USA > Missouri > Encyclopedia of the history of Missouri, a compendium of history and biography for ready reference, Vol. II > Part 29
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States, and he was required to lay them be- fore Congress; and if said laws were disap- proved by Congress, they ceased to exist.
In this first enactment affecting the Terri- tory there was a provision that the laws in force in the District of Louisiana not incon- sistent with the act of March 26, 1804, were continued in force until altered, modified or repealed by the legislative power heretofore specified.
In the year 1805 the District of Louisiana was changed to the Territory of Louisiana, and by an act of Congress, approved the 3d of March of that year, the government was organized and administered as follows: The executive power was vested in a Governor of prescribed qualifications, who held his office for a term of three years, unless sooner re- moved by the President. The legislative power was vested in like manner, as pre- scribed by the former act, in the Governor and three judges, or a majority of them, who had power to establish inferior courts in the Territory, and to make all laws which they deemed conducive to good government, and the limitations placed upon the exercise of the power conferred upon them were the same as those already mentioned as limita- tions upon the Governor and judges of Indi- ana. Section 5 of said act read as follows :
"That for the more convenient distribution of justice, the prevention of crimes and in- juries, and execution of process, criminal and civil, the Governor shall proceed from time to time, as circumstances may require, to lay out those parts of the Territory in which the Indian title shall have been extinguished into districts, subject to such alteration as may 'be found necessary; and he shall appoint thereto such magistrates and other officers as he may deem necessary, whose powers and authorities shall be regulated and defined by law."
Under the power given by the act of March 26, 1804, the Governor and judges of Indiana made and published laws, October 1, 1804. They established a court called the General Quarter Sessions of the Peace, held four times a year in each of the Districts of St. Charles, St. Louis, Ste. Genevieve, Cape Gir- ardeau and New Madrid. These general ses- sions were held by any three justices of the peace appointed by the Governor of Indiana, and they could hold special sessions if neces- sary.
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Any justice in or out of court could take all manner of recognizances and obligations, which any justice of the peace in any of the United States could usually do, and all such recognizances were required to be certified to the general sessions next to be held after the taking of such recognizance.
Twice each year-May and October-there was required to be held at St. Louis a Supreme Court of Record, called and styled the General Court, with power to issue writs of habeas corpus, certiorari and writs of error, and all remedial and other writs. This court heard and determined all causes and matters cognizable originally and all causes brought there from the general quarter sessions of the peace and courts of common pleas, "or from any other court to be holden for the respec- tive districts." The said court had jurisdic- tion in all criminal cases and exclusive jurisdiction in all those which were capital.
In all criminal prosecutions brought in any of the courts of the district, the trial was by a jury of twelve good and lawful men of the vicinage.
In all cases, civil, criminal and mixed, the parties had the right to be heard by counsel and to have compulsory process to bring their witnesses.
A court of common pleas was also estab- lished, but it had originally no criminal juris- diction. "A competent number of persons" were commissioned by the governor as jus- tices of the common pleas, who were required to hold and keep a court of record in every district and court sessions held four times in every year in each district, at the place where the general session of the peace was held, and beginning on the same day. The same justices, "or any three of them, according to the tenor and directions of their commissions, held pleas of assize, scire facias, replevins, and heard all causes, civil, personal, real and mixed, according to law."
The Governor was empowered and required to appoint and commission a sheriff in each district, whose duty it was to keep the peace, causing all offenders against the law, in his view, to enter into recognizances, with sure- ties, for keeping the peace and appearing at the next general quarter sessions, and to com- mit in case of refusal. Also, to quell and sup- press all affrays, riots and insurrections, and could call to his aid the power of the country. He was required to arrest and commit to jail
any felons and traitors, and to execute all warrants, writs and other process, which by law appertained to the duties of his office, and which he was legally directed to execute, and to attend upon all courts of record at their respective terms or sessions. An interesting description of the proceedings of the first general court held under the early Territorial laws in the town of St. Louis was published in the "Republican Register," issued at Rush- ville, Kentucky, under date of June 20, 1805, in a letter dated Vincennes, May 29, 1805. It reads :
"The first general court in and for the Dis- trict of Louisiana was opened in the town of St. Louis on Tuesday, the 6th of May, inst., at about II o'clock a. m. The judges, Van- derburgh and Griffen, being attended by the sheriff and his deputy, the bar, and a respect- able number of citizens, proceeded to the house of Monsieur Chouteau. After the grand jury (which was composed of twenty odd of the most respectable citizens) were sworn, his honor, Judge Vanderburgh, de- livered a charge of some length, in which he congratulated them upon the happiness and prosperity they would experience from the change of government. The grand jury con- tinued their session from Tuesday until Fri- day morning. They found an indictment against one Davis for murder, without malice, of his father-in-law, and one against one Hunter and Dennis for the willful murder of one Clark ; a presentment against the inferior court, and one against Jolin Mullanphy, Esq., as presiding justice of the inferior court of. the District of St. Louis. Hunter, upon tra- versing the indictment was acquitted ; Dennis was found guilty of manslaughter and pun- ished ; Davis was acquitted, and so was Mul- lanphy. The Indian prisoner, who was some time in confinement in the garrison at St. Louis, in endeavoring to make his escape a few days previous to the arrival of the Presi- dent's pardon, was shot by the sentinel, and from the wound he received was enabled to get about six miles, where he was found dead some time after. During the sitting of the court, the Sioux nation of the Indians brought down a prisoner for having killed two Canadians. There was no confession by which he was justified in the commission of the act. The court, after a session of fifteen days, during which a variety of business was done, adjourned till court in course."
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By an act approved July 3, 1807, the Legis- lature of the Territory of Louisiana repealed the law which the Governor and judges of Indiana had made as hereinbefore mentioned, providing that in each district then erected, or which might be erected thereafter, there should be commissioned by the Governor not less than three nor more than five persons as judges of the courts of common pleas and courts of quarter sessions of the peace, any two of whom had power to hold said courts. They were commissioned for four years, but could be removed by the Governor upon a conviction in the general court of a misde- meanor in office. They were required to hold three courts at the same places as they were then held, to wit: St. Charles, St. Louis, Ste. Genevieve, Cape Girardeau and New Madrid. The courts in St. Louis were held on the first Mondays in March, July and November.
The judges of the general court (the Su- preme Court of Record of the Territory), the judges of the court of common pleas, and the justices of the peace in their respective dis- tricts had full power to issue processes against, and to take all manner of recogni- zances of, persons charged for any offenses against the laws of the United States or the Territory of Louisiana, and to bind to the peace and good behavior, which recogni- zances were made to the United States and certified to the court of oyer and terminer or quarter sessions of the peace of the proper district, or if the offenses were against the laws of the United States and cognizable only in the general court, such recognizances were certified to the general court.
The courts of quarter sessions of the peace were held in each district during the three first days of every term or session, and they had power to issue their process for the ap- prehension of persons indicted before them for any criminal offense and subpoena and other process for summoning witnesses into any district of the Territory.
No indictment depending or cognizable in the courts of common pleas or quarter ses- sions of the respective districts could be re- moved by habeas corpus and certiorari to the general court before trial and final judgment.
Section 13 of the act was as follows: "There shall be established in every district of this Territory now erected or hereafter to be erected a court of oyer and terminer and general jail delivery for the trial of all capital
offenses committed in such district, which court shall consist of one of the judges of the general court, and of the judges of the courts of common pleas in the respective dis- tricts, and shall be held at the same place the courts of common pleas are held, as often as occasion may require, by one of the judges of the general court, and one or more of the judges of the court of common pleas. In all cases where a person now is or may be charged and committed in any district for any offense, which by the laws of this Territory may be punishable with death, it shall be the duty of the sheriff of such district forthwith to give notice thereof to the presiding judge of the general court, who may then be in the Territory, and the said presiding judge shall thereupon assign to himself or to any other judge of the general court to attend the court of oyer and terminer in such district, and it shall be the duty of the judge to whom the attending of such court is assigned, to issue his precept under his hand and seal to the sheriff of such district for the holding of such court of oyer and terminer. Provided that such precept shall be in the hands of the sheriff at least thirty days before the return thereof, and that the sheriff shall give public notice by proclamation at least twenty days before the sitting of the court. The expenses accrued, by notifying the presiding judge and forwarding the precept tothe sheriff, as afore- said, shall be paid out of the district treasury upon orders signed by the judge of general court who attends the court of oyer and ter- miner. The several courts of oyer and ter- miner shall have power to adjourn from time to time, and hold adjourned courts for the trial of any criminal when it shall appear to the court that a postponement is necessary to procure the attendance of witnesses. And if the judge of the general court who adjourned the court should be unable to attend, it shall and may be lawful for any other judge of the general court to attend."
Section 14 reads: "The several courts of quarter sessions shall have original jurisdic- tion of all criminal offenses committed in their respective districts, except such only as are punishable with death.
"And it shall be the duty of every grand jury impaneled at any court of quarter ses- sions to inquire into and present by present- ment or indictment any offense committed in such district which by the laws of this Terri-
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tory is punishable with death, where the of- fender has not been apprehended, and the judges of the court of quarter sessions shall, after such presentment or indict- ment is found by the grand jury, award process for the apprehension of the persons so indicted. And when such person has been apprehended and committed the same pro- ceedings shall be had for the trial of the criminal as are provided by the fifteenth section of this act; and the indictment or pre- sentment, with all recognizances, examina- tions, process and records thereto belonging, shall be returned to the next court of oyer and terminer and jail delivery held in such district in pursuance of this act."
Section 15. "The general court hereafter shall not have original jurisdiction in criminal cases nor shall a grand jury be returned to the general court, unless it shall be repre- sented by the attorney general of this Terri- tory to the general court while in session, or to the presiding judge in vacation, that offenses against the laws of the United States cognizable before the general court have been committed, in which case it shall be the duty of the court or of the presiding judge to issue a precept or precepts for the summoning and returning of a grand jury, returnable to the next term of the general court or to any day while the court is sitting."
Section 16. "The general court shall have power to proceed by information against any public officer of this Territory for oppression or misdemeanor in office. And indictments found by the grand jury of any district against a public officer for oppression or misde- meanor in office may be removed into the general court at the instance of the attorney general or of the defendant."
The Governor commissioned a competent person as clerk of the courts of common pleas, quarter sessions, and oyer and terminer, and if at the first and second days of any term of the general court or common pleas or quarter sessions a sufficient number of judges did not appear, it was his duty to adjourn the court to the next regular term or session, and no cause or pleading was discontinued. In all action for slander, trespass, assault and battery, action on the case for trover or other wrongs, the defendant was simply summoned to appear unless the judge was shown by affi- davit or affirmation that the defendant should
be held in bail, in which case the judge made an order requiring bail.
In all actions of debt founded on any judg- ment, writing, obligatory bill or note in writ- ing for the payment of money or other prop- erty, in actions of covenant, and in actions on the case where the plaintiff made affidavit or affirmation of a real subsisting debt and of the sum in which he verily believed the defendant should give bail to secure such debt and the costs, the plaintiff could ask to have the de- fendant held in bail, and it was the duty of the sheriff to whom the writ of capias ad respondendum was directed to take the defend- ant into custody and commit him to jail or take a bond with sufficient sureties in the sum indorsed on the writ for his appearance and payment of any judgment rendered against him or render himself in execution.
A change of venue was provided for upon the same grounds now allowed. It was op- tional with the judge, after hearing the grounds and the evidence supporting it, to grant the change or not. If he granted it the case was sent to the court of common pleas of the next convenient district, as the judge directed.
Appeals, together with bills of exception, were provided for. All motions for a new trial or in arrest of judgment had to be filed within four days. But three witness fees could be taxed for witnesses as to any one fact in the case.
Interpreters were sworn and paid 25 cents for every witness or paper they interpreted or translated.
This law also provided that all criminal cases should be tried by a jury of twelve men of the vicinage.
Writs of error issued as of right, but did not operate as a supersedeas, unless by special order of the general court or a judge thereof in vacation after a recognizance was given in double the amount recovered in the court below.
Whenever the general court was divided in opinion on the hearing of any writ of error or appeal, the judgment or decree appealed from was affirmed.
By an act passed October 28, 1808, to take effect January 1, 1809, jurors were provided for. The collector of taxes for each district made out a list of all taxable property, real and personal. All free male white persons
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over twenty-one years of age residing in the district, whose estate within the district was rated on said list to be $100 or more, consti- tuted the jury list, from which the judges of the courts, respectively, at their session next preceding every term of the general court selected sixty honest and intelligent inhab- itants who were neither clergymen, doctors, attorneys, sheriffs or their deputies, ferry- keepers or constables, or persons of ill fame, or had any interest in any suit or controversy pending or about to be brought before the court.
Any person of ill fame who was selected could be challenged before he was sworn, but not after. The names selected by the judges were written on separate slips of paper of the same size and rolled up alike and placed to- gether in some receptacle, and the clerks, in the presence of the judges, drew by lot twen- ty-four names, of which six were from St. Louis, six from Ste. Genevieve, and from the districts of St. Charles, Cape Girardeau and New Madrid four each. The sheriff sum- moned those persons so selected and drawn at least ten days before the sitting of the gen- eral court. In a criminal case these names were written on separate slips, rolled up alike by the clerk, placed in a ballot-box provided for that purpose, and the clerk drew by chance twelve names from the box, and if any so drawn failed to appear for service or were challenged or set aside, such further names were drawn until twelve qualified jurors were obtained, and they were sworn to try the case.
A certificate of service as a juror in the general court exempted from like service for two years, and a certificate of service as a juror in the court of oyer and terminer, com- mon pleas or quarter sessions of the peace exempted from service at the next term of the court in which service was given. Pro- vision was made for impaneling bystanders on a jury if necessary. This law was repealed October 25, 1810, and the sheriff was em- powered to select the jurors-that is, summon whom he chose from the male residents of lawful age-thus doing away with the prop- erty qualification.
October 30, 1810, an act was passed pro- viding that the court of quarter sessions in and for the District of Arkansas should have jurisdiction over all criminal offenses com- mitted in said district, and so much of the for-
mer law as vested power in any judge of the general court to hold courts of oyer and ter- miner was repealed.
The Territory of Missouri came into exist- ence by act of Congress June 4, 1812. That act provided : Section I-That the Territory heretofore called Louisiana should thereafter be called Missouri; that the temporary gov- ernment of the Territory of Missouri should be organized and administered as provided for in the subsequent sections of the act. After all the requisite provisions for the es- tablishment of the executive and legislative powers of the Territorial government, and the methods of their carrying into effect the same, the act specified that :
The judicial power was vested (Sec. Io) in a superior court and in inferior courts and justices of the peace.
The judges of the superior court and jus- tices of the peace held their offices for four years, unless sooner removed.
The superior court consisted of three judges, residents of the Territory, and any two of whom constituted a court.
The superior court had jurisdiction in all criminal cases, and exclusive jurisdiction in all those that were capital cases, and origi- nal and appellate jurisdiction in all civil cases of the value of $100.
The said judges held their courts at such times and places as the General Assembly prescribed.
The sessions of the superior and the infe- rior courts continued until all business pend- ing was disposed of, or for such time as the General Assembly prescribed.
The said courts appointed their clerks who were commissioned by the Governor, and held their offices during the temporary gov- ernment of the Territory, unless sooner re- moved by the court.
All free male white persons of the age of twenty-one years, and who had resided one year in the Territory, and not disqualified by any legal proceeding, were qualified to serve as grand or petit jurors (Sec. II), and, until the General Assembly otherwise provided by law, were selected in such manner as the said courts respectively prescribed, so as to be most conducive to an impartial trial and least burdensome to the inhabitants of the Ter- ritory.
After providing in Sections 12 and 13 for the appointment by the President, by and
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with the consent of the Senate of the United States, of a Governor, and for his salary (paid out of the United States Treasury), and for electing a delegate to Congress, and provid- ing for his salary and naming his rights and privileges, it is further provided as follows: "Section 14. And be it further enacted that the people of the said Territory shall always be entitled to a proportionate representation in the General Assembly ; to judicial proceed- ings according to the common law and the laws and usages in force in said Territory ; to the benefit of the writ of habeas corpus. In all criminal cases the trial shall be by a jury of good and lawful men of the vicinage.
"All persons shall be bailable, unless for capital offenses, where the proof shall be evi- dent or the presumption great.
"All fines shall be moderate, and no cruel or unusual punishment shall be inflicted. No man shall be deprived of his life, liberty or property but by the judgment of his peers and the law of the land. If the public exi- gencies make it necessary for the common preservation to take the property of any per- son, or to demand his particular services, full compensation shall be made for the same. No ex post facto law, or law impairing the obligations of contracts, shall be made. No law shall be made which shall lay any person under restraint, burthen or disability on ac- count of his religious opinions, professions or mode of worship, in all which he shall be free to maintain his own, and not burthened for those of another. Religion, morality and knowledge being necessary to good govern- ment and the happiness of mankind, schools and the means of education shall be en- couraged and provided for from the public lands of the United States in the said Terri- tory, in such manner as Congress may deem expedient."
Limitations upon the powers of the Gen- eral Assembly are set out (Sec. 15), and the Mississippi and Missouri Rivers declared common highways and forever free to the people of the Territory and the United States without any tax, duty or impost.
Section 16 provides: "That the laws and regulations in force in the Territory of Lou- isiana at the commencement of this act, and not inconsistent with the provisions thereof, shall continue in force until altered, modified or repealed by the General Assembly. And
it is hereby declared that this act shall not be construed to vacate the commission of any officer in said Territory acting under the au- thority of the United States, but that every such commission shall be and continue in full force as if this act had not been made."
The repugnant provisions of "An act fur- ther providing for the government of the Territory of Louisiana," approved March 3, 1805, and "An act for erecting Louisiana into two territories and providing for the tempo- rary government thereof," approved March 25, 1804, were repealed.
This law, approved June 4, 1812, was to take effect the first Monday in December, 1812, except certain portions which required the Governor to perform certain duties pre- vious to that date, in which cases the law took effect from its passage.
On January 4, 1815, the General Assembly of Missouri (Territory) enacted another law establishing circuit courts and defining their duties.
. The circuit judges held court three times a year in each county, and had jurisdiction of all civil cases above the sum of $90, and all criminal cases except those punished with death, and all other cases now exercised by court of common pleas except those given to the county courts, and had appellate juris- diction from the county courts and justices of the peace.
Capital cases were still tried by the supe- rior court judges.
The judges of the circuit courts, each with- in his circuit, have power to bail in all crim- inal cases, except in capital cases where the proof is evident or the presumption great, that may occur within the same; and in all cases where they admit a prisoner to bail for an offense that is to be tried in the superior court they shall take his recognizance, with one or more good and sufficient securities, conditioned for his appearance on the first day of the next term of the superior court to be held for the circuit, and not to depart without leave.
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