USA > Missouri > Encyclopedia of the history of Missouri, a compendium of history and biography for ready reference, Vol. II > Part 28
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Judge Biggs is a Missourian by birth, edu- cated at La Grange College. He left Pike County in 1861 to enter the Confederate Army. At the close of the war he returned to Missouri and read law at Canton. He was admitted to practice in 1869, at Bowling Green. He removed to Louisiana, Missouri,
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in 1873, and was in active practice when elected to the Court of Appeals.
Judge Bond was born in Haywood County, Tennessee, in 1848. After the war he prac- ticed law in St. Louis for several years, in partnership with the late Judge Lindley.
Judge Bland was, for some years before his election to the Court of Appeals, judge of the Circuit Court of Phelps County. His family is honorably known throughout the State; a distinguished member of it, who for many years represented his district in Congress, was prominently before the Chicago Conven- tion of 1896 as a candidate for the presi- dency, but was defeated, contrary to a very general expectation, by the stampede for Mr. Bryan.
ROBERT A. BAKEWELL.
Court of Quarter Sessions .- The first court established in St. Louis after it be- came a part of the domain of the United States. It was authorized by act of Congress of March 26, 1804, which empowered the Governor and judges of Indiana Territory to organize such courts in the Louisiana Ter- ritory as it might need, and under this act the Governor and judges of Indiana Territory established a court of common pleas in each of the five districts of Missouri, the one for the St. Louis District being directed to hold four terms a year-on the third Tuesdays in March, June, September and December; and from this it derived its name. The first judges appointed were Charles Gratiot, presiding justice, and Auguste Chouteau, Jacques Cla- morgan, David Delaunay and James Mackay, associates. The court held its first term in December, 1804, in the tavern of Emilien Yosti. It not only performed such adminis- trative functions pertaining to taxes, roads, ferries, licenses, etc., as were afterward given to county courts, but it was authorized also to exercise civil and criminal jurisdiction in small cases. Three years later the Governor of the Territory was authorized to appoint the judges of the court, and its jurisdiction was more strictly defined ; but it continued to per- form administrative functions until the year 1812, when the Territory of Missouri was or- ganized and divided into counties. A county court was established, to have charge of the county administration, a new court of com- mon pleas was organized, and the court of quarter sessions passed out of existence.
Courts and Laws of Missouri, First
Established .- During the seventeenth and eighteenth centuries the territory of which Jackson County is a part was claimed by England, France and Spain. The second charter of Virginia (May 23, 1609; 7th James I) granted the land from 34 degrees to 40 degrees north latitude from the Atlantic to the Pacific, to the colony of Virginia. On the 9th of April, 1682, in the name of France, its king took possession of the mouth of the Mississippi River, by which act the French government claimed all the lands in the watershed of the Mississippi River and its tributaries. It was called Louisiana, in honor of Louis XIV. On November 2, 1762, France ceded the territory west of the Mississippi to Spain. Count Don Bellerive Alexandro O'Reilly took formal possession of Upper Louisiana for Spain, August 18, 1769. He established the laws of Spain for the government of the province, and the use of the Spanish tongue in the courts. He came to St. Louis and located there in 1769. During our first war with England, Don Bernardo de Galvez was Spanish Governor. His administration was beneficent. In the main, wise laws were passed, and the mouth of the Mississippi was kept open for the use of all parts of the country tributary to that river. By the definite treaty of Ildefonso, October 1, 1800, the territory was retroceded to France, and France sold the same to the United States, April 30, 1803. Congress authorized President Jefferson, by act dated October 31, 1803, to take possession. On December 20, 1803, formal possession was delivered at New Orleans, and at St. Louis on March 10, 1804. The French simply transferred the territory from Spain to the United States. Thus 1,160,577 square miles passed from Latin to Anglo-Saxon domina- tion. On the 26th of March, 1804, Congress divided the territory into two governments, the "Territory of Orleans," and the "District of Louisiana," the latter containing 1,122,975 square miles, and represented all that pur- chase lying north of 33 degrees north lati- tude. The same act attached the District of Louisiana to Indiana Territory for govern- mental purposes, and empowered the Gov ernor and judges of the same to establish inferior courts, prescribe their jurisdiction and duties, and make all needed laws.
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COURTS AND LAWS OF MISSOURI, FIRST ESTABLISHED.
The judges of Indiana Territory were to hold two courts in the district annually. William Henry Harrison was Territorial Gov- ernor at that time, and came to St. Louis in May to ascertain the needs of the people. At Vincennes, Indiana, the Governor and judges enacted the first laws for the District of Louisiana. Among these laws were im- prisonment for debt, the pillory, the whip- ping post, the sale of debtors, and stringent laws about slaves.
When we recall the earnest discussion which had long preceded this date as to the importance of maintaining a distinct division between the legislative, judicial and executive branches of the government, it naturally oc- casioned some surprise that the chief exec- utive and judicial officers of Indiana Territory should be authorized to enact a system of laws for this vast domain which they would be called upon to execute and construe.
This, however, if I recall rightly, was previously done in another instance. On July 4, 1805, the District of Louisiana became the Territory of Louisiana, and provision was made for organizing a local government. The Governor and three judges were constituted the law-making power.
The laws promulgated by General Harri- son and the judges were few in number. Some of them were plain and simple. With respect to others and the penalties they in- flicted, much difficulty- could be found in con- struing them. They illustrate, as all laws do, perhaps better than anything else, the sentiment of society at the times of their enactment as to certain offenses and social conditions. It may be of interest to note some of them. They are contained in about fifty-five pages of an ordinary law book. They provided that any person who should aid or assist in burning, or causing to be burned, any dwelling house, storehouse, barn, stable or other building adjoining thereto, should, upon conviction, suffer death and forfeit as much of his estate, real and personal, as should be sufficient to satisfy the party in- jured his full damages.
They next provided that if any person should be guilty of burglary of any dwelling house or store, in the night season, with a view of purloining property therefrom, the party should be fined in a sum not exceed- ing $100, at the discretion of the court before which the trial should be had, and the pris-
oner should be compelled to find sureties for good behavior not exceeding one year, and in default should be committed to jail for a term not exceeding one year. The law did not provide the amount of security he should furnish. .
The same enactment further provided that if the burglar should succeed in purloining any property, he should be fined in triple the value of the articles stolen, one-third of the amount to go to the district in which the trial should be had and the other two-thirds to the party injured.
But if any person, while burglarizing any house or store, should take property there- from, and at the same time be armed with any dangerous weapon, his offense was pun- ishable by death.
If any person committed robbery in the field or highway, he was punishable with a fine not to exceed $100. He was required to give bond for good behavior for a term not exceeding one year and fined in triple the value of the property taken ; but if in commit- ting robbery he should be armed with any dangerous weapon so as to clearly indicate an intention of violence, the punishment inflicted was death, and his estate should pay forfeit to the party injured "his full damages."
If three or more persons should assemble together with the intention of doing any "unlawful act" against the peace and to the terror of the people, and make any move- ment or preparations, the parties so offending became liable and were required to furnish sureties for their good behavior respectively for the space of six months. When thus un- lawfully assembled it became the duty "of all judges, justices of the peace, sheriffs and all ministerial officers immediately, upon actual view," or as soon as may be upon information, to make proclamation in the hearing of such 'offenders, if silence can be obtained, com- manding them in the name of the United States, to disperse and depart to their several homes or lawful employments.
If any person should take satisfaction for goods stolen he became liable to a fine for twice the value of the property received, but he was not debarred from doing so provided he prosecuted the thief. It was further provided that the law should not be so construed as to oblige a parent to prosecute a child being an infant or in a state of minority.
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COURTS AND LAWS OF MISSOURI, FIRST ESTABLISHED.
There was another enactment to the effect that if any person committed a forgery of a bond, bill, deed, will, gift or grant, or falsify any enrollment or record with intent to de- fraud any person, he should be fined in double the sum he may have defrauded, and he thereupon became incapable of giving testi- mony, being a juror, or sustaining any office of trust, and it was further required that he should be set in a pillory for a space not exceeding three hours.
Fraudulent conveyances were declared to be void, and the party offending became lia- ble to a fine not exceeding $300 and to pay double damages to the party injured.
Justice courts were established "for the trial of small cases." The justices were re- quired to keep a book to be styled a docket, "in which he shall make fair entries of the names of the parties to every suit instituted before him, distinguishing between the plain- tiff and the defendant," and if any justice should institute or sustain two or more ac- tions between the same parties for demands which by the rules of law might be consoli- dated in one action, such justices became liable to a penalty of $18, to be recovered for the use and benefit of the person who should first sue him.
The laws so enacted by the Governor and the judges relating to slaves were in some of their features very harsh and capable of much injustice. No negro or mulatto was allowed to be a witness, excepting in pleas of the United States against them, or in civil actions in which they alone were parties. If a slave went from the tenement of his mas- ter without pass or some letter or other token from his master or overseer, it became lawful for any person to apprehend him and carry him before a justice of the peace to be pun- ished with stripes, or not, in his discretion.
If he came upon the plantation of any per- son without leave in writing from his owner or overseer, it became lawful for the owner or overseer of such plantation to give or order such slave ten lashes, on his or her bare back, for every such offense.
If any slave or mulatto should keep or carry any gun, powder, shot or club, or other weapon whatsoever, offensive or defensive, and if found in possession of a weapon or ammunition, any person might seize him, take him before a justice of the peace, and have him punished with any number of lashes
not exceeding thirty-nine, on his or her bare back, "well laid," and the weapon or ammuni- tion became the property of the person who seized him.
Every person whose grandfather or grand- mother was a negro, although his other pro- genitors might be white persons, was deemed to be a mulatto.
If any master or overseer should permit any slave not belonging to him to remain upon his plantation above four hours, with- out leave of the owner, he became liable to a fine of $3 for each offense, and if any owner or overseer of a plantation permitted five negroes or slaves, other than his or her own, to remain on his plantation, he should for- feit and pay $I for each negro or slave above that number, which forfeiture was made pay- able to the informer.
The law permitted negroes, or slaves, of the same owner, "though seated at different quarters," to meet with their owner or over- seer's leave, on any plantation belonging to the owner, provided such meeting was not held in the nighttime or on Sunday. They were permitted, however, to go to church on the "Lord's days," or any other day of pub- lic worship.
If any white person entertained or housed any slave without the consent of the owner, the party so guilty became liable to a fine of $3 for each offense, payable to the in- former, and in case of failure to pay it was required that he should receive on his or her bare back twenty lashes, well laid on.
No person was permitted to "buy, sell or receive of, to or from any slave any com- modity whatsoever," without leave of the owner or overseer.
If any negro or mulatto, bond or free, should at any time lift his or her hand in opposition to any person not being a negro or mulatto, he or she so offending should receive such punishment as the justice should think proper, not exceeding thirty lashes on his or her bare back, well laid on, except in those cases where it should appear to the jus- tice that the negro or mulatto was wantonly insulted and lifted his or her hand in his or her defense.
If any negro or other slave should prepare, exhibit or administer any medicine whatso- ever, he or she so offending should be guilty of felony and should suffer death, without benefit of clergy.
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COURTS AND LAWS OF MISSOURI, FIRST ESTABLISHED.
If, however, any of the foregoing acts were without ill intent, it was not a criminal act.
If any owner of a slave should license the latter to go at large and trade as a free man, the owner became liable to a fine of $30, and if after the first conviction the offense should be repeated the master became liable in the same amount for each offense, no mat- ter how often repeated, and it became lawful for any person to arrest a slave authorized to go at large or hiring himself or herself out, to put him in jail and have him sold.
If any person stole a negro or mulatto the law declared him a felon and it was required that he should be punishable by death, with- out benefit of clergy.
If any person sold any free person for a slave, knowing the person to be free, his offense was punishable with death, without the benefit of clergy.
If a liberated slave could not pay all the taxes and levies imposed by law upon him, and he had no other property, it was lawful for the sheriff to hire out him or her for a time sufficient to raise the taxes.
A brief chapter is prepared on the subject of marriage. It provided that all male per- sons of the age of seventeen years, and female persons of the age of fourteen years, and not prohibited by the laws of God, might be joined in marriage ; but previous to the cere- mony notice of the intention to marry was required to be given by publishing the same for the space of fifteen days at the least, for three several Sundays, holydays, or other days of public worship, in the meeting in the towns where the parties respectively be- longed, or by publication in writing, under the hand and seal of one of the judges of the general court or county court of com- mon pleas, or of the justice of the peace in the district, to be affixed in some public place in the town wherein the parties respec- tively dwell, or a license should be obtained from the Governor, under his hand and seal, authorizing the marriage without publica- tion.
Among the first laws enacted afterwards by the judges and Governor of the Territory of Louisiana was one prohibiting the sale or giving of any liquors to the Indians.
We find also among the early laws a num- ber of enactments with respect to ferries and the licensing of ferrymen. They were re- quired to keep a good boat, "give ready and
due attendance on the passengers on all occasions," and give "like attendance" when wagons, carts and other things were to be transported, under penalty of a fine.
And "for the prevention of disorders and mischiefs which may happen by a multiplicity of public houses of entertainment," no per- son was allowed to maintain one without a license from the court of quarter sessions, under a penalty of $10 a day for every day such person violated the law.
In 1807 certain laws were enacted by the Governor and judges of .the Territory of Louisiana, and among them was a law creat- ing the District of Arkansas. We find it en- titled "A Law Respecting the District of Arkansaw."
The preamble is as follows: "Whereas, it has been found necessary for the more con- venient distribution of justice, the preven- tion of crimes and injuries, and the execution of process, criminal and civil, to lay out the southwestern part of the District of New Madrid, into a new district; which has been named the District of Arkansaw," etc., the latter orthography here appearing for the first time.
Courts were established in this district June 27, 1806.
Revenue laws were also enacted by the same authority.
A somewhat elaborate law was enacted July 3, 1807, with relation to the court of common pleas and courts of quarter ses- sions. The law authorized the appointment of not less than three, nor more than five, respectable inhabitants as judges thereof. They were entitled to receive as compensa- tion $3 per day during the time they respec- tively attended such court, or the court of oyer and terminer in the respective districts. The court of oyer and terminer and "gen- eral jail delivery" was erected for the pur- pose of trying all capital offenses committed in the district for which it sat, and it was authorized to consist of one of the judges of the general court and of the judge of the court of common pleas for the district. May 13, 1807, a law was enacted relating to divorce and alimony. The law authorizing the issue of writs of habeas corpus first took effect June 27, 1807.
November 4, 1808, the Legislature of the Territory of Louisiana enacted an "Act for the Punishment of Certain Crimes," provid-
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COURTS HAVING CRIMINAL JURISDICTION.
ing in cases of rape, that the accused, upon conviction, "shall be sentenced to castration, to be performed by the most skillful physi- cian, at the expense of the Territory, in case the party convicted shall not have sufficient property to pay the same and costs."
The same lawmaking authorities estab- lished courts of judicature, to be styled "the general quarter sessions of the peace," hold- en four times in every year in every district. In addition to their judicial powers they had authority to build and repair district jails, courthouses, pillories, stocks and whipping posts.
The settled portions of Missouri were first divided into four districts, namely: Cape Girardeau, Ste. Genevieve, St. Louis and St. Charles, with courts of common pleas. The St. Louis District embraced all the territory between the Missouri and Meramec Rivers, and thus included the territory of Jackson County. On June 4, 1812, the name of the Territory of Louisiana was changed to Mis- souri Territory, with a resident Governor at St. Louis. A General Assembly, consisting of the Governor, a Legislative Council, and a House of Representatives was at this time created. The laws enacted by Spain were still in force, excepting so far as they were modified or abrogated by the various Terri- torial enactments, but the General Assembly, January 16, 1816, formally adopted the com- mon law of England, and provided that the statutes enacted prior to the Virginia set- tlement of 1607 should prevail throughout the Territory. Thus English law supplanted civil law from the Mississippi to the crest of the Rocky Mountains, and from what is now Louisiana to Canada. On August 10, 1821, Missouri became a State.
O. H. DEAN.
Courts Having Criminal Jurisdic- tion .- By a treaty made April 30, 1803, at Paris, France ceded to the United States the territory known as Louisiana, and by an act of Congress approved October 31, 1803, the President of the United States was authorized to take possession of and occupy the said ceded territory, "and that he may for that purpose, and in order to maintain in said ter- ritory the authority of the United States, em- ploy any part of the Army and Navy of the United States, and of the force authorized by an act passed the third day of March last (1803), entitled 'An Act directing a detach-
ment from the militia of the United States, and for erecting certain arsenals,' which he may deem necessary." And it was further provided that until the expiration of the then convened session of Congress, unless pro- vision for the temporary government of the said territory be sooner made, all the military, civil and judicial powers exercised by the officers of the existing government of the same, should be vested in such person and persons, and be exercised in such manner as the President of the United States should di- rect for maintaining and protecting the inhab- itants of Louisiana in the free enjoyment of their liberty, property and religion.
It will be seen by this that the judicial pow- ers exercised in the Louisiana territory, prior to the ceding treaty, were to continue in force until changed or abrogated by future act of Congress. These judicial powers had been framed after the forms of the govern- ments of the respective owners of the terri- tory. There were both Spanish and French, with projections here and there of English precedents. These originated in the necessi- ties of changing conditions occurring in the early Western settlements, by reason of the almost continuous conflicts growing out of the wars of European nations. It would be . an interesting theme for the historian to in- vestigate and unravel the various changes and modifications of the administration of justice in this region, and trace not only con- ditions, but the reasons therefor. The task would be difficult, but the field is worthy of the expenditure of ambitious labor.
Whatever the character of their laws and the manner of their administration was at the time of the treaty, it is but reasonable to suppose that their general features were soon altered to meet the spirit of the laws of our government. Then existing procedure neces- sarily had to give way to that which was in consonance and harmony with the bill of rights. For it must not be forgotten that one of the principal and moving causes of Colonial opposition to the mother country, had its origin in and grew out of the harsh provisions and the arbitrary administration of the penal laws of England.
Hence the incorporation in every Consti- tution of every State, as well as of the Fed- eral government, of the bill of rights.
Military rule continued, until, by an act of Congress approved March 26, 1804, the ter-
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COURTS HAVING CRIMINAL JURISDICTION.
ritory was divided and that portion "which lies south of the Mississippi Territory and of an east and west line to commence on the Mississippi River at the thirty-third degree of north latitude, and to extend west to the western boundary of the said cession," was constituted a Territory of the United States, under the name of the Territory of Orleans ; the residue of the province of Louisiana ceded by France to the United States was' called "the District of Louisiana," and its government provided for as follows: "The' executive power now vested in the Governor of the Indiana Territory was extended to the said District of Louisiana, and the Governor and the judges of the Indiana Territory were given power to establish in said district in- ferior courts and prescribe their jurisdiction and duties, and to make all laws which they deemed conducive to the good government of the inhabitants, provided that they should not enact any law inconsistent with the Constitu- tion and laws of the United States, or which would lay any person under restraint or dis- ability on account of his religious opinions, profession or worship; and provided further "that in all criminal prosecutions. the trial shall be by a jury of twelve good and lawful men of the vicinage."
From this it may be seen that the first criminal laws applicable to St. Louis, after her coming under the control of the United States government, were enacted by a legis- lative body composed of a Governor, and the Federal judges of an adjoining territory. To the statesman of to-day this manner of terri- torial organization and government doubt- less seems novel and crude, but it worked well during that period of sparse settlements and widely extended domain. But not only could the judges, who were a branch of the legis- lative power, help to enact laws-they could construe and enforce them; for it was made the duty of the judges of the Indiana Terri- tory, or any two of them, to hold annually two courts within the said district at such place as was most convenient to the inhabi- tants thereof in general, and they possessed the same jurisdiction they possessed in the Indiana Territory, and were required to con- tinue in session until the disposal of all busi- ness pending before them. Laws enacted in the manner as stated were published throughout the district, and such laws were reported to the President of the United
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