USA > Mississippi > Mississippi : comprising sketches of towns, events, institutions, and persons, arranged in cyclopedic form Vol. I > Part 106
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cature and a court of probate, providing for sheriffs, coroners, recorders and treasurers, regulating marriages, regulating taverns and retailers of liquors. Twenty more laws were adopted in 1799, nine more in 1800, after which there were no new enactments until the session of the legislature begun in December, 1801. After that the functions of the judiciary and legislature were separated, and the judges appointed by the president held court at such times and places, and under such regulations, as the general assembly pro- vided. The laws provided for justices of the peace in each county, also justices of the Court of General Quarter Sessions, to meet on the first Mondays of May, August, November and February; also a court of common pleas to convene on the succeeding Wed- nesdays of the same months, and a court of probate, to be held by the judge thereof, beginning on the first Saturdays following the opening of the court of Quarter Sessions. The court of com- mon pleas was "to hold pleas of assize, scire facias, replevins, and hear and determine all manner of pleas, actions, suits and causes of a civil nature, real, personal and mixed;" the court of quarter ses- sions had the functions of a grand jury. The justices of the com- mon pleas court of Adams county were eight in number, of the court of quarter sessions, six these in addition to eleven justices of the peace, a probate judge and a full list of county officers.
It seemed to be the intention of the governor to interest the population as far as possible in the administration of the laws. . At the head of this judicial system was the supreme court, com- posed of the judges appointed by the president, which was made an appellate tribunal with original jurisdiction over the graver crimes, and the summoning of a grand jury. This court sat in each of the two original counties and, in 1800, a session on the Tombigbee was required.
Governor Sargent proposed to reserve to himself the admission of attorneys to practice, against which Judge Tilton protested, threatening to resign and leave the territory, and actually did de- part, but returned. Gov. Claiborne asserted the same right, as ap- pears from a letter in his Journal, addressed to Judge Lewis, in- troducing Stephen Bullock, an applicant for license to practice law, in order that the judge might examine him and certify his opinion. So also with succeeding governors. In Gov. Williams' Journal ap- pears the following list of attorneys admitted to practice in the last six months of 1805: James S. Rawlings, William Murray, Peter Walker, Francis Vicker, Charles Baldwin, Lemuel Henry, Isaac Baldwin, John I. Bell. Judge McGuire, called the chief jus- tice, arrived in the summer of 1799, and returned to Virginia in the fall, complaining that he could not live on the salary. At this juncture the governor appointed Lyman Harding attorney for the United States and territory.
Sept. 20, 1799, Robert Starke was commissioned by the gov- ernor as clerk of the supreme court of the territory.
Judge Tilton returned, and departed again in the spring of 1800, to visit the seat of Washington county, on the Tombigbee, by
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way of New Orleans. In place of McGuire, President Adams ap- pointed Seth Lewis, of Tennessee, grandson of one of the Con- necticut settlers in Natchez district in 1774. He was commissioned May 13, and was on duty in the fall of 1800, the matter of Philip Nolan being referred to him and Bruin Oct. 4.
Regarding the system of courts, Gov. Claiborne wrote Dec. 20, 1801, "The legislature is engaged upon a new judiciary system. The manner in which the superior and inferior courts have hereto- fore been arranged is generally condemned. There is certainly room for improvement." "An act to provide for the more con- venient organization of the courts" was passed Jan. 26, 1802. The change in the inferior courts is shown by the following appoint- ments made by the governor :
Adams county : Justices of the peace and justices of the county court : William Dunbar (declined), William Vousdan, Samuel Brooks, Bernard Lintot (declined), Abram Ellis, James Farrell, Adam Truly, Caleb King, George Fitzgerald. David Ker, sheriff ; Peter Walker, clerk of the county court; John Henderson, treas- urer ; Robert Stark, clerk of Adams district court; Abner L. Dun- can, attorney-general for Adams district; Archibald Lewis, clerk and master in equity for Adams district. Jefferson county: Cato West, Thomas Calvit, Jacob Stampley, Henry Green, Zechariah Kirkland and John Hopkins, justices. John Girault, clerk of coun- ty court; Daniel James, clerk of Jefferson district court; Felix Hughes, clerk and master in equity. Claiborne county: William Downs, G. W. Humphreys, James Stansfield, Ebenezer Smith, Daniel Burnett, James Harman, justices. Samuel Coburn, sheriff ; Matthew Tierney clerk, Samuel Gibson, coroner. Wilkinson coun- ty : John Ellis, Hugh Davis, John Collins, Richard Butler, William Ogden, Thomas Dawson, justices. Henry Hunter, sheriff ; Samuel Lightner, clerk.
A superior court was held in each of the three districts, Adams, Jefferson and Washington, by the Territorial judges, to which each inferior court was to nominate thirty-six jurors.
In December, 1802, there was presented to congress the petition of William Murray and others, practitioners of law, in opposition to a petition said to be in circulation praying for the abolishment of the Territorial judges.
In 1807 the inferior court system was established that was main- tained during the remainder of the Territorial period. The gover- nor appointed five persons in each county as justices of the peace and of the quorum for that county. One of them was commis- sioned chief justice of the orphans' court. These justices, or any three of them, held county court and orphans' court at stated terms.
In the same year was established the system of circuit courts, sitting in each county, and district superior court, by the Terri- torial judges, as well as the Territorial supreme court. By act of Dec. 22, 1809, the supreme court and the district superior courts were abolished, and the Territorial judges were required to hold
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a superior court of law and equity in each county. This system continued until after the act of January 20, 1814, adopted upon the repeated recommendations of Governor Williams. By this act "The supreme court of errors and appeals" was created, meeting twice a year in the courthouse of Adams county. Two of the Territorial judges could hold this court. The judges of Washing- ton district (the Mobile region) and Madison county (Tennessee river) were not required to attend. The particular recommenda- tion of the governor was that this should be a "judicial tribunal to which all cases of difficulty arising in the superior courts of the counties might be adjourned at the discretion of the presiding judge." It was so provided in the act, giving the court that pe- culiar function in addition to those of a court of appeals.
Governors Claiborne and Williams united in an appeal to the secretary of state in October, 1807, that there should be provision for "appeal from decisions in the territories of Orleans and Mis- sissippi. By the present system, the supreme court of each ter- ritory is a court of original and dernier resort. Before these tri- bunals causes of very great concern to individuals are often brought; causes extremely complex, involving many intricate points of law, and in deciding of which the ablest judges may err." They suggested a court of appeals for the two territories.
The superior court of the county of Adams was the most im- portant in the Territory, and in 1811 it was so crowded with crim- inal prosecutions that only a few appeals could be heard, and all the civil causes at issue, which were very numerous, were neces- sarily continued. (Message of Daingerfield.)
When Gov. Claiborne came to the territory, in the latter part of 1801, he made a report regarding the supreme court similar to that of his predecessor. "The chief justice, Mr. Lewis, is cer- tainly a man of talent, and was respectable as a lawyer," but Judges Tilton and Bruin were aimable gentlemen, not qualified for the position. Tilton, he said, had read law a year or so, but had never practiced. "Unfortunately there is a great difference between the judges of the supreme court and the people. One half the citizens, and perhaps a greater number, have no confidence in the judiciary, the members of the two houses of Assembly are among the most prejudiced, and I fear upon this subject they will be inclined to legislate rather against men than upon principle. This is really an unpleasant state of things and will not fail to be a source of much trouble to me." He went on to specify the cause of complaint against the court, that it had ruled against the admission of testi- mony to prove that Spanish grants, made just before the evacua- tion, had been dated back to appear of date previous to the treaty, about three years earlier. The governor sustained the court suf- ficiently to persuade the legislature to abandon for the time a pro- posed act to authorize the admission of such testimony. "A stat- ute for the admission of parole testimony to disprove a record would be a great innovation upon the law of evidence, and might lead to injurious consequences, and yet I can see no other way in
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which the frauds complained of can be guarded against; unless, indeed, a court of chancery would reach the case, and it seems to be the opinion of most of the lawyers here it would not." (Clai- borne to Madison, Dec. 20, 1801). It is evident that the governor was with the court in its legal opinions in this case, notwithstand- ing his estimate of its ability, while the legislature was instinctively right.
The governor reported, in February, 1802; "A violent dispute has arisen between the two houses of assembly and Mr. Lewis, the chief justice of this territory, who has many friends. Upon the petition of some citizens, the assembly authorized the taking of depositions as to the official conduct of the judge, with a view, I suppose, of exhibiting to Congress charges against the judge." Among the old documents of the Department of Archives and History is a resolution, of both houses, providing that John Ellis, William Vousdan and George Fitzgerald, attend at the govern- ment house, "to take the depositions of sundry persons respecting the different complaints of Col. Thomas Green, Nathaniel Tomlin- son and others against Governor Sargent and certain judges, by them complained of by petition respecting undue administration."
In January or February, 1802, Judge Tilton left Natchez, and from that city sailed in June, supposedly for the eastern States, but it. was afterward reported that he went direct to Liverpool on some commercial business. Gov. Claiborne recommended David Ker, a pioneer of education, as Tilton's successor, and his commis- sion arrived in December.
At the beginning of 1803 the Territorial judges were Peter B. Bruin, Seth Lewis and David Ker. Lewis was succeeded by Thomas Rodney, of Delaware, who was at the same time (1803) appointed one of the land title commissioners. Upon the death of Judge Ker in 1805, George Matthews, Jr., of Georgia, was ap- pointed, July 1, and after he was transferred to the Territory of Orleans, Walter Leake, of Virginia, was appointed, and commis- sioned March 2, 1807. One of the last appointments of President Jefferson, confirmed in March, 1809, was of Francis Xavier Martin, of North Carolina, to succeed Judge Bruin, resigned. Martin soon resigned, and Oliver Fitts, of North Carolina, was appointed in his place April 18, 1810. A letter of Gov. Holmes, January 30, 1811, refers to the recent "melancholy event of Judge Rodney's death. . . Judge Fitts set off for North Carolina early in December, and Judge Leake resides about sixty miles from this place (Washington)."
David Campbell of Tennessee was appointed to succeed Rodney, March 3, 1811. Josiah Simpson was commissioned February 18, 1812, to succeed Judge Fitts, and was again commissioned Feb- ruary 9, 1816. George Poindexter was appointed March 3, 1813, to succeed Campbell. The judges continued in office, after the adoption of the constitution, in 1817, until the legislature could establish a new system, but the power of appointment passed to the governor, who named John Taylor as the successor of Judge
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Leake, elected United States senator in October, 1817, and Lyman Harding to succeed Christopher Rankin, as Territorial attorney- general west of Pearl.
An act of congress, March 27, 1804, provided for an additional judge for the Mississippi territory, to reside at or near the Tombig- bee settlement, and exercise the jurisdiction of the superior court under the Mississippi act for the more convenient organization of the courts. Ephraim Kirby, of Connecticut, land commissioner in that region, was appointed April 6, but he died in the following Oc- tober. To succeed him, the president appointed Harry Toulmin, who thereafter was a man of great prominence in that isolated set- tlement, known as Washington county. He was succeeded as judge by Stevenson Archer, of Maryland, commissioned March 6, 1817, who served until the admission of Alabama as a State in 1819.
Acting-Governor West said in 1804: "The appointment of an additional judge, to reside in Washington county, is not only bene- ficial to the people of that county, but a great relief to this part of the Territory by enabling the judges residing here to perform more services in these districts; and will, it is believed, with other weigh- ty reasons, justify a change in our judiciary; an object desirable and necessary in the opinion of many of the best informed amongst us."
Another additional judge for Madison county, on the great bend of the Tennessee river, the northern nucleus of Alabama, was authorized in 1810, and Obadiah Jones (q. v.) was appointed. Jones was a citizen of Georgia, and was appointed to the bench of Mississippi territory in 1805. Apparently he did not accept, as he was appointed to a similar office in Illinois territory in 1809. He served there, it appears, before coming to Madison county in 1810. Thus, in 1810-11 there were five Territorial judges-Rod- ney, Toulmin, Leake, Fitz, and Jones; and so it continued, with changes in the personnel, until the end of the Territorial period. In 1816-17 the list, arranged by seniority, was, Toulmin, Leake, Jones, Simpson, Poindexter.
In January, 1814, the general assembly instructed the delegate of the Territory to use his best exertions for a law to authorize the appointment of an additional judge for Washington district, with jurisdiction also over "the counties of Mobile, Hancock and Jackson, composing that portion of Louisiana which has been an- nexed to this territory, and also to the county of Marion, a part of which only is within the present limits of Washington district; and that the said judges be authorized to hold a court of errors and appeals at Saint Stephens, within said district, there- by obviating the inconveniences of parties being compelled to travel three hundred miles to prosecute errors and appeals."
George Poindexter began the duties of attorney-general by ap- pointment of Governor Claiborne, in December, 1803. An act of 1807 required two attorneys-general, east and west of Pearl river. Poindexter resigned early in 1807 to go to congress, and was suc-
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ceeded, west of Pearl, by Seth Lewis, ex-judge. Upon the resig- nation of the latter, William B. Shields was appointed in Septem- ber, 1808. The first attorney-general for the eastern district was Nicholas Perkins, (moved to Madison, 1809), after whom came Lemuel Henry (1809) and Col. Joseph Carson. In 1809 an at- torney-general for Madison county (Ala), was authorized, and Louis Winston was appointed. He served till 1817, then resigned, becoming a citizen of Mississippi. An act of 1812 provided for an attorney-general for all the counties east of Pearl river, except Hancock, (as then bounded), which was assigned to the attorney- general west of Pearl. An act of 1816 created the office of attor- ney-general for the counties of Lawrence, Pike, Marion, Hancock and Jackson.
The Territorial judges, though appointed by the president, held court as provided by the general assembly.
An act of congress of March 3, 1805, provided that these judges, sitting as the superior court of the Mississippi territory should in all cases in which the United States is concerned, have the same jurisdiction as defined for the Federal district court of Kentucky in 1789, with the right of appeal to the supreme court of the United States.
In 1813 a law passed authorizing the appointment of an attorney of the United States and a United States marshal, in each territory. Thomas D. Anderson was commissioned as attorney July 29, 1813, and William Crawford (for the Mobile region) December 10, 1814. The first marshal was John Haines, who served from 1813 to 1818.
Judiciary, 1817-34. Under the constitution of 1817, the legisla- ture provided for justices of the peace, county courts, district (circuit) courts and a supreme court (q. v.). The system was not thoroughly worked out until the preparation of Poindexter's code in 1822. All the judicial officers, down to, and including, justices of the peace, were elected by the legislature.
There was an attorney-general for the State, and a district at- torney for each district, though at first only two were elected, Robert McGill for the third district, and John Elliott (clerk of the Jackson county land office) for the fourth. The attorney- general was expected to look after the district court business in one or two districts, at the outset. The attorneys-general were chosen from the ablest lawyers of the State. The vote for attorney- general in January, 1818, was, Lyman Harding 17, John Burton 14, Thomas B. Reed, 1. Harding died in 1820. Edward Turner served by appointment until the legislature elected Thomas B. Reed, 1821, the vote being, Reed 20, Turner 13. In January, 1825, Richard Stockton, Jr., was elected, reveiving 23 votes to 21 for George Adams. On Stockton's death in 1827, George Adams was appointed and elected in 1828. He resigned in 1829, the gover- nor appointed R. H. Buckner, and the legislature voted in 1830, Richard M. Gaines 27, Buckner 15. Gaines served until after the change in constitution.
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At the outset, in 1818, there was one local court, the "county court," and the legislature elected for each county a chief justice and two justices of the quorum. These were at first: Warren- John Trumbull, Isaac Rapalja, Francis Griffin. Claiborne-Daniel Vertner, Joseph Moore, William Wills. Jefferson-James G. Wood, Isaac Dunbar, Benjamin M. Bullin. Adams-Elijah Smith, William D. Baker, Alexander Covington. Franklin-Bailey E. Chaney, Daniel Cameron, Bartlett Ford. Wilkinson-James Cara- way, Charles Stewart, Moses Liddell. Amite-Thomas Torrence, Jesse Talbot, Hugh Bennett. Pike-James Y. McNabb, Richard- son Bowman, Peter Quinn. Lawrence-George W. King, John Regan, Eli Garner. Marion-Charles M. Norton, Reese Perkins, William Lott. Hancock-John B. Lordasse, John R. Herrin, John Burnet, Jr. Jackson-John Williams, Samuel Davis, John Davies. Greene-Asa Hartfield, Jacob Carter, William Morgan. Wayne- James Patton, Josiah Watts, Clinch Gray. The functions of this county court were, "a court of probate. for orphan's bus- iness, for county police, and for the trial of slaves." George W. Humphreys and Cowles Mead were among the justices elected to fill vacancies in 1820.
Gov. Poindexter persuaded the legislature in November, 1821, before the completion of his code, to create the state chancery court (q. v.) and county "Orphans' Court." For the latter court the legislature elected a probate judge" and a "register of the orphans' court," for each county, separate from the county court. The same act provided an ample code of over forty pages, for the settlement of estates and regulation of guardianships, probably prepared by Gov. Poindexter. The first judges of probate, elected at the same session, were: Henry Manadier for Warren, P. A. VanDorn for Claiborne, George Winchester for Jefferson, Henry Postlewaite for Adams, Thomas H. Prosser for Wilkinson, Charles Davis for Amite, Elijah W. Brown for Franklin, Charles Lynch for Law- rence, Coleman Nichols for Covington, Roger A. Haern for Han- cock, Thomas Hubbard for Jackson, Griffin H. Holloman for Per- ry, William Howze for Wayne, Robert McCarthy for Greene, Rich- ardson Bowman for Pike, James Phillips for Marion, Littleberry Hawkins for Monroe, E. Brashears for Hinds. They were required to hold court every month, at first, and after 1824, quarterly.
At the same time (1821) a new act was passed regulating the county courts, which were henceforth held by the probate judge and two of the justices, doing away with the chief justices of 1818. They were also provided with a clerk of the county court. The clerks of the county court were continued. Sessions were to be quarterly. This court had jurisdiction in suits involving $20 to $50, and charges of felony against slaves. Under this code the justices of the peace were to be appointed by the governor, one or two for each "captain's district."
A criminal court was established at Natchez in 1823, and Ed- ward Turner was appointed judge. He was succeeded by George Winchester, 1825; Robert H. Adams, 1827, declined; Duncan S.
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Walker, 1827; John M. Maury, 1828 to his resignation, January, 1833.
On the subject of grand juries, Gov. Leake said in his message of 1825, that the promiscuous drawing of names resulted in the choice of many who were totally incapable of performing the duty. "Indeed, it has frequently happened that not a member of the grand jury could be selected by the court capable of acting as fore- man. The great incapacity of grand juries has introduced the practice of the attorney-general and district attorneys giving their attendance in the rooms of the grand juries, for the purpose of instructing them in the discharge of their various duties. Though this practice may not as yet have been productive of any serious evil, yet it is one which ought not to prevail." His further remarks indicated that the district attorneys, generally young lawyers, had misled the juries through ignorance.
Judiciary, 1833-70. Under the constitution of 1832, all judicial officers were elected by the people. This was regarded as a great step toward democratic government. For the election of the judges of the High court of errors and appeals, the State was di- vided into three districts. There was also a grouping of the coun- ties into convenient circuits, and a circuit judge elected by the voters of each circuit. This court was to sit twice a year in each county, and have original jurisdiction in all criminal cases, and in all civil cases where the sum in dispute exceeded $50. A separate superior court of chancery (q. v.) was required, with full juris- diction in matters of equity ; but it was provided that causes involv- ing no great value, also divorces and foreclosures of mortgages, might be entrusted to the circuit courts, and in 1856 the consti- tution was amended so that all such business was given to the circuit courts and the separate chancery court was abolished.
There was to be a court of probate in each county, having charge also of cases of lunacy.
The probate court sat monthly in nearly every county, the judges receiving a meagre compensation from fees and a small per diem allowance. The practice in these courts was very various and con- flicting in different counties, until it was settled by the opinions of the High court and the Treatise on the Law and Practice of the Probate Courts, by Ralph North, 1845, and the probate Digest, published by John M. Chilton, 1846. In 1847, W. C. Smedes wrote that "the practice in the probate courts is assuming a more con- sistent and systematic shape."
The system included justices of the peace in each county, and county boards of police of five members, to care for roads, high- ways, ferries, bridges, etc.
All these officers were to be elected by the people of the State or circuit, county or district they were to serve,-a revolutionary step in the choice of the judiciary,-that served as an example to all other States in the Union.
In 1836 the legislature established a criminal court for the coun- ties of Warren, Claiborne, Jefferson, Adams and Wilkinson, to
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have concurrent jurisdiction in criminal matters with the circuit courts. John I. Guion was the first judge, for about one year, and afterward J. S. B. Thacher held the office until the court was abolished in 1840.
For the circuit courts the State was first divided into four cir- cuits, in which James F. Trotter, A. M. Kegan, Thomas A. Willis and Alexander Montgomery were chosen judges. The number was soon enlarged to six, and it kept pace with the rapid develop- ment of the State. A full list of circuit judges, 1833-1904 is given in the Mississippi Register, 1904, p. 143.
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