, St. Louis by John Ward, Washington county by Samuel Perry, Ste. Genevieve by Joseph Bogy, Cape Girardeau by William Neeley, New Madrid by Joseph Hunter, Arkansas by John Cummins, and Lawrence by Richard Murphy. The sessions were again held in the house of Madame Du Breuil on Second street. One of the first acts passed was a law organizing the county of Howard, which was so named in honor of Governor Ben Howard, who had recently died. Benjamin Cooper and James Alcorn were immediately upon the organization of the county elected to represent the people of the county in this legislature and afterward participated in its deliberations. At this session the Bank of Missouri was chartered and this gave rise to great agitation at the time." The bank was authorized to issue notes to circulate as money and in 1817 the Bank of St. Louis Douglas vs. Bank, I Mo. Rep., p. 38.
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HISTORY OF MISSOURI
chartered in the previous year, and the Bank of Missouri both began to issue notes. Acts were also passed offering a bounty for killing wolves, panthers and wildcats; establishing several lotteries, and a charter was granted to the Potosi Academy. The first law for the . organization of the School Board of St. Louis and out of which has grown the splendidschool system of that city was adopted by this legis- lature. St. Louis was authorized to erect a jail, but although the jail was commenced in 1817, it was not completed for want of funds until the winter of 1819-20.
In the fourth and last territorial General Assembly elected in 1818 and which met in that year Howard county was represented by six members, John Adams, Samuel Brown, David Jones, Daniel Munro, Thomas Rogers and George Tompkins; St. Charles county by six members, Hugh McDermid, -, Christopher Clark, William Smith, James Talbot and Ira Cottle; St. Louis county by David Barton, Barnabas Harris, Henry S. Geyer, Robert Wash, John W. Harvey, John C. Sullivan, Marie P. Leduc, Daniel Richardson and David Musick; Washington county by Lionel Browne and Stephen F. Austin; Ste. Genevieve county by Isidore Moore, David F. Marks, William Shannon and Jacob Walters; Cape Girardeau county by Johnson Ranney, Robert English, Joseph Sewell, Erasmus Ellis and James Ravenscroft; New Madrid county by Stephen Ross; Lawrence county by Perry G. Magness, Joseph Harden and John Davidson, and Arkansas county by Edward Hogan. The Legislative Council was composed of Ben Emmons from St. Charles;
Howard county, Thomas F. Riddick, St. Louis; Samuel Perry, Washington; John D. Cook, Ste. Genevieve; George F. Bollinger, Cape Girardeau; Robert D. Dawson, New Madrid, and Henry Cas- sidy from Arkansas county. David Barton was elected Speaker of the House, Ben Emmons President of the Council, and Andrew Scott again elected Clerk of the House and William Sullivan Door- keeper. This General Assembly passed an Act organizing eight new counties, viz .: Jefferson, Franklin, Wayne, Lincoln, Madison, Montgomery, Pike, and Cooper, but Lawrence county was abolished. The territory was also, by another Act, divided into three judicial circuits, the southern circuit composed of the counties of Ste. Gene- vieve, Madison, Wayne, New Madrid and Cape Girardeau; the northern circuit of the counties of St. Charles, Franklin, Washington, Jefferson and St. Louis, and the new northwestern circuit of the counties of Cooper, Howard, Montgomery, Lincoln and Pike. A
9
RICHARD S. THOMAS
memorial was adopted praying for the establishment of a state government and this was afterward presented by the delegate of the territory to Congress.
In 1814 Rufus Easton was elected second delegate to Congress, receiving 948 votes; his opponents being Samuel Hammond who received 744 votes, Alexander McNair who received 854 votes, and Thomas F. Riddick who received only 35 votes. Easton took his seat in Congress November 16, 1814. At the next election for delegate John Scott of Ste. Genevieve and Rufus Easton were competitors. Scott re- ceived 1,816 and Easton 1,801 votes, and Scott was declared elected by 15 plurality, but East- on was not so easily retired; he contested the election on the ground that the judges of Côte sans Dessein, where Scott had received 23 votes and Easton only one vote, were not sworn RUFUS EASTON before entering upon their duties as judges, and this fact being established the seat was declared vacant and a new election ordered. This election took place in 1817, and Scott re- ceived 2,406 votes and Easton 2,014 votes, Scott's majority this time being 392. This satisfied Easton, and he made no further contest. Afterward Scott was re-elected and remained in Congress until 1828. · The first judge appointed for the southern circuit established by the territorial legislature was Hon. Richard S. Thomas. Judge Thomas was a native of Virginia; settled in Ste. Genevieve in 1810, and appeared as attorney in the first case for murder tried there in 18II. After he was appointed Circuit judge he removed from Ste. Genevieve to Jackson. In 1825 he came in conflict with the Jack- son bar and was impeached on various charges. It was alleged that he was arbitrary, oppressive, unjust and partial in that he refused to recognize John Juden, Jr., as Clerk of the Circuit court of Cape Girardeau county under the pretense that the amendment to the constitution of 1822 vacated the office, that he appointed his own son, Claiborne S. Thomas, as Clerk, and demanded that the records of the office be delivered to him, that he adjourned the April term, 1823, because Juden refused to deliver the papers to the Clerk appointed by him; that he had shown partiality in a suit between his son and Charles G. Ellis; that he had agreed to admit Dr. Ezekiel Fenwick, charged with murder, to bail provided that he
IO
HISTORY OF MISSOURI
would surrender himself to the sheriff. The articles of impeachment were presented by the House of Representatives February 25, 1825, Judge Thomas appearing by his attorney Edward Bates and deny- ing them, but on March 5, he was found guilty of the charges preferred against him and removed from office. He resumed the practice of law at Jackson, but shortly after on his way to attend court at Greenville, he was thrown from his horse, and from the injury sustained he died in 1825.5 Judge Thomas was succeeded by Judge John D. Cook who had been appointed one of the judges of the Supreme court when the state was admitted, but resigned. He re- mained Circuit Judge until the constitution was amended making judges elective. On the northern circuit David Barton was ap- pointed first Circuit Judge and held his first term of court April 10, 1815, but in 1818 resigned and resumed the practice of law. Nathaniel Beverly Tucker was then appointed Judge of this circuit by Frederick Bates, acting Governor. He was a native of Virginia, a half brother of John Randolph of Roanoke, his father, J. St. George Tucker, having married his mother. Judge Tucker came to St. Louis in 1815. In 1826 he was succeeded by Judge Alex-
ander Stuart.º In 1831 Judge Tucker lived in Saline county, but in 1833-34 returned to Virginia to accept the chair of Law in William and Mary College, at Williamsburg. He remained there for the remainder of his life, dying August 26, 1851, at the age of 67 years.
Judge Tucker was eccentric like his half- brother. When he came to the territory he purchased a farm near Florissant, and in a large, hollow sycamore tree about ten feet in NATHANIEL B. TUCKER diameter, which was on the place, he estab- lished his law office, cutting off the tree about ten feet above the ground, cleaning out the inside, putting in a floor, door and window, and arranging his law books around on the side
' He was very unfortunate in his domestic relations. His son Claiborne and daughter Sabrina both became insane. According to the recollections of those who knew them, the family were cultivated and accomplished. Dr. Peck says in 1818 he preached at the house of the Hon. Richard S. Thomas, and that he was kindly and hospitably entertained there. "Mrs. Thomas," he says, "and her daughters were members of Bethel church." -- Life of Rev. John Ma- son Peck, p. 119.
Alexander Stuart was born May 11, 1770, in Virginia. He was a younger brother of Judge Archibald Stuart, of Staunton, and studied law in his office.
II
DAVID TODD
of this natural wall. When Circuit Judge, he would get on a horse and gallop twenty or thirty miles to hold court, and as soon as the grand jury finished its business, try the cases presented and then he would return home in the same way. He was an extreme States' rights man. In 1828 he married Miss Eliza, daughter of Mr. John Naylor of St. Charles. She died .within five months after the mar- riage. He married his second wife, Miss Lucy Ann Smith, a daughter of Gen. T. A. Smith, at Franklin in 1830. Judge Tucker was an able jurist and an ornament of the profession, a man of classical edu- cation, of fine literary attainments and excelled as a writer.7
The first judge of the northwestern circuit was David Todd, who was appointed in 1819 and continued in office until 1835, when all the judicial life-appointees were legislated out of office. He was born in 1790, in Fayette county, Kentucky, and admitted to the bar in that
After he was admitted to the bar, he began to practice his profession in Campbell county, Virginia, and not long afterward was elected to the Executive Council of the State and removed to Richmond where he resided for some years. He was appointed a territorial Judge of Illinois and settled in Kaskaskia, but the climate proving unfavorable, he returned to Virginia. In about 1808, he settled in St. Louis and while residing there was on terms of intimacy with Gov. Merriwether; and he appointed him, W. C. Carr, and William Clark as his attorneys when about to make his trip to end so tragically to Washington. Stuart continued to reside in St. Louis, and died December 9, 1832, while on a visit to his old home in Virginia. His brother Archibald Stuart was father of Alexander H. H. Stuart, who was a member of Fillmore's cabinet and grand- father of Gen. J. E. B. Stuart. A great grandson of Alexander Stuart, the Hon. Henry C. Stuart, is now a member of the State Corporation Commission of Virginia, and Mrs. Dr. Robert Preston of Wytheville, Va., is another descen- dant.
" Nathaniel Beverly Tucker, second son of St. George Tucker, born at Williamsburg, James City Co., Va., Sept. 6, 1784, died in Winchester, Va., August 26, 1851, was generally known by his second name. He was graduated at William and Mary in 1801, studied law, and practiced in Virginia until 1815, when he came to the Missouri territory. His most remarkable work after he returned to Virginia is "The Partisan Leader; a tale of the future, by Ed- ward William Sydney," (New York, 1836; Washington, 1837). This was printed secretly, bearing the fictitious date 1856, and purported to be a historical novel of events between 1836 and that year. In its accurate delineation of events between 1861 and 1865 it seems almost prophetic. It was reprinted with the title, "A Key to the Disunion Conspiracy," (New York, 1861). His other works include "George Balcombe," a novel (1836); "Discourse on the Importance of the Study of Political Science as a Branch of Academic Education in the United States," (Richmond, 1840); "Discourse on the Dangers that threaten the Free Institutions of the United States," (1841); "Lectures intended to prepare the student for the Study of the Constitution of the United States," (Philadelphia, 1845); and "Principles of Pleading," (Boston, 1846). He left an unfinished life of his half-brother, John Randolph, of Roanoke. He wrote a great number of political and miscellaneous essays, and was a large contributor to the "South- ern Literary Messenger" of Richmond, Va., and to the "Southern Quarterly Review." He corresponded with scholars and politicians, and the influence of his mind was felt by all such with whom he came in contact. See Appleton's Cyclopedia of American Biography.
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HISTORY OF MISSOURI
state in 1810 - came to the Missouri territory in 1818 and died in Columbia in 1859. In 1828 an effort was made to impeach him, but this attempt failed.
In looking over the legislative history of the territory it should be noted that in 1816 the first Act was passed introducing the common- law, although, as we have seen, at least in one instance, the rules of the common-law were followed by the very first American officers stationed in upper Louisiana. The Act of 1816 expressly made the common-law, and statutes of England prior to the reign of James I., of a general nature, the law of the land, provided they were not in conflict with the laws and constitution of the United States, and the statutes of the territory. This statute did not abrogate the Spanish law, nor was the Spanish law eo nomine abolished until 1825.
From 1804 until Missouri was admitted into the Union many members of the legal profession settled in the territory, and this chap- ter would be incomplete without giving at least a cursory sketch of the lives and careers of some of these early jurists whose names have become inseparably connected with the history of the territory. Dur- ing the Spanish government upper Louisiana offered no field to the professional lawyer, but after the acquisition of the country by the United States a great change took place. Lawyers occupied the stage, - their disputes, their quarrels, their claims for political preferment and their jealousies became the subjects of popular interest; they were engaged in nearly all the duels fought, in fact were the duellists, the protagonists of the code duello. The land claims and questions of law connected with these land claims agitated the minds of all the old settlers as well as of the purchasers of such claims. The rapidly rising value of land, the great interests at stake in this litigation, the immense fees involved in success, and the great political prizes offered in this new domain, brought out the splendid intellectual powers of these early advocates. The number of remarkable jurists these great opportunities developed is unparalleled in the history of any state. Nearly all the lawyers who came to Missouri before the admission of the state into the Union achieved distinction, and many attained a national reputation.
In 1804, almost immediately after it became known that the coun- try had been purchased, Nathaniel Pope settled in Ste. Genevieve to practice law in the new courts which were to be organized. He was born in Louisville, Kentucky, in 1784; received a classical education, graduated at Transylvania University and studied law with his broth-
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JOHN SCOTT
er, John Pope. When the first court met in Ste. Genevieve, in De- cember, 1804, he was present as attorney; he was also in attendance at the first court which met at Cape Girardeau, March 19, 1805. Pope, however, remained at Ste. Genevieve only a few years, and removed thence to Kaskaskia, then the capital of the Illinois country. When the territory of Illinois was organized, in 1809, he was appointed its first Secretary. He was elected delegate to Congress in 1817, and after the organization of the state government was appointed United States District Judge of Illinois. He died in 1850.
The first lawyer who settled permanently in Ste. Genevieve was John Scott, a native of Virginia and graduate of Princeton College. He came from the east to Vincennes, studied law there and was admitted to the bar; in 1805 he removed from Vincennes to Ste. Genevieve to practice his profession. Subsequently he was elected delegate from the Missouri territory to Congress. He was the first representative of the state of Missouri in Congress after the state was admitted to the Union. In the presidential contest between Jackson and Adams he voted for Adams and this ended his political career. The remainder of his life was devoted to the practice of law in which he became eminent. For many years he was a familiar figure in all the courts of the southeastern counties. His honesty and integrity won him the unlimited confidence of the people. In those early times almost all collections were made by lawyers. The amounts thus collected by Scott for his clients were often very large, and it is said that he would put all such col- lections made by him while traveling on the circuit in separate buckskin bags with the name of the owner marked on them, nor would he touch such money for his individual use no matter how sorely pressed. His personal in- fluence with juries was so great that on one occasion when a jury brought in for one of Scott's clients a verdict manifestly against the evidence, one of the jurors excused his ver- dict by saying, "Didn't John Scott tell us to bring in a verdict that way!" Scott died JOHN SCOTT at the age of 80 years, and Scott county was named in his honor.8
' Other attorneys at Ste. Genevieve during the territorial era of Missouri were, George Bullit, elected to represent the county in the territorial legislature, and also at one time Register of the Land Office; T. T. Crittenden, who was appointed Deputy Attorney-General in 1810 by Governor Howard; and Beverly
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HISTORY OF MISSOURI
Isaac Darnielle was perhaps the first lawyer who came to St. Louis after the acquisition of Louisiana. As early as 1794 he had settled in Cahokia. Darnielle was a native of Maryland, and Reynolds says had received a collegiate education; was a man of strong intellect, fine appearance, extremely neat in his dress and attentive to his personal appearance, an agreeable speaker and popular, but unfortunately indolent." He seems to have been engaged in the early political intrigues of the territory, and General Wilkinson says that Ham- mond "has become the intimate associate of that rascal Darnielle whose name is men- tioned only in the same breath as a 'libel on integrity!' "10
Three lawyers, William C. Carr, Rufus Easton and Edward Hempstead came to St. Louis about the same time, in 1804. Carr was the son of Walter Carr of Albemarle county, Virginia, a personal friend of Jeffer- son; he was born April 15, 1783; received an academic education; studied law and after W. C. CARR being admitted to the bar came to Louisiana territory, arriving in St. Louis March 31, 1804, making the journey from Louisville to St. Louis on a keel-boat, a tedious trip re- Allen, for a time law partner of John Scott, who resided in Ste. Genevieve until 1827, when he removed to St. Louis. Allen was a native of Virginia, a graduate of Princeton and began the study of law under Judge Upshur; when he first came to the territory he opened a Latin school at Jackson, but from there he removed to Ste. Genevieve; he was appointed U. S. District Attorney by President Adams probably on the recommendation of Scott, and this appointment was no doubt connected with his removal to St. Louis. In St. Louis Allen entered into part- nership in the practice of law with Hamilton R. Gamble. When Jackson was elected President he was removed from office, but was afterward elected to the state legislature. In 1838 he was a candidate for Congress but defeated. Judge Otto Schrader settled in Ste. Genevieve in 1809; he was a German-Austrian; appointed territorial judge by Jefferson; at the time of his appointment resided at Sunbury, Pa .; in Austria had served as a soldier under Archduke Charles; he died in St. Louis, in 1811, while in attendance upon a council of the governor and territorial judges. At the first Circuit Court of Jefferson county, at Her- culaneum, in 1819 Ebenezer Martin produced a license and was admitted to the bar, and in 1820 Henry Maffit was also admitted, these being the first resident attorneys there.
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