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Full text of "Early bench and bar of Illinois"



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LIBRARY OF THE 

UNIVERSITY OF ILLINOIS 

AT URBANA-CHAMPAIGN 

IN MEMORY OF 

STEWART S. HOWE 

JOURNALISM CLASS OF 1928 

STEWART S. HOWE FOUNDATION 



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EARLY 



BENCH AND BAE 



OF 



ILLINOIS. 



BY 

JOHN DEAN CATON, 

Ex-Chief Jiutice of Illinois ; author of " The Antelope and Deer 

of America;" "A Summer in Norway;" 

" Miscellanies," etc. 



CHICAGO: 

FriNTED BY THE CHICAGO LEGAL NEWS COMPANY, 97 CLARK STREET 

1693 






PREFACE. 



Some years ago Avlien in social conversation with two 
gentlemen of the Bar, I was relating some professional inci- 
dents which had occurred many years before, when one of 
them suggested that it would be interesting to the profes- 
sion of the present day if I would note down events which 
had occurred in the early times and lay them before the 
public; I ])romised to do so, and the result was a. series of 
articles published in the Chicago Legal News. Upon their 
publication I received many letters from gentlemen of the 
Bar in various parts of the State, expressing the hope that 
the articles might be republished in book form. I finally 
revised these articles and prepared them for the press, with 
several new papers which have not been previousl}^ pub- 
lished, and placed them in the hands of the printer, thinking 
that many incidents and some j^eculiarities of former times 
might be thus perpetuated, which may in still later times be 
considered worth remembering. I do this the more readily 
as I am probably the only man now living who can speak 
from personal observations and recollections of events of 
fifty years and more ago. 

In the Appendix I have given an address delivered before 
the State Bar Association on the 24th of January last, and 
another given before the Chicago Bar Association Fel^ruary 
11, 1S93, in which will be found some statements germane 
to the subject, not previously given. 

1900 Calumet Ave., Cuicago, April 26, 1893. 



I 



INDEX. 



I. My First Client. page. 

Hoosier Peculiai"ities — Prosecuting a Thief — First Criminal 
Case in Cook County 1 

II. My Second Client. 

The First Civil Case tried in Cook Coiuity 12 

III. My First Marriage Ceremony. 

A French Couple 16 

IV. My Second Marriage Ceremony. 

Life in the Early Days 19 

V. Another Connubial event. 

Life in the Country — ^A Wedding Dinner 23 

VI. Another Conntjbl^l Event. 

Reflections — Reminiscences 30 

VII. Circuit Scenes. 

I. The first Term of Circuit Court in Cook County — Fii-st Trial 

for Murder in Cook County — Defends a Thief in Will 
County — First Jury Trial in Kane County .... 38 

II. Practice in Early Days — Following the Circuit — Itiner- 

ancy — Incidents 50 

III. Trial of a Murderer 55 

IV. Circuit Court held by Three Justices of the Peace — The 

Lead-Miners — Stories of Bench and Bar 58 

V. Practice in Another County — Defense of One Accused of 

Theft 62 

VI. Chancery Suits — Suits against Colonel Strawn— Early 

Days on the Bench 78 

VII. Reformation of the Supreme Court — Election of New 

Judges — Elected as Judge of the Supreme Court . . 90 

viii. Lynch Law — Punishment of Offenders 95 

IX. Incidents of Trials 99 

X. Stories and Incidents of Trials 106 

(V) 



VI INDEX. 

PAGE. 

XI. Life on the Circuit 113 

XII. Trial of Mr. Lovejoy 121 

XIII. Anti-slavery Times in Illinois 137 

XIV. Trial of Phillips for Murder 135 

XV. Civil Trials 145 

VIII. The Conference Room. 

I. The Difficulties of Early Travel— Luck for Place— Trip to 

Mt. Vernon 153 

II. Service on the Supreme Bench — Scenes in the Conference 

Room 162 

III. The Judges of the Supreme Court ITO 

IV. Salaries of tlie Judges — History of the Court from the Be- 

ginning — Hardships of Travel in Attending Court . .181 
V. Anecdotes of Lincoln and Others -Stories of Celebrated 

Trials • 1S4 

VI. Appointment of Pinckney H. Walker as Judge— Sketch of 

his Life 191 

IX. Reporters of the Supreme Court . 

Salaries — Labors— Personal Mention 204 

X. The Frailty of Human Memory. 

Personal Incident 208 

Appendix: 

1. Address before the State Bar Association, January 24th, 

1893 215 

II. Address before the Chicago Bar Association, at a reception 

given him by the Association, February 11th, 1893 . . 239 
III. The Exodus of the Mormons to Salt Lake 249 



PORTRAITS. 



John Dean Caton 



Sidney Breese . . 
Samuel H. Treat . 
David Davis . . . 
Lyman Trumbull . 
Burton C. Cook . . 
Benjajiin F. Fridley 
GusTAvrs Koerner . 
Anthony Thornton 
T. Lyle Dicicey . 



64 
90 
92 
94 

101 
106 
116 
136 

147 



. Fi'ontispiece. 
Charles B. Lawrence . 
Samuel D. Lockwood . 
Thomas C. Browne . . 
Onias C. Skinner . . 
PiNKNEY H. Walker . 
Corydon Beckwith . . 
Jonathan Young Scammon 
Ebexezer Peck . . . 
Norman L. Freeman . 



. 152 
. 170 
. 173 
. 184 
. 191 
. 194 
. 205 
. 206 
. 207 



EARLY BENCH AND BAR 
OF ILLINOIS. 



I. 

MY FIEST CLIENT. 



I arrived in Chicago on the 19th of June, 1833, with four- 
teen dollars and some cents in my pocket, and stopped the 
first night at the log tavern at Wolf Point, kept by W. W. 
Wattles. The next day I took lodging with Dexter Graves, 
who kept boarders at five dollars per week in a log house just 
north of Lake and east of Dearborn streets. There I found 
Giles Spring, a young lawyer who had arrived a few days 
before me, but he had seen no sign of professional business. 
I went over the river to the north side to the office of Col. 
R. I, Hamilton, which was in a log building, a part of which 
was occupied by his family. He was the clerk of the Cir- 
cuit Court, and of the County Commissioners' Court and 
Judge of Probate. Neither Spring nor myself could find a 
room for an office, nor was it possible to do so till the Decem- 
ber following, when Dr. John T. Temple erected a small 
balloon building, for his own office, on South Water street 
west of Franklin. In this there were two lower rooms, the 
rear one of which he rented to me for an office. As Spring 
could find no place where he could take a client in — out of the 
cold, I mean— I offered him desk room in my office which 
he gladly accepted, it being agreed that when one had a 
client the other should withdraw. This \vas the first law 



2 EARLY BENCH AND BAR OF ILLINOIS. 

oiRce ever opened in Chicago. For a library he had Peters 
dorf s Abridgment and I had Chitty's Pleadings. 
Let us no\y go back to the beginning. 
Col. Hamilton very kindly oflfered us the use of his office 
when we should have writing to do or wished to study the 
Statutes of 1833, a copy of Avhich he had. I spent several 
days diligently studying that good old book. What struck 
me as the worst part of it Avas that it gave no fees to the at- 
torney of the successful party against the party in the 
wrong. 

Col. Hamilton was a very good lawyer and so was Pussell 
E. Heacock, who had practiced law for many years in the 
southern part of the State, but there being no business here 
for a lawj^er, he had built a log carpenters shop at the cor- 
ner of State and South Water street, where he worked at 
the trade which he had learned before he studied law. He 
also held the office of justice of the peace. The rest of the 
judicial force of Chicago consisted of Isaac Harmon, who 
lived in Miller's tannery, • on the ISTorth Side, and had his 
office in one room, and Archibald Cly bourn, who lived two 
miles up the North Branch. Stephen Forbes was sheriff 
and lived at Lauton's crossing opposite to where Riverside 
now is. 

Well, here I had been tAvo weeks boarding with Dexter 
Graves, at five dollars per week, and no sign of any sort of 
law business. 

My board bill must now be paid, and that, with a few 
other stingy expenditures, would bankru])t my treasury. I 
began to think that after all Chicago was a better place to 
starve in than to make a fortune. At any rate, it was too 
honest and too peaceable to need a lawyer's services, or, in 
fact, for any great cit}^ 

After I had eaten a supper that I did not know I should 
ever be able to pay for, in a rather dejected mood I wandered 
out to a Hoosier encampment in the border of the brush 
about Avhere Madison street is, and thence southerly, and 
joined the men who said " which " instead of ivhat. These 



MY FIRST CLIENT. 3 

■were men who came from the AVabash on the IIn])bar(l 
trail antl brought their truch up and traded for salt. They 
came with ox teams of five or six pairs of oxen to a covered 
wagon, in which they lived both on tlie road and in town. 
Their oxen were grazmg near where they were encamped, 
east of where t)ie Board of Trade now stands. The camp 
consisted of a dozen or move prairie schooners, their camp 
fires sparkling in the darkness. 

The Hoosiers were seated on their ox yokes around their 
fires, cooking their suppers of fried apples and bacon and 
cold corn bread. 

As I came from the sombre background and approached 
the nearest camp fire, an old frontier patriarch who seemed 
entitled b}'' seniority to preside, extended his hand to me 
with a hearty good-day, and without rising, hitched along 
on the ox yoke and offered me a seat beside him. 

" Which * is the matter 3^oung man, " said he, " you are 
the first man I have seen near tliis neck of timber Avho was 
not going like chain lightning though I haven't hearn tell 
that they struck yet. " 

"That's what's the matter" said 1, "nobody strikes, but 
ever3^body runs. What sort of a chance can an honest law- 
yer have in such a place ? Here I've been two weeks and 
not the ghost of a fee. They talk about a big place to be 
here and nary a thief or counterfeiter about. Who ever heard 
of any smart town without one or both of these gentry ? " 
" Hold your horses, young man," said my new friend, 
" where they sell salt for a dollar a bushel, and give a bit a 
bushel for onions, will not do long without lawyers, unless 
they are taken to the other side of kingdom-come be- 

* Soon after I came to Chicago an article appeared in a Boston 
paper, in which some eastern traveler gave a description of what he 
liad noticed in and about Chicago, and he seemed to have been par- 
ticularly struck with some characteristics of these Hoosiers from the 
Wabash, who brought their truck by these long ox teams, and in 
speaking of this particular use of the word ivliicJi, he fell into doggerel 
and said of the Hoosior, " When the last tinimii shall sound, were I as 
Croesus rich, Td give it all to see him jump, and loudly answer ' which ? ' " 



4 EARLY BENCH AND BAR OF ILLINOIS. 

fore their time is up. Xever fear, the lawyers and the devil 
have a smart chance ahead and not long neither, unless they 
stick out their heel corks and settle back into the breach- 
ing. These yankees that are coming in here in bigger flocks 
than the locusts that eat up the ' FUistevs, hip and thigh,' 
will be stealing corner lots and running off with 'em in less 
nor a month aiid then they will be after you to chase 'em. 
Chase 'em ! Why them fellows will slip through a knot 
hole where you could not squeeze a flaxseed. But they will 
pay you all the same. There's your hog and hominy young- 
man." 

" Yes," I replied, " what am I to do in the mean time ? 
I must eat every day and if I can find nothing to do I shall 
be as thin as a ghost in less than two weeks. I have been a 
school master in my day and was reckoned a good one at 
that. Do they have schools down on the Wabash where 
you live ? " 

" Well," said he, " we don't have schools down there yet 
to hurt, but they are beginning to talk about one, I've hearn 
tell, and maybe that would do for a makeshift. Come 'round 
to-morrow night and we'll talk it over again. You shan't 
go hungry while ther's a shoat in the bottoms or me'n those 
boys have a hunk of bacon left." 

" Hello, Uncle Jake ! " shouted a voice from a neighboring 
camp fire in ringing tones. ^^ Which? ''^ inquired my new 
friend. 

" What are you wagging your chin about over there ? " 
inquired the same voice. " Oh," said Uncle Jake, •' here's a 
young feller on the anxious seat relatin' his experience, and 
it's a rather hard one. He arn't a yankee nuther, but from 
old Kentuck or may be Tennessee, I reckon. He's a young 
lawyer and he says there ha'nt been a fight or a horsethief 
in this burgh yet, and he don't think this'U be much of a 
town, no how." 

" Never you mind, tell him," was the encouraging reply, 
" they'll see enough of them 'afore long, to make a smart 
chance of a toAvn, and make the lawyers too, I reckon; 



MY FIRST CLIENT. 5 

mor'n half the people we see will turn that way 'afore they 
Jiave a church in the place. Then there'll be heaps of Avork 
for lawyers good and bad." 

On hearing these comforting opinions, I arose and shook 
hands with Uncle Jake and the boys, and took my leave 
without explaining my nativity, for they deemed all from 
the east of Ohio yankees, whom they considered sharper 
but no more honest than horsethieves or counterfeiters. In 
my conversation I had avoided the Eastern twang and had 
adopted the Southern accent and pronunciati(m, which had 
misled Uncle Jake in his conclusions as to whence I came. 

I could not fulfill niv engagement to call the next niffht, 
for I was professionally engaged. As I took my way across 
the prairie toward the log cabin which constituted my inn, 
and crawled into my bed in the attic, I felt encouraged by 
the kind and hopeful suggestions of ray new found Hoosier 
friends. 

The next morning after breakfast, having no office to go 
to, I went over to South AVater street, to see what new 
faces would show themselves. Presently a rather short, 
stout young man stepped up to me and inquired if I was a, 
lawA'er. This inquiry went through me like an electric 
shock, but I composed myself instantly, and answered him 
that I was, and incjuired if I could be of any service to him. 
He replied that some one had stolen from him $46 of Bel- 
lows Falls money, and he wanted my assistance to catch 
the thief and recover the property. 

As I had no office to which I could take my client for a 
private consultation, I led the way across the street to the 
bank of the river, where we seated ourselves. Then he in- 
formed me that he had slept the night before at Wattles' 
tavern in a room with another young man, a stranger, and 
when he awoke in the morning, his room mate and his 
money were gone. After minute inquiry I was satisfied 
that his room mate was the thief. 

As Mr. Justice Heacock was the only magistrate on the 



6 EARLY BENCH AND BAR OF ILLINOIS. 

south side of the river, we made our way to his office, or 
carpenter shop, as the case might be. 

I got the statute, and using his carpenter's bench for a 
table, wrote out a complaint in most elaborate form, putting 
in not only all that was necessary, but a good deal that was 
not necessary, and read it over very carefully to my client 
and the justice, who then swore him to the complaint and 
made out a warrant for the arrest. This we took to the log- 
cabinet shop of James W. Reed, situate on South Water 
street between Franklin and Wells. Eeed was the constable 
of the town, a stout, vigorous man of about thirty years 
of age, and the only cabinet maker in the place. 

We all started out in a search of our man and for a long 
time could get no trace of him and feared he had taken to 
the woods or to the prairies. In an hour everybody had 
heard of the theft with the usual exaggerations, and nearly 
everybody became a quasi detective. Toward night. Reed 
got a pointer and soon ran his man to earth and marched 
him down to the carpenter's shop — the justice's office— fol- 
lowed by a crowd which fairly filled it. 

Justice Heacock took his seat on a saw horse beside the 
carpenter's bench, on which was lighted a single tallow dip, 
supported by four nails driven into a block of wood, and 
opened his docket and called the case in a very formal man- 
ner. I answered for the peo]3le. and the prisoner for him- 
self, and pleaded not guilty in a very emphatic tone. I then 
propc^sed that the constable search the ])risoner for the 
stolen money, which was ordered by the court, and duly en- 
tered on the docket. Of course I assisted, and the court 
solemnly looked on, while the crowd pressed around curi- 
ously, if not anxiously. All the pockets were turned inside 
out, but no Bellows Falls money was found. The prisoner 
was then stripped to his shirt and long stockings, but 
nothing that we were after was found. The feeling of the 
crowd was evidently swaying in favor of the young man, 
and the court showed decided signs of weakening, and in an 
emphatic tone ordered him to put on his clothes. He 



MY FIRST CLIENT. 7 

seized liis pants and as lie raised his right foot to introduce 
it into the outer fi:arment, the calf of his rig-ht leg- was 
brought into distinct vie^y in the dim light, when my eye 
caught a little bunch on the swell of the leg. I quickly 
seized this between my thumb and forefinger and fastened 
to it, and probably some of the skin as well, and told the 
constable to carefully roll down the stocking and see what 
was there. He did so, and took out a little wad of bank 
bills, which he handed to the court with an expression of 
triumphant satisfaction. The court received the little wad 
and carefully unrolled it till it developed $46 of Bellows 
Falls money. 

A murmur of excitement ran through the crowd, while 
the justice in a severe tone said : '' Young man, this looks 
suspicious and requires further investigation." I think the 
prisoner and myself felt the strongest revulsion of feeling, 
but in quite opposite directions — he from hope to despair, 
and I from despair to confident belief that I had the right 
man. 

It was now past 9 o'clock, and the court announced an 
adjournment till 9 the next morning, that the examination 
might be made thorough and deliberate, and ordered the 
constable to keep the prisoner safely till morning, and then 
bring him into court. 

As there was no jail in the county, Mr. Reed took his 
prisoner to his cabinet shop, where he ordered him to lie 
down on a pile of shavings under the work bench, when he 
secured the door and windows and seated himself to watch 
the night through. For myself, I retired feeling immensely 
satisfied at the change the day had wrought in my hopes 
and prospects. 

The next morning all hands appeared promptly at the log 
carpenter's shop or justice's office, where Mr. Spring and Col- 
onel Hamilton appeared for the prisoner. They filed an aifida- 
vit under the statute for a change of venue, which, of course, 
had to be granted, and as soon as the proper pa])ers could be 
made out, Mr. Justice Heacock took them and started for 



8 • EARLY BENCH AND BAR OF ILLINOIS. 

the office of Mr. Justice Isaac Harmon, who was the nearest 
justice. He lived and had his office, as before stated, in a 
part of John Miller's tannery, which was east of the North 
Branch and north of the main river near their junction. 
There was no bridge across the main river, but cnvc across 
each of its branches not far above their junction. To go b}^ 
these bridges would nearly double the distance, so those of 
us connected with the case took canoes and crossed the 
main river to the north side, near where Dearborn street is, 
and then went on foot up to the justice's office, where the 
papers were delivered over in due form, thus vesting Mr. 
Justice Harmon with jurisdiction of the case. In the mean- 
time, there only being canoes enough at Dole's dock to trans- 
port the court party over, the spectators hastened around 
by way of the bridges, and the string of hastening men 
(there were very few boys in town) showed that the trial 
was looked upon as a great event, in the hitherto innocent 
but bustling town. 

"When the court was opened Spring made a motion to 
quash the whole proceeding and discharge the prisoner on 
the ground of insufficiency of the complaint and made a 
most earnest and zealous speech in support of his motion. 
Xow Spring could make just as earnest and confident a 
speech when he knew he was wrong as when he thought he 
was right. He certainly manifested no doubt or misgiving 
as to the correctness of his position, and fairly raved at the 
monstrous outrage upon the young man by detaining him 
for a moment on such papers, and confidenth' claimed that 
the mone}', of which we had fairly robbed him, should be 
restored. All of this served to prepare me well for a speech 
in support of my complaint, and I already congratulated 
myself upon the complete manner in which I should expose 
the fallac}^ of Spring's position, but my client seemed evi- 
dentl}^ impressed b}^ his confident earnestness and looked a 
little anxious. 

The moment Spring closed, I jumped to my feet primed 
to overflowing to do battle for my complaint, when the 



MY FIRST CLIENT. 9 

court quietly said he thought that tlie com]ihiint was suffi- 
cient and so I need not trouble myself, and overruled the 
motion. 

By this time it was nearh'' noon and some one, I think the 
justice himself, suggested as his office was small and a con- 
siderable public interest was manifested in the examination, 
the further hearing was adjourned to Wattles' tavern, where 
the proceedings would be continued after dinner. 

Soon after one o'clock, the court was convened under the 
porch of the log tavern, a deal table supporting the open 
docket of the justice, whose dignity was held up by a 
Windsor chair. The crowd was considerably augmented, 
many in their shirt sleeves, for it was a warm July day, and 
all were clad in as light costume as comported with the 
dignit}^ of the occasion. I was directed to call m v witnesses, 
and Mr. Hatch, the complainant, was sworn. He gave his 
statement as before related, together with the account of the 
finding of the money, which he identified. Eied, the con- 
stable, gave an account of his search for the prisoner and of 
his search of him, and of the finding of the money inside 
his stocking. 

The cross-examination of the witnesses was much longer 
than the direct, but, as is ver}^ often the case, it strength- 
ened their direct testimony. I may say here that more 
cases are ruined by too much cross-examination than by too 
little. I have often seen a doubtful case made clear by what 
was intended to be a crushing cross-examination. If a wit- 
ness is intelligent and reasonably self-possessed, and means 
to tell the truth, an attempt to break him down by a bluster- 
ing cross-examination will often develop damaging facts 
which are brought to his attention, and so I have often seen 
cases ruined by too much cross-examination. I always made 
it a rule to prove my case in the shortest and most direct 
way possible, and then stop. If it is to be strengthened by 
collateral circumstances, it is much better to let them be 
brought out on the cross-examination than on the direct. 
No evidence Avas introduced for the prisoner. 

After the testimony was closed I opened the case in a 



10 EARLY BENCH AND BAR OF ILLINOIS. 

short speech when Spring went in for a grand effort in his 
earnest, confident manner and was followed by Col. Hamil- 
ton, in a less nervous, but more deliberate manner, and con- 
sidering that they really had no defense to make but could 
only try to create a sympathy for the young man, their ef- 
forts were excellent. Spring had got in the first speech in 
the mornino- before a Chicag-o audience and now had made 
a fine effort in which he liad scored several points for him- 
self, if not for his client; I felt that I must do my best or 
rank number two in the very start. I went at it in earnest, 
reviewing the evidence and showino^ its conclusive character 
and then took up the sjaiipathy part, pointing out that it 
must be the Inst resort of manifest guilt. That if this was 
his first offense it was the part of true sympathy to nip his 
career of crime in the bud, rather than to encourage him to 
commit further crime by giving him immunity for tliis. 
That the community had greater claims upon our sympa- 
thies to be protected from the depredations of thieves than 
any acknowledged thief could have, and pointed out the 
great importance of proclaiming to the whole criminal class 
that Chicago was an unwholesome place in which to 
practice their arts. That the courts must take the respon- 
sibility of determining whether Chicago was to become a den 
of thieves or an honest community where life and property 
were to be protected by a rigorous administration of the 
law. I drew a picture of Chicago in the future, if the 
courts b}^ their decision should make it a refuge for 
criminals, and Chicago purged of crime by a relentless ad-, 
ministration by the Criminal Courts. It was for his Honor 
now to determine which class of immigrants were to be in- 
vited to come in, the good or the bad. I dwelt upon this 
theme in all its phases, at considerable length, and when I 
sat down I felt in the very atmosphere that I had struck 
the right chord and had achieved a complete success. By 
praising the strenuous and ingenious efforts of my op- 
ponents in so desperate a case, I detracted nothing from 
mv own success. 



MY FIRST CLIENT. 1 1 

This wr.s tlio opening career of the two first practicing- 
lawyers in Chicago, and the people had manifested a decided 
interest to know whether we were likely to prove a success 
or not, and we both felt gratified at their manifest ap- 
proval. 

The court, without reviewing the evidence or the arg-u- 
inents, promptly held the defendant to answer in the 
Circuit Court. It turned out that he had several friends in 
town who probably knew him or his family at the East and 
who went his bail, and he was thus discharged from the 
custody of Constable Reed. He never appeared in Chicago 
again, so far as I know. 

Mr. Justice Harmon promptly sent the papers to the office 
of the clerk of the Circuit Court. 

Col. Hamilton entered u])on the records the case of 
the people against his own client, which was the first case 
ever entered u])on the records of the Circuit Court of Cook 
County. Mr. Hatch very cheerfully paid me ten dollars of 
the recovered money, which just paid my board up to that 
time. Although small in amount, it was the greatest fee I 
ever earned (and I have received some good ones in my day) 
if measured by the amount of good it did me. The bright 
spots in my horizon, lately so dark, now shown like a firma- 
ment of stars. 

The second case also came to me, of which I will give an 
account hereafter, the incidents of which were a little funny 
and more unique than the first. Just before the great fire 
of 1871, which consumed all of the old records, with two 
friends, JN'orman Williams, Esq., and C. E. Towne, Esq., I 
examined the old records and found the ]iapers, and as I 
recollected they were the two first ever entered there. 

Tliis case then passed into the hands of the State's Attor- 
ney, Thomas Ford, who was afterward judge of the Munic- 
ipal Court, of the Circuit Court, of the Supreme Court, and 
then Governor of the State; nine years later I succeeded 
him as judge of the Supreme Court. 

Later Spring presided on the Circuit bench in Chicago 
most acceptably. 



II. 

MY SECOND CLIENT. 
THE FIRST CIVIL CASE TRIED IN COOK COUNTY. 

Perhaps ten clays after Spring and myself had intro- 
duced ourselves to the little public of Chicago, as stated in 
" My First Client," I obtained my second client, which will 
make a shorter story than the first. In the meantime I 
had earned a few dollars posting books for Robert A. 
Kinzie. . Ready to earn a little outside the profession, both 
Spring and myself had undertaken to carry the chain for 
Josh Hathaway, who had come to Chicago with me and had 
been given a small job of surveying by Geo. W. Snow, who 
was deputy county surveyor. 

Josh had thoroughly studied surveying theoreticnlly, but 
had never set a compass, while I had some practical knowl- 
edge of the subject, having executed several jobs to earn a 
little in my school days. So it was agreed between us that 
he should hold himself out as a surveyor without advising 
tlie public of his want of practice, and that when he got a 
job I would go along to carry the hind end of the chain and 
quietly give him any instructions he might need in starting. 
Spring was glad to go along to carry the fore end of the 
chain for he seemed as glad to earn a dollar as I was. 

We found our starting point, perhaps a mile north of 
town, east of the North Branch, in the timber, and ran 
north. The line soon ran us into an alder swamp, and a 
denser one I never saw. 

Every foot of the way had to be cleared by the ax-men, 
so it was very slow work. At noon we came back to towij 

(13) 



MY SECOND CLIENT. 13 

for our dinners, and as we passed the clerk's office on our 
Avay, Col. Hamilton came out and told us that a man had 
been in his office who wanted to bring an action in attach- 
ment. That he had told him he must get a law3'er to draw 
his papers. That he had gone away but would be back in 
the afternoon. We both wanted the case, of course, but 
agreed that we would eat our dinners and return to our 
work and the Colonel was to send the client after us and we 
would trust to luck as to which he would come upon first, 
who, of course, would get the case. 

We told the Colonel that we would be found in that alder 
swamp, to which he was to direct the client. I thought that 
my position at the hind end of the chain would give me the 
advantage, for the man would most likely strike our trail 
where we entered the swamps, and so must necessarily fol- 
low it up and come upon me first. I dare not, however, 
tell the Colonel to advise him to look for the trail along the 
edge of the swamp, for that would have at once disclosed 
my fancied advantage. 

We Avent back to our work, but made very slow progress 
in the dense thicket, all being idle most of the time except 
the ax-men, whose constant blows could be heard at a con- 
siderable distance, and I imagine that Spring confidently 
calculated upon this as giving him the advantage, but he 
kept his thoughts to himself as well. 

So soon as the ax-men had cleared the way sufficiently to 
let us advance one chain we did so and then sat down to 
wait. While thus sitting on a log waiting in profound 
silence, I heard a crashing in the brush, and guessed in- 
stantly that it was the coveted client. He was fighting his 
way slowly through the thicket, but making directly for the 
choppers. I thought the game was lost, but Avhen he got 
opposite me, not more than twenty feet away, the Devil 
took control of my hands, and I lifted the handful of steel 
pins in m}^ right hand and dropped them into my left, which 
made a prett}^ loud ringing noise. Instantly the noise in 
the brush stopped as if the traveler was in the attitude of 



14 EARLY BENCH AND BAR OF ILLINOIS. 

listening. The sight could not penetrate more than half 
the distance between us, and the blows with the axes still 
continued. This, I appreciated, must soon start the man on 
his way to them, so I gave the stakes another ringing clash 
into the left hand, when the man started directly toward 
me and very soon was before me and asked if I was a law- 
yer. I felt guilty of having broken the spirit of onr agree- 
ment, if not the letter, and regretted what I had done; but 
it was then too late to do much to repair the wrong which 
I felt I had done. I appreciated that I had done a mean 
act, and I felt mean about it, but, as usually occurs in such 
cases, it redounded to Spring's benefit instead of mine, of 
which I have been always glad, and wish it might ever be 
so in such cases. I told the inquirer that I was a lawyer 
and that Mr. Spring, to whom I pointed, was another, and 
that either of us would be happy to serve him profession- 
ally. I am sure it would have been a relief to me then had 
he gone over to Spring and retained him. But no ; he said 
he thought may be I would do and asked if I could go with 
him then. I said yes, and we started for the clerk's office 
together, and on the way he stated his case to me. 

A man owed him some money, who was a non-resident, 
but had some property which he wished to attach. 

We went to the clerk's office, where I prepared the neces- 
sary papers and procured the writ of attachment, which was 
duly served by the time the surveying party returned. That 
was the first civil cause ever entered on the docket of the 
Circuit Court of Cook County. 

Spring was employed the next day by John Bates, Avho 
reside dhere till a few months ago, when he was killed on a 
railroad track when about eighty years of age, to interplead 
(which the process of claiming the property attached is 
called in the statute). 

At the next term of the Circuit Court, which was held in 
May, 1834, the case was tried before the first petit jury ever 
impaneled in the Cook Circuit Court, when Spring beat me 
and got the verdict. I got my judgment by default against 



MY SECOND CLIENT. 15 

the debtor, but could never find a thing out of which I could 
collect it, and as my own client never showed up again, I 
got nothing except a small retaining fee, w^hile Sjiring got 
a good fee and a good client ; so the laugh was on his side 
at the end, which I think he enjoyed almost as much as he 
did the fee. 

I may add that I not only tried the first jury case in the 
Cook Circuit Court, but also the cases tried before the first 
juries impaneled in the Circuit Courts of Kane County and 
of "Will County, of which I may hereafter give an account. 



III. 

MY FIRST MAREIAGE CEREMONY. 
A FRENCH COUPLE. 

When I Avas twenty-two years old I was elected a justice 
of the peace on the 12th of July, 1S34, and then I com- 
menced my judicial career. The election was for the Chi- 
cao-o precinct, but the jurisdiction extended over the whole 
county of Cook. I received 182 votes and my opponent 
received 47 votes. 

I do not propose to confine myself strictly to judicial or 
professional incidents, but shall introduce incidents and events 
as they shall occur to me, illustrating the state of society, 
the social and business conditions in the community and 
vicinity as they existed in those early days, when from 
sheer lack of numbers the crude and the accomplished 
found themselves standing and associating nearly on the 
same level. 

There were but few young people in Chicago and vicinity, 
and I was acquainted with nearly all of them and soon 
monopolized nearly all of the marrying business. 

The first official act I ever performed was to marry a 
couple. James Ivinzie, who was a friend of the parties, 
called on me and informed me of the service desired, and 
wished me to go with him Avithout delay. 1 put myself in 
presentable apparel as soon as possible and went with him. 
He led me down Water street to the foot of La Salle, where 
we took a canoe and crossed to the North side, and lie then 
conducted me to a log house where we found the wedding 

(16) 



]\ri FIRST MARRIAGE CEREMONY. 17 

]x\rtv assembled. He introduced me to them in French, for 
few of them coukl understand English.- 

The most interested parties were a young couple of Can- 
adian French, who had always been connected with the fur 
trade and could not speak or understand English. The 
bride, I should judge, was about twenty-two years old, 
rather short, dark complexioned, with a sliarj) black eye. 
The groom was short and stout with a fairly intelligent ex- 
])ression. Everything was ready. Kinzie was active and 
officious and seemed to run everj'thing in his own way. He 
ai'ranged the parties by the side of the room and requested 
all the company to stand up. At the same time I stood 
up before them and asked them in English if they wished 
to enter into the contract of marriage. When Kinzie, act- 
ing as interpreter, asked them if they wanted to get mar- 
ried, they both answered " We ! We ! " with an inclination 
of the head and an emphasis which showed that they were in 
earnest. I then told them to join their right hands, which, 
M'hen it was interpreted, they obeyed. I then went through 
with a rather short ceremony, making them promise enough, 
if they kept all, to secure a life of happiness, which Kinzie 
interpreted sentence by sentence, and then I pronounced 
them man and wife in as solemn a voice as I could assume, 
and told the groom to kiss his bride, which, when he under- 
stood the command, he did with animation, while the bride 
seemed becomingly embarrassed. It was evident that she 
would have preferred to have had that part of the ceremony 
a little more private. 

After this all were seated on benches, boxes and stools, 
except the bride and groom and myself, who occupied the 
only three chairs in the house, which had probably been 
l)orrowed for the occasion. Some refreshments were then 
served including a sort of whisky punch; after this I left 
them to have a good, jolly time among themselves. As I 
left, Kinzie slipped into my hand the silver dollar allowed by 
law, which was the lirst money I ever received for official 
3 



18 EARLY BENCH AND BAR OF ILLINOIS. 

services. I was back at m}?" office before noon. This was 
my first fee as justice of the peace. It was well that my 
first marriage ceremony was performed among- so plain a 
people, for as it was I was sensibly embarrassed, although I 
managed to keep up a calm exterior, as if it were an ever}- 
day occurrence Avith me. 

Some one told me that years later I granted a decree of 
divorce dissolving that same marriage contract, but I do not 
think that was true. 



lY. 

MY SECOND IMARRIAGE CERE.MONY. 
LIFE IN THE EAKLY DATS. 

There seemed to be more "weddings than law suits at 
that time in Chicago and vicinity in proportion to the pop- 
ulation, some of which afforded amusing incidents — and 
instructive too — so far as showing how things were some- 
times done in the olden time, Avheu all was primitive. 
Here I shall draw on my memory for a few more of these 
ejents. 

Kot many days after the matrimonial event last described, 
a couple of rather ragged, bare-footed boys called at my 
office and told me that I was wanted at their house to marrv 
their sister. Careful inquiry informed me that they lived 
in a log house in the woods about two miles north of town, 
that their name was Cleveland, and that the party was 
already waiting for the squire. I recognized the house by 
their description as one which I had seen when out hunt- 
ing in that direction, and as soon as I could prepare myself 
properly, I procured a horse and rode out to the rural 
abode of Mr, Cleveland, On arriving, I hitched my horse 
to a sapling near by and went in, I was greeted by the 
matron of the house, who was a fat, robust looking woman, 
while Mr. Cleveland was a tall, spare man Avith a very fair 
complexion; I may say he was a pronounced blonde. There 
was but one room in the house, though that was of good 
size. It served as kitchen, drawing room, reception room, 
parlor and dressing room, and. no doubt, as sleeping room 

(19) 



20 EARLY BENCH AND BAR OF ILLINOIS. 

lor the whole family, though no sign of a bed ap])eared. 

The old lady bustled about till she found the washboard, 
which she deftly clapped onto the frame of a chair from 
which the splint bottom had long since disappeared, and 
invited me to be seated, and I was seated, and wiped from 
my forehead the fast flowing perspiration provoked by a 
very warm July day. A survey of the reception room dis- 
closed no furniture except a deal table, the seat which I 
occupied and several benches of different lengths, not to 
mention some pots and kettles in the corner of the great 
fireplace, and some shelves in one corner on which were 
some tin plates and cups and other table furniture, by no 
means extravagant. Near this sat the master of the man- 
sion, Avho might have been fifty-five years old, and opposite 
to him sat, on another stool, a soldier from the garrison, as I 
judged from the clothes he wore. I soon observed that 
one corner of the room was cut off by old quilts and other 
articles of bedding, and by the agitation and whispering, 
this was evidently occupied. As it proved this was the 
dressing room in which the bride was being adorned. 

I soon took in the situation and directly adapted myself 
to it. I dashed into a lively conversation with the good 
lady of the house in which I soon learned where she came 
from, when she came West, how she liked it, if the ]nos- 
quitos were bad there in the woods (she said they were hor- 
rible), how many children she had and the ages of each, 
and if it Avas her daughter to be married and where was the 
groom. Yes, her eldest daughter was the bride and the gal- . 
lant soldier who sat in the corner near the window was the 
groom, whom I was to make happy by a few official words. 
Then I speared away awhile at the old man, as he was con- 
sidered in this young country then, and from him I glided 
off to the soldier and talked up military matters, so that in 
a little while the restraint which at first seemed to be em- 
barrassing wore off, and all seemed quite at ease and happy. 

After awhile the curtain was raised and the bridal party 
came forth from the secluded corner and burst upon us like 



MY SECOND MARRIAGE CEREMONY. 21 

— like — I am at a loss to find a fair comparison. First came 
the two vounfi^er sisters. Thev were of medium heiirlit for 
their ages, and slightly l)nilt, and really handsome, one per- 
haps fifteen and the other eighteen, decently and plainlv 
dressed, but neatlv. One of these, the eldest, I recoo-nized 
as ha\ing seen at Ingersol's Hotel at Wolf Point, wait- 
ing on the table. They were followed by the bride, gayly 
decked out in furbelows, but it was clear she was the 
daughter of her mother. Though not tall, she was very 
stout. I got up from the washboard quickl}^ and bespoke 
the party cheerfully and pleasantly as I knew how. 

Before any one Avas seated again, the two boys walked 
into the house covered with perspiration and dust, each one 
having a gallon jug strapped to his back. Our hostess soon 
undid the strajis and placed the jugs on the table, scolding 
the boys roundly for their tardiness, while tlie}^ protested 
they had fairly run their legs off, in order to get back in. 
time to see the fun. Madame soon found a milk pan. into 
which she put a cup of molasses from one jug, and then a 
cup of whisky from the other, and then a cu]) of cold Avater 
from a pail standing under the table ; after she had thus 
measured out about six quarts, she went at it Avith a large 
wooden spoon and stirred it up lively. When sufficiently 
mixed, the good and hospitable lady took a tin cup and 
dipped it partly full and presented it to me, saying, " Squire, 
are you fond of blackstrap ? I ahvays had a knack for mak- 
ing blackstrap, and you shall try it first, though you ain't 
the oldest, I guess." 

I protested that blackstrap Avas mA^ delight and the only 
drink I ever indulged in, and after putting it to my lips pre- 
tended to drink heartily. I Avas so busy jiraising the bever- 
age that I doubt if she observed Avhether I drank or not. I 
then passed the cup to mine host, AA^ho smacked his lips after 
a feAv sAA'alloAvs as if he Avere well used to the exercise. He 
refilled the cup and passed it to the son of Mars, Avho did 
ample justice to the skill of his future mother-in-laAv and 
then passed it to the bride, and thence it proceeded to the 



22 EARLY BENCH AND BAR OF ILLINOIS. 

other members of the family. This refreshing scene occurred 
before tlie marriage ceremony, an innovation no doubt born 
of the belief that it was the most important. 

While tliis convivial scene vi^as in progress I managed to 
get the innocent soldier outside and took him around the 
corner of the house and called his attention to the stout 
figure of the bride which was so marked that no one could 
fail to notice it. But the prudent suggestion which I felt 
it my duty to make to one whom I feared was being duped, 
proved quite gratuitous, for he said that it was all right, and 
he had determined to marry the girl any wa}^ So, as his 
license was correct and duly signed and sealed by Col. 
Hamilton, I had no further scruples on the subject and we 
returned to the cabin and soon after proceeded to make the 
two or three one. I made the ceremon}^ very short and did 
not conclude it with the directions for a salutation which 
was then quite the thing among that class of people, because 
I thought the situation might make that part of the cere- 
mony rather awkward, I took my leave as soon as possible 
after having received the statute dollar which just paid for 
the hire of the horse. 

Of course I mentioned the cause of my visit to the country 
soon after my return, and the news soon reached the garrison, 
when a file of soldiers was sent out for the unlucky wight, 
who had ventured to commit matrimony without the leave 
of the commanding officer, although I am not aware that 
any of the articles of war required such permission. How- 
ever, that made no difference, and the easy-going bridegroom 
was rudely torn from the bowers of bliss and locked up in 
the guard house before sundown, where I understood he was 
kept on a low diet for two weeks, and it was a long time 
before he got leave again. 

I never interested myself to inquire how the disconsolate 
bride bore her grief in the meantime or since. 



Y. 

ANOTHER CONNUBIAL EVENT. 
LIFE IX THE COUNTRY A WEDDING DINNER. 

One Saturday in March, 1S35, I was called upon at my 
office, by a stout, vigorous young farmer named Powell, and 
requested to go the next day about sixteen miles up the 
north branch, and unite him in marriage to a young lady 
living in a log house at Dutchman's Point. I promised to 
be on hand by noon the next day and he departed manifestly 
in a very happy frame of mind, as if contemplating a long 
life of future happiness. 

The next morning was bleak and chilly with a strong 
northeast wind blowing, but when the event of a lifetime 
depended on my presence, and especially when I rememlDered 
that I hoped that at no very distant day I should require a 
similar service of some one, and how I would want to choke 
him should he disappoint me, I drew on my overcoat soon 
after breakfast and went to a liverv stable and mounted a 
stout looking cob, and struck out into the bleak prairie, pre- 
senting my right cheek to the cold, damp wind. 

The low, flat prairie was covered with water for the first 
eight or nine miles which splashed up at every step, and 
frequently the horse would step close beside a crawfish hole, 
with which the prairie was honey-combed, when the water 
would shoot up like a geyser to the height of several feet, 
often giving me a good sprinkling of the muddy water and 
more than once striking me fairly in the face. I had taken 
the precaution to tie a Avrap around my neck so as to pro- 

(23) 



24 EARLY BENCH AND BAR OF ILLINOIS. 

tect my sliirt collar and bosom, long leggins protected my 
lower garments, and the overcoat received most of the 
showers of mud which came above my knees. But the 
boots ! Nothing could be done for them, and they were 
soon so soiled that their color was indistinguishable. But 
that was no matter. Everybody was prepared to make al- 
lowances for that condition of things, so I gave myself no 
trouble about it. 

E'otwithstanding the apparent discomforts, that was, in 
truth, a happy ride. The fact is I was sometliing in love 
m3^self ; and so my thoughts were far away from the mud 
and water and the chilly wind and the bleak prairie, revel- 
ing in thoughts which I need not explain, and buikling air 
castles of huge proportions, which I decorated with the most 
elaborate architecture and ornamented with the l)rightest 
colors. Whoever has been in this frame of mind, will ap- 
preciate how utterlv oblivious I was to all of the actual sur- 
roundino's and lived for the time in a sort of El v slum, and 
listened to the songs of the birds of paradise. Thus hour 
after hour my horse plodded along at a walking pace, while 
I was in a state of oblivion to my surroundings. At length, 
after I had covered eight or nine miles of this low, wet 
prairie, I struck higher ground and it was possible to in- 
crease my speed, which I did, for I saw I was likely to be 
late to the wedding; I, however, arrived at the designated 
place in good time. The house was a large, commodious log 
structure with several rooms on the ground floor. AVhat 
was most cheering to me, was a great wood fire in an old- 
fashioned fire-place at one end of the house, which would 
admit great logs four or five feet in length, and seemed big 
enough to rcast an ox. This fire wrs occu|)ied by the 
culinary operations, which were going on. A fine turkey 
and a plump pig, which were suspended before it and were 
being constantly basted by a ten-year-old boy, whose face 
was as red as a beet, diffused through the room an appetiz- 
insr frao-rance which made me rejoice that dinner time was 
rapidly approaching, and my mouth fairly watered at the 



ANOTHER CONNUBIAL EVENT. 25 

thoiig-ht. A nice party of well dressed country people occu- 
pied the room, who were as chatt}^ and as jolly as the occasion 
required. Powell met me at the door and without giving 
me time to take off my muddy wraps led me direct to the 
bride to whom he introduced me with a flourish, whicli 
showed that the situation produced in him no embarrassment 
more than as if he had been married once a week for the last 
live years. Xot so, however, with the girl ; she seemed con- 
sideral)ly embarrassed as all eyes were turned upon her. 
She was taller than the average of women, and fairly stout 
in proportion. Indeed she was a large, well formed woman 
of fair complexion. She was decidedly awkward in her ac- 
tions, evidently having seen but very little of even country 
society. This might have been expected when neighljors 
were miles away, and she probabl}' had not a single acquaint- 
ance in town, and had never been there more than to pass 
through it on her way West. In fine, she Avas troubled to 
know where to put her hands and feet. 

I did my best to put her at ease by a cheerful, eas}' and 
commonplace conversation and without staring at her. 
Her father and mother were standin": near bv lookinof on, 
to whom I was next introduced, and then I was paraded in 
my muddy leggins and overcoat and introduced to all the 
rest. I Avas then permitted to take off my outer covering, 
A boy had already been sent to take care of my horse, and 
I Avas seated near the fire to Avarm myself a little. This 
Avas scarcely done Avhen PoAvell, aa^Iio acted as master of 
ceremonies at his OAvn Avedding, came up to me and placed 
in my hands his marriage license and intimated that it Avas 
time to proceed to business. The license showed that the 
bride Avas fourteen years of age and the groom twenty-six. 
He, no doubt, noticed my surprised look as I again glanced 
at the f uU-groAvn bride, and quietly AA^hispered to me, '' It is 
all right; girls are like new potatoes. They are old enough 
as soon as they are big enough. She Avill keep house Avith 
the best of them."' 

With this he skipped back to the side of the blushing 



26 EAKLY BENCH AND BAR OF ILLINOIS. 

bride, seized her hand and raised her to her feet. At the 
same time I advanced to the middle of the room in front of 
them and requested the company all to arise, thinking she 
would feel less embarrassed when all were standing. I then 
gave them a short lecture on the solemnity of the occasion, 
and the gravity of the responsibilities they were about to 
assume, and the course of conjugal life which would surely 
result in the greatest possible measure of happiness to both. 
This no doubt sounded funny from a young fellow not yet 
twenty-three years of age and who knew no more about 
matrimony than he did about preaching, nor half so much, 
but the truth is, he had already begun seriously to think 
about it and had in reality thought much upon the proper 
course for husbands and wives to pursue toward each other 
to enable them to live happily together, and I am not sur- 
prised that it had to break out on so proper an occasion. 

Well, I married them good and strong, but at the conclu- 
sion I thought I would not gratify the groom's love of dis- 
]ilay and increase the bride's embarrassment by directing 
him to salute his bride, yet he did it all the same, and she 
submitted meekly, as if it were inevitable, as he had no doubt 
informed her that it was indispensable to a good marriage, 
and very likely had acted upon the belief that de bene esse 
is just as safe and just as proper under the circumstance as 
mine ])ro tunc. 

I then shook hands with the newly married couple and 
congratulated them cordially, and my example was followed 
by only a part of the company, the rest evidently being too 
diffident to thus display themselves. So soon as all was 
over the good housewife, the mother of the bride, made a 
movement for the big family table, which was pulled out 
into the middle of the room, and many willing hands helped 
her to set it, and to dish u]3 as good a dinner as I ever wish 
to sit down to. The carving was not of the most artistic 
character, but the turkey and the pig and the boiled ham 
were soon reduced to ample portions, while the fricasseed 
chicken had been dismembered before it was put into the 



ANOTHER CONNUBIAL EVENT. 27 

pot. Boiled potatoes and mashed potatoes, corn bread and 
white bread, all done to perfection, filled out a dinner that 
an emperor might have envied, and my long cold ride had 
fitted me gloriously for just such a dinner. Coffee was the 
only beverage, but it was as good as the rest of the repast 
and nothing more was wanted. 

The good woman of the house watched my eating with 
evident satisfaction and listened to my encomiums of her 
skill Avitli even more, and when I expressed the hope that 
her daughter, the bride, could do as well, she was still more 
pleased and assured me that she had been all her life teach- 
ino; that girl all about it and that she knew it from A to 
izzard. 

AVe all showed stalwart appetites, and even the bride vin- 
dicated her sturdy appearance at tlie trencher, and it was 
hard to get her to suspend the process of mastication long 
enough to express her opinions on any subject, if she had 
any brilliant ones. 

Soon after dinner I expressed my wish for my horse and 
the small boy was sent for him, while I endeavored to get 
inside my muddy wraps. When this was accomplished 
Powell came up to me and placed a silver dollar in my hand 
with the air of one who thought he was doing the hand- 
some thing and he did not care who knew it, evidently 
expecting profuse thanks; but when I remembered that I 
must pay two dollars for the hire of the horse, and as it was 
too late to return to town I must impose myself upon the 
hospitality of some friend in the country, I did not feel 
like thanking him very much, so I took my leave with- 
out great ceremony, mounted my horse and rode aAvay 
across the bleak prairie toward the hospitable abode of Mr. 
Mansel Talcott, on the O'Plane river, eight miles distant. 

The generous dinner I had eaten so fortified the inner 
man that the outer did not mind the cold blast which was 
noAV nearly to my back. I could not help reflecting on the 
way, that she whose destinies I had just united with the 
man whose disposition I had just seen illustrated, would not 



28 EARLY BENCH AND BAR OV ILLINOIS. 

be likely to be over-burdened with too much pin monev: 
in fact I doubted if she ever got any. I have never heard 
since how that was, though I have heard that Powell proved 
a man of some business capacity and worked a number of 
men on his farm, whom he fed principally on boiled wliite tur- 
nips, asserting that if they would stuff their s/i irts full enough 
of that they would not starve, and I was ready to believe it. 

More than fifty years later, at a reception given by the 
Calumet Club to the old settlers of Chicago, the young- 
bride of that long time ago, introduced herself to me in a 
frank and easy way, showing that she had seen much of the 
world since, and she had, for she had kept a country tavern 
just beyond the suburbs of the city. She had lost her 
Powell, but had captured a second husband who, I have 
since learned from another source, did not turn out all she 
Jiad hoped for, and from whom she filed a bill for a divorce, 
in which she was defeated by having shown too much kind- 
ness to the defendant ■pendente lite. But for all this she 
now seemed jolly and happy. 

I arrived at Mr. Talcott's a little before sunset and was re- 
ceived at the door l)y the old gentleman (even middle-aged 
men seemed old to me then), with that o])en-handed and 
generous hospitality Avhich was a part of Mr. Talcott's very 
being, and which I had often before enjoyed, and with a 
welcome by the ladies inside not a whit the less cordial. 

These consisted of Mrs. Talcott and their daughter An- 
geline, a young lady perhaps twenty years of age, smart, 
well educated and accomplished, and an ornament to any- 
society into whose association she might be thrown. 

Only the summer before they had heard that I Avas sick 
in town, and sent for me and kindly nursed me for two 
weeks till I got able to return to my work. 

Angeline was one of the very few friends to whom I had 
confided my own love affair at the East, in which she took 
a lively interest and seemed as pleased as I was to talk 
about it, and she made me describe my sweetheart over and 
over again, till she said she would know her on sight, 



ANOTHER CONNUBIAL EVENT. 29 

though she wondered how I should know her myself Avhen 
she remembered that I had never passed a word with her 
orally, but that little piece of romance connected with the 
affair seemed to impart to it an additional interest. Her 
mother was a most charming woman, of rather a frail ap- 
pearance, yet smart and active, about lif ty-five years of age, 
Avith a lively, cheerful disposition, which made her enjoy 
young people's society, and with whom her sympathies were 
as much awakened as they would have been thirty years 
before. She was a charming companion to both old and 
young. Mr. Talcott was an uncommonly stout man, with 
an exterior appearance rather rough, but with a heart big- 
enough for several common men. Xor must I omit to men- 
tion Mansel Talcott, Jr., who was then a lad, I should think, 
about sixteen years old, who already showed evidence of 
that business capacity which he afterward displayed, and 
that kindly nature and generous heart for which he was dis- 
tinguished in manhood. 

During the evening I gave an account of the late wed- 
ding, and all were vastly amused; esjiecially at tlie fee I had 
received and my way of describing the ceremony. 

Angeline had been commissioned to engage my official 
services at another wedding, about two Aveeks hence, at the 
house of a neighbor two miles up the river. 

It Avas arranged that I should come out in the forenoon 
of the day of the Avedding, and spend the afternoon at the 
house of my hospitable friend, for the wedding was to occur 
in the evening. 

The next morning I returned to toAvn. 



YI. 

ANOTHER WEDDING IN RURAL LIFE. 
EEFLECTIONS EEMINISCENCES. 

On a pleasant spring morning in March, 1835, I mounted 
my liorse and struck out over the unbroken prairie for the 
house of my very kind friend, Mr. Mansel Talcott, to fulhll 
the appointmcnb which I had made some days before with 
Miss Talcott, to unite in the bonds of wedlock a rural couple, 
whose love, I doubt not, was as sincere and as earnest as if 
they had walked in a higher circle of society. 

These errands of love always made me meditative and 
happy. They seemed to remind me of the joyous time to 
come, in the hopes of which, after so many years have passed 
away, I can truly say I was not disajipointed; nay, my 
brio-htest dreams have been more than realized. I built air 
castles big and beautiful. Naturally of a hopeful disposition 
I was ever feasting on hopes, not blindly as if they were to 
be realized by destiny, but determinedly, as if they must be 
realized by my own efforts and merits, with the help and 
support of one who I felt sure would sympathize with me 
and encourage me. In this I have not been disappointed.. 
In whatever of success has attended my efforts, she has done 
her full share, and now in old age we are passing down the 
hill together, with the same cheerful concord and sympathy 
which has ever since characterized our lives. If the ascent 
was steep and laborious, its descent is gentle and quiet. 
The wayside seems strewn with flowers whose fragrance is 
grateful and refreshing. 

(30) 



ANOTHER WEDDING IN RURAL LIFE. 31 

It was during my solitary rides over the prairies that I 
used to indulge in those day dreams and formed })lans and 
resolutions to make them realities. When engaged in real 
business I had the force of will to expel them entirely 
from my mind and to concentrate my thoughts relentlessly 
upon whatever I had in hand. If, as the time approached, 
this was sometimes hard to do, yet I did it and gave my un- 
divided thouo'hts to business. I knew I had to work. I 
resolved to work, and to some purpose. 

Sweet is the consciousness of a well-spent life. I can 
survey the past in a calm3r mood than I then surveyed the 
future, and am astonished to see how well that future has 
been realized. Indeed, my success has been more than I 
then anticipated, my domestic happiness has been more 
than I then dared to hope for, but my labors have been 
harder than I then supposed that I was capable of perform- 
ing, though I have overcome the obstacles which I have en- 
countered in the way with greater ease than I then thought 
possible. I have developed business capabilities outside of 
my profession, of which I was then unconscious, and which 
my industry and love of labor have turned to good account. 
It is a sweet reflection in the decline of life to believe that 
I have not lived in vain, that I have contributed my mite 
to the well-being of mankind, and that this seems to be ap- 
preciated by my fellow-men; that I have in some measure 
filled the place designed for me by Him who regulates the 
economy of the Universe. 

I may now say to young lawyers that they can only suc- 
ceed in their profession by hard work and by the highest 
integrity and honoraljle practices. The first is necessary to 
learn what the law is and its proper application to given 
facts. The next is indispensable to secure lucrative employ- 
ment. Little tricks and sharp practices may succeed for a 
time in little cases, but they can never secure an honorable 
reputation, which is indispensable to marked success. They 
are evidence of a little mind and can not secure a large re- 
ward, either in reputation or financially. Little advantages 



32 EARLY BENCH AND BAR OF ILLINOIS. 

dishonorably obtained are worse than honorable defeats. 
Hold your honor as sacred as your soul's welfare. Show 
3^ourselves worthy of the highest trust and you will be 
trusted; not without. Work hard and think strongly and 
deliberately. Lincoln was a great example of all these 
characteristics. 

I arrived at the hospitable house of my friend for dinner, 
and was welcomed with a cordiality which bespoke the kind- 
ness of heart which there prevailed. The afternoon was 
pleasantly spent and as the shadows of evening began to 
fall, Anffeline and I mounted our horses and took the trail 
leading up the river along the skirts of the timber which 
bordered its banks. My companion was to be bridesmaid 
and we had a sort of rehearsal, and I received particular in- 
structions on some points which she thought important, and 
especially was I to require the salutation of tlie bride by the 
groom at the close, the contemplation of which she seemed 
to much enjoy, and she insisted that I should do the same 
thing immediately after, and she would arrange it so that 
the whole com])any should follow my exam|)le. This I 
promised but with the condition that the bridesmaid should 
receive the same attention, to which she at first demurred, 
but finally said she would manage that all right. 

It was dark when we arrived at the log cabin of the set- 
tler, who was among the first to locate in the OTlane 
tmiber. It was a good sized, commodious house for a fron- 
tier settler, and all about bespoke neatness and respecta- 
bility. Several of the neighbors were assembled to witness 
the ceremony. Angeline introduced me to them all, for she 
had made the acquaintance of nearly all of the settlers for 
miles around. She had given me no description of the 
bride or groom, only that they knew nothing of what is 
called society but had only associated with frontier life, and 
that the bride's family belonged to the Society of Friends, 
and so I must expect to see everything plain — A^ery plain. 
As my family belonged to that society and I had been 
brought up under its teachings, I was glad to learn that I 



ANOTHER WEDDING- IN RURAL LIFE. 33 

should meet some of that faith which m}?- mother so much 
loved, out on this remote frontier. 

Angeline had already told them of my antecedents in this 
regard, and doubtless this had its influence in the selection 
which was made of the officiating officer, for the Friends 
will tolerate a marriage ceremony performed l)y a civil 
magistrate, while they can not, with a clear conscience, be 
present at one celebrated by a preacher of another denomi- 
nation. 

The bride was young, and the groom was not many years 
her senior. She was quite plain looking, but he was one of 
the handsomest young men I ever saw. His was not an 
effeminate, delicate beaut}^ but a manly, sturdy beauty, if 
that term be proper when speaking of one of medium size, 
yet of a powerful build, uniform features, a frank, open and 
winning countenance, toward whom one felt oneself drawn 
as if by a cord of friendship, not to say admiration, at first 
sight. He was a decided brunette, but this rather added to 
his manly beauty. I soon learned that he was as un- 
acquainted with the ways of the world as one who had 
spent his life on a farm well could be, and had never l)een 
in any town more than to pass through it, and had only as- 
sociated with those in similar conditions. He was of good 
natural parts and a clear intellect. 

He soon intimated to me that he would like to see me 
alone, so we took a walk out of doors, when he told me tliat 
he had never seen a wedding, and would like to be in- 
structed as to the mode of proceeding and what he was ex- 
pected to do. I then rehearsed to him the order of the 
ceremony to its conclusion, that he would have nothing to 
do but to assent to the questions which I should ask him, 
and to join right hands with the lady. That at the con- 
clusion of the ceremony I should direct him to salute his 
bride, which he must do as an evidence that he recognized 
her as his lawful wife; this meant that he should kiss her 
then and there. 

In the meantime Angeline had been getting the bride 
3 



34 EARLY BENCH AND BAR OF ILLINOIS. 

readv for the dread event. She, too, had never witnessed a 
wedding and knew nothing of its proceeding, but had some 
idea of its consequences. 

The bridesmaid gave her minute instructions as to how 
she shoukl act her part, but carefully abstained from any 
intimations to the concluding performance, about which I 
was so particular to instruct the groom. 

When we returned to the house the party seemed to be in 
waiting for us. The bride and bridesmaid were seated by 
themselves at one side of the room, while the company were 
seated as far away as they could get. As I saw every thing- 
was ready, I told the groom to take his place at the right 
hand of the bride, who, Avith the bridesmaid, rose to her 
feet in good order. She was dressed in white muslin, as was 
befitting, but the pattern of the wedding garment was very 
domestic and unique. In short, it was precisely that of a 
lady's nightgown with a yoke at the top and a most elab- 
orate skirt and large sleeves. This Angoline had gathered 
around the waist with a broad, red ribbon, which I think 
she had brought along for the purpose, as a sort of 
wedtling present, for I afterward learned that she had 
planned that wedding costume to suit her own fancy, or, I 
may say, freak. It was in the main well adapted to tlie 
plain and sim])le taste of the Friends, though the red belt 
and big bow in front were a reluctant concession to the 
vanities of the world. The hair of each of the ladies was 
disposed of in the plainest possible way and without the 
least ornament, and I, who had in early life been taught to 
admire plainness in everything, thought they really looked 
beautiful. 

I placed myself in the space in front of the bridal party 
and then asked the company to arise. I proceeded to de- 
liver a lecture upon the solemnity of the occasion and the 
great responsibilities wdiicli these parties were about to 
assume and how they should bear themselves toward each 
other in order to insure the greatest amount of domestic 
happiness, and all of that. During this delivery I tried to 



ANOTHER WEDDING IN RURAL LIFE. 35 

imagine myself a person of fift}', who knew well what he 
was talking about, instead of a young squire of twenty- 
three. 

I knew Miss Talcott was all the while trying to catch my 
eye so that by some ludicrous or grotesque look or expres- 
sion of countenance she could make me break down or 
make me laugh, but I refused to gratify that desire, and 
kept my eyes steadily fixed upon the two interested parties, 
who were a real study at that time. 

At the close of my lecture I proceeded with the ceremony 
proper, which I soon concluded and pronounced them man 
and wife, Avhen I directed the groom to salute his bride. 
As this was the part which he had no doubt most held in 
expectation, he made a fierce grab at his new made wife 
and attempted to execute the order. This ^vas entirely 
unexpected by her, and as she probably had no idea of the 
meaning of the direction which I had given, she, no doubt, 
thounjht the voung man had lost his mental balance as she 
had nearly done herself; she rushed away from the supposed 
madman in real terror and actually fought back in a cat- 
like manner. But he was equal to the occasion, and fol- 
lowed her up with such manly vigor, quite to the corner of 
the room, to which she retreated, that by superior strength, 
he accomplished his purpose with such a smack that it could 
have been heard out of doors. 

When she was released from the embrace of her stalwart 
husband, she had nearly fainted, but Angeline came to her 
support and assured her that it was all right and a neces- 
sary part of the ceremony v»diich she had unfortunately 
neglected to explain to her. It took some time, however, 
to reconcile her to having been kissed by a man in so pul)lic 
a wa}", and Angeline said she much doubted whether he had 
ever kissed her before in his life. 

This rumiras was enjoyed by the mischievous bridesmaid 
be3'ond measure, and she could hardly refrain from laugh- 
ing outright and boisterously at the ludicrous figure which 
the scene presented. Her plans had worked to a charm and 



36 EAELY BENCH AND BAR OF ILLINOIS. 

just as the ingenious girl had hoped. Most of the company 
stared upon the scene as if a cataclysm was actually taking 
place, though a few plainly understood and enjoyed it. 

After this funny episode had terminated and Angeline 
had got the parties back to their places, though it was dif- 
ficult to make the timid bride understand that all was not 
yet over, I stepped up to the married couple and shook their 
hands and warmly congratulated them on the happy change 
which had now taken place in their life history, though I 
doubt if the abashed girl understood a word I said; but the 
groom evidently enjoyed the situation in a calm and confi- 
dent manner. I was stubbornly blind and deaf to all the 
winks and nods of the roguish bridesmaid to go further and 
kiss the bride myself. I felt it would have been a cruelty to 
have further embarrassed the timid creature, especially as I 
felt sure that Angaline would have assured all the rest 
that it was the proper thing for each one to do the same 
thing. 

AVlien I had turned away leaving half of the programme 
unexecuted, the bridesmaid hastened up to the father and 
mother of the bride and by mere force rushed them up to 
the wedded pair to kiss and congratulate their daughter, 
and assuring the good lady that it would be a clear slight 
if she should omit that mark of respect for her son-in-law. 
Her confident impetuosity carried her point and the young 
man took the salute of his new mamma, if not with a hearty 
relish, at least with a benign resignation. The father kissed 
his daughter Avith an affectionate tenderness which plainly 
bespoke the depth of the love he felt for her, and she received 
it as if it was a daily occurrence, and carried a blessing with 
it. All efforts to get the rest of the company to follow 
up the assault proved abortive, and soon the order of the 
gathering was broken up. Then vre did our best to inspire 
a lively mood and not entirely without success. I talked 
Avith all of the oldest people in the room on such subjects 
as I thought would most interest them, and it was not diffi- 
cult to get on free and easy terms with them all. 



ANOTHER WEDDING IN RURAL LIFE. 3/ 

Angclino knew them nearly all, and lier kind lierirt and 
social disposition were well appreciated wherever she went. 
Indeed, she had become a sort of oracle among them. She 
was a favorite among all classes. 

At length some plain but excellent refreshments were set 
before us, including chickens and some coffee, well brewed, 
Avhich Vv' ere disposed of with the celerity peculiar to frontier 
life. 

13y ton o'clock all were gone but ourselves. Angeline 
said she must stand by her friend, the bride, till the last, 
and she did so. We then took our leave and left that iimo- 
cent and amiable family to their quiet and peaceful life. 

Yie had scarcely got out of hearing of the house when 
my companion became convulsed with laughter, and she 
made the forest ring with her merry peals. She rehearsed 
over and over the scene which she had, in fact, created, and 
pointed out the ludicrous parts, laughing to the echo at each. 

Angeline was fond of fun and fertile in resources to create 
it, but kind of heart and sympathetic. If her practical 
jokes caused temporary pain or annoyance, she managed 
afterward to obliterate their memory by kind and generous 
acts, in which she delighted even more than in her merry- 
makino;. 

More than fifty-three years have now elapsed since the 
events which I have related occurred. It would be interest- 
ing to know how many who witnessed them are still left to 
rememljer them. Many years have elapsed since the amiable 
girl, who was then my companion, passed away, mournetl 
by a husband and a large circle of appreciative relatives and 
friends. But where are the parties most interested in what 
took place on that, to them, memorable evening ? Have thev 
been spared to celebrate their golden wedding, surrounded 
by descendants as virtuous and as worthy as they were 
themselves ? I have never seen them since, and have now 
forgotten their names, so that it would be difficult to hunt 
them up, even if living; so that I may not hope even to 
meet them again; and yet I never married a couple who 
really interested me more. 



YII. 

CIRCUIT SCENES. 
I. 

THE FIRST TEEM OF CIRCUIT COURT IN COOK COUNTY FIRST TETAL 

FOR MURDER IN COOK COUNTY DEFENDS A THIEF IN WILL 

COUNTY FIRST TRIAL IN KANE COUNTY. 

In the first paper of this series, I have stated how it 
occurred that I prosecuted before the examining magistrate 
the first case that was ever entered npon the docivct of the 
Circuit Court of Cook County, and in the second paper I have 
related how it liap])ened that I was retained in the first civil 
case, which was marked No. 2, wdiich ever found a place 
upon that same docket. 

The first term of the Circuit Court of this couuty was 
presided over by Judge Young, and was held on the Ittth 
day of May, 1833. By the act of February 16, 1831, Cook 
county w^as placed in the fifth judicial circuit, and by 
another act of the same date, the times for holding courts 
in Cook county were fixed for the fourth Monday in April 
and second Monday in September; but as there was no busi- 
ness to be transacted, either civil or criminal, no circuit 
courts were organized in this county in that year, nor until 
the May term, 1834, Avhen, as before stated, the first court 
was organized. Although my two cases Avere entered upon 
the docket previous to the first day of October, 1833, w^hen 
the court should have been organized, Judge Young did not 
appear, and so no court was then held. 

I am aware that it has been claimed that an earlier court 

(38) 



CIRCUIT SCENES. 39 

liail been held in Cook county, but this impression, no 
doubt, has arisen from the fact that the hiws lixed the times 
for holding the courts in Cook county before that date; but 
at none of these times was the court held, for the simple and 
sufficient reason that there was no business for it to do until 
the October term, 1833, when Judge Young did not appear 
to hold the court. 

After the grand jury was impaneled at this May term, 
and had been charged by Judge Ford, who was then state's 
attorney for the fifth circuit, they retired. It was at that 
time very common for the presiding judge to call upon the 
state's attorney to charge a grand jury, and it was not 
uncommon for him to call upon some member of the bar to 
perform that office. Indeed, it was sometimes the case that 
a lawj^er of note, when first attending a court, gladly 
accepted such a position as a means of introducing himself to 
a new community, and in such cases the charge was sure to 
l^e an elaborate one, able and to the point. I do not 
i-emember that any indictments were returned by that grand 
jury, except against the young man whom I had prosecuted 
for stealing the Bellows Falls money, and as he failed to 
appear (as it was probably intended that he should do 
Avhen the bail was taken), I am very confident that no 
criminal trial took place at that term. 

The first petit jury ever impaneled in that court was to 
try ni}'- attachment case, of which I have previously s])okeu, 
and in which I was beaten by Sjiring, and as I think he 
was right, and as I felt all the while a self-reproach for the 
manner in which it came to my hands, I felt a relief rather 
than chagrin at the result, altliough I made the very best 
fight I could, and tried liard to get a verdict against the 
weight of evidence. Thus it fell to my lot to conduct the 
first jury case that was ever tried in the Circuit Court of 
Cook County. 

At the same term I had a liabeas corpus case, of which 
I presume the State courts would, at this time, decline to 
take jurisdiction. It was against the commandant at Fort 



40 EARLY BENCH AND BAR OF ILLINOIS. 

Dearl3orn for the release and discharge of a soldier under 
his command, on the ground that he was under age when 
he enlisted, and as his father had not given his consent as 
the law required. 

I found precedents in a Digest of the New York Eeports 
where the State courts had exercised that jurisdiction, and 
indeed very little opposition to my proceeding was made 
on that point, and Judge Young sustained his jurisdiction. 
At that time the State courts claimed jurisdiction in nearly 
all cases where it was not vested exclusively in the Federal 
courts, and without this citizens would have often been 
subjected to great inconvenience and expense by being com- 
pelled to resort to the Federal courts, generally at a great 
distance away. In this case it would have been equivalent 
to a denial of justice to compel this boy to go to Judge 
Pope at Springfield to get the vrrit, and compel him to go 
there for the trial. 

Upon the trial I proved by a witness who knew him 
from childhood that he was under the age of eighteen years, 
which was also clearly manifest from his appearance, but I 
did not prove conclusively that his father did not consent 
to his enlistment, nor did the commandant produce a particle 
of evidence showing such consent had been given, and upon 
this condition of the testimony the case was submitted to 
the court. 

I arffued it to a most ridiculous length before the court, 
and, no doubt, said all that could have been said, and a good 
deal more than could be well said, and the court listened ■ 
to me for seven hours without the least evidence of im- 
patience, and then decided the case against me. The only 
point which I now remember, or which was probably 
worth remembering in my argument, "was, that as I had 
proved the infancy of my client, it was for the Government 
to show, as a condition precedent to a legal enlistment, that 
his father or guardian had given his consent to the enlist- 
ment, which had not been done. While, on the other side, 
it was contended that it must be presumed that the enlist- 



CIRCUIT SCENES. 41 

ing officer had done his duty, and had received the parental 
assent before he would accept the enlistment. Ford argued 
the case for the United States. 

The court adjourned for dinner durin^r the argument, and 
when I saw the judge going off with the commandant to 
the fort for dinner, I confess I felt a little uneasy that some 
improper influence might be exerted upon the judicial mind, 
llidiculous as this unworthy thought was, I may find a very 
lame excuse for it in the burning solicitude which a young- 
lawyer feels in his case at the very commencement of his 
career, for no purer or more upright man ever sat upon the 
judicial bench than Judge Young. 

In the month of June, 1834, an Irish laborer in a drunken 
fit went home and finding something wrong in his domestic 
relations, perhaps because his supper was not to suit him, he 
manifested his dissatisfaction by giving his wife a beating, 
and, not being in a condition to discreetly measure the force 
he employed, she died from its effects. An autopsy was 
held upon her remains, conducted by Dr. Temple, assisted 
by Dr. Kimberley, Dr. Harmon, and several other local phy- 
sicians, and they reported that death had ensued from the 
blows inflicted by her husband, and the coroner's jury held 
him to answer for murder; this was the first autopsy ever 
held in Cook county, so far as I could learn. I was applied 
to, to defend him. I was convinced that the quo animowns 
wanting to constitute the crime of murder, and that the true 
line of defense was to make the homicide a simple man- 
slaughter, and addressed myself to the preparation of the 
case upon that line. 

Sickness prevented me from attending the October term 
of the court, which was held on the first day of October, 
1834, Judge Young presiding, so that the entire defense fell 
upon my ])artner, Mr. Collins, who adopted the same line of 
defense which I had fixed upon and carried it further than 
I had hoped to. The indictment ^vas for murder, and Mr, 
Ford, the state's attorney, being convinced that he could not 
sustain that charge, asked for a conviction for manslaughter 



42 EARLY BENCH AND BAR OF ILLINOIS. 

and for a severe punishment. Mi*. Collins took the Ijold 
ground that he could not bo convicted of manslaughter 
under that indictment, but that the jury must convict him 
of murder or acquit him altogether. This, at first sight, 
might seem a little dangerous, for it could not be questioned 
that a brutal homicide had been committed without the least 
justification, and there Avas danger that they might convict 
him of murder rather than to let him escape altogether; but 
this vras not so dangerous a course as would at first appear, 
for had they done so, there "was no doubt that the court 
would have granted a new trial, and thus have saved him 
from capital punishment, 

Collins urged his position with such persistency and 
apparent confidence that he persuaded Judge Young to give 
the instruction which he asked, and thus secured the com- 
plete acquittal of our client. 

Kow, Judge Young was really a very good lawyer, but 
he manifestly had had no case which had required him to 
investigate that particular point of law which authorizes 
the conviction for a lower grade of offense, of the same 
class, under an indictment for a higher grade, as, for instance, 
manslaughter for murder, an assault with a deadly "weapon 
under an indictment for an assault with intent to commit 
murder, and the like. 

Mr. Collins' arguments were of such force as to create a 
doubt in the mind of the judge on this point of law, and he 
gave the prisoner' the benefit of the doubt. Such was the 
result of the first trial for murder in Cook county. 

It also liappened that I tried the first jury case ever tried 
in AYill county. 

1 had been retained to defend a man for stealing a red 
overcoat from Tuttle King, who at that time kept a cloth- 
ing store in Chicago. 

A violent prejudice seemed to exist in Chicago against 
thieves and counterfeiters, who had become unpleasantly 
numerous within the last few years, so that it seemed to me, 
as I often expressed the opinion, that the juries here were 



CIRCUIT SCENES. 43 

SO prejudiced that to read to them an indictment was enough 
to insure conviction of the prisoner; that they seemed to 
regard an indictment which had been found by a grand 
jury as very truth, as if it had been found in one of the 
gospels. Indeed, not onh" the juries, but the courts seemed 
to have a settled prejudice against persons indicted for that 
class of crimes, and the only chance to get them off was 
upon some technical point, as to quash the indictment or to 
find a variance between the counterfeited instrument offered 
in evidence, and the copy set forth in the indictment, and 
indeed this did not always avail, though the points Avere 
well taken. 

This is illustrated in the case of Quigley v. The People, 
3rd Scam. There Quigley had been indicted for passing a 
counterfeit bank bill, which purported to be set out in hcec 
verVa in the indictment. There it was set out to be payable 
to B. Ayrn, or bearer. On the trial the counterfeit bill 
offered in evidence was payable to B. Aymor, or bearer, and 
I objected to the admission of this bill in evidence because 
of this variance. Most undoubtedly this objection was well 
taken, for the law is well settled that the least variance 
between the copy set out in the indictment is fatal to the 
admission of the instrument in evidence. But Judge Pear- 
son evidently thought that my man was guilty anyhow, and 
that he Avould give him a taste of the penitentiary, at least 
until his judgment could be reversed by the Supreme Court, 
so he admitted the instrument in proof. My man was con- 
victed and sent to the penitentiary. The error was so pal- 
pable that I determined to take the case up and have it 
reversed, but Quigley said I need not put myself to that 
trouble, for he could get out of the penitentiary by his own 
efforts quicker than I could get him out by reversing the 
judgment in the Supreme Court; but I begged him to stay 
there until I could take the matter up, and get it reversed, 
which would only require a few months, and which he re- 
luctantly promised to do. In my brief in the Supreme 
Court I made two or three unimportant points, which I did 



44 EARLY BENCH AND BAR OF ILLINOIS. 

not expect to sustain, beside the vital one of variance. To 
make this point sure I had been very careful to see that the 
copy of the indictment as set out in the record was made so 
exact as to leave no question on that point, and managed to 
have the original bill ollered in evidence pasted into the 
record in its proper place, so that there could be no mistake 
about that. In arguing the case I committed the fatal 
mistake of making several points which I did not ex])ect to 
sustain, but dealt mostly with the evidence, which I did 
expect to sustain, for I knew the law was with me on that 
])oint. 

In due time I received a notice from the clerk of the 
court that the judgment in Quigley'scase had been affirmed, 
whicli set me almost wild with astonishment, and when I re- 
ceived a copy of the opinion written by Judge Smith my 
astonishment was in no whit diminished by observing that 
he had taken up and discussed and decided the unimportant 
points, which I had thrown in as a sort of make-weight, 
against me, and so affirmed the judgment without taking 
the least notice of the question of variance more than as if 
it had not been in the record at all. 

To say the least, I thought this a very careless way of ex- 
amining and disposing of a record, or disposing of a point 
which could not be got over, if it had been noticed. 

I was obliged to inform Quigley of the decision, and that 
I could do no more for him. 

In a very short time afterward I learned that a ]:>risoner 
named Quigley had escaped from the penitentiary, and had 
taken five other prisoners with him, and they were never 
heard of afterward from the prison authorities; but I did 
learn from another source, somehow, that when he had got 
his friends out with him he dare not leave them to them- 
selves, but took charge of them till he landed them in the 
middle of Kentucky, where he left them. They traveled 
only nights, sustaining themselves on millv from the farmers' 
coAvs on the way, and hiding in the bottoms duriug the day- 
time. 



CIRCUIT SCENES. 45 

Now, it scoiiis to me I ^Ya.s riglit in my conclusion that 
there Avas a strong prejudice existing against tliat ckiss of 
citizens, not only on the part of jurors in Chicago, but on 
the part of the courts up to the highest in the State, by 
reason of which they could not feel assured that they would 
have the law fairly administered to them, and when that is 
the case there must always be great liability that innocent 
persons will be convicted of crime. 

Hence it was that I procured a change of venue to ~\Yill 
county, in Fox's case, and to try him, the first jury ever 
called m the Circuit Court of Will County was impaneled. 

There was present in court Cj'rus Walker, a very distin- 
guished lawyer from Schuyler county, who had come up 
to make acquaintances and attend court in the northern 
part of the State. I invited him to take a seat with me, and 
assist in the trial of Fox's case, and thus introduce himself 
there. He did so, and took a leading part in the trial. 

I told him we had a pretty bad case, and so the evidence 
on the part of the people proved it to be. Mr. King identi- 
fied the red overcoat, which had been stolen, and also a large 
black overcoat, which had been found on him. The state's 
attorney proved that Avhen the prisoner was arrested on the 
street he had on the red overcoat and over it the black one, 
Avhich did not quite cover the red coat at the ends of the 
sleeves, and by this carelessness on his part he was detected, 
and at the time he had explained he had bought the over- 
coat of somebody else; in short, this was the State's case. 
To meet this we produced witnesses who proved that it was 
frequently so cold in Chicago in July (the time when the 
arrest was made), that it was necessary to wear two over- 
coats to be comfortable, and this was the only defense we 
could present. 

AVe argued the case to the jury at considerable length, 
and AYalker especially declaimed upon the climate of Chicago, 
and commented upon the prudence of the prisoner in having 
bought two overcoats to protect liimself, and warmly com- 
mended his example, which should be strictly imitated by 
every one who had a regard for his health or comfort. 



46 EARLY BENCH AND BAR OF ILLINOIS. 

Xow, this argument to a jiiiy of Chicagoaus would have 
been sure to have sent our man to the penitentiary at once 
for a long term of years, but a country jury, who felt no 
obligation in defending the reputation of the place as a 
desirable summer resort, some of whom had perhaps ex- 
perienced the chilling effects of a gale sweeping down from 
the north, accepted the explanation as satisfactory, and so 
acquitted the prisoner. 

ISTow, the only thing which my client had to pay me for 
my fee was a very fine two-year old colt, which was at 
Brown's country tavern, which was about half way between 
Joliet and Chicago, and, as we all returned to Chicago in the 
stage, when we stopped for dinner at Brown's, Fox turned 
over the colt to me. I left it there for a few days until I 
could send for it, and when I did send for it a week later, 
Mr. Brown said that the thief had come back and claimed 
the colt, and was about to take it away, stating that he had 
settled my fee in some other way; but Mr. Brown refused 
to let him take it, and so I got the colt at last. 

When I heard this, I confess that my confidence in his 
statement that he had purchased the coat to keep him com- 
fortable in Chicago in July, was rudely shaken. 

It happened also that I tried the case which was submit- 
ted to the first petit jury ever impaneled in Kane county. 
It was Wilson v. Wilson. 

One day while at work in my office a man and his wife, 
way-worn and dusty, entered, and sought my professional 
services for the redress of a grievance which they had suf- 
fered. Both were rather undersized, under thirty jenTs of 
age, very poorly clad, and were what may be justly termed 
simple people, without force of will or energy. Their story 
was that they had come from Buffalo on a schooner, which 
a week before had been wrecked about two miles south of 
this city; they and the crew had been all landed safely, 
after a hard night's experience on the wreck, but they had 
lost everj^thing except what was on their persons. The 
woman was evidently enciente, and pretty far advanced. 



CIRCUIT SCENES. 47 

After a day or two's stay in the town, they had started on 
foot for the country, and when in the prairie about two 
miles beyond Laughton's Crossing-, where Riverside now is, 
they had met a drove of horses from Schuyler county 
in this State, belonging to one AYilson, who was in charge, 
Avith several men with him. Wilson pretended to be a 
sheriff, and to have a warrant for their arrest, and did arrest 
them and detained them about half an hour in the prairie, 
but finall}^ left them, nearly frightened to death. 

After they had somewhat recovered from their fright, 
they turned back, and stopped at Laughton's house at the 
ford, and told their pitiable story. 

Laughton had been a client of mine, and they were stren- 
uously advised to come back to Chicago and state their case 
to me, with the confident assurance that I would see that 
justice was done for the outrage. This they did, and hence 
their appearance in my office as above stated. I immedi- 
ately took means in a quiet way to obtain the name of the 
owner of the horses, and leader of the gang, who was yet in 
town, and before night he was under bail to appear at the 
next term of the Circuit Court to answer to an action of 
trespass and false imprisonment. My client's names were 
Wilson, and that was the name of the defendant. 

Mr. Scammon was retained for the defense. He succeeded 
in getting the case continued for one or two terms, and then 
took a change of venue to Kane county, on an affidavit 
showing that the people of Cook county were prejudiced 
iigainst his client so that he could not have a fair trial here. 

Xo doubt there Avas considerable prejudice against him 
in the town of Chicago, for 1 had taken an interest in 
my clients more than professional, and had taken pains to 
enable them to get a support which they so much needed. 

Dr. Brainerd and 1 had been students in Rome, ]S". Y., at 
the same time, and one day in the fall of 1835 he rode up to 
my office in Chicago on an Indian pony, and stated that he 
had come here for the purpose of jiracticing his profession. 
He was about as impecunious as I had been on my first 



4S EARLY BENCH AND BAR OF ILLINOIS. 

arrival hero, and I at once offered him desk-room in my 
office, and assnred him that I woukl do all I could to intro- 
duce him where it would do the most good. He went out 
aud sold his pony, put up a sign alongside of mine, and this 
was the commencement of the career of one of the most 
distinguished surgeons and physicians who have cast lustre 
on the medical profession of Chicago, and the founder of 
Eush Medical College. 

He was in the office at the time Wilson first called upon 
me for advice, and as it was evident that a doctor woukl 
soon be wanted as well as a lawyer, I introduced him to 
them, and he took an immediate interest in the case. Indeed, 
it was an opportunity not to be neglected. I had already 
introduced the doctor to Mrs. John H. Kinzie, and several 
other of the leading families on the North Side, and he in- 
terested himself among the ladies, whose acquaintance ho 
had made, telling the sad story of the poor ca-staways, and 
it was not long before he had his patient comfortably housed 
in a log cabin, and induced a number of lady acquaintances 
to call upon her to see Vfhat they could do for her comfort, 
and when the time arrived she had been well provided with 
a bed, and an abundance of comfortable clothing, and many 
of the ladies seemed to vie with each other in calling, and 
brin'^ing provisions and delicacies, to an extent which wealth 
could hardly have purchased in Chicago at that time. At the 
proper time Dr. Brainerd attended to the case with a skill and 
assiduity which at once established him in a respectable prac- 
tice, and no one knew better than he how to cultivate it in a 
proper and jn-ofessional way. It may be well appreciated that 
in the little town of Chicago, as it was, say fifty -five years ago. 
a case in which so many ladies had felt an interest would 
be pretty well understood by a large proportion of the peo- 
ple, and if the jurv' were to be called from the village alone, 
I think it v^ould have been difficult to have got one clear 
of prejudice, and indeed, Scammon might have been well 
justified in taking the change of venue. 

John Pearson had been elected judge of this circuit at the 
session of the Legislature (1830-37), and he opened his first 



CIRCUIT SCENES. 49 

court at Geneva, on June 19, 1837, and the first case on the 
ilocket was that of Wilson v. Wilson, change of venue from 
Cook county. I had found a witness, who from a distance of 
half a mile or more had seen the plaintiffs walking on the 
road in tlie prairie, when they were met by the defendant 
Avith a drove of horses; that the defendant with several 
other men stopped and dismounted from their horses and 
seemed to surround the plaintiffs, and that after half an 
hour had elapsed they remounted their horses, gathered up 
the drove, and proceeded with them toward Chicago, and 
that after the ex]>iration of another half hour the plaint- 
iffs had returned along the road to Laughton's house, when 
they appeared to be in a much demoralized and frightened 
condition. At that time the parties to a suit, or those who 
had even a remote interest in the result, could not be 
allowed, or forced to testify, so that what actually took 
place at the time of the stoppage in the prairie could not 
be explained to the jury, but I had an undoubted right to 
draw the most unfavorable inferences against the defend- 
ants, which could be justified from the facts proved, and I 
made the most of this right. It is easy to imagine the pic- 
ture which I drew of the outrage and suffering of these 
\)ooY people, out there in the lonely prairie, at the hands of 
these beastly and lecherous ruffians, who were as destitute 
of sympathy and compassion as they were of decency and 
morality. 

I also took out with me Drs. Brainerd and Goodhue, and 
proved by them the dangar to the woman incurred b}'' such 
outrages as that complained of. 

]^o witnesses were introduced for the defendants. My 
intention was to make a short opening of the case a^nd to 
make my great effort in my closing speech, but as I arose I 
cast my eye toward ]\fr. Scammon and saw at once that he 
had made up his mind that if I only made a formal opening 
he intended to submit the case without further argument, so 
I instantly changed my ])urpose, and went at it in earnest, 
going over the whole ground, and insisted upon a verdict 



50 EARLY BENCH AND BAR OF ILLINOIS. 

■which would not only compensate them for the injury done 
them as far as that could be done with money, but would 
also teach other evil-doers to avoid this part of the State at 
least, when they proposed to commit such crimes. 

This forced Scammon to address the jury in the interest 
of his clients. He could make but little headway in his 
attempt to maintain that I had not proved a technical arrest 
and trespass, but loudly and earnestly insisted that the 
inferences which I drew as to the extent of the outrage com- 
mitted were entirel}^ gratuitous and not true in fact. He 
hardly asked for an acquittal, but his great effort was for a 
nominal, or at least, a small verdict. 

The jury was out but a little while, when they returned 
with a verdict of " guilty," and assessing the plaintiff's dam- 
ages at $4,166.66, which amount at that time was considered 
simply enormous, at lea"st in this part of the State, for a tres- 
pass to the person. 

Scammon made a motion for a new trial, which was 
promptly overruled, and judgment entered for that amount. 

So it was that I tried the first jury cases ever tried in the 
Counties of Cook, AVill and Kane. 

II. 

PKACTICE IX EAKLY DAYS FOLLOWIXG THE CIRCUIT ITINER- 
ANCY INCIDENTS. 

In the olden time in Illinois, say prior to 1850, the circuit 
system of practice was in vogue in legal life, and ])resented 
incidents and peculiarities which are entirely wanting since 
the country has become more populous. With the growth 
of the cities and towns, resident lawyers of ability and learn- 
ing are found in every county seat at least, who recpiire no 
assistance in the conduct of the most important cases. It 
was not so in the early days. Then the few local lawj^ers 
who had settled in the county towns were generally new 
comers, without experience and self-confidence, and both 
they and their clients depended largely on the assistance 



CIRCUIT SCENES. 51 

from abroad, especially at the trials of causes. This state 
of things necessitated a class of itinerant lawyers whose 
ability and experience had secured to them reputations co- 
extensive with their judicial circuits, and, in many cases, 
throughout the State. These were few at hrst, but with the 
increase of po])ulation and business their numbers increased, 
Avhile their theaters of action became more circumscribed. 

At first they, with the judge, traveled on horseback in a 
cavalcade across the prairies from one county seat to another, 
over stretches from tifty to one hundred miles, swimming 
the streams when necessary. At night they would put up 
at log cabins in the borders of the groves, where thev fre- 
quently made a jolly night of it. This was a perfect school 
for story telling, m which Mr. Lincoln Ijecame so proficient. 
It was, indeed, a jolly life on the border, the tendency of 
which was to soften the asperities and to quicken the sensi- 
bility of human nature. Here was unselfishness cultivated, 
and kindliness promoted, as in no other school of which I 
liave knowledge. 

This circuit practice required a quickness of thought and 
a rapidity of action nowhere else requisite in professional 
practice. The lawyer would, perhaps, scarcely alight from 
his horse when he would be surrounded by two or three 
clients requiring his services. Each would state his case in 
turn. One would require a bill in chancery to be drawn. 
Another an. answer to be prepared. A third a string of 
special pleas, and for a fourth a demurrer must be interposed, 
and so on, and all of this must be done bgfore the opening of 
the court the next morning. Then perhaps he would be 
called on to assist in or to conduct a trial of which he had 
never heard before, just as the jury was about to be called, 
when he must learn his case as the trial i)rogressed. This 
requires one to think cpiickly and to make no mistakes, and 
to act promptly to take advantage of the mistakes of the 
adversary, who was probably similarly situated. It is sur- 
prising how rapidly such practice qualifies one to meet such 
emerirencies. 



52 EARLY BENCH AND BAR OF ILLINOIS. 

Those early settlers had not much money to pa}'" lawyers' 
fees, but they would generally pay something and give 
notes for the balance, or, perhaps, turn out a horse or a colt 
in payment. These would probably serve to pay tavern 
bills, and a horse or two might be led home or sold on the 
way. Fee notes formed a sort of currency at a county seat 
about court time and could frequently be sold* to a merchant 
or the landlord at a moderate discount. A town lot or an 
eighty of land would sometimes be taken for a fee, espe- 
cially when it had been a part of the subject-matter of the 
litigation. 

The southern part of this State was first settled, and so 
leg-al tribunals were there first established. The first set- 
tiers were mostly immigrants from Kentucky and Tennes- 
see, with some from Virginia and the Carolinas, though 
many were from the Eastern States. The lawyers from the 
Southern States were in the majority, while the Eastern 
States furnished many able lawyers as well. Among the 
former I may mention S. T. Logan, Judge Young, Arche 
AVilliams, O. H. Browning, Thomas Ford, J. T. Stewart, J. 
J. Harding, Col. Snyder, and many others; while among 
those from the East I may name Lockwood, Breese, Baker, 
Mills, Kane and others. All of these men would have 
ranked high at any bar, and were thoroughly read in the fun- 
damental principles of the law. Later came Lincoln, Davis, 
Treat, Douglas and Trumbull, all able men. It may be 
remembered that all were young men then and fond of 
amusements and pastimes and practical jokes, and after the 
pressure of the first few days of the court was over, they 
spent their evenings, and I may say nights, in hilarity, 
which was at times, no doubt, boisterous. For instance, 
Benedict, who had a fog-horn of a voice, which he used 
most recklessly when excited, and who had been roaring to 
a jury at an evening session, was met when he came to the 
tavern, by the sheriff, with a bench warrant, on an indict- 
ment " for making loud and unusual noises in the night 
time," and soon a court was organized and he was put upon 



CIRCUIT SCENES. 53 

liis trial, and before inidiiight he was convicted and sen- 
tenced to repeat the offense in arguing a motion for a new 
trial, or to ]iay a heavy line, upon the ground that two 
affirmatives would make a negative, or that the hair of the 
same dog Avould cure the bite. It was said that he fairly 
outdid himself in that effort, so that he aroused the whole 
town from their slumbers, and he came near being fined for 
overdoing it. 

Judge Young was a good performer on the fiddle and 
thus contributed much to the hilarity of circuit life. As 
the settlements extended into the northern ])art of the State, 
this circuit system of practice came with them, and for a 
time prevailed in all of its pristine beauty, except in Chicago 
alone, where the visits from foreign lawyers were only made 
upon special retainers and in important cases. I saw Mr. 
Lincoln here several times engaged in important cases. 

Under the old circuit system, when the State was divided 
into five circuits, and a circuit judge was elected for each, 
John York Sawyer was judge of the Vandalia circuit. He 
was not a tall, nor a very stout man, but carried in front 
about the largest bay window for his size I ever saw. He 
presided in a very suave way, but with a fixed determina- 
tion to do ample justice and without a very scrupulous 
regard to forms, es])ecially if those forms did not suit him 
at the time. It was related to me that on one occasion 
Hubbard, who had a considerable practice, argued some 
question before him at great length and with great confi- 
dence, and concluded Avith an air of assurance which de- 
clared that he knew he could not be beaten this time. The 
judge in his decision praised Hubbard's argument and fol- 
lowed it all the way through, especially emphasizing the 
weakest ])arts of it, as if he was greatly impressed with 
them, and then decided against him without stating a single 
reason for the decision. This enraged Hubbard terribly, 
and he could hardly wait till court adjourned and the judge 
had retired before he gave vent to his indignation to the 
members of the bar and other by-standers, in terms forcible 



54 EARLY BENCH AND BAR OF ILLINOIS. 

if not elegant, and in conclusion he said : " I tell 3^ou, gen- 
tlemen, what I am going to do about it, and so you may 
prepare yourselves with smelling bottles or cover these 
streets with quick lime; I am going right now to hunt up 
that offensive mass of bloated humanity, and I will relieve 
his corpus of a peck of tadpoles the first slash." But he 
did not do it, and I was told that the facetious judge, when 
told of it, laughed heartily at Hubbard's rage, regarding it 
as an excellent joke. 

Another circuit scene, in which we may see how Judge 
Sawyer administered the law, may be given as it was 
told to me by Judge Ford, soon after I made his acquaint- 
ance, in 1834. 

At the time of which he spoke, horse thieves were pun- 
ished at the whipping post, and Ford always insisted that 
it was the most deferent punishment ever inflicted for the 
punishment of crime. He said he had often seen criminals 
receive a sentence of ten years or more in the penitentiary 
with apparent indifference, but he had never seen a man 
sentenced to be whipped who did not perceptibly wince, and 
that the most hardened would turn pale and shudder. 

A man who had been indicted for horse stealing, had re- 
tained General Turney to defend him. The general struggled 
hard for his client, but the proof was so clear that the task 
was hopeless, and the jury, after a short absence, returned a 
verdict of guilty. The general immediately entered a 
motion for a new trial and was about to proceed to argue 
it, when the dinner bell at the tavern hard by, where they 
all boarded, Avas heard loudly calling all to dinner. Judge 
Sawyer, as I have said, was a man with a verj^ ]irotrudent 
stomach, and he especially prized his dinner. The judge 
interrupted the counsel, saying : " General Turney, I hear 
the dinner bell now ring, so the court will adjourn till one 
o'clock, when I shall take pleasure to hear you on your 
motion for a new trial." So the court was adjourned till 
one o'clock, but before the judge left the bench he motioned 
the sheriff up to him, and in a determined whisper, said : 



CIRCUIT SCENES. 55 

" AVliile I am gone to dinner take that rascal out behind the 
court house and give him forty lashes, and mind you lay 
them on well, and tell him if he is ever caught in this 
county again you will give him twice as much." 

After the Avhipping the culprit was turned loose and was 
taken charge of by some of his friends, who washed him off 
and bathed his lacerated back with wliiskey, and dressed 
him, and when he had taken some dinner he hobbled dowm 
the street, and as he passed the court house he heard the 
general's loud voice and crossed over, and soon discovered 
he was earnestly pleading for a new trial in his case. This 
horrified him, and he rushed into the house and cried out, 
" For God's sake don't get a new trial. If they try me again 
they will convict me again, and then they will whip me to 
cleath." 

The general stood aghast for a moment and said, " What 
does all this mean 'i " With the utmost composure the judge 
replied: " Well, General Turney, I thought we would make 
sure of what we had got, so I ordered the sheriff to whip 
that rascal while we were at dinner, and I trust he has done 
so. But go on, general, with your argument, for I am in- 
clined to be with yoii. I think another whipping would do 
him good." 

III. 

TRIAL OF A MURDEREE. 

In tlie year 1S32 there lived in the bottoms of the San- 
gamon river a middle-aged, rough and savage man, whose 
disposition was quarrelsome, whose habits were intern j^erate, 
and whose means of livelihood were suspicious. In fact, his 
re])utation was bad. He lived in a small log cabin with a 
truck patch near by, which was grown up to weeds more 
than to vegetables, and he had a small field of corn sur- 
rounded by a slash fence, which was badl}'^ cultivated by 
his wife and children^of whom there were several — about 
as rough as himself. The children grew up wild and un- 



56 EARLY BENCH AND BAR OF ILLINOIS. 

kempt. He had an old vragon, a plow, one co\v and sereral 
young cattle growing up, and a small drove of hogs which 
ran in the bottoms and lived on mast. A few chickens 
scratched around the old log stable and a couple of hounds 
completed the inventory of the effects owned by the settler, 
if we add to it the inevitable long barreled rifle, by means 
of which most of the meat was supplied. This hopeful voter 
when in his cups in Springfield, picked a quarrel with a 
peaceable citizen and killed his man. He was indicted for 
the murder, and employed Gen. Adams, an old lawyer, who 
had not professedly quit practice, though most of his prac- 
tice had quit him. But he was still smart enough to look 
out for the main chance, so he drew up a bill of sale cover- 
ing every possible thing about the prisoner's place, except 
the wife and chddren, which was duly executed, and a few 
days before the trial he sent some men up, who brought 
away every movable thing which they could find — except 
the old bed and table, which were not worth bringing— the 
cow and the calves, the horse, the wagon and the plow, the 
hogs and the chicks. As the poor woman stood in the cabin 
door with her little brood of children gathered around her and 
saw everything driven away but the hounds, it is said that 
she actually shed tears; accustomed as she was to hardship 
and privation she now felt a desolation which she had never 
known before, and perhaps for the first time, a sigh of grief 
escaped her. 

Well, the trial came off and his counsel did the very best 
he could for his client. He pictured in eloquent terms to 
the jury, the wife and children mournfully bowed down in 
prayer for the deliverance of the husband and father, whose 
destinies were now placed in their hands. It was for them 
to say whether he should return a free man to gladden his 
humble home Avith his presence once more, or whether it 
should ever remain as one of desolation, without support, 
and without hope. 

The general's eloquence was of no avail; perhaps the jury 
had heard of the manner in which the genei'al had collected 



CIRCUIT SCENES. 07 

hir, fee, which must have tended to pluck the feathers from 
the sympathetic expressions poured forth in the counsel's 
eiJfort. 

The jury found the prisoner guilty and he was sentenced 
to be hanged. 

About that time the papers Vv'ere full of accounts of the 
marvelous pro})erties of electricity. It was said to l)e 
capable of actually resuscitating dead persons, and the doc- 
tors of Springfield determined to experiment on this suljject, 
and made arrangements with the sheriff to give them the 
body as soon as it should be cut down, that they might test 
the elRcacy of electricity in an attempt to restore the dead 
to life. The sheriff determi ned, however, that the test should 
be real and no humbug, so he kept the subject hanging for 
a ffood half hour. So soon as it was cut down it was hurried 
away to a doctor's office, Avhere the culprit's counsel, with 
several other lawyers, were invited to be present to witness 
the experiment. 

The subject was quickly stretched on a table, and the poles 
of a powerful galvanic battery were applied to various parts 
of the body. The eyelids were made to wink, arms and 
legs were made to strike and kick, though feebly, but the 
luno^s and heart obstinatelv refused to act, and finally the 
doctors had to admit that their efforts were as futile to 
restore the man's life as had been those of the lawyer to 
save it. The sheriff had done his job too well. It was then 
proposed to examine and see what had been the effect of the 
fatal noose upon the neck, so they went to work and removed 
the skin from the neck. 

During all of these operations Gen." Adams had been 
leaning on his cane looking upon this scene with a long and 
sorrowful face, for he was not accustomed to the scenes of 
the dissecting room, and near him stood Ben. Mills, one of 
the most eloquent and witt}' lawyers who ever ])racticed in 
Illinois. 

At length Adams turnetl to Mills, and said: 

'• Brother Mills, it is, indeed, a sad sight 16 see a fellow 



58 EARLY BENCH AND BAR OF ILLINOIS. 

mortal, who is made in the image of God, tlms miitihated 
and cut up as if lie were a brute beast." 

" Yes, yes," said Mills, " It does look pretty bad, no 
doubt, but for your consolation, brother Adams, I may say 
that it is ver}^ seldom that a lawyer has the pleasure of see- 
ing his client twice skinned." 

The old man gave a sudden twitch as if he had felt a 
bodkin stuck into him, and then slowly turned around, his 
eyes rolling as if in pain, and said: 

'' Brother Mills, if it is just the same to you, I would 
rather you would not say that any more." 

I tell the tale as it was told to me. 

IV. 

CIRCUIT COURT HELD BY THREE JUSTICES OF THE PEACE THE 

LEAD MINERS STORIES OF BENCH AND BAR. 

There is a small chapter of judicial history of Illinois, 
which it may be well to record in these later days lest it be 
entirely forgotten, and that is that a Circuit Court was once 
held by three justices of the peace. 

On the 27th of February, 1827, an act was passed organizing 
the county of Jo Daviess, and placing it in the first judicial 
circuit. In section 4 of that act this provision was made : 
'' In case the judge of the Circuit Court of said county can 
not attend at any regular term of said court, it shall be his 
duty to notify the clerk of said court of the same, who shall 
immediately, on receiving such information, notify all the 
justices of the peace of said county; and it shall be the duty 
of the justices of the peace, or any three of them on 
receiving such notice, to attend and hold said Circuit Court 
-;f -K- * (provided that when sitting they shall have the 
same jurisdiction as Circuit Courts, except capital cases). " 

The isolated condition of this county more than sixt}^ 
years ago, separated from the settled portions of the State 
by great distances, and the necessity for legal tribunals for 
settling disputes involving large pecuniary interests grow- 



CIRCUIT SCENES. 59 

ing- oiit of the lead mines which had been discovered and 
Avere then kxrgely wor]i;ed, no doubt suggested this necessity 
for some extraordinary provision to insure the holding of 
the Circuit Court, in case the judge of the first circuit 
should be unable to attend; and no doubt, though the emer- 
gency which gave rise to that provision of law ceased to 
exist, and went out of mind and was cpiite forgotten, so far 
as I have been able to discover, it has never been repealed; 
and if that be so, it is still the law, and the judge of that 
circuit might give the necessary notice of his inability to 
attend, and that court might still be held by three or more 
justices of the peace of that county. Placing the county 
in another circuit, and providing for a judge to hold the 
courts in that new circuit, could not have the effect to repeal 
this portion of the statute, any more than another portion 
which created the county of Jo Daviess. In pursuance of 
this law the first Circuit Court in Jo Daviess county was held 
by three justices of the peace. 

In order that I might be sure that my information on 
this point was correct I wrote to J. C. CXeill, Esq., clerk 
of the Circuit Court of that county, for information on the 
subject, and received from him the following reply: " Our 
records show that the first term of the Circuit Court in this 
county was begun and held on Monday, the second day of 
June, A. D. 1S2S. The judge of the circuit not appearing, 
and the justices having been notified, the following justices 
])resided: John Conley, Hugh R. Colter and Abner Field. 
The attorney-general not attending nor deputing any per- 
son to prosecute for him, the court appointed Jonathan H. 
Pugh to prosecute for him. At this term Thos. Bennett 
was foreman of the grand jury. The first judge who ap- 
pears to have presided here was Richard M. Young, at a 
term begun and held on Thursday, the eleventh day of May, 
1S29." 

When the tract of country north of the Illinois river, 
and especially the militar}^ tract, became settled up to a con- 
siderable extent, the necessities for legal tribunals made it 



60 EARLY BENCH AND BxVR OF ILLINOIS. 

imperativ^e that more judicial force should be brought into 
requisition than the four justices of the Supreme Court 
could afford, so, on the eighth of Januar}^, 1829, a law was 
passed providing for the election of a circuit judge, who 
should preside in the circuit to which he might be ap- 
pointed north of the Illinois river, and fixing his salary ac 
$750 a year. No law was ever passed expressly creating 
the fifth circuit, but it was inferentially created by the law, 
and was passed the 19th of January, 1829, which named 
tlie counties which would constitute the fifth circuit, of 
which Jo Daviess was one, and providing that Kichard M. 
Young should hold the courts in that circuit. 

Most of the lead seekers who constituted the population 
of Jo Daviess, went up the Mississippi river from the 
southern part of the State. Their practice was to go np in 
the spring and work at lead mining during the summer, and 
to go down the river in the fall and spend the winter in a 
warmer climate. This annual migration up and down the 
river, corresponded exactly with the habits of a fish found 
in the Mississippi, well known as sucker, and hence that 
appellation was a])plied to those migratory miners, and was 
soon thereafter a]iplied as a general name to the inhab- 
itants of the State. I am aware tliat some ])arties have 
sought to change the orthography of the word to " succor " as 
being more complimentary at least, but this is the origin of 
the word as given me when I first came to the State, fifty- 
five years ago, and I have no doubt of its truth. 

These justices of the peace, as well as the constables and" 
sheriff, were elected from among the miners. Many of 
these were Irishmen, whose enterprise pushed them where- 
ever hard work was to be done, and a reasonable reward for 
it was to be obtained. Even then, they were not averse to 
holding office, and so the sheriff and justices of the peace 
were all of that nationality, and were said to as well enjoy 
keeping the peace by breaking it, as in any other way. 
Disputes about mineral claims soon aro33, many of them 
involving large pecuniary amounts. These had to be set- 



CIRCUIT SCENES, 61 

tied bv legal tribunals as soon as they were establish c.l 
there, and so invited the presence of able lawyers. Among 
those practicing there when I came to the State I may men- 
tion Ben Mills, and James M. Strode, who was in command 
of the militia at Galena, in 1S^>'2, when martial law was 
there declare 1. 

As the time for holding the court ap])roached, it being 
understood that Judge Young would not be present to open 
the court, the justices of the peace who were to perform that 
duty, applied to Mr. Mills for information as to how they 
should proceed. This facetious gentleman gave them all 
necessary information as to the mode of ];roceeding, and 
especially he enjoined upon them to maintain the dignity of 
the court at all hazards, and especially to allow no one to 
address the court without special permission, or when called 
upon. This part of their duties was particularly dwelt upon, 
and above all others was treasured up in their memories. 

Among the other members of the bar present when the 
court was opened, was an Irish lawyer named Nagle. 
Being ambitious to be first to place his name upon the 
records of the court, so soon as that august tribunal was pro- 
claimed by the sheriff to be open, Nagle jumped to his feet 
and made some motion. The presiding justice at once ordered 
him to take his seat, and not to open his mouth again until 
his betters had spoken; that he must learn to respect the 
dignity of the court, and not to speak again until he was called 
upon. Xagle felt himself greatly outraged at Ijeing thus 
summarily sup])ressed, and with great animation declared : 
"It seems to me that your honor is damnal)]y impregnated 
with dignity this mornin'." The court was now more shocked 
than ever at this new affront to its dignity, and at once 
ordered the unlucky attorney to be hastened to jail, and 
there to remain until he learned respect to his betters, and 
subject to the further order of the court. The burly sheriff 
at once seized the unluck}" offender, and in spite of his 
uproarious protests hustled him off to the log jail, where he 
was told he would have to live on bread and water for an 



G2 EARLY BENCH AND BAR OF ILLINOIS. 

indefinite time, and a constable was ]")]aced in charge of tlie 
prisoner to see that he did not pull the jail down or crawl 
through some of the cracks. 

After this the business of the court went on with ^reat 
regularity. Mr. Mills, as the oldest member of the bar pres- 
ent, was first called upon to make himself heard, and then 
the other members of the bar according to their seniority. 

Mills appreciated that his crammings had been but too Avell 
relished, and he at once interested himself to get poor Xagle 
out of his scrape, which he found no easy task. In his name 
and on his behalf he made most abject apologies, and ex- 
pressed the greatest contrition, which JN'agle himself would, 
no doubt, have repudiated had he known of them at the 
time. He, however, did get him released after a day or 
two's confinement, and it was never heard after that, that 
the court had ever cause to complain of any disrespect to its 
dignity, when held by those justices of the peace. 

This was the relation as given me by Judge Young 
himself, as he heard it in Galena, when he held his first court 
there. He further said that after he had opened the court 
the lawyers got up one after the other and made their mo- 
tions, and the business proceeded in the usual quiet way. 
After he adjourned court for noon, while he was walking 
up to the tavern for his dinner, he Avas accosted by one of 
those same justices of the peace. Avho said : '' Well, Judge, 
I see those laAvvers are having dorad foine times here Avitli 
you." " Oh, yes," replied the judge, " we are getting along 
very finely, I think." " Yes, yes," said the justice, " but ' 
doni 'em, when v>'e held court we made 'em squat." 

V. 

PKAGTICE IN ANOTHER COUNTY— DEFENSE OF ONE ACCUSED OF 

THEFT. 

In the spring of 1S35, 1 determined to extend my practice 
to Putnam county, which was a large county tlien, and the 
oldest settled in the northeast part of the State. I started on 



CIRCUIT SCENES. 63 

horseback from Chicago, and on my way from Ottawa to 
Hennepin I fell in with Thomas Ilartzel and George B. 
Willis, both of whom I had met in the first political conven- 
tion ever held in Illinois. It met at Ottawa, on the 4th of 
March, 1834. Dr. David Walker, of Ottawa, was president, 
and I was secretary. We nominated one senator and one 
representative for the district, embracing all of the north 
part of the State, including Peoria. I was glad to meet them 
again. They both were old residents of Hennepin. I ex- 
plained to them that I was going to attend their court, and 
inquired as to the amount and character of the business in 
the court and of the lawyers Avho usually attended. They 
said there was right smart of business there, and there was 
talk of more, and some of it pretty important, and that 
there were some criminal cases on the docket; that there 
was but one lawyer in Hennepin, a young man just come in, 
named Thomas Atwater, who had never been in court yet. 
They would be glad to help me all they could. There 
Avas a man in jail for larceny, and if I could get him off it 
would make me famous. 

" Probably," said I, " the man is guilty and the proof 
clear;" if, so the condition to success which they suggested 
was rather hard. 

They said it did appear to be a pretty bad case, as one 
witness swore that he saw the prisoner steal the goods, and 
that he had confessed before the magistrate that he did 
steal them. But he had friends in the town that still had 
their doubts about his guilt, and there was quite a general 
feeling that there was a sort of mystery about it that 
needed explanation, which might be possible with shrewd 
management. 

But he was not my client, and I saw no likelihood that he 
ever would be. True, he was poor and unable to fee a 
lawyer, else those from abroad, Avho had been in the habit 
of practicing there, would surely be employed. If the court 
should have to assign him counsel I might stand some 
chance, as the young lawyers are most likely to be selected 



64 EARLY BENCH AND BAR OF ILLINOIS. 

who have no other business in court. But Judge Breese 
was to hold the court, and I had never met him, and he 
might not think it safe to intrust the case even ]]artially 
in my hands. I stopped at the tavern kept by my friend 
Willis, and in which the larceny had been committed. I 
was industrious making the acquaintance of everybody 1 
could meet. 

The judge and several lawyers put in an appearance in the 
afternoon of the day after my arrival, and I soon made their 
acquaintance; I tried to be unassuming, but not restrained. 
At first I thought Judge Breese was a little reserved, but 
when, on comparing notes, we discovered that we both came 
from Utica, N. Y., his bearing seemed more cordial. He 
had left there sixteen years before, I had come from there 
but two years before, and he had many things to inquire 
about relative to his old home, and of course, I could tell 
him much that was interesting to him. 

He opened court the next morning in an unfinished frame 
building and organized the grand jury, Avho, in the course of 
an hour, brought in a true bill against Pierce for grand 
larceny. The state's attorney at that time was James 
Grant, of Chicago, now Judge Grant, of Davenport, Iowa. 
Pierce was soon brought into court, when the judge asked 
him if he had counsel, and lie replied that he had not, and 
had nothing with which to pay a lawyer, and in answer to 
an inquiry . of the court he expressed a wish that counsel 
might be assigned him. 

The judge then asked me if I would undertake the pris- 
oner's defense, assisted by Mr. Atwater, if he would consent 
to assist in representing the prisoner. . We both consented 
and were allowed to take our client out of doors and confer 
with him in the shade of a tree. I then told Pierce that the 
first thing for him to do was to tell us the exact truth, for 
if he was guilty we could make a much better defense for 
him if we knew it, and all of the attendant circumstances, 
and that if he were innocent, it was all important that we 
should knovf" it, certainly. 




t^lDNKV r.HEESE. 



CIRCUIT SCENES. 65 

He then asserted in the most solemn manner that ho was 
entirely innocent of the larceny, and his explanation of his 
confession of guilt was, that after the larceny had Ijoen dis- 
covered, and the goods had been fonnd in a trunk which 
belonged to him or his wife, she had come to him and told 
him that Thompson had persuaded her to join him, in steal- 
ing the goods, and that they together had taken them from 
the box and jmt them in the trunk; that under this pres- 
sure, and in order to give his wife a chance to escape to 
Cincinnati, where her mother lived, he had confessed he 
stole the goods. That after he had made the confession, 
Thom])3on had come up and swore that he saw him steal 
them. That Thompson was a bully and a ruffian, and 
everybodv was afraid of him. 

The story was told in such a way as to convince us both 
of its entire truth. Pierce was evidently a simple-minded, 
rather a weak-minded man, who could be persuaded to do 
anything by an artful, and, probably, a bad woman. 

But how were Ave to prove the truth ? The conviction 
that he was innocent made us anxious to prove it if tlie 
proof existed. We had but little time to prej^are the 
defense — to rake up every thread and every circumstance 
which carefully woven together might tend to prove his 
innocence, for the trial was set for the next morniup-. 
Whatever was to be done, must be done in a fcAv hours. 

The first ray of light we got was from Pierce himself 
who said he was sick on the night of the theft — so sick 
indeed that he could not have loft his bed. 

Following this clew we got the name of the doctor who 
attended liini and of an old woman who had nursed him 
that night. 

AVe now felt that we had made some progress and 
separated till after dinner. In the meantime Atwater Avas 
to find the doctor and the nurse and get their stories. 

I walked down the street alone toward my hotel, medi- 
tating. My attention was presently attracted by a subdued 
voice, and, as I looked up, I saw a man coming toward me 



QQ EARLY BENCH AND BAR OF ILLINOIS. 

Avith a quick step. When he came up he asked me if I wns 
to defend Pierce. I told him that I was. "Well," said 
he, " he is innocent; and if you will go a mile and a half on 
the other side of the river you will come to a loghouse, in 
which live a couple named Fitzgerald, They know some- 
thing to help you. Good day, sir," and he turned quickly 
and walked away, looking about him as if ho was afraid of 
being seen. 

I ate m}^ dinner hastily, took my saddle-horse, and soon 
crossed the river on the ferry-flat and galloped awa}^ across 
the river bottom till I reached the blulf, where I found the 
log cabin. When I entered the house I inquired of the good 
woman who met me if her name was Fitzgerald. She said 
it was. I told her that I was appointed by the court to 
defend Pierce on a charge of larceny; that I was convinced 
of his innocence, and understood that she and her husband 
knew something about it. She was evidently not pleased 
with ray visit, and at first denied knowing anything about 
it, and said people got along best who minded their own 
business, 

I represented to her the enormity of the crime of letting 
an innocent man go to the penitentiary on the testimony of 
a perjured scoundrel like Thompson, who was himself the 
thief, and that she could never sleep well, if she refused to 
tell what she knew that would save an innocent man and 
shield the guilty one; that if she did this the ghosts of in- 
nocence would haunt her all her life, and that I would see 
that Thompson left the country quick or went to the peni-- 
tentiary so that he could harm no one. 

She began to weaken at last and finally went out and 
called her husband. He showed the same reluctance, and I 
had to go over with my reasonings and persuasions again 
with both. 

At length they fairly gave in and the old lady said she 
would tell me all about it; let what would come, she woukl 
not have innocent blood on her hands. 

She said that the night of the larceny she and her hus- 



ancuiT SCENES. 67 

band slept in a bed at the bead of the stairs; that during the 
nioJit thev heard a noise in a room below: that thev l)oth 
got up and carefully crept down the stairs, and there they 
saw through the cracks in the lathing not yet plastered, 
this man Thom])son and Mrs. Pierce take the goods out of 
the box and put them in the trunk where they were found, 
and that Pierce was not tliere at all. They both promised 
to come to the court the next morning and tell all they 
knew if the devil stood at the door, 

I was now happy and made ver}'' fast time l)ack to town 
and was quick in sending the sheriff over with a subpoena 
f^r both to make sure work of it. 

I now felt sure that we would acquit our man. Of course, 
not a word was lisped, even to Pierce, of the witnesses I 
liad found ; my absence had been unaccountable to Atwater, 
till told of the result, when we met after my return. Then 
I learned that he had found the doctor and the nurse, and 
that they would both be on hand and testify that Pierce was 
too sick that night to have left his bed and committed the 
larceny. 

I did not sleep very soundly that night, for I was too 
busy thinking up the speech I would make to the jury. It 
was manifest that the more I should abuse Thompson, the 
better it would take with everybody, for he was both hated 
and feared, and the man w^ho dared to abuse him roundly 
would do a ]5opular thing, and then when I should have 
proved his perjury and larceny, all would admit that he 
would deserve all I could give him. I piled up all of the 
bitterest epithets I could think of, whicli I would hurl at 
him in such a deluge as would even make him hate him- 
self. 

I had no fear of personal violence from him, bully as he 
professed to be. I was young (twenty-three years old), and 
weighed 190 pounds, was active and of exceptional strength, 
and felt perfect confidence in my ability to take care of my- 
self. He seemed about fifty years of age, and to weigh 
about 175 pounds. 



6S EAIiLY BENCH AND BAR OF ILLINOIS. 

4 

We were promptly on hand at the opening of the court 
the next morning, and soon after liatl the satisfaction of 
seeing the nurse and doctor appear and take back seats, and 
shortly after Mr. and Mrs. Fitzgerald came in and mingled 
with the crowd of spectators who now began to iill the little 
court room, Avhile many more were seen on the outside, as 
if a considerable interest was felt in the ])roceeding, for it 
was generally understood that Pierce's trial was to be the 
first real business transacted. We had been strictly silent 
as to the evidence we had discovered, but somehow there 
seemed to be a general ex]iectation that souie imjiortant de- 
velopments might be made. 

I was especially gratified to observe that Thom])son was 
there. He took a front seat, with an air of confidence, if 
not of defiance, befitting that of a bold thief and a bully 
who was ready to commit perjury to cover up his crime. 

Pierce had been brought in and was seated beside us at 
the bar, which consisted of a plain deal table about six feet 
long and three feet wide. He was pale and nervous and 
fairly shivered from weakness resulting from his recent sick- 
ness and confinement in the little log jail. He felt that 
though innocent he was already condemned. He could see 
no way of esca])e, for we had felt it our duty to conceal our 
discoveries from him as well as all others, for Thompson 
must on no account get the least inkling of them, i 
encouraged our client with the positive assurance that lie 
would be acquitted, and finally that we had found evidence 
which would clearly show his innocence. Tliis helped him 
some, but it coukl not entirely dispel his despair. I did not 
regret this, for his woe-begone appearance was a powerful 
appeal to all for sympathy and pity, which of itself would 
liave been of great service in a doubtful case. As yet the 
jurors were dispersed among the crowd and must, to a cer- 
tain extent, partake of their feelings. 

When the case was called we announced our readiness for 
trial, a jury was soon impaneled, and the state's attorney 
made a short opening. He stated that the trial was a 



CIRCUIT SCENES. GO 

mere form, wliicli the lavr required before the prisoner 
could be sent to the ])enitentiary. That he wouhl ])r<n't' 
so clear a case that it would not be necessary to leave their 
seats before returning a verdict of guilty. 

The usual practice then Avas for the defense to state its 
case at this point, but we requested the favor to postpone 
this till after we had heard the testimony for the people. 
This was granted without objection, 

Mr. Grant proved that the goods were nailed up in a dry- 
goods box in an unfurnished room in the hotel, and that 
they were subsequently found in a trunk belonging to the 
Drisoner. He then proved that the prisoner had confessed 
to the magistrate that he stole the goods, and he proved 
their value. He then called Thompson, who took the oath 
with a sort of indifferent swagger and toolc the stand. He 
swore without the least hesitation that he saw Pierce when 
he took the goods from the box, and placed them in the 
trunk, and that he saw him lock the trunk. 

"NVe had, as yet, cross-examined none of the people's wit- 
nesses. But not so with Thompson. He was cross-ex- 
amined in such a wav as to make him swear to evervthino- 
in the most positive way with every detail of time and 
place, and as to Pierce's every motion and action. He was 
well acquainted with him and could not be mistaken, but 
he scarcel}^ knew Mrs. Pierce and had not seen her that day. 
He swore that Pierce seemed well and strong, for he had 
broken open the box, and removed the goods in a way that 
sJiowed he was in a hurry, and needed no one to help him. 

Every step of the cross-examination seemed to strengthen 
the case against us, as I intended it should, by ena1)ling 
Thompson to make up as consistent a story as possible by 
weaving all of the lies into it that were necessary to 
make it consistent, and especially such lies as I knew I 
could contradict him in, and before I had finished I had a 
perfect mountain of them; for, as the case was going along 
so smoothly, he thought he had everything his own way, 
and could tell what he pleased without our being able to 



70 EARLY BENCH AND BAR OF ILLINOIS. 

detect it. If he had had old lawyers to deal with, or less 
simple ones, he would, no doubt, have been much more 
cautious. 

When I dismissed the witness he left the stand with a 
wa-:*- of the head and an air of confidence and satisfaction 
that he made no effort to conceal. The j ury looked positively 
distressed, and the audience manifested their disappointment 
and chagrin at the ineffective way in which I had cross- 
examined Thompson, for their only hope was that he could 
be broken down on cross-examination, for all believed he 
was lying all the time; in fact, that I had given away all 
of the case there was to give away. 

I then arose to state the defense we expected to make. I 
stated that as it now looked, the statement of Mr. Grant in 
his opening, that this trial would be but a matter of form, 
and only to satisfy the forms of the law before sending the 
prisoner to the penitentiary, seemed justified; but we ex- 
pected to make it a matter of substance, and that Pierce 
would not be the man to go to the penitentiary for that 
larceny. 

I first explained why the confession was made. That 
after the larceny was discovered and the goods found in the 
trunk and a great commotion was being made about it, Mrs, 
Pierce had come to her husband and in great distress told 
him that Thomi)son had persuaded her to join him in steal- 
ing the goods and that they two had stolen them and put 
them in that trunk. That she implored him on her kaees 
to do something to divert attention from her until she could 
go to her mother in Cincinnati. That overcome by her tears 
and entreaties, he had consented to confess the larceny him- 
self and trust to the future for the result, although by so 
doing Thompson would have an opportunity to escape pun- 
ishment also. 

That this man Thompson was a bully and a braggart and 
boasted of the terrible things he had done to his enemies 
and had actually so terrorized many of the good people of 
the town that those who knew the truth of the matter had 



CIRCUIT SCENES. 7 1 

deemed it prudent to keep their mouths shut. Tliat wc liad, 
however, succeeded in finding two most credible witnesses, 
Avho actually saw Thompson and this woman steal the goods, 
and that we would prove by the doctor and the nurse that 
Pierce was very sick on the night when the goods were 
stolen, and coidd not possibly have got up and committed 
the theft. 

Tliompson had placed himself as nearly before me as he 
could during my opening, and loolced fiercely and defiantly 
at first. I occasionally glanced at him with a quiet and 
satisfied smile. Before I closed, his countenance was a real 
picture. The time for the epithets had not come yet, so I 
did not use them, but contented myself with stating the 
simple facts in terms as short as would suffice to do so. 

My little speech had evidently produced the desired efi'ect. 
An expression of relief was manifest on every countenance. 
Even the judge, who had hitherto appeared as impassive as 
a block, brightened up and leaned forward as if to catch 
every word, and when I sat down, he straightened up and 
looked around with an expression which seemed to say : " If 
all of this be true, this Thompson must be the greatest villain 
remaining on this earth unhung." Before, he seemed to have 
taken no interest in the case. Kow he was awakened to a 
lively interest. 

He said, '' Mr. Caton, call your witnesses," in a tone which 
clearly manifested his impatience to hear the evidence, which 
should prove such total depravity in a human being. 

I first called the doctor, who testified that he had attended 
the prisoner and visited him late in the evening of the night 
when Thom))son swore he saw Pierce steal the goods. I 
made the direct examination very short. I just proved 
what I expected to by him, and leaving it to the cross-ex- 
amination to bring out the thousand little incidental facts 
which I knew would strengthen the case more in that way 
than if brought out by me. A vigorous attempt to break 
down the testimony of a witness on cross-examination, if it 
fails, strengthens the case immeasurably. 1 really think 



72 ExiRLY BENCH AND BAR OF ILLINOIS. 

that the state's attorney believed that the doctor had ex- 
aofo-erated the man's sickness, and hence he went at him 
rather fiercel}^ but my man seemed to have grown sicker 
and sicker as he progressed and gave all of the details of 
the case. 

It was manifest that I had succeeded in completely break- 
ing down Thompson's terrorism, and it seemed to me that 
the doctor was anxious to shov>^ that he did not care a but- 
ton for him. 

I next called the nurse, and she testified that she had been 
with the prisoner almost the entire night referred to. She 
shoAved him to have been fully as sick as the doctor had 
done. That he had suffered very much and was so Aveak 
that he could not turn in l)ed without help. That she was 
positively certain that he did not leave the room that night, 
and that he could not have done so had his life depended 
on it. She further stated that ]\Irs. Pierce did not come near 
her husband during all of that terrible night, and had not 
been seen in his room since some time in the afternoon be- 
fore. It was evident that the state's attorney now began 
to appreciate that there might be something real in this 
defense and that it was not impossible that he was relying 
upon perjured testimony to convict an innocent man. His 
cross-examination of the nurse was sliort and formal. 

I now called Mrs. Fitzgerald, who came forward with a 
firm stej3 and firm look which manifestly said she was no 
longer afraid of Thompson. She told how she and her hus- 
band were sleeping in the chamber near the head of the 
stairs, when about midnight they were awakened by a noise 
in the room below, when they both got up and crept softly 
down the stairs, on which they seated themselves, and plainly 
saw through the crack "in the lathing, this man Thompson, 
whom she pointed out, and Mrs. Pierce, take the goods from 
the dry -goods box, carry them across the room and place 
them in the trunk. AYhen the trunk seemed full they closed 
and locked it and Mrs. Pierce put the key in her pocket; 
then both took the trunk and carried it to a corner of the 



CIRCUIT SCENES. 73 

room and left it; that there wa,s one candle in the room; 
Avhen the trunk was set down they hastened back to theii- 
bed without waiting to see when or where Thompson and 
Mrs. Pierce went. 

In this case there was a cross-examination on the matter 
of identity, but it only served to convince every one that 
the woman knew what she was talkino; al)out, and that it 
was certainh" Thompson and Mrs. Pierce that she saw steal 
the goods. 

I next called Mr. Fitzgerald, and, as I have often observed 
in other cases, " the gray mare proved the better horse;" 
still, he corroborated his wife, which was all I wanted of 
him, though not with the decision and firmness which she 
had manifested. But I cared nothing for that; I kneAv that 
Ave already had enough testimony in to convince every 
rational mind that Pierce was an innocent man and that 
Thompson was a very wicked liar. With this witness Ave 
closed our case. Mr. Grant proposed to submit it to the 
jury Avithout argument. 

But Ave could not think of throwing away such an o]3por- 
tunity and merely said that Ave had a duty to i)erform to 
the prisoner, Avhich Ave could not omit, and must present 
our vicAvs of the case to the jury. 

The state's attornev then oi)ened the case IjrieflA', thoufli 
he did as AA^ell as any man could have done. It Avas mani- 
fest he felt that the defendant Avas innocent, and that he 
Avas asking the jury to convict him upon perjured testi- 
mony. 

Atwater followed Avitli his maiden speech, which AA'as a 
very good one. He grouped the testimony together very 
systematically, and shoAved how each part supported every 
other, all pointing to the absolute innocence of the accused. 
My turn to address the jury noAv came. As I arose I felt 
as if every friend 1 had in the world Avas whispering to me 
that I must noAv make a supreme effort, not so much for mv 
client, for he Avas noAv safe, but for myself. In fact, I Avas 
fairly saturated Avith my subject, and the danger Avas that I 



74 EARLY BENCH AND BAR OF ILLINOIS. 

should slop over and say too much or not at the right time, 
or in the right way, rather than I should omit anything. I 
began in a very quiet and moderate way, stating that Mr. 
Atwater had so well and so fully presented the case that, 
in truth, he had left little for me to do. I presented the 
testimony, however, in my own way, first considering 
our own testimony, showing Pierce's absolute innocence, 
and then took up the testimony relied upon for the people, 
explaining the reasons for the confession as before stated, and 
referring to the circumstances which showed that that 
explanation was true, dwelling upon Pierce's enfeebled 
condition from recent sickness and his poverty, from wliich 
he was unable to employ counsel to defend him or buy him 
a supper after they should, by their verdict, set him free. I 
then took up the testimony of Thompson, when I began to 
warm up to my work in earnest. 

It was evident that the public temper demanded all of the 
liard things that could be said of him. I showed that when 
Pierce lay sick unto death, when he required and had a right 
to claim the most constant and devoted care of the wife who 
had sworn before God at his sacred altar to cleave only unto 
him, this black-hearted villain had seduced her from her 
allegiance to him, in the hope that he might die from her 
neglect, and then, in order to place her the more completely 
in his lustful power, as well as for gain, had persuaded her 
to join him in the perj^etration of this crime, and when, in 
spite of her neglect, he had refused to die and became con- 
valescent, and the larceny had been discovered and the law 
was searchino- for the thief, he had concocted that diabolical 
plot and sent the weeping and apparently penitent woman 
to her enfeebled husband to persuade him to confess the 
crime. This plot was but too successful, and when the sick 
man had given his every cent of money to enable her to 
escape, which she, no doubt, divided with her paramour, and 
was sent to the jail, then it was that this fiend in human 
form fairly made the devils blush, by boldly standing up and 
swearincj tliat he saw Pierce steal the goods ! If he could 



CIRCUIT SCENES. 75 

swear Pierce into the penitentiary for a term of years, the 
lielpless Avonian would be completely in his power and he 
could enjoy her society at his will without the interference 
of her enfeebled husband. 

While I was in the midst of this tirade, I turned partly 
around to catch an expression of the audience, and discovered 
behind me, and not more than two feet from me, this man 
Thompson, with a heavy bludgeon in his hand, the perspira- 
tion pourino^ from his face, his eye glaring fiercch^ at me 
with a terribly fiendish expression on his countenance. I at 
once concluded that he had crept up there in order to make 
a deadly assault upon me, when my back was to him. To 
say that this made me terribly angry is to put it mildly. 
That was one of the few times in my life when I have been 
really mad. I felt instantly inspired with a superhuman 
strength, which would enable me to crush any living man 
to the earth in a moment. I glared upon the supreme 
scoundrel, a look of scorn and detestation and defiance, 
which I was told later seemed fit to wither a statue. I 
pointed my finger in his very face, and called upon the court 
and jury to look at the cowardly assassin, who had not the 
courage to attack a child in the face, but must skulk up be- 
hind so he could strike unseen. I then proceeded to pour 
upon him denunciations and epithets which rushed upon me 
faster than I could utter them. Terrible words of execration 
seemed to coin themselves, and I poured them out with the 
rapidity of a tornado, constantly emphasizing them by tierce 
gesticulations right into his face, which was now red and 
now pale like the changing flashes of a boreal light. Some 
of these anathemas have been ringing in mv ears ever since. 
Their bare memory makes me shudder. AVhat, then, must 
have been their effect when poured out under such excite- 
ment ? 

The culprit stood this for a little while with a bold 
defiant expression, as if looking for a good time to strike, 
but soon he began to weaken and show doubt and hesi- 
tancy. This expression grew upon him more and more for 



76 EARLY BENCH AND BAR OF ILLINOIS. 

several minutes, when he backed toward the door through 
the dense crowd, who shrunk from his touch as if he hiul 
been a slimy snake. I called upon the state's attorney to 
prosecute the perjured thief, now that he knew for a cer- 
tainty who was the guilty party. I called upon the sheriff 
to arrest the scoundrel before he should reach the woods 
and hide his guilty head in the bushes. I called on all 
good citizens to scorn and spit upon so loathsome a wretch. 
I advised all decent women, whenever they saw him, to 
bar their doors and Avindows as against a leper, whose very 
breath was contamination, and I kept shouting after him 
in this unseemly way, till he was fairly out of sight. I 
then paused, and turned around and was silent for a few 
minutes, and then every man in the court room, except the 
judge, was on his feet and seemed half bewildered. I at 
length apologized to the court for the unseeml}^ exhibition 
which I made in a presence where dignity and moderation 
should always reign, but I hoped he would find in the scene 
which had provoked me some apology for the breach of 
decorum of which I was conscious I had been guilty. 
After a moment's pause Judge Breese remarked, " You can 
proceed, Mr. Caton." I then turned to the jury and apol- 
ogized to them for having for a moment forgotten myself 
and the presence in which I was, under a provocation which 
miffht have excited an older man. I then said the evidence 
lia,d made the prisoner's innocence so manifest that I did 
not think that his interest required that I should longer 
detain them. 

The state's attorney then closed the case with a short 
speech, which virtually gave it up and left it for the jury 
to say which of the witnesses they would believe and which 
they would disbelieve. 

The jury retired without any charge from the judge and 
in a few minutes returned Avith a verdict of not guilty. 

The verdict was received with a manifestation of approval 
which was sternly checked by the court, when it was entered, 
the prisoner discharged and the court adjourned at once. 



CIRCUIT SCENES. 77 

Then followed a scene of hand shaking very unusual at that 
time in a western assemblage. Pierce was congratuhited 
and we were congratulated, not only by the jury but by 
every one else who could get near us. 

At length the room began to clear and we were able to 
move toward the door. I was immediately surrounded by 
clients anxious to secure my services, and before I reached 
my hotel I was retained in nearly every case pending 
in the court, and in several important ones to be com- 
menced. Two of these were chancery suits, which proved 
in the end to be of more real benefit to me than any other 
cases I ever was employed in. 

AVhen I left that town I took away with me about one 
hundred and fifty dollars in money and about the same 
amount in o-ood notes, which in those davs of small fees was 
considered as doing extraordinarily well for a Ijeginning, in 
a court which lasted less than a week. ]\Iore than that, I 
had been very fortunate in getting on the right side and so 
had won nearly every case, which gave me a reputation 
which was of more value than all of the rest. 

When I inquired for Thompson he had disappeared and 
no one could tell Vv'here he had gone and I could never learn 
that he was ever seen or heard of in that town afterward. 

After the court adjourned the term, we all — that is, tlie 
judge and several lawyers, made our way to Ottawa on 
liorse-back, where the next court was to be held. At that 
time western hostclries had not attained to that state of 
refinement which places ablution furniture into sleeping- 
rooms, but all had to go down stairs and wash in a tin 
basin placed on a bench outside the house. AVhen I came 
down from my room the morning after our arrival, I had 
my coat and vest on my arm, that I might be ready for the 
toilet process, which was to be performed outside. When I 
reached the bar room, or office as it would now be called, 
the first man I saw, Avas that same villain Thompson Avith 
that same alpine stick in his hand. 

" You old villain," said I, " Avhat are you here for ? Has 
not the sheriff got you under lock and key yet 'i " 



78 EARLY BENCH AND BAR OF ILLINOIS. 

" I have come up here to give you a thrashing," said he: 
'' you insulted me tlie other day and I have come to settle 
it.'" 

I dropped my coat and vest onto a chair and stepped up 
close to him and said that now was the time to begin. That 
I had no fears of one so steeped in crime. That so black a 
villain must necessarily be a coward, and I again over- 
whelmed him with e])ithets. I knew if he was going to 
strike at all he would have done it on the instant. A mo- 
ment's hesitation was fatal to his purpose. I spoke in a 
pretty loud voice, and directly a crowd gathered around, to 
whom I related his villainy, and who soon manifested signs 
of hostility. On perceiving this, he turned and made 
directly for the door, and made quick tracks out of the town, 
and I have never seen or heard of him since. 

VI. 

CHANCERY SUITS SUIT AGAINST COL. STEAWN EARLY DAYS ON 

THE BENCH. 

In my last I spoke of two retainers which I received at 
Hennepin upon my first attendance upon the Circuit Court 
there. As the conduct of these cases resulted in the great- 
est professional benefits to me, it may be well to speak of 
them more particularly. These benefits did not consist so 
much in the amount of compensation which I received as in 
the amount of learning which I obtained in their manage- 
ment. Both were suits in chancery, which were filed to 
enforce resulting trusts. Up to that time I had not paid 
particular attention to cl]ancery laAV, and had had but little 
experience in that branch of the profession. The first was 
Babb V. Strawn. In this case a bill had been filed b}'" Mr. 
Peters, of Peoria, to compel Col. Strawn to convey to the 
complainant the town site of Lacon, then in Putnam county, 
upon the ground that the land had been entered with the 
complainanfs money, and to account for moneys received 
on the sale of town lots. 



CIRCUIT SCENES. 79 

Althoiig-h no answer had been filed as yet, Col. Strawn 
had taken a great mass of depositions to prove the value of 
liis services rendered in laying out the town, selling of lots, 
and otherwise benefiting the trust property. In this con- 
dition of the suit I was retained. I procured an order from 
the court ordering the depositions to be opened, a careful 
examination of which qualified me better to draw an 
answer, than I could have done from my client's statement 
of the facts without them. By agreement with Mr. Peters, 
the venue was changed to La Salle county, to which the 
records were at once transmitted, a copy of which I ordered 
for my own use. 

The other was a case of TTauhub v. Wauhub. This was 
a cas3 where a family of that namo, consisting of a father 
and mother and several children, had squatted upon a quar- 
ter section of land adjoining the town of Lacon, had l)uilt a 
house in which they lived, and had made other valuable 
improvements on the land. Some time before the land came 
into market, when it would be possible to prove u]:> a pre- 
emption, the father died, leaving the wife and children upon 
the premises. The mother was an invalid and had been 
confined to her bed for the previous twelve years. Under 
her direction, however, and general supervision, the farming 
business had been carried on b}^ the children, all living- 
together upon the premises, deriving their support from the 
products of the farm, keeping no accounts among them- 
selves, and claiming no separate interest in any part of the 
propert}^ 

William Wauhul) was the oldest son and so took the gen- 
eral management of affairs. When the land came into 
market he proved up a pre-emption in his own name and 
took the title to himself and paid for it with money derived 
from the sale of the products of the farm, as the others 
claimed, Avhile he insisted that he obtained the money from 
other sources, and this was the most important question of 
fact litigated in the case. 

Soon after the entry was made, William claimed to own 



80 EARLY BENCH AND BAR OF ILLINOIS. 

the land in his own right, when the next oklest brother 
came up to the court at Hennepin to seek legal advice, and 
being satisfied with the manner in which I had conducted 
Pierce's defense he retained me; having no money with 
which he could pay me a retainer, but declaring himself 
able to pay the court expenses, he proposed to give me one- 
half of the land if I should win the case, but to pay me 
nothing if I should lose it. He brought to me several 
neighbors who confirmed his statement of the facts, as 
above stated, from which I was satisfied that a resulting trust 
could be established. I took full notes of the facts from 
which I could draw the bill, commenced the suit, so as to 
establish a lis jjcndens^ making all the other members of the 
family complainants and William Wauhub defendant. I 
obtained leave to file the answer in one case, and the bill in 
the other at the next term of the court. 

As before stated, I had never before paid much atten- 
tion to chancery law, and I now determined to make it a 
special study. Not only that which related to resulting 
trusts, but to all other branches of that depiirtment of my 
profession, including the practice, pleadings and general 
principles upon which courts of chancery administer relief, 
and I applied m^^solf to that study with untiring industry. 
Kent and Story, Hoffman and Daniels, and many other text 
books were read and re-read from beginning to end, and 
compared one with another, noting particularly wherever 
they disagreed, in which cases I examined the references, 
that I might form my own conclusions as to which was 
right, both on authority and on reason or principle. 

Of course, during these researches, everything relating to 
resulting trusts was specially noted and treasured up in the 
memory; not only this, I read case by case all of Johnson's 
Chancery Iweports, and all of the chancery cases found in the 
Kentucky Reports, as well as in the reports of other States 
to which I then had access. 

To this task I devoted all my leisure time for two years 
at least, and l)ecame so familiar with the subject that I rarely 



CIRCUIT SCENES. 81 

heard a question raised in court, either of pleading, practic3 
or principle, that it was not almost as familiar to me as my 
alphabet, and I was astonished to see other law3^ers and the 
courts hesitate upon questions, where, it seemed to me, there 
should be no doubt at all. 

xsow, it was the accident of my having been retained in 
these two cases that prompted me to this thorough course 
of study of chancery laAV, which laid the foundation for any 
merit I may have acquired as a chancery lawyer, and when 
I went on the Supreme Bench, at thirty years of age, I 
found I was vastly more familiar with chancery law than 
any of the other judges, and hence it was, that nearly all of 
the chancer}^ records were assigned to me for a num.ber of 
years in that court, as will be seen by any one who will 
examine the Reports, commencing with the third of Scam- 
raon and following up to the twelfth or fifteenth of Illinois. 

I had been upon the bench about a month, and Chief Jus- 
tice Wilson had distributed the records to other members of 
the court, till I thought he considered me so much of a boy 
that he deemed it not wise to give me any record on which 
I should write an opinion. Finally, the case of Frisby v. 
Balance having been argued, was taken up in the conference 
room. The Chief Justice called for opinions from each one, 
but no one was prepared to express an opinion without fur- 
ther consideration, and I did the same, although I had pretty 
distinct views about the case. The Chief Justice then offered 
the record for more careful examination to each member of 
the court in succession, but each made some excuse for not 
taking it, till he came to me, when he laid it on m}^ desk 
and said : " Here, Caton, this is a good case for you to 
break in on.'' The record was a large one, and the rules 
then required neither abstract nor brief, but only the record 
as it came from the Circuit Court was filed. I took the 
record without demurrer or remark. When I got to ray 
room I pitched into it as a hungry man would into a Christ- 
mas dinner. I first read it all through carefully, and then 
made a full abstract of it. 
6 



82 EAELY BENCH AND BAR OF ILLINOIS. 

I then fully digested it, and carefully set down the several 
points which it pres3nted, both of law and fact. I then re- 
examined the facts and set down my conclusions upon each 
one. I then took the points of \a.w which arose in the case, 
upon which I thought I knew what the law was, hut to be 
sure, I went to the library, and made up a brief. I then 
stated my conclusions, with the authorities in support of 
them. I then wrote out the opinion as it now appears in 
the report, but before I presented it in conference, I asked 
Governor Ford to my room and read it to him, and asked his 
criticism upoii it. Although he had decided it in the court 
below and my opinion reversed his decision, he approved 
the opinion and highh^ complimented it. The only ]5oint' 
upon which I reversed the decree below, was that he had 
granted affinnative relief to the defendant without a cross- 
bill, the error of which he readily appreciated. All of this 
took me at least a week. 

When I read the opinion in the conference room, all 
readily agreed to it except u})on the very point on which I 
reversed it, on which point all at first disagreed with me, 
really because all had been in the habit of granting such 
relief without a cross-bill, on their circuits. Judge Breese 
was particularly strenuous, and cited a clause in the statute 
which authorized the defendant to put interrogatories for 
the complainant to answer, at the close of his answer to the 
bill. I fought it out right on that line, brought in the books, 
and showed the reasons which governed the use of every 
part of chancery pleadmgs, and finally obtained the approval 
of all the members of the court, and I have no doubt that 
this rule has ever since prevailed in this State, and probably 
there are very few now living that have any suspicion that 
any other rule ever prevailed here, even on the circuit. 

After that I had never cause to complain that a fair pro- 
portion of the records were not given me, for, with rare 
exceptions, I received all of the chancery records, and as all 
the evidence was then required to be presented in deposi- 



CIRCUIT SCENES. 83 

tions, tliey usually involved the most labor, and I very rarely 
met with opposition to my conclusions. 

This state of things impressed upon me the idea of a great 
responsibility. The jurisprudence of the State was then in 
its infancy. We were then laving down rules which were 
to be followed by those who should come after us, and it 
w^as of the greatest importance, not only to ourselves, per- 
sonally, but to the profession generally, that these rules 
should be such as to bear the test of time and of the closest 
scrutiny, and I intended to spare no labor or pains to accom- 
])lish this result. 

1 have thought it might be profitable to some young 
members of the bar to learn how it was that I became a 
pretty good chancery lawyer while 3'et a very 3^oung man. 
What I learned so earl}^ and so well, it seems to me, I re- 
member pretty well yet, although I have learned a great 
deal more since. 

Having thus explained how it was that these two cases 
indirectl}^ redounded so much to my advantage, it may bo 
proper that I briefly follow each one up to the end. 

The case of Babb v. Strawn I aro^ued before Judo^e Pier- 
son, in Ottawa, at the fall term, 1S37. The only real ques- 
tion considered was, as to the amount of compensation my 
client was entitled to. Colonel Strawn was not satisfied 
with the amount given him by the decree, and so, by his 
direction, I appealed it to the Supreme Court, and argued 
it in that court at Yandalia, at the Decembar term in ISoS. 
That was the first case I ever argued in that court. That 
court then consisted of only four judges — Wilson, Smith, 
Lockwood and Brown. They affirmed the decision by an 
equal division of the court, and I was so ungenerous at the 
time as to believe that they thought that was the easiest 
way to dispose of a very large record. 

In the fall of 1S38, 1 had the misfortune to have two farms 
entirely burned over by prairie fires with everything upon 
them. On one was grain enough in the stack to have paid 
all my debts, and more. On the other was hay enough 



84 EARLY BENCH AND BAR OF ILLINOIS. 

to have wintered a hundred head of cattle. In October 
I went doAvn to Sangamon county where I purchased about 
seventy-five head of cattle, and Avas driving them up to the 
latter farm, when early one morning, about fifteen miles 
below Ottawa, I met a man who inquired my name and then 
informed me that my Plainfield farm had been burned over, 
even to the ox yokes and other farming utensils, and then 
after giving me a few minutes time to digest that, ho told 
me that my Du Page farm had been burned over and all the 
grain upon it consuined. I iramediateh" employed a man to 
herd my cattle on the prairie, where they were, and pushed 
on for Chicago, where my family was, where I arrived the 
next forenoon. After remainino- one dav to arranoe affairs 
here, I mounted my horse to look after n\y stock, which I 
found where I had le.'t them, all right. I then pushed on 
about twenty miles further to Col. Strawn's, to make 
arrangements with him to winter my cattle, knowing that 
on his large farm he had abundant fodder in his corn fields 
Avith which to do so. 

During my solitar}'' ride across the prairies I pictured to 
myself the pleasure he would experience in offering to winter 
my cattle at a very low figure, and the happiness it would 
give me to assure him that I should charge no other fee in 
his suit Avith Babb, excepting my simple expenses to Van- 
dalia to argue his case at the ensuing term. I was much 
disappointed when I stated my case to him, to observe that 
he was determined to drive as hard a bargain with me as 
possible. Winter Avas fast approaching, and the arrange- 
ment for the care of my stock must be made immediately, 
and he alone had the means at hand for caring for them. 
As I was in his power I made the best terms I could, but 
was careful to say notliing about my fee in his case, consol- 
ing myself with the reflection that I was now absolved from 
any obligation to treat him A'ery leniently, Avhen the ques- 
tion of fees should come to be considered. 

Some time after the case had been decided I sent him a 
bill for one thousand dollars, for my services in that case. 



CIRCUIT SCENES. 85 

He paid no attention to it for some months, when finally lie 
came up to see me about it, and protested that my charge 
was exorbitant, and that he could prove that when at his 
house I had agreed to attend to the case for fifty dollars. 
I then told him that I had no doubt that he could prove 
that or anything else he wanted to prove; that I knew him 
too well to doubt that, but that I would catch him at it as 
sure as he lived. 

I then commenced suit against him at Lacon, and to 
prove the value of my services I took the deposition of Mr. 
Peters, when we were attending court in Kane county. 
Petei-s testified that he had been counsel on the other side 
in the case, and that the case had been very ably tried on 
both sides, and that he thought a thousand dollars a very 
reasonable fee for the services which I had rendered in the 
case. 

In the meantime I had received notice and a copy of inter- 
rogatories to take the deposition of some man in Iowa, 
whom I had no recollection of ever having seen. From the 
interrogatories it was manifest that he intended to prove by 
this witness that he had heard me agree with Col. Strawn to 
take that case through from beginning to end, for fifty 
dollars. In my cross-interrogatories, I simph^ asked him if 
he had had any communication with Ool. Strawn about his 
deposition about to be taken, either oral or in writing, and, 
if the former, to state what was said as nearly as possible, 
and if in writing, to attach the original communication to his 
deposition. 

When I sent my cross-interrogatories to the clerk I 
requested him to let no one know what they were. 

When the next term of the court was opened at Lacon, 
Mr. Purple and Mr. Dickey volunteered their services to try 
my cause for me, and Mr. Peters Avas engaged for the other 
side. 

The practice then required a special order of the court to 
open depositions, which was at once obtaiiied. When the 
defendant's deposition was opened, the first thing to attract 



86 EARLY BENCH AND BAR OF ILLINOIS. 

our attention was an original letter in Col. Strav;n's hand" 
writing, from the defendant to the deponent, in which he 
offered him live dollars if he Avould swear to the statements 
following. Then followed about a page of matter written 
in the first person, to which the witness was to swear for the 
five dollars, stating that he had heard a contract made 
between Col. Strawn and myself, by which I agreed to con- 
duct his case through from beginning to end, and to pay 
my own expenses, for fifty dollars, stating many collateral 
circumstances to increase the probability of his story. Then, 
turning to the deposition, we found that he had sworn to the 
exact words of the letter without addition or diminution. 

Upon the trial, Mr. Peters' deposition was read for my 
side by Mr. Purple, who emphasized, in a very pungent 
manner, the statement that the case " was ver}^ ably tried on 
both sides." For the defense, the foreign deposition was 
read, and a witness was called to the stand, who swore that 
he was present when tlie bargain was made as stated in that 
deposition, following the same phraseology, scarcely varying 
it by a single word. On cross-examination he positively 
denied ever having conversed in any way with Col. Strawn 
about what he was to swear to. The cross-examination was 
what might have been expected under the circumstances, 
but the most valuable result obtained was that he obsti- 
nately refused to vary his statements from the formula set 
forth in the letter of instructions to the foreign witness. I 
should have stated that the deposition was not read in evi- 
dence till after the oral testimony had been given, and 
probably Peters would not have read it at all had he not 
felt sure that we would have done so by the leave of the 
court. 

The summing up on my side was what might have been 
expected from two such aljle lawyers as Dickey and Purple, 
the latter being especially caustic in some portions of his 
address. Peters, on his side, of course, could not deny that 
the services were worth the thousand dollars, as stated in 
his deposition, but based his defense solely upon the special 



CIRCUIT SCENES. 87 

contract claimed to have been proven. The trial had occu- 
pied the wliole day, and Judge Ford adjourned the court 
until evening to receive the verdict. "When at the evening 
session the jury was brought in, Col. Strawn was seated 
close to the jury box near the upper end. When the fore- 
man announced a verdict of seven hundred and fifty dollars 
for the plaintiff, the colonel jumped to his feet and strode 
out in front of the jury, remarking as he went, " Thank 
you, gentlemen, a very small fee, indeed; only about a half 
bushel of dollars." After harvest I was told that he hauled 
in his wheat with a four-horse team, which he drove himself, 
and whenever he met a neighbor, and especially if he hai> 
pened to be one of the jury, in a sarcastic tone he would 
exclaim, '' That load of wheat you see is part of lawyer 
Caton's fee." 

Had he kindly assisted me and shown some sympath}'^ in 
my distress, no charge would have ever been made him for 
those services. 

There is a moral in this story, but whether he ever prof- 
ited by it or appreciated it I do not know. 

The Wauhub case may be soon disposed of. I went to 
Lacon and took the deposition of the neighbors, who knew 
the facts of the case. It was then that I first met the old 
lady, who was lying in the bed she had occupied for so many 
years. She was an inveterate smoker, and during my visit 
she was constantly employed in that soothing occupation. 
She died some years later in that same bed, and, as I was 
informed, with the pipe in her mouth, which was still lighted, 
so that it might bs truly said she smoked with her last 
breath. 

When the case was ready for hearing I applied to the 
court for an order for a feigned issue to try the prin- 
cipal fact involved in the case, which was granted. As 
was my duty, I prepared the pleadings according to the old 
English i^ractice, which was a declaration in the case of John 
Doe V. Richard Roe, that a wager had been made between 
the parties, wherein John Doe had affirmed that the land, 



88 EARLY BENCH AND BAR OF ILLINOIS. 

describing it, had been purchased by AYm. Wauhub, of the 
United States, with money belonging to the said comphiin- 
ants and defendant, naming them, in equal proportions, and 
the said defendant, Richard Eoe, averred that the said land 
was purchased with money belonging to the said Wm. Wau- 
hub, exclusively, and in his own right, Avhereupon the said 
parties had made a wager, whereby the said plaintiff had 
agreed to pa}'^ the said defendant a certain sum of money, 
naming some sum, in case the said purchase money did not 
belong to the comjilainants and defendant, naming them, in 
equal proportions, but that the said purchase money belonged 
exclusively and in his ovv^n right to the said William Wau- 
hub, and the said defendant, Eichard Eoe, then and there 
promised and agreed to pay the said plaintiff a like sum of 
money, if the said purchase money did not belong to the said 
AVm. Wauhub exclusively, and in his own right, but did 
belong to the parties in the chancery suit, naming them, in 
equal proportions. The declaration then averred that the 
facts were as the plaintiff had declared them to be, and were 
not as the defendant had declared them to be, whereby the 
said defendant had become indebted to the said plaintiff in the 
said sum of money, naming it, which he had often been 
requested to pay, but that he had neglected and refused to 
do so, whereby an action had accrued, etc. 

I also prepared a plea, admitting the fact of the wager as 
stated, but denying the facts as stated in the declaration, 
which would entitle the plaintiff to the money claimed in 
the declaration and added the similiter. The next morning 
I presented these pleadings to Mr. Peters, and asked him to 
sign the plea as attorney for the defendant, which he at 
first declined to do, stating that this \vas a proceeding which 
he did not quite understand, and that he did not propose to 
assume any such responsibility. Judge Ford, however, ad- 
vised him to sign the plea, as it was a mere matter of form, 
to get the issue presented by the pleadings before the jury, 
and likened it to the fictitious pleadings in an action of eject- 
ment, whore the lease, entry and ouster had to be averred 



CIRCUIT SCENES. 89 

p.nd admitted in order to present the real issue in the ease, 
although such facts had never really existed. Mr. Peters 
then signed the plea, and the jury was called, who found a 
verdict in favor of the plaintiff, whereupon the court entered 
a decree in my favor for the execution of the resulting 
trust. 

As William Wauhub was shown to be b83^ond the juris- 
diction of the court, I had Jesse C. Smith appointed a com- 
missioner to execute the deed in his name, and, as I had ail 
the papers prepared beforehand, this was done directly, 
promptly acknowledged and filed with the recorder, which 
vras reported to the court, and the report approved. 

Hitherto the practice had been, in such cases, to treat the 
decree as an absolute conveyance. This was more com- 
monly the case in suits for partitions of lands, where the 
confirmation of the report of the commissioners was deemed 
sufficient conveyance to the several parties, of the parts 
assigned them. In this way, Mrs. Judge Breese held title 
to her share of the large estate of her father, of which she 
had conveyed many tracts with warranty deeds, about which 
no question had ever been raised, until a few years ago, 
when Judge Snyder, of the Belleville Circuit, decided that 
the fee had not passed to her by the confirmation of the 
report of the commissioners, thus leaving her liable upon all 
of the warranties she had made. This decision very much 
disturbed the judge, and he wrote me for my opinion as to 
its correctness. I answered him that in my opinion it was 
the law, but possibly a remedy might be found, yet, and at 
his request I met him in Mount Yernon, where the Supreme 
Court was in session. The partition had taken place about 
forty years before; and he could hardly believe that such dis- 
tinguished lawyers as David J. Baker and Colonel Snyder, 
who were two of the commissioners who made the partition, 
could have omitted anything to make their work complete. 

I advised him that the matter was still in fieri, and now 
pending before the court, and prepared a petition to be pre- 
sented to that court to have the suit redocketed, and a com- 



90 EARLY BENCH AND BAR OF ILLINOIS. 

missioner appointed to execute the necessary conversances. 
This, he informed me, was afterward done, and thus was he 
relieved of a great embarrassment. 

I have thought that tliis sketch of our judicial history 
might be worth the space it occupies. 

VII. 

EE-FOEMATIOK OF THE SUPEEME COUET— ELECTION OF NEW JUDGE 
ELECTED AS JUDGE OF SUPEEME COUET. 

After Gov. Carlin was inaugurated he made an order 
removing the secretary of state, and appointing another in 
his stead. His right to do this Avas denied by the incum- 
bent, and he refused to deliver up the office. A proper case 
was made, and the question was presented to the Supreme 
Court for its decision. The court then consisted of Wilson, 
Lockwood and Brown, whigs, and Smith, a democrat. The 
court, by the three lirst named justices, decided that the 
governor had no power to make the change, to which Smith, 
justice, dissented. 

When the Legislature assembled in December, 1839, it 
was found to contain a large majority in each house of 
democrats, when this decision assumed a political aspect. 
As the judges of that court were elected for life or during 
good behavior, there was no mode of re-forming that court, 
as it was called, but by increasing its members; so a bill was 
passed adding five more members to the court, who were 
to be elected by joint ballot of the General Assembl}^ To 
fill these places Breese, Douglas, Ford, Scates and Treat 
were elected. A bill was also passed requiring the judges 
of the Supreme Court to hold the Circuit Courts in the nine 
circuits into which the State was divided, and assigning a 
particular circuit to each. 

This measure was strenuously opposed by the old judges, 
who did not relish the idea of being again required to do 
circuit dutv. 




SAMUEL H. TREAT, 



CIRCUIT SCENES. 91 

Ford was assigneil to the ninth circuit, in several counties 
of which I had kept up my practice during my residence on 
my Plainfield farm. 

Having recovered my health, in the spring of ISiS I re- 
moved into Kendall county, preparatory to returning to 
Chicago to resume my practice here, after the close of the 
spring courts in the ninth circuit. "While attending the court 
at Geneva, which was the last court of the spring circuit, 
Judo:e Ford received a communication from the Democratic 
State Committee that they had nominated him a candidate 
for governor at the ensuing August election in place of Col. 
Snyder, who had been previously nominated by the State 
Convention and had lately died. Before we separated Judge 
■ Ford privately told me not to return to Chicago, as I had 
contemplated, but to remain in Kendall county; that he 
should be elected governor, and that the governor would 
appoint me his successor, and that he thought me the best 
qualified of any member of the bar in the circuit, I conse- 
quently remained there till after the August election, at 
which Governor Ford Avas elected by a large majority. That 
very night I started for Quincy, where Governor Carlin re- 
sided, when I presented myself before the governor as a 
candidate for the vacant judgeship. He received me very 
cordially, but as he had not yet received the resignation of 
Judge Ford, there was no vacancy to be filled; he said 
he should be happy to see me again, after he had received 
Ford's resignation. He gave me no other assurance than 
this that my application should be favorably considered, but 
I accepted this invitation as a favorable omen and returned 
to Lisbon, where my famih^ then was. Probably a week 
later I again presented myself before Governor Carlin, who 
again received me very cordially, and at once informed me 
that he had concluded to appoint me to the vacancy created 
l)y Ford's resignation, and wrote out the appointment, with 
a direction to the secretary of state to issue my commission, 
he having blanks in his office signed by the governor, With 
these documents I returned through Springfield and received 



92 EAELY BENCH AND BAR OF ILLINOIS. 

my commission from Mr. Trumbull, who was then secretary 
of state, when I went across the hall and was sworn into 
office by Judge Treat. This commission could only extend 
to the close of the session of the next General Assembly, 
which would by joint ballot elect a successor to Judge Ford. 
When the election occurred John M. Kobinson, late the 
United States Senator from this State, was elected, and at 
the end of the term I returned home supposing that my 
judicial career was at an end. 

Although Eobinson had been an active politician, he was a 
fairly good la wj^er, and possessed a good deal of what he him- 
self called horse sense. Pie held his first court at Lacon, then 
went up to Hennepin where he held the circuit, and thence to 
Ottawa, where he opened the court a week later. He was 
a man considerably advanced in years, with a constitution 
somewhat impaired, and on the second day of the term 
complained of illness, and a few days later took to his bed, 
where he died two or three weeks later. 

So soon as Governor Ford was informed of his death, he 
wrote out a commission entire with his own hand, which he 
sent me. This was my second commission as judge of the 
Supreme Court of Illinois. I now had two years to serve 
upon: the bench before the Legislature would be called upon 
to elect a successor to Judge Robinson. Before that oc- 
curred I had an opportunity of getting well acquainted 
throughout the circuit, and, as my friends thought, demon- 
^strated my fitness for the high office which I then filled, 
notwithstanding my lack of 3"ears, and was nominated 
unanimously by the party to which I belonged, which was 
largely in the ascendency in the General Assembly. 

ThC' opposite party nominated David Davis, who subse- 
quently became eminent as a jurist, when a member of the 
Supreme Court of the United States. His nomination, 
however, was well understood to be merely complimentary, 
by reason of the numerical strength of my party friends. 
When I was elected I received my third commission as a 
justice of the Supreme Court. This was for life or during 




DAVID DAVIS, 



CIRCUIT SCENES. 93 

good behavior, according to the provisions of the constitu- 
tion then in force. 

AA^'hen the Constitution of 184:8 was adopted, it abolished 
the Supreme Court of nine judges, and created a new 
Supreme Court of three judges, with only appellate jurisdic- 
tion, except in a few specified cases, and provided they should 
be respsctively elected by the people in each of the three 
grand divisions into which the State was divided. For this 
court. Treat, Trumbull and myself were elected, and then I 
received my fourth commission as judge of the Supreme 
Court. We organized the new court at Mount Yernon, in 
December, 18-i8. The constitution provided that we should 
cast lots at that term, as to which should hold the office 
for nine years, which for six years, and which for three 
years. This we did very quietl}^ and by ourselves in our 
own room. Treat drew the longest straAv, and so became 
chief justice of the court; I drew the second and Trumbull 
the third. Before Trumbull's term expired he was elected 
a senator to Congress, and Scates was elected to fill his 
vacancy. Before my term of six years expired Treat was 
appointed United States District Judge for the Southern 
District of Illinois, Avhen I became chief justice for nearly 
six months, or from Januar37^ to June, inclusive. 

During the last six months, when I held office under that 
fourth commission^ it was by a rather doubtful tenure. The 
constitution provided that our terms should commence on 
the first Monday of December, 1848, and should continue 
for three, six and nine years respectively, and provided that 
the elections for our successors should respectively be held 
in the June following, and made no provision for the inter- 
vening six months, j'o meet this emergency, the General 
Assembly passed a law providing that we should continue 
in office till our successors were elected and qualified. 
Whatever might be said of the constitutionality of this act, 
it was thought to give color of office sufficient to make us 
officers dejacto, so as to make our acts as legal and binding 
as acts of officers de jure would be. 



91 EAELY BENCH AND BAR OF ILLINOIS. 

At the expiration of my term thus extended, I was elected 
to succeed myself for the nine years term, in June, 1S55. 
At the same time, Judge Skinner was elected to fill the 
vacancy caused by the resignation of Judge Treat, who was 
appointed United States District Judge, when Scates, who 
had beeu elected in the Third Grand Division to succeed 
Judge Trumbull, became chief justice by virtue of his hold- 
ing the oldest commission. 

As before stated, at the June election in 1855, both 
Skinner and myself Avere elected, and on this I received my 
fifth commission as judge of the Supreme Court of Illinois. 

As the constitution provided that the judge holding the 
oldest commission should be chief justice, the governor, per- 
ceiving that embarrassment might arise from the omission 
of the constitution to determine who should become chief 
justice when two of the judges should hold commissions 
bearing the same date, iskied my commission one day 
earlier than that to Skinner. "When we met at Mount 
Vernon for the November term, 1857, of the court. Skinner 
claimed that the governor had no right thus to determine 
who should be chief justice, and that a fair way to settle^ 
the question was by casting lots for it. Of course the 
decision of this question fell upon Judge Breese, who had 
been elected to succeed Judge Scates in June, 1857. Judge 
Breese decided that as I actually held the oldest commission, 
the constitution declared that I should be th.e chief justice, 
and then I took my seat as presiding officer of tliat court 
for the second time, and held that office until I resigned, in 
1864. 

This short historical sketch shows how two embarrassing 
questions were disposed of during the time embraced in it.' 
I thought it proper to recall them here. The first was, how 
the hiatus was bridged over between the expiration of iny 
six years commission, which occurred in December, 1854, 
and the election of m}' successor in June, 1855; and the other 
was as to how I became chief justice, after the resignation 
of Chief Justice Scates, when both Skinner and myself were 




LYMAN TRUMBULL. 



CIRCUIT SCENES. 95 

elected at the same time in 1S57. It also shows how I be- 
came Circuit Judge for the Ninth Circuit, from August, 1842, 
to December, 1848, with the exception of about two months. 
Durino- that time some interesting circuit scenes occurred 
which I may give hereafter. 

VIII. 

LYNCH LAW PUNISHMENT OF THE OFFENDERS. 

Two years before I came to the Supreme Bench, I had 
been called to Ogle count}", which was in the ninth circuit, 
to prosecute an action on a note of hand, which had been 
given to a particular friend of mine, for an improvement 
and claim on the public lands. As the lands in that part of 
the State had not yet been brought into market, claim titles 
were the only ones known in that region, and the courts and 
lawyers had, by a sort of universal consent, adopted and ad- 
hered to rules adapted to that class of titles, and we acted 
upon them with as much assurance as if they had been 
adopted by the Legislature, or were to be found in the books 
of the common law. Well, in this case a defense was set uj) 
that the payee of the note had not a good title to the claim 
for which it was given, and as my client had left the county 
after he had sold his claim, the witnesses managed to throw 
sufficient doul)t over his right to induce a jury of the neigh- 
borhood to find a verdict for the defendant; but I made a 
stubborn fight in an np-hill case, and was soon engaged in 
several other cases then pending, and in some which were 
to be tried at the next term of the court, so I was fairlv 
engaged in practice in that county, although when I went 
there first I only expected to try the particular case which 
called me there. 

A year later I was retained in the most imjiortant case, 
nominally at least, in which I was ever engaged. That was 
to defend one hundred and twelve men charged with the 
crime of murder. For some years before, there was a sort 



96 EARLY BENCH AND BAR OF ILLINOIS. 

of an organized band of criminals, principally engaged in 
horse stealing and counterfeiting, but who on occasions did 
not hesitate to commit murder. They became bold and defi- 
ant. They were well known throughout the community, 
and had many sympathizers, who, in order to turn suspicion 
from themselves, roundly denounced them w^hen in certain 
circles; indeed, they were so well organized and bold, and 
had so many s^nnpathizers, who did not profess to be of 
them, that it was impossible to punish them even upon the 
clearest proof of guilt. The jail was broken open and 
burned to liberate some of the gang who were confined in 
it, and some of their sympathizers would always manage to 
get on the jury, so that a conviction became impossible. 

But the evil-doers consisted of but a small percentage of 
the population of the county, a great majority of whom 
were as excellent men as could be found in any other com- 
munity. The}^ seeing that the arm of the law was too short 
to afford them protection for either life or property, formed 
themselves into a sort of association or club, the declared 
object of which was to rid the community of the criminal 
class; one Campbell was elected captain of this club, which 
also elected several subordinate officers. This was done on 
Saturday, and, as its proceedings w^ere open and public, they 
were known immediately throughout the county. The des- 
peradoes saw at once tha,t they must strike such a terror 
throughout the community as to disintegrate the members 
of this club oy the force of fear, or they must go themselves. 
They saw it was an issue of blood, and did not hesitate to 
accept it at once. By arrangement three of the gang were 
to commence operations by assassinating, in the most public 
manner, Campbell, the leader of the association, and accord- 
ingly, on Sunday, rode up to his cabin in broad daylight, 
called him to the door and riddled him with bullets. 

The news of this terrible tragedy was known throughout 
the county by Monday morning, and without call or notice, 
the members of the club assembled at their appointed rendez- 
vous, and details were sent out to arrest and bring in the 



CIRCUIT SCENES. 97 

murderers. This was finally accomplished, and they were 
brought before the assembled club in a grove a few miles 
south of the county seat. There a court was organized, con- 
sisting of a judge and jury, all of whom were sworn by a 
justice of the peace, to impartially try the case and a true 
verdict to render. Witnesses were sworn before this tribu- 
nal, who saw the murder committed, and who positively 
identified the prisoners as the murderers. Lawyers had been 
appointed to prosecute and defend the prisoners and every 
formality was observed which was characteristic of a regu- 
larly constituted court of justice established by law. A 
verdict of guilty was returned, and a sentence passed that 
all should be shot on the spot. A company was detailed to 
carry the sentence into execution, which was done at the 
word of their commanding officer. 

This prompt proceeding struck such a terror into the crim- 
inal class, that the most notorious of them fled at once, with- 
out standing on the order of their going, and their sympa- 
thizers were dumb with terror. 

As every member of the club who was present, was in 
the eye of the law guilty of murder, I was at once consulted 
as to the wisest course to pursue. I unhesitatingly advised 
that an indictment should be procured against all who were 
present at tlie execution, feeling perfectly assured that they 
could, be acquitted then, while a change of condition, of pop- 
ulation, and of public sentiment might, without a judgment 
of acquittal standing upon the record, give them trouble at 
some future time. Accordingly an indictment was pre- 
sented against one hundred and twelve who were present 
at the trial and execution of the culprits. Of course, my 
consultations had been with only a few of the leaders, but 
now it was necessary to have them all together, and accord- 
ingly we marched out onto a little isolated peak in the 
prairie, and I had them formed in a circle around me, 
while I called over a list of the defendants, when all 
answered to their names except four, who were unavoidablv 
absent. Even the sheriff, in whose nominal custodv thev 
7 



98 EARLY BENCH AND BAR OF ILLINOIS. 

were, was convenient!}^ absent, and no one but the prisoners 
and myself were within two hundred yards of us. I was 
assured that no one of them had boasted of the transaction, 
or in any way admitted that he was present at the time, 
and I saw no difficulty in the way, except as to the four 
defendants that were notpresent, in whose favor a judgment 
of acquittal was as necessary as to the others; but this was 
got over by selecting four of the party, each of whom was 
to answer for one of the absentees when his name should be 
called in court to plead to the indictment. "When all of the 
mauy details wei'e arranged for the conduct of the case, we 
marched back to the court house, which was cleared of all 
others, as supposed, and when my numerous clients filed in 
they filled the little courtroom quite up to the table around 
which the lawyers sat. While the court was waiting for 
our appearance it had been occupied with some unimpor- 
tant business, so that all was ready to proceed with the case 
when we arrived. The case was at once called, and the 
clerk proceeded to call the prisoners, who promptly answered 
to their names. I confess I felt a little anxiety whenever 
the name of an absentee was called, but the proxies all 
answered promptly and without another word, until the last 
answer was made, when some one near the door hallooed 
out in a rather tremulous voice, " That ain't him." 

This caused a flutter of excitement for a moment, and the 
judge directed that name to be called again, Avhenthe proxy, 
who was standing away back in the crowd, again responded , 
for his principal, and no one could tell who had interrupted 
the proceedings in the manner stated. The clerk proceeded 
with the call of his prisoners, and all were declared to be 
present, and I entered a plea of not guilty for the whole 
lot, when the jury was called. Of course, with the number 
of challenges which we had, I could select a jur}^ to suit 
myself, but I had occasion to use very few challenges. The 
entire panel was of exceptionally good men, and we accepted 
the most prominent of these, while the state's attorney made 
very few challenges. He then proceeded with his testimony 



CIRCUIT SCENES. 99 

but utterly failed to prove that any person had been killed, 
much less that any of the prisoners had taken any part in 
killing anybody. The truth was, that no one was present 
at the trial and execution but the defendants, and no one 
could be found who had heard any one of them say a word 
about it. All the witnesses had heard rumors, with which 
the whole atmosphere was filled and had been ever since 
the event happened, but of course, these widely differed 
from each other, and some of them were wildly extrava- 
gant, but this was not legal testimony. I did not object to 
them, because I wished to demonstrate by their contradict- 
ory character how unreliable mere rumors are. I called no 
witnesses, no argument was made to the jury on either side, 
and I asked the court to instruct the jury that mere rumors 
were not evidence, which, of course, he did, and explained 
the law in his own way as to what evidence was necessary 
to authorize a conviction. The jury were absent but a short 
time, when they returned with a verdict of acquittal, upon 
which judgment was entered, and thus ended that celebrated 
case. 

There were in the town at the time quite a number who 
sympathized with the prosecution, every one of whom were 
Avell known, and some were allowed to manifest their feel- 
ings, but this was done more by looks and shrugs than by 
words, and very few remained in the county long after these 
events transpired. Many of my then clients have filled 
honorable public positions, in which they have acquitted 
themselves in the most useful and honorable way, and all, 
so far as I have ever learned, have deserved and have 
received the respect of their fellow-men. 

IX 

IXCIDEXTS OF TEIALS. 

"WTien I came to the bench of the Circuit Court of the 
Ninth Circuit crime was scarcely more frequent in Ogle 



100 EARLY BENCH AND BAR OF ILLINOIS. 

county than in the other counties, where less stringent 
measures have been necessary to check its perpetration. 
Indeed, no trouble existed in the enforcement of the law in 
the proper and legal way. Undoubtedly there were many 
still left to sympathize with those who had departed, and 
some were still left who were more than sympathizers, but 
all were known and watched. However, as time w^ent on, 
some assumed a bolder tone than others, and occasionally a 
horse w^as spirited away. 

Mr. Fridley had been elected state's attorney for the 
ninth circuit at the session of 1842-3. He found affairs 
in Ogle county rather quiet and orderly, with jurors care- 
fully selected from among the best citizens, and no unusual 
number of criminal prosecutions. 

At one term he found a man by the name of Bridges in 
the jail on a charge of horse stealing. Now, Bridges had 
an unsavory reputation, and had for a long time been 
believed to be more than a sympathizer with the criminal 
class. If he had fled from the county after the execution of 
the murderers of Campbell, he had returned with his family, 
and was ostensibly engaged in farming. Fridley had, with 
his usual industry and perseverance, gathered up all the evi- 
dence attainable, and made a case before the grand jury 
which would insure a conviction on the trial, and this be- 
came so well understood that his counsel, Mr. Peters, 
advised him to plead guilty, preferring to trust the court to 
determine the measure of the punishment, rather than to 
leave that to an Ogle county jury. 

I sentenced him to seven years in the penitentiary, which 
was more severe than Mr. Peters had expected, and which 
many of his outside friends characterized as outrageous, and 
even threats were floating about against us; but we paid 
little attention to these, feeling confident that the lesson of 
only two or three years before was still fresh in the memo- 
ries of the evil-doers, and that they would not again commit 
an outrage which might raise a greater storm of indigna- 




BURTON C. COOK. 



CIRCUIT SCENES. 101 

tion than even the first had done, and which miHit more 

o 

materially decrease tlie population of the county. 

At the session of 1844-5, Mr. B. C. Cook had been elected 
to succeed Mr. Fridley as state's attorney, and proved 
himself as persevering and efficient in the prosecution of 
criminals of all grades as the former had been. Indeed, he 
became as obnoxious to the criminal class by the energetic 
manner in which he discharged his duties, as I had by the 
sentence of Bridges and by my other official acts in the 
discouragement of crime, and threats against us both be- 
came more pronounced; Mr. Cook received some anonymous 
letters of a threatening character, but we heeded them 
little, feeling assured that if the criminal classes really 
meant injury they would not put us on our guard by letting 
us know it, and also feeling assured that a former lesson had 
not been forgotten. When the term closed Mr. Cook and 
nwself started in my buggy for Ottawa, our home. The 
road led through Hickory Grove, where there were two 
settlers, Mr. Bartholemew and Mr. Flag. The former 
entertained travelers in his log cabin, and we often stopped 
there both before and after. 

We arrived there all right in time for supper, had our 
horse stabled and fed, and prepared to spend the night; but 
when the nearly full moon came up, which rendered everv- 
thing almost as light as day, we concluded to hitch up and 
cross the sixteen-mile prairie to Paw Paw Grove. There 
was not a single settlement in the whole distance, but the 
trail was fairly beaten and the road good. We jogged along 
leisurely talking frequently of the threats we had heard, but 
entertaining no fear of their execution, till we reached Plum 
Thicket, six miles on our way. This was a little patch of 
but a few acres of wild plum trees and very few thick under- 
brush, and containing a few trees of considerable size, and 
is situated directly on the north bank of Kite Creek. This 
dense thicket had been mentioned as a favorite rendezvous 
for horse thieves, where the}' were in the habit of conceal- 
ing their stolen property, and one of us had suggested that 



] 02 EARLY BENCH AND BAR OF ILLINOIS. 

it was a likely place for them to make an attack upon us if 
they so intended, but for the reasons before stated we had 
no apprehension of this. The trail ran along on the north 
side of the grove and as close as possible to the hazel thicket, 
which bordered it. Into this thicket we could not see a yard, 
and all was dark in the somber gloom beyond it. Just as we 
got opposite the middle of the groYe, one vrithin it, and 
pretty close to us. hallooed out : '' Who goes there ? " And 
Mr. Cook thinks he saw a man in his shirt sleeves with a 
rifle in his hand, but I did not observe him. At this I con- 
fess my heart jumped pretty well up in my throat, and I 
will venture the opinion that it was much the same way 
with Mr. Cook; but I doubt if it occurred to him, that as I 
sat upon the right side and next the grove I might possibly 
serve as a shield to him, nor did that, then, occur to me. 

ISTeither of us spoke a word when we heard this salutation; 
but I gave Snap a check of the reins, which he well under- 
stood, and went on at a slashing trot, and in two minutes 
passed through the ford of the creek with a great splash, 
and up the steep bank on the other side, without losing a 
single step in his long swinging trot. Not a single word 
])assed between us, until we had got a mile from the ford, 
Avhen I inquired if his shotgun, which lay by his side, was 
loaded, but he Avas not sure whether it was or not. "We 
passed over the twelve miles, of course, to Paw Paw Grove, 
canvassing the situation as we went along, and soon con- 
cluded that there were no horse thieves or -their sympa- 
thizers in Plum Thicket, but that probably some innocent 
travelers had camped there for the night, who, to amuse 
themselves, had hailed us in the manner stated, and this is 
as near as I ever came to suffering the performance of the 
many threats which I have received for the performance of 
official duties. 

Several other incidents happened when I held the circuit 
in Ogle county, which, if not instructive, may be a little 
amusing. At one tarni on the first day a jury was sent 
out in an unimportant case, which I thought was a very 



CIRCUIT SCENES. 103 

plain one, and expected a verdict after a short deliberation, 
and was surprised to see them come into court after three 
hours and ask to be discharged, bacause they could not 
agree. I sent them back with the intimation that I very 
rarely recognized the imjiossibility of an agreement, especially 
in such a case, and certainly not without the most ample 
o])portunity for deliberation. They came in with the same 
report, and were sent back every day in the week, till Satur- 
day morning, when they brought in a verdict, as I thought 
it should be. So soon as the verdict was announced Mr. 
Peters, of counsel with the losing party, jumped to his 
feet, and moved to set the verdict aside, and in support of 
his motion, read an affidavit of his client, stating that one 
of the jurors, naming him, had, during one of the nights of 
the deliberation, left the jury room, and separated from his 
fellow jurors, not being in charge of any officer of the court, 
and had gone to the tavern, where he had slept all night in 
bed with another man. 

So soon as this affidavit was read an old farmer uamed 
Kellogg, from Buffalo Grove, one of the jurors, a hard-fisted 
and hard-headed settler, who claimed to be and thought he 
was an oracle in his neighborhood, jum]ied to his feet, and 
said: "Kow, Judge, I never would have agreed to that 
verdict in the world, but I knew you would have to set it 
aside," and then sat down with an air of great satisfaction. 

Immediately the counsel on the other side arose and read 
an affidavit of the juror named, which stated it was true; 
that having been worn out and made sick by the constant 
wrangling and disputations of one of the jurors with the 
other eleven for several days and nights, he had separated 
from the other jurors and gone to the tavern, Avhere he had 
slept in a bed with Mr. Peters that night, but that not a 
word had passed between them or between him and any 
other person in relation to the case under consideration, and 
that he had immediately returned to the jury room, and 
there continued until a verdict had been agreed upon. 

As Mr. Peters had nothing further to say, and as I was 



104 EARLY BENCH AND BAR OF ILLINOIS. 

Avell satisfied that no improper influence had been exercised 
upon the juror, I stretched the point a little, and overruled 
the motion, at which Mr. Kellogg seemed thoroughly disap- 
pointed and disgusted. 

I confess to a little surprise at the celerity with which these 
affidavits must have been prepared, but as I have before 
stated the circuit practice often required rapid thinking and 
rapid work, and as it might be that the facts were obtained 
by intuition only, and as neither party raised any questions 
about it, I did not think it my duty to do so. 

I may remark, however, that the jury had been author- 
ized to seal their verdict and then separate if they should 
have agreed upon a verdict before the (.>pening of the court, 
which they did; an investigation might have ex])lained how 
the facts were obtained, and the affidavits so promptly pre- 
pared. 

There was practicing at that bar an old bachelor named 
Fuller, who was a very good lawyer, but had his peculiari- 
ties, as old bachelors are frequently supposed to have. One 
of these peculiarities was that he was constantly in fear of 
taking cold, to avoid which calamity, except in very pleas- 
ant weather, he wore over his dress coat a surtout coat with 
the skirts cut off at the hips. 

On the opposite side of the river resided an English fam- 
ily of the name of Henshaw, who had associated in good 
society in the old country, and here entertained their friends 
with great hospitality. Some young lady friends were vis- 
iting them from Chicago, who much admired Mrs. Ilen- 
shaw's mode of cooking game, which was then very abun- 
dant there. One of them inquired of Mrs, Henshaw how 
she managed to have such tender, delicious venison, and 
she promptly replied that she hung it up by the tail till it 
dropped off. A few days later the young ladies crossed the 
river to do some shopping in town, and Avhcn they returned 
she inquired of them whom they had seen, when one of 
them replied, that among others they had met Mr. Fuller 
in the store where they were trading, when Mrs. Henshav/ 



CIRCUIT SCENES. 105 

inquired how they liked Mr. Fuller. The reply was that he 
was a very pleasant gentleman, but he appeared to have 
been treated as she treated her venison, and so he must be 
ripe, if not tender or delicious. Let me say to the credit of 
Mr. Fuller that he subsequently got married. 

Mr. Fridley had preceded Mr. Cook as before stated, as 
prosecuting- attorney in the ninth circuit, and during his 
administration a case of mavhem was sent down to Oole 
countv bv a chans^e of venue from Jo Daviess countv. 
When the jirosecutor was put upon the stand he showed u]) 
as a well built, powerful man, while the prisoner was rather 
a small man, and appeared as if he would be no match for 
the prosecutor in a fight; but there was one eye half 
forced from its socket, with a repulsive white appearanc?, 
which showed that he had got much the worse in the dis- 
pute. A brother of the complainant, and another jiersoii 
were present at the mill. The prosecutor and his brother 
both swore that the prisoner was the aggressor, while the 
indifferent b\^stander testified that the complainant had 
commenced the fight. All of the witnesses were examined 
in great detail from the beginning to the end, showing the 
progress and the end of the scrimmage. There were great 
discrepancies in the statements made by the brothers and 
the third witness, and as the science of jurisprudence 
had not so far progressed as to offer a high premium for 
perjury by allowing the prisoner to swear in his OAvn excul- 
pation, the evidence closed with two witnesses against one. 
Mr. Dickey, who was defending the prisoner, to overcome 
this advantage, in summing up to the jury pointed out 
many inconsistencies in the statements of the witnesses for 
the people, and insisted that the story told by his witness 
was the most probable and natural for the occurrences of 
such a fight, and said that if Scott or Bulwer or Cooper, or 
any other great novelist, were going to describe such a fight 
in a novel they would describe it just as his witness had 
testified to this one, simply because it was most probable 



lOG EARLY BENCH AND BAR OF ILLINOIS. 

and natural — most consistent with human action under such 
conditions. 

In reply to this Fridley in his closing speech said that 
Mr. Dickey had told them that if a novelist Avas going to 
])ut in his novel an account of such a fight as this was, he 
would ])ut it down just as his witness had stated it here. 
" Well," said Mr. Fridley, " I agree with Mr. Dickey in this. 
Now what does a novelist do, when he's going to write a 
novel? He just sits down and invents the infernalest lie 
he can think of. Then he tells the story in his book, and 
that's just the way with Mr. Dickey's witness, ile just 
invented this big lie, and then came here and told it to you, 
but lie didn't expect you to believe it any more than you 
would a novel. Mr. Dickey was right in what he said and 
he don't believe it either." 

This was a shot fatal to an otherwise promising case. 
The prisoner was convicted and sent to the penitentiary. 

X. 

STORIES AND INCIDENTS OF TKIALS. 

I have had occasion to mention Mr, Fridley as prosecuting 
attorney and as an actor in some of the circuit scenes in 
Ogle county, and as I shall probably have occasion to men- 
tion his name hereafter, I may be pardoned a few lines 
descriptive of him as a lawyer. 

Benjamin F. Fridley Avas certainly a man of some remark- 
able characteristics. His mind was clear and ]3enetrating, 
his observations exceptionally acute; his study of mankind 
was much more profound than his study of the law. He 
was witty without knowing it, and his sense of the ludi- 
crous was really brilliant without his appearing to a])]3re- 
ciate it. I scarcely ever knew him to laugh, while his quaint 
suggestions would sometimes ]:>rovoke laughter in others, 
though generally these were made in so solemn and matter- 
of-fact a way as not to provoke boisterous laughter, but 
rather a quiet internal satisfaction. 




BENJAMLN F. FRIDLEY. 



CIRCUIT SCENES. 107 

He readily perceived the vital points of a case, though 
Avheu his interest could be subserved therel^y he could a])pear 
t(j be as stolid as a block about them. His primary educa- 
tion Avas very limited, and his orthography Avas nearly as 
remarkable as that of Chief Justice Wilson, who always 
assumed that the proper way to s])ell any word was to use 
as many letters as could possibly be appro]iriated for the 
])urpose. I observed once, when sitting beside him on the 
bench, and Stephen T. Logan was arguing a case and quoted 
f r<;>m Dana's rejiorts, that in making a note of it he Avrote it 
down Dahioj; and yet any one who will read over his opin- 
ions will observe that he was really a fine scholar, and a 
clear and perspicuous writer. 

His opinions will compare favorably with those of any 
other judge to be found in our reports. With this example 
before us we are not at liberty to condemn Mr. Fridley for 
his bad spelling. He, too, was a very poor reader, but by 
pauses, repetitions and em])hasis, he could cover this up 
most ingeniously, and would manage to give what he read 
a meaning to suit himself. I never saw evidence that he 
had ever read a literary work in his life and 1 doubt if he 
ever read a lavr book through, but he knew a great deal of 
law, and what he did know^ he was able to turn to the very 
best account. He learned his law from his observations in 
courts or in conversations with other law^yers. When he 
heard a proposition of law stated for the first time he could 
tell intuitively whether it was good law, by determining in 
his own mind if it ought to be law. When it suited his 
jHirpose he would pretend to be ignorant of a principle 
which he well understood, and would pretend to be unaljle 
to understand a ruling which he perfectly comprehended. 

He was the originator of many aphorisms, which I often 
hear repeated, the author of which is not generally known; 
for instance : Fridley and I were appointed by Judge Ford 
at the DeKalb Circuit Court to defend an impecunious 
horse-thief. AVhen Ave Avere congratulating ourselves tliat 
the eA'idence was quite insufficient to convict him, as a last 



108 EARLY BENCH AND BAR OF ILLINOIS. 

resort, the officer wlio arrested him was put upon the stand, 
who testified that the prisoner had confessed to him that 
he had stolen the horse. At this point the court adjourned 
for dinner. When walking up to the hotel together, 1 re- 
marked to Fridley that a very good case had been badly 
spoiled by that last witness. " Yes," answered he, " in this 
country, if a man is amind to be a darn fool, there is no 
law agin it." 

After our man was sent to the penitentiary I repeated 
this to the judge and lawyers present, who seemed to think 
it a very forcible and novel way of stating a plain propo- 
sition, and I have often heard it repeated since to illustrate 
a great variety of conditions to which it was applicable. 

Fridley was state's attorney for two years during my ad- 
ministration on the circuit bench, and he was certainly a 
most efficient prosecutor; in the main he was just and fair, 
but when fully convinced that the prisoner was guilty, he 
was sure to convict him in one way or another. When the 
emergency required it, he exceeded all men I ever knew to 
worm in illegal testimony, and he would contrive to make it 
tell, when it was ruled out, but he would do it in such a way 
as to avoid censure, and yet to make the very ruling out of 
the evidence tell against his opponent, sometimes by an af- 
fectation of illiteracy. The first time he went round the 
circuit as prosecutor, many of the lawyers evidently thought 
they would have a fine time, and sought to expose his want 
of education in various wa3^s, and particidarly by moving to 
quash his indictments for bad spelling and bad grammar, 
which they would parade to the amusement of tlie audience; 
but these were generally overruled, as they expected they 
would be, but this was invariably followed by a successful 
prosecution, whether the prisoner was guilty or innocent, so 
that it was not long before this amusement was found to be 
too expensive to be indulged in, unless the defense was 
deemed so clear that conviction was thought to be impos- 
sible. 

When I was holding the Kane Circuit, the grand jury 



CIRCUIT SCENES. 109 

came into court, and com])lained that they had found an 
indictment against a man for larceny, but that the state's 
attorney refused to draw the indictment; whereupon Mr. 
Fridley stated that he had heard all the evidence before the 
grand jury, and was certain that no conviction could be had: 
tliat the man complained of had found an old ])lowshare in 
the weeds by the side of the road, and supposing that it had 
been lost or thrown away, had thrown it into his wagon and 
taken it home, without any felonious intent; and that he did 
not deem it his duty to put the county to the expense of a 
useless trial. I told him that he had better draw the indict- 
ment, and when it should be returned into court he could do 
with it as he thought best. 

The defendant was a German, a middle-aged, well-to-do 
farmer, and not having well understood what had taken 
place in court, was greatly alarmed upon learning that he 
had been indicted for stealing the old plowshare, and in 
hot haste employed Mr. Peters to defend him. Mr. Peters 
feeling that he was in conscience bound to do something to 
earn the fat fee which he intended to charge the wealth v 
old German, and in order to anticipate a nolle j>ros. by 
Fridley, hastened to make a motion to quash the indictment 
in a rather ostentatious way, raising the most trivial objec- 
tions which he argued in a way to give the impression 
that the state's attorney did not understand his business, 
although in conclusion he tried to smooth it over, as if he 
feared to wound Mr. Fridley's susceptibilities. When he 
closed I promptly overruled the motion to quash witliout 
hearing from Mr. Fridle}^, when Mr. Peters turned to the 
state's attorney with a rather consequential air, and asked 
him Avhat he proposed to do with the case, expecting no 
doubt a nolle pros, at once, but Fridley was fairly aroused 
by this motion to quash, and Avith the greatest coolness 
rose and replied that he proposed to try it and to convict 
the prisoner, too; that upon a partial understanding of the 
case before the grand jury he had believed that the prisoner 
had found the plowshare, and picked it up innocently, 



110 EARLY BENCH AND BAR OF ILLINOIS. 

l3ut on a more thorough examination of the evidence, and 
the discovery of new facts, which showed that the prisoner 
had concealed it among some old iron in a loft, he was con- 
vinced it was a most flagrant case of deliberate larceny, 
which it was his duty to prosecute to the utmost; that he 
was now convinced that the grand jury was right, and that 
he had been wrong, and that he Avould show the court and 
jury how wrong he had at first been, and concluded by say- 
ing, " Let a jury come." 

There was a snap in his dark, keen eye, shining out of a 
solemn, stoical countenance, which showed that he was much 
in earnest. 

Mr. Peters now appreciated his peril and the indiscretion 
he had committed. The effect of Mr. Fridley's statement 
in court was already parried. He had no knowledge of the 
facts of the case in detail, and he feared there might be 
something which might be successfully urged against him. 
It was a hot day in June, and the percpiration burst out in 
great beads, covering his naked pate and fat face, and run- 
ning down his cheeks in a torrent. A jury was called and 
the trial began — and it was a trial. 

During the prosecution there was a combination of mild- 
ness of manner and ferocity of effect which I have scarcely 
seen equaled. The trial lasted until nearly dark, when the 
jury was sent out, and I adjourned court for supper. 

When the court met after tea the jury brought in a ver- 
dict of '^ guilty." The poor German almost fainted when 
he was informed of the verdict, and the perspiration rolled 
from Mr. Peters in more copious streams than ever before, 
while Fridley sat as calm and immovable as a statue. A 
motion was immediately made for a new trial, and as it was 
in tlie evening of the last day of the term, I told Mr. Peters 
that I would hear from the state's attorney, who simply said 
as it was late he vrould leave it to the court. I then summed 
up the evidence, briefly showing that, in my opinion, the 
plowshare had been picked up without any felonious intent, 
and concluded by ordering a new trial. 



CIRCUIT SCENES. Ill 

Mr. Peters then arose, as mild a mannered man as one 
often sees, turned to Mr. Fridley, said in a rather soothing 
voice : '' After hearing the views of the court on the subject, 
I appeal to yo^^ if 3^ou consider it your duty to prosecute 
this case further ? " Fridley arose, and in a very calm voice 
said, " Oh, Mr. Peters, if j^ou cease to occupy a hostile atti- 
tude, I will dismiss the case." 

Mark Fletcher was clerk of the Circuit Court of Kane 
County, and a most excellent clerk he was, too. He had a 
vein of quiet humor about him in which he frequently in- 
dulo^cd. He had taken an American silver dollar and 
placed it on the outside of his Bible, on which he adminis- 
tered official oaths. He then ])laced it in his press and 
made a deep and distinct impression of the coin on the cover 
of the book, on the opposite cover of which there was a 
cross. "When asked Avhy he had the impression of the dol- 
lar on the book, he replied that vrhen he swore a Catholic 
he presented that side on which the cross was shown, but 
when he swore a Yankee, ho jiresented that side of the book 
on which the dollar was shown. 

At one term of the court a case of divorce was tried in 
Avhich a Presbyterian minister from Elgin was the com- 
plainant. He ]^roved a pretty strong case of the miscon- 
duct of the defendant by several witnesses brought from 
Quincy, Illinois, but not being entirely satisfied, I held the 
case over for further consideration. A day or two after I 
called the case up, reviewing the evidence, and expressing 
my doubts about its sufficiency and the hope that some fur- 
ther evidence might be produced which would remove my 
doubts. Some bystander from Elgin, having misunder- 
stood what I had said, rushed away in hot haste and in- 
formed the clergyman that I had granted his divorce. 
Whereupon, the same evening he was married to a sister of 
his flock, but after two days of wedded bliss he learned, to 
his consternation, that I had not decided the case at all. 

He immediately started for Geneva, and rushed into the 
court in breathless haste just as I was about to adjourn it for 



112 EARLY BENCH AND BAR OF ILLINOIS. 

the term, and made known the pli,o-ht in which he found 
himself. His despair was unmistakable. I allowed him to 
ba sworn. His testimony rGmoved all doubt and I granted 
the decree. I was told that he hastened back to Elo^in with 
as much speed as he had shown in his way down, and was 
married over again as quickly as some one could be found 
to perform the ceremony. 

At another term of the same court three men were 
indicted for the burglary of a log cabin in the country in 
which lived a Scotch family. The man of the house was 
away at the time; only the wife and several small children 
were in the cabin and necessarily she was the only v\-itness. 
All of the burglars were masked, but she recognized them 
all bv their voices, for thev lived in the neiorhborhood and 
she knew them all. The manner in which she gave her tes- 
timony was very convincing; indeed, I have rarely seen a 
witness whose testimony more favorably impressed me. On 
the ci'oss-examination by their counsel, she was required to 
detail with great particularity every act which each one of 
the defendants did while ransacking the house for plunder. 
During the examination she had stated that one of the 
defendants had done some act which I do not now remem- 
ber. Instantly that defendant whispered something to his 
counsel, who nodded his head and Avent on with the 
examination on the line which he was then pursuing; 
after a while he came back to the same point and led her 
over the same ground as before, but when she came to 
this particular point she stated it differently from her 
former statement. Counsel then asked her if she had not 
formerly stated it was so and so; she stated that she had 
not, or if she had it was a slip of the tongue. 

This was most convincing proof to me that her statements 
were certainly true, for if the defendant had not been 
present he could not have known that she made a mistake 
in relating the transaction, and there could be no doubt that 
his whispered communication to his counsel told him of that 
mistake. However, the state's attornev had not seen the 



CIRCUIT SCENES. 113 

transaction as I observed it, nor did I tell him of it until 
afterward. Indeed, I was convinced that the jury would 
convict them, and so were they, for they disapjieared that 
night, being out on bail. I kept the jury together till the 
sheriff brought the defendants back. He found them stowed 
away in the hold of a vessel in the Chicago harbor which 
was about to sail for the lower lakes. It was late in the 
evening of the last day of the court when he returned with 
his prisoners, and I received the verdict, and sentence was 
passed. The severity of the punishment inflicted induced the 
suspicion that the jury had probably changed that part of 
their verdict during the two days they had been kept to- 
gether waiting for the return of the prisoners. 

XI. 

LIFE ON THE CIRCUIT. 

I ol)serve in the daily press that some one has introduced 
into the Legislature a bill authorizing the judges of courts 
to charge the juries in cases tried before them as they may 
think the merits of the case require, without being strictly 
confined to written instructions. Such was the law during 
the early years of my judicial service, and in important cases 
I frequently adopted that mode, deeming it possible in that 
way to assist the jury in arriving at correct conclusions. In 
New York, where I had studied my profession, such was the 
universal practice of the courts. My observation there had 
taught me that the greatest care was necessary for the judge 
not to seem to take sides with either party — not to express 
any opinion or bias as to which party should succeed — but 
simplv to review the evidence, if necessary, with exact fair- 
ness, and to clearly state the principles of law applicable to 
it. There I had observed that whenever a judge assumed 
the role of an advocate, his opinions at once ceased to have a 
preponderating influence, and were not treated with any 
more consideration than were those of the lawver advocat- 



114 EARLY BENCH AND BAR OF ILLINOIS. 

ing the same side; whereas the judge who showed perfect 
impartiality was listened to with the greatest deference and 
confidence. By these observations I profited in my mode of 
charging juries, and I now believe that I could do more in 
that way to assist juries in arriving at correct conclusions 
than I could have done by adhering strictly to the written 
instructions asked. 

At the next term of the court in Kendall county after the 
present law requiring written instructions to be adhered to 
by the courts, Mr. Butterfield, who had practiced for many 
years in the New York courts, was in attendance. 

Mr. Dickey, who was much pleased with the passage of 
the new law, spoke to several members of the bar of it, and 
among others addressed Mr. Butterfield, and asked him if 
he did not think it an excellent law. " Oh, yes," said Mr. 
Butterfield, " it is a most excellent law. Tie up the hands 
of the court, and turn loose the pettifoggers, and undoubted 
justice will always be done." I thought then, and I still 
think, that this Avas a forcible way of stating an undoubted 
truth. If a judge is worthy of the seat he occupies, he is 
entitled to confidence and respect, and should be entrusted 
with the impartial administration of justice in his court. 
Courts are instituted to administer impartial justice accord- 
ing to law to all suitors before them, and not to sit Iw and 
see justice perverted because one lawyer happens to be 
smarter than the other, and should not be compelled to act 
as mere stakeholders between the advocates. 

Mr. Butterfield was undoubtedly a very able lawyer, and 
would often illustrate an idea by comparison, with great 
force, which, however, was frequently more apt than con- 
vincing. AYhen the case of the Shawneetown Bank was 
before the Supreme Court he represented the bank. That 
bank had been created and was doing business before the 
second constitutional amendment had been adopted. That 
constitution prevented the creation of any new banks. 
"When the charter of the old bank was about to expire by 
limitation, a law was passed extending its charter, and the 



CIRCUIT SCENES. 115 

question was, whether this was the creation of a new l)ank, 
which was prohibited by the constitution. In arguing 
the case before the Supreme Court Mr. Buttertiekl said: 
'' May it please the court, Avhen God lengthened out the days 
of old Hezekiah, was he the same old Hezekiah as before or 
a new Hezekiah ? " 

In the olden time judges, lawyers, jurors and witnesses 
all had to be accommodated at some little hostelry at the 
county seat, where it would take two or three tablefuls to 
feed all the guests; then when the bell rang for a meal 
there would be a rush for the dining room, when none stood 
upon the order of their going. A table was usually placed 
near the door, upon which the guests as they passed in threw 
their hats or wraps in a promiscuous pile. Mr. Helm, a resi- 
dent lawyer of Yorkville, a man of full habit and pretty 
large proportions, in going out had some difficulty in find- 
ing his own hat, and in his efforts tried on several which 
Avould not fit him; all were too small, for his hat was nearly 
as big as a bee-hive. He had just laid down a small hat, 
which would barely sit upon the top of his head, and picked 
up his own, when Mr, Butterfield came along, and claimed 
the little one which he was about to lay dovrn, when Mr. 
Helm remarked : '" Brother Butterfield, it seems to me you 
have a very small head. My hat Avould cover your face as 
well as your head." " Yes, yes, Brother Helm," said Butter- 
field, "3''ou have a very thick head but mine is a good deal 
the longest." 

His wit was generally of an unfortunate kind, for it 
usually partook of caustic sarcasm, "which left a rankling 
fester in the feelings of its object, and to indulge in this 
vicious habit he sometimes could not resist the temptation 
to even endanger a cause. I recollect once when he was 
arguing a case before the Supreme Court, Stephen T. 
Logan, who was from Kentucky and was a laudable admirer 
of the judiciary of that State, had quoted a very pertinent 
case from Pertle's Digest. When Butterfield came to 
answer him, instead of trying to explain away the case he 



116 EAELY BENCH AND BAR OF ILLINOIS. 

fell to abusing and ridiculing the Kentucky courts in such 
a way as to be offensive to the admirers of the eminent 
judges who had adorned the benches of that State, and 
especially did he ridicule Pertle's Digest. " Why,'' said he, 
" this Pertle's Digest may be good law south of the Ohio 
river, but whenever it gets north of that stream it should 
be taken up and impounded as an estray, but no man except 
a Kentuckian would ever come and claim the property and 
pay charges." 

In arguing a case once he was met squarely in the face by 
a statute passed by our Legislature, and he had nothing to 
do but to abuse the law and the lawmakers who passed it. 
It was an old statute and was evidently a surprise to him. 
In his tirade against the Legislature that passed the law, he 
drew pictures of the members of the General Assembly, 
and among other things said : " Their only means of sup- 
port is to hunt coons and go to the Legislater." (lie always 
pronounced this and similar words in that way.) Judge 
Lockwood, who had been getting mad for some time at this 
vicious tirade, broke in and told Mr. Butterheld that he 
would not sit there and hear a co-ordinate branch of the 
government so unjustly vilified. 

But let me come back to the Circuit Courts. 

At a term of the Circuit Court of Peoria County which 
was held by Judge Koerner, with whom I had exchanged 
circuits for the time during Fridlcy's administration as 
state's attorney, he had indicted a man in that court for 
stealing a five dollar bank note, of the value of five dollars, 
which at that time was a penitentiary offense. When the 
note was produced on the trial it proved to be from some 
eastern bank, and as the larceny was clearly proved, his 
counsel directed their attention exclusively to reduce the 
value of the bill to less than five dollars, and so save their 
client from the penitentiary. They produced some of the 
bank officers by whom they proved that that money Avas at 
a discount of two or three per cent. 

To rebut this, Fridley called one of the jurors, Mr. 




(lUSTAVUS K( )K1{NER. 



CIRCUIT SCENES. 117 

Stephen Voris, who was a prominent merchant of the phice- 
Mr. Yoris testified that most of the currency in circuhition 
there, consisted of eastern, bank notes, most of which, in- 
cluding this bill, passed at par in ordinar}^ business transac- 
tions; that he received it at par at his store in payment for 
goods sold, and also in payment for accounts and notes due 
him. He introduced sev^eral of the merchants of the place 
Avho testified to the same thing, and that it was only when 
they had to buy eastern exchange, or when they wanted to 
get specie for a legal tender or the like, that they had to pay 
a premium when using this kind of money. The defend- 
ant's counsel insisted strenuously that the statute meant gold 
and silver, Avhich was the only legal tender at the time 
when the limit was fixed which fixed the value of the 
things stolen, which determined whether the offense should 
be punished in the penitentiary or not. But Fridley was 
equal to the emergency. In summing up to the jury he 
pointed out to them, that it -\ras their province to de- 
termine the value of the goods taken. "And," said he, 
"you, Mr. Yoris, and these other merchants here, would 
take this bill at par, in payment for goods sold at your store, 
or for debts due you, without thinking to shave your cus- 
tomer two or three cents on the dollar, but this infernal 
rascal here ain't willing to steal it at par ! Such monstrous 
audacity should be punished by a year or two extra in the 
penitentiary." This settled the prisoner's case, but the jury 
only gave him a year of punishment. 

Once when trying a case in the Peoria Circuit Court I 
was provoked to laughter to such a degree that I was un- 
able to control it. The case was tried by Wm, L. May on 
one side, and by Knolton on the other. May had received 
a fair education, but that was all. He was a politician by 
profession, and was a fairly good lawyer as well. Knolton 
was a collegiate graduate, but was verv uncouth in his man- 
ners and exceedingly slovenly in his habits. The case in- 
volved the construction or rei)air of a house, and in the 
course of the trial some technical architectural terms were 



118 EARLY BENCH AND BAR OF ILLINOIS. 

used, one of whicli was written out in the pleadings, which 
May had frequent occasion to use in the course of his cross- 
examination. This term was not pronounced as it was 
properly spelled in the pleadings. Whenever he had oc- 
casion to use this term he pronounced it as it was spelled. 
Whenever he did this Knolton would correct him in the 
])ronunciation in a low voice, but so everj^body could hear 
liim. This was very offensive to May, and every time the 
correction was repeated he got madder and madder. He 
had a very fair complexion and sandy hair. Finally his 
face grew livid and his red hair seemed to stand on end. 
Knolton did not observe this, but kept on repeating the cor- 
rection as often as opportunity occurred. At length the 
explosion came, when May jumped to his feet, his powerful 
frame fairly trembling with emotion; he leaned across the 
table right over Knolton, and brandishing his fists he ex- 
claimed : " Perhaps you know, you say you do ! Perhaps 
you are right, you say you are ! Perhaps you are a learned 
man, you say you are ! Perhaps you have been through 
college, you say you have ! But I never saw your diploma, 
and I wouldn't judge you had by the way you talk." Knol- 
ton, who had not observed the rising storm, turned partly 
around, and looking into May's face seemed struck dumb by 
the fearful expression on his countenance and his wild 
gesticulation, and fairly crouched down as if to avoid an 
attack which he was in nowise prepared to resist. 

Now, this does not seem very funny or laughable when 
described in words, so it must have been the accompanying 
incidents which made it seem so supremely ludicrous to me. 
The sort of climax which May poured out upon his crouch- 
ing victim before him was uttered very rapidly and distinctly 
with all the force and vehemence which his rage could 
inspire. At least I was so overcome Avith laughter that I 
had to get down beneath the bench as if to pick up some- 
thing until I could decently compose myself. 

At the proper season of the year we usually passed up the 
river on a steamer from Peoria to Lacon— the next court — 



CIRCUIT SCENES. 119 

and as tlie river steamers had no regular times of passing 
Peoria, we sometimes had to prepare quickly for the jour- 
ney. At one time, when it was announced before the court 
had adjourned that a steamer bound up had arrived, I closed 
up the business as soon as possible and adjourned the court 
and hastened at once to the landing. Mr. Peters, who had 
been engaged until the last moment, started down with the 
rest of us, but some one reminded him that he was in his 
slippers, which sent him into a shoe store which we passed, 
where he got a pair of boots, which were tied together at 
the straps, and he came trotting after us at the best speed so 
fat a man could make. We all arrived in time, and when 
we went into the cal)in the temperature of Mr. Peters was 
so high that he concluded to continue in his slippers, and 
not put on his boots until we should arrive at Lacon. In 
due time we were all assigned to state-rooms and went to 
bed. Some time in the course of the night the watchman 
came through the cabin crying fire. At this, of course, 
every one jumped up. I opened my state-room door to see 
what I could. At that instant Peters burst out of an adjoin- 
ing room and rushed down the cabin to the companion"vvay, 
which was a good way off, in his drawers, and one of his 
new boots on a foot, while the other was dragging after him, 
hanging by the string in the strap. The hair on the back 
of his head seemed to stand out as if charged with electricity, 
and on his countenance was an expression of anxiety, not to 
sa}'" terror. 

The scene was so ludicrous that I believe if the boat had 
been on fire from stem to stern, I should have laughed till I 
cried. By the time he reached the companionway, or head 
of the stairs which descended to the lower deck, word came 
that the fire was out, when Peters quietly hobbled back to 
his room in the midst of a crowd of passengers, who by this 
time got from their state-rooms into the cabin, mostly in 
very light habiliments. Then others laughed as well as I. 
The fright was over and all were more or less en dishahiUe, 



120 EARLY BENCH AND BAR OF ILLINOIS, 

when the ludicrous features of the scene could be well ob- 
served and appreciated. 

Quite different feelings were once excited during the trial 
of a case in the Marshall Circuit Court. That case involved 
a collision between the Prairie Bird, which plied between 
Peoria and Peru, and a descending steamer, which Avas tow- 
ing along her side a barge loaded with gunpowder. As is 
very common in such cases, there was great discrepancy in 
the testimony between those on the different boats, as to 
their respective positions at the time of the collision. 
Several sportsmen were going up the river on the Prairie 
Bird on a duck shooting excursion. Some of them testified 
that when they heard the shock of the collision, they opened 
the Avindows of their state-rooms on the port side, and saw 
that the boat was lying in the water grass near the shore, 
Avhile the pilot and several others on the descending boat, 
testified that she was in the middle of the river, Avhich Avas 
her place; that the Prairie Bird was ascending as if to pass 
her on the left hand side, but that she suddenly changed her 
course, as if to cross the river, and pass her on the right hand 
side, Avhich brought her right in front of the boAvs of the 
descending boat, so that to avoid the collision Avas impossible. 
The pilot said that before the boat struck, he saAv that the 
barge, loaded Avith powder, the boAv of Avhich projected some 
distance beyond that of the steamer, must inevitably strike 
the Prairie Bird right at the mouth of her furnaces, the 
doors of Avhich Avere open and lightened up everything 
around them; and he expected that the ])owder Avould become 
ignited, Avhen both boats and everybody on them must bo 
instantly bloAvn to atoms, and that nothing saved them but 
the fact that the lines Avhich held the barge to the boat gaA'e 
Avay, when the barge rebounded and floated off in the cur- 
rent, and then his boat crashed into the other in such a Avay 
as to force the Prairie Bird so far onto his boAvs as to hold 
her there, and until he backed his boat clear across the river 
and stopped on the other shore. The pilot's description of 
the situation, and especially at the time Avhen he realized 



CIRCUIT SCENES. 121 

that the barge must crash into the furnaces of the other 
boat, when destruction would be certain to all, was so vivid 
and realistic, that I confess a shiver ran through my whole 
frame, and I think that many others experienced a similar 
sensation. 

It must indeed have been an awful moment when he felt 
certain that that was to be the last, not only for himself but 
for so manv others, and then to think what a revulsion of 
feeling must have occurred when he saw the lines part and 
the barge float innocently away. 

When he came to this part of his testimony, I confess I 
felt a relief, at least somewhat akin to that which he ex- 
perienced when the incident occurred. 

XII. 

TRIAL OF ME. LOVEJOT. 

In my last article I gave an account of a trial which took 
place in Peoria county, of a man who wanted to steal cur- 
rency at a discount, which took place before Judge Koer- 
ner, with whom, as before stated, I had exchanged circuits 
temporarily. I had also made a similar exchange at 
another time with Judge Young, and as all the incidents 
given in these papers are written (vicariously) from memory 
alone, I frequently slide over events, which I find to be a 
very convenient mode of avoiding misstatements when my 
recollection is indistinct. 

I can not resist this opportunity to state that the kind- 
ness and courtesy which I received at the hands of the bar 
of Judge Koerner's circuit and of his personal friends, while 
I was tilling his place there, were very gratifying at the 
time and are still green in my memory after the lapse of 
forty-five years; nor can I resist the inclination to state the 
fact that of the seventeen judges with whom I sat on the 
supreme bench of this State, Judge Koerner and Judge 
Trumbull alone remain, both of whom possess the vigor and 



12i2 EARLY BENCH AND BAR OF ILLINOIS. 

elasticity, both mental and pli3"sical, of middle-aged men, and 
that two of us have been enabled, a considerable time since, 
to celebrate our golden weddings, and that we are still 
going on toward another period of those happy events. 
While both of these gentlemen are still actively engaged in 
the practice of the profession, I must enjoy the luxury of 
mental employment in other ways, and hence it is that I 
have troubled the editor and readers of this journal with 
these papers about the bench and the bar of the olden 
times. 

I will now proceed with other events according to my best 
recollections. 

At a term of the Circuit Court which I held in Bureau 
county, the grand jury returned an indictment against Owen 
Lovejoy, for assisting a runaway slave to escape. That was 
before the organization of the republican party by the 
amalgamation or co-operation of the whigs with the abo- 
litionists. Previous to that time the latter had been equally 
held in disestesm by both political parties, for the simple 
reason that to have done otherwise would have amounted to 
political suicide. The abolitionists held and maintained 
their opinions from the deepest conscientious convictions, 
well appreciating that their doctrines must subject them to 
the charge of disloyalty to the constitution and laws of the 
o-eneral o-overnment, which forbade them to assist in the 
escape of runaway slaves from the slave States, and these 
Federal laws were supplemented by State laws, in most, if 
not all of the free States, and our black laws, as they were 
called, manifested the greatest zeal in this direction. 

Indeed, I had been in Chicago but a short time, when 
some overzealous person entered a complaint under our 
statute against all the negroes in town (some six or eight in 
number) for being in the State without free papers, which 
was an offense against the statutes as they then stood; this 
created consternation among these men, all of whom had 
come in from the I*^orthern States, where such papers were 
unknoAvn, and were astonished to find that thev were liable 



CIRCUIT SCENES. 123' 

to be convicted and sold into a sort of slavery for the want 
(^f the evidence which the statute required of their freedom. 
The laws here made no provision for such cases, for the 
reason, probably, that it had never occurred to the law- 
makers that a negro could ever come from any but a slave 
State. 

The County Commissioners' Court was then in session 
here. I sent each one of my clients to bring up witnesses 
to prove that he was a free man and came here from a free 
State, and ap])lied to the court for free papers, not basing 
my application upon any statute, but upon the very 
necessity of the case. By this time a large majorit\^ of the 
town and county were from the free States, while most of 
those from the Southern States had no sympathy with a 
prosecution which was so unjust and wicked as the one noAv 
])ending before the magistrate outside. After a long and 
hard struggle before the court it made an order granting 
my motion, and I was authorized to prepare the certificates 
of freedom for each of my clients, which Col. Hamilton 
tlrew up in the most elaborate form and had duly exe- 
cuted, and the seal of the County Commissioners' Court 
was attached; to this was added the signature of the 
clerk and of all the members of the court. With these 
certificates I hastened to the maoistrate's office, where the 
case was pending, and offered them in evidence in defense. 
It was objected that they were not obtained in a manner 
conformable to the statute, but the justice held that they 
were good enough certificates for him, and discharged my 
clients, each of whom walked proudly out of court with the 
certificate in his pocket. See act of 1829, § 2, in Field's 
Eev. Stat., p. -101:. 

I may say here that it was very rare to find an immigrant 
from a slave State, who was not quite as earnest to protect 
a free negro in all his rights as he was to have a runaway 
slave returned to his master. As I have said, both political 
parties were anxious to avoid the charge of being called 
abolitionists, and manifested an equal zeal for the conviction 



124 EARLY BENCH AND BAR OF ILLINOIS. 

of Lovejoy. He was tlie most prominent abolitionist in the 
northern part of the State, able and courageous to the last 
degree. He was a pastor of a church in Princeton with the 
largest congregation of any in the county, all of whom were 
pronounced abolitionists, and there were many others there 
who did not belong to his church or congregation, but who 
w^ere scarcely less abolitionists than he, and as bold and 
outspoken on the subject. As is usually the case, this defiant 
and outspoken sentiment engendered an equally zealous 
opposition to it, and this state of public feeling in the 
county had extended to all the northern jwirt of the State, 
more pronounced in the adjoining counties than further 
away, but still active enough to make the approaching trial 
a subject of extensive interest and comment. Arrangements 
were made long beforehand, and money subscribed to bring 
Alvin Stewart, a famous abolition lawj^er, from Utica, 'N. Y., 
as leading counsel in the defense, and it was well known that 
James H. Collins, of Chicago, my former law partner, and 
an equally ardent abolitionist, would take part in the defense 
of Mr. Lovejoy. 

I had known Mr. Stewart when I was a law student in 
Utica, and had often been present in court when he was 
trying causes. In one respect, at least; he was the most ex- 
traordinary man I ever saw. His face was anything but 
beautiful, and there was a mobility about its muscles which 
enabled him fairly to gesticulate with his countenance. 
The distortions of his face, Vv^hile supremely ludicrous, were 
alwa3^s suggestive, and even brilliant at times, and never 
approached in the remotest degree the appearance of imbe- 
cility. His language was well chosen, but very odd. His 
similes and illustrations were incongruous and yet very ex- 
pressive. His tone and accent were of the most solemn 
character. Not a smile was ever known to rest upon his 
face, and yet I will undertake to say that no man ever 
listened to him for ten minutes without being absolutely 
convulsed with uncontrollable laughter, no matter how 
solemn or interesting his subject. After a few sentences the 



CIRCUIT SCENES. 1 25 

laughter would begin, when judge, jury, lawyers and the 
audience would all yield themselves u]j to laughter, which 
they, at first, could not restrain, and finally did not want to. 
I once heard him argue a very common-])lace, matter-of-fact 
case before the Supreme Court of Xew York, when all the 
judges u])on the bench were fairly in convulsions with 
laughter. He never said a sill}^ thing, but always odd be- 
yond comparison; it was his tone and facial expressions 
which provoked to laughter quite as much as what he said. 

It may not be surprising, then, that knowing Mr. Stewart 
as I did, I was pleased to hear that he was to take part in 
the defense of Lovejoy, for I knev/ it would afford him oc- 
casion for a supreme eft'ort to display his sarcasm, his 
vituperation, his denunciation, in language, tone and ex- 
pression so different from that ever heard before, and 
especially so laugh-provoking, that I was very anxious to 
hear him again, and be again shaken up with laughter as I 
had not been for many years. 

But Stewart did not come and the defense fell upon Mr. 
Collins alone. The subject-matter of the trial was sufficient 
to crowd the house every moment, evincing the deep 
interest felt throughout the community. The witnesses 
sworn were all on one side. The prosecution proved that a 
large fat negro woman was domiciled in Mr. Lovejoy's 
house for several days, and they offered to prove by several 
^vitnesses that she said she was a slave, belonging to a man 
in Missouri, whose name and residence she gave, and that 
she had run, or been assisted, away, and was on her way to 
Canada and freedom, and that Massa Lovejoy was a mighty 
good man, and helping her along; but all of this testimou}' 
I of course ruled out, holding that it was only hearsay 
evidence, and especially that of a person Avhom the law 
would not credit when under oath (for then the sworn 
testimony of a negro could not be admitted against a white 
man), much less could her unsworn statements be received. 
A number of witnesses were ofl'ered who had conversed 
with Mr. Lovejoy, to all of whom he had stated that she 



126 EARLY BENCH AND BAR OF ILLINOIS. 

was a woman, needy and in distress, and that he was going 
to help her to where she could help herself. 

A public meeting had been held to raise funds to help her 
along, to which Mr. Lovejoy had made a speech, detailing 
her sufferings and necessities, and at which others had 
spoken, detailing her account of her slaver}'', her sufferings 
and escape, but of course all this had to be ruled out as in- 
competent evidence against Mr. Lovejoy ; indeed, not one 
word was proved from beginning to end, showing that Mr. 
Lovejoy had ever admitted or intimated that the woman 
was, or ever had been, a slave. Evety expression proved as 
coming from him Avas carefully guarded, so as not in any 
way to incriminate him as connected with this woman. lie 
denounced slavery and slaveholders in general terms, pic- 
tured the sufferings of the slave, and declared in livid lan- 
guage that it was the duty of every man who deserved 
happiness in this world and beatitude in the next, to con- 
secrete the means which God had given him to the escape 
of slaves from their cruel bondage to a place of freedom ; 
but for this Mr. Lovejoy was not indicted, and so I ruled it 
out as incompetent, although it was impossible to keep it 
out in the first instance, for counsel had a right to prove 
what he said in his speeches to find if something criminat- 
ing could not be found in them. 

Able counsel was employed to assist the state's attorney 
in this trial, and the case was summed up most elaborately, 
but, no doubt, more for the benefit of the audience than for 
the jury. While ])robably no j^erson in the court room had 
the least doubt that Mr. Lovejoy well knew that the woman 
was a slave, and as such was helping her escape from her 
master, that he was in fact president of the underground 
railroad^ as it was called, by which slaves were assisted to 
escape, and its chief manager, there lacked the legal evi- 
dence that this woman was a slave. Mr. Collins argued the 
case with his usual ability, pointing out the entire insuffi- 
ciency of the evidence to justify a conviction. 

In that case I charged the jury fully upon the evidence 



CIRCUIT SCENES. 127 

and the law, admonishing them that the excitement and 
prejudice which might pervade the whole community, and 
the moral conviction, if they entertained such conviction, 
of the defendant's guilt, should have not the least influence 
upon their verdict, if they did not find legal evidence to 
justify a conviction; that a storm of excitement and preju- 
dice might be raging around them, but they must stand up 
against it, like an adamantine rock, against which the waves 
of the sea dash without making the least impression; that 
unless there was legal evidence sufficient to show, beyond a 
reasonable doubt, that this woman was a slave, they musl, 
acquit the defendant; and they did acquit him, greatly 
to the chagrin of the anti-abolitionists, and as greathT" 
to the joy of Mr. Lovejoy and his partisans. The rejoicing 
of the latter was undoubtedly the most heartfelt and sincere, 
for they acted from a deep and conscientious conviction 
of duty, while the feelings of the others were more political 
than moral. 

XIII. 

AXTI-SLAVERT TIMES IX ILLINOIS. 

But the abolition spirit was by no means confined to 
Bureau county; it was equally earnest and zealous in por- 
tions of Putnam countv, of which Bureau had formerly 
formed a part. Laraoil settlement was situated about six 
miles from Hennepin on the edge of Grand Prairie. Within 
the last ten 3^ears this had become a large and prosperous 
settlement, with its schools and churches; with hardly an 
exception the inhabitants of this neighborhood were aboli- 
tionists of a very pronounced type. 

When I opened a term of the court at Hennepin the grand 
jury was called, and when the name of one of the citizens 
of Lamoil was reached he stepped forward and said : "Judge, 
I must decline to be sworn on this grand jury, for ray con- 
science will not allow me to swear that I will execute all 



12S EARLY BENCH AND BAR OF ILLINOIS. 

the laws of this State. I know that my refusal to do this 
will subject me to fine and imprisonment, but these I shall 
cheerfully submit to rather than violate my conscience." 

I at once saw that I had a martyr to deal with, who was 
ambitious to suffer for conscience'' sake, so without another 
word I told him to take his seat and we would see to his 
case later. The panel was completed, the jurors sworn and 
sent out, and I went on with the other business of the court 
without any further reference to the case of the martyr. 
When court opened the next morning the conscientious juror 
"was promptly on hand, and called up his case himself, and 
inquired of me what punishment I proposed to inflict upon 
him for refusing to be sworn on the grand jury. I answered 
him that I had not time to consider his case yet, and should 
not be able to do so for a day or two, and told him that I 
would let him know when I wanted him. He took his seat 
with evident disappointment, and there he sat all clay with 
a steadfastness which was now becoming interesting. The 
next morning he again called up his case and expressed an 
anxiety to know what his fate was to be, that he might be 
suffering the punishment and have it over. I again told him 
that I had not time to consider the matter, but that when I 
wanted him I would manage to let him know. He indus- 
triously devoted another day to holding down a wooden 
seat in the court room, and this proceeding was repeated 
every morning in the week until Saturday, when he again 
applied for sentence, and I told him he might go home, that 
I did not think that the State had been a sufferer to an 
appreciable amount by the loss of his services, and so I 
should not inflict any punishment at all u})on him. He cer- 
tainly looked more mortified and chagrined at not being 
punished than most persons do when they are punished. 

Mr. Dickey's father was a Presbyterian clergjnnan, and 
was in charge of a church situated at Mount Palatine, and 
Avas fully in sympathy with his people on the subject of 
slavery. One day during the term Mr. Dickey drove out to 
visit his father, and in the course of conversation his father 



CIRCUIT SCENES. 129 

expressed bis abhorrence at the imprisonment ^Ybic•b bis 
neighbor and parishioner was suffering in the jail at Henne- 
pin for conscience' sake, and expressed the opinion that such 
barbarities in a Cliristian community woukl do more to 
spread the lights of freedom than all the words which could 
be uttered, be they ever so eloquent. The old gentleman 
seemed much astonished and chagrined when told that his 
good neighbor had not been imprisoned at all or fined, nor 
yet had received a word of reproof from the court for refus- 
ing to be sworn, but had all the week hung about the court, 
begging daily to be punished, a prayer which was constantly 
refused him. The reverend gentleman's disappointment at 
this termination of the affair was evidently not a whit less 
than was that of the intended martyr himself, and he was 
even loath to believe that what his son told him was true. 
He said that it was reported and generally believed through- 
out the community, and such re])orts had been sent abroad, 
that the poor man had been hurried off to jail, and was there 
languishing on bread and water, for how^ long a period no 
one could tell, and that meetings had been held and prayers 
had been offered that he might be given strength and forti- 
tude to valiantly suffer for righteousness' sake. 

Mr. Fridley had three indictments found by a Peoria 
grand jury against one Bennett, a farmer, who lived back 
in the country; one was for stealing a horse, another for 
stealing a wagon, and a third for stealing some other article 
Avhich I do not now remember. Powell, Bryan and Knol- 
ton were engaged to defend him, and as he had a very 
unsavory reputation in Peoria county, they applied for a 
change of venue, and by agreement the case was trans- 
ferred to Putnam county, which, by the clipping off of 
Bureau and Marshall counties, had so reduced its size and 
population as to leave sufficient time to dispose of an occa- 
sional case from other counties in the circuit. 

In the course of the trial Fridley introduced a nephcAv of 
the defendant, who, upon the death of his father and mother, 
had gone to live with his uncle, who from the very first 
9 



130 EARLY BENCH AND BAR OF ILLINOIS. 

had initiated him into tlie profession of thieves, and the 
boy had become so expert that hy his hands he committed 
most of his larcenies. "With great particularity and candor, 
the boy detailed with minuteness the manner in which his 
uncle conducted his criminal business, and the manner in 
which he had conducted the boy's education in the same 
line. 

There was great abundance of corroborating as well as 
direct evidence, tending to support the charges made 
against Bennett. 

In his summing up, Fridley drew a graphic picture of the 
man who would take his own brother's son, who was left 
without father or mother or friends to care for him, and 
compel him to turn thief under his own diabolical instruc- 
tions. 

After summing up the case in a very forcible, not to say 
brilliant manner, Fridley concluded as follows : " But, 
gentlemen, what do I do ? You are going to send this man 
to the penitentiary for ten years for stealing a horse. I 
shall next try him for stealing that wagon, and he will go 
up ten years for that, and then there is the third indictment 
against him, which I shall next try, and he is sure of ten 
years'for that, which is the worst case of all of them. This 
makes thirty years of hard work, which he owes to the 
people of the State of Illinois, and as I judge he is now 
about fort}^ years of age, and as but seventy years are 
allotted to man, he can only have time to work out what 
he owes the State, so that every minute I detain you here I 
am defrauding the people of this State out of the services 
which he owes them." Neither party asked any instruc- 
tions, and the jury was sent out immediately. 

The next case was called up at once, and Bennett's coun- 
sel made an effort to have it continued or postponed, but as 
no good reason could be shown, I overruled the motion, and 
directed a jury to be called. Just at this moment the first 
jury came in with a verdict of guilty and ten years in the 
penitentiary. 



CIRCUIT SCENES. 131 

At this point his counsel all withdrew from the case, stat- 
ing that thej could be of no further service to him, where 
the law was so swiftly administered. I then asked the 
prisoner if he wished to employ counsel. He answered no, 
as he proposed to try his own cases thereafter. He did so 
and he tried his case fairly well, and made a pretty little 
speech to the jury, rather pleading for mercy than denying 
his guilt. Fridley did not press him hard, and the jury 
brought in a verdict of guilt}', fixing the punishment at five 
years in the penitentiary, and Bennett manifested a satis- 
faction in the fact that he had been more successful in his 
own defense than his counsel had been for him in the other 
trial. 

Now, I forget whether Fridle}" tried the third case imme- 
diately thereafter or had it continued and stricken from the 
docket with leave to reinstate, but I do remember that in 
passing the sentence I directed the last five years to com- 
mence on the expiration of the first ten years. 

When it is remembered that I had twelve counties in my 
circuit, in each of which I had to hold two courts a year, 
besides my Supreme Court duties, and that three of these 
were large counties, Peoria, La Salle and Kane, requiring 
about two weeks each at a term, and that I was determined 
to clear every docket at each term, it will be readily appre- 
ciated that quick work had to be done, and no time unnec- 
essarily lost. In Peoria county, especially, which was the 
largest county in the circuit, we had to be very industrious; 
there I usually opened 'court at eight o'clock in the morn- 
ing, and with an hour's intermission, held on until dark, 
and frequently until late at night. I recollect at one time 
that I tried seven jury cases and received seven verdicts in 
one forenoon. Though all of these cases were contested, 
none of them were of any great importance. As a general 
rule, questions of the admissibility of evidence were not 
allowed to be argued, but were decided as soon as raised, 
and so of all motions which arose during the trial. 

Probably the questions which arise at the present day in 



132 EAELY BENCH AND BAR OF ILLINOIS. 

our courts of justice may be much more difficult than those 
which were then presented, but then I never could afford 
the time to hear argument in support of a position about 
which I entertained no doubt in niy own mind, nor even 
against it for any great length of time, unless I thought 
counsel were talking sense or to the purpose. Let it be 
remembered, again, that the circuit system prevailed at that 
time, which compelled everybody to think quickly and to 
act promptly. 

When I first began to practice in Putnam county, as 
stated in one of the earlier numbers of this series, there 
was already a pretty large settlement in the Ox-bow Prairie, 
of members of the Society of Friends, with many of whom 
I soon became acquainted, and when they learned that I 
was born and brought up in that denomination, and still 
had a o-reat reverence for the tenets of mv father and mother, 
they directly claimed me as one of their own, and seemed to 
feel rather proud of me, and treated me with the greatest 
kindness and affection, and sent me in apples and other 
delicacies, when I attended court in that county. Now, 
fifty years ago, the men of this denomination held it to be 
a matter of conscience to wear their broad-brimmed hats on 
all occasions, whether in court, in church or in the drawing 
room, and it was not deemed improper, if one could endure 
the discouifort, to wear his hat at the table; and there Avas 
manifestl}^ great rejoicing throughout that community, when 
they learned that I was appointed to preside in their court, 
and for the first time they then obeyed summonses to 
sit upon the juries; it was quite interesting to see, when I 
first opened court there, what a considerable proportion of 
the audience consisted of my brethren, all studiously covered 
with their broad-brimmed hats, not one of which was re- 
moved when the court was opened. They now felt at full 
liberty without molestation to thus bear their testimony 
against the vanities and ceremonies of the world, which the}'" 
conscientiously felt they were doing by neglecting to uncover 
the head in the presence of any mortal, however exalted 



CIRCUIT SCENES. 133 

might be his position. In this they were following the 
example of their great prototypes, Barkley, Fox and Fenn, 
Avho refused to be uncovered, even in the presence of the 
king. 

Of course I allowed them to indulge in this peculiarity to 
their heart's content; even to the extent of martyrdom, 
which they sometimes seemed to suffer in very hot daj's by 
wearing their hats without even remo^'ing them to wipe off 
the perspiration from their sweltering brows. It was almost 
ludicrous to see two or three jurors in the box thus covered, 
and to see them take the affirmation which they did in place 
of the oath, still wearing the uncomfortable broad-brimmed 
hat. If they were a peculiar people, and indulged a feeling 
of pride without appreciating it by thus adhering to a mere 
form, the}" were still a conscientious people of the strictest 
integrity in all their transactions with their fellow-men. 
They, too, were abolitionists of the strictest kind, and jn'ided 
themselves upon the fact that the founders of their religious 
denomination more than two hundred years ago were the 
first among Christian peoples to bear their testimony against 
human slavery, and to this they had always adhered with the 
tenacity of a religious tenet. They greatly rejoiced to see 
others, even at this late day, rising up to join them in this 
great work. 

If they were an obstinate and a stiff-necked people, ready 
to sacrifice everything for their beliefs and principles, they 
were equally tenacious in maintaining and upholding the 
highest measure of personal integrit}^. 

Temperance, too, was made a part of their religion, which 
they carried further than the most pronounced prohibition- 
ist would be required to practice at the present day. It 
was a religious offense to knowingly sell even a bushel of 
corn or of rye to be distilled into whisk}^, to do which must 
be followed by repentance or expulsion, and that, too, when 
for the want of transportation there were scarcely any other 
markets for those cereals but the distilleries. But for their 
tenacity to non-essentials, such as in dress, in language, in 



134 EARLY BENCH AND BAR OF ILLINOIS. 

forms, and in amusements, and the like, I believe they 
would be, to-day, the most numerous Christian denomination 
in the land. IBut for their tenacious adherence to such 
utterly unimportant and nonsensical actions, by which they 
repel from their communion their own rising generation, who 
refuse to submit to and be bound by their unyielding and 
unaccommodating notions, which they call principles, they 
Avould have continued to grow and prosper and gather into 
their fold from the outside world large reinforcements at- 
tracted to their fellowship by the excellence of what maybe 
strictly considered their religious and moral teachings. Fa- 
naticism may assume various guises, and be fanaticism still, 
and usually expresses the most sincere beliefs of the human 
heart. 

They refused to limit their discipline to matters of relig- 
ion and morals, but so insisted in enforcing a yoke upon 
the necks of all those who desired to walk with them in 
matters purely religious and moral, that an ever increas- 
ing number, of their younger members especially, walked 
out from among them, till now they are so diminished in 
number that a large percentage of the people know nothing 
of them. I am still a birth-right member of that denomi- 
nation of Christians, for all who are born within the fold are 
members in full fellowship, until " read out " for some 
breach of discipline unatoned for by expressions of penitence 
or regret, and since ni}^ marriage out of the church, for 
which offense, without acknowledgment of contrition, I 
should have been lopped off as a branch from the true vine, 
I was never Avithin the jurisdiction of a meeting authorized 
to call me to account, and as they could not act without 
jurisdiction of the person and giving me an opportunity to 
repent, which I am very sure I never should have done, I 
am still a member in full standing, and nominally, at least, 
as ffood a member as the best of them. 

My friends in the Ox-bow never raised any question or 
troubled themselves about this matter, but seemed ever 
pleased to extend to me their gracious regards, and the neat 



CIRCmT SCENES. 135 

and plain dress of both men and women, with which I was 
so familiar in the days of my boyhood, reminded me so 
forcibly of that maternal love which was ever glowing in 
my memory, that they always looked beautiful to me, and 
they still awaken memories so fond that I trust they Avill 
ever continue. 

XIV. 

TEIAL OF PHILLIPS FOR MURDER. 

In the fall of 1842 one Phillips, a farmer, living on Indian 
Creek, at the north end of La Salle county, had a difficulty 
with his neighbor of the adjoining farm about cattle or 
fences or something of the kind, and in the course of the 
controversy Phillips shot and killed his neighbor. I do not 
remember at what term he was indicted for murder, but I 
am quite sure that the trial took place at the fall term 
of 1843. 

During the session of 1842-3 the Legislature passed an 
act increasing the punishment of manslaughter, and repeal- 
ing so much of the old law as defined the punishment for 
that crime. The previous punishment for that offense could 
not exceed three years in the penitentiary and a fine of one 
thousand dollars, and I had heard it said that at the same 
term of court one man had been sent to the penitentiary 
for one year for killing another man, while another culprit 
had been sent to the penitentiary for five years for stealing 
a horse. But, be this as it may, the Legislature did pass a 
law repealing that part of the statute which had fixed the 
maximum punishment of manslaughter at three years im- 
prisonment in the penitentiary, and inflicting another pun- 
ishment with a higher maximum. 

As both Phillips and the deceased were well-to-do farmers, 
and were well known through all that part of the country, 
the occurrence created much excitement, which was by no 
means confined to the immediate neighborhood. 



2 36 EARLY BENCH AND BAR OF ILLINOIS. 

While Phillips Avas not -without his friends, they were, 
however, largely in the minorit3^ 

When the trial came off the large concourse of citizens 
who filled the town testified to the deep interest that was 
felt in the matter. I had changed circuits with Judge 
Young for a part of the spring term, and while he was sitting 
for me in La Salle county he had bailed out the prisoner, 
Avhich had the effect of increasing the clamor against 
Phillips. 

Fridley was prosecuting attorney at that time. Whether 
the friends of the deceased had employed counsel to assist 
him in the prosecution I do not remember, but my impres- 
sion is that he was alone in the prosecution. Purple and 
Dickey were employed for the defense. 

A jury was obtained without difficult}^, mostly from the 
southern part of the county. The homicide was clearly 
])roved, so there was no serious question on that point, and 
the defense relied upon was that the killing was accidental. 
At least two witnesses saAV the transaction. The evidence 
showed Phillips' cattle were in the field of the deceased, 
who was pursuing them with his dog, and setting him onto 
the cattle with great vehemence. When the defendant saw 
this he seized his rifle and rushed out to the fence which 
divided the two fields belonging to the respective parties, 
and fired the fatal shot. 

The defense insisted that the shot was fired at the dog, and 
that the man was accidentally hit. There was considemble 
discrepancy as to the relative positions of the man and the 
dog, so there were plenty of grounds for one party to insist 
that the man might have been hit by a shot intended for the 
dog, while the other insisted that they were so far apart 
that the shot which killed the man must have been intended 
for him. 

Fridley tried the case upon the theory that it was mur- 
der, pure and simple, while Dickey and Purple bent all their 
efforts to show that at most it was but manslaughter, and 




AN'THONV THORNTON. 

Er-Juilye of the Sx/irfnii' Cuiii-I <i( niim 



CIRCUIT SCENES. 137 

it Tvas manifest that this was the best verdict they could 
hope to secure. 

Of course, counsel on both sides were well aware of the 
l^assage of the new law since the killing took place, but 
neither alluded to it during the trial. Fridley evidently 
did not wish to concede that in case a verdict of man- 
slaughter should be returned, the judgment would have to 
be arrested; and the other side of course, would not inti- 
mate such a result for fear it might force the jury to deter- 
mine that the homicide was murder rather than to allow 
the prisoner to escape without punishment. In my charge 
to the jury, of course I was entirely silent as to that sub- 
ject, for, as a matter of law, the jury had to determine 
whether the offense was murder or manslaughter, without 
regard to the consequences which might follow their con- 
clusion, only if they found a verdict of manslaughter, they 
should fix the term of punishment in the penitentiary, not 
to excesd the period of three years, which was the limit 
of the old law. The jury was sent out in the course of the 
afternoon, and at the usual time for adjournment I took a 
recess, informing the sheriff that I would come in and 
receive the verdict should it be agreed upon in the course of 
the evening. I was notified of an agreement by eight 
o'clock, and when proceeding to the court house a great 
many people were on the street hurrying up to hear the 
verdict. I was walking with Mr. Dickey. We approached 
in front of the jury room, w^hich was on the second floor, 
the window of which was open, and we distinctly heard a 
loud i^eal of laughter, in which, apparently, several of the 
jurors joined. 

Dickey at once clapped his hands in joy and said there 
^vas no hanging in that laughter, that if they had found 
his client guilty of murder no one of the jury would feel 
like laughing, and so it was. A verdict of manslaughter 
Avas rendered and the court was adjourned for the day. 
The next morning a motion was made in arrest of judgment, 
which, after argument, I sustained and discharged the pris- 



138 EARLY BENCH AND BAR OF ILLINOIS. 

oner, holdino: that the la^Y which fixed the measure of 
punishment for manslaughter at the time this crime was 
committed liad been repealed absolutely and without any 
saving clause, and as the new statute could not have a 
retroactive effect, there was no law now in existence pro- 
viding for the punishment of manslaughter committed 
before the repeal of the old law and the enactment of the 
new. 

Well, now, this decision did mal:e a clamor of great vio- 
lence, to say the least. On the sidewalks and at the street 
corners I was denounced in most violent terms for turning 
loose a murderer, with an encouragement to him to go and 
kill somebody else. Public meetings were held and raving 
speeches were made, in which I was denounced in certainly 
as bitter terms as was Phillips, and an address to Gov. Ford 
was adopted pointing out my unfitness for the place to 
which he had appointed me, and inquiring if he could not 
devise some way to remove me from the oflice which I so 
unworthily occupied. In due time they received an answer 
from the governor, in which, I was informed, he pretty 
sharply rebuked them for their unreasoning clamor, and said 
that they might congratulate themselves for having a judge 
who had the courage, in spite of threats and denunciations, 
to declare the law as it was ; that if I had had the weakness 
to yield to outside pressure, and refuse to arrest the judg- 
ment, the Supreme Court would, without a moment's hesi- 
tation, have reversed the judgment and set the prisoner 
free. After this, in a very few weeks the excitement 
quieted down, and I never, so far as I know, received a cen- 
sure for the course I took since. 

He who would creditably fill a judicial office must have 
the couras'e of his convictions, and act upon them regard- 
less of all other considerations. He must be deaf and blind 
to all outside influences, and have an e_ye single only to duty. 
When the Constitution of 1848 was adopted, making the 
judiciary elective, I, with many others, feared that it might 
have a tendency to impair the independence of a judicial 



CIRCUIT SCENES. 139 

office, and lower it to the level of the politician, and induce 
at least weak and ambitious aspirants to sometimes warp 
their decisions in compliance with the demand of popular 
excitement, as if they feared '' an appeal from the decision 
of the judge upon the bench to the multitude in the court 
house yard;" but experience has shown that these fears 
were practically groundless. If a firm and fearless dis- 
charge of duty has sometimes raised a popular clamor and 
denunciation, with us, at least, this is but short-lived. Calm 
reflection must soon take the place of excitement, when a 
reaction will set in, when approbation will take the place 
of denunciation, and re-establish a proper equilibrium. The 
public appreciates, scarcely less than the most thoughtful 
and conservative individual, the absolute necessity of a firm, 
pure and courageous judiciary. While it may tolerate 
weakness and vacillation, and even peculation, in other 
public positions, it can never be so with the judiciary. 
Trabonium and Bacon, perhaps two of the greatest legal 
lights that ever illuminated the profession, were only sus- 
pected of being influenced by improper motives, and yet 
that alone proved sufficient to throw them down from the 
exalted positions which they held to the lowest levels, even 
in public estimation. If, in our own times, similar sus- 
picions iiad been excited against a judicial officer, the same 
consequence has followed, and so I trust it will ever be. 
There are countries where it is said that the judicial office 
is so corrupted that judgments can be bought with money, 
but that can only be where the standard of morality is so 
low that the common people have come to believe that it is 
a necessary accompaniment of official life. With the in- 
telligence and enlightenment of our country, we may hope 
and believe that such can never be the case here, and that 
the standard of intelligence and integrity required of all 
juiljlic officers will be elevated to that measure now required 
for those who administer our laws, rather than that they will 
be dragged down to a lower level. 
At the time of the trial of which I have just spoken, I 



140 EARLY BENCH AND BAR OF ILLINOIS. 

was holding my commission by gubernatorial appointment, 
which must expire at the close of the next General As- 
sembly, by a joint vote of the two houses of which the 
place had to be lilled, and it would have been more than 
human for me not to have inquired, in my own mind, what 
effect so unpopular a decision as I was obliged to make 
would have on my pending election; but so far from having 
a weakening influence upon my determination to discharge 
my duty fearlessly, and to administer the law as I knew it 
to be, it fixed me in that determination more firmly than 
ever, if possible, and I afterward had the satisfaction of 
knowing that the course which I then pursued received 
the approbation and cordial support of those who then 
denounced me. Had I wavered one hair then, I should 
have deservedly been lost forever. 

Right on this point I may refer to another instance in 
illustration. When going to open the first term of the fall 
circuit in 1844, in Kendall county, I found the roads in a 
most horrible condition, showing that no road labor had 
been bestowed upon them. That was the Avettest summer 
that I ever knew in this country. All the slouglis were 
full of water, and had been tramped up until they seemed 
to have no bottom, and I myself, with a light carriage and 
two horses, got stalled in a slough not two miles from the 
court house, and had to pack my wife and children out to 
dry ground, and then to hitch the horses to the end of a 
pole, and draw out the carriage. If to be covered literally 
with mud constitutes an element of beauty, then, indeed, 
was I beautiful for once in my life. Well, now, I was out 
of humor, and I fear I continued so all the next day, which 
was Sunday, nor did I feel very amiable when I opened 
court on Monday. I was fairly saturated with the idea 
that a county with such roads must have a very shiftless 
population, and, above all, must have a very shiftless set of 
roadmasters, so that when the grand jury was sworn I was 
fully prepared to give them a charge on the subject, and I 
did it to the very best of my ability; especially I pointed 



CIRCUIT SCENES. 141 

out to tliom that the immigrant seeking to buy a farm, and 
to make a home for himself and his family, if he ever got 
into their county, would only seek to get out of it if he 
possibly could; that he necessarily would make up his mind 
that they were all a shiftless, trifling set, with whom he 
wished to have no fellowship; that when he passed out of 
their county he would shake their mud from off his feet in 
disgust. The result was that before night the grand jury 
brought in indictments against every road-supervisor in the 
county, and before I adjourned court that week I had the 
satisfaction of fining every one for neglect of duty. Indeed, 
all came in and pleaded guilty but one. Fridley had 
seconded my efforts with the greatest zeal. He had in- 
dicted this man on a bad slough, which Avas su])posed to be 
in his district, but upon the trial it was found that this 
particular slough was a few rods over the county line. 
Fridley circulated around for a few minutes, and soon 
found witnesses by whom he proved that there were two or 
three other bad places in the man's district, and the jury, 
after a few minutes' deliberation, returned a verdict of 
guilty, and I fined him ten dollars, while the others were 
all let off with five each. "When the cost of the prosecu- 
tion and of his counsel fee were added to the ton dollars he 
])robably wished he had pleaded guilty like the others. 

When I adjourned that court and went on my Avay to 
Geneva, I found the road fairly lined Avith men repairing it, 
not only in Kendall count\^, but in Kane also, Avhich Avas 
my next county. This convinced both Fridley and me that 
the fame of our Avork had gone before us. 1 charged all the 
grand juries in my circuit that fall, in substantially the 
same way, Avith equally good results. The influence of that 
campaign on the roads of that circuit AA^as plainly observ- 
able, so long as I held the courts there at least. 

Some of my friends Avere very uneasy that I Avould make 
so many enemies by the vigorous prosecution Avhich Ave in- 
stituted against road supervisors, that every county in the 
circuit Avould send members to the approaching Legisla- 



142 EARLY BENCH AND BAR OF ILLINOIS. 

ture who would vote against me; but the result proved that 
my action met with general approbation, and my strength 
in the circuit was manifestly much increased by the course 
which I had pursued. 

I had got thus far in dictating this article, when I received 
a letter from Owen G. Lovejoy, Esq., of Princeton, referring 
to a former paper, in which I gave an account of the trial 
of his father for assisting a runaway slave to escape from 
her master. Mr. Lovejoy says : " I have just finished read- 
ing your recollections of the trial of my father, published in 
the last issue of tJie Legal l^ews, and I think you are slightly 
mistaken as to some of the evidence in the case. Some years 
ago I found among my father's papers minutes of the evi- 
dence in that case, and some of the points of your charge to 
the jury in my father's handwriting, and also a draft of an 
instruction or request to charge in Mr. Collins' handwriting. 
My father was indicted for harboring and secreting a certain 
negro woman, called Nancy, she then being a slave and 
owing service and labor to some person to the jurors un- 
known, residing within some State, Territory or district to 
the jurors unknown, by feeding, clothing and comforting 
tlie said Nancy. 

" There was, as you state, no direct evidence that Nancy 
was a slave, and the prosecution therefore endeavored to 
convict by proving father's declarations that she was a slave. 
One witness, Isaac Delano, testified that father, when on his 
way to Greenfield, now La Moille, in Bureau county, and 
having Nancy in the vehicle with him, stopped at his, Dela- 
no's, house at Dover, and that father told him, Delano, that 
Nancy was a slave who had escaped from her master, Delano 
also testified on cross-examination, that father, in the same 
conversation, stated that her master was passing from Ken- 
tucky to Missouri through Illinois, and while on her way 
Nancy escaped. 

" Mr. Collins' instruction reads that, ' if the jury believe 
from the evidence that Nancy was, before the time charged 
in the indictment, a slave in Kentucky, and was brought 



CIRCUIT SCENES. 143 

from thence into the State of Illinois b}- her master, she 
thereby became free and was not, at the time of the alleged 
harboring and secreting, a slave as charged in the indict- 
ment.' 

" The following are the points of your charge : 

" Opinion of judge. 

" ' Principles important if not the offense. Forget the 
opinions of : 

" ' 1st. Must prove she was a slave, and belonged to some 
person within jurisdiction. 

" ' 2d. Must have harbored her. 

" ' 3d. Must have fraudulently concealed her, for this is 
the meaning of harbor. 

" ' 4th. All confessions must be received, 

" ' 5th. If a master voluntarily brings a slave into this 
State the slave is free. 

" ' 6th. Must show that slavery exists where master lives.' 

" You will observe that while the prosecution succeeded 
in proving that father had stated that Nancy was a slave, 
the antidote went with the poison. 

" In these days when it is proposed to have the negro 
dominate the white man in some portions of the Union, it 
must seem strange indeed, to you, when you recollect that 
forty-five years ago you presided in a court where a white 
man was indicted for feeding and clothing a negress." 

As Mr. Lovejoy's statements taken at the time must be 
received as certainly correct, so far as they go, he did not 
pretend to state all of the evidence, or all of the instructions. 
I now remember that one witness did testify to statements 
having been made by Mr. Lovejoy, admitting that the 
woman was a slave. I was at the time impressed with the 
belief that the witness must have been mistalcen as to the 
purport of j\[r. Lovejoy's admission, and this belief was in- 
spired by the extreme caution and ingenuity shown by Mr. 
Lovejoy in all his other conversations and speeches, ]iroved 
by a great multitude of other witnesses, in which he care- 
fully avoided any such admission. 



144 EARLY BENCH AND BAR OF ILLINOIS. 

There was at that time a paper published in Chicago, 
devoted to tlie cause of the abolitionists, called the A\^estern 
Citizen, published by a Mr. Eastman, and in it the Lovejoy 
trial was reported, how fully I do not remember; but I 
do remember that Mr. Dickey (late Judge Dickey of our 
Supreme Court) told me that by request he had prepared a 
synopsis of my charge to the jury for that paper. 

No doubt there is some one living who has the files of that 
paper, and I, at least, should be interested to know what its 
report of the trial was. 

I had often discussed the question in the conference room, 
if not elsewhere, in which I ever maintained that if a man 
voluntarily brought his slave into Illinois, the slave by that 
act became free, and when I saw it lately stated in a daily 
paper that I had so instructed the jury in the Lovejoy case, 
I concluded that the author of the statement must have 
made it from my known opinions on the subject, as I have 
no recollection that I ever had the occasion to express my 
views on the subject officially, nor do I now remember it; 
but Mr. Lovejoy's statement on the subject must be received 
as conclusive. As the roads througli Illinois from some 
portions of Kentucky to Missouri were much shorter than 
any other in the earlier years of the State government, 
many slaves were thus transported across the State ^^nthout 
question, and authorities Avere not wanting to show that by 
such transit the slaves were not manumitted, and able judges 
in this State adhered to that opinion at the time of wTiich I 
am speaking. 

As the lesson designed to be taught by this paper is that 
the judicial officer should ever exercise his functions in total 
disregard of popular clamor, but to stand up manfully and 
heroically, and administer the law as he has sworn to do it 
without regard to the effect Avhich it may have upon his 
own popularity, it seemed to me that another reference to 
the Lovejo}'- trial was appropriate. 



CIRCUIT SCENES. 145 

XV. 

TRIALS. 

During Fridley's administration as state's attorney, an 
indictment was returned in the Circuit Court of La Salle 
County against a man for stealing a calf. Mr. Glover was 
employed for the defense, and very soon after the jury was 
impaneled I observed that something was the matter with 
Fridley. Something had evidently occurred to provoke 
him, for he very plainly manifested a disposition to con- 
vict the man, right or wrong. He had not proceeded far 
with his evidence before I was satisfied that it Avas only 
a case of mistaken identity at the most. A number of wit- 
nesses were called on each side, each testifying with con- 
fidence in favor of the party w^hich called him. As the case 
progressed, Fridley's determination to convict this man 
became more and more manifest, especially when the 
defendant's evidence tended to show his innocence or that 
he had taken the calf really believing it to be his own, and 
when I became entirely convinced that there was no feloni- 
ous intent in the case I turned in to help Glover just as far 
as I could with any degree of propriety, but this only stimu- 
lated Fridley to redoubled exertions to secure a conviction. 
Glover and I did the best we could for the defendant, and 
although I had the last speech to the jury in the form of a 
charge, Fridley beat us both, for the jury returned a ver- 
dict of guilty in spite of us. When the motion was made 
for a new trial, Fridley of course declined to argue to it, 
for he had accomplished his object in securing a verdict, and 
this was all he wanted, and for this he was especially anxious 
when he saw that I was inclined to help the defense and 
secure an acquittal. 

I can not now remember any of the ingenious turns and 
telling expressions by which he managed to get the jury so 
firmly enlisted on his side as to beat us both. I only 

10 



146 EARLY BENCH AND BAR OF ILLINOIS. 

remember that they were ingenious and telling, and were 
successful with that jury, and even on his impassible coun- 
tenance there was an expression of satisfaction which 
showed how much he enjoyed his triumph. 

Most lawyers who have practiced in the country will 
remember that it has frequently occurred that controversies 
about the identity of domestic animals have been maintained 
on both sides, at first with confidence, and then with bitter- 
ness, and that many witnesses will be brought who testify 
to the identity of an animal with the same confidence that 
they would to the identity of their own children, but 
directly opposite to each other. Such a case was once tried 
before me either in Kane or Kendall county (I do not 
remember which), in which the identity of a calf was 
involved. The usual number of witnesses testified on each 
side, and with equal confidence, until it was impossible to 
form any satisfactory conclusion as to which was right, 
when finally the owner of the cow and of the calf intro- 
duced them both to maintain his claim to the latter. He 
showed that when he brought the calf home and turned it 
in with the cow, it at once rushed up to her and commenced 
sucking, which she not only suffered it to do, but caressed 
and licked it in the meantime, as if greatly satisfied to see 
it again. 

Now I thought we had something tangible, upon which 
some reliance might be placed, but the other party brought 
up witnesses, and several of them, who testified that that 
particular cow would allow any calf to suck her, and always 
manifested an equally maternal affection for every calf she 
met, and licked and fondled all with great impartiality, and 
that that calf had been suffered to suck several different 
cows and would claim that privilege of any cow that it met. 
All of these witnesses testified with equal confidence, and it 
was manifest with equal integrity and sincerity. 

Which way that jury guessed in making up their verdict 
I do not remember, but of course whichever way it was that 
verdict had to stand. 




T. LYLE DICKEY 



CIRCUIT SCENES, 147 

]Mr. Dickey was eng-aged on one side of that case and 
probably no person who was familiar with him forty years 
ago has failed to hear him relate the case of the bovine wit- 
nesses, which he was very fond of telling, and he did it 
with many amusing incidents which I do not now remember. 

At a term of the Circuit Court which I held in Kendall 
county, one Rider was indicted for murder and Mr. Dickey 
conducted the dsfense. In impaneling the jury I was struck 
Avith the fact that he accepted several who stated that they 
had formed an express opinion that his client was guilty, 
and he afterward explained to me that he did so because of 
his knowledge of their high integrity, intelligence and 
firmness, from which he felt sure that they Avould clearly 
understand the facts which would be testified to by the 
witnesses, and the law as it should be laid down by the 
court, and would give him the fair benefit of it in making 
up their verdict, and that they would have a controlling 
influence with the other jurors. Upon the trial it was' 
shown that the prisoner lived in a log house about half a 
mile from the town of Georgetown, now Newark, in' that 
county; that he was much addicted to intemperance, and 
Avhen under the influence of liquor was quarrelsome and 
considered dangerous; that one morning he went to George- 
town with his rifle in his hand, and commenced drinking, 
and became so much intoxicated that he commenced to 
quarrel with several persons, one of whom he shot, as it 
was supposed, in a vital place, and the physician who was 
called declared that he could live but a few hours at the 
most; yet contrary to all expectations he did recover. So 
soon as he had done the shooting he started for his cabin, 
into which he entered with his son, who was but a boy, 
and securely barred the door. 

In a short time he was followed by a large posse, consist- 
ing of most of the citizens of the town, who loudly demanded 
that he should surrender himself upon the charge of murder. 
This he refused to do. They surrounded the house, and 
parleyed with him a considerable time. They had no war- 



148 EARLY BENCH AND BAR OF ILLINOIS. 

rant for his arrest, and I do not remember that there was a 
constable or magistrate in the party. When he refused to 
surrender, and gave them notice tliat he would defend him- 
self to the last, the crowd made attempts to break into the 
house. Some got onto the roof, while others got a heavy 
stick of timber and proceeded to batter down the door, 
whereupon he fired his rifle, and killed one of the battering 
party. Many witnesses were sworn, and as is always the 
case in describing an exciting transaction, considerable dis- 
crepancy was observed, especially as to the details, but the 
unquestioned fact remained that the man was in his own 
house with his young son; that the door was barred; that 
it was battered down with a stick of timber, and that a man 
who was actively engaged in that work was shot and killetl 
by the prisoner while so engaged. 

An incident occurred during that trial which illustrates 
the frailty of human observation and of human memory. 
One Havenhill, a most respectable farmer, and who lived in 
the neighborhood, was of the party in pursuit of the pris- 
oner, who described the incidents of the affair with great 
particularity and manifest candor. He testifed that there 
was a window on the side of the house near the door, and 
that through that window he saw the prisoner and his son, 
and described their actions and doings before the assault was 
made upon the door. The acts thus described were supposed 
to be damaging to the defense. On this ])oint he was very 
positive and very persistent, and the most rigid cross-exami- 
nation only served to show that he could not possibly be 
mistaken that there was a window on that side of the house 
near the door, through which he saw the prisoner and his 
son do the acts which he described, and he stated many in- 
cidental facts which showed that on this point he could not 
be mistaken. 

The next morning, just as I opened court, he rushed into 
the room in manifest excitement, and said that he wished to 
make an explanation to the court and jury before the case 
proceeded any further, which I permitted him to do. 



CIRCUIT SCENES. 149 

He said that the evening before he had had an interview 
with Mr. Dickey, in which the latter stated to him that he 
was certainly mistaken about there being a Avindow on that 
side of the cabin; that he himself had lately examined the 
premises, and certainly knew that such was the case, and 
begg-ed of him to go and see for himself; that he would 
afterward find out that he was mistaken in his statements, 
when it would be too late to regret that he had testified 
falsely against the life of a fellow-being; that under these 
urgent persuasions of Mr. Dickey, he had got up early in 
the morning and rode down to the place, which was ten or 
twelve miles off, when, to his utt«r astonishment, he found 
that he had been mistaken, and that there was no window 
on that side of the house, although he had felt so positive 
on the point that if his own life had depended upon it 
he would not have made the journey to verify his recollec- 
tion or observation without the persistent urging of Mr. 
Dickey. 

This is another illustration of the unreliability of human 
memory, on which so much of our rights of property, or even 
life, depend. I know in my own case many instances have 
occurred, in which, it now seems to me, that I could not 
have been mistaken, and yet the proof is absolutely convinc- 
ing that I was mistaken, and I have no doubt that many 
others can recall similar circumstances. I have a case in 
mind now, where it seems to me that I read in Lewis & 
Clarke's Expedition, by Paul Allen, an account of a trans- 
action which occurred during the winter of 1804-5, while 
they resided at their fort near the Mandan Indians, with 
which York, the colored servant of Capt. Clark, and an 
Indian Chief, were connected. I was within the last few 
months describing this transaction to a friend, who seemed 
much interested in it, and thinking it would be more interest- 
ing to him to read it in the author's own Avords, so soon as 
I found leisure I took down the book, believing that I 
could find the passage in a few minutes, which, however, I 
failed to do. I then read the account which they gave of 



150 EARLY BENCH AND BAR OF ILLINOIS. 

their residence at that place, occupying seventy-five pages of 
the book, without finding a description of the incident, 
Avhich I so clearly remember. So certain was I that it was 
there, that I read it over carefully three times, but without 
finding it. Then, thinking it might be in some other part of 
the book, I read the whole two volumes through, and can 
find no allusion to the incident anj'where. I can't account 
for it. It seems to me that I can now see the page. The 
incident is of such a character that I can not imagine I saw 
it anywhere else. Did I dream it? It seems as clearly 
impressed u})on my mind as any events of my past life. 

I have since mentioned the incident, Avhich I thus clearly 
recollected, to at least two gentlemen, who I know were 
familiar with the work referred to, and were learned in that 
class of literature to which it related, and they both recol- 
lected the incident as I recollected it, and thought that it 
was in the same book to which I refer, and one of them, 
Mr. E. E. Ayer, of Chicago, who has the finest library ever 
collected upon the North American Indians, assured me that 
he would soon give me a reference to the passage; but many 
months later he informed me that he had not only carefully 
examined the work referred to, but all other works in his 
library in which he thought it possible the passage could be 
found, without the least success. Still his recollection is as 
clear as mine that he has read it somewhere, and it still 
seems to him as if he found it in Lewis & Clarke's Journal, 
in their account of their residence among the Mandan 
Indians during the winter of 1804-5, but it is not there; 
nor can I find it anywhere else; yet it seems to me, as before 
stated, that I can see the very part of the page on which it 
occurred; and my friend's recollection seems equally clear 
and is equally at fault. 

Alas, for human memory ! It is too frail to be certainly 
relied upon, and yet we must often depend upon it to assert 
rights or to defend against wrong. My experience convinces 
me that my observations are as good and my memory as 



CIRCUIT SCENES. 151 

reliable as those of most men, and yet I know that it can 
not be relied upon at all times. 

The man whom Rider had shot in the town, and who, it 
was universally sup])osed, could live but a few hours, did 
finally recover, and was now as well as ever. 

Mr. Dickey in his argument to the jury placed his defense 
entirely upon the statute defining justifiable homicide, con- 
tained in Section 32 of the Criminal Code as found on the 
176th page of Field's Revised Statutes of 1833, and is now 
contained in the Revised Statutes of 1871, Chap. 38 and Sec- 
tion lis, which also embraces Section 33 in the revision of 
1833. The part upon which he relied especially is contained 
in these words : " Justifiable homicide is the killing of a 
human being in necessary self-defense of habitation, property 
or person, who manifestly intends or endeavors by violence 
or surprise to commit a known felony, * * * or against 
any person or persons who manifestly intend and endeavor 
in a violent, riotous, or tumultuous manner to enter the 
liabitation of another for the purpose of assaulting or offer- 
ing personal violence to any person dwelling therein." He 
expatiated extensively upon this section of the statute, and 
showed how exactly it covered Rider's case ; how he was 
assailed in his own dAvelling house by a mob, who had no 
authority of law to arrest him had they met him in the streets, 
much less so when in his own dwelling house with barred 
doors, and warned to keep away or take the consequences. 
]S'o matter what justification they might have had for their 
conduct, had Rider actually been guilty of murder, and they 
no doubt believed he had, yet the result showed that he had 
not been guilty of that crime. He then explained to the 
jury why he had accepted so many of them who had ex- 
pressed opinions that the prisoner was guilty of murder, and 
he declared his undoubting belief that the result would 
vindicate his confidence in their integrity, intelligence and 
firmness of character, which would enable them to dismiss 
from their minds previous opinions, and give the prisoner 
the benefit of the law as they now found it to be and as 



152 EARLY BENCH AND BAR OF ILLINOIS. 

they would receive it from the court. In my charge to the 
jury I succinctly reviewed the evidence, and told them that 
the statute relied upon by the defense was applicable to the 
case, and told them it was their duty to administer the law 
as it existed, and told them that the prisoner was on trial 
for the murder of the deceased and not for shootino- the man 

o 

that had recovered. 

The result sho'Nved that Dickey had not been mistaken in 
the estimate which he had formed of the character of the 
jurors which he had accepted, for after due deliberation 
they brought in a verdict of not guilty and the prisoner was 
discharged. 

I do not remember that he was ever prosecuted for assault 
with intent to kill, for which he would probably have been 
convicted, and I think I heard that soon after the trial he 
left the country. 

There was no excitement or even complaint, so far as I 
ever heard, that Rider was acquitted ; all seemed to recognize 
that, technically at least, the law was on his side, and seemed 
willing to give him the benefit of it. 




CHARLES B. LAWRENCE. 

El-Judge of the Supreme Conn of lUinois. 



YIII. 

THE CONFERENCE ROOM. 
I. 

THE DIFFICULTY OF EAKLY TRAVEL LUCK FOK PLACE TRIP TO 

MOUNT VERNON. 

As preliminary, or an introduction to the first paper which 
I propose to write under the title of " The Conference Eoom," 
in which I sliall occasionally take my readers behind the 
screen which conceals the most confidential and secret 
proceedings of a court consisting of more than one judge, I 
will devote a short space to the difficulties of travel which 
the judges of the courts had to undergo, in reaching the 
places where they had to perform their official duties. The 
first term of the court held by the three judges under the 
Constitution of 1848, was fixed in December of that year to 
be held at. Mount Yernon, in Jefferson county. There were 
no railroads then to help us on the way, and Mount Yernon, 
as things then existed, would now be considered in a remote 
and secluded part of the country. I went from Ottawa in 
a double buggy, with my wife and child, and drove through 
the country to Springfield, which occupied four days. On 
the way I stopped at Washington, in Tazewell county, and 
held my last Circuit Court at a special term which had been 
appointed by Judge Treat to try a criminal case, which I 
had sent over by change of venue from Peoria county. At 
Springfield I left my wife and child at quarters which I had 
secured for them, and took in Judge Treat, whom I had 
invited to ride with me on to Mount Yernon. 

(153) 



154 EARLY BENCH AND BAR OF ILLINOIS. 

"We started from Springfield on a darlc, cloudy morning, 
and before we had proceeded half a mile a heavy snow 
storm set in, which proved to be the most severe that had 
been known there for many years. I drove a good team, 
and we pressed forward through the blinding storm with- 
out stopping until we reached Macoupin Point, twenty- 
eight or thirty miles, by which time the snow was about 
ten inches deep, when we were glad to take shelter, though 
the weather was not cold. The next day we pushed on 
toward Greenville, in Bond county, which we reached the 
second night after, and the next day we reached Carlyle, in 
Clinton county. Here one of my horses was taken ill, 
when I left him and procured another in his place. The 
snow was still deep and the roads very heavy. Indeed, for 
more than three quarters of the way since we left Spring- 
field, not a single track was seen from the road. 

The unusual fall of snow seemed to shut everybody up, 
and we passed many log cabins in the timber which bordered 
the prairies, and in the forest through which the road 
passed, where we could see families shivering around large 
fires in their cabins, with both doors and windows wide 
open, and pigs squealing around on the outside as if they, 
too, would be glad to get near that fire. 

Indeed, the people there hardly seemed to know what 
snow meant or how to protect themselves from the cold, 
and this caused constant remark between us. 

We had expected when we left Springfield to reach Mt. 
Yernon on Saturday, but here Ave were only at CarMe on 
Saturday night vrith a sick horse and a still unbroken 
road before us. We got our new horse and made an early 
start Sunday morning and pushed forward at the best 
speed we could; but a considerable coat of snow was still on 
the ground and it was already getting dusk when we 
reached, in the edge of the timber, the brick farm house 
of a well-to-do farmer, who, Ave learned at Carlyle, was in 
the habit of entertaining travelers, and where Ave could get 
excellent quarters unless the good lady of the house should 



THE CONFERENCE ROO:.I. 155 

happen to be out of humor, and then we would have to stav" 
out all night, if necessary, in a storm, before she would let 
us into the house. For many years I remembered the 
name of this farmer and the distance from Carlyle to his 
house and from there to Mt. Yernon, but I can not state 
them now with certainty. I am A^ery confident Ave Avere 
still from fourteen to eighteen miles from the latter place. 
It was raining hard and a cold wind Avas blowing, and it 
was getting dark when we droA'e up to the fence in front 
of the house, where the landlord came out and met us, 
who, upon our application for entertainment, Avith evident 
embarrassment, frankly told us that his Avife Avas in a tan- 
trum and that he could not afford us shelter. He told us 
that the nearest house was about two miles ahead, Avhere 
lived a widoAv in a log cabin, and that this was our only 
chance for that night. 

Neither of us had ever been there before, but entreaty 
AA^as of no aA^ail; Ave started on. Even the snoAv, AA'hich would 
haA^e afforded some light, had disappeared in the course of 
the afternoon. We found the road to be narroAV and wind- 
ing, deeply gullied, up and doAvn steep hills, and across 
creeks now swollen with the rain, over some of Avhich Avere 
narrow, corduroy bridges, and through others Ave had to ford. 
We had not gone halt a mile before pitch darkness set in, 
so Ave could not see a vestige of the road, or even the forest 
trees Avhich border it on either side. Tlien one of us had to 
get out and Avade through the mud in front of the horses, 
and Avith our feet feel where the road was and see if there 
Avere gullies on either side, and so we plodded on for more 
than three hours, copious rain falling all the time, and the 
cold wind increasing in violence. AYe had to look sharp all 
the latter part of the way, lest Ave should pass the AvidoAv's 
cabin without observing it. At last we did find it along- 
toward midnight and succeeded in arousing the Avidow and 
her little family of children, and the brave Avoman, as she 
was, admitted us Avithout knoAving whether Ave were tramps 
or honest men. Treat Avent in and helped to get up a good 



156 .EARLY BENCH AND BAR OF ILLINOIS. 

lire, ^Yllile I unhitched the horses and took them to a shed 
across the road, which partly protected them from the storm. 
I found some corn for them in a crib near by, and then went 
to the house, where I found a good fire and some corn bread 
and cold meat set on the table with a pot of coffee. Humble 
and plain as it was, this was a luxurious re])ast; we were 
nearly famished. There was but one room in the house, in 
which there was a bed and under it a trundle bed, where a 
part of the children slept. 

Covered as we were with mud and rain, we must have 
presented anything but a charming sight; but after drying 
ourselves as well as we could b}^ the grate fire, we managed 
to get into the bed, while the good woman nestled into the 
trundle bed with her little ones. 

With the break of day we were astir, when T went out to 
feed and harness the horses, while the landlady fried some 
meat, with which, and some more corn bread, we made our 
breakfast. The rain had stopped but the cold had increased 
very considerably, and the horses, having been but partially 
protected from the storm and still wet and shivering, were 
evidently in bad humor. However, I managed to hitch 
them to the vehicle, into which we climbed, having com- 
pensated the woman liberally for her kind entertainment, 
reflecting sharply upon the contrast between her kindly 
hospitality, and the conduct of the rich farmer's wife, who 
had refused us shelter under such forbidding circumstances. 

Well, there are many good women in this world, while 
there are some who are not so good; and we really thought 
that her husband was more to be pitied in the long run 
than we were. 

When we started up to pursue our journey, the new horse, 
which had evidently been used to better treatment, laid back 
his ears and refused to budge an inch. I did not thrash 
him, and whip him, as one might have been inclined to do, 
but got out and got to his head and petted him and coaxed 
him till he seemed to have attained a better humor, when I 
got in and he started up and went along ver^^ cheerfully; 



THE CONFERENCE EOOM. 157 

indeed, he acted as if he would like to have taken a run for 
awhile. We pursued our way slowly but diligently through 
the muddy forest road, and reached Mt. Vernon soon after 
noon, where we found Judge Trumbull, who had arrived 
before us. 

After we had got our dinners we opened the court, and 
this was the first court opened under the new constitution. 

I have been thus particular in describing our first journey 
to Mt. Vernon that our successors of the bench and bar of 
the present day might know how we were obliged to travel 
to attend our courts forty years ago. 

At this first term of the court we were required by the 
constitution to cast lots for terms to be held by each under 
the first election, which should be three, six, or nine years. 

Some members of the bar had expressed the opinion, or 
at least the expectation, that this proceeding would be had 
in open court in the presence of the bar and such other per- 
sons as should choose to attend, but we determined other- 
Avise; so after the court liad been opened on the first day 
without transacting any business of importance, the court 
was adjourned until the next da3% Judge Treat presiding 
for the time. After the adjournment of the court we assem- 
bled privately in our room at Grant's, where we all sto])ped, 
and proceeded to dispatch that duty. Three strips of paper 
were prepared by Judge TrumliuU. On one of these Judge 
Treat wrote the figure three, on another the figure six, and 
on another the figure nine, and I think I rolled or twisted 
them up, as near alike as possible, without knowing the 
figure that was upon either, and placed them in a hat. It 
was agreed that each should draw one of the pieces of paper 
from the hat, and that the figure found upon it should 
determine the time during which his commission should run. 
Judge Treat drew the first paper and upon it the figure nine 
was written. I dreAv the second and upon it the figure six 
was written, and of course Trumbull drew the last, on Avhich 
was written the figure three, and so our respective terms of 
office were decided under that constitution, which also pro- 



loS EARLY BENCH AND BAR OF ILLINOIS. 

vided that the one who drew the longest term shoukl be tlie 
first chief justice during his term, and that afterward the 
judge holding the oldest commission should be the chief 
justice; and so it was that Judge Treat became the first 
chief justice of that court under the Constitution of 1848. 
Judge Treat then drew up an order reciting these facts, and 
stating these results, which upon the opening of the court the 
next morning, was entered. 

Some disappointment was expressed that this imjjortant 
proceeding had been transacted in so quiet and secret a man- 
ner, but there was no help for it; some suggested that it 
looked a little as if a bargain had been arrived at between 
us as to what the result should be, and in support of this it 
was suggested that Treat, who drew the longest term, and 
thus became chief justice, had been for the longest time a 
member of the Supreme Court, while. I, who drew the mid- 
dle term, had been a member of the old court for six years, 
while Trumbull, Avho drew the three years term, now went 
on the bench for the first time; and so it was thought that 
as fortune had decided as most men cognizant of these facts 
would have thought it most appropriate that it should 
be determined, it looked a little as if fortune had been 
helped out by an agreement; but this suspicion was entirely 
gratuitous, as no agreement whatever had been suggested 
between us on the subject. Fortune decided the matter as 
she saw fit, and we all agreed that she had decided wisely. 
At this first term of the Supreme Court of three judges, 
which lasted but a single week, some important cases were 
argued, and I may now refer to that of The People ex rel. 
V. Reynolds, 5th Gilman 1, which involved the constitution- 
ality of a legislative act. The Legislature had passed a law 
providing for the division of Gallatin county, but it also 
provided for an election to be held in that county to deter- 
mine whether the law should take effect or not. 

Several similar laws had been passed and executed in this 
State, but two decisions had been made, one by the Supreme 
Court of Pennsylvania, and the other by the Supreme Court 



THE CONFERENCE ROOM. 159 

of Delaware, which had been lately published in a law jour- 
nal, both denying the constitutionality of the acts which 
authorized the voters of individual counties to determine by 
their votes whether the sale of spirituous liquors in their 
counties should be prohibited or not, and this upon the 
frround that it was a delegation by the Legislature of 
legislative powers to the voters of the counties. Those 
courts deemed this a most dangerous attempt to estab- 
lish a pure democracy, which would be as dangerous to a 
republican form of government as an absolute monarchy, or 
at least, a long stride in that direction. There was no deny- 
ing the fact that these cases were fairly in point, and that 
they could not, without quibbling, be evaded. If the people 
could not be authorized to determine by their votes whether 
the sale of spirituous liquors in their counties should be pro- 
hibited or not, then certainly it was unconstitutional for the 
Legislature to authorize the people of the county to deter- 
mine by their votes whether or not the county should be 
divided; and I was instructed to prepare an opinion directly 
overruling those cases and maintaining the constitutionality 
of the law in question. 

I did so, assigning reasons for the decision which were 
approved by the other members of the court, and so far as 
I know, no question has been made in this State of the cor- 
rectness of our conclusions. 

Subsequently I understood the Supreme Court of Mich- 
igan made a decision which practically overruled this case, 
although, I believe, it attempted to draw a distinction be- 
tween their case and ours. And I think about this time a 
similar question arose in New York, in which the decisions 
in Pennsylvania and Delavrare were said to have been fol- 
lowed; I have never hunted them up, and so can not speak 
positively on the subject, but I must be allowed to express 
a doubt whether, in either of those States, it is now held to 
be unconstitutional to pass a law authorizing the voters in 
a local municipality to determine by their votes whether or 
not ardent s])irits shall be sold within their limits. 



160 EARLY BENCH AND BAR OF ILLINOIS. 

The case of The People v. The City of St, Louis was 
heard at the next session of the court, at the December 
term, 1848, at Springfield, in which Trumbull did not sit. 
having been counsel in the case, and the record was assigned 
to me to prepare the opinion. It was a bill in chancery to 
restrain the city of St. Louis and many individuals from 
committing a nuisance by filling up the channel of the Missis- 
si] )pi river, flowing between Bloody Island and the main 
land at East St. Louis. The main channel of the river was 
west of Bloody Island, thus leaving the island within this 
State, but the channel east of the island, through which 
two fifths of the water of the river flowed, was not so deep 
or so broad as the main channel; still it was navigable for 
the lighter class of steamers, barges, and other water craft 
in an ordinary stage of water, and in fact was soon navi- 
gated more or less constantly. 

The encroachments upon the river on the Illinois shore 
above Bloody Island were such as to threaten to cut a new 
channel east of the island, and thus deprive the citv of St. 
Louis of the benefits of the deeper channel, which it then 
enjoyed, and this would undoubtedly have been a terrible 
calamity to that city. 

To avert this threatened danger St. Louis made arrange- 
ments with the riparian ovv^ners on the Illinois shore, and 
proceeded to fill up that channel between the island and 
the main land in such a way that if it ever had been com- 
]:)leted it would have been impossible to ever have removed 
the obstruction, and this without having applied to the Illi- 
nois Legislature to do so; the bill was filed to restrain this 
action on the ground that it was a nuisance to obstruct a 
public highway within the State. 

The Circuit Court of St. Clair County refused to grant the 
injunction, and the case Avas brought to the Supreme Court 
by appeal. It may be readily understood that a most 
intense interest was felt by the citizens of St. Louis while 
the case was pending in our court, and many of its able 



THE CONFERENCE ROOM. 161 

lawyers and prominent citizens came up to Springfield to 
Avatcli the proceedings. 

Tlie case was argued before us by P. B. Fouke for the 
appellants, and by Crum antl Blennerhassett for St. Louis. 
Many important questions were raised and discussed, but 
the one of greatest interest was, what were the jurisdictions 
and powers of the States through which, or along the bor- 
ders of which, the Mississippi river flows. 

It became my duty to write the opinion of the court in 
this case, and I confess I approached it with some diffidence. 
The principal question which created solicitude in our 
minds in considerino; the case was to determine the rig-hts 
and powers, or the jurisdiction the several States in whose 
boundaries a part of this river lies, have over the bed 
of that stream. After much consideration we decided that 
the Mississippi river was a navigal)le highway, under the 
absolute control of the State, as much as are the public 
roads on land, restricted and qualified only by the Spanish 
treaty and by the ordinance of 1787, which secures to all 
the citizens of the United States the free navigation of a 
river, without tax or toll. If such navigation is maintained, 
then the State may do what it pleases with the bed of a 
river. It may fill u]) all its channels except the main chan- 
nel in the navigation, in which all the citizens of the United 
States have an interest and a right. But no individual or 
corporation, without the sanction of the State, has a right to 
obstruct any part of it, any more than they would have the 
right to ol)struct any public highway or land, without legal 
authority or consent. That river as well as all other 
navigable rivers running into it are public higliAvays, and 
as such are subject to State control. The State has even 
the right to change the channel of any of these navigable 
rivers within its borders, provided it leaves its navigability 
unimpaired. 

Upon the argument of this cause no case was cited 
determining the authority of the several States within 
whose borders portions of this great river are situated, over 
11 



1G2 EAELY BENCH AND BAR OF ILLINOIS. 

such portions as are within their several boundaries, and 
our own researches during the conference failed to find any 
case in any of the States where this important question had 
been decided. Many physical peculiarities are exhibited by 
this, one of the great rivers of the world, and it was im- 
portant that we, to whom was first submitted this great 
question, sliould so decide it that it should be approved and 
followed by the independent courts of last resort of the 
several States similarly situated. Analogous cases were 
not wanting in this country and in England in reference to 
navigable waters, but ])iiysical conditions and political 
boundaries existed here, which rendered these analogies far 
from parallels to our case. 

Whether the questions "which Avere decided in that case 
have arisen and been determined in other States I have not 
examined to see, yet I 'confess I would be interested to 
know whether such has been the case or not, and how they 
were determined. 

II. 

SERVICE IN THE SUPREME COURT SCENES IN THE CONFERENCE 

ROOM. 

The conference room of a court, consisting of several 
members, is a school in which human nature ma}^ be studied 
to advantage, as well as other characteristics which go to 
make up the man and the judge, but few who have sat upon 
the bench of a court of last resort have ever been associated, 
at different times, with a greater number of individual mem- 
bers of the court of which he constituted a part, than I have 
been. During my service on the supreme bench of this 
State, covering a period of nearly twenty-two years, there 
were associated with me seventeen different judges, some 
for many years and others but for short periods, and I can 
now say, with great satisfaction, that during all that time 
the greatest personal liarmon}" prevailed in the conference 



THE CONFERENCE EOOU 163 

room, and I may say, out of it, among the members of the 
court. JS'ever did I hear between any two members of the 
court, any offensive or acrimonious word passed. Neces- 
sarily, differences of opinion often existed between the mem- 
bers upon questions arising before us, and these were often 
considered and discussed Avith earnestness and animation, 
but never with feelings or expressions of bitterness, never 
with the apparent object of securing a triumph, but always 
for the manifest purpose of arriving at the truth, and obtain- 
ing a proper legal decision. Often, indeed, some of us had 
to yield something for the sake of harmon}^, and all seemed 
disposed to do this when it could be done without yielding 
up a principle which was deemed vital in itself, and was 
thought to establish a precedent which it was believed 
would have to be reversed at some future time; and then, 
and only then, was the dissent expressed in an opinion which 
went upon the records. 

I am glad, indeed, of an opportunity to testify to the single- 
ness of purpose, and the earnest 'desire of each member of 
the court to attain and express conclusions which would 
reflect the law as it was, and which should stand the test of 
time. 

In a former paper of this series, I deemed it proper to open 
the door of the conference room a little way, and now I pro- 
pose to open it a little further; but not so as to expose any 
of those secrets which propriety requires should ever remain 
undivulged. The mode of conducting business in the con- 
ference room when I went upon the bench, in 1S42, would 
later have been considered crude and unsystematic; but the 
limited amount of business did not require that system and 
order for its dispatch, which was necessary in later years. 
Of course, the chief justice presided in the conference room 
as he did upon the bench, but he did it in a social way rather 
than in a formal mode. No notes or minutes were kept 
of the proceedings in the conference room. Usually a case 
was considered as soon as it was finally submitted, and as 
we never had printed records and rarely abstracts of any 



164 EARLY BENCH AND BAR OF ILLINOIS. 

kind, or even written briefs, but only notes, which we ke])t 
ourselves, of the authorities quoted, our discussions of the 
case in the conference room were usually based upon tlie 
arguments which we had heard at the bar. Chief Justice 
Wilson did not possess to an eminent degree the faculty to 
critically analyze a case, and evolve with precision the points 
upon which its decision must turn, but in the course of the 
consideration of the case in the conference room, these would 
come to be pretty distinctly defined from the various sugges- 
tions made by different judges, and as this is really the first 
necessary thing to be done in considering a case, some of the 
judgeg at least, made it a point to accomplish that end as 
soon as possible. This is necessary to enable one, as ex- 
pressed by one of the judges, to think at a mark; by which 
he no doubt meant that one's thoughts must be focused 
upon a single point rather than to have them scattered all 
over the side of a barn. 

While nominally the chief justice distributed the records 
amono- the members of the court for a more thorouo^h ex- 
amination and for Avriting out the opinion of the court, prac- 
tically we did that for ourselves. 

The older meml)ers of the court seemed very willing to 
avoid the labor of writing opinions, while several of the 
younger members sought for records, which would give 
them opportunities to get into the reports by the opinions 
Avhich they should write, and the limited amount of busi- 
ness was hardly sufficient to satisfy these ambitious young 
men, while the chief justice seemed to appreciate the laud- 
able ambition which inspired this desire for work, for it was 
a sure guaranty that no labor would be spared to understand 
the record, and to search up all the law bearing upon the 
questions involved. Besides, the discussion in the conference 
room served to point out which of the judges seemed to 
have the clearest idea of a case or to best understand the 
law applicable to it, and so would be designated the one to 
whom the record might most properly be given. Kot that 
the case would then be left entirely to the one to vrhom 



THE CONFERENCE ROOM. 165 

« 
it was assigned, but several other menibors of the court, 

at least, made it a ]ioint to carefully examine all the 

records of any importance and the law involved in the case, 

so that when the opinion was read in conference, the case 

was again carefully discussed and considered. 

As the business of the court increased, more system was 
required, but still very little change took place during the 
period of the nine judges. 

During the period of the three judges much im]:»rovement 
was made in the mode of proceeding in the conference 
room. 

The first rule requiring anything printed in the record 
was in 18.55, which demanded printed aljstracts to be filed, 
and in ls5(i printed briefs were required. Printed records 
were not required during my time. These rules relieved the 
judges of a great deal of work, which had l)een previously 
required to give them a full understanding of the cases 
which they had to decide. If the abstract filed by the ap- 
])ellant or plaintiff in error was not satisfactory to the other 
party, he could file an abstract himself, or so much of an 
abstract as he deemed necessary to supply the defects of the 
other, and we assumed by the use of these that we could 
fairly learn what the record contained, though we frequently 
found it necessary to go to the original record, especially in 
cases where the two abstracts disagreed. This was always 
done in full conference while I was on the bench, and the 
briefs were examined in the same way, and the authorities 
read, and in most cases the whole matter was discussed be- 
tween us, and a decision agreed upon at the time, though it was 
not unfrequent that after a thorough discussion among our- 
selves the consideration of a case was postponed for further 
examination by each judge individually, after which it was 
again called up, further discussed, and finally decided. 
This was invariably the rule during my time. 

It sometimes occurred that we could not arrive at a satis- 
factory conclusion during the term, when the case was laid 
over for a further examination by the judges separatelv dur- 



16G EAELY BENCH AND BAR OF ILLINOIS. 

iug the succeeding vacation. I may hereafter refer to a few 
of these cases. 

When I became chief justice in 1855, I introduced the 
practice in the conference room of keeping an agenda. This 
consisted of a small bound book in Avhich I entered the title 
of each case and set down under it the several points 
which it was deemed necessary" to decide and the decision 
upon each point agreed u])on. These notes of decision were 
made at the time, and in the presence of all the judges, 
read over and corrected, when necessary, to meet the views 
of all, and sometimes a few of the prominent reasons were 
also inserted in the agenda,' a copy of this was made for 
each of the judges, and therein was also stated the judge 
Avho was to write the opinion. In cases where we dis- 
agreed upon any point, that was pretty fully stated in the 
agenda, and the case was usually hekl over for further con- 
sideration until the next term, and so of cases or points 
where some one or all of us desired further time to examine 
and consider them. All of these cases I transferred to the 
new agenda for the next term, for a separate agenda was 
always prepared for each term. 

This agenda system we found of the greatest value. It 
economized time and secured accuracy, and it sometimes 
corrected mistakes. 

The judge in writing the opinion had before him a full 
minute of the points to be decided in the opinion, and when 
he read it in conference, each of the other judges, having his 
agenda before him, could instantly see if the opinion accorded 
with the decision which had been agreed upon. It some- 
times happened that the judge in writing out his opinion 
changed his mind upon some point, when he would write out 
his opinion, according to his present convictions, to what it 
should be, and so departed from the notes in the agenda. 
In that case, of course, a thorough reconsideration of the 
matter was necessary, and I recollect that almost invariably 
the change was approved, and I have no doubt that thus many 
motions for rehearing were avoided. Whether this agenda 



THE CONFERENCE ROOM. ITjy 

system lias been continued since I left the bench I have no 
means of knowing, but if it has not, no doubt it has been 
aljandoned for good reasons; and whether it has been possi- 
ble for the court to thoroughly examine the case in full 
conference, as it was done in former times, of course I have 
no means of knoAving. 

Of the old judges who were on the bench in 1842, when I 
took my seat, there were two associate justices of the first 
Supreme Court, organized after the adoption of the consti- 
tution in 1819, and upon the re-organization of the court in 
1S25, "Wilson was made chief justice and Brown associate 
justice, together with Samuel D. Lockvv-ood and Theophilus 
W. Smith. Judo-e Smith died before I went on the bench, 
so that Wilson, Lockwood and Brown only remained of the 
judges who constituted the court, previous to the re-organi- 
zation of 1848. With them I was associated on the bench 
for six years, and learned to know them well. 

Chief Justice Wilson was a man of good parts, a thorough 
gentleman, courteous and affable, pleasant, and of a very 
cheerful disposition. He was fond of a good joke, even at 
his own expense, or that of his best friend. He appreciated 
liumor and told a story well. He was a good law^^er, but 
not a great law^^er. He had read law books to good pur- 
])ose, but not nearly as many of them as many others have. 
He comprehended well a principle of law when stated or 
read to him, and when a case was cited in support of an^^ 
proposition of law he readily determined whether it was 
applicable or not; and here let me say that an inability to 
do this is a very common defect among a considerable pro- 
portion of lawyers; at least, very many of the lawyers 
who have argued cases before me, have cited cases in sup- 
port of a position with the undoubted conviction that they 
were certainly in point, and could never be made to see that 
it was otherwise, when, in truth, they lacked that analogy 
to the one at bar which alone could make the decision ap- 
plicable. This defect is incurable and can not be remedied 
by education or study, or the mosi industrious training. 



168 EARLY BENCH AND BAR OF ILLINOIS. 

The trouble is, that they can never be made to comprehend 
the distinction, which is palpable to the great majority of 
law3'ers. On the other hand, I have met with a few law- 
yers whose perceptions Avere so fine and delicate that thev 
could see a distinction which could not be apj^reciated by 
the ordinary mind, by Avhich I mean the great mass of able 
law3^ers, who can make others see it as they see it them- 
selves. 

Chief Justice Wilson was of this latter class. He did not 
know all the law that there is, nor does any other man that 
lives, but, as I have said, he had the capacity to understand 
the law when it was read to him, or was stated to him in 
argument, with the reasons in support of it, and this is a 
capacity of the greatest value in a judge. I have stated 
that he was sociable and agreeable in his nature, fond of 
pleasantry, could tell a good story and tell it well, and often 
when tired of hard thinking and of listening to dr}"" discus- 
sions in the conference room he would break in and tell some 
good story, which would be a relief and rest to all. " Why," 
said he " Judge," breaking in upon one of us, during one of 
these dry discussions, " you remind me of a lawj^er who 
lived on the other side of the Wabash, who came across the 
river to our side to try a cause before a justice of the peace. 
A Sucker lawyer was on the other side and in the course of 
the trial he asserted some principle which the Hoosier lawyer 
denied most strenuously. After the dispute had gone on for 
some time the Sucker took up the Illinois statutes, and read 
an act Avhich changed the common law, and declared the 
law to be as he had asserted it. At this the foreign gentle- 
man seemed dumbfounded for a moment and Avas silent. He 
finally arose Avith great deliberation, and sorroAV clearly 
depicted upon his countenance, and said, ' May it please the 
court, Avhen I hear of the assembling of a legislature in one 
of these Westei'n States, it reminds me of a cry of fire in a 
populous city. Nobody knows AA^hen he is safe. Iso one 
can tell AA^here the ruin will end.' " 

The chief justice and Judge LockAvood were very Avarm 



THE CONFERENCE ROOM. IGO 

personal friends, and had been very intimate, almost from 
their first acquaintance, when both were bachelors, and old 
bachelors at that. Wilson was married first, and brouglit 
his wife from Virginia and settled down to housekeeping on 
the Walmsh river. Once, in the conference room, at my first 
term on the bench, Judge Lockwood was discussing some 
question with an earnestness which showed that he thought 
he certainly knew what he was talking about. After 
listening some time to Lock wood's confident manner of 
maintaining his point, the chief justice turned to me and 
said : " Caton, Lockwood knows a great deal, but he some- 
times thinks he knows more than he does. I well remember 
that a few months after I got married and brought mv wife 
to Illinois, Lockwood came all the way across the State to 
visit and congratulate me, and we had the pleasure of his 
society for a number of days. One morning Mrs. Wilson 
did not appear at the breakfast table, and in answer to his 
inquiries I told him that she felt quite unwell, that she was 
suffering considerable pain and especially in the small of 
lier back, and that the\" could not conceive what was the 
matter as she was usually very healthy. 

" Lockwood remarked that it was nothing serious, that 
he had been troubled several times with the same complaint 
himself, and that he always found relief by the ap])lication 
of a bag of hot salt to the small of the back, and recom- 
mended that the same remedy be resorted to now. This 
was done, and the relief soon came, but in a way by no 
means desirable; it was in the loss of a prospective heir; 
and Lockwood has never been able to convince me that he 
had been troubled with the same disease, and had found 
relief in the same way, and I have ever since believed that 
for once, at least, he was mistaken," 

During this recital Lockwood seemed restive and im- 
patient, for any joke at his expense tended to annoy him. 



170 EARLY BENCH AND BAR OF ILLINOIS. 

III. 

THE JUDGES OF THE SUPREME COUET. 

Samuel D. Lockwood was the first judge whose acquaint- 
ance I made in the State of Illinois. When living, I revered 
him as a man and as a jurist, and I revere his memory since 
he has departed. I first met him the fifth of October, 1833, 
Mdien he was liolding the Circuit Court at Pekin in Taze- 
well county, where I arrived in the afternoon on horseback 
from Chicago. I first saw him on the bench, and after 
court. adjourned for the day, I introduced myself to him, 
and explained that I was already practicing law in Chicago, 
but had not yet received a license, Avhich I wished to pro- 
cure from him should he, upon examination, find me quali- 
fied to commence the practice of the profession. He re- 
ceived me most kindly, and treated me with the utmost 
courtesy and consideration, introduced me to the members 
of the bar present, among whom I remember Stephen T. 
Loo-an, John T. Stewart, John J. Harden and Dan Stone, 
who were attending that court from abroad, all of Avhom. I 
then first met. The judge then inquired of the place of my 
nativity, whence I came and when. 

After supper he invited me to take a walk. It was a 
beautiful moonlit night; we strolled down to the bank 
of the river, he leading the conversation on various subjects, 
and when ^ve arrived at a large oak stump, on either side of 
which we stood, he rather abruptly commenced the exam- 
ination by inquiring with whom I had read law and how 
long, what books I had read, and then inquired of the dif- 
ferent forms of action, and the objects of each, some ques- 
tions about criminal law. and the law of the administration 
of estates, and especially of the provisions of our statutes on 
these subjects. 

I was surprised and somewhat embarrassed to find myself 
so unexpectedly undergoing the examination, and bungled 
considerably at the first when he inquired about the different 




SAMUEL 1). L()CKW(JUD. 



THE CONFERENCE R00i[. 171 

forms of action, but lie kindly helped me out by more spe- 
cific questions, which, directed my attention to the points 
about which he Avished to test my knowledge, Avhen I got 
along more satisfactorily. 

I do not think that the examination occupied more than 
thirty minutes, but it had the effect of starting a pretty free 
])erspiration. I think I would have got along much better 
had it commenced in a more formal way. However, at the 
close he said he would give me a license, although I had 
much to learn to make me a good lawyer, and said I had 
better adopt some other pursuit, unless I was determined 
to work hard, to read much and to think strongly of what 
I did read; that good strong thinking was as indispensable 
to success in the profession as industrious reading; but that 
both were absolutely important to enable a man to attain 
eminence as a Ir.wyer, or even respectability. 

I thanked him for his advice and assured him that I 
had no ambition in life except to qualify myself for a high 
position in the profession, and that I thought that ambition 
would enable me to follow his advice to its utmost extent, 
and that I believed I had firmness of character and of pur- 
pose enough to enable me to do so, though it might take 
long years devoted to that single purpose to accomplish it ; 
and I may now say that I faithfully lived up to the promise 
I then made to my venerable friend — for he seemed so to 
me — but he was then only in middle life, though his hair 
was almost as w^iite as snow. His kindly bearing to me 
then made an impression which never faded in all of the 
vicissitudes of after life, and whenever I disagreed with him 
in the conference room I did so with great hesitancy, and 
whenever he changed his views so as to conform Avith 
mine I still feared that I might be wrong after all. In his 
private character he was a model of purity and propriety. 

If Judge LockAvood Avas not a great man, he Avas a good 
man and a good judge. He had been a close student of the 
law, and seemed to have read everything Avithin his reach. 
His perceptions Avere very clear and discriminating. He 



172 EARLY BENCH AND BAR OF ILLINOIS. 

had a high sense of justice, yet he would not hesitate to en- 
force the law as he found it although he might think that 
in a particular case it worked injustice. His high sense of 
the proprieties of life Avas as conspicuous in the conference 
room as in every other walk of life. His sympathies were 
easily awakened and were ever active, and yet they were so 
under the control of his sterner feelings and his sense of duty 
that it could never lead him to Avarp the law in obedience to 
its demand. His discrimination was always keen, but ever 
practical. He had an exalted opinion of State rights, in 
which I could not always agree with him, and I once wrote 
a dissenting opinion in which I maintained that the provision 
of the United States Constitution, which secures to all in- 
nocent persons the rights to life, liberty and property, pro- 
hibits a State constitution to reduce a free man to a state of 
servitude, who is not guilty of any crime. The opinion 
which had been read in that case was so modified after I 
read my dissenting opinion as- to avoid that question, so it 
was never filed. His active efforts to defeat the constitution 
which proposed to make Illinois a slave State showed what 
were his individual sentiments on that subject, and his efforts 
in that great controversy were remembered as long as the 
controversy itself was fresh in the memory of men. All 
his acts and thoughts were the reverse of austerity, without 
lowering his dignity in the least on proper occasions. His 
social qualities were pleasing. He enjoyed humor and a 
good anecdote, but was not as good a story teller as many 
of his contemporaries. His style of writing was easy and 
perspicuous, and whoever will carefully study his opinions 
will not fail to see that he was a close and accurate thinker, 
a diligent student, and a terse writer. 

The jurisprudence of Illinois owes much to Judge Lock- 
wood, for he was a potent power in laying its foundation, 
and his labors and efforts at that early day should never 
be forgotten; I have ever esteemed it as one of my most 
happy privileges that I could benefit by so intimate associa- 
tion with him at so early a period of my life. 




THOMAS C. BROWNE. 



THE CONFERENCE ROOM. 173 

Judge Thomas C. Brown was the only remaining member 
of the old court of four judges before whom I practiced in 
the Supreme Court, for Judge Smitli had died before I came 
to the bench, and so I was never associated with him in that 
tribunal. 

Judge Brown was really a remarkable man in several 
respects. If he ever read a law l)()ok it was so long ago that 
he must have forgotten it. He had already occupied a seat 
u[)on the supreme bench for twenty-four years, from the 
first organization of the court upon its admission into the 
Union as a State. During all that time I have reason to 
l)elieve that he never wrote an o}>inion. One of the opin- 
ions which appears to h.ave been written by him in the 
reports, Judge Breese testified before the Legislature in a 
])roceeding depending in that body, that he wrote the opin- 
ion for Judge Brown. In the conference room I never 
heard him attempt to argue any question, for he did not 
seem to be able to express his views in a sustained or logical 
form, and yet he vv^as a man of very considerable ability, 
and had very distinct views of his own on questions that 
came before him for decision. 

He had been listening to arguments before the court for 
more than twenty years; and I may say here that it is the 
best school that any man can attend to learn the law. The 
lecture of a learned professor to a class in a law school, 
however important to a student in the beginning, can bear 
no comparison to the arguments before an appellate court, 
where every argument is a lecture upon some ]:)articular 
question or questions, generally ])repare(l by an able man, 
who exhausts the subject to a greater or less extent; and if 
the arguments are one-sided arguments, and so might mis- 
lead the student, the misleading arguments are sure to be 
met by the counsel on the other side, so that the judge or 
the student hears the reasoning and authorities which may 
be produced on Ixjth sides, and he is enabled, if he is 
capable of doing so, to understand what the law is in the 
particular case. 



1 74 EARLY BENCH AND BAR OF ILLINOIS. 

There were very able law^^ers who practiced before that 
court in its earliest days, as well as since, and no one conld 
have listened to their legal discussions for twenty years 
without hearing and learning a great deal of law if he was 
only capable of comprehending it. Xow, Judge Brown did 
not lack this capacity, but he did lack the capacity of 
clearly expressing, either in writing or orally, his thoughts 
in a clear and perspicuous manner. He could express him- 
self in conversation so as to be well understood, but never 
in the form of a sustained discussion. He expressed himself 
in epigrams, or short and pungent sentences which showed 
that he was a good thinker, and had clear and distinct 
views of his OAvn. He was a profound student of nature, 
and could judge with great accuracy, not only of individual 
character, but of what would influence the minds of men. 
He listened attentively to the discussions in the conference 
room, and would never express his opinion, especially in an 
important case, until he had heard all that could be said on 
either side by other members of the court, for he appre- 
ciated that he could not well maintain his views by argu- 
ment; but he Avould often throAV in pungent expressions, 
which of themselves would contain a pretty extended argu- 
ment. At the session of the General Assembly in 1844-5, 
when Shields and myself were holding commissions by ap- 
pointment, and so our terms would expire with the adjourn- 
ment of the Legislature, a fearful spasm of economy seemed 
to sweep over it, and a bill was introduced fixing the salary 
of the supreme judges at one thousand dollars per annum. 
x\s this could only take effect upon Shields and myself, 
should we be elected, a committee was appointed to wait 
upon the other judges, whose salaries were protected by the 
Constitution, and get their written consent to this reduction 
of their salaries. Of course those judges, who felt as inde- 
])endent of the Legislature as they were of the judges, 
politely declined to agree to any such proposition. These 
visits were not made to the judges in the conference room, 
but they were made to them severally or individually. 



THE CONFERENCE ROOM. 175 

When Manning, an able lawyer, and a member from Peoria, 
approached Brown with a proposition, he replied : " Per- 
jur}', perjury, sir; you ask me to commit perjury. The 
Constitution says that our salaries shall not be reduced 
during- our continuance in office, and now you ask us to 
participate in a reduction, which is a clear violation of the 
Constitution which I have sworn to support. I never did 
and I never will knowingly commit perjury.'' 

But they had Shields and myself tight; for all that 
we did not decline the election on that account, but were 
elected and held our offices two years at the reduced salary. 
Let it be remembered that we had to go around our circuits 
twice each year and attend the Supreme Court in the 
Avinter, pay all our own expenses, and even our own postage 
on official business, without any perquisites, unless we might 
occasionally make a dollar by performing a marriage cer- 
emony, or a quarter for taking an acknowledgment of a deed 
or swearing somebody to an affidavit, which, altogether, 
never amounted to ten dollars a year. 

At the next session of the General Assembly a law was 
passed raising our salaries to the same amount received by 
the other judges, but they never made up the thousand dol- 
lars which we received less than the others during the two 
years. 

I recollect that once, in the conference room, he and I 
differed from all the other judges upon a case which went 
up from his circuit, involving questions growing out of 
what was called squatter, or claim titles to ])ublic lands, a 
tenure by which a very large portion of the land in our cir- 
cuits was held, and was scarcely known in other parts of 
the State. Our predecessors on the circuit bench had, with 
the sanction of the bar, established a sort of common law 
for the government of this sort of titles, which was recog- 
nized and acted upon by all, without a thought that these 
rules could ever be disturbed or questioned; but some new 
lawyer had lately come in, who could not find anything in 
Blackstone or in our slatujte to support these rules, and took 



176 EATiLY BENCH AND BAR OF ILLINOIS. 

his case to the Supreme Court, and we were astonished to 
see that the other members of the court were inclined to 
overturn our local law, as it had been administered with- 
out question for so many years, which would disturb a great 
many titles in our circuits that were regarded as well 
settled, and were bought and sold every day without ques- 
tion. Without coming to a final decision, however, I was 
permitted to take the record and write out our views and 
present them at a subsequent conference. Brown's room 
Avas opposite to mine in the hall at the hotel, and at a con- 
ference between us we ai^Teed that the whole case was re- 
solved into two principal questions, and that if thcv would 
agree with us on the first question, we thought that we 
could see that they Avould bo compelled [to concur with us 
on the second. So I took the record to my room and wrote 
out our views upon the first question involved, which I took 
across to his room and read to him, and he expressed him- 
self much pleased with the manner in which I treated it. I 
then gathered up the papers and said I would go and write 
out the second part. " No, no," said he, "• don't write an- 
other word now. Let them take their medicine in broken 
doses. If they will take the first and keep it down they Avill 
take the balance without making a wry face." I readily 
perceived the force of his suggestion, at least so far as pre- 
senting it in broken doses was concerned, although I think 
I wrote the balance of the opinion the same night, but did 
not attach them together. 

At the next conference I read the first part. When I 
had done the chief justice inquired where was the balance 
of the opinion. I told him that unless what I had written 
was approved, it was no use to write any more, so I had 
presented this for their consideration, and if it was adopted 
I would then see what 1 could do with the balance of the 
case. It was considered and approved unanimously, and at 
a subsequent conference I read the balance of the opinion, 
and the final result was that tliey took the last part of the 
dose more complacently than the first, so that v^c finally 



THE CONFERENCE ROOM. 177 

obtained the sanction of the Supreme Court for our local 
common law governing claim titles. 

I often heard a story, not long after I went upon the 
bench, in which it was stated that Chief Justice Wilson 
asked his associates severally for their opinions on the case 
which was under consideration, and that when he came to 
Brown he was answered that he was not quite prepared to 
give his opinion yet, he wanted to consider the case further; 
and that Wilson replied, "Oh, nonsense. Brown, you may 
just as well guess- on the case now as any time." But that 
never occurred while I was in the conference room, and I 
am sure I never heard it related by any one of the judges 
as having occurred; and I have no doubt the story was made 
up by some one who supposed it to be characteristic. 

I never saw Judge Brown upon the circuit bench, but 
always understood that he got along very pleasantly with 
the bar and administered justice as satisfactorily as any of 
the other judges holding Circuit Courts. He evidently ap- 
preciated that while he could plainly see how a question 
should be decided he might not readily be able to assign the 
best reason for that decision, and so he prudently declined 
to assign any reasons. Probably all of us would have got 
along better at times had we adopted the same wise course. 

Mr. B. C. Cook relates a story, that he tried a cause before 
Judge Brown at Dixon, in Lee county, and that after he had 
obtained a verdict to which he thought he was fairly entitled, 
a motion for a new trial was made, which he thought was 
so plainly unnecessary that he declined to argue. The 
judge, after looking solemn and wise for a few minutes, 
said, " Well, Mr. Cook, let us give him a new trial. Maybe 
he will be better satisfied next time." 

Perhaps I have said enough to give a fair idea of my opin- 
ion of the peculiarities and abilities of Judire Thomas C. 
Brown, and will conclude by saying that I thinlc he was a 
man of very considerable ability and a much better judge 
than he usually has the credit of beinff. 

I have been looking over some of the earlier volumes of 
13 



] 78 EARLY BENCH AND BAR OF ILLINOIS. 

our reports, and am thereby reminded of events which 
occurred from forty-five to twenty-five years ago. Thi.s 
has afforded me great satisfaction. It called to mind inci- 
dents long since forgotten, which occurred in early life as 
connected with the duties and res])onsibilities which then 
devolved upon me, and of associations, both personal and 
official, many of which, but for such reminder, might never 
have again been thought of. I will repeat that my personal 
and official associations were of the most pleasing and har- 
monious character; still a sense of sadness creeps over me, 
when I remember what a large proportion of those with 
whom I then associated in official and professional life, have 
gone before me. I Avill particularize some of those events 
which are called to mind by those old reports. 

I have in a former number of this series referred to the 
case of BallancQ v. Underbill, 3 Scam. 453, as the first record 
which was assigned to me to prepare the opinion of the 
court; but I had before that, without the asking, in the case 
of Camden v. McCoy, 3 Scam. 447, delivered a dissenting 
opinion. Douglass had prepared an opinion in that case, to 
which all the jndges agreed except myself. ISTot supposing 
that it would be read the next morning from his place on 
the bench, and desiring to present my views with consider- 
able care, I had not prepared my dissenting opinion, as the 
opinions were always recorded as soon as possible after their 
delivery, and the record read by the clerlv from the record 
book the next morning. So soon as Douglass had closed read- 
ing the opinion of the court, I declared my dissent from it, and 
proceeded to state, orally, the reasons for my disagreement 
with the other members of tlie court. So soon as the court 
adjourned for noon I was surrounded by a considerable num- 
ber of the bar, who urged me in the strongest terms to write 
out my dissenting opinion and place it upon the records, for 
they thought that I was certainly right and would some 
time be sustained by the court and my opinion be made a 
rule of the commercial law of this State. I did write out 
ni}^ dissenting opinion that night, and handed it to the clerk 



THE CONFERENCE ROOM. 179 

in the morning, who had left a blank in his record following 
the principal opinion, in which the dissenting opinion was 
recorded. I do not remember whether the same c^uestion 
again arose while I was on the bench, or if it has arisen since; 
I can not say what has been the course of decision upon it. 
1 now see that in my dissenting opinion I held that if a note 
of hand is presented by the payee, without indorsement by 
him, with the name of another written on the back, without 
any evidence to show when that name was written, or for 
what purpose, that the presumption of law is that it was 
written there at the time of tlie execution of the note, and 
that his obligation was not that of an indorser, but that he 
became a guarantor, and was in fact a joint maker of the 
note, and might be sued as such jointly Avith the j)arty 
whose name was written on the face of the note; that the 
consideration for which the note was given was a sufficient 
consideration for the guarantee; that all the acts done at 
that time constituted but one transaction; that the obliga- 
tions were simultaneous, alike and joint, and that they might 
be enforced in one action against both, and that the creditor 
need not bring a multiplicity of actions to enforce his rights. 
Then, for the first time, was my voice heard from that bench. 
It was next heard when I read the opinion of the court in 
the case of Ballance v. Underhill, in which it was held that 
a defendant in a suit in chancery could not be decreed affirm- 
ative relief upon statements made in his answer, but that he 
must file a cross-bill to entitle him to such relief; and I had 
a pretty hard struggle to get that decision adopted. Indeed, 
I confess that I then thought that I was looked upon as 
too much of a boy to entitle my opinions of tlie law to be 
of much weight or influence. 

At the same term of the court in the case of Updike v. 
Armstrong, I wrote the opinion of the court reversing a 
judgment which I had rendered in the Circuit Court. 

As I was defeated in the election by the General Assembly, 
which took phice during my first term of the court, my 
commission would expire at the close of that session. I 



180 EAKLY BENCH AND BAR OF ILLINOIS. 

supposed that I should then retire from the bench forever. 
Before the close of the term the case of Dovle v. Teas, 4th 
Scam. 202, had been argued and submitted and considered 
in conference at several sessions, in which I took a pretty 
active part, but no final agreement had been arrived at. I 
Avas requested by the chief justice, with the approval of all 
the other membars of the court, to take the record and 
write an opinion during the vacation, which, if agreed to, 
should be read by some member of the court at the next 
term. I confess that this request was gratifying to me, as 
it convinced me that my views were entitled, at least, to 
respectful consideration, and especially on questions of 
chancery law, which was further evidenced by the fact that 
most of the chancery records had been given to me after the 
case of Ballance v. TJnderhilL Of course I took the record 
under the peculiar circumstances with great satisfaction, 
and resolved to do my very best in preparing what I sup- 
posed to be my last judicial opinion, and I did expend a 
great deal of labor upon that opinion, and especially upon 
the question as to what notice shall affect a subsequent pur- 
chaser of real estate. By a careful investigation and com- 
parisons, I discovered what I had never noticed before, that 
Ijoth Kent and Story alike, had laid down radically different 
rules to govern this question of notice, under precisely the 
same circumstances, and after reviewing a large number of 
decisions, both in England and America, I found it impos- 
sible to deduce any satisfactory rule from them, and the rule 
which I did finally formulate maybe as difficult in its appli- 
cation to particular cases as those which had been laid down 
by others; however, I sought to so frame it that it might be 
applied to all cases^ though the facts proved might be ever 
so variant. 



THE CONFERENCE ROOM. 181 



IV. 



SALARIES OF JUDGES HISTORY OF THE COURT FROil THE BEGIX- 

NIXG HARDSHIPS OF TRAVEL IIST ATTENDING COURT. 

The next case to which I am iKclined to refer is that of 
Sceley v. Peters, 5 Gihii. 130. The only question arising in 
that case was whether the common law of Eno-land, which 
required that the owner of domestic animals should restrain 
them from going on uninclosed premises of another, was in 
force in this State or not. The case was tried before me at 
the Peoria Circuit in 1S17. I had previously bestowed 
great labor and care in examining the question and thouglit 
I understood it thoroughly, and upon the trial I instructed 
the jury that the common law of England prevailed here, 
and that the owners of stock were liable for damao-es if 
permitted to stray on the uninclosed lands of another. 

After the case had been argued and submitted, and we 
retired to the conference room with the record, we all ex- 
pressed our opinions of the case. No assignment of the 
record was made to any one to write the opinion, nor was 
an}'^ vote taken as to what the decision should be, but I at 
least supposed that it would be considered at a future con- 
ference, when each member of the court would have an 
opportunity of assigning his reasons for the conclusion at 
which he arrived; and so the case was passed, and the con- 
ference proceeded to consider other cases. 

For several days this case was not again referred to. 
Finally an opinion was read reversing the judgment, Avhich 
was approved by a majority of the court, holding that 
the common law had been repealed by the first section 
of the law of 1819, and also that it was not applicable to 
our condition in life, as existing here, and that our people 
had always supposed that the law required every man to 
inclose his own premises to keep off the stock of others 
roaming at large. 

To say that I felt chagrined and mortified at being thus 



182 EARLY BENCH AND BAR OF ILLINOIS. 

ignored by the otlier members of the court, expresses my 
feelings mildly. The caSe had been considered by them 
outside the conference, and it was manifest that they had 
studiously avoided any intercourse with me on the subject. 
I was a meml:)er of the court with as many rights and du- 
ties in connection with it as either of the other members, 
and to practically expel me from it bespoke some cogent 
reason, which they did not care to explain to me. To 
assume that I Avould unduly endeavor to secure a decision 
affirming my ruling on the circuit, as might naturally be im- 
plied from being thus excluded from the conference on the 
case, I felt sure v/as not justified by my past action as a 
member of the court. They certainly knew that I had 
never shown any sensitiveness at having my own decisions 
reversed, but had always shown an ardent desire to obtain 
correct decisions, whether they might affirm or reverse my 
circuit rulings. The case of Kimball v. Cook, 1 Giim. 423, 
had been heard before the nine judges, and while I had 
heard the argument I declined to vote upon it, because I 
was in great doubt whether my decision upon the circuit 
was right or not, and I saw it would require a most labori- 
ous examination of the statute to satisfy myself on that 
])ointT; but when the vote was taken it was found that four 
members of the court voted for affirming and four for revers- 
ing. While that would affirm my judgment by an equal 
division of the court, I was by no means satisfied that the 
decision would be right, and so consented to take the 
record and write out an opinion which would decide the 
case, whichever way I might conclude the law to be. I did 
so, and after a very careful examination of the statute I 
was entirely satisfied that I had committed an error in the 
court below, and so wrote out an opinion reversing my own 
judgment, and when I read it in conference three of the four 
who had voted for affirmance appeared to be convinced 
with me that the judgment should be reversed, and so it 
was done, and my opinion was adopted as the opinion of 



THE CONFERENCE EOOM. 183 

the court, excepting Judge Young, who wrote a dissenting 
opinion. 

Indeed, I thought ni}^ associates should have appreciated 
that my only desire was to have cases decided according to 
the law, without the least regard as to whether I, or some 
other judge, had made the decision in the lower court, which 
was under review at the time. I know I was just as anxious 
to reverse mj'" own decisions, when satisfied of the error, as 
if the}^ had been made by another judge. My only desire, 
and my araliition, was to lay down the law in the Supreme 
Court so that it would stand the test of time and scrutiny, 
rather than to perpetuate an error upon the records of the 
court from a false pride of opinion, which would afterward 
be found to be erroneous. I felt that lasting fame could 
only be secured by right decisions at the last, and that by 
affirming an error I could only weaken what reputation I 
might otherwise acquire. It is no reflection upon the 
capacity or integrity of a judge that his decisions at 
nisi i^rius should be reversed on appeal. There he must 
decide cases upon first impression, without that thorough 
examination which would enable him to form a matured 
judgment. Chancellor Wahvorth was taken from the cir- 
cuit bench and made chancellor of the State of Xew York, 
and yet, whoever will have the curiosity to examine, will 
see that proportionally more of his decisions as circuit judge 
were reversed, than were those of an}'- other judge who ever 
sat upon, a circuit bench of that State; still his great repu- 
tation as a jurist was never impaired by that circumstance. 

If I know myself, I know that I never had the least sensi- 
bility about having my judgments rendered on the circuit 
reversed in the Supreme Court, and I never admitted the 
idea that it was for that reason that I was excluded from 
the conference in the consideration of this case. Perhaps it 
was because the other judges did not care to bear the inflic- 
tion of hearing me argue the question in conference, which 
had been so well argued at the bar, and upon which their 
minds were conclusively made up; but for all that I did feel 



1(S4 EARLY BENCH AND BAR OF ILLINOIS. 

it keenly, and at once resolved to write a dissenting opinion, 
in which I thought I could demonstrate that the decision 
had not been the law before, although it must become the 
law afterward, at least for a time, and I did my best to do 
so. I certainly shovred that the first section of the act of 
lbl9, which was strongly relied upon, had been repealed and 
never afterward re-enacted; that many decisions of as 
respectable courts as any in the Union, and exactly in point, 
sustained a ruling of the court beloAV, and that whether it 
was contrary to the genius of our institutions, and of the 
habits and notions of our people, were questions for the 
Legislature, and not for the court to determine. I under- 
stand that the Legislature has since that time enacted several 
laws modif3^ing or changing the rule laid down by the court 
in that case, but I have not taken the trouble to examine 
them. 

In looking over the report of that case after the lapse of 
so many j^ears, I see that my dissenting opinion was unpar- 
donably long, and that some of its expressions were more 
pungent than I wish they had been, but I am still satisfied 
that I was right in my conclusions as to what the law was. 
It is evident that when I wrote that opinion, I could not 
but feel the sting which had been provoked by what seemed 
to me to be a discourtesy; in this I am now satisfied that I 
was wrong, for I am entirely convinced that no discourtesy 
was intended. I am happy now to remember that the event 
never produced a shadow of coolness or ill-feeling between 
us; the same harmony and personal friendship always after- 
ward existed as it had done before. 



V. 



ANECDOTES OF LINCOLN AND OTHERS — STOUIES OF CELEBEATED 

TRIALS. 

When Judge Breese took his seat upon the bench of the 
Supreme Court for the second time, the court consisted of 
Breese, Skinner and myself. In the course of conversation 




OMAS C. SKINNER. 



THE CONFERENCE ROO:.I. 1S5 

Ave discovered that we all three came from Oneida county, 
X. Y., and this remarkable incident soon became known to 
the bar, and was tlie subject of comment among them. The 
conference room at Springfield adjoined that of the library, 
where the lawyers usually assembled in the evenings, exam- 
ining their cases and making up their In-iefs, while we were 
in conference in the adjoining room. Generally Mr. Lincoln 
was present in the library with the other members of the 
bar at work upon his cases. AYith rare exceptions not a 
Avord could be heard from the lil^rary room till about nine 
o'clock in the evening, when a boisterous laughter would 
frequently break out there, which put an end to their Avork 
for tliat eA'ening, and had a strong tendency to suspend work 
in the conference room. We kncAv at once that Mr. Lincoln 
Avas telling some neAA' story, for which he Avas so celebrated, 
and the temptation, to me at least, was A^ery strong to go 
out and hear it. This occurred very early in the first term, 
Avhich v.'e held in Springfield, after Breese had joined us at 
Mount Yernon. When I passed into the library room Mr. 
Lincoln, AA'ho was seated on one of the tables, his feet hang- 
ing doAvn nearly to the floor, said : '*' Judge Caton, I want 
to know if it is true, as has been stated, that all three of you 
judges came from Oneida county, Xew York?" I told him 
I belie A'ed it AA^as so, AA'hatever that might indicate. " 0?ili/ 
t/ris,''^ he said, " I could never understand before ichy this vx(s 
a One-i-dea courty Of course this produced a laugh so loud 
and universal that the other judges had to come out and 
see what was the matter, and Avhen it AA'^as explained they 
joined in the merriment as cordially as the rest of us. 

I must say here that I was usuall}' glad to learn in that 
way that Lincoln was in the librar}" room, thus diverting 
the attention of the other members of the bar from the 
drudgery of the work in which they had been engaged by 
telling some amusing story; both before and after that time, 
and in the conference room, we were not loath to have our 
attention diverted by the same means, at least for a time. 



1S6 EARLY BENCH AND BAR OF ILLINOIS. 

Beyond comparison, the most dilTiciilt task I ever assumed 
at the request of my associates Avas to write an opinion 
reversing the judgment in the case of The People v. Thur- 
ber, 13 111. 554, but it just had to be done. It would have 
been a very easy task to write an opinion affirming the 
judgment, but that would have entailed a public calamity, 
which could not be thought of for a moment. Tliat was 
one of those cases where consequences had to be taken into 
consideration and given an absolutely controlling influence, 
and my duty was to hunt up shreds and scraps of statutes 
to sustain the decision, and relying as little as possible upon 
the consequences of an affirmance, which, after all, consti- 
tuted really the controlling consideration. 

To have affirmed that judgment would have been to sus- 
pend the operations of all our election laws and held them 
suspended until a statute could have been passed to cure an 
omission in an existing statute. 

In obedience to the Constitution of 1S48 the first General 
Assembly which assembled under that constitution, passed 
a law abolishing the Court of County Commissioners and 
the office of clerk of that court, and creating a County 
Court with a clerk, and conferring upon it judicial powers 
which had never been exercised by the County Commission- 
ers' Court, as well as the powers which had previously 
existed in the County Commissioners' Court, and of course, 
it followed that the clerk of the new court would exercise 
the powers devolving upon him in relation to the jurisdic- 
tion conferred upon the court ; but the previous laws had 
required the clerk of the County Commissioners' Court to 
perform many ex officio duties in the execution of many 
other general laws which had no connection whatever with 
the jurisdiction of that court ; and without the performance 
of these duties by some one authorized by law to perform 
them, their operation must be absolutely suspended, and yet 
the Legislature had omitted to pass any statute devolving 
these duties upon the clerk of the new County Court, or 
u]ion any other person or officer, and my task was to find 



THE CONFERENCE ROOM. 187 

some authority for holding that these ex ojjicio duties liad 
been kiwfully exercised by the clerk of the new County 
Court. I repeat that this had to be done or else the wlieels 
of government, to a vital extent at least, must be sus- 
pended. 

I ransacked the statutes thorouo^hlv, and found in dif- 
ferent acts many provisions and expressions which showed 
clearly that the Legislature supposed and believed that ex- 
isting laws authorized the clerk of the new court to perform 
all of these ex officio duties which had been imposed upon 
the clerk of tlie old court, but that was all. From these 
expressions I inferred that it was the will of the Legislature 
that these duties should be performed by the clerk of the 
new court; that although that will was not expressed in 
any separate and affirmative statute, it was clearly manifest 
from the language which the Legislature had used in 
several different acts, and that the will of the Legislature 
clearly expressed in several acts, when taken together, con- 
stituted the law of the case as much as if that will had been 
expressed in one distinct statute. 

Xow, this was the best I could do in support of a decision 
which had to be made, and as my associates could suggest 
nothing better it was made to pass, and the government 
went on quieth^ as before. 

Strange to say, nine years later we found ourselves con- 
fronted with a similar difficulty in the case of AVood v. 
Blanchard, 19 111. 38, and it is a little singular that two 
such hard questions as these should be presented to us for 
decision, v.diile, I venture to say, nothing analogous to them 
had ever been presented to any other court for adjudication. 
In this case it appeared that the old constitution created 
the office of coroner, the mode of whose election and duties 
were subsequently prescribed by acts of the Legislature. 
By the adoption of the Constitution of IS-IS, the old con- 
stitution was superseded, and, in fact, repealed, and so was 
the office of coroner abolished, and not re-created in the 
new constitution, nor had any subsequent act of the 



188 EAELY BENCH AND BAR OF ILLINOIS. 

Legislature created that office; and yet, for nine years, peo- 
ple had been electing coronei's who had been discharging 
the duties of that office; and the only question presented 
was whether there was such an office, and could be such an 
officer, in this State. To have decided otherwise would 
have created incalculable mischief. Many titles depended 
upon the validity of their actions, especially when acting as 
sheriffs, and the necessity for affirming the decision in the 
case w^as scarcely less imperative than was that of reversing 
the decision in the other; certainly no affirmative law had 
been passed for the purpose of creating such an office, but 
it was equally certain that several laws had been passed, 
showing that the law-making power assumed that there was 
such an office and had legislated upon that assumption. 
Indeed, the convention which had abolished the office had 
prescribed in its schedule certain duties, which should be 
performed by the coroner after its adoption. By a law 
duly enacted after the adoption of the new constitution a 
provision was made for the election of a coroner whenever 
a vacancy should occur. iS^ow, Avhile it Avas admitted that 
no law had been passed expressly creating the office of 
coroner; this law had been passed providing for his election 
and prescribing his duties, in some cases at least. This, we 
held, clearly showed that it was the intention of the laAv- 
making power that there should be such an officer as a 
coroner, and consequently it must have been equall}^ the in- 
tention of the laAv-giver that there should be such an office, 
which might be filled and held by such an officer. 

The rule established by these anomalous cases ma}^ be 
thus formulated : the Avill of the law-maker is tlie law, Avhen 
expressed in a constitutional Avay, and we may look through 
all its statutes to find a legitimate expression of that will, 
and Avhen found it is the duty of the courts to enforce it. 

I say this is the rule fairl}^ deducible from the decisions 
of these tAvo cases, and I still think it is in perfect harmony 
Avith the long and Avell settled rules for the construction of 
statutes, and that it fairly justified those decisions, though I 



THE CONFERENCE ROOM. 189 

confess that in writing that opinion I felt as if acting under 
a sort of constraint imposed by an absolute necessity, Avhich 
I hav^e never felt when deciding any other case. I do not 
think it probable that any other court Avill have occasion to 
use them as precedents for the want of cases parallel to 
these. 

The dissentient might formulate another rule, perhaps 
scarcely less consistent with the general rules of the law for 
the construction of statutes, which may be stated thus : if 
the law-maker actually believes or supposes the law to be so 
and so, and expresses that belief in a constitutional way, that 
does not make it the law, for he does not thereby affirma- 
tively declare that it shall be the law. Or he might state it 
thus : if the law-maker misapprehends the law, no matter in 
what form that misa]3preheusion may be expressed, that 
does not change the law. 

In this respect the misappreliension of the legislative 
department as to what the law is, has a different effect from 
the mistakes of the judicial department; for if the Supreme 
Court mistakes the law, its decision made under such mis- 
apprehension actually changes the law, at least for the time 
being. 

The case of Baxter v. The People, 3 Gil. 368, presented 
some very important questions arising under our Criminal 
Code, in which the duty was assigned to me to write the 
opinion of the court, the first of which was, whether a de- 
cision of the Circuit Court overruling a motion for a contin- 
uance could be assigned for error, and I was instructed to 
hold that a decision of such a motion in a criminal case rests 
in the sound discretion of the court, and could not be as- 
signed for error; that the statute of the 21st of July, 1837, 
allowing error to be assigned on decisions denying motions 
for a continuance, only ap])lied to civil cases. In Yickers v. 
Hill, 1 Scam. 308, the court had decided that the Practice 
Act of 1827, Avhich confessedly only applied to civil cases, 
provided that decisions of motions for continuances could 
not be assigned for error, and we held that the amendment 



190 EARLY BENCH AND BAR OF ILLINOIS. 

to that act passed in 1837 was only intended to apply to 
those cases provided for in the act to which it was an amend- 
ment. I see that by Sec. 63 of the Practice Act in the 
Statutes of 187-1 overruling motions for continuance in crim- 
inal cases may be assigned for error, but I have not traced 
the statutes back to see when this innovation was first intro- 
duced by the Legislature. 

For the first time in this case we were called upon to give 
a construction to the statute which declares that accessories 
to crimes " shall be deemed and considered as principals and 
punished accordingly." 

The indictment against Baxter was for the murder of Col. 
Davenport, as principal. The evidence showed that he was 
accessory before the fact, and the question was whether he 
should have been indicted as accessory, and concluded with 
the avowment that he thereby became principal, or whether 
the indictment against him as principal was sustained by 
the proof that he was accessory. After much consideration 
a majority of the court determined that he was properly in- 
dicted and convicted as principal upon proof that he was 
accessory before the fact, and I understand that that rule 
has been folio Aved ever since in this State without question, 
and that the anarchists were lately convicted and executed 
by the application of this rule, without even asking the 
court to consider it; but it was not originally adopted with- 
out doubts and misgivings; and Mr. Justice Koerner, after 
all, dissented, and maintained his dissent in a very strong 
opinion, holding that the indictment should have stated 
the facts of the case as they really existed, so that the pris- 
oner would have been fully advised of what he was to meet 
and controvert on the trial. 

Another very important question was decided in this case. 
The trial was commenced on Friday and the case submitted 
to the jury on Saturday, who brought in a verdict on Sun- 
day, which was received and recorded and sentence of death 
was passed on that day. This was assigned for error upon 
the ground that Sunday is dies 7ion juridicus, and that the 




PINKNEY H. WALKER. 



THE CONFERENCE ROOM. 191 

court had no jurisdiction to do a judicial act on that day. 
This position was sustained so far as the sentence was con- 
cerned, and so the judgment was reversed, but we also held 
that the receiving of the verdict was not a judicial act, and 
hence it was properly received on that day. 

Then the question arose whether the reversal of the judg- 
ment carried with it a reversal of all the anterior ])roceed- 
ings. Undoubtedl}^ the weight of authority in the English 
courts supported that proposition, and that the prisoner 
should have been discharged forever for the crime of which 
he had been guilty; but we thought we found an abundance 
of authority for holding that the reversal of the judgment 
only reversed that which was erroneous, or, in fact, void, for 
we held that the sentence of death which was pronounced 
on Sunday was absolutel}^ void for the want of jurisdiction 
to do any judicial act on that day, and so we remanded the 
case to the Circuit Court with instructions at its next terni 
to pass the sentence of the law upon the verdict which had 
already been properh^^ received and recorded, which was 
held to be a ministerial act only. 

VI. 

APPOINTMENT OF PINCKNEY H. WALKEK AS JUDGE SKETCH OF 

HIS LIFE, 

During the December term of the court, 1856, Judge Skin- 
ner asked me if I was well acquainted with G-ov. Bissell. I 
answered him that I was pretty well acquainted with the 
governor. He then told me that he was about to resign 
his seat upon the bench, but would only do so upon the con- 
dition that Pinckney H. Walker would be appointed to suc- 
ceed him, and that as the governor was a republican and 
Judge Walker a democrat, he might not be inclined to make 
such an appointment, and requested me to see the governor 
and ascertain if he would appoint Walker in case of such a 
vacancy. I accordingly called upon the governor and 
frankl}^ stated Judge Skinner's proposition to him, and also 



192 EARLY BENCH AND BAR OF ILLINOIS. 

told him that while I did not know Judge Walker person- 
ally, I was entirely satisfied that he was especially qualified 
for a place on the supreme bench, and that he would dis- 
charge his duties there honorably to the governor who 
should appoint him, and be useful to the public service. 

He replied that he would take the matter into considera- 
tion, and would consult his confidential friends on the sub- 
ject, especially those who knew Judge "Walker personally, 
and that he would let me know later. 

Perhaps a week after this interview I received a note 
from the governor stating that he was very favorably im- 
pressed with Judge Walker from what he had heard con- 
cerning him, but that he would prefer to have a personal 
interview with the judge before coming to a final decision 
on the subject. I assured him that I would arrange for 
such an interview as soon as practicable, and immediately 
telegraphed Judge AValker to come to Springfield at once, 
but did not explain the reason for the request. 

Within a day or two afterward Judge Walker put in an 
appearance, when I was introduced to him for the first time, 
and the reason of my message was explained to him; he 
expressed a willingness to accept the office should it be 
offered him, although, at the June election following, he 
would have to submit his claims to a vote of the people in 
a division which was largely republican politically. 

At that time politics cut very little figure in judicial elec- 
tions in any part of the State. But a year or two before I 
had been elected by a two-thirds vote of the people while 
two-thirds of the voters of my district were opposed to the 
political party with which I affiliated; but in fact, this 
affiliation was more nominal than otherwise. During all 
the time I was on the bench, I never made a political cpeech 
or attended a political meeting, or in any way discussed 
political questions in public, or even in private to an}^ con- 
siderable extent, and, indeed, I rarely voted except on 
special occasions. 

I never would vote for any candidate simply because he 



THE CONFERENCE ROOM. 193 

"was the nominee of my part}'", or unless I believed him to be 
as meritorious in ever}^ respect as his opponent of the op- 
posite party. I always believed, and still believe, that 
politics should find no place on the judicial bench, and that, 
I ahvays feared, would be the great danger of making the 
judiciary elective; and I still fear that danger may come of 
it, but I have been happy to observe that the people gen- 
erally seem to appreciate that danger, if the professional 
politicians do not. 

I am pleased to say now, that Judge Walker's eminent 
qualifications for the bench were duly appreciated by the 
people of his division, and that he was successively elected 
ever after, so long as he lived, and that he died, still wearing 
the ermine untarnished. 

During all the fifteen years that I sat upon the bench of 
three judges, all belonged to the same political party, and I 
do not believe that any man living ever even suspected that 
party politics had the least influence upon our judicial de- 
cisions. During that time five or six cases came before us, 
of which suspicious persons might think that they had a polit- 
ical bearing, but it so happened that in all of these cases we 
decided against what some might suppose would be favorable 
to our political party. Pardon this digression. 

That evening I went with Judge Walker to visit the 
governor, and our visit was certainly a very pleasant one. 
Gov. Bissell was that sort of a man with whom any gentle- 
man could pass an hour most delightfully. 

He was a gentleman himself in the highest sense of 
the term. He was a man of very marked ability. He was 
an excellent lawyer of the most spotless integrity. He had 
Avon a high reputation as a soldier in the Mexican war, and 
was as sensitive for his honor as for the apple of his eye. 

The next day the Secretary of State intimated to me that 
Judge Walker's commission was made out and would be de- 
livered so soon as Judge Skinner's resignation should be 
received. I then took Judge Skinner's resignation into the 



194 EARLY BENCH AND BAR OF ILLINOIS. 

secretary's office and delivered it to the Secretary of State, 
and received Judge Walker's commission. 

Later on, in 1864, wiien I felt that an imperative domestic 
duty compelled me to resign the high place which I then 
occupied on the Supreme Be!l%h, I called upon Governor 
Yates, and informed him that I had some thoughts of re- 
signing, and asked him if he would allow me to suggest 
for his consideration the name of my successor; he said 
he would be most happy if I would do so, and I suggested 
the name of Judge Beck with; after a few ^ays' consid- 
eration he informed me that he had considered my sug- 
gestion, and conferred with his confidential friends on the 
subject, and that he had made up his mind that should I 
determine to resign, he would appoint Judge Beck with to 
fill tlie vacancy; and so it was done. 

In the case of The People ex rel. v. Governor Bissell, 21 
111. 229, an application was made to the Supreme Court for 
a writ of mandamus to be directed to the governor, com- 
manding him to issue certain State bonds to the relator, 
which, as Avas claimed, an act of the Legislature required 
him to do; and thus was presented the question when, and 
how far, one of the three departments of the government 
possessed the power to control another, and the record was 
assigned to 'me to write the opinion of the court. In that 
opinion I endeavored to point out, as best I could, to what 
extent and in what way, under the constitution, one depart- 
ment could control or influence the action of another. 
While necessarily, in many cases, one department may con- 
trol or influence the action of another department, that is 
usually, if not universally, done indirectl}^; as where the 
courts may decide a law to be unconstitutional, which had 
been passed by the legislative department; while thei Legis- 
lature may restrict or extend the jurisdiction of the courts, 
or the governor may pardon a criminal who has been con- 
demned by the judiciary. Such powers are usually, if not 
always, of a restraining character rather than compulsory. 

Without this we expressly disclaimed an}" authority on the 




CORYDON I5ECKVV1TH. 



THE CONFERENCE ROOM. 195 

part of the judiciary to control or direct tlie governor as to 
how he should discharge his duties as prescribed by the 
constitution, or the law, or whether he should discharge 
them at all; though he may neglect or refuse to perform an 
act required of him to be performed, he is as much beyond 
the reach of the courts to compel its performance as is the 
Legislature. 

We had no more power to compel him to call an election 
which the law required him to do, than we had to compel 
the Legislature to enact a law which the constitution re- 
quired it to enact. The judiciary may undoubtedly exercise 
a restraining power indirectly over the acts of the governor, 
should he do an act not authorized by the constitution or 
the laws, by declaring such act void, and so nullify it and 
thus destroy its effect , as we would an act of the Legisla- 
ture, which we might declare unconstitutional, but we could 
not act directly upon him by forbidding him to perform 
the act. 

We recognized the right of the governor to call upon the 
judiciary for its judgment of the law in relation to the per- 
formance of duties imposed upon him, by submitting an 
agreed case, for instance, presenting the question, in which 
case he submits himself to the jurisdiction of the court, 
when the court will hear arguments and decide it as in other 
cases; but even in that case, should he refuse to conform his 
action to the decision of the court, I do not conceive that it 
woukl have the power to compel him to submit as it could 
ordinary suitors. I know of no case in which that question 
has been presented. It may be said that his having once 
submitted to the jurisdiction of the court — that the court 
having acquired jurisdiction of the case and of the person 
in a mode recognized by the law, it may exercise that juris- 
diction to the end, according to the general principles of tlie 
law governing all other cases; but this, I apprehend, Avould 
be an exception; for even that rule must have its exceptions; 
for instance, the legislative power may pass a law depriving 



196 EAELY BENCH AND BAE OF ILLINOIS. 

the court of jurisdiction in a case jyendcnte lite, after it has 
acquired complete jurisdiction of it. 

Thus we see that there are a great variety of ways in 
which one department of the government may exercise con- 
trol over another, but generally indirectly, as before stated. 
This precise question was attempted to be raised, and it 
was argued in the case of Webster v. French, 11 111. 254, 
but it was evaded rather than decided in that case. That 
bill was filed for a specific performance of a contract for the 
sale of the Quincy House, which belonged to the State. An 
act of the Legislature had directed the governor to adver- 
tise the Quincy House for sale and to receive sealed pro- 
posals for it up to the first day of July then next, and to 
accept the bid of the highest responsible bidder, and as 
governor to execute a deed to the purchaser. Bids were re- 
ceived and the governor had accepted the bid of Ash & 
Diller and executed a conve3^ance to them, thus vesting the 
legal title, and that bill was filed, claiming that the bid of 
Ash & Diller was an illegal bid and that the complainants' 
bid was the highest and best legal bid, and that the governor 
had decided that they were responsible bidders. The bill 
made the governor and Ash & Diller and several other 
bidders, parties defendant. It was demurred to and the 
demurrer was sustained in the court below, and upon this 
decision the case was brought to the Supreme Court. 

The governor raised no question in the pleadings as to 
the jurisdiction of the court, though the question was raised 
by defendants' counsel in the argument of the case. 

We held, that excepting as to the execution of the deed, 
which had already been accomplished, all of the duties re- 
quired of the governor were merely ministerial and not 
executive, and might have been authorized to be done by 
any other person; and that the only question in the case was 
that of property rights between the complainants and the 
governor's grantees, in whom the legal title was now vested; 
we proceeded to adjudicate the case as between those 
parties, and evaded the question as to what we could have 



THE CONFERENCE ROO.M. 197 

done to enforce a decree requiring the governor to act in 
his executive capacit}', so that question remained undecided 
and unconsidered until the case of the People ex reL v. 
Gov. Bissell, before referred to. 

But there were several other very important questions 
presented in this Quincy House case for which we could find 
no precedents directly in point to aid us in our deliberation, 
especially as to the first; and that was, by what rules of law, 
biddings by sealed proposals should be governed; that was 
the more remarkable since vast interests have in later times 
been involved in that class of bidding by which public and 
private contracts are made for the execution of public and 
private works, and the ]3urchase and sale of properties, both 
public and private. I say that we thought it remarkable 
that no question should ever have been raised in the courts as 
to what rules shall govern this class of transactions, and what 
was necessary to constitute a legal bid by sealed proposals, 
while the books are full of rules governing sales b}^ open 
bidding at public auctions. 

In this case the complainants bid $21,100, Root & Co. 
$500 more than any bid made for the property, while Ash 
& Diller bid $G01 over and above the highest bid for the 
property. The governor tacked Eoot & Co.'s $500 bid upon 
the specific bid of the complainants, and then upon that he 
tacked the bid of Ash & Diller of $001, making a total 
of $22,201, and for that sum awarded the purchase to Ash& 
Diller, to whom he executed the deed, and I was instructed 
to write an opinion holding that the specific bid of the com- 
plainants was the highest legal bid made for the property, 
and that the other two bids were illegal and void. 

Xo cases were found bearing at all upon the question, 
except that of Williams v. StcAvart, 3d Merrivale, 471, when 
Lord Eldon in a mere dictum said, that bids something like 
these were accepted in the north of England, where they 
are called candlestick bidding, I suppose because the written 
proposals were placed under candlesticks standing on the 



1 98 EARLY BENCH AND BAR OF ILLINOIS. 

table before the commissioners receiving them, until all 
were in. 

As this was the only case found which had the least re- 
semblance to the one before us, I was required to discuss it 
and decide it on general principles, which I did as well as I 
could. We held, that sales by sealed proposals were but 
another mode of sales by auction, and that the same mode 
of fair dealing and justice is required to govern their con- 
duct as is required in the conduct of auction sales where 
the bids are open and public; and to secure this, the rules 
for receiving the bids in the latter must be exactly reversed 
in the former. Where open bids are received, every bidder 
has a right to know what other bids are made against him, 
so that he may govern his bid, if he chooses, by the judg- 
ments of the other bidders; and for the seller to receive a 
secret bid, or one not known to the other bidders, is a fraud 
upon them, for which the law will afford an adequate 
remedy; whereas at auctions by sealed proposals the policy 
is that each bidder shall act upon his own judgment, or at 
least independently of the judgments of any other bidder, 
and if the seller should, before the bidding is closed, make 
known the bid of one bidder to another, that would be a 
fraud upon the bidder whose offer was disclosed. Upon 
these principles the bids of Eoot & Co., and of Ash & 
Diller, which were based upon the judgments of specific 
bidders, were a fraud in law upon the specific bidders and 
void; and that as the complainants were the highest specific, 
responsible bidders, they were entitled to the property at 
their bid, and that Ash & Diller, who had been invested 
with the legal title, might be compelled to convey it to 
them upon their performance of the conditions of their bid. 

I understand that since that time the practice has grown 
up and become quite general that notices for secret bids 
have reserved the right to accept or reject any bids. It 
seems to me that the reservation of this right in inviting- 
bids may present questions which the judiciary will be 
called upon to decide. How far this is consistent with that 



THE CONFERENCE ROOM. 199 

rule of fairness and integrity which shoiihl govern all auc- 
tion sales, may open a field for discussion which will admit 
of a pretty broad range, and may at some time invite serious 
consideration, where statutes do not intervene to sanction it. 
It seems to me that it hardly comports with that fairness 
reciprocal rights and obligations would seem to require, if 
the parallel which is laid down in this case between open 
and secret auctions is to be maintained. If in open auctions 
the right were claimed to accept or reject all bids made, it 
would be an anomaly, at least; and how far it would be 
sanctioned by the courts, is still, I apprehend, undecided. 
It seems to me it would be but a mocker}'^ of fairness and 
equality of rights, and why is it less so in case of secret 
auctions ? 

In open auctions the seller has an undoubted right to fix 
an upset price, below which bids will not be received; but 
he can not reserve the right to reject any bids above that 
price, and the same right should undoubtedly be allowed 
the seller in secret auctions; but why he should be allowed 
to reserve other rights not allowed in cases of open auctions 
I do not clearly comprehend. In either case unlawful com- 
binations may be formed to defeat that fair competition be- 
tween the bidders which justice requires; but these combi- 
nations are unlawful and will be relieved against by the 
courts. 

One other important question was decided in this case, 
which has already been referred to in a former number of 
this series. In the cases of Doyle v. Teas, 4 Scam. 457, De 
Wolf V. Long, 6 Gilm. 679, and Wright v. McNeely, 11 111. 
241, in all of which cases I wrote the opinions, it was stated 
that where a bill is filed for the specific performance of a 
contract, the purchase money must be tendered, and the 
tender kept good by bringing the money into court and 
depositing it with the clerk, and held subject to the order of 
the court. In neither of these cases was a decision of that 
point necessary in determining the case, although in each 
the question was presented and argued; but its decision not 



1^00 EARLY BENCH AND BAR OF ILLINOIS. 

being absolutely necessary for the determination of the case, 
what was said upon the subject was not maturely considered. 
In this case, however, it was squarely presented and must 
be met; we were asked to reconsider the subject, and we 
did so, and all the cases at hand bearing upon it were care- 
fully examined. Many cases were found in which language 
was used as strong as I had used in the cases referred to, 
holding that a tender must be made and kept good by bring- 
ing the money into court, yet in not one of them was that 
rule enforced, and in some of them decrees were entered 
directly in violation of it; in not one of the cases exam- 
ined was a contrary rule laid down in words, and yet, in a 
great many, decrees were entered where tenders had not 
been brought into court, and in several of them where no 
tender at all had been made; in some of them further time 
had been given after the hearing for the pajnient of the 
purchase mone}''. 

The case of Washburn v. Dewey, lY Ver. 92, was the only 
case found where the question of bringing the money which 
had been tendered, into court, was squarely decided in terms, 
and there it was held that a sufficient excuse was shown 
for not having done so. 

Upon what we conceived to be abundant authority, I 
cheerfully took back what I had said in the previous cases, 
and held that in this case it was not necessary to have 
brought the tender into court. 

The rule undoubtedly is, that all of this question of ten- 
der, and of keeping the tender good by bringing the money 
into court, is a matter of discretion with the chancellor. 

Let it be remembered that matters of discretion are 
always subject to review in the court of chancer}^ 

The only other case to which I shall refer is that of 
Shackleford and wife v. Hall, 21 111. 212.* In this a ques- 
tion was presented which had never before been considered 
in this country, and very rarely in England. 

*A bad mistake was made by the reporter iii this case; the position 
occupied by the aeveral j^arties is inisi^laced. 



THE CONFERENCE ROOM. 201 

" The facts of the case show that all of the devisees of the 
estate in remainder, now in controversy, were the heirs at 
law of the testator, and as such heirs at law had an expecta- 
tion of the estate. In the absence of the will each would 
liave been entitled to his or her respective portions of it ac- 
cording to our statute of descent." The testator having de- 
vised the estate in his will precisely as the statute would 
have cast it in the absence of a will, imposed the subsequent 
condition that if either of his children should marry before 
attaining the age of twenty-one years, he or she should for- 
feit the estate thus bequeathed. Mrs. Shackleford did not 
choose to wait until she was twenty-one years old, and so 
was married before that time. Her brother, Henry H. 
Hall, then filed a bill to declare the forfeiture, which, upon 
hearing in the Circuit Court, was dismissed, and thence was 
brought to the Supreme Court. Upon the arguments for 
the complainant, the plaintiff in error, the violation of the 
condition subsequent was relied upon, and really that was 
aljout all he had to say in the opening. For the defense it 
was claimed that the condition was in restraint of marriao-e, 
and therefore void; but to this a conclusive answer was 
given that a reasonable restraint was not only proper but 
commendable, and that a restraint to the age of twenty-one 
years, or even a greater age, was not unreasonable, and 
upon this the case was submitted. So soon as we reached 
the conference room with the record, Breese broke out 
and said : " That brother is a mean fellow; yes, he's a great 
rascal, and we must beat him if possible, l^ow, Caton, how 
can it be done ? " I replied that the law referred to on the 
argument was certainly all in his favor, and I didn't re- 
member any law to controvert that, and Judge Walker was 
equally at a loss to find any way to get around it. I then 
stated that during the argument there seemed to be, as if it 
were floating in the atmosphere, some intangible, undefined 
idea that I had seen something somewhere, some idea, 
derived from something I had read some time, probably 
when I was a student, when reading some text book, that 



:202 EARLY BENCH AND BAR OF ILLINOIS. 

iiiiolit have some bearing on the case, but what it was I 
could not say. It was but a vague, indefinite impression, 
and seemed rather like a fleeting dream than a tangible 
idea; that I felt confident that I had never seen a case from 
which that thought had arisen, and that I felt no assurance 
that there was any principle laid down in the books, in any 
way qualif3'ing the decisions which seemed to be so directly 
in point, holding that this condition subsequent was valid. 

Breese then picked up the record from my desk, placed 
it in my hands and said : " You take this record and 
hang on to the tail of that idea till you follow it up to its 
head, until you find some law to beat this unnatural rascal, 
Avho would cheat his sister out of her inheritance just be- 
cause she wanted to get married a few months before the 
time fixed b}^ the old man." 

1 took the record home with me, and after I had finished 
writing opinions in all my other cases I took up this. I ex- 
amined careful!}^ all the Digests in the library, and went 
through the English reports. I sought thoroughly, without 
finding a single word bearing in any way upon the case, still 
believing that there was something somewhere that would 
throw some light upon it on one side or the other. I took 
down Jarman on Wills, and went home determined to read 
every text book in the library on that subject before I 
would give up the search, and commenced reading at the 
very beginning, and then proceeded very deliberately page by 
page until I had got, perhaps, two-thirds of the way through 
the book, when I read a short paragraph which did not at first 
attract my attention particularly, and I passed on; but before 
I had finished the next paragraph the previous one began to 
impress itself upon me, and I looked back and read it again, 
and the more I studied it the more I thought it contained 
something to the purpose. It referred to several old En- 
glish cases, the reference to which I took down, and made 
my way to the library as soon as possible, impatient to see 
what these references would develop. In less than an hour 
I found the law to be as well settled as anv other well rec- 



THE CONFERENCE ROOM. 203 

ognized principle of law, that where a testator devises an 
estate to his heir accompanied with a condition of forfeit- 
ure, a breach of that condition shall not work the forfeit- 
ure, unless its existence is brought home to the knowledge 
of the heir, and this rule applies as well to conveyances by 
deed as by device. I still think it a little remarkable that 
these cases, although few and most of them very old, are 
not found referred to in any of the Digests which I have 
consulted, and that no such case appears ever to have arisen 
in any of the courts of the United States, or in later times 
in England, and it is probable that to-day this case stands 
alone in the American reports. 

When I read my opinion at the next conference Judge 
Breese especially manifested great satisfaction at the result 
of my investigations, and walked across the room and 
patted me on the back, saying, " Well done, my good boy," 
and seemed not less pleased at the strictures I had ex- 
pressed in the latter part of the opinion upon the conduct 
of the hard-hearted brother, as he termed him, and in this 
expression we all concurred. 



IX. 

REPORTERS OF THE SUPREME COURT. 

SALARIES LABORS PERSONAL MENTION. 

I should not close these sketches of the bench and bar of 
Illinois without referring to the reporters by whose labors 
the decisions of the Supreme Court of this State have been 
put in proper form and laid before the profession, not only 
in our own State, but throughout the Union. To their 
ability and their industry we are all deeply indebted for 
the fidelity with which they have performed their tasks, and 
they certainly deserve a recognition from those whose labors 
they have recorded as well as from those who have profited 
by their industry. 

When I first cast my lot with the profession in this State, 
Breese's Reports alone had been placed before the public. 
It was a small volume and contained the decisions from the 
organization of the Supreme Court in 1819, up to the close 
of the December term of that court in 1831. 

Necessarily the relations existing between the reporters 
and the bench were of the most intimate and confidential 
character. They occupied desks in the conference room 
and were present at the deliberations there conducted, 
and sometimes assisted the judges in reading arguments, 
abstracts or briefs. The propriety, and sometimes even the 
necessity, of this is manifest when we appreciate they were 
thus enabled to understand more full}^ the scope of the 
arguments adduced by the different judges in their delibera- 
tions upon each case, by which they were led to the decisions 

(204) 




JONATHAN YOUNG SCAMMON, 



REPORTERS OF THE SUPREME COURT. 205 

aiinounced in the formal opinions which they had to report, 
and they were bound by the same obligations of secrecy 
which rested upon the judges. 

Sydney Breese was a young man then, but he Avas a good 
lawyer and had already attained a high position at the bar. 
His subsequent career as jurist, while he occupied a seat 
on the supreme bench of his adopted State for twenty-two 
years, having served six years of the meantime in the United 
States Senate, well maintained the reputation which he had 
so early acquired. This reputation grew with his A^ears of 
experience and industry, until he finally closed his career 
by death in 1878, while he was still a member of that court, 
of which he had been one of the brightest ornaments. His 
fame will be perpetuated so long as integrity, ability and 
industry shall be appreciated. 

After Breese's reports were closed, the decisions of our 
Supreme Court remained quietly in their archives until 
1839. when Jonathan Young Scammon was appointed to 
that court, and he continued as official reporter until after 
I came upon the bench. The first volume of Scammon's 
Reports was published in 1843, and the third and fourth 
volumes brought the decisions up to the close of the De- 
cember term, 1843. Scammon was an able lawyer with 
a well disciplined mind, who clearly comprehended and 
plainly and succinctly stated the points decided in the case. 
The syllabi of his cases are models of perspicuity and brevity. 

Upon the resignation of Mr. Scammon, Chas. Gilman was 
appointed reporter to the court. He continued to hold that 
office until the time of his death, in July, 1849. He published 
five volumes of reports, entitled Gilman's Reports, the first 
four of which contained the decisions of the court of nine 
judges from Scammon's time up to the time when that court 
was legislated out of office by the Constitution of 1848. 
His fifth volume contains the decisions of the new court of 
three judges during the first year of their term of office, 
that is to say, from the December term, 1848, to the June 
term, 1849, both inclusive. Mr. Gilman was an excellent 



206 EARLY BENCH AND BAR OF ILLINOIS. 

lawyer, a man of great industry, and conscientious in the 
discharge of the duties of his office. He, like his prede- 
cessors, did the work himself of preparing the opinions for 
the press, reading the proofs, and superintending the publi- 
cation of his work. This work upon the fifth volume was 
not completed at the time of his death. It contains the first 
year's work of the three judges, consisting of 608 pages, and 
contains the decisions of ninet3^-eight cases. 

Upon the death of Mr. Oilman, Ebenezer Peck was ap- 
pointed reporter, at the December term, 1849, and he held 
that office and discharged his duties for a period of fourteen 
3^ears or till the January term in 18C3, when he resigned the 
office of reporter, to accept the office of judge of the Court of 
Claims, at Washington, to which he had been appointed by 
Mr. Lincoln. During these years Judge Peck issued eightr 
een volumes of the reports. He abandoned the practice, 
which had , hitherto been observed, of calling the reports 
after the names of the reporters, and so entitled his first 
volume, Illinois Eeports, Volume XI, ten volumes of the 
Supreme Court of Illinois having been previously issued; 
Judge Peck's last volume being SOth 111. These volumes 
testify to the capacity, industry and fidelity of the reporter. 

For several winters the reporter and myself occupied the 
same room and did our work at night side by side, and 
thus I was enabled to observe his mode of preparing the 
cases for the printer, the systematic order in which his 
Avork was done, and the industry and zeal which he devoted 
to the discharge of his official duties. 

All of this is manifest to any one who will carefully ex- 
amine these reports. 

After the resignation of Judge Peck, Norman L. Freeman 
was appointed reporter at the April term, 1863, and he has 
filled that office with great accei)tability up to the present 
time, and it may be earnestly hoped that he will be able to 
do so for many years to come. 

My first decisions are to be found in the third volume of 
Scammon, and my last in the 33d of the Illinois Eeports, so 




EBENK/KK I'KCK. 




NORMAN L. FKEKMAN. 



REPORTERS OF THE SUPREME COURT. 207 

it will be seen that I helped to make up the decisions con- 
tained in thirt}^ volumes during the twenty-two years I was 
on the supreme bench, and it is with great satisfaction that 
I can say that all of the reporters, excepting Breese, have 
held office and discharged their duties during the time when 
I was on the bench. 

Mr. Freeman had practiced before our court for a num- 
ber of years before he was appointed its reporter, and we 
were all familiar Avith his eminent fitness as a lawyer for 
that place, but his other qualifications remained to be 
proved; and in these he has far surpassed the most san- 
guine expectations of the court, the profession, and his per- 
sonal friends. The experience which he has had has year 
by year shown an improvement in his work. He has not 
been content to keep up the standard of the work which 
existed at the time of his acceptance of office, but the im- 
provement which is manifested in almost every succeeding 
volume, shows that his ambition to excel has not dimin- 
ished; that his cajmcity to improve has grown with his 
opportunities; that his ability for labor, and his untiring 
zeal for improvement have never diminished from the 
very beginning. He has lately issued the one hundred and 
seventh volume of his own reports, and this implies an amount 
of labor which few men living could have performed and per- 
formed it well. We may know that from the amount of 
work accomplished, he must have employed many assist- 
ants, and from the character of the work done, that these 
assistants must have been able men; yet the whole bears 
the impress of his personal supervision, not alone of one 
department, but of all departments alike. 

Probably no reporter living has had the experience or 
performed the labor involved in the production of these 
hundred volumes, and I hesitate not to say that he stands 
at the very head of the legal reportorial profession. 



X. 

THE FRAILTY OF HUMAN MEMORY. 
PEKSONAL INCIDENT. 

I have often been impressed, not to say alarmed, with 
my observations demonstrating the frailty of human mem- 
ory. When we remember how much of our rights, our 
liberties and our lives depend upon human testimony, 
founded upon human memory, we may well feel alarmed 
when we see how frail our memories are. Laying aside the 
want of integrity and intentional falsehood, which, of them- 
selves, may well cause us to fear that the truth may be per- 
verted or denied, much more danger is to be apprehended 
from misrecollection or erroneous observation of occurring 
events, as they transpire. In the ascertainment of truth, 
much more is to be feared from the honest witness than 
from the corrupt perjurer. The falsehood of the latter is 
much more easily detected than the mistakes of the former. 
I might write a volume giving my observations on this sub- 
ject, and yet leave much untold; still I should repeat much 
that might be paralleled by the observations of others. 

Let me relate one instance of many, in my own experience, 
showing how unreliable is our recollection of past events. 

In the spring of 1835 three of us, then young men, 
planned a horseback excursion with three young ladies of 
Chicago. The late C. B. Dodson with Miss Sherman, now 
Mrs. Thomas Church ; Horace Chamberlin, who not long 
after lost his life in the Texas revolution, and Miss Eose 
liatheway, many years since deceased, who was a sister of 

(208) 



THE FRAILTY OF HUIMAN IHE^IORY. 209 

the late Mrs. John Calhoun, of Chicago, and myself with 
Miss Agnes Spence, constituted the party. All were good 
riders, and all the horses selected were spirited and liv^ely. 
The trip laid out Avas to go down to the Calumet river, 
twelve miles distant, where we would take lunch, and then 
return to the city. The way led us along the road south 
four miles to the oak woods, thence throuofh timber all the 
way to Hale's tavern, situated on the banks of the Calumet, 
at the crossing of that stream. The road was considerably 
traveled, but through the timber was confined to a single 
wagon track, which wound along through the trees, some- 
times close to the shore of the lake, at others a short distance 
from it, according as the nature of the forest or the ground 
permitted. The first four miles were over the usual race 
course, where those who had fast horses were in the fre- 
quent habit of trying conclusions, and as soon as we strack 
this race course Miss Spence's horse showed that it was 
familiar ground to him, and he plunged ahead in a way that 
showed that he thought it his duty to win another race 
there. I soon caught his rein and brought him down, 
while the lady protested I should leave it all to her, that 
she could manage him, and would give him as long a run as 
he wanted; but to this I would not consent. Her widowed 
mother had allowed her to come with me very reluctantly, 
fearing that some accident might befall her, and it was only 
upon my repeated assurance that I would take the greatest 
possible care of her and would be absolutely responsible for 
her safety, that she had consented. This incident no doubt 
prompted me to greater caution than I might otherwise 
have exercised, so I took a check rein, attached to the bit 
of her horse, and carried it in my hand all the way. She 
chafed at this almost as much as the horse did, and she soon 
convinced me that she was a superior rider, and could man- 
age the horse with skill; but I knew if he should take it into 
his head to run away in the forest, which we were approach- 
ing, she would be powerless to manage him, so I persist- 
14 



210 EARLY BENCH AND BAR OF ILLINOIS. 

ently held the check rein. We had our little dashes all 
the same, and each exhilarating run served to elevate our 
spirits and made us forget our prudent resolutions. 

Finally Dodson proposed a race between our ladies, which 
Avas promptly acce])ted upon the condition that he should 
ride abreast with his lady, while the check-rein compelled me 
to do the same with mine. The roadway was narrow, but for 
half a mile ahead was straight and the timber open, and so 
we all dashed ahead at top speed, and the half mile of 
straight road was quickh^ covered. We then took a turn 
to the left, so that we could not see the road before us until 
we reached the turn. I was on the extreme right w4th Miss 
Spence on. my left, and next to her was Miss Sherman, with 
Dodson on the extreme left. This gave the ladies the mid- 
dle of the track, while we were on the outer sides. When 
we turned a bend in the road at full speed I was appalled. 
A larg'e oak tree stood on the left hand side near the road, 
from which a large limb projected out over the road. l!^ear 
the trunk it was high enough to allow a horseman to pass 
under it, but further on it bent down, so that I saw it must 
inevitably sweep my ladv from the saddle, ^vhile I, by chang- 
ing my position a little, could escape it. I pulled up both 
of our horses with such force as to throw theiri on their 
haunches, and told her to throw herself back intending to 
catch her on my left arm, but when I extended m}" arm for 
this purpose I found that it was restrained by my riding whip 
wdiich I held in my hand looped around the left arm. The 
consequence was tliat she fell backward to the ground right 
between the horses, at the ver}^ instant that 1 threw them 
upon their haunches, by pulling them up with all ray might. 
Ko one can imagine my feelings at that moment, when it 
seemed certain she must be trampled to death, and the 
picture came up before me of carrying her mangled corpse 
back to her widowed mother whom w^e had left so short a 
time before. As soon as possible I turned around to see the 
result, and was astonished to see that she had already regained 
her feet and was shaking the dust from her riding habit 



THE FRAILTY OF HUJtIAN MEMORY. 211 

Of course I dismounted as soon as possible, and ran up to 
her, but was so paralyzed that I could hardly ask her where 
she was hurt, and led her to a log near by, where she sat 
down, saying she believed she was not hurt at all. By this 
time the rest of the party had come up and an examination 
was instituted. It was found that a curl or lock of hair 
near her forehead had been cut off by a cork of one of the 
liorse-shoes, which had stepped upon it, as it dropped upon a 
stone in the road. Still the severed hairs were hano-in^ in- 
tertwined with the others. The only scratch found was 
upon one of the ankles, where a cork had cut a hole in the 
stocking, but hardly discoloring the skin, and she insisted 
that the jar of the fall had not hurt her in the least. 

Chamberlin and Miss Hatheway had followed along so 
as to keep near us, and the}' described the scene as fairly 
appalling when they saw her fall head first between the 
horses at the very instant they were so violently drawn back. 
That was an escape which may not be often paralleled, and 
I am sure that I felt the shock longer than the lady did, for 
in a very short time she was as lively as ever. 

We soon mounted and pursued our journey to Hale's tav- 
ern, where we got our lunch and spent an hour or two with 
about as much joyous jollity as six young people knew how 
to raise. We then returned to the city without incident. 
There was no more running of horses that day. 

Many years later, when I was holding the Circuit Court at 
Geneva, Kane count}^ during a social chat with Mr. Dodson, 
I incidentally mentioned that it occurred when Ave were going 
out. " No," said he, " It took place when we were return- 
ing." I insisted that it occurred while we were going out, 
and referred to the fact that I had observed the lake on our 
left during the race, whereas if it had occurred on our return 
the lake would have been on our right. 'Now, there are few 
events in my past life which are as deeply im})ressed on 
ray memory as this, and I feel absolutely certain that I am 
right in my recollection. Indeed, I well remember that the 
whole matter was discussed when we stopped for lunch; but 



212 EARLY BENCH AND BAR OF ILLINOIS. 

all the incidents to wliicli I could refer in confirmation (if 
my recollection, could not have the least influence in the 
belief of Mr. Dodson, and his conviction was so fixed that 
I have not the least doubt he would have sworn to it witli- 
out hesitation, if he knew that his own life depended on 
the truth of his statement; and my belief in the correctness 
of my recollection of the event, and that it occurred while 
we were going out, is equally strong, though my observa- 
tions have taught me to distrust my own memory as well as 
that of others, and so even in this I may have been wrong; 
but I must say that I do not believe it is so. 

We finally agreed to leave it to the ladies, two of whoin 
were still in Chicago, and he promised to call upon them the 
first time he went to the city, and get their recollection of 
the matter. AVhen I met him again some time later, I asked 
him if he had seen the ladies and what they said about it. 
" Yes," said he, " I have seen them, but I very soon saw that 
you had all conspired together to get up a lie and make a 
fool of me, but it won't work. I know that it occurred 
when we were returning." 

Still when I remember the many instances when I, my- 
self, as well as others, who have entertained as strong con- 
victions as I had, and still have, that the accident happened 
when we were going out, have been mistaken, and it has 
been conclusively proved that we were in error, I am con- 
strained to admit that Mr. Dodson may have been right 
in his recollection of the occurrence. 

I have in a paper, when giving an account of the trial of 
Rider for murder, shown how Mr. Havenhill, a witness for 
the State, had been mistaken in his previous testimony, when 
he had sworn that he had seen the prisoner through a cer- 
tain window in the house, and nothing short of his own 
observation of the fact that there was no window on that 
side of the house, could have convinced him of his error. 
That he was honest in his previous testimony, he has dem- 
onstrated from the fact that he hastened with all speed to 



THE FRAILTY OF HUSIAN MEMORY. 213 

appear in court and acknowledge his error before the trial 
closed. 

It is but a part of human nature, that those who have had 
the least opportunity of observing the occurrence of such 
niisrecollections bv men of the highest integrity, are the 
most persistent in their conclusions that they are certainly 
right, and are loath to admit that others, with equal oppor- 
tunities, can not honestly disagree with them, 

I must again repeat that I am appalled, when I remem- 
ber that all our rights may depend u^^on human recollec- 
tion, which I know is so liable to error, and when I also 
a})preciate that it is impossible to devise other means for the 
ascertainment of truth. At best, we can ascertain all the 
surrounding circumstances, and adopt those conclusions 
which seem most probable from our observations of human 
ev^ents, and these observations are so variant in different 
men, and we may so often adopt different conclusions from 
the same circumstances, that here, too, may be great liabili- 
ties to error. 

A special training for the ascertainment of truth from 
given circumstances is of the greatest value, and our pro- 
fession affords the greatest facilities for this training; though 
we may soon be obliged to admit that the modern detective 
system affords a still better school, for the reason that the 
mind is not diverted from that single study b}" other im- 
portant matters. 



APPENDIX. 



RECOLLECTIONS OF THE EARLY BENCH AND BAR. 

ADDRESS DELIVERED BEFORE THE ILLINOIS STATE BAR ASSO- 

CIATIOlf, AT SPRINGFIELD, JANUARY 2i, 1893, 

BY JOHN DEAN CATON. 

iJ//'. Presiflent and Gentlemen of the Illinois State Bar 
Association: 

I appear before you as the representative of those who 
once filled the places which you now occupy. It is a source 
of extreme satisfaction to be assured, by your kind invita- 
tion, that amid the cares, the duties and the responsibilities 
of an arduous profession, I am not forgotten by those who 
have come up in later years to fill the places and bear the 
burdens, which were once filled and once borne by those 
who, with rare exceptions, have been called to appear be- 
fore a higher bar, where no errors are committed and no 
rehearings can be asked for. 

Sixty years is a long time for any individual to have acted 
upon the stage of life, and the changes which have taken 
place during that time, in almost every branch of human 
thought, are very great, and in them our profession has 
largely participated. Within the last fifty years the dif- 
ferent modes of doing business and the means of accom- 
plishing desired ends, have been more marked than in any 
previous thousand years, and so have been compelled alter- 
ations in the laws and in the modes of administering them. 

(215) 



2] G EARLY BENCH AND BAR OF ILLINOIS. 

Many of these apparent changes were possible by the 
courts, under the flexibility of the common law, siinply 
because the principles of that law were founded upon the 
reason of things and the results of human experience. 

Old rules, which had been adopted by the courts to meet 
conditions which had previously existed, had to be changed, 
or even abrogated, as new emergencies demanded, as reason 
and experience dictated. As all the changes in the law, 
which altered conditions seem to require, could not be made 
by the courts under the plea of construction, legislative en- 
actments w^ere in some cases demanded, and the Legislatures 
of the various States early addressed themselves to the task 
of passing statutes which they supposed were required by 
the altered modes of conducting human affairs. Many of 
these were wise and necessary, Avhile in others it would have 
been better had the subjects of them been left to the courts, 
which were better qualified to deal with them. 

From long experience and observation, I am compelled to 
say that legislative bodies more frequently legislate too much 
than too little. This is by no means a new evil. 

Even the Komans, during the Imperial period, indulged 
their mania for legislation to such an extent, that finally it 
was admitted that no man knew what the law was. 

And hence, under the reign of Justinian the Great, Tri- 
bonian, with his associates, prepared the Justinian Code, 
which, by the Imperial fiat, was made the law of the land, 
and the precedents, or decisions of the courts were carefully 
digested in what is called the Pandects, to aid in the inter- 
pretation of the Code, and from these grew up the civil law 
of the continent of Europe, to which even the common law 
is indebted for those great principles of right and WTong 
which the consciousness of wise and enlightened men rec- 
ognizes as just. And this, in its broadest sense, should be 
the basis of all law for the protection of individual rights 
and the rights of organized communities. 

The courts, compelled by emergencies, have, under the 
plea of construction, introduced apparent changes of the laAV 



JUDGE CATON'S ADDRESS. 2 1 7 

to meet the demands in the chano-es of the mvodcs of doino- 
business, and in general, I may say, tliese changes have been 
quite as salutary as those made by the Legislatures. 

These rules of law have been made by able men, deeply 
learned in the science of government, with no special inter- 
est to subserve after receiving the advice of the gentlemen 
of the bar, who present to their considerations the fruits of 
deep study and the observations of experience. 

They act under a sense of responsibility to the whole com- 
munity and to civilization, knowing that their decisions will 
be scrutinized and criticised by the ablest men who shall 
come after them, and who must pass a final judgment upon 
what they do. Many more safeguards are thrown around 
the judicial tribunals, to secure wise and impartial action, 
than can surround Legislatures. 

The former have no constituency whose special interest 
they feel called upon to subserve, while the latter have varied 
constituencies, who may have conflicting interests to protect 
or promote, for which representatives may feel called upon 
to exert themselves. But legislative bodies can not be dis- 
pensed with in free governments. They are the very bul- 
wark of liberty, and whatever conflicting interests they may 
represent, as affecting their immediate constituents, when- 
ever great interests of State become involved, thev rise 
above the petty considerations of local interest, and answer 
to the demands of patriotism which will uphold and insure 
the paramount welfare of the State. 

Precedents, or previous decisions, involving the same 
principles, have, among the ancients as well as moderns, 
constituted the great body of the laws in all civilized coun- 
tries, and so they will continue to do, so long as the advance- 
ment of civiliiation shall continue. "When the exigencies of 
society shall require important changes in principles, they 
must be brought about by legislation; but the infirmities of 
human language, in which these changes must be expressed, 
are such that the courts of law, whose dut}^ it is to enforce 
them, must give them construction, and so declare their 



218 EARLY BENCH AND BAR OF ILLINOIS. 

meaning, and give them practical application to the affairs 
of men. Wise legislation is of little value without wise con- 
struction and administration, and in this, an able bar is of 
not less importance than an able bench. The members of 
the bar are the legitimate advisers of the courts, and I can 
say from personal experience that such advice is anxiously 
listened to and most attentively considered. It is a staff 
upon which the courts lean, while traveling the path which 
they are pursuing when seeking the ends of justice and 
equity. Every member of the bar should appreciate, that 
while his duty requires that he should defend and protect 
the interest of his client, he also owes a duty to the courts, 
to aid them to arrive at proper results. This does not imply 
that the lawyers engaged on opposite sides of a case should 
always maintain the same positions, or defend the same 
principles, for that would be misleading to the bench. To 
arrive at sound conclusions, it is important that controverted 
questions should be presented in various aspects, for that is 
indispensable to enable a court properly to balance the 
reasons which may be urged on eitlier side, and which are 
necessary to arrive at correct decisions. 

Seventy-five years have elapsed since the organization of 
our State government. But fifteen of these years had 
passed when I came to the State and identified my interests 
with its people. A great many of those who had lived here 
during this time, and in the territory previously, and had 
helped to make the history of this State thus far, were upon 
the active stage of life, still comparatively young, and in 
the full vigor of manhood. If they did not write history as 
they made it, they could tell it most charmingly and impress- 
ively. 

Many of these have helped form the constitution of the 
State, and as the population was small, nearly all the prom- 
inent men knew each other, and knew what each had done 
that was worthy to be remembered. 

As is usual and might be expected, members of our own 
profession were among the most prominent and most widely 



JUDGE CATON'S ADDRESS. 219 

known throughout the State, and among these I formed my 
first acquaintances and my first friendships. I was the 
junior of them all, and so was largely dependent upon their 
kindness and friendship to help me in the difficulties which 
must always beset a 3'oung lawyer commencing the practice 
of his profession, where the habits of the people and the 
mode of proceeding differ widely from those in tlie State 
whence he came; and I now wish to bear my testimony to 
the large-hearted generosity and kindness of those who then 
constituted the bar of the State. Instead of throwing 
obstacles in the way of the new comer, they extended to 
him a fraternal hand, and took a genuine pleasure in help- 
ing him along over the rough places. 

At that time, what maybe called the circuit practice nec- 
essarily prevailed, and in each circuit in the State there was 
a class of lawyers who attended most of the courts in their 
own circuits, and very frequently attended the courts in 
other circuits, mostly to try important causes, where their 
special reputations had caused them to be retained. This 
circuit practice was a special school, unequaled in its way, 
and in it these circuit lawyers acquired qualifications which 
could be learned in no other school. 

They had but few books to study, but these the}' studied 
to a purpose. Blackstone and Coke upon Littleton, were 
their favorite books, and from them they learned the funda- 
mental principles of the law, and the reasons why the law 
was so; and I may be permitted to say here, that one may 
learn to state the rules of law as they are laid down in the 
books till he can re])eat them like the alphabet, yet he is 
not a lawyer unless he fully comprehends why they are the 
law; what are the reasons which have made them the law. 
This and this alone will enable him to apply the law in 
every emergency, and to new states of facts as they must 
constantly arise. As in traveling the circuit few books 
could be carried, and but rarely were books to be found at 
the county seats, excepting the statutes, this sort of legal 
(j^ualification was indispensable for both judges and lawyers, 



220 EAELY BENCH AND BAR OF ILLINOIS. 

and the character of their work was such as to train them 
to think quickly and accurately, and to change the thoughts 
rapidly from one subject to another. 

In passing from one county seat to another, the judges 
and law3'ers always rode on horseback, with saddlebags, 
very frequently traversing uninhabited prairies of from ten 
to twenty miles or more across. Indeed, at that early time 
all the settlers lived in cabins along the skirts of the timber, 
with inclosures in the adjoining prairies in which were cul- 
tivated fields, their stock ranging in the groves or grazing 
on the prairies. Nearly every cabin entertained travelers, 
who stopped for meals or to stay over night. Ham and 
eggs, fried chicken and warm biscuit, with good coffee, con- 
stituted the menu at nearly every cabin. If the position 
was such that the approach of the traveler could be seen some 
distance away, and it was about meal time, it did not require 
very attentive listening for him to distinguish the outcry 
of the chickens from the hen-coop as one or more were 
baing immolated, which he knew was to satisfy the cravings 
of his inner man. 

If a boy was about to take his horse, he might go into 
the house at once; if not, he would have to stable and feed 
his own horse, which many preferred to do, to make sure 
that they were well cared for. If he went into the house 
soon, he might see the good lady pull from under the bed a 
bread-tray, which was kept constantly su])plied with dough, 
and in a trice the biscuits would be molded and placed in 
the bake-pan; chickens were placed in the frying pan; the 
coffee-pot was set to brewing; the table was set; and in an 
incredibly short time he was seated at the table with a meal 
before him as inviting as was ever set before a guest in the 
most fashionable hotel, with the most modern conveniences. 
The food was plain but substantial, and was always cooked 
to a turn. It was not smothered up in rich condiments, but 
its flavor was most appetizing. Even now, I fondly remem- 
ber the feasts which I have enjoyed in those log cabins. 

In. riding from one county seat to another, the judges 



JUDGE CATON'S ADDRESS. 2L'l 

and lawyers generally traveled in a band together, altliougli 
not always in a compact body. Ilsualh^ the gait Avas a fast 
walk or a slow trot, and frequently the band would be sep- 
arated into little squads of from two to four, when the 
monoton}^ of the ride was relieved by conversation and the 
relation of anecdotes or story-telling, as it was called, 
though ordinaril}^ these last were reserved for the evening, 
when the whole party would be assembled. Then it was 
that the delights of circuit riding were most ap]ireciated. 
All were good story-tellers, and with rare exceptions each 
one added somewhat to his store since the last meeting, 
either from having heard a good story from somebody else 
or invented one; and a new story, if it were only a good 
one, was always received in the way that showed that it 
was fully appreciated. Frequently a quite ordinary inci- 
dent would be dressed up and so embellished as to be ex- 
ceedingly ludicrous and amusing. 

The early circuit riders, for the purpose of illustrating 
certain characteristics of the human mind, used to tell a 
stor}'^ of Judge Harlan (a name suggestive of the ermine) 
when he was circuit judge. They stated that when he had 
closed his court at a little town in the southern part of the 
State, and nearly all were ready to mount their horses and 
proceed to the next county, and just as he was putting his 
foot in the stirrup, a lawyer rushed up with a paper in his 
hand, and asked him to sign a bill of exceptions. "With evi- 
dent marks of impatience, he dropped the reins of his bridle, 
and hastened back into the log tavern and called for pen 
and ink, which were shown him on the little counter in the 
bar-room. Goose quills, then, only were used for pens. He 
seized one and jammed it into the inkstand with such force 
as to spoil it. He only appreciated this when he attempted 
to sign his name. And this crushing process he repeated 
several times before he succeeded in writing his name, and 
then it was hardly legible, Avhen he threw down the pen 
and paper, evidently in bad humor, and bolted from the 
house, mounted his horse, applied the whip, and took the 



222 EARLY BENCH AND BAR OF ILLINOIS. 

lead upon the trail which led across a ten-mile prairie to 
a cabin in a grove of timber. 

The rest followed as best they could; but none could suc- 
ceed in eliciting from him even a word of recognition dur- 
ing the ride. When he reached the cabin, he accosted a 
woman who stood at the front of the house, and asked her 
for a drink of water. This she brought him in a gourd, 
from the well, of which he drank heartily, and when he 
returned the gourd to the good lady, he remarked, " That 
is good water and I tell you, madam, they do keep the 
infernallest pens back in this little onery town that we just 
left, that you ever saw," and he again took the lead, appar- 
ently still brooding over those pens. 

Euchre parties were frequently formed, and so was time 
pleasantly passed ; and sometimes a dance was gotten up, 
when an old fiddle could be found, and some one was capa- 
ble of using it. Judge Young himself was deemed the best 
fiddler on the circuit, and so contributed much t(^ the hilar- 
ity of such occasions. 

Sometimes a mock trial was instituted, when an indict- 
ment was presented against some member of the bar, accus- 
ing him of most ridiculous crimes, embellished with laugh- 
able incidents. On such occasions, the judge, the lawyers 
and the witnesses fairly overflowed with wit ; and boister- 
ous laughter was not considered a breach of decorum in that 
court, and the verdict of the jury partook of the character 
of the previous doings. A verdict of " guilty " was almost 
a foregone conclusion, and the penalties inflicted were fre- 
quentl}^ the most ludicrous and amusing of all the proceed- 
ings. If the wit was keen, it was frequently deeply pene- 
trating, but the subject of it must bear it good naturedly 
and console his irritated feelings with the reflection that he 
would get his revenge on some future occasion. To show 
irritation at hard rubs was the worst thing a man could do, 
but to turn them off in some witty way enhanced his popu- 
larity for the time. 

But the first few days of the term could not be given up 



JUDGE CATON'S ADDRESS. 223 

to .amusement; all thoughts must be bent on business. Be- 
fore the cavalcade of judges and lawyers had arrived, suitors 
and their friends, witnesses and sightseers, had already ap- 
peared, and were awaiting this important arrival; and 
scarcely had the advocates dismounted, generally covered 
with dust or mud, when they were surrounded by clients, 
eagerly seeking to engage their favorite counsel, and as 
soon as their leggings and dusters or overcoats could be dis- 
carded, they gave ear to those who sought their services, and 
listened to brief accounts of the cases in which their services 
were sought. One man wanted a suit defended; another 
wanted a case tried; another a suit commenced, and soon 
everything was bustle and excitement. Special pleas must be 
])repared in one case; in another, a demurrer must be filed; in 
a third, a bill in chancery must be drawn, or an answer pre- 
pared; and in another, preparations for a trial which might 
come off immediately; and finally, some poor fellow was in 
jail for horse-stealing, or counterfeiting, or perhaps for mur- 
der, who Avanted a lawyer to defend him ; and all this heteroge- 
neous mass of business was rushed in upon them in a man- 
ner which would have confused any mind not well trained 
to that mode of practicing law. Not infrequently, men were 
called in to take part in a trial when the jury was already 
being called, and they must learn the case during the trial 
itself, and it was astonishing to see how rapidly they could 
see the salient ])oints of the case, and methodically arrange 
and present them. 

In the spring of 1835, for the first time I attended the 
Circuit Court at Hennepin, in Putnam County, which was 
held by Judge Breese, and there I first met him. Every- 
body was talking of the case of one Pierce; he was in jail 
on the charge of larceny, and it was said that he had not 
only confessed that he stole the goods, but that a witness 
named Thompson had sworn before the committing magis- 
trate that he saw him steal them. As I was entirely un- 
known I took little interest in the matter, only I was 
struck with the frequent expressions of sympathy for the 



1>24 EARLY BENCH AND BAH CF ILLINOIS. 

prisoner, which I heard, and some even expressed doubts 
of his o'uilt after all. Judge Breese opened the court the 
next morning, organized the grand jury, who, in the course 
of an hour, brought in an indictment against Pierce, who 
w^as directly brought into court. "When he w^as asked if he 
had counsel, he replied he had not, and had nothing with 
which to pay counsel, and, in answer to a question by the 
court, expressed a desire that counsel might be appointed to 
defend him. The judge then asked me if I would undertake 
his defense, assisted by Mr. Atwater, a young man just admit- 
ted to the bar, and very lately settled in the towm — the first 
lawyer there. We accepted the appointment, of course. It 
was not unusual, at that time, when a new lawyer appeared at 
the opening of the circuit for the judge, as a mode of in- 
troducing him to the people, to ask him to defend a crim- 
inal, or to charge the grand jury, or the like, and w^e ap- 
preciated this appointment as an act of kindness on the part 
of the judge. We took our client out, and sat down on the 
grass in the corner of a rail fence to learn from him what 
w^e could of the case, still supposing it w^as one of those 
desperate cases where no defense is possible. We requested 
Pierce to tell us the exact truth, for, if he were guilty, Ave 
could make a better defense by knowing all the circum- 
stances of the case, than to go into the trial ignorant of the 
real facts. He said he w^as perfectly innocent; that Thomp- 
son and his own wife had stolen the goods, and he had con- 
fessed he stole them in order to let her escape; and that he 
w^as so sick on the night of the larceny that he could not 
leave his bed, and was attended by a nurse and a doctor. 
After a searching investigation, w^e w^ere convinced of his 
innocence. Pierce also stated that Thompson was a ruffian 
and a terror to the w^hole people, and that everybody w\as 
afraid to say a word against him. The court gave us till 
next morning to prepare for trial. As I was going to my 
dinner, a man crossed the street quickly and spoke to me 
in a low voice, saying that Mr. and Mrs. Fitzgerald, who 
lived two miles across the river in a I02: cabin, knew some- 



JUDGE CATON'S ADDRESS. 225 

thing that would help Pierce, if they could be got to tell 
it, and disa})]ieared as if in alarm. 

I scarcely waited for dinner, when I mounted my horse 
and was on the way to the Fitzgerald cabin. After I had 
exhausted every effort to allay their manifest fear of 
Thompson, they finally consented to tell me what they 
knew of the case, which was, that they had slept in the 
house on the night of the larceny, and had seen Thompson 
and Pierce's wife take the goods from a box, about mid- 
night, and put them in Pierce's trunk; and they promised to 
appear in court the next morning and testify to what they 
knew. I galloped back, even faster than I had come, and 
found that Atwater had seen the nurse and doctor, who had 
corroborated Pierce's statement about his sickness. Of 
course we kept all this a profound secret, even from Pierce, 
On the trial, the next morning, Thompson swore that he 
saw Pierce steal the goods, and in my cross-examination I 
directed my efforts to make him swear to this in the strong- 
est way possible, and thus apparently injure my case. In 
the defense, we first brought the doctor and the nurse, and 
then Mr. and Mrs. Fitzgerald, who seemed to have lost all 
terror of Thompson, and told the whole story. 

Here was a great chance for a speech before a new 
audience — not for Pierce, for he needed none, but for myself 
— in which I j)ictured Thompson as a ruffian, thief, perjurer 
and as a lecherous scoundrel generally, in words which I had 
been all the night before recalling ; and before I was done he 
slunk away out of the room and made for the bush. After 
a verdict of acquittal, the court adjourned, and before I had 
reached my hotel I was retained in every cause then pend- 
ing in that court, and in some very important causes to be 
commenced, and never after did I Avant for clients, so long 
as I attended that court. 

It was at the Putnam Circuit Court that I first met Judge 
David Davis, and it is with great satisfaction that I state 
that we were ever after warm personal friends. 

When John York Sawyer was circuit judge, it was said 
15 



22G EARLY BENCH AND BAR OF ILLINOIS. 

that in the administration of criminal jnstice he did not 
ahvays adhere to tlie conventional rules of practice. Once, 
Gen. Turney was defending a man for horse stealing. At 
that time the punishment for that crime was at the whip- 
ping post. Just before noon the jury brought in a verdict 
of guilt}^, when the general moved for a new trial. Then 
it was that the dinner bell was heard at the little tavern 
where they all stopped, when the judge remarked : " Gen. 
Turney, I hear the dinner bell ringing now; we will ad- 
journ court till after dinner, when I will hear you on this 
motion," When the sheriff had adjourned the court the 
judge motioned him up while he still sat on the bench, and 
whispered : " While I am gone to dinner, you take this 
rascal out and give him thirty lashes, and see that they 
are well laid on; I am bound to break up horse stealing in 
this circuit." 

When the court opened after dinner, the judge told General 
Turney he could go on with his motion for a new trial, and 
he did so. In the meantime the sheriff had obeyed orders, 
and after the whipping had delivered the cul})rit over to his 
friends, Avho washed oft* his lacerated back, to which they 
applied a lotion, and then put on his clothes, after which he 
Avent limping down the street. As he passed the court house 
door, he heard his counsel's voice, and, upon listening, dis- 
covered that he was earnestly pleading for a new trial in 
the case, whereupon he rushed into the court house and 
cried out, " For God's sake. General Turney, don't get a new 
trial ; if they try me again they will convict me again, and 
then they will whip me to death." The general, of course, 
A\'as dumbfounded, and appealed to the court to know what 
this all meant. The judge quietly remarked that that was 
all right ; that in order to make sure that no horse thief 
should escape punishment in his circuit, he had ordered the 
sheriff to whip the rascal while they were gone to dinner, 
and he supposed he had done so. I was informed that horse 
thieves did become scarce in Judge Sawyer's circuit. 
^ Judge Ford, who related this event to me, often expressed 



JUDGE CATON'S ADDRESS. 227 

the opinion that whipping was a much more deterrent pun- 
ishment for crime than imprisonment; that he never saw a 
criminal sentenced to be whipped who did not cringe at the 
sentence; while he had rarely seen a prisoner manifest 
emotion at being sentenced to a long term. 

In 1S29 an act was passed which, as the State was but 
eleven years old, may be justly ranked among our legal antiq- 
uities. That act provided that in the absence of the circuit 
•judge (Judge Young) the Circuit Court of Jo Daviess 
county might be held by three justices of the peace of the 
county, and under this law the first circuit court of that 
county was so held, and Judge Young related to me some 
amusing incidents of the court, when held by the three jus- 
tices, in their austere efforts to maintain the dignity of the 
court, I have failed to find any subsequent act repealing 
that statute, and if it has not been repealed directly, or by 
implication, that circuit may still be held by justices of the 
peace, by reason of Avhich, such magistrates in Jo Daviess 
county may claim to occupy a higher plane of dignity and 
jurisdiction than the justices of the peace in other counties. 

But those happy days of circuit practice, and jolly 
nights and warm and sympathetic friendships, begotten of 
such associations, are now gone forever, I fear, in this 
State; and necessarily so, for the conditions which made 
them possible— yes, whicli necessitated them — have passed 
away, never to return. But it may be well that a record of 
them should be preserved, so that they may not be entirely 
forgotten. 

I may mention a few men w^ho rode the circuit, before 
my day, whose names, and of whose abilities, I heard from 
the lips of others, though for very few of these can s})ace 
be spared to illuminate this page. All practiced in the 
southern counties of the State. There were Habbard and 
Harlan, Kent, Cook, Beynolds, Semple, Forquer and Saw- 
yer. 

Of those whom I met and knewpersonally, the list would 
be long, though only a part of these did I ever meet upon 



223 EARLY BENCH AND BAR OF ILLINOIS. 

the circuit, and some of them I only knew as judges, and 
not as practicing lawyers. There were the four judges of 
the Supreme Court when I came to the State — Wilson, 
Brown, Lock wood and Smith— and Young, who was judge 
of the fifth circuit. With all of these, except Smith, I sat 
upon the bench of the Supreme Court. Logan, Hardin, 
Stewart and Stone I met at the first circuit court I ever at- 
tended in the State, at Peldn, in 1833. Young, Ford, Mills,. 
May and Strode I first met, in 1834, at the first circuit 
court ever held in Cook county. Br(rese I first met when 
he held the Circuit Court in Putnam county, to which I 
have already referred. I may be allowed to mention a fev/ 
others of the lawyers Avho traveled the circuit, more or less, 
forty years ago: Snyder, Gillispie, Browning, Williams, 
David J. Balvcr, Edward Baker, Shields, Koerner, Trum- 
bull, Morrison, Grimshaw, Campbell, Wheat, McEoberts, 
Field, Peters, Purple, Dickey, Jesse B. Thomas, William 
Thomas, AYhitney (Lord Coke), McConnell, Martin, Linder, 
B. C. Cook, Fridley, Thompson Campbell, Marshall, John 
A. Logan, Gridley, Minchell, Joshua Allen and Lincoln, 
who, it is scarcely necessary to state, was always the very 
soul of hilarity and amusement on the circuit. His capacity 
for illustrating either wit or argument, whether upon a trial 
in court or in our social gatherings, always distinguished 
him from other men. His very presence was a joy to all. 
The law and chancery jurisdiction have ever been exer- 
cised by the same courts, and the common law and English 
chancery system of pleading have ever prevailed in this 
State, with very few statutory modifications. The first 
modification, for the purpose of simplifying pleadings, was 
made by a very early statute, which authorized actions to be 
commenced on promissory notes by petition and summons, 
Avhich, it was thought, would so simplify matters that every 
one could be his own lawyer; but its use was never general, 
or even common, and I have never, during all my experience, 
known more than two actions to be brought under it, and 
those not with very economical results. Another important 



JUDGE CATON'S ADDRESS. 229 

change was early made in chancery by authorizing the com- 
plainant in his bill to Ayaiye the oath to the answer, when 
the answer should not bo cyidence; and another change, 
authorizing a defendant to attach to his answer interrogato- 
ries, which the complainant must answer under oath. Under 
this last proyision, the courts had been in the habit of grant- 
ing affirmatiye relief to the defendant, and this question hap- 
pened to be presented in a case of Ballance v. Underbill, which 
was the first case eyer assigned to me in which to write an 
opinion, and I wa^ote it, reyersing that part of the decree 
which gaye to the defendant affirmatiye relief, affirming all 
the rest; and on this point I had my first struggle with my 
associates, who said it had been the uniform practice to grant 
such relief in similar cases. 

At that time Judge Pope of the United States District 
Court, at Springfield, was in the habit, when he had leisure, 
of dropping into the conference room as freely as if he were 
a member of the court, without at all interrupting the de- 
liberations then progressing; and he happened to come in 
while we were considering this controyerted question. He 
seemed to listen attentively to the discussion, while I was 
trying to maintain my position against all of the others. 
At length, the conference adjourned without taking a yote, 
and we separated. When Ave were passing through the 
library on our way out, the judge came up to me and patted 
me on the back, saying, " My boy, you are right. Stick to 
them, and they will come to you at last. Come, go to my 
room and emoke a pipe with me." I did stick to them, and 
they did come to me at last, and voted unanimously for the 
opinion; and the rule Avas then adopted requiring a cross- 
])ill to be filed in order to authorize affirmative relief to be 
granted to the defendant, which has ever since prevailed, I 
think, Avith the general approval of the bar. 

By practice sanctioned by courts and lawyers, much 
of the verbosity and formalities required in the English 
courts, in both the common laAv and chancery pleading, Avas 
eliminated in carlv times, and I think, Avith marked advan- 



230 EARLY BENCH AND BAR OF ILLINOIS. 

tages ; while all that was substantive, and necessary fairly 
to advise the opposite party of what he had to meet, 
was retained. In this way has gradually grown up a 
change in our system of pleading which greatly simplilies 
the work of the profession and the courts ; and the system 
thus wrought out has tended to promote the ends of justice, 
as much, at least, as has been done by the adoption of codes 
in other States which were designed to accomplish the 
same end. Whether there has been a relapse of the old 
formalities and redundancy of words since my time, I can 
not say ; on that subject you are the best informed. Almost 
from the beginning, it has ceased to be necessary for a bill 
in chancery to contain a thricetold tale, as in the old forms 
containing the stating, the charging and the interrogating 
part, in each of which the facts had to be repeated. In my 
first bill, with great laI)or, I followed this nile ; Init ever 
since, I have deemed it better to simply state the facts upon 
which I relied for relief in the shortest and clearest manner 
possible. If an unnecessary fact be stated in a pleading, it 
may some time rise up to pester the pleader. I early learned 
to appreciate the importance of understanding the reasons 
why certain rules of laAv had been adopted, not only from 
my circuit practice, but from my general practice as well. 
The reasons of the law are the soul and essence of the law. 
During my time, that is, up to the time I resigned the 
chief justiceship of our Supreme Court in 1864, the rules of 
practice or modes of administering justice, to a large extent, 
remained unchanged. Since then important changes have 
been made, with which I have not kept pace as a law3'^er in 
active practice necessarily would have done. I was forcibly 
reminded of this a number of years ago, when I went into 
the Circuit Court in Chicago, where a case was pending in 
which a corporation in which I had some interest was 
plaintiff, and two individual parties were defendants. When 
I went in, a motion was being argued for a continuance by 
the defendants. As the plaintiff's case was conducted by a 
young lawyer, and I thought I saw some indications that he 



JUDGE CATOX'S ADDRESS. 231 

Wcas getting the worst of it, I turned in to help liim, and in 
the course of my remarks, Judge Murphy, who presided, dis- 
covered that I was ignorant of ahite statute, when he kindly 
suggested that a statute had changed the hiw ; that we might 
take judgment against one of the two joint defendants, and 
not against the other. This astonished me, and I felt like 
exclaiming with an Indiana attorney long ago, as related by 
Chief Justice Wilson. He reported that a case was pending 
before an Illinois justice of the peace, down on the Wabash, 
in which an Illinois lawyer was eni2:ao;ed on one side and an 
Indiana lawyer on the other. In the course of the trial, the 
Illinois law>^er asserted a jirincijile of law Avhich was denied 
by the IIo<3sier, who denounced it as the most absurd propo- 
sition ever heard of in any civilized community, and that it 
never could be the law except among barbarians. Upon 
this, his opponent placed before him the Illinois statutes, 
which declared the disputed proposition to be the law of 
this State. After the Indianian recovered from the shock 
which this statute produced upon his nerve he straightened 
himself up, and with great solemnity exclaimed : '" May it 
please the court : When I hear of the assembling of a Legis- 
lature in one of these Western States, it reminds me of a cry 
of fire in a populous city. No one knoAvs when he is safe ; 
no man can tell where the ruin will end." IIoAvever, as the 
effect of the statute might be in my favor, I could not com- 
plain of it, and a little reflection convinced me that it might 
have been enacted in the interest of justice. 

Perhaps the most important changes which have taken 
place since my time, b}^ direct legislation, are in the law of 
evidence. During all the time when I was connected with 
the administration of the law, it was assumed that no one 
who had a direct pecuniary interest in the event of a trial 
could tell the truth Avhen under oath; hence it was a set- 
tled rule that no one who had the slighest pecuniary inter- 
est in the result of a trial could be a witness, and for the 
reason that it was assumed that such interest would induce 
him to testify falsely. No position in life, no established 



232 EARLY BENCH AND BAR OF ILLINOIS. 

character for rectitude, no confidence which all members 
of the community might have in the uprightness of any 
man — earned by long years of integrity and probit_y — coukl 
relieve him from the suspicion which the law arbitrarily 
stamped upon him, while no one dreamed that this legal 
suspicion of unreliability cast the remotest reflection upon 
his integrity. We simply found the law to be so, and that 
it had been so, time out of mind, and no thought of the in- 
justice of such a rule ever dawned upon us; no lawyer ever 
thought of questioning its propriety, or even suggested 
a doubt that it was not the safest way for the ascertain- 
ment of truth. Ko judge ever thought of intimating, in an 
opinion, that a regret was felt that the sources of light 
which might develop the most important facts had been 
thus shut out, and that court or jury liad been left in dark- 
ness where it was evident that the brightest light might 
have been thrown upon an important transaction, from 
sources of which the most skeptical could entertain no 
moral doubt. 

This serves to show what curious beings we are, and how 
firmly we are wedded to old customs and old modes of 
thought. "We are inclined to look upon the ways of our 
ancestors as sacred, and therefore as just. The statute al- 
lowing parties in interest to testify in courts of justice 
caused a radical change in the administration of the law, 
and while it undoubtedly opened a wide door to the induce- 
ment to perjury, it as clearly afforded a new means for the 
ascertainment of truth. It was a revolution, in fact, and 
when once started it swept over this and other countries 
with astonishing velocity. England, whence we derive 
most of the principles which have governed us in the ad- 
ministration of justice, and whose conservatism has prompted 
her to move slowly and cautiously in the adoption of re- 
forms, cordially embraced this reform with a general appro- 
bation of the courts and of the legal profession; and the 
e-entlemenof this association can tell better than I can what 
has been its effect upon the administration of justice, though 



JUDGE CATON'S ADDRESS. 233 

I am told that it has met with general appro])atioii ; but I 
])resume that the change was more cordially accepted by 
the younger members of the bar and of the courts than by 
the older ones, into whose very being the old system had 
struck so deep a root by long practice and accustomed mode 
of thinking. 

The change made in the criminal law which allowed a 
prisoner to testify in his own behalf upon his trial, I think, 
from what I heard about the time the change was made, 
did not meet with quite so ready an acceptance. I heard it 
characterized as a legislative device to promote the crime of 
perjury by offering a reward, often of inestimable value, for 
the commission of that crime. There may be, and prob- 
ably is, some truth in this criticism. The inducement for a 
guilty man to testify in such a way as to shield him from 
the punishment to be inflicted for a crime committed, is 
undoubtedly very great, and that premium is no doubt very 
often offered to those on wliose consciences the oblio-ations 
of an oath would press very lightly. True, courts and 
juries might not feel themselves obliged to give the same 
credence to the testimony of a prisoner in his own behalf, 
as they would to that of an indifferent person, but tliat 
could not remove the temptation to perjurv or the danger 
from it. Again, it presents a danger which must ever 
menace him who lias some conscience left, and so, we may 
presume, is not a hardened criminal, and who refuses to go 
upon the stand and commit perjury in order to escape 
punishment for crime. Although courts and counsel are 
forbidden to urge this fact in order to create a prejudice 
against the presumption of innocence, it would take some- 
thing stronger than the mandate of a statute to prevent a 
jury from noticing it and thinking about it, and in fact, 
from being influenced by it. In that way, it does undoubt- 
edly have a prejudicial influence upon the cases of the least 
hardened criminals. 

The passage of our statute which opened the doors of the 
learned professions and other occupations to females, was 



234 EARLY BENCH AND BAR OF ILLINOIS. 

another change from the old modes of thought and ]->roceed- 
ing in our profession. Of the thousands of applications, 
during my time, of candidates for admission to the bar, not 
one was a female. AVhile we had no statute expressly for- 
bidding this, it was so generally accepted as the law that 
women were ineligible to the profession, that no one seems 
to have thought of making such an application, no matter 
how eminent may have been her legal qualifications. But 
let not the present generation boast that it was the first to 
discover her fitness or capabilities to study or comprehend 
those principles which would qualify her for professional 
life. That was known and recognized and acted upon long 
ages ago. 

The ancients were not destitute of distinguished women 
in the medical profession. Agnodice, an Athenian maiden, 
assumed the garb of a man to enable her to study medicine, 
in which profession she became famous. As her popularity 
and her practice greatly increased, the male physicians 
were filled with envy, and accused her of corruption before 
the tribunal, to whom she confessed her sex; when a law 
was immediately made allowing all freeborn women to 
study midwifery, to which branch of the practice she was 
most devoted. She was born 506 years B. C. 

Hortense, not a Roman matron but a young lady of the 
Eoman Empire, ^yas the most learned lawyer of her time, 
when the science of the law absorbed the thoughts and studies 
of the most learned and talented of that great people. At 
the age of twenty-one years, she had already acquired such 
fame that she was pLiced at the head of the most distin- 
guished of the Roman law schools, and it was said of her 
that her beauty was so great that the beholder who gazed 
upon her could think of nothing else, until she opened her 
mouth to speak, when the charm of her eloquence dispelled 
all other thoughts, and her beauty was forgotten amid the 
fascinating influences of her address and the irresistible 
force of her reasoning. 

She was the daughter of Quintus Hortensius, a great 



JUDGE CATON'S ADDRESS. 2o.3 

orator and lawyer. She was born eighty-five years B. C. 
The speech Avhich she made in defense of the 1,400 Roman 
matrons against a special tax, proposed by the Triumvirs, 
has come down to us in the languao-e in which it was uttered, 
and well sustains her reputation as an orator; and she suc- 
ceeded so well that 1,000 of her clients were exempted from 
the tax. 

These must serve as examples of women who acquired 
great distinction, and displayed great ability in professional 
life among the ancients. 

While there have been many female sovereigns in the past 
who have illustrated their capacity to stud}' and understand 
the sciences of statesmanship and of jurisprudence, public 
sentiment, begotten of prejudice and egotism, has practically 
closed against women the doors which lead to what are 
called the learned professions, until within the last few vears, 
while their great abilities in the conduct of affairs in which 
they were permitted to engage has been a thousand times 
illustrated by the most pronounced success. When our own 
Legislature passed a law authorizing women to engage in 
the different occupations on the same plane of right with 
men, many of the old school of thought anticipated that its 
effects might be calamitous. For myself, I did not partici- 
pate in this apprehension. Xo doubt, early memories and 
associations may have had their influence upon me in this 
matter. I was born and brought up in the Society of 
Friends, a religious denomination in which the endowments 
and qualifications of women were always distinctly recog- 
nized. They not only took part in the business meetings of 
the society, but their right to preach in the religious meet- 
ings was recognized equally with that of men; and in my 
boyhood, when I was so situated that I could attend those 
religious meetings, I heard sermons preached by women, and 
pra3'ers made by them, which made as lasting an impression 
upon my young mind as did ever those of men. The neat, 
plain dress of such a speaker, her sweet, benign countenance, 
her charming gentleness of manners, her soft and winning per- 



236 EARLY BENCH AND BAR OF ILLINOIS. 

suasions, Avere calculated to win the heart of the hearer when 
the discourse of a man would have sounded harsh and almost 
repulsive. It seemed to me that she knew better how to 
touch those strings which vibrate from heart to heart, and 
especially those which reached down deep into the 3'outhful 
soul, than did the other sex; and this loving and benign 
influence was understood, appreciated and utilized by that 
denomination of Christians; and I have no doubt that a 
memory of this had much to do with shaping not only my 
feelings but my judgment on the subject. 

I presume numerically the medical profession has been 
augmented much more by lady practitioners than has the 
legal profession, and this may result from some peculiar 
endowments which they possess for the former. Their 
sympathetic nature, their natural gentleness, their quick 
perceptions, come to the aid of their judgment and their 
learning, and seem to endow them especiallj" for the prac- 
tice of the healing art; while the practice of the law seems 
to partake more of the belligerent character, and so may be 
thought to require a sterner nature and disposition. This, 
I say, may be one reason why fewer ladies devote them- 
selves to the legal than to the medical profession. Why so 
few devote themselves to the cure of souls, I will not 
attempt to say; but I may assert, without fear of contradic- 
tion, that a large proportion of those who have joined the cler- 
ical profession have met with marked success. But it is not 
in professional life alone that women have abundantly vin- 
dicated their right to the highest respect and consideration. 
The utility of their efforts in the moral world stands forth 
so conspicuously as to challenge the admiration of mankind, 
and I may be permitted to point with pride to their work 
and recognition in the Columbian Exposition, in connection 
with wdiich their labors and their influence are felt in all 
civilized countries. 

Gentlemen, I speak to you as from a former generation. 
AVe were once young, vigorous and ambitious. We sought 
to fill the places to which fortune had assigned us, accord- 



JUDGE CATON'S ADDRESS. 237 

iiig to the best of our ability, so that the worhl iiiig-ht l)e 
the better for our presence. ^Ye a])i)reciate{l that we were 
members of a high and an honorable profession, with 
corresponding responsibilities. History shows that law- 
yers are more frequently called upon by tbeir fellow-men 
than members of any other profession or calling to take 
part in the conduct of public affairs ; and b}^ this is the 
measure of their responsibility fixed. So it has been in the 
past, so is it now, and so Avill it be in the future. Whatever 
flippant expressions may be heard from the ignorant, the 
prejudiced or the envious, to the contrary, this fact affords 
us the comforting assurance that the integrity, the ability 
and the learning of the profession are fully appreciated 
and valued by the community at large all over the country; 
and this of itself should act as an inspiration to every mem- 
ber of the profession to strive with his utmost energv to 
maintain that high standard of morality and integrity 
which has secured the confidence of our fellow-men, and 
enabled us to fill out the measure of usefulness which our 
place in society has rendered possible. Should the time 
ever come when the profession of the law shall be dragged 
down by its votaries from the position of a noble and an 
honorable profession to that of a venal trade, then the name 
of law^yer will become a title of reproach instead of an 
honorable appellation. 

But feAV are now left who commenced the struggle of pro- 
fessional life with me, animated by hope and ambition, 
inspired by indomitable will and a fixed purpose to succeed. 
I have seen them drop out one by one as we traveled the 
road of life, side by side, till now Init isolated instances are 
left of those who can tell from memory the incidents of the 
distant past ; but they have left dotted along that way 
beacons of brilliant light, which have served to guide their 
successors, and will serve to guide those who shall still come, 
later, to the goal of honorable distinction and of usefulness. 
It is one of the happiest hopes that I can now entertain that 
honesty and honor, usefulness and learning will be upheld in 



238 EARLY BENCH AND BAR OF ILLINOIS. 

the future as in the past, and that the name of our profession 
may continue to be the synonym of all that is noble, useful 
and energetic. The comforting hope of the past must rest 
in the future. So can the younger men who are just coming 
upon the stage of life most honor those who have gone be- 
fore them. 



REMINISCENCES OF THE CHICAGO BAR. 

ADDRESS DELIVERED BEFORE THE CHICAGO BAR ASSOCIATION 
FEBRUARY 11, 1S93, BY JOHN DEAN CATON. 

3Ir. President and Gentlemen of the Bar Association of 

Chicago: 

I am liappy to accept your kind invitation to meet you 
here at this time, and to say a few words about the earliest 
history of our profession in Chicago. It is indeed grateful 
to find myself surrounded by a legal atmospliere, in the pres- 
ence of gentlemen of the profession which I love so well, in 
a city whicli now stands where stood a little hamlet sixty 
years ago, and where I first commenced my professional 
career, and where it was my fortune to commence the first 
action ever brought in a court of record in Cook county. 
I think I may be pardoned for feeling a certain measure of 
l)ride in having had my name thus associated with the first 
judicial records of this county. There was no city here 
then, nor even a village corporation; for it was six weeks 
after my arrival before 150 male inhabitants over the age 
of twenty-one 3^ears could be mustered in the place — a 
statutory condition necessary to form a village corporation. 
It so happened that I was appointed the first corporation 
attorney, which was the first office I ever held in this State. 
Although the emoluments were very small, I well remem- 
ber that they were very opportune, and were probably as 
gratefully received as have been those of any legal repre- 
sentative of the town or city since. 

Although as early as 1830 the statute fixed the terms of 
the Circuit Court in Cook County and made it the duty of 



240 EARLY BENCH AND BAR OF ILLINOIS. 

Judge Young, of the Fifth Circuit, to hohl the court here, 
of which CoL R. J. Hamilton was the clerk, yet no case of 
a civil or criminal nature had arisen to be placed upon his 
docket till more than two weeks after my arrival, and the 
judge, having been informed by the clerk of this fact, had 
not appeared to open the court. 

The first case that was ever entered upon the docket of 
the Circuit Court of this county was a criminal case, and 
the first fee I ever received was for prosecuting a thief who 
had stolen $36 of Bellows Falls money from a Mr. Hatch, 
who employed me to prosecute him and recover the money, 
which I did. I received $10 for this service, the first fee I 
ever received in this State, and I never received a fee with 
more satisfaction, for it just paid my two weeks board up 
to that time — to have paid which would have exhausted 
my funds. Giles Spring, whose arrival had preceded mine 
by a few days, and Colonel Hamilton defended the case 
before the magistrate, and then it was that both Spring and 
myself had an opportunity of being heard before a Chicago 
audience (for nearly every man and boy in town were pres- 
ent), and we both made our speeches as much to the people 
as to the magistrate, who bound the prisoner over to the 
grand jury; and so Colonel Hamilton had the pleasure or 
the pain of writing down his client's name, the first upon 
his docket, and filing his recognizance. 

The second action upon that docket was an attachment 
case, which was commenced by me. Of course I was very 
glad to get it. Spring necessarily was employed on the 
other side, and he beat me on the trial before the first petit 
jury impaneled in the Circuit Court of this county and got 
a good fee, for those times, Avhile I had to be content with a 
$5 retainer. 

As neither Spring nor myself received our licenses to 
practice in this State till October following — when I went 
on horseback to Greenville, in Bond county, to obtain them 
— we signed our clients' names to precipes, pleadings and such 



JUDGE CATON'S ADDRESS. 241 

otbor papers as otherwise we ^yould have signed as attor- 
neys. 

When we remember that in the absence of panics and 
similar financial convulsions the amount of legal business is 
a safe criterion by which to determine the amount of com- 
mercial transactions, the entire absence of litigation in the 
hiffher courts would indicate that little commercial business 
had been carried on here up to the time of which I speak, 
and the entire absence of crime which had to be dealt with 
by the Circuit Court speaks well for the psacs and good 
order of the community. In truth, nothing had occurred 
which could not be dealt with by justices of the peace, and 
three such officers represented all the judicial force in the 
place, namely, Isaac Harmon, Russell E. Heacock and 
Archibald Clybourne. Only one of them, Harmon, kept 
an office, and he did nearly all the business. Mr. Ileacock 
was the only lawver of the three, and he was a ver}^ good 
lawyer too; but in the absence of any professional business 
he opened a carpenter shop, a trade which he learned when 
young; his shop, built of logs, was situated on the corner of 
South Water and State streets, and it was from him I procured 
the warrant for the arrest of the criminal alread}" spoken of. 
The criminal was brought in just at dusk, and the justice 
took his seat on a saw horse by the side of his work bench, 
upon which he placed a lighted tallow dip, held in position 
by four nails driven into a block of wood. 

This particularity can only be justified by my desire to 
enable you to understand the judicial position at the very 
commencement of its history in this city, and to enable you 
to draw a contrast between then and now. At that time 
there was already an aj^preciable amount of business in the 
Circuit Court of La Salle county, and especially in Putnam 
county, but there were no resident lawyers in either, and 
clients depended upon the circuit riders for the conduct of 
their cases. 

These lawyers were a class who traveled the circuit Avith 
the judge, and who had to practice law on the wing, as it 

16 



242 E^\JILY BENCH .\:ND BAR OF ILLINOIS. 

were, and who received their retainers about the time court 
opened and frequently had to learn their cases as the trials 
progressed. Their experience in this mode of practicing lavv' 
enabled them to do this with extraordinary facility and suc- 
cess. As a general, rule they were well grounded in the 
fundamental principles of the law; and habit had enabled 
them to think quickly and accurately and without confusion 
when required to pass from one subject of thought to an- 
other. 

The first Circuit Court which I ever attended in this State 
was in October, 1833, at Pekin, in Tazewell county, where I 
first met Judge Lockwood, who held the court; John J. Har- 
din, State's attorney; Stephen T. Logan, John F. Stuart and 
Dan Stone, of Spring held, who were the first circuit riders 
I ever met. I next attended a Circuit Court at Greenville, 
in Bond county, which was held b}^ Judge Smith of the 
Supreme Court, also in October, 1833, where I first met 
Jesse B. Thomas, who was State's attorney in that circuit. 
The next Circuit Court which I attended was the first ever 
held in Cook county, in May, 1831:. Judge Young held the 
court. Thomas Ford, of Quincy, was State's attorney. The 
foreign lawyers in attendance were William L. May, of 
Springfield; Benjamin Mills and James M. Strode, of Galena. 
I do not remember the number of cases on the docket 
at that term. Spring and I were engaged in them all, 
on opposite sides, excepting one in which Mr. Ford rei> 
resented the United States. I had brouo-ht a Avrit of habeas 
corpus directed to the commander of the fort here to pro- 
cure the discharge of a soldier who had been enlisted be- 
fore he was eighteen years old without the consent of his 
father. 

The State courts at that time exercised that jurisdiction, 
even where the Federal courts were conveniently near, as I 
showed by a case in Johnson's reports. The question of 
jurisdiction was not seriously contested, but the court held 
that the onus lay upon me to prove that the father had not 
consontod to the enlistment, and because I did not succeed 



JUDGE CATON'S ADDRESS. 243 

in doing- this, clearly, the soldier Avas remanded. I suppose 
that no State court at this time would entertain jurisdiction 
in such a case. 

Six days after the opening of the Circuit Court here the 
court was required to be opened at Ottawa, in La Salle county, 
which is eighty-four miles distant. It required two days' 
riding on horseback to reach that place, and as half a day of 
the term time was given up to a political discussion between 
Colonel May and Mr. Mills, rival candidates for Congress, 
practically but three days were allowed to dispatch the busi- 
ness in court, but that proved to be amply sufficient. Ford, 
State's attorney, was called upon by the judge to charge the 
grand jury. This gave him an opportunity to be first heard 
in Chicago, where he had never been before. I went to 
Ottawa with the judge and lawyers who had come herewith 
him and attended that court. There were several more cases 
on that docket than had been on this, but I obtained but 
little business tliere, although I had been there twice before, 
and had formed a good many acquaintances, having on the 
previous 4th of March attended, as a delegate from Chicago, 
the first political convention ever held in Illinois. In that 
convention we nominated one candidate for the State Senate 
and one for representative in the General Assembly to 
represent all the northern part of the State as far south as 
Peoria, including that county. I did not anticipate much 
pecuniary result from my attendance upon these various 
courts 'which I have mentioned, but it served to extend my 
acquaintance and especially to familiarize myself with the 
practice of the courts in this State, and the mode of doing- 
business here, w^hich I early learned was widely different 
from that which prevailed in New York, where I had 
studied my profession. 

The day after my first arrival in Chicago I called at Col- 
onel Hamilton's office. He then held the offices of clerk 
of the Circuit Court, clerk of the County Commissioners' 
Court, and judge of the Probate Court. He received me 
with a cordiality and welcome which were one ■ of his dis- 



244 EARLY BENCH AND BAR OF ILLINOIS. 

ting-uishine: characteristics and secured for him the warm 
friendship of all with whom he came in contact. He invited 
me to come to his office to do any writing I had occasion to 
do and kindly loaned me the use of his copy of the statutes of 
1833, which I there first read, and, I may add, carefully 
studied. In New York the statute gives certain fees to the 
successful lawyer, which must be paid him by the unsuc- 
cessful party, because it is deemed but just that he who 
wrongfully causes litigation should pay the cost which he 
has compelled by his wrongful acts of omission or commis- 
sion, and I was greatly disappointed to find that the fee bill 
provided no compensation to be paid to the lawyer of the 
successful party; and I may now say that in my opinion the 
rule which compels the party in fault to pay at least a part 
of the expense which he compels the party who has suffered 
wrong to incur, in order to recover his rights, is but just, 
and consistent with sound policy. The law which exempts 
a man from paying anj^thing which he has compelled the 
injured party to incur, encourages litigation. 

This is not the only law which seems to have been made 
in the interests of wrong-doers. In our Criminal Code the 
State has placed itself to a great disadvantage in the prose- 
cution of criminals, by giving them much greater chances 
for escape than the State has for conviction. I repeat that 
many of our law^s seem to be made for the benefit of delin- 
quents and criminals. ISTotwithstanding my disappointment 
at not finding in the fee bill an allowance for the successfid 
lawyer, I finally contented myself with the reflection that 
if others could stand it I could, and directed my studies to 
the rest of the statute. 

I may mention one other case which I had to conduct in 
1833. With the eastern immigrants had come a number 
of negroes, perhaps eight or ten. Of course, coming from 
the free States, they had no free papers, as our statute re- 
quired, which had been framed upon the manifest assump- 
tion that all negroes Avere born slaves and that such must 
be the legal presumption, only to be overcome by document- 



JUDGE CATON'S ADDRESS. 245 

ary evidence sliOAviiig their right to freedom. Some per- 
son in the town, badly troubled with what we then called 
" negrophobia " on the brain, swore out warrants against 
every negro here and had them brought before Squire Har- 
mon to comiDel them to present their free papers or be sold 
as the statute required, and they employed me to defend 
them. Fortunately, the county commissioners were then 
in session, and I asked the court to hold the cases open till 
I could appear before that body and prove that all my 
clients were born free and obtain free papers for them. Of 
course I could show no statute authorizing such a proceed- 
ing but the justice very willingly granted me the time, 
when I marched m,y clients over to Colonel Hamilton's 
oifice, where the commissioners were in session, and made 
m}^ application for free papers. I made a little speech, 
showing that from the very necessitj^ of the case they must 
have jurisdiction and exercise it too, to prevent a monstrous 
wrong, which would be a disgrace to both the town and the 
State. The commissioners allowed me to produce my proof, 
which was abundant, and then made the order that the 
clerk should issue the proper papers to show that fact, when 
immediately Colonel Hamilton set himself to work and got 
up a most elaborate document, couched in the most formal 
terms, sealed with the seal of the court and issued one to 
each of my clients. Armed with these documents, we re- 
turned to the justice's office, whereupon the justice decided 
that those were good enough free papers for him, and im- 
mediately discharged the prisoners and taxed the cost to 
the prosecutor. 

Another incident that happened a few years later may be 
worth relating, as it shows a great change in the position 
occupied by the negro in Chicago. At that time a very 
considerable colony of colored men lived here and among 
them was George White. He had a very loud voice aiul" 
made himself town crier. He was both smart and am- 
bitious. At the same time there lived in the gutters of 
Chicago, a young man named Harper. He was a man of 



246 EARLY BENCH AND BAR OF ILLINOIS. 

liberal education, but had succumbed to the disease of 
drunkenness; had enlisted as a common soldier in the army, 
where he was found to be absolutely incorrigible, had been 
drummed out of camp at Green Bay, whence he had made 
his way to Chicago, where he continued his dissipation and 
subsisted on charity and by doing little chores about the 
town. Everybody felt a kindly feeling toward Harper, for 
he was learned, witty and amiable, but he was a vagrant of 
the most pronounced description, and some one caused his 
arrest as a vagrant. He was convicted and condemned to 
be sold for the shortest time for wliich a bid could be ob- 
tained at public auction. George AVhite cried the sale 
throughout the town, with many commendations of the 
goods to be sold. A large concourse gathered at the 
auction block, nearly all of whom had a kindly feeling for 
Harper, who had got sobered up while in confinement, and 
we all appreciated that he was possessed of high and keen 
sensibilities when sober. The constable offered the victim 
for sale, and when he called for bids George White bid 
twenty-five cents for a month's service. Xo other bid being- 
received he was struck off to the negro, who walked up 
with a satisfied expression of countenance to take posses- 
sion of the goods; but just as George was about to lay his 
hand on Harper the latter made a bolt to the ring of 
spectators which surrounded the place, when an opening- 
was immediately made in it through Avhich he ran, when it 
was closed up before George could pass through in pursuit 
of his fleeing chattel. 

Harper took refuge among his friends who concealed him 
and kept him in hiding for a week or two while the pur- 
chaser was vainly seeking him, when some one gave him the 
quarter back, for which he disclaimed ownership, and the 
vagrant reappeared unreformed and pursued his old course 
of life. The disease had become so fastened upon him that 
it seemed absolutely uncontrollable. He actually sold his 
body to a doctor of whom he was begging for half a dollar, 
who, with the hope of disgusting him, offered the money 



JUDGE CATON"S ADDRESS. 247 

for his body for dissection, who assured him that if he gave 
liim the money he would freeze to death before morninf^. 
Harper eagerly embraced the offer, actually signed the 
deed for his body after death, assuring the doctor that he 
expected to outlive him. After a number of years he finallv 
disappeared from Chicago. The next we heard of him in 
i^altimore, where with six other reformed drunkards he 
formed the Washingtonian society and distinguished liimself 
as a lecturer on temperance, the fame and influence of 
Avhich fifty years ago spread throughout tlie United States. 
Through the influence of that society many drunkards were 
reformed and became distinguished lecturers in the temper- 
ance cause. 

Edward Casey was the onl}'- lawyer that I distinctly re- 
member who joined us liero in 1833, but Alexander N. Ful- 
lerton may have come in that year. In 1834 our bar was 
augmented by the arrival of a very considerable number, 
several of whom became distinguished, but it is beyond my 
present purpose to name them now. For a score of years 
thereafter the number was increased only by immigrants, 
but later by native-born Chicagoans. How many, you 
Icnow better than I do. 

Xow it will compare favorably both in numbers and ability 
with any bar in the republic, and as I trace back the thread 
of memory to the very beginning I may feci a just pride in 
noting its advancement from that time to this, not only in 
learning but in reputation. If I contemplate the past with 
great satisfaction, I anticipate the future with high hopes. 
I feel that I may appropriate to myself some portion of the 
credit that may attach to the bar of Chicago, and should 
feel as a personal reproach any stigma which may ever fall 
upon it. Eemember, gentlemen, that the highest integrity 
can alone maintain that reputation which secures to the bar 
the public confidence which has selected from our profes- 
sion so large a proportion of the public men who have 
so nobly maintained the institutions of our republican gov- 
ernment. So long as we shall deserve it, from our ranks 



248 EARLY BENCH AND BAR OF ILLINOIS. 

will be selected a large proportion of those who shall make 
and those who shall administer the laws of the land; and I 
may be permitted now to wish this association a long and 
prosperous career, and its individual members long, suc- 
cessful and happy lives. 

The appreciation by a later generation of a somewhat 
active and extended ]irofessional life is the sweetest consola- 
tion an old man can have. Gentlemen, I thank you. 



WHO GUIDED THE MORMONS TO SALT LAKE. 

A DESCEIPTIOX OF THE GREAT SALT LAKE COUNTRY AND HOW 
IT BECAME I>'HABITED BY THE MORMOXS. 

In the latter part of ISi-t I received a copy of " Fremont's 
First and Second Expeditions to and Beyond the Kock\^ 
Mountains," which I read with great interest. In his sec- 
ond expedition he gave an account of the Great Salt Lake, 
now called Utah, which he visited on his way west, which 
was the first authentic account ever published of that lake 
and region, and on his return he discovered the Utah Lake, 
which is a fresh water lake lying about twenty miles south 
of the salt lake and which discharges its fresh water into the 
salt lake, of which, and the surrounding country, he also gave 
an account. 

He gave a very good account of his observations m.ade in 
what may be called the Utah Yalley, which suggested the 
great possibilities for the future of a civilized settlement in 
that valley. 

That Avas the first session of the Legislature after the 
murder of Joseph Smith, Avhich had occurred in the previous 
June. When the Mormons settled in Hancock county, they 
were petted and caressed by both political parties, as both 
Avanted to secure their votes. The favors thus shoAvered 
upon them undoubtedly made them arrogant and made them 
magnify their importance as a political factor in the State, 
and under this influence some of the Mormons committed 
acts of outrage upon the Gentiles, as they called eA^erybody 
not of their oAvn people. A portion of these Gentiles were 
friendly to them and defended them through thick and 

(249) 



250 EARLY BENCH AND BAR OF ILLINOIS. 

thin; these were called Jack-mormons; one of whom, named 
J. B. Backenstos, they had elected to the Legislature. His 
special business was to look after their interests in that 
bod}'", and in the performance of this service he certainly had 
a very dilRcult task on his hands, as they had become as 
generally odious as they had been popular before, when 
both political parties were endeavoring to secure their votes; 
and now they vied with each other with equal zeal in their 
endeavors to oppress them. A number of the leading Mor- 
mons, headed by Brigham Young, were at the Capitol to 
assist and advise with Backenstos in his endeavors, more to 
protect them against hostile legislation than to obtain an}^ 
favorable legislation, which was manifestly impossible. 

In this state of things I met Backenstos one morning in 
the rotunda of the State House, when on my way to the 
Supreme Court room, and asked him how he was getting 
along in his efforts for his Mormon constituents; he replied 
that things looked very bad; that everybody was down on 
them; that both political parties were vieing with each other 
in their efforts to oppress them; that nobody would listen to 
reason or justice or even common humanity, and that they 
were already driven to extremities. I then had Fremont's 
report under my arm. It then first occurred to me that the 
Salt Lake country, in the midst of the Rocky mountains, 
would afford them a secluded retreat Avhere they could run 
things their own way without interference from the outside 
world for the next hundred years, and at his request I gave 
him the book when I had turned down the leaves at those 
places where the valley of the Salt Lake is described, and 
he took it to his constituents with my suggestions for their 
examination and consideration. 

At the end of perhaps two weeks, he returned me the 
book Avith the thanks of his elders, who, he said, were so 
favorably struck with my suggestion that they had already 
determined to send an exploring party to the valley of the 
Salt Lake the next spring, who would give it a thorough 
exploration, and if they should make a favorable report, they 



WHO GUIDED THE MORMONS TO SALT LAKE. 2")! 

would, as soon as possible, remove their people to and take 
])ossession of that country. 

This was accordingly done; a favorable report was made 
by the exploring party and the removal was commenced and 
prosccutecl as rapidh' as that could be effected, under the 
leadership of Brigham Young. In this exodus the great 
bulk of the Mormons joined, though some of them who did 
not believe in the polygamy doctrine of Brigham Young 
refused to go, but remained in the east and formed a small 
community by themselves, where they and their descendants 
still remain without further persecution. 

About twenty years later, when overhauling a box of 
books for which I could not find room on the shelves of 
my library, I came across this same co])y of Fremont's 
report, which called to my mind the incident above related, 
and it occurred to me that here was an incident of sufficient 
historic value to entitle it to record among the archives of 
our State; so I wrote it out on the fly-leaf in this copy of 
Fremont's report as being the book which first suggested 
the removal of the Mormons to the Salt Lake Valley, and 
presented it to the Chicago Historical Societ}^ Every- 
body is aware that the Mormons claimed that they were 
first led to that retreat by a divine inspiration or interposi- 
tion, the truth of which I will not deny, but this book was 
the. instrument selected by the author of the inspiration to 
effectuate his purpose, for it served to select the place and 
to point out the road to it. 

I should have inserted these facts, although not strictly 
connected with the judicial history of the State, at an earlier 
place in this series, had I not known that Judge Moses, who 
Avas the librarian in charge of this book, Avas preparing an 
elaliorate history of this State, and assumed that he would 
deem it of sufficient importance to deserve a place in its 
history; but an examination of that work since its publica- 
tion shows that it is not there mentioned. A note just re- 
ceived from Judge Moses informs me that he recollects a 
few years ago that I called upon him, and at my request ho 



252 EARLY BENCH AND BAR OF ILLINOIS. 

procured the book referred to and read the note on the fly- 
leaf to me; that he intended to insert it in his chapter on 
the Mormons, but that it was accidentally omitted; and that 
it will be inserted in a revised edition of his work. He 
regards the incident of historic value and worthy of especial 
mention. 

Chicago, April 19, 1893. 






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