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Full text of "The laws of Indiana Territory 1801-1809"

COLLECTIONS 

OF THE 

ILLINOIS STATE HISTORICAL 
LIBRARY 



EDITED BY 

THEODORE CALVIN PEASE 

UNIVERSITY OF ILLINOIS 



VOLUME XXI 



Digitized by the Internet Archive 

in 2011 with funding from 

CARLI: Consortium of Academic and Research Libraries in Illinois 



http://www.archive.org/details/lawsofindianater21phil 



ILLINOIS 
STATE HISTORICAL LIBRARY 



BOARD OF TRUSTEES 

Otto Leopold Schmidt, President 

Charles Henry Rammelkamp, Vice President 

Laurence Marcellus Larson, Secretary 



Georgia L. Osborne, Librarian 



Theodore Calvin Pease, Editor 



ADVISORY COMMISSION 

Evarts Boutell Greene 

William Edward Dodd 

James Alton James 

Andrew Cunningham McLaughlin 

Edward Carleton Page 

Theodore Calvin Pease 

Charles Henry Rammelkamp 



LAW SERIES 

VOLUME II 



THE LAWS OF 
INDIANA TERRITORY 

1801-1809 



COLLECTIONS OF THE ILLINOIS STATE HISTORICAL LIBRARY 

VOLUME XXI 



LAW SERIES, VOLUME II 



THE LAWS OF 
INDIANA TERRITORY 

1801-1809 



Edited with Introduction by 

FRANCIS S. PHILBRICK 
Professor of Law, University of Illinois 



Published by the Trustees of the 

ILLINOIS STATE HISTORICAL LIBRARY 

SPRINGFIELD, ILLINOIS 



Copyright, 1930 

BY 

The Illinois State Historical Library 



Press of 

Jeffersons Printing & Stationery Co. 
Springfield, Illinois 



1LUNDJS 




Documents 

Collection fZD*^\ C 

TABLE OF CONTENTS 

Acknowledgments v 

Introduction ix 

Laws adopted by the Governor and Judges of the Indiana 
Territory at their first sessions held at Saint Vincennes, 
January 12th, 1801 1 

Laws adopted by the Governor and Judges of the Indiana 
Territory at their Second and Third Sessions, begun and 
held at Vincennes, 30th January, 1802 and February 
16th, 1803 23 

Laws passed at the First Session of the First General Assem- 
bly of the Indiana Territory, begun and held at the 
Borough of Vincennes, on Monday the twenty-ninth of 
July, In the Year 1805 89 

Laws passed at the Second Session of the First General As- 
sembly of the Indiana Territory, Begun and Held at the 
Borough of Vincennes, on Monday the Third Day of 
November, in the Year Eighteen Hundred & Six. . . 169 

Laws of the Indiana Territory; Comprising those Acts for- 
merly in force, and as Revised by Messrs. John Rice 
Jones, and John Johnson, and passed (after amend- 
ments) by the Legislature ; and the original Acts Passed 
at the First Session of the Second General Assembly of 
the said Territory. Begun and held at the Borough of 
Vincennes on the sixteenth day of August, Anno Domini 
eighteen hundred and seven 221 

Acts of Assembly Passed at the Second Session of the Second 
General Assembly of the Indiana Territory. Begun and 
held at the Town of Vincennes, on Monday the twenty 
sixth day of September, A. D. one thousand eight hun- 
dred and eight 643 

Bibliography 685 

Index 689 



LIBRARY 

WESTERN ILLINOIS 

UNIVERSITY 
MACOMB, ILLINOIS 



ACKNOWLEDGMENTS 

The beginning of my work upon the present volume was fa- 
cilitated by preliminary notes on the materials available for study, 
generously prepared by Mrs. Marguerite Jenison Pease, then assist- 
ant-editor of the Collections of the Illinois State Historical Library. 
To the courtesies of Mr. Charles L. Biederwolf, clerk of the Su- 
preme Court of Indiana, custodian of the manuscript Order Book 
of the General Court of Indiana Territory, and to Mr. Charles E. 
Edwards, librarian of the Indiana Law Library, I owe thanks for 
the opportunity to study that interesting record. Mr. J. C. Boc- 
quet, chief deputy circuit clerk of St. Clair County, has shown me 
every kindness in facilitating my examination of records preserved 
at Belleville. With particular pleasure I offer thanks to Mr. 
William Lister, clerk, and Mr. Frank Albrecht, deputy clerk, of the 
circuit court at Chester, for unstinted kindnesses in forwarding 
my studies of the records preserved in their office. To various 
other officials of archives and libraries I am indebted for lesser 
favors. My obligation to Miss Ernestine Jenison and to Miss 
Mildred Eversole, also of the editorial staff of the Library, is im- 
measurable, for they have verified every citation and every state- 
ment of fact other than those based upon manuscript sources, and 
their extremely critical and conscientious scrutiny of the manu- 
script has saved me from dozens of errors. Most grateful ac- 
knowledgments are due to the Chicago Historical Society for 
access to their set of originals of the Indiana Laws in repeated 
collations of the present text. Finally, the text of the statutes 
printed in this volume has been prepared by Mr. Pease, the general 
editor of the Collections of which it forms a part; and to him I 
am also grateful for several suggestions and corrections, although 
he has left me almost wholly to my own devices. It is perhaps 
unnecessary to say that upon myself rests sole responsibility for 
such errors of fact, interpretation, and judgment as may still be 
discovered in my Introduction. 

F. S. P. 



THE LAWS OF 
INDIANA TERRITORY 



Special Introduction 



INTRODUCTION 

The date which separates the administration of the Indiana 
Territory from that of the Northwest Territory points to no great 
change, aside from a short-time loss of representative government, 
even in the administrative history of the western counties; much 
less to any change in social practices or opinions significant in the 
life of the Illinois country. Alike before as after the local govern- 
ments functioned, the courts were active, and relations with the 
central government — though attenuated — were realities. Few new 
personalities appear. The problems of general concern remain 
primarily the same — the division and redivision of the unwieldy 
mass of the old territory, thereby bringing government nearer 
home; the readjustment of political machinery to make it more 
acceptable to those who ran it; and the stimulus of immigration 
with cheap land, bond labor, and the attractions of representative 
government under an increasingly liberalized franchise. Varia- 
tions in political opinion and in the ambitions of individuals give 
to old problems a somewhat altered guise and shifting emphasis. 
There is no further change. Before discussing the statutes of the 
period, the organization of the courts, and the actual administration 
of justice, it therefore seems desirable to review the political agita- 
tion that was roused by the questions just indicated in the years 
with which the present volume is concerned. 

Though the Northwest Territory seethed with the animosities 
of Federalists and Republicans and to some degree with variant 
opinions regarding all the problems mentioned, there was no pos- 
sibility, under the autocratic governmental system of the nonrep- 
resentative stage ("first grade"), for a test of opinion. The meet- 
ing of the first legislature 1 under the "second grade" gave the op- 

*It met on September 16 (organized September 23), 1799. W. H. 
Smith, 5"*. Clair Papers, 2 : 439 n., 477 n. 



x ILLINOIS HISTORICAL COLLECTIONS 

portunity. By a majority of one vote over the supporters of Arthur 
St. Clair, son of the Governor, it elected William Henry Harrison 
to represent the territory in Congress. Governor St. Clair was 
filled with distrust of the "indigent and ignorant people" of the 
western counties who were clamoring for a new state. Harrison's 
political affiliations at this time seem somewhat obscure, 2 but it is 
evident that he was elected by those unfriendly to the Governor, 
and that he sympathized with the unrest that pervaded the terri- 
tory. His victory was that of those who favored a less centralized 
judicial system, a consequent division of the Northwest Territory, 
and a land law more favorable to unmoneyed immigrants. 

Promptly in the next session of Congress he secured a com- 
mittee to consider alterations in the judicial establishment. 3 Two 
weeks later he secured another committee to report upon improve- 
ments in the land system. Consideration of the first bill ended in 
its recommitment to the committee with instructions to report on 
the expediency of dividing the territory. The second bill, after 
elaborate consideration, 4 became an act which provided for the 
sale of land in tracts of whole or half sections at two dollars per 
acre, with generous provisions (later repented) for payment over 
four years, foreclosure by sale instead of absolute forfeiture in 
case of final default, and the opening of land offices in the terri- 
tory. The other bill was replaced by one for the division of the 

1 Appointed secretary of the Northwest Territory, in succession to 
Winthrop Sargent, July 6, 1798, just after resigning his captaincy in the 
army. D. B. Goebel, William Henry Harrison {Indiana Historical Collec- 
tions, 14), 37, 38, 40. He married in 1795 a daughter of Judge Symmes, 
of the General Court of the territory. Elected delegate to Congress October 
3, 1799 (L. Esarey, A History of Indiana from its Exploration to 1920, 
1: 150; compare St. Clair Papers, 2: 499 n.). He was then 26 years 
of age. See for details of his life the biography by Mrs. Goebel, published 
in 1926. 

2 St, Clair Papers, 2: 482 (letter of December 1799 to James Ross) ; 
J. P. Dunn, Indiana; a Redemption from Slavery, 280; Goebel, Harrison, 
42-43. 

3 December 6, 1799. For full proceedings see Annals, 6 Congress, 1 
session, pp. (H. R.) 193, 197-198, 245, 507. The bill title shows that the 
object was to reform the Superior courts. 

4 December 24, 1799. For full proceedings see Amwls, 6 Congress. 1 
session, pp. (H. R.) 207, 209-210, 211, 375, 376, 425-426, 527, 537-538, 625- 
626, 650-651, 652, 681, 683, 691, 701; (Sen.) 149, 164, 165, 167, 168, 173, 
174; (the act of May 10, 1800) 1515-1522. 



INTRODUCTION xi 

territory, passed after equally thorough consideration, 1 to go into 
effect on July 4, 1800. The western half became Indiana Terri- 
tory (1800-1809), and Vincennes became the capital. 

Even Governor St. Clair acknowledged that the territory was 
of unmanageable size; his opposition to division took the form of 
suggesting boundaries that raised political and sectional difficulties 2 
— which also appeared in the debates of Congress. 3 

The arguments which induced division were based upon the 
unwieldy size of the territory — a thousand by seven hundred miles ; 
its division by great areas of wilderness, held by the Indians; the 
large population of the western half (Harrison made the claim of 
15,000!) ; the great inconveniences which the size of the territory 
presented in the administration of justice and in the transaction 
of business with the capital (Cincinnati) — the local situations being 
"too dissimilar to admit of being one Government, either to enact 
equal laws or to provide for the execution of them" ; and the re- 
moval of many families into upper Louisiana. 4 These arguments 

1 For proceedings: Annals, 6 Congress, 1 session, pp. (H. R.) 583, 
632-633, 635, 649, 676, 679, 683, 684, 691, 698-699, 700; (Sen.) 147, 148, 
161, 163, 167-168, 168-169, 173; (the act of May 7, 1800), 1498-1500. Also 
United States Statutes at Large, 6 Congress, 1 session, ch. 41. Committee 
report of March 3, 1800, in American State Papers: Miscellaneous 1: 
206-207. 

2 Letter of St. Clair to Harrison, February 17, 1800 (while the above 
bills were under discussion in Congress) — "To render the territory manage- 
able, it would require to be divided into three districts." W. H. Harri- 
son, Governors Messages and Letters. Messages and Letters of William 
Henry Harrison, {Indiana Historical Collections, 7), 11. St. Clair 
Papers, 2: 481-483 (letter of December 1799 to James Ross) ; 489 (letter 
of February 17, 1800, to Harrison); 570; see Dunn, Indiana, 279. A di- 
vision was acceptable to St. Clair if so made as to preserve federalist control 
of his (the eastern) half, and postpone its attainment of statehood — which 
would end his governorship. He could easily see that he had no future in 
elective offices. But his opponents were, of course, likewise influenced by 
personal considerations, including land investments. See Goebel, Harrison, 
42, 48. 

3 The Senate forced the adoption of a line that left temporarily in the 
Northwest Territory — until its eastern division should become a state 
(Ohio) — the relatively well-settled Gore, which was economically depen- 
dent upon Cincinnati and objected to the remoteness of Vincennes. St. 
Clair's view was that "almost any division into two parts which could be 
made would ruin Cincinnati" (see supra, n. 2). Then the seat of govern- 
ment, it could not remain so unless a threefold division were adopted; 
Harrison had to meet this source of opposition in the debate. Annals, 6 
Congress, 1 session, 507, 698-699. 

4 Annals, 6 Congress, 1 session, 649, 699. 



xii ILLINOIS HISTORICAL COLLECTIONS 

were sound, but it is evident that they could serve equally well, as 
they subsequently did, for a second division of the territory. 

The new territory included three counties : St. Clair and Ran- 
dolph in the Illinois country and Knox 1 to the eastward. The last 
included — along with practically all of present-day Indiana, half 
of Michigan, and part of Wisconsin — more than half of Illinois 
as then organized. A reorganization of boundaries in 1801 left 
within Knox only a strip along the eastern boundary, and threw 
seven-eighths of the present state into St. Clair. 2 

Save for the French villages, a few weak "colonies" of Ameri- 
can frontiersmen, and occasional isolated adventurers, the two west- 
ern counties were an empty wilderness. Peoria — where hundreds 
of transient traders, voyageurs, and Indians met (as at Mackinac 
and Prairie du Chien) at certain seasons of the year 3 — was out 
side all county boundaries until 1801. 4 

There was hardly a single distinctively American settlement 
except at and about New Design in the American Bottom. Every- 

1 St. Clair was organized April 27, 1790. St. Clair Papers, 2: 165 n., 
for the proclamation. Randolph was organized out of the southern end of 
St. Clair County by proclamation of October 5, 1795. Ibid., 2 : 345 n. Knox 
was organized June 20, 1790. Ibid., 2 : 166 n. 

2 See maps at the end of this volume from L. L. Emmerson, Counties 
of Illinois, Their Origin and Evolution (State document, January 1, 1920) 
pp. 17, 19, 21, 23. For the proclamation of 1801 (and 1803, altering the 
line between St. Clair and Randolph — apparently a gerrymander) see J. 
Gibson, "Executive Journal of Indiana Territory 1800-1816," in Indiana 
Historical Society, Publications, 3: pt. 3, pp. 98, 117-118. 

3 J. Reynolds, The Pioneer History of Illinois (Fergus ed.), 151, 233. 
Governor St. Clair wrote from Cahokia in the spring of 1790 that the 
village was very weak (his reference is perhaps to Kaskaskia), "as it 
always is at this season, the greatest part of the young men being absent on 
voyages, either to New Orleans or Michilimackinac." St. Clair Papers, 
2: 137. 

4 It was not included within the boundaries fixed by the treaty with 
the Kaskaskia Indians. Chas. C. Royce, "Indian Land Cessions," in Bu- 
reau of American Ethnology, 18th Annual Report, pt. 2, 1899, p. 664 ; treaty 
in C. J. Kappler, "Indian Affairs, Laws and Treaties," in Senate Documents, 
No. 452, 57 Congress, 1 session, 2: 49-50; American State Papers: Public 
Lands, 1: 285). Nevertheless George Rogers Clark had assumed Virginia's 
jurisdiction, appointing as commandant Jean Baptiste Mayet (ibid., 138), 
and Governor St. Clair did the same. He reappointed Mayet, and the 
instructions (and title) evidently indicate a realization that he was continu- 
ing the traditional paternalism of French administration beyond the limits of 
organized government. Mayet was, among other things, "to see that justice 
was done, relieve distress, as far as practicable, and see that the inhabitants 
did not act imprudently." June, 1790 — ibid., 167 n., 176. 



INTRODUCTION xiii 

where else the French were greatly preponderant; their weights 
and measures were standard in trade and in the courts ; their cus- 
toms dominated social life. Since 1763 many of them had mi- 
grated to Louisiana, but a trickle of American immigration 
from the southern states, east and west, had replaced them 
and was becoming by 1800 a stream manifestly destined soon to 
overflow and fill in the whole of the Illinois country. As Gover- 
nor Reynolds puts it, about 1805 "the country commenced to have 
frontiers. Before that, inside and outside of the American settle- 
ments were all frontiers." 1 A belt of territory less than a hun- 
dred miles long and twenty wide embraced all the settlements of 
the territory up to 1809. The population in 1800 was about 2,500, 
equally concentrated around Cahokia and Kaskaskia. 2 Distances 
which for frontier modes of travel were immense separated all 
these settlements. Even from Kaskaskia to Cahokia was some 
fifty miles ; thence to Peoria, almost two hundred more ; to Prairie 
du Chien, five; across the prairies to Vincennes, at least a hun- 
dred and fifty. From Kaskaskia southeastwardly to the Ohio, and 
northeastwardly to the Wabash, there was probably not one home ; 
a road, hardly usable by other than single horses, ran to each. 3 

1 Reynolds, Pioneer History, 358. 

2 About 100 in Peoria. C. W. Alvord, Illinois Country, 407-408 ; Dunn, 
Indiana, 295-296 ; and Esarey, History, 1 : 155, 179, analyze the census data 
of 1800. Secretary Gibson's summary (Ind. Hist. Soc. Pub., 3: pt. 3, p. 83) 
showed 4,875 inhabitants in the whole territory. Robert Morrison, who 
took the census in 1801, estimated the population of St. Clair and Randolph 
in 1805 at 4,311. Ind. Hist Soc. Pub., 2: 506. In 1809, when Illinois 
Territory was created, the estimate was 11,000. The U. S. census 
of 1810 reported a total population in the two counties of 12,282 (4,854 
free whites in St. Clair, 6,647 in Randolph). Annals, 10 Congress, 2 ses- 
sion, 973; Amer. State Papers: Misc., 1 : 946. In 1800 the census (Gibson's 
summary, supra) reported no slaves in St. Clair County, 28 in Knox in and 
near Vincennes, 107 in Randolph (60 in Prairie du Rocher, 47 in Kas- 
kaskia). The census of 1810 reported 40 slaves in St. Clair, 128 in Ran- 
dolph; also 113 free persons, not white and excluding Indians not taxed 
(mainly, therefore, one would suppose free blacks), in St. Clair and 500 in 
Randolph. Compare post, xlviii, n. 3 ; li, n. 1 ; cxxxvii. 

3 The proslavery "convention" petition of 1806 says of the country 
between Illinois and Vincennes : "dreary beyond description, not a single 
human dwelling is to be found in this whole region" — see post, xxxix, n. 2. 
The same statement is made in the anti-Harrison petition of 1808 cited 
post, xlvii, n. 1. Governor Reynolds makes the same statement of 1811, 
when he rode over this route : My Own Times, 122. On the road to Gol- 
conda or Shawneetown, Reynolds, Pioneer History, 298 ; My Own Times, 46, 
63; to Vincennes, Pioneer History, 293; My Own Times,' HI. 



xiv ILLINOIS HISTORICAL COLLECTIONS 

Apparently one ran also from Vincennes to Cahokia. 1 Such roads 
could serve only the immigrant, and the occasional traveler whom 
litigation or other business forced upon long journeys ; industry 
required none, and agriculture none except the local roads in the 
Mississippi settlements. 2 

The system of government provided by the Ordinance of 1787 
for the Northwest Territory was made applicable to Indiana Terri- 
tory, save that the transition to the second stage should take place, 
without regard to actual population, whenever the governor should 
receive "satisfactory evidence" that a majority of the voters 
("free-holders") desired the change. In the first stage the people 
had no direct voice in government, either local or general. The 
legislative power which, by transition to the second stage, the 
people of the older territory had just gained for themselves was 
held by the governor and the judges of the territorial court; and 
their power was only to "adopt" such "laws of the original States'' 
as fitted the circumstances of the territory. 

Harrison was appointed governor, and John Gibson 3 — revo- 
lutionary soldier, frontiersman, Indian-captive,-kinsman and -trader 
— secretary of the new territory. St. Clair, long as he lived on the 
frontier, never for a moment impresses one as belonging to it; 
much less his assistant, Secretary Winthrop Sargent. But John 
Gibson was quintessentially of the frontier; and Harrison, what- 
ever his early associations with Virginia's aristocracy, and though 
perhaps rather by virtue of political finesse than of any change in 
the man, fitted extraordinarily well into the west. Harrison had 
less administrative training than, and was far inferior in general 
ability and force to, St. Clair ; 4 and Gibson, though apparently of 
fair education, was certainly inferior in that respect to Harrison. 

1 The mail route from Vincennes to Kaskaskia was discontinued, and 
one to Cahokia added, in 1805. Annals, 8 Congress, 2 session, 1174, 1692, 
1693. 

2 For Illinois roads, Reynolds, Pioneer History, 281, 299. 

3 He served throughout the territorial period of Indiana, 1800-1816. 
See Harrison, Messages, 1 : 316 n. for details. 

4 See the friendly critical estimate hy Jacob Burnet, who knew him 
well, Notes on the Early Settlement of the North-Western Territory, 374- 
383, especially 378, 380; also Reynolds, Pioneer History, 155. Readers of 
the St. Clair Papers will note therein abundant evidences of his very excep- 
tional talents and good sense. 



INTRODUCTION xv 

He was a plain, blunt, honest man, who did quiet and apparently 
acceptable service in a number of offices. He was not the kind of 
man to be without opinions or to hold them lightly, but he kept free 
of party quarrels, with which no trace connects him. 1 

William Clarke, Henry Vander Burgh, and John Griffin were 
the first judges of the territorial court. In general culture, or at 
least in general schooling, they were certainly inferior to the judges 
of the older territory. They were also clearly inferior in legal 
schooling; 2 but as any man of talent could readily have acquired 
in solitary study the equivalent of the training afforded by the 
best law schools of the time their inferiority in this respect was 
probably unimportant. Of Clarke nothing is definitely known be- 
yond his name, and his early death, whatever may have been his 
legal qualifications, precluded any record of them. Vander Burgh 
was a New Yorker who removed to Vincennes soon after service 
in the Revolutionary army. If he had had any legal training it 
was apparently unknown to his associates. On circuit, and in serv- 
ing under special commission in courts of jail delivery, he seems to 

1 W. W. Woollen, Biographical and Historical Sketches of Early 
Indiana, 11-20. Harrison, in recommending him to Jefferson (October 18, 
1808) for his third nomination, wrote : "He is far from being a very expert 
Secretary, but he is a very honest man which is much better." Harrison, 
Messages, 1 : 315. See post, xviii, n. 2. 

2 See T. C. Pease, The Laws of the Northwest Territory 1788-1800 
{Illinois Historical Collections, 17), xvii-xviii, xxii, on Parsons, Varnum 
and Symmes ; the latter, however, had not been chief -justice of New Jersey, 
but only associate- justice, 1777-1783, B. W. Bond (ed.), The Correspondence 
of John Cleves Symmes, Founder of the Miami Purchase, 6 ; Pease, op. cit., 
xxiii on Turner. In his arguments with the judges St. Clair (who, in addi- 
tion to an excellent general education, had had experience as county judge, 
recorder, and clerk in Pennsylvania — ibid., xvii — certainly appears to good 
advantage, and he held their professional knowledge in low esteem; it 
would seem deservedly so. To be sure he referred to Parsons and Varnum 
as "men who had some eminence in the profession of the law" — legislative 
address to their successors, Symmes and Turner, in St. Clair Papers, 2: 
334, 357. But he wrote later, with reference to the question of securing 
"some person of competent abilities" as attorney-general of the territory 
(at, a salary of $300 or $400) : "I am not a lawyer, but should it happen 
that a Governor may have been bred to that profession, still I think he 
ought to have a responsible law counselor, and it is a misfortune that some 
of our judges (all of them, in fact) are in the same predicament with my- 
self. Even Judge Symmes, though he has been upon the supreme bench 
in Jersey, was not, I believe, a professional man when called to it" — letter 
of May 9, 1793, to Edmund Randolph, St. Clair Papers, 2: 314; cp. 164, 
339, 374. 



xvi ILLINOIS HISTORICAL COLLECTIONS 

have done much of the work of the General Court in the western 
counties. 1 Little tangible evidence remains of his ultimate pro- 
fessional attainments, but his services seem to have been satisfac- 
tory. Judge Griffin was a Virginian, of some elegant accomplish- 
ments and fond of social pleasures, a man of no great force, and 
an intriguer. It is uncertain whether he ever studied law. He 
made no mark in the history of Indiana Territory ; indeed had little 
opportunity, for in 1806 he was appointed to the court of the ter- 
ritory of Michigan. 2 

Some of the men added later to the court were of distinctly 
high quality both in general culture and legal ability. Thomas 
Terry Davis, who succeeded Clarke, served both on the territorial 
court and later as chancellor until his death in 1807. He had held 
public office in Kentucky and represented that state in Congress 
before his removal to Indiana Territory. His advancement may 
be attributed primarily to Harrison's friendship, for there is no 
other evidence of his talents or attainments. 3 Both Waller Taylor, 
who succeeded Griffin, and Benjamin Parke, who followed Davis 
on the court, served until Indiana became a state, and had later 
careers of great distinction. Taylor, a trained lawyer, had served 
in the Virginia legislature, and was later one of Indiana's first 
United States senators. 4 Parke had been for four years attorney- 
general, a representative in the first legislature, and three years 
delegate of the territory in Congress before his appointment to the 
court. After Indiana became a state he served for a year as a 
state circuit judge, and thereafter as the federal district judge 
for Indiana until his death. He was a cultured gentleman, and 
a lawyer of talent, probity, industry, and conscience. Not only 
in the law but also in the cause of education his services to the 
state were outstanding. 5 

The first chancellor (preceding Davis), John Badollet, was a 
Swiss, a friend from boyhood on through life of Gallatin, who 
induced him to remove from Switzerland to this country in 1786 ; 

1 See post, app. notes 2, 3. Vander Burgh is the only member of 
whose services on circuit, records remain in the Illinois country. 

2 Post, app. n. 4. 

3 Post , app. n. 5. 

4 Post, app. n. 6. 

5 Post, app. n. 7. 



INTRODUCTION xvii 

but though we may certainly assume that he possessed superior 
qualities little is known concerning him. Apparently he never 
studied law. 1 The first attorney-general of the territory, preced- 
ing Parke, was John Rice Jones ; 2 and the third (and last of the 
period considered in this volume) was Thomas Randolph. John 
Rice Jones, who played a very prominent part in the legal and 
political history of the time, was a Welshman who came to America 
after studying (it is said) at Oxford. He was practicing law in 
Philadelphia when he had barely attained his majority, and located 
at Vincennes in 1786. For a quarter of a century — first in Vin- 
cennes, then for a dozen years in the Illinois country, then again 
at Vincennes — he was a leading lawyer of the territory. The Re- 
vised Statutes of 1807 are known by his name. In St. Clair County, 
of which (as well as of St. Louis, Missouri) he was the first 
resident attorney, his fluent command of French added to his suc- 
cess and usefulness. By order of one of the St. Clair courts in 
1792 he translated into French the laws of the territory, "for the 
use of the Judges, who do not understand English." 3 He stood 
high for some years in Harrison's confidence and regard, but an 
enmity subsequently arose between them which thwarted the full 
satisfaction of his ambitions, and he abandoned definitively Indiana 
for the Illinois country in 1808, when it was clear that the latter 
(largely owing to him) would soon be an independent territory. 4 
Still later he removed to Louisiana Territory, and became a mem- 
ber of the Supreme Court of Missouri. His talents were not less 
unusual than his education, and were combined with a personality 
of power and distinction. Thomas Randolph 5 was a Virginian 
and graduate of William and Mary, who had studied law and 

1 Post, app. n. 8. 

2 Post, app. n. 10. 

3 Bateman and Selby, Hist, of St. Clair County, 699 (quoting- the 
record, of 1792). He was to deposit the translation "with the clerk of the 
district/' and to receive $100 for his work. See the protest of the French 
judges in 1787 against the election to the Kaskaskia court of American 
colleagues; they could not discuss the issues together, and there was no 
translator capable of explaining the issues and the Virginia statutes. C. W. 
Alvord: Kaskaskia Records (I. H. C, 5), 405-407; Cahokia Records (I. H. 
C.j 2), cxxxiv-cxxxv. 

4 See the discussion of this in the biographical note on Jones, post, app. 
n. 10. 

5 Post, app. n. 11. 



xviii ILLINOIS HISTORICAL COLLECTIONS 

served in the Virginia Assembly. With Davis and Taylor, fellow 
Virginians and close companions of Harrison, he played a briefly 
important part politically, but his merits as a lawyer do not appear. 

Although men of good family, education, and talent have 
never been rarities on the frontier, the above group must never- 
theless be regarded as remarkable. 

Under the government of the first grade provided for the 
Northwest Territory, made applicable to Indiana Territory under 
the first grade, all power, legislative, executive and judicial, was 
concentrated in the governor and judges, and in its employment 
they were responsible only to the federal government. Notwith- 
standing that the liberal guaranties of personal and property rights 
embodied in the Ordinance 1 insured the inhabitants against abuses 
in the exercise of this power, they could not long remain content 
with its existence. In particular, the objections to centralized ap- 
pointive power (by the national government of all the superior 
executive and judicial officers, and by the governor of all subordi- 
nate officers "necessary for the preservation of the peace and good 
order" of the territory) became in the Illinois counties a source of 
discontent steadily accentuated — at least to a small group of men 
who dominated the Illinois country. 

The political spirit of the governing authorities was therefore 
of great importance. Secretary Gibson's conception of the rela- 
tion between government and governed amusingly reveals a simple- 
minded soldier: 2 "There are always some contrary people in all 
walks of life who are hard to manage . . . When the Govern- 

1 Note the bill of rights in the Ordinance — Pease, Lazes (I. H. C. 17V 
127-128. The impropriety of leaving- the construction of the laws to the 
judges who enacted them was evident: it was excused on the ground of 
"necessity" — doubtless, financial: St. Clair Papers, 2: 365. 

2 Letter of May 22. 1807 to Capt. W. Hargrave. on ransrer service — 
to be sure when Indian hostilities were feared. "Anyone who refuses to 
stav in the fort when ordered, arrest them and send them to this post 
TVincennes], under guard. " W. M. Cockrum. Pioneer Historv of Indiana. 
207. Of course when courts were weak there was much truth in Gibson's 
view. So William St. Clair had written of the Illinois country in 1793. 
"Our militia in this country is in a wretched state . . . There has not 
been a review these eighteen months nast, so that it would aonear we have 
no organized srovernment whatever. Our courts are in a denlorable state : 
no order is kept in the interior, and manv times not held." 57. Clair Papers, 
2: 317. 



INTRODUCTION xix 

ment does all that it can to protect its people they must and shall 
obey the rules. This territory is under no law that can force obed- 
ience but the Military and all of its subjects must obey the govern- 
ing rule or be sent out of it" ! Harrison was too politically minded 
to entertain views of such autocratic spice. Harrison's practice 
showed that he approved the provision of the Virginia act of 1778, 
creating the County of Illinois, which had provided for the popular 
election of county officers. 1 His biographer declares that when- 
ever it could be done with propriety he appointed to office "such 
persons as were recommended by a majority of the people." And 
when a judicial appointment proved unpopular he addressed the 
citizens and "stated that the people should have the choice of all 
the officers who were generally elected by popular suffrage in the 
states, although the ordinance for the government of the terri- 
tories, vested the appointing power in the governor alone. He was, 
notwithstanding, willing to receive and consider all petitions pre- 
sented to him, relative to any kind of appointment ; yet in cases of 
judges and officers of that character, after hearing all that could 
be said on the subject, he would reserve the ultimate decision to 
himself." We find the Randolph Court of Quarter Sessions rec- 
ommending men for appointment to that body, and he met their 
desires. 2 Governor St. Clair had refused to countenance even 
suggestions regarding judicial office. 3 With similar pliancy he 
avoided the quarrels over county creations which had given St. 
Clair such trouble. 4 As for the old dispute as to what might be 

1 W. W. Hening, Statutes at Large of Virginia, 9 : 552. 

2 Case in Clark County, 1809. M. Dawson, Historical Narrative of the 
Civil and Military Services of Major-General William H. Harrison, 172. 
The Randolph Court recommended James Morrison, Thomas Todd, and 
John Beaird for their court and the Common Pleas. Court Record 1802-06, 
p. 8, September 1802. He appointed Beaird. 

3 See St. Clair Papers, 2 : 371. 

4 Their creation involved much the same problems as a division of the 
territory ; and in view of their vast size there was physically little difference. 
This explains St. Clair's troubles: see Burnet, Notes, 321-323, 496; St. Clair 
Papers, 1 : 214 ; and, concerning the creation of Wayne County in 1796 — 
of which the present state of Michigan was then part — ibid., 2: 404 et seq. 
His obstinate insistence upon his powers contrasts with Harrison's address 
to the first legislature (1805) : "From the construction which I have put 
upon the ordinance of congress, the erection of new counties will rest with 
the legislature. It is a power, however, which ought to be cautiously used, 
as the advantages produced by it are often illusive or partial, whilst the 
expense is certain and general." Dawson, Harrison, 74. 



xx ILLINOIS HISTORICAL COLLECTIONS 

done under the power to "adopt . . . laws of the original 
states," 1 here again he avoided all controversy and incurred prac- 
tically no criticism. But though Harrison undoubtedly greatly 
checked by his democratic practice the demand for transition to the 
second grade — and in such practice, while expressive of his inher- 
ent democracy, he was clearly partly actuated by political caution — 
he could do no more than delay it. He originally opposed it be- 
cause it might hamper him with a legislature lost to the Federalists ; 
or lost in some combination of members upon the new issues taking 
form in the territory, whose effect upon the political balance was 
still incalculable. His partisans, therefore, regarded the Illinois 
movement as an "intrigue" against the Governor. 2 Similarly, 
after he had forced transition to the second grade, having decided 
that it would increase his political safety, he opposed division — 
certainly upon a balance of benefits and losses, but certainly also 
including in these the possible loss of the legislature to the anti- 
slavery party of the eastern counties when the proslavery party 
of the Illinois country had withdrawn, 3 and doubtless also the con- 
sequent shrinkage in his appointive power. His success in main- 
taining his office (1800-1812) despite these great changes is sig- 
nificant of his political acumen. 

Agitation for transition to representative government began 
in 1801 in the Illinois counties. It was preceded by, and associated 
with, petitions in favor of slavery. A petition for the suspension 
of Article six of the Ordinance of 1787 (which declared that 
"there shall be neither slavery nor involuntary servitude in the 
said territory, otherwise than in punishment of crimes") was sent 
to Congress in 1796 by John Edgar, William Morrison, William 
St. Clair, and John Dumoulin ; but though claiming to speak for 
the people of Randolph and St. Clair they showed no authority. 
In October, 1800, however, a similar petition was forwarded by 

1 Compare Pease, Laws (I. H. C, 17), xx-xxii. xxiv-xxx, 124. 

2 Dunn, Indiana, 322 ; H. J. Webster. "William Henry Harrison's 
Administration of Indiana Territory," Ind. Hist. Soc. Pub., 4 : 203. Benja- 
min Parke, letter of September 5, 1808, in Woollen, Sketches, 3 et seq. 

3 Dunn, Indiana, 322; Webster, Ind. Hist. Soc. Pub., 4: 203-204. 



INTRODUCTION xxi 

270 inhabitants, most of them French. 1 Both asked that the in- 
troduction of slaves be permitted from other states, they to remain 
in bondage during life, but their children born in the territory, to 
become freed at certain ages. It was John Edgar and Robert 
Morrison who stirred in 1801 this demand for transition to the 
second grade of government. It was claimed that nine-tenths of 
the inhabitants approved their petitions, which a great part had 
signed. 2 

This indicated a great change from the earlier attitude of the 
French population. Royalists by tradition, Federalists by ten- 
dency, content with the paternalistic administration vouchsafed 
their ancestors, they were equally content with the centralized rule 
of governor and judges. They had resented the burdens 3 and had 
seemed indifferent to the supposed virtues of popular government. 
It has been emphasized in explanation of their change that under 
the second grade Congress would no longer have a veto upon their 
laws. Dunn's explanation 4 has also been generally accepted : 
that the change was induced by the hope of insuring their slave- 
holding interests through the efforts of a delegate in Congress. 
This was, indeed, illogical — for if Congress would not upon peti- 

1 Army officers who wished to bring slaves into the territory had sent 
two petitions to the legislature of the Northwest Territory in 1799. For 
petition of January 12, 1796 — Amer. State Papers: Pub. Lands, 1: 68-70; 
Annals, 4 Congress, 1 session, 1171 (or Ind. Hist. Soc. Pub., 2: 447-452) ; 
comment in Dunn, Indiana, 283-288. On those of 1799, Dunn, 288-293. For 
that of October 1, 1800 : Ind. Hist. Soc. Pub., 2 : 455-461 ; Annals, 6 Con- 
gress, 735 ; comment, Dunn, op. cit., 297-299. Among the signers were John 
Rice Jones, John Edgar, William and Robert Morrison, Robert McMahon 
(who signed twice), George Fisher, "Bte" Barbeau (doubtless "J. Bte," i. e. 
Jean Baptiste Barbau), James Dunn, and William Kelly of Randolph: 
Shadrach Bond [Sr.], "Js" (doubtless "Jn," i. e. Jean) Dumoulin, J. F. 
Perrey, John Hay, John Hays, William Arundel, and George Atchison 
(who signed twice) of St. Clair. The transcriptions of names as made 
for Dunn, evidently by some one unfamiliar with the Illinois family 
names, contain many errors. The names of various judges of both counties 
are absent. 

2 J. Edgar to St. Clair, April 11, 1801. St. Clair Papers, 2: 533. 

3 Dunn, Indiana, 271. This is the traditional view, which can be sup- 
ported by the opinions of Judge Symmes, General Harmar and John Edgar. 
Sep quotations, post, ccxvi. Inhabitants of Vincennes, chiefly French, pe- 
titioned Congress for a restoration of government of the first grade in the 
Northwest Territory. St. Clair Papers, 2 : 489. 

4 Indiana, 299; Webster, Ind. Hist. Soc. Pub., 4: 198, 203. Mrs. 
Goebel's view— Harrison, 76, 78, 80— is in accord with the writer's ; post, liv. 



xxii ILLINOIS HISTORICAL COLLECTIONS 

tion annul Article six how should a delegate persuade it? But 
since hope despises logic, the hope was clung to until events proved 
its emptiness. As for the other explanation, at least as regards 
slavery there had been evidence that not much protection was to 
be expected from the territorial judges. 1 And in fact the later 
change to legislative government proved fruitful ; for though rep- 
resentation in a legislature, without preponderant population, could 
not guarantee security, it actually did enable the western counties 
to gain their main ends by compromise territorial enactments. Of 
some importance, also, was the imminence in 1801 of the great 
acquisition of Indian lands which was consummated in the follow- 
ing year, 2 for cheap land meant — it was believed — immigration 
and taxes ; and the second stage could be had so soon as the people 
could be induced to risk its expense. And finally, since we know 
that in earlier years the big land speculators of the Illinois country 
had stimulated the fears roused by Article six of the Ordinance 
among the French slaveholders, inducing many to abandon their 
Illinois lands and remove into Louisiana, 3 it is at least possible that 
they were now again stimulating their fears for personal — though 
this time political — ends. 

Harrison's partisans attributed to Robert Morrison the ambi- 
tion to become the first delegate of a new territory. The oppo- 
nents of the movement urged the stagnation of immigration, the 
unlikelihood of Indian cessions, the added expense of a govern- 
ment of the second grade. 4 This last became the decisive argu- 

1 "All the Supreme Judges of the Northwest Territory were men of 
pronounced anti-slavery sentiments." L. Monks, Courts and Lawyers of 
Indiana, 1 : 13. Compare post, cxli-cxliii. 

2 The land westward of the Wabash watershed and between the Kas- 
kaskia River and the Illinois was acquired in 1803, that between the Illinois 
and Wisconsin rivers in 1804, that east of the Wabash watershed in 1805. 
See on the Illinois cessions : Harrison (letter December 22, 1808 from Jeffer- 
son), Messages, 1: 322; Royce, "Indian Land Cessions," 656-657, 664-665; 
Kappler, "Indian Affairs Laws and Treaties," 2 : 65, 74. Indiana cessions : 
Amer. State Papers: Pub. Lands, 3: 461; map in Indiana Magazine of 
History, 12 : 5. 

3 Post, lxxv, n. 2. This does not necessarily assume that they could 
fail to realize, after the United States acquired Louisiana, that they would 
there still be under the same government, and with treaty guarantees less 
strong than those of 1763. They would be part of a population where 
slavery was stronger, political protection more likely. 

4 B. Parke, ante, xx, n. 2. 



INTRODUCTION xxiii 

ment ; Harrison stressed it in an open letter to the people 1 and the 
movement was defeated. 

In 1803, after the acquisition of Louisiana, the Illinois sep- 
aratists conceived the plan of joinder to that territory. The treaty 
with France, it is true, did no more than guarantee their "property" 
to the inhabitants of that colony, as the treaty of 1763 had done for 
the inhabitants of the Illinois country. But the prior laws of the 
colony continued in force, of course, by virtue of the principles of 
international usage ; and this was expressly provided in the funda- 
mental American legislation, beginning with the act of 1804, which 
organized the District of Louisiana. Aside, therefore, from the 
compact theory of the Ordinance (and Congress had in fact by 
mere legislation altered some of its provisions), there could be no 
doubt that annexation would have freed the Illinois country from 
the antislavery clause of that instrument; and at the same time a 
public opinion more unifiedly proslavery than that of the Indiana 
Territory would have given security against later alterations. It 
is therefore remarkable indeed that the reasons advanced in the 
petitions for joinder to the French territory were exclusively po- 
litical, without so much as a reference to slavery. 2 Though shar- 

1 Equally prominent in the later struggle in Michigan : Michigan 
Pioneer and Historical Collections, 8: 596; hid. Mag. of Hist., 4: 141. 
Strangely enough this argument is not even mentioned in such abstracts of 
debates upon the division of 1800 as are preserved in the Annals. See also 
Dunn, Indiana, 301 ; Goebel, Harrison, 76. Parke (Woollen, Sketches, 4) 
says that some estimates of the expense ran from $12,000 to $15,000. His 
own estimate (p. 6) was $3,500 as a maximum. 

2 For the treaty with France (Art. Ill), F. N. Thorpe, Federal and 
State Constitutions, 3 : 1360 ; the act of March 26, 1804, creating the District 
of Louisiana (§ 13), ibid., 1369 — declaring the continuance of prior law until 
modified. The reasons of the petitioners are stated in the Annals — 8 Con- 
gress, 1 session, 489 (October 26, 1803), 555, 623; 8 Congress, 2 session, 
1659-1660 — as being "certain inconveniences and embarrassments" to which 
the petitioners were "subjected, in consequence of their connexion, under the 
same Government, with the eastern extremity of the said Territory." 
Photostatic copies, from the original manuscripts in the files of the House 
of Representatives, are in the Illinois Historical Survey. Mrs. Goebel's 
citation (Harrison, 83 n.) may indicate that only one memorial is now 
preserved. There were two : the one she cites referred to the committee on 
November 9, 1803, signed by 80 inhabitants, primarily of Randolph County 
but in partfrom St. Clair ; and another, signed by 122 inhabitants, primarily 
of St. Clair County but in part from Randolph. The second was tabled 
on October 26, referred on November 3, the report tabled on November 
24 ; the first was referred to the same committee on November 9, the report 
tabled on November 24. The two petitions were almost, if not quite, iden- 



xxiv ILLINOIS HISTORICAL COLLECTIONS 

ing the "universal satisfaction and . . . joy inexpressible" felt 
"throughout the Western Country" over the annexation of Louisi- 
ana, the memorialists saw only a "gloomy and discouraging situa- 
tion" for the Illinois counties if left unconnected with a contiguous 
territory of luxuriant soil, with settlements "united by reciprocal 
interests," enjoying "the benefits to be derived from a good govern- 
ment," and so much greater in population. Unfortunately, their 
argument against a continued connection with the eastern counties 
of Indiana was mainly based upon their superiority in population ! 
— which, were government of the second grade to be adopted, 
would entitle them to four representatives out of seven and three 
councillors out of five, so that "the interests of this part of the 
Territory would lay entirely at their mercy." They deemed "ob- 
vious" the evils to be apprehended from this source. The location 
of the capital at Vincennes concentrated there the interests of the 
officers of government, "directing the whole force of the influence 
attached to their high situations ... to the exclusive aggran- 
dizement of their chosen place of residence." The Illinois country 
was "connected in no one respect by a reciprocity of interests" with 
the eastern counties, but its union with Louisiana would be "ren- 
dered firm by the combination of mutual and reciprocal interests 
and of a mutual confidence." The memorial was a fair summary 
of the arguments of the divisionists — which in reality simply 
boiled down to a desire for self-government. The committee of 
Congress to which these petitions were referred, regarded the in- 
conveniences suffered by the memorialists from their isolated situa- 
tion as merely transient and "common to all infant settlements," 
and discovered no evidence of an ascendancy of the eastern coun- 
ties "other than is consistent with the fundamental principles of a 
republican system of Government." They found no evidence that 
"an uncommon or an ungenerous exercise of the power of such 
majority has taken place — nor that an unusual influence has at- 
tached itself to the seat of Government in said Territory — but that 
the evils stated by said Memorialists are ideal." A union with 



tical. Mrs. Goebel's statement that the petition "stated that a strong par- 
tiality was shown in appointments" {Harrison, 83) is inaccurate: neither 
petition contains any such statement, or implication. 



INTRODUCTION xxv 

Louisiana they thought would be highly injurious, different as 
were the past laws and local attachments of the two territories. 
The reasons offered by the petitioners were certainly not their real 
reasons. As the problem of land titles was* not yet in the field of 
politics, nor that of taxation, personal ambitions, possibly reen- 
forced by hopes for slavery, must have been the chief excitants to 
such designs. 1 

The slavery factor was, of course, always present in the back- 
ground. There was at this same time some agitation simply for 
detachment from Indiana Territory, 2 and in this slavery doubtless 
played a part. Harrison had opposed division, in part, for political 
and personal reasons already referred to. It is evident that by 
concessions to the proslavery party of the Illinois country it might 
have been possible to weaken their pressure for division. It seems 
not unreasonable to assume that the calling of the Vincennes con- 
vention in 1802 (December), to consider the legalizaton of slave 
immigration, must have been associated in Harrison's mind with 
the idea that by recognizing one demand of the malcontents he 
might control the other. But the proslavery party had gained 
nothing by the appeal of this convention to Congress. 

In another way, however, the Illinois country (though against 
the determined opposition of the supposed Illinois party) made a 
great advance ; namely in securing representative government. 
Since Harrison had defeated this in 1801 conditions had greatly 
altered. With the admission of Ohio to statehood the populous 
Gore had been reannexed to> Indiana Territory. Harrison had 
begun the extraordinary activity which in three years cleared of 
Indian titles a fourth of the area of the present state of Indiana. 
The opening of land offices at Vincennes and Kaskaskia in 1804 
promised a rapid growth of population. Accordingly Harrison 

1 Judge Parke says : "Edgar was to be the Governor and R. Morrison 
the secretary, and all the posse were to be amply provided for in this new 
arrangement." See ante, xx, n. 2. Alvord, speaking of the Edgar- 
Morrison "party," apparently even before 1803, truly says : "Besides the 
demand for the introduction of slavery, their platform had two planks : 
opposition to the territorial administration, and Illinois for Illinoisians" — 
Illinois Country, 423. 

2 Woollen, Sketches, 5. 



xxvi ILLINOIS HISTORICAL COLLECTIONS 

ordered the election which determined transition to representative 
government. 1 

Edgar and Robert Morrison now opposed in 1804 what they 
had advocated in 1801. 2 Harrison himself, — who had equally 
changed, but perhaps with better reason — Judge Parke, Henry 
Hurst (clerk of the General Court), James Johnson (judge of the 
Knox Common Pleas), General Washington Johnston (a promi- 
nent lawyer of the territory), Francis Vigo, and John Rice Jones 
were notably active in the eastern counties in favor of the change. 
Harrison attributed the opposition in the western counties to the 
fear of the land speculators that a legislature would impose a land 
tax. Harrison's comments upon land speculators were always 
unfriendly, but there is ample evidence that the underlying reason 
was political. 3 

The total vote on the question of transition to the second stage 
was but 400 (249 in the eastern counties, 142 from Randolph 
and St. Clair), with a majority of 138, almost wholly in Knox, in 
favor of the change. It was approved in Randolph by a vote of 
40 to 21, but disapproved in St. Clair by one of 22 to 59. This 
was assuredly no indication of enthusiasm for representative 
government, either as an end in itself or as a step toward slavery, 
even in the Illinois country. Doubtless the indecision there was 
due to the reasons, already pointed out, that popular government 

1 Ante, xxii, n. 2. Annals, 8 Congress, 1 session, 1286. Proclamation 
August 4, election September 11, 1804— Messages, 1: 106. 

2 Parke ("Woollen, Sketches, 7) says they were its bitterest opponents. 

3 In a letter to Jefferson November 20, 1805 (in Messages, 1: 175), 
when Shadrach Bond Sr., and John Francis Perrey, judges of the St. 
Clair Common Pleas and Quarter Sessions, had been nominated for appoint- 
ment to the Legislative Council, he wrote : "I know nothing against his 
[Perrey's] character excepting that he has been pretty deeply engaged in 
purchasing the land claims in the Illinois Country — Both these gentlemen 
were unfortunately opposed to our going into the second grade of Govern- 
ment — Mr. Bonds opposition was very extraordinary & unexpected — the 
greatest efforts were however made by the land Jobbers to gain him over 
to their interests— & those gentry (some of whom own upwards of 100.000 
acres of land) frightened at the Idea of having a land tax did not hesitate 
to spread any falsehood that was likely to defeat the Measure." The virtue 
of this letter disappears, however, when one notes that Jefferson had earlier 
instructed him (April 28, 1805, ibid., 127) that "land-jobbers are undesirable." 
See app. n. 10 as to Jones. Vigo was one of the largest land operators in 
the Vincennes district, but before this time his claims had passed into other 
hands (sources cited post, lxxxvi, n. 1). In a letter of 1802 he spoke of 



INTRODUCTION xxvii 

was bound to be expensive; and, moreover, the actual gains to 
democratic government in transition to the second grade were, in 
fact, extremely slight. As Salmon P. Chase said, "The judges 
were thenceforth to be confined to purely judicial functions. The 
governor was to retain his appointing power, his general executive 
authority, and to have an absolute negative upon all legislative acts. 
It is difficult to perceive any very strong reasons for preferring this 
form of government to that originally instituted. It is true, the 
people elected persons of their own choice to make laws, and were 
now to be represented by a delegate in the national congress, and, 
so far, there was something gained. But the governor now had 
an absolute negative, which he had not before, and here was some- 
thing lost. The power of the governor, under the new" order, was 
more absolute than under the old. Dependent upon the people for 
nothing, and responsible to them in no- respect, he was subject to no 
control, but that of a public opinion, which might be disregarded 
with impunity." On the other hand its value as a step toward 
slavery was highly speculative. How far this was realized, just 
what part slavery played in the election, it is difficult to determine, 
or even to estimate. As Mr. Esarey says, "the only possible sig- 
nificance" of the vote was "that the distant counties opposed and 
the near ones favored." One must remember that many voters 
lived far from the county seats, and though three days were ordi- 
narily allowed for elections only one was allowed for this. 
Alvord concludes that "there is evidence that the whole affair was 
hurried to completion by the governor in order to confuse his ad- 
versaries." On the other hand, Dearborn County's votes (twenty- 
six) were cast unanimously in the negative, admittedly for anti- 
slavery reasons ; and, so far as it goes this sustains Dunn, 
who somewhat unconvincingly emphasizes the slavery factor in 
the actual election. And though Mr. Esarey has criticised the over- 
emphasis of slavery by Dunn he agrees with him that "a ma- 

"those speculators who infest our country" — Messages, 1 : 36. It is quite 
clear that Harrison always directed to Jefferson opinions calculated to 
please the latter ; see the correspondence in the Messages, passim. Jeffer- 
son's practical political philosophy rested upon confidence in a class of small 
landholders (see C. A. Beard, Economic Origins of Jeffersonian Democracy, 
ch. 14, and pp. 328, 342, 347, 358; compare 25, 125, 157). 



xxviii ILLINOIS HISTORICAL COLLECTIONS 

jority of the people thought that the repeal of the section of the 
Ordinance forbidding slavery would largely increase immigration." 
Harrison wrote that "in all our elections the contest lay between 
those who were in favor of adopting the second grade of govern- 
ment and the admission of negroes and those who were opposed 
to these measures." 1 This is, however, certainly inaccurate with 
respect to the earlier attitude of Harrison himself, of John Edgar, 
and of Robert Morrison, at least. It is evidently too simple a 
formula. 

At all events, whatever else the election might mean, the stat- 
ute positively required its interpretation with respect to the ques- 
tion whether representative government was "the wish of a ma- 
jority of the freeholders." Harrison accepted the vote as the 
"satisfactory evidence" of such desire which the law required. On 
December 5, 1804, he proclaimed the establishment of the new 
regime. 2 

Admit the charge that Harrison fixed the election date so as to 
preclude the participation of Wayne County therein — still, as that 
county was absolutely certain to become within a few months an 
independent territory, his action would seem only justice. Admit 
that days were allowed ordinarily for elections, and only one for 
this election ; 3 still, proponents and opponents had equal oppor- 
tunity. Moreover, Harrison justifiably referred, in his message 
to the first legislature, to "the long and protracted investigation" 
which preceded the adoption of the measure. "Yet" — as one of his 
defenders complained only four years later — "it has been stated ten 

1 Salmon P. Chase (editor), The Statutes of Ohio and of the North- 
zvestem Territory, adopted or enacted from 178S to 1833 inclusive, 27-28 : 
Esarey, History, 1: 161, 173; Alvord, Illinois Country, 424; Dunn. Indiana. 
321-322; Mr. Webster follows Dunn— Ind. Hist. Soc.'Pub., 4: 203; letter to 
Jefferson, June 18, 1805— quoted by Webster, he. cit., 205-206 ; Ind. History 
Bulletin, February, 1924. 

2 Gibson, Exec. Journal, 125. 

3 For the boundaries of Wayne fixed by proclamation of January 14, 
1803, Harrison, Messages. 1 : 68. See the proceedings in Congress, Annals, 
8 Congress, 1 session (Sen.) 16, 26, 29-30 (renort of October 27, 1803), 
73-74, 75, 78, 211, 212; (H. R.) 645, 699, 1589 (report of December 29, 
1803), 941, 1040-1041, 1041-1042. Also 8 Congress, 2 session (Sen.) 20, 21, 
23-24, 25, 26, 31, 32; (H. R.) 862, 869, 871-872; (act of January 11, 1805), 
1659. The counties bore the cost of the election. Post, 140. Doubtless 
Harrison said he was saving them expense. 



INTRODUCTION xxix 

thousand times . . . that the Governor thrust the people of the 
Territory into the second grade against their will." 1 This was 
the cry of the Edgar-Morrison faction, and in this judgment the 
leading historians of Indiana have concurred. 2 

The remaining period, 1805-1809, before Illinois became inde- 
pendent was certainly not one of "small causes and mean reasons." 
They were filled with problems of slavery, territorial division, the 
clearing of land titles, and the encouragement of immigration. It 
would be difficult to find another five years in our state history 
crowded with issues so important. 

These issues, in view of Harrison's original opposition to 
adoption of the second grade, and the fact that he had power to 
convene, prorogue, and dissolve the Assembly and held an abso- 
lute veto, might well have been expected to cause many difficulties. 
Nevertheless the mechanism of government in the representative 
stage worked smoothly. St. Clair's unhappy insistence upon his 
veto power, and a strong hint from the first Legislative Council, 
were enough to save Harrison from repeating in that regard the 
errors of his predecessor. 3 With equal tact he avoided unwel- 

1 Woollen, Sketches, 9; Harrison, Messages, 1: 152. Elections were set 
for January 3. But on January 11 Wayne County became the Territory of 
Michigan. As the Ordinance required a minimum of seven representatives, 
and as one was lost with Wayne County and another through the invalidity 
of the St. Clair election, Harrison proclaimed (April 18, 1805, Exec. 
Journal, 127) a new election in St. Clair for two representatives. 

2 Dunn, Indiana, 324 ; Esarey, in Harrison, Messages, 1 : 106 n. ; the 
charge was emphasized in two Illinois petitions prepared in 1805, Dunn, 
"Slavery Petitions and Papers," Ind. Hist. Soc. Pub., 2: 486-487, 499. In 
the former (signed by 354 persons — post, xxxviii, n. 2) they declared : (1) that 
Harrison acted upon an application which, they believed, had been confined 
to inhabitants of Knox; (2) that "the elections in the counties of Randolph 
and St. Clair were but very partially attended; a majority, however, of 
those freeholders who did attend, gave their suffrages against the meas- 
ure . . . From this mode of procedure, incompetent to the object con- 
templated, from this slight and partial expression of the public sentiments 
upon this important subject, the executive was satisfied that there was a 
majority of the freeholders in the territory in favor of entering into the 
second grade of government" (sarcasm of the original). The second point 
treats the Illinois country as a unit, ignoring the variant county votes ; 
Justifiably. As to the first, the entry in the Executive Journal (124), reads, 
simply : "Sundry petitions have been received by the Governor from persons 
Styling themselves Freeholders of the Indiana Territory," etc. 

3 Judges Symmes and Turner protested against St. Clair's use of a 
veto, the power not being expressly mentioned in the Ordinance — St. Clair 



xxx ILLINOIS HISTORICAL COLLECTIONS 

come uses of his power of prorogation. "The Territorial form of 
government" — said he — "possesses some traits which are not alto- 
gether reconcilable with republican principles." And again, a few 
days later, more placatingly still : "It has ever been my wish . . . 
to conceal those rougher features of our constitution which are so 
justly offensive to republican delicacy, and which nothing but the 
infancy of our political state renders tolerable." As so often hap- 
pens, however, if one analyzes Harrison's virtues, so here one 
suspects politics. For both of these conciliatory declarations were 
made after the separation of Illinois had left Harrison on the de- 
fensive. 1 He did veto laws in 1808, and in consequence thereof 
the Assembly instructed the delegate of the territory in Congress 
to procure a repeal of the absolute veto power, as also of the 
powers to prorogue and dissolve the Assembly, giving him only 
the powers held by the President of the United States. 2 A bill 
was offered to eliminate the powers of proroguing or dissolving 
the Assembly — leaving the veto still absolute — but was indefinitely 
postponed. 3 

A tilt with the Assembly, on its face rather amusing than im- 
portant, over a vacancy in the Council, was the only case of fric- 
tion. It marked, in fact, the beginning of Harrison's political 
decline, for he was defeated by the same combination of anti- 
slavery opponents of the eastern counties and prodivision enemies 
of the Illinois country which were soon to force the division of 

1 The first in his annual message to the third General Assembly, 
October 17, 1809; the second to the irregular Assembly of October 21 — 
Messages, 1 : 381. 385. 

2 Ibid., 1: 319, 320. Mr. Webster. Ind. Hist. Soc. Pub., 4: 243-244, 
quotes the official journal; the petition (of October 11, 1808) is not in 
pr'nt, but a photostatic copy of the original MS in the House files is in the 
Illinois Historical Survey. Compare post, xxxii-iii and xxxiii, n. 1, on the 
other points of the petition. In the attack on Harrison in the petition of 
the Edgar faction of 1807-1808 one charge indicates that he vetoed other bills 
than those here cited — post, clxviii. And cp. Webster, Ind. Hist. Soc. Pub., 
4: 238. 

8 For the proceedings in Congress : Annals, 10 Congress, 1 session, 
1619, 1648 ; 2 session, 487, 492-494, 501-510. 

Papers, 2: 365. Of thirty-seven acts passed by the General Assembly in 
1799 St. Clair vetoed eleven, of which six related to new counties (ante, 
xix, n. 4). See the comments in Burnet, Notes, 376. For the Council's 
hint to Harrison see his Messages, 1 : 160. 



INTRODUCTION xxxi 

the territory and leave Harrison at the mercy of the antislavery 
counties. 1 

John Hay, Shadrach Bond "Sr.," and his nephew, Shadrach 
Bond "Jr.," successively represented St. Clair County, and Pierre 
Menard and George Fisher represented Randolph, in the Legisla- 
tive Council. George Fisher and Rice Jones (son of John Rice 
Jones) were the successive representatives of Randolph, and Wil- 
liam Biggs with Shadrach Bond Jr., and later (vice Bond) with 
John Messinger, 2 were those of St. Clair, in the House of Rep- 
resentatives. Some of these legislators, like their fellows in other 
branches of the government, were men of very good ability. Some 
had large business interests. In view of the small salaries 3 re- 
ceived it is rather surprising that practically all officers of the 
territory must fairly be counted among its leading citizens. 

The property qualifications required by the Ordinance for 
voting or holding elective office (a freehold in fifty and a fee- 
simple in 200 acres, respectively) might seem easily satisfied. It 
would have been unreasonable, however, among men to whom land 
had so long seemed like the air, to expect conceptions of definite 
"title." In truth such was the state of land titles that the actual 
enforcement of such qualifications would have proved quite im- 
practicable. No election, certainly, could have been held for years 
in the Illinois counties, and many high offices would have been 

1 See Harrison, Messages,. 1: 311, 312-315, and discussion in Goebel, 
Harrison, 83-88. 

2 For John Hay and the two Bonds see post, app. notes 17, 18, 19. 
On Fisher and Menard, post, app. notes 22, 23. See post, app. n. 24, for 
biography of Jones and the political events connected with his death. On 
Biggs and Messinger, post, app. notes 20, 21. 

3 For salaries of legislators and subordinate executive officers see 
index. The federal salaries of 1802 were : governor's $2,000, secretary's 
$750, judges' $800. By act of 1807 the salary of territorial judges was set 
at $1,200, and by another that of secretaries was made $1,000. Amer. State 
Papers: Misc. 1: 305; Annals, 10 Congress, 1 session, (H. R.) 816, 920, 
950, (Sen.) 33, 34, 38, 43. Congress had created in 1786 a northern and a 
southern district for the administration of Indian affairs; and St. Clair 
was the first superintendent of the northern (all north of the Ohio and 
west of the Hudson) following 1790. The responsibility was divided among 
the various territorial governors beginning in 1802; Harrison thenceforth 
signing himself "Superintendent of Indian Affairs" and "Commissioner 
Plenipotentiary of the United States." Alvord, Illinois Country, 412-413. 
Harrison received $800 as Superintendent of Indian affairs and $6 per diem 
when acting as Commissioner in negotiating treaties. He collected no li- 



xxxii ILLINOIS HISTORICAL COLLECTIONS 

vacant. 1 A demand for wider suffrage began under the first 
grade, and this was one of the petitions of the Vincennes conven- 
tion. A committee of Congress reported adversely in 1803 ; but 
another recommended in 1804 manhood suffrage, subject only to 
payment of a territorial tax before election. A third committee 
recommended in 1806 (the territorial legislature having meanwhile 
petitioned for an extension) the abrogation of all property qualifi- 
cations whatsoever. 2 This seemed too liberal. By an act of 1808 
the right to vote for representatives in the General Assembly was 
given to every free white male adult who should have been for one 
year a citizen of the United States and resident of the territory, 
and who should have "a legal or equitable title" to fifty acres of 
land, or who might "become" a purchaser from the United States 
of fifty acres, or should hold in his own right a town lot worth 
$100. 3 This same year both houses of the legislature petitioned 

1 Pease, Lazvs (I. H. C, 17), 125-126. It fixed the qualification for 
councillors at a freehold of 500 acres. See statement by Governor Hull and 
Judge Woodward regarding the similar suffrage requirements in Michigan, 
Amer. State Papers: Pub. Lands, 1 : 249. The two squatter petitions of 
December 2 and 3, 1805, cited post, lxxvi, n. 4, include the names of 
Shadrach Bond Jr., James Lemen, William and Uel Whiteside, David 
Badgley, James Bankson, and Thomas Kirkpatrick — all of them county 
judges of St. Clair; and also the names of various other officers and leading 
citizens, including George Blair (one-time sheriff), James Gilbreath (post, 
app. n. 63), and John Messinger. 

2 For the Vincennes resolutions, Ind. Hist. Soc. Pub., 2 : 461-468 ; 
the legislative memorial, of August 19, 1805, presented in Congress on 
December 18, 1805 — ibid., 478. The Congressional proceedings are in the 
Annals, 7 Congress, 2 session, (H. R.) 1353-1354— rep. of March 2, 1803; 8 
Congress, 1 session (H. R.) 1023-1024— February 17, 1804; 9 Congress, 1 
session (H. R.) 293— December 18, 1805; 466-468— February 14, 1806. 

s Annals, 10 Congress, 1 session (H. R.) 1434, 1463, 1615, 1617, (Sen.) 
129, 131, 132; (the act of February 26, 1808), 2834. These qualifications 
were more liberal as to residence than those for suffrage in territorial 
elections under the law of 1807 — post, 175, 393, 570. A large proportion 
of the inhabitants of the territory, of course, were squatters. In one settle- 
ment, for example, there were 22 squatters and only 11 land claimants: 
Amer. State Papers: Pub. Lands, 1 : 591. 



censes for trade with the Indians (which, he alleged, had yielded St. Clair 
$1,000 annually). See correspondence with Jefferson, Ind. Hist. Soc. Pub., 
4: 288-289; U. S. Stat, at Large, 2: 58, or Annals, 6 Congress, 1 session, 
1499 — act creating Indiana Territory. He also superintended sales of the 
public lands (act of May 18, 1796. U. S. Stat, at Large. 1; 467. 468; 
Annals, 4 Congress, 2 session, 2908), and received $5 per diem "whilst 
engaged in that business" (act of May 10, 1800 — U. S. Stat, at Large, 2: 78; 
Annals, 6 Congress, 1 session, 1521). 



INTRODUCTION xxxiii 

Congress to make that body elective by voters qualified to vote for 
representatives, and likewise to vest in them the power to elect the 
delegates to Congress. Both of these changes, "congenial" — in the 
Council's words — "to the rights or interests of the Citizens of a 
free Government," were introduced by an act of 1809. The same 
act also transferred from the governor to the Assembly the power 
to apportion representatives among the counties. The term of 
councillors was made four years. 1 

The election statutes of the territory are elaborate, but few 
election records are preserved in Randolph and St. Clair. It is 
quite evident that elections were held with nonchalant disregard 
for legal formalities. December 11, 1802 was the date set by 
proclamation for the election of delegates to the Vincennes conven- 
tion ; the election was apparently held in St. Clair County on De- 
cember 7. The exceedingly important special elections of 1808 to 
elect representatives to succeed Shadrach Bond Jr. and George 
Fisher (promoted to the Legislative Council) were set for July 
25 ; but the Randolph election seems to have been held on August 
13. 2 The elections of representatives in the first General Assem- 
bly of the territory were ordered held on January 3, 1805, and 
Governor Harrison later referred to its having been held on that 

1 The resolutions of the House of Representatives were of October 
11, 1808. On the prayers of this petition relating to other matters than 
suffrage see ante, xxx, n. 2. Those of the Council seem to have been 
passed on October 17, 1808 (Webster, Ind. Hist. Soc. Pub., 4: 237-238); 
and those of the House apparently still earlier (Jesse B. Thomas, speaker, 
forwarded copy on October 12) but the official copies, for both houses, 
were signed and attested and forwarded on October 26. Photostatic copies 
from the originals in the files of the House are in the Illinois Historical 
Survey. For the proceedings in Congress see the Annals, 10 Congress, 2 
session, (H. R.) 501, 856, 909, 1433. 1434; (Sen.) 20, 388, 410, 411, 412; 
(H. R.) — petition from citizens of Harrison County — 1329; (act of Feb- 
ruary 27, 1809), 1821. A petition of the House of Representatives of 1809 
is also cited in Goebel, Harrison, 80. All the legislation cited in this and 
the preceding note was in response to representations from the territorial 
legislature, and due to the activity of the territory's delegate. It certainly 
shows no indifference to self-government. As regards purely local govern- 
ment itis true, however, as has been pointed out by the editors of Gibson's 
Executive Journal (78), that the Assembly, even after both branches be- 
came elective, showed no inclination to extend the principle of local self- 
government. (On p. 71 they misdate the statute last cited, confusing it 
with the law affecting Mississippi Territory) . 

2 Gibson, Exec. Journal, 113, 147; Brink, McDonough, Hist, of St. 
Clair County, 71, 73: post, xlviii, n. 3; li, n. 1. 



xxxiv ILLINOIS HISTORICAL COLLECTIONS 

date in St. Clair County ; but in fact it was apparently held on the 
5th. It was broken up by "disorderly citizens" — a mob of oppo- 
nents of the second grade of government; and being declared null 
and void by the Assembly a second election was ordered on May 
20. This seems to have been held on May 21. No doubt there 
were other such examples. Of course, in the last two cases the 
different dates were probably due to the fact that elections habitu- 
ally lasted two or three days. 1 Mr. Esarey says that "all through 
this period, from 1804 to 1811, there was outspoken hostility toward 
the control of the elections. . . . The common pleas justices really 
controlled the sheriff, but, as the sheriff did the actual work, he got 
all the blame. The justices in turn were controlled largely by the 
tavern keepers whom they created. The influential politicians then 

1 Post, 651-652; Gibson, op. cit., 125, 126-127; Brink, McDonough, 
Hist, of St. Clair County, 71, 72; Dunn, Indiana^ 325. Shadrach Bond Sr. 
and William Biggs were the successful candidates. Information regarding 
other elections than those mentioned in the text is limited. See letter to 
St. Clair, October 20, 1800, on a stormy election in Detroit, St. Clair Papers, 
2 : 499 : "Many artifices have been used, and many promises made." Mc- 
Donough, Hist, of Randolph, Monroe, and Perry Counties, 102, states that 
no election records of Randolph between 1795 and 1809 were then (1883) 
discoverable, nor have any been now found. For elections in St. Clair, 
records apparently existed in 1881 — Brink, McDonough, Hist, of St. Clair 
County, 70, 71, 73 ; but these have not been sought in connection with the 
present volume. According to the latter history, at an election held January 
5, 1799 to elect a representative in the General Assembly, Shadrach Bond 
Sr. received 113 votes (54 American, 58 French, and 1 German name) and 
Isaac Darneille 72 (36 American, 33 French, 2 German, and 1 Irish name). 
May Allinson classifies the voters differently : 58 "old French inhabitants," 
25 "recent French settlers," 102 Americans. 111. Hist. Soc, Trans. (1907), 
292. The votes cast in the election held — supposedly on September 11, 
1804, the day set by the Governor — to pass on adoption of representative 
government are given ante, xxvi. In 1806 Shadrach Bond Jr. was elected 
a representative to fill the vacancy created in the lower house when his 
uncle was appointed to the Council ; but the proclamation for this election 
(if a special one) is not to be found in Harrison's Messages, nor does its 
date seem elsewhere to be found. William Biggs was reelected to the lower 
house in 1807. The summer elections of 1808 are discussed post, 1. In 
the national House of Representatives, December 15, 1808 {Annals, 10 
Congress, 2 session, 857), Eppes presented "certain returns or state- 
ments" regarding the number of free males and votes at elections in Ran- 
dolph and St. Clair, and "depositions of sundry persons . . . relative 
thereto" ; for these documents — so far at least as they are still existent — 
see post xlviii, n. 3 (end) ; li, n. 1. Elections were viva voce: see 
Pease, Laws (I. H. C, 17), 410-411; post, 393, § 4. Also Burnet, Notes, 
323 ; I have noted no contemporary statement on Indiana Territory. 



INTRODUCTION xxxv 

were the sheriffs, justices and tavern keepers." 1 An act of the 
second legislature provided that judges of the Common Pleas 
should no longer act as judges of election; limited elections to one 
day, to be held in all townships simultaneously; and forbade 
"repeating." 2 

The first legislature of the territory made ineligible for elec- 
tion to the Assembly any person "holding a commission during 
pleasure, directly," under the United States or the territory, ex- 
cepting justices of the peace and militia officers. 3 Multiple office- 
holding (inescapable in these early days when competent men were 
not abundant) continued, however, to characterize generally the 
judicial and administrative branches of the government. 

The early proslavery petitions from the Illinois counties have 
already been referred to. The legalistic arguments in favor of 
slavery were rather weak: slavery had existed for generations 
under the pre-American regimes ; George Rogers Clark had con- 
quered the territory for Virginia; and Congress could not by the 
Ordinance of 1787 abolish slavery in the territory because the 
Treaty of 1763 and the Virginia cession of 1784 had guaranteed 
to the inhabitants of these lands their property. Such arguments 
did service until in 1824 the question was, for Illinois, forever 
settled. In fact the treaty of 1763 did no more than grant to 
former French subjects the privilege of either removing with their 
property or selling it to British subjects ; and that of 1783 con- 
tained no reference to the western country. 4 Congress was there- 

1 Esarey, History, 1 : 176. He refers to Indiana, but as the system 
was the same in the Illinois country so doubtless were the results and com- 
plaints. There was no newspaper, as there was at Vincennes. In 1811 the 
Indiana legislature petitioned for popular election of sheriffs (Goebel, 
Harrison, 80). 

2 Law of September 16, 1807, §§ 5, 6 — post, 572. It is not clear what 
was gained by entrusting to a deputy sheriff plus a justice of the peace or a 
freeholder, by him selected, the duty formerly exercised by a judge. 

3 Law of December 4, 1806, § 3 — post, 175. On multiple, office-holding 
compare Esarey, History, 1 : 156 ; also the biographical notes at the end of 
this introduction. 

4 It is evident that even if the treaty of 1763 were interpreted as 
recognizing as "property" what had theretofore been so considered, and 
even if the provision had been that the French inhabitants might remain 
"with their property," this would not have bound the government for the 
future. On the other hand the Virginia cession of 1784 (see post, ccxviii, 
n. 1) did guarantee them "their possessions and titles"; but the Ordinance 



xxxvi ILLINOIS HISTORICAL COLLECTIONS 

fore clearly free to abolish slavery, aside from the argument that 
abolition was illegal without consultation of the inhabitants affected 
(an argument by no means overlooked in the early petitions). 
Indeed, the Ordinance itself, if literally interpreted, had abolished 
slavery — leaving Congress nothing to do but give legislative effect 
to the abolition. That a literal interpretation was not to be applied 
was at first apparent to no one. The contrary construction was 
simply silently adopted by Congress. It will be noted later that at 
least one of the judges of the territory was seemingly of a contrary 
view. The literal construction was apparently assumed by every- 
one, at first, in the Illinois country; and it ultimately prevailed in 
the courts. 1 

The extralegal arguments appeared in 1796 much as they 
persisted down to 1861. "Your petitioners" — said Edgar and his 
fellows to Congress — "do not wish to increase the number of slaves 
already in the dominions of the United States ; all they hope for 
or desire is, that they may be permitted to introduce from any of 
the United States such persons, and such only, as by the laws of 
such States are slaves therein." Article six — they said — was 
"contrary not only to the interest, but almost to the existence of 
the country they inhabit, where laborers cannot be procured to 
assist in cultivating the grounds under one dollar per day, exclusive 
of washing, lodging, and boarding; and where every kind of 

1 Post, lxxv, n. 2. See E. B. Washburne, Skctcli of Edward Coles, 
70. On the doubts of St. Clair, Tardiveau, and Hamtramck in 1788-1789 
regarding the effect of the clause, see Alvord, Kaskaskia Records (J. H. C, 
5), 488, 493, 503, 508-509; St. Clair Papers, 2: 117-120. On doubts still 
persistent in 1793, ibid., 318-319. Various courts ultimately held slavery 
illegal under the Ordinance: Jarrot v. Jarrot (1845), 7 111. 1; Merry v. 
Chexnaider, 20 Martin (La.) 699; Winnev v. Whitesides. 1 Mo. 472; Merrv 
v. Tiffin & Menard, 1 Mo. 725; Menard V. Aspasia, 5 Peters (U. S.) 510. 
Like decisions were made by other courts under constitutions containing 
provisions similar to that of the Ordinance of 1787, or much more general 
declarations, merely, of "equality": Harry v. Decker, Walker (Miss.) 36; 
Spotts v. Gillaspie, 6 Rand. (Va.), 566; Commonwealth v. Aves, 18 Pick. 
(Mass.) 210. 

of 1787 did not. Clearly Virginia might (and did) renounce under the 
Ordinance the conditions set in her deed of cession. And various state 
courts eventually held (next note) that that instrument did abolish slavery. 
The statement is inaccurate that "the Illinois people were protected in 
their land titles by the treaty of peace of 1763, that of 1783, and by the 
cession of Virginia in 1784" — Alvord, Illinois Country, 417 n. 



INTRODUCTION xxxvii 

tradesmen are paid from a dollar and a half to two dollars per day ; 
neither is there, at these exorbitant prices, a sufficiency of hands 
to be got for the exigencies of the inhabitants, who, attached to 
their native soil, have rather chose to encounter these and many 
other difficulties, than, by avoiding them, remove to the Spanish 
dominions where slavery is permitted, and consequently the price 
of labor much lower.'" 1 

In November 1802 Harrison ordered elections for a conven- 
tion to consider the admission of slavery. The delegates from St. 
Clair were J. F. Perrey, Shadrach Bond Sr. and John Moredock ; 
those from Randolph were Robert Morrison, Pierre Menard, and 
Robert Reynolds. The resolutions and petition of this convention 2 
in favor of temporarily suspending the antislavery article of the 
Ordinance were before Congress for several years. A strong ad- 
verse report by John Randolph of Virginia, then the Republican 
leader of the House, was made early in 1803. 3 By recommitment 
a contrary report was secured a year later. 4 In the interim, how- 
ever, another proslavery petition had been received from "sundry 
inhabitants" of the territory; 5 and the Governor and judges, by a 
statute which in form merely regulated the relation to their masters 
of "negroes and mulattoes (and other persons not being citizens 
of the United States of America) " brought into the territory, 6 had 
established a system of servitude that was substantially equivalent 
to slavery. For this citizens of Clark County had promptly at- 

1 Compare post, clxxvi, n. 5 ; ante, xxi, n. 1. This argument that 
diffusion would weaken slavery appears in a letter of Barthelemi Tar- 
diveau written in 1789 to Governor St. Clair, St. Clair Papers, 2: 119-120 n. 

2 Congressional proceedings in Annals, 7 Congress, 2 session, 473 
(February 8, 1803), and as further indicated in the following notes. Proc- 
lamation, November 22, election set for December 11, meeting set for De- 
cember 20-28. The proclamation, resolutions and petitions, and some of 
the related documents, are reprinted in Harrison, Messages, 1 : 60-67, 73-76, 
91-93, 187-190. Collected also by Dunn in Ind. Hist. Soc. Pub., 2: 461-476, 
494-497. 

3 March 2, 1803 — that the growth of Ohio clearly showed that slave 
labor was not necessary for the settlement of that region, and that to grant 
the prayer would be highly inexpedient and dangerous. Annals, 7 Congress, 
2 session, 473, 1353; Amer. State Papers: Pub. Lands, 1: 160. 

4 February 17, 1804, by Caesar Rodney's committee — Annals, 8 Con- 
gress, 1 session, 1023 ; Amer. State Papers: Misc. 1 : 387. 

5 Annals, 8 Congress, 1 session (H. R.) 783— December 20, 1803. 
This petition seems to be nowhere in print. 

6 Act of September 22, 1803, post, 42. 



xxxviii ILLINOIS HISTORICAL COLLECTIONS 

tacked the Governor in another petition in which they charged that 
his principles were "repugnant to Republicanism," and prayed the 
appointment of another governor, with principles "of liberty" and 
"more congenial with those of the people." This was the first 
declaration of antislavery sentiment. 1 

Although the influence of the slavery issue was certainly given 
excessive weight by Dunn in his consideration of the advance 
to government of the second grade, legislative declarations 
were of course immediately utilized as official expressions of the 
popular will. Sometime in 1805 an elaborate petition from the 
inhabitants of Randolph and St. Clair signed by some three hun- 
dred and fifty names was forwarded to Congress — by far the most 
representative in its signatures of all those presented on the sub- 
jects of slavery or division. It prayed that Article six of the 
Ordinance might be "so modified as to admit of slavery . . . either 
unconditional, or under such restrictions or limitations" as Congress 
might see fit to impose. 2 With this there was presented to Con- 
gress a petition, of August 19, 1805, by seven members of the 
Legislature (constituting a majority of each house) who submitted 
"the propriety" of the introduction of slaves "upon principles of 
Justice and policy — Justice in relation to slaves and policy as it 
regards the Southern states." That dispersal would increase the 
comforts of plantation slaves by their transfer to small farms in 
a land of plenty and increase the tranquillity of states where the 
negro population was disquietingly dense, and that it offered "the 
only means by which a gradual emancipation can ever be effected," 

1 Petition of February 1803, Goebel, Harrison, 78. Presumably this 
was received by Congress, but there is no record in the Annals of its pre- 
sentation or commitment. Harrison was reappointed on February 8, 1803, 
ibid., 56. This petition, also, seems to be nowhere in print. 

2 Printed by Dunn, Ind. Hist. Soc. Pub., 2: 483-492. _ The Randolph 
signers included John Edgar, William and Robert Morrison (and three 
other Morrisons), John and Parker Grosvenor, James Edgar. James Gil- 
breath, Miles Hotchkiss, William Kelly, John Reynolds, William Wilson, 
Robert Robinson, Henry Jones, John and Henry O'Hara; those from St. 
Clair included William Arundel, Shadrach Bond (Sr. - ), John Dumoulin, 
John Francis Perrey, Antoine Girardin, William and George Biggs, Wil- 
liam Atcheson, George Atchison, John Hay, John Hays, John Moredock, 
and seven of the Whiteside family. There are 354 names, but at least one 
of them is a duplicate. As the signatures are certified by Robert Rey- 
nolds there were probably irregularities. One name is "A. Whyskey." 



INTRODUCTION xxxix 

were philanthropic arguments which did valiant service in the 
years following. It was always assumed that "the population 
west of the Ohio must chiefly be derived from the Southern and 
Western States." 1 The inaccuracy of this assumption was 
to shatter the hopes of the proslavery party. Another memorial 
soon followed, which purported to be the work of a convention of 
citizens "appointed to form a Committee from the Several Town- 
ships in the Counties of St. Clair and Randolph, to take into Con- 
sideration and Represent to the General Government the Griev- 
ances of these Counties, the 25th day of November, 1805." Re- 
markably enough, however, the minutes of the committee con- 
demned the statute of 1805 by which the territorial legislature 
authorized slave immigration "and involuntary servitude for a 
term of years," a violation of the Ordinance to which they declared 
they would never consent, notwithstanding they were persuaded 
that it would stimulate the settlement of the territory; whereas 
the memorial to Congress which purported to be their handiwork 
pronounced slavery a necessity and prayed its legalization. Aside 
from this there are other details which discredit it as a reliable 
expression of general opinion. 2 All three of these petitions were 

1 Printed by Dunn, Ind. Hist. Soc. Pub., 2 : 476-483. 

2 This memorial (which has only twenty signatures) pronounced 
slavery an evil, but one "immovably established," which should therefore 
be converted, "if possible, to some use" ; repeated the allegation of the 
petition of 1796 that in the Illinois country "among whites health and labor 
are almost incompatible" ; and suggested that the legalization of slavery 
"would probably bring back the principal settlers of Upper Louisiana, 
since they have been driven from home [Illinois] by the fear of losing their 
servants." Printed ibid., 498-502; a photostatic copy of the original sig- 
natures is in the 111. Hist. Survey. The "minutes" order a memorial to "be 
prepared" ; in the next paragraph refer to "reasons stated in the Memorial 
signed" ; and at the end order that the memorial "now before this Committee 
be . . . signed." Despite the condemnation of the territorial statute, 
they stated : "When Congress shall deem a Change of the Ordinance ex- 
pedient, they will Cheerfully agree to the measure." Ibid., 503-505. It is 
possible that these inconsistencies were due to a desire to secure the joinder 
of James Lemen, who appears as a member of the Committee and— despite 
his later family-canonization as an antislavery apostle — also apparently 
signed the memorial (the only other signature of his name in the petitions 
of the time is an obvious forgery, whatever this may be). See W. C. 
MacNaul, The Jefferson-Lemen Compact (1915), 29-30, notes under 1805- 
1806. The signature of Robert Lemen appears to the proslavery petition of 
October 1, 1800, Ind. Hist. Soc. Pub., 2: 460. It may be noted that the 
signatures to all the petitions show clearly that either friend signed for 



xl ILLINOIS HISTORICAL COLLECTIONS 

considered by a committee of the House which again reported, in 
1806, in favor of suspending the Ordinance's prohibition. 1 There 
was a difference in detail between this report and that of 1804. 
The earlier report, though recommending the suspension of Ar- 
ticle six to permit of the interstate migration of slaves, provided 
that their descendants should become free automatically at a certain 
age ; the later report omitted this ameliorative feature. 

New and unanimous resolutions of both houses of the legis- 
lature, praying the suspension of the sixth article of the Ordinance 
for ten years, and repeating the arguments advanced in those of 
1805, were forwarded late in 1806, 2 and upon this a third favor- 
able report in the House of Representatives (by a committee of 
which Benjamin Parke was chairman) was made early in 1807. 3 
Both documents were admirably succinct statements of the pro- 

1 Some memorial from the inhabitants of Indiana Territory and a 
petition of the legislature were committed on December 18, 1805 — Annals, 
9 Congress, 1 session, (H. R.) 293. The original of the first of the above 
petitions is indorsed as committed on December 18, and the third as com- 
mitted on January 17, 1806 (Ind. Hist. Soc. Pub., 2: 491, 502), but the 
description in the Annals, 342, clearly refers to the first petition as com- 
mitted January 17, 1806. The error is probably in the Annals. The Com- 
mittee's report, of February 14, 1806 (by Garnett), is in the Annals, 
9 Congress, 1 session, (H. R.) 466-468. the Amcr. State Papers: Misc., 1 : 
450-451, and Harrison, Messages, 1: 187-190. 

2 They were forwarded by Harrison on December 20, 1806, and were 
received in Congress on January 21 (Senate) and 20 (H. R.). Annals, 
9 Congress, 2 session, 37-38, 375-376. The memorial is printed in Amer. 
State Papers: Misc., 1 : 467 ; Ind. Hist. Soc. Pub., 2 : 507-509. They deemed 
that the territory was deserving of indulgence by Congress because in 1787 
slaves were "generally" held by its citizens, amounting to half the present 
population of the territory. See post, xli, n. 2. 

3 February 12, 1807, Annals, 9 Congress, 2 session, 482-483 ; Amer. 
State Papers: Misc.. 1: 477-478; Ind. Hist. Soc. Pub., 2: 509-510; Harrison, 
Messages, 1 : 202-203. The report was referred to the Committee of the 
Whole {Annals, loc. cit., 483), and there the matter ended. 

friends, and one member of a family for others or there is an abundance of 
forgery. Dozens of errors occur in the transcription of names as printed 
by Dunn. In an antidivision petition of 1807 (post, xlvi, n. 1) signed 
among others by five judges or former judges of Randolph County, it is 
said of this "sham convention" that its "presumptious proceedings . . . 
turns the name convention into contempt and ridicule . . . No election 
was holden in Mitchi Township, nor that of Priara du Rocher — in Kas- 
kaskia there was a sham election of a few persons, it is believed the Dep- 
uties chosen comprised one half of those present & indeed of those who 
had any notice of it." The conventionists replied (post, xlvi, n. 2) that 
their memorial "was duly authorised by the Voice of the People, taken by 
Vote in most if not all of the Towships." 



INTRODUCTION xli 

slavery arguments. They marked the high tide of the proslavery 
effort, but all these reports were of no avail. 

Still another petition by the legislature followed late in 1807, 
asking for suspension of Article six of the Ordinance "for a given 
number of years." 1 But a great change suddenly became apparent 
in the situation. Up to this time only petitions — public or private — 
favorable to slave immigration, with the single exception above 
noted, had been received. But in October 1807 a second protest 
was received against slavery from Clark County. This remon- 
strance declared that the clause of the petition of the Vincennes 
convention (1802) regarding slavery was decidedly opposed by 
the representatives of all the territory east of Vincennes ; that the 
memorial presented to Congress in 1805, allegedly the voice of a 
majority of each house of the legislature, was in fact rejected in 
the lower house; so that those of each house who joined therein 
did so only as private citizens ; that the legislative petition of 1807 
had been passed in the Council when but three members were pres- 
ent; and that it was "certainly doubtful" whether a majority of 
the territory's inhabitants were proslavery. These allegations 
gave great weight to their very measured suggestion that in view 
of the great movement of immigration into the territory, including 
many settlers of antislavery convictions, they felt "satisfied" that 
Congress would suspend legislation until, upon admission to state- 
hood, the inhabitants might determine the matter for themselves. 
This remarkable memorial brushed aside the sophistry of the Edgar 
petition with an allegation of the indisputable facts that even in 
the slave states slavery was very generally regarded only as an 
inescapable evil, and that many immigrants into Indiana Territory 
were leaving such states to escape slavery. 2 The petition gave 

1 Voted September 19, 1807. Amer. State Papers: Misc., 1: 484-485; 
Ind. Hist. Soc. Pub., 2: 515-517; Harrison, Messages, 1: 253-255. Echoing 
the old arguments, it points to Kentucky and Tennessee as evidence that 
slaves could never so increase as to endanger Indiana Territory. See the 
next note. 

2 Annals, 10 Congress, 1 session (Sen.), 26-27; Amer. State Papers: 
Misc., 1: 485-486; Ind. Hist. Soc Pub., 2: 518-520; Harrison, Messages, 1: 
263-266. According to the petitioners "a number of citizens thought proper 
to sign" the memorial of 1805, "and, amongst the rest, the Speaker of the 
House of Representatives and the President of the Council, (though the 
President of the Council denies ever having signed the same) and, by some 



xlii ILLINOIS HISTORICAL COLLECTIONS 

final repose to the efforts of the proslavery party of the territory 
in Congress. A Senate committee appointed to consider it, to- 
gether with the last memorial of the legislature, reported that leg- 
islation would be inexpedient. 1 

Events moved toward a climax in 1808, alike with reference 
to slavery and to division of the territory. In the autumn of the 
year, after elections in the Illinois counties in which the anti- 
Harrison divisionists triumphed, and a combination in the legis- 
lature between them and the anti-Harrison antislavery men of 
the eastern counties, the House of Representatives approved (Oc- 
tober 19, 1808) an antislavery committee report of truly remark- 
able power by General Washington Johnston, later speaker of the 
House. Its conclusions were three: that it was "inexpedient" to 
petition Congress for a modification of the Ordinance ; that slavery 
"cannot and ought not to be admitted" ; and that the territorial 
statute of 1807 legalizing the introduction of negroes and mulattoes 
should be forthwith repealed. 2 With this report there was for- 
warded to Congress an equally remarkable popular petition in 
which "sundry inhabitants of the . . . Territory" attacked the in- 
denture law, declared that the repeated proslaver}'- petition of the 
past had expressed merely the wishes of a minority, and expressed 
"in the most unequivocal manner their . . . determination to resist 
henceforward by every lawful means every attempt to introduce 
into this infant Country a system so calamitous in its effects." 3 
Both documents were tabled in Congress, without further action. 4 

1 November 13, 1807— Amer. State Papers: Misc., 1: 484; Annals, 10 
Congress, 1 session, (Sen.) 22, 23-27, 31; (H. R.) 816, 920; Ind. Hist. Soc. 
Pub., 2: 521 ; Harrison, Messages, 1 : 274-275. 

2 Printed by Dunn in Ind. Hist. Soc. Pub., 2 : 522-527 ; photostatic 
copy of original MS in 111. Hist. Survey. Dunn characterizes it as perhaps 
the ablest of all Indiana State Papers. On the negro statute (of September 
17, 1807) see post, 523. 

3 Not printed by Dunn ; photostatic copy in 111. Hist. Survey. It was 
forwarded to Congress October 24 ; 1808. Its language is highly impassioned. 
Its points are in large part embodied in Johnston's report. 

4 November 18, 1808— Annals, 10 Congress, 2 session, (H. R.) 501. 

legislative legerdemain, it found its way into the Congress of the United 
States, as the legislative act of the Territory." The matter again came up 
in 1807, and proslavery resolutions were, they state, passed by a vote of 
2 to 1. But it is impossible to say whether the petitioners referred to the 
legislative resolutions presented January 21, 1807, or to those of September 
19, 1807 — cited ante, xl, n. 2; xli, n. 1, respectively. 



INTRODUCTION xliii 

However, this closed the struggle under the Indiana Territory, 
although it was still to perplex the politics of Illinois for more 
than two decades. Another antislavery petition of the next year 
was primarily an attack upon Governor Harrison. 1 Despite this, 
and the attacks in divisionist petitions soon to be noted, he was 
reappointed in 1809, though his fast lessening prestige was evident. 

The memorial of the Vincennes convention (December 1802), 
as well as various of the petitions, legislative and private, which 
have just been referred to, were not confined to the question of 
repealing the antislavery clause of the Ordinance. They dealt at 
the same time with the demand by actual settlers on the public 
lands for preemption rights, with the extension of suffrage, land 
claims, and all the other matters which were occupying public in- 
terest in the territory. The agitation over slavery has been re- 
ferred to as a matter separate and distinct. In reality it was, of 
course, bound up at every step with the issue of division. 

Looking backward, the eventual division of the territory seems 
inescapable. Aside from its size, disharmony and sectionalism 
were necessities within it. As the Gore was bound to Cincinnati, 
the Illinois country seemed, at that day, united to the future of the 
Mississippi outlet. The sympathies of the French and southerners 
in the west were very different from those of the easterners who 
controlled the government of the original northwest, who dom- 
inated Ohio when it was formed, and who — despite large southern 
immigration from Kentucky and elsewhere — were powerful in the 
Indiana counties of the territory. With reference to slavery these 

1 Goebel, Harrison, 81, abstracts this petition of February 3, 1809. 
Harrison was reappointed for his last term of three years on December 20, 
1809, ibid., 56. The attack on Harrison in the Clark County petition of 
1803 {ante, xxxviii, n. 1) was a strong one. The memorial presented with 
Johnston's report of 1808 did no more, after characterizing the indenture 
law as "in evasion if not in manifest violation" of the Ordinance, than to 
add: "and such a law has received the sanction of the Executive, the ap- 
pointed guardian of that same Ordinance." The attack in the petition of 
February 1809 was evidently more direct and sustained. But this is as 
nothing to the venom of the petitions of 1808 from the Illinois country. 
Presumably it was hoped to prevent reappointment in 1809. That Harrison 
was fearful of the outcome (his appointment was months delayed) is evi- 
dent from Gallatin's letter to him — answering a letter which betrayed 
doubt of Badollet's influence : see post, app. n. 8. In November the legis- 
lature urged his reappointment (Harrison, Messages, 1 : 391-392) by a vote 
stated as unanimous in the House and 3 to 1 in the Council. 



xliv ILLINOIS HISTORICAL COLLECTIONS 

differences proved to be momentous, and they were not less so in 
their relation to the issue of division. 

The efforts to that end began with the petitions for annexa- 
tion to Louisiana, prepared in the Illinois country in 1803, which 
have already been referred to. Early in 1805 the lower house of 
the legislature expressed its "lively regret that certain discontented 
factious men" were endeavoring to effect division and attach the 
Illinois country to Louisiana. "It is understood" they said, " ... 
that very improper means have been employed to obtain signatures 
to their memorials ; and that to augment their numbers, small boys 
and the most worthless characters in the Country are permitted to 
subscribe to them" — charges certainly true of some, and probably 
to some extent of all, the petitions of the time. Their arguments on 
the merits of the issue were certainly not promising of successful 
resistance ; they were partly weakly defensive, partly of hope, partly 
of fear. They denied that any peculiar advantage accrued to the 
eastern counties from proximity to the seat of government (indeed, 
claimed that it was approximately equidistant from all settlements 
except Detroit — ignoring Knox ! ) ; expressed the hope that, with 
the Indian titles cleared and land offices open, the whole territory 
would soon be unified ; and protested that the east could not alone 
support the new burdens of the second grade of government. 1 
The supposed joint memorial of the two houses of the Assembly in 
December 1805, referred to above, which asked suspension of 
Article six, also prayed that no division of the territory be made, 
but that a state government be permitted so soon as population 
should warrant this. A private petition from the settlers in the 
Gore prayed annexation to Ohio. 2 Two others, from the Illinois 

1 Harrison, Messages, 1: 173-174; Annals, 9 Congress, 1 session, (H. 
R. December 19, 1805) 297. The resolution (that division was inexpedient, 
and adverse to the interests of the territory) was of February 7, 1805 ; 
Harrison did not forward it until November 15. 

2 Ante, xxxix, n. 1; Annals (December 18), 293, 294. "No measure 
whatever will have a more serious and pernicious influence on the interests 
and future prosperity of the Territory" ; they could discover "no plausible 
reason in favor of it" ; Vincennes was "as near the center ... as 
convenience and propriety will admit" ; a journey thither was "in very 
few instances necessary" ; the east could not alone bear the expense of 
government of the second grade. The Gore petition is printed by Dunn, 
Ind. Hist. Soc. Pub., 2 : 492-494. 



INTRODUCTION xlv 

counties — the petition-of-350 1 and the "convention" petition, 2 
both already referred to — prayed division, as well as suspension 
of Article six. All of these memorials were referred to one com- 
mittee, which reported in 1806 adversely, on the ground that di- 
vision, so soon after the adoption of the second grade of govern- 
ment, would throw the whole expense of this upon the eastern sec- 
tion and would be unjust. The committee also advised against ad- 
mission of the whole territory, so soon as population warranted, as 
one state; which would violate the plan of the Ordinance, since 
such a state could not be later divided without its consent. 3 But 
petitions continued; most of them praying both division and slave 
immigration, but one from Randolph (with 102 signers — a signifi- 
cant declaration) opposing division. A committee headed by Ben- 

1 Ante, xxxviii, n. 2; according to this petition (received, according 
to the Annals, on January 17, 1806, p. 342, but in reality probably on De- 
cember 18, 1805, p. 293; see ante, xl, n. 1) the distance of Vincennes 
was a "ruinous inconvenience." The intervening prairies were always im- 
passable — flooded in wet seasons, overdry in others, affording water hardly 
sufficient to sustain life — and their destitution of wood and water "utterly 
precludes the possibility of settlement to any extent worthy of notice." 
Communication or union, therefore, between the Illinois and the eastern 
settlements, whether with respect to private or to political interests, could 
not "for centuries yet to come ... be of the least moment to either 
of them." 

2 Ante, xxxix, n. 2. This "convention" petition repeated all the argu- 
ments of the petition cited in the preceding note, urging in addition the 
advantage of giving tranquility to the Illinois counties, stimulating their 
settlement, and building a bulwark along the east bank of the Mississippi. 
It also deplored a resolution "attempted to be passed" at the last legislative 
session "for continuing the union between the middle and the western 
state . . . till each shall have a sufficient population to form an inde- 
pendent one." Ind. Hist. Soc. Pub., 2: 499-500. This must refer to the 
supposed joint memorial of August 19, 1805 (ante, xxxix, n. 1; xliv, n. 2), 
the exact proposal of which was "to connect the two divisions in one State 
Government, until they severally obtain a population that will authorise a 
division into two States" (Ind. Hist. Soc. Pub., 2: 481); and therefore 
this supports the allegation of the Clark County memorialists (ante, xli) 
that that memorial was not in reality a legislative act. Depositions which 
they forwarded, showing the history of the measure, have disappeared. As 
to its merits they would only say "that its effect would have been to continue 
the seat of government at Vincennes, where some of our principal characters 
have ample possessions." Ind. Hist. Soc. Pub., 2: 500. This last (italics 
added) was a slap at Harrison ; cp. Goebel, Harrison, 58, 61 ; ante, xi, n. 
2; and letter of Jonathan Jennings in Ind. Hist. Bulletin, February, 1924, 
p. 59-60. "The landowners" of the Wabash country, the memorialists de- 
clared, had "already begun to feel, or to fancy, an interest" in preventing 
the population of the Mississippi counties. 

3 Garnett report, of February 14, 1806. Ante, xl, n. 1. 



xlvi ILLINOIS HISTORICAL COLLECTIONS 

jamin Parke considered all these and reported that division was 
expedient; and the House of Representatives so resolved. 1 

The report was in plain contradiction of the apparent weight 
of public opinion as manifested in the petitions. After some 
months the divisionists forwarded their attack upon the petition 
of their Randolph opponents — which, they said, had been "circu- 
lated in Private to obtain Signatures of the Ignorant and ungarded 
citizens . . . Principally" illiterate Frenchmen, and was opposed 
"to the full Expression of the Public Voice in committee" which 
had been forwarded late in 1805. They mustered a few more 
signers than the antidivisionists and a few less illiterate French- 
men. 2 Two other divisionist petitions went forward about the 
same time. One was of little importance except as a partial ex- 
pression of St. Clair sentiment. 3 The other repeated the stock 

1 Two petitions were presented on March 26, 1806, both favoring 
division and slavery — Annals, 9 Congress, 1 session, 848. One of these 
appears to have been identical with the "convention" memorial. Ante, 
xxxix, n. 2. See Dunn's note, Ind. Hist. Soc. Pub., 2: 502. The other was 
presumably the accompanying "minutes" of the "Committee." On February 
20, 1807 two more petitions from Randolph and St. Clair were presented ; 
one favoring and one opposing division. The first (ibid., 510-512) was 
signed by eighteen, including John Edgar, John Beaird, and Robert Robin- 
son of Randolph ; J. F. Perrey, N. Jarrot, John Messinger, and James 
Lemen of St. Clair. They asked for a government like that "proposed" 
for Michigan Territory ; held up the importance, in view of European 
affairs ( !), of union and energy on the Mississippi; and under this emotion 
could not but "shudder at the horrors which may arise from a disaffection 
in the West" (original italics). This was an attempt to draw profit from 
the uneasiness roused by Burr. The second petition (printed ibid., 512-515) 
carried the signatures of J. Bpte. Barbau, Antoine Louviere, George Fisher, 
Samuel Cochran, Jas. Finney, James Gilbreath, two brothers of Pierre 
Menard, and forty illiterate French who signed with marks. A photo- 
static copy of the signatures is in the 111. Hist. Survey. They opposed 
division because it would leave the Illinois counties worse off. "A Repre- 
sentative government has been secured to the country ; no taxes have yet 
been paid by the Mississippi settlements, & from the measures of the last 
session of the Legislature your petitioners . . . believe that a system 
of prudence and economy will be pursued by that body. As yet there has 
been no cause to complain. No reason . . . renders the project at least 
plausible." Annals, 9 Congress, 2 session, 624 (February 26. 1807). 

2 Photostatic copy in 111. Hist. Survey ; unprinted. There are 167 
signatures, twenty-three of Frenchmen who signed by mark. The only names 
of much note are those of Robert McMahon, Robert Reynolds, N. Jarrot, 
John Reynolds, Antoine Girardin, J. F. Perrey, Wm. Atcheson, John Hays, 
David Badgley, William L. and John J. Whiteside, and (but cp. supra, n. 1) 
James Gilbrath. See ante, xxxix, n. 2. 

3 Unprinted ; photostatic copy in 111. Hist. Survey. There are only 
forty-two signatures, of which those of Wm. Biggs, William Kinney, Uel 
Whiteside, and James Bankson are most important. 



INTRODUCTION xlvii 

arguments of the party, but in the main it was a passionate attack 
upon Harrison 1 for conduct "unworthy of his office and disgrace- 
ful to the Nation." 

The charges against him were nine. Firstly, that he had pre- 
cipitated the territory into the second grade "without being legally, 
or in fact, satisfied that a majority of the Inhabitants wished for 
it ... in order to increase his influence and lesson his respon- 
sibility." And though as American citizens they held dear "even 
an approximation to liberty," yet "alas ! the only liberty which the 
people of the Illinois have acquired by this change is the liberty 
of submitting to the will of a part of the Territory more populous 
. . . a District . . . able ... to drain off* our money to 
erect it's public buildings." Secondly, that in order to gain their 
money he had approved the territorial law requiring the United 
States land commissioners, contrary to their duty and their posi- 
tive instructions (to report to the national administration only), 
to remit to the territorial auditor, under penalty, transcripts of 
confirmed claims, for taxation. 2 "Thirdly, That not being able 
by this mockery of Legislation either to intimidate or coerce, he 
has given his sanction to a Law providing, that not only every 
holder of real property but that every claimant to land whose claim 
had not been decided on by the said Commissioners should pay a 
specific tax on every acre thus holden or claimed or that in default 

1 An earlier attack upon Harrison based upon his land interests is 
noted above in ante, xlv, n. 2. In the petition cited ante, xlvi, n. 2, 
it is remarked : "his Excellency is opposed to the measure of cortailing his 
Domains, and has hitherto exerted every effort to prevent it." These 
charges were wholly incidental. The memorial now referred to is an elab- 
orate impugnment of Harrison's administration. Its exact date cannot 
be determined without access to the journals of the General Assembly. 
A photostatic copy is in the 111. Hist. Survey, which also contains such 
copies of four depositions (all of September-October 1808) by inhabitants 
whose signatures were forged to the memorial. These involve 12 names. 
In addition John Kidd, well acquainted with the families of Robert Rey- 
nolds and William Kelly (post, lxxxviii) showed that a son of the latter 
who signed was only 19, and two sons of the former only 12 and 14. An- 
other deponent declared that though there were many signatures from 
Goshen settlement (Robert Reynolds had removed thither in 1807 — Reynolds, 
My Own Times, 64), the petition was never brought into that settlement. 

2 Post, 147— act of August 26, 1805. For penalty, post, 174, § 9. No 
evidence is in print which shows that the instructions of the commissioners 
were as here stated; but of course there could be no compulsion by the 
territorial government upon them. 



xlviii ILLINOIS HISTORICAL COLLECTIONS 

of such payment the property or the claim should be sold at public 
auction by the Sheriff, which measure it was well known would, in 
a vast number of instances, amount to nothing more nor less than 
a forced loan repayable at the pleasure of those who had forced it." 
"Fourthly, That knowing all involuntary servitude to be forbidden 
in the Territory by the solemn Ordinance of 1787," he had never- 
theless sanctioned an indenture law which, said the petitioners — 
and no one better than they, at whose behest and in whose interest 
it was passed, could more fittingly judge it! — might "properly be 
entitled 'A Law for the Establishment of disguised slavery in op- 
position to the National Will.' " Fifthly, that he had sanctioned the 
establishment of a court of chancery 1 "independent of and super- 
ior to the National Court [established in the] Territory — a measure 
which has for it's effect the wounding and weakening of the great 
ligature which was intended to bind the Colony to the Nation." 2 
Sixthly, that though he had sanctioned a resolution of the legis- 
lature in favor of a census and a reapportionment, yet notwith- 
standing the census had been duly taken he had not given Randolph 
and Clark counties the additional representative each to which they 
were entitled in the last session of the legislature. 3 Seventhly, 
that he had arbitrarily vetoed several bills of the legislature "cal- 
culated for the impartial administration of Justice and the general 
good of the Territory." 4 All of which acts, said the memorialists, 

1 See post, cxv, on the attempts to enforce the taxation statutes. See 
also post, 108, 136. 

2 The document is torn ; the words in brackets are almost certainly 
the original words. 

3 This must have been the session of August-September, 1807. Ac- 
companying the "convention" memorial of late 1805 (ante, xxxix, n. 2; 
xlv, n. 2) was the following census: population by the census of April 1, 
1801 — 2,361 ; at Prairie du Chien and on the Illinois River, "at least" an 
additional — 550 ; immigrants since 1801, "at least" — 750 ; Ohio River settle- 
ments from the Wabash to and including Ft. Massac — 650; total — 4,311. 
In the debate of 1808-1809 on division the Thomas committee estimated 
the population of the eastern counties at 17,000, that of the western at 
11,000, souls: the number of persons in the latter of 16 to 21 vears of age 
was put at 2,700. Annals, 10 Congress, 2 session, 972-973, 1093. In the 
course of the same debate Eppes presented statements regarding the 
number of free males, and also of actual voters at certain elections (ibid., 
857). Photostatic copies of these are in the 111. Hist. Survey. The former, 
certified by Secretary Gibson (November 2, 1808), gave the number of 
such males as 676. For the votes see post, li, n. 1. 

4 Ante, xxx ; post, clxviii and n. 1. 



INTRODUCTION xlix 

"destructive of the National Authority, are displeasing to the 
people of this Country, and we cannot but ask ourselves if the 
American Government has yet to learn how to hold it's Colonies." 
So far as regards Harrison's acts (apart from the conclusions 
which the petitioners attached thereto and apart from their own 
hypocrisy), every one of these charges was either wholly true or 
contained much of truth. Two other charges were made. Eighthly, 
that the Governor had not only joined in a combination of specu- 
lators to reduce the price of public lands by stifling competition at 
the public sales, although bound by his duty as superintendent 
thereof to secure to the government the best possible prices there- 
for, but had "publicly avowed his right to carry this combination to 
any length he pleased." 1 Ninthly, and lastly, it was charged that 
Davis Floyd, condemned to punishment for participation in the 
Burr conspiracy and "come to Vincennes hot and fresh from his 
punishment," had been appointed through Harrison's instrumental- 
ity clerk to> the House of Representatives. As regards these last 
two charges, what truth there was in the first cannot be today 
determined, while in the second case Harrison probably showed 
merely a decent (though politically indiscreet) humanity. 2 

1 The petition says: although "receiving [si]x dollars per day for 
protecting this property, at the very time when he was taking measures 
for cheating the Nation out of it — We offer here no other document than 
his own statement annexed." This has apparently disappeared. Mrs. 
Goebel says of these charges that "no real evidence was ever produced 
against Harrison" — certainly a rash statement in the absence of the docu- 
ment forwarded by the petitioners. Gallatin, in the next spring (1808), 
sent a circular letter to all the territorial governors warning them against 
joining companies for land speculation. The receiver of the Vincennes 
office was individually warned. Goebel, Harrison, 70-71. Harrison was, 
however, a land speculator, like everybody else. See ibid., 46-47, 57, 70, 197, 
237 ; post, lxxxvii, n. 2. 

2 Floyd was elected in the autumn session of 1807, while under in- 
dictment. He was found guilty and sentenced to imprisonment for three 
hours. At public meetings held in Vincennes on January 4, 1808, and in 
Kaskaskia on February 18, resolutions were passed denouncing the action 
of the legislature, and disclaiming — for Indiana Territory — any sympathy 
for Burr. The Kaskaskia resolutions declared that the Randolph repre- 
sentatives were absent when Floyd was elected. According to Dunn 
these meetings were attempts by Harrison's opponents to discredit him. 
See his Indiana, 363-364. For Harrison's opinion of Floyd see his letter of 
April 3, 1807 (in Messages, 1: 205) to Governor Williams and that of 
April 13 to Jefferson (W. F. McCaleb, The Aaron Burr Conspiracy, 282). 
For his treatment of certain unimportant Burr refugees see Messages, 1 : 



1 ILLINOIS HISTORICAL COLLECTIONS 

These three memorials were received and committed together 
to a committee of which Parke was a member but Matthew Lyon 
chairman. In its report the committee sympathetically reproduced 
the oft repeated plaints of the Randolph and St. Clair petitioners, 
against the "many hardships, inconveniences, and privations" re- 
sulting from the "unnatural" union with the eastern counties. Par- 
ticularly they stressed discontent with dependence upon the distant 
General Court at Vincennes, 1 and the monopoly of administrative 
officers of federal appointment enjoyed by the eastern counties. 
The eastern portion of the territory having also three-fifths of the 
representation in the legislature, the inhabitants of the western 
portion were "oppressed with taxes," the avails whereof were ex- 
pended "in the country which is to form the Eastern State, and at 
the discretion of those over whom they can have no control." At 
the same time, the press of the embargo question and the condition 
of the public treasury, "and particularly the impolicy of increasing 
the number of Territorial Governments without its being mani- 
festly necessary," made it inexpedient, in the opinion of the com- 
mittee, then to deal with the matter. 2 

The elections which took place in Randolph and St. Clair in 
the summer of 1808 made certain, however, that the triumph of 
division was near. Shadrach Bond Sr. and Pierre Menard having 
resigned in 1807 from the Legislative Council, two members of 
the House — Shadrach Bond Jr. and George Fisher — were ap- 
pointed to take their places, and to fill the resulting vacancies an 
election was ordered held in the Illinois counties on July 25, 
1808. 3 These elections (only one of which, rather characteristic- 
ally, was held on the day officially set therefor) were preceded by 
a contest of extraordinary passion. The issue was one between 

1 The Michigan separatists had done the same with respect to this — 
Annals, 8 Congress, 1 session, 29-30. Ante, xlvi, notes 2 and 3 ; xlvii, n. 1. 

2 Annals, 10 Congress, 1 session, (H. R. April 6, 1808) 1976, (report, 
April 11) 2067-2068; Amer. State Papers: Misc., 1: 922; Harrison, Mes- 
sages, 1: 288-289. 

3 Harrison, Messages, 1 : 245-246, 247, 253, 295. 

205, 228. The letters do him credit. But in July 1808 Harrison revoked 
Floyd's commissions as major of militia and pilot at the Ohio rapids — 
Gibson, Exec. Journal, 147. 



INTRODUCTION li 

divisionists and antidivisionists, which was the same as between 
those pro- and anti-Harrison. In both counties the divisionists 
were successful, John Messinger being elected by them in St. Clair 
and Rice Jones in Randolph. 1 

It had become apparent that so long as the legislature asked 
for slavery but rejected the division which the west desired (as it 
did in its petition of 1805), or asked for both despite the anti- 
slavery sentiment of the east (as the private petitions from the 
west persisted in doing), no success was possible. It was evident 
by this time that Congress could not annul or modify Article six, 
because the Senate would not. The Illinois representatives in the 
legislature of 1808 accordingly subordinated slavery to division 
and combined with the antislavery men from the easternmost 
counties, and the lower house voted prodivision and antislavery. 
It unanimously adopted (October 19, 1808) resolutions against 
slavery; unanimously passed a bill — which, however, the Council 
defeated — for the repeal of the black-indenture law ; and voted 
(October 11) — the Council also opposing this — in favor of divis- 
ion. The action of the House was contrary on both issues to Har- 
rison's position, and also to that of the Council. 2 

Jesse B. Thomas was elected delegate to Congress (another 
defeat for Harrison), not only pledged but under bond to act for 
division. 3 

1 See ante, xlviii, n. 3. Secretary Gibson's certified statement of 
votes cast shows that at the St. Clair election of July 25 the number was 
171 ; at the Randolph election of August 13, 151. See app. n. 24 on Rice 
Jones, whose murder grew out of the bitterness of this campaign. For 
discussions of this election see Dunn, Indiana, 365-367; Buck, Illinois in 
1818, 191. 

2 For the antislavery resolutions, ante, xlii, n. 2 ; on the resolutions 
demanding division (presented, not printed), Annals, 10 Congress, 2 ses- 
sion, 18. A photostatic copy of the resolutions is in the 111. Hist. Survey. 
See Dunn, Indiana, 369, 375 ; Webster, citing journals of the two houses, 
Ind. Hist. Soc. Pub., 4 : 220-221. 

3 T. Ford, History of Illinois, 30 ; Dunn, Indiana, 376 ; Webster, 
Ind. Hist. Soc. Pub., 4: 221. Division was supported in the House by a 
three-fifths vote. The House having resolved that the delegate to Congress 
be instructed to procure division, and the Council that he oppose it, and 
Jesse B. Thomas — who was elected delegate by a vote of 6 (including his 
own) in 10 — being of a doubtful dependability, John Rice Jones, of the 
Council minority and Harrison's bitterest opponent, put Thomas under 
bond. 



Hi ILLINOIS HISTORICAL COLLECTIONS 

The time for arguments had long- since passed. The resolu- 
tions for division were a mere reallegation of existing discontents, 
a mere reiteration of the demand for separation. 1 Congress could 
only come, in time, to agreement with the petitioners that division 
was "the only means now left of restoring harmony." The grand 
jury of St. Clair County took similar action in the same, and 
that of Randolph in the following, 2 month ; while sundry in- 
habitants of Knox County opposed the petitions from the Illinois 
country — they did not wish to have the capital moved, nor to 
bear alone the burden of representative government. 3 The rep- 
resentations went to friendly hands. A committee of which Jesse 
B. Thomas was chairman reported in favor of separation, 4 and 
presented a bill for the purpose. 

This committee, of course, was bound to make the most of 
the more plausible arguments of the divisionists. It stressed the 
maladjustment of the judicial system to the needs of the western 
counties, and also expressed the opinion that the thin and scattered 
distribution of the population enervated the executive power in 
administration. Only one argument, they thought, existed against 
division — the increased expense of government ; and that would be 
far more than balanced by the increase in land values "arising from 
the public institutions which would be permanently fixed" in the 
new territory, and from the increased immigration which division 
would stimulate. What a "large majority" of the inhabitants de- 
sired, it was a "just and wise policy to grant." Opposition to di- 

1 They did not repeat the causes, but urged the policy of self-gov- 
ernment, and expressed the belief (certainly a venturesome one) that the 
western counties contributed in taxes "considerably more than the ex- 
pences of the Government they pray for would draw from the publick 
Treasury." 

2 Annals, 10 Congress, 2 session, 633, 901. These are nowhere printed. 

3 Annals, 10 Congress, 2 session, (H. R. December 16, 1808) 862. 
A photostatic copy is in the 111. Hist. Survey. The most important names 
are those of Henry Hurst, John Johnson, and Benjamin Parke. Rather 
disingenuously the petitioners declared that the territory's population was 
"spread across the country from the Miami River to the Mississippi — and 
on the Mississippi from the Ohio to Wood creek opposite the Missouri." 

4 December 31, 1808— Amcr. State Papers: Misc., 1 : 945-946: Har- 
rison, Messages, 1: 324-327; Annals, 10 Congress, 2 session, 971-973. In 
the Senate the committee, headed by Pope of Kentucky, made no inde- 
pendent report on the memorials, but eventually reported the House bill. 



INTRODUCTION liii 

vision was not lacking. 1 Nevertheless, the bill became a law 2 
on February 3, and took effect on March 1, 1809. Kaskaskia be- 
came the capital of Illinois Territory. 

One is left, at the end, doubting whether in truth "a large 
majority of the citizens of the said Territory" desired division. 
It is probable that the divisionists were in a decided minority. 3 
The petitions prove nothing even as regards the Illinois counties. 
It is doubtful whether a hundred genuine signatures could be found 
on all of them. It is certain, however, that a very large part of the 
leading men of the Illinois country (of the judges of the county 
courts, for example) signed petitions for division ; 4 and presum- 

1 The arguments — The new government would cost $6950 for no 
more people than lived in Washington. It would involve a useless multipli- 
cation of offices (no more a begging of the question than the usual argu- 
ments of the divisionists). The inconveniences complained of were nowise 
peculiar to Indiana Territory. "There was no other part of the United 
States in which the same inconvenience was not felt as that complained 
of . . ,. that there were many places in different States whence the 
people had to go two or three hundred miles to the courts ; that a compliance 
with this petition would but serve to foster their factions, and produce 
more petitions." (Annals, loc. cit., 1094). This was probably true. In 
Hist, of St. Clair County (Brink, McDonough), 81, the figures are given 
for the entire cost of county government in 1809 ; which was $663.54, plus a 
ten per cent disbursement fee. The judges of the Common Pleas cost 
$142.67, the farmers of the poor $122.42; the other items were $104 for 
wolf-scalps ; fees in criminal cases wherein conviction failed, $98.93 ; the 
clerk, $95; sheriff, $32.50; justices of the peace, $23.02; constables, $18; 
courthouse fixtures, $15; clerks of elections, $12. 

2 Annals, 10 Congress, 2 session. (H. R.) 815, 971-973. 1077-1078, 
1093-1095— bill passed (January 18, 1809) by 69 to 37; (Sen.) 326, 327, 330, 
335, 338, 339 (passed unamended, January 31) ; (the act of February 3, 
1809) 1808-1810. 

3 In the Knox petition presented December 16, 1808 (ante. Hi, 
n. 3), presumably written after the Illinois elections, and signed by John 
Johnson and Benjamin Parke (among others), they characterized the di- 
visionists as "a small section of the people." In Harrison's address to the 
legislature of the new eastern territory in October 1809, he declared that 
division "could only have been effected by a total misrepresentation of the 
interests and wishes of four fifths of our citizens." Messages, 1 : 378. 

4 Ante, xlvii, n. 1. In Randolph: John Beaird (signed 2 petitions), 
John Edgar (5), John Grosvenor (3), Nathaniel Hull (1, that for annex- 
ation to Louisiana, only) and Pierre Menard (1, same), Robert McMahon 
(2), William Morrison (3), Robert Reynolds (4). In St. Clair: George 
Atchison (3), David Badgley (2), James Bankson (2), William Biggs (3), 
Shadrach Bond Sr. (2), John Dumoulin (2), Nicholas Tarrot (4), James 
Lemen (3), John F. Perrey (5), Uel Whiteside (3), William Whiteside 
(3). These are all judges who sat in one court or another, at one time or 
another, during the years 1800-1809. In Randolph James McRoberts signed 
no petitions ; to him, as undeclared, might well be added Nathaniel Hull 



liv ILLINOIS HISTORICAL COLLECTIONS 

ably we may safely, in this case, attribute to "the people'' the 
sentiments of their leaders. 

Similar doubts must assail one who seeks to identify the co- 
hesive forces in such party grouping as appears in the petitions 
and elections of the time. It is not contended by anyone that 
national party differences had any influence. Certainly, also, slav- 
ery was not — could not be — a subject of party difference. If there 
was any antislavery sentiment worth mentioning in the Illinois 
country it was wholly inarticulate. 1 Slavery sentiment and di- 
visionist sentiment, of course, went more or less together ; but it 
is inadmissible to assume with Dunn that the demand for di- 
vision was no more than a proslavery maneuver. To do so is to 
ignore the greatest force of the frontier — unbridled individualism ; 
which, as backwoodsmen were forced into communities, necessarily 
assumed in the political sphere the demand for local self-govern- 
ment. It involves the wholesale attribution to men who were quite 
capable of independent thought of the very naive assumptions — 
of whose unsoundness each year gave proof — that if Congress 
would not grant slavery on popular petition it would nevertheless 
do so on legislative petition, and that though it would not do so 
for the legislature of Indiana Territory it would do so for the 
legislature of another territory. It ignores the known fact that 
some leading men who owned slaves and favored relaxation of 

1 On the claims for James Lemen as an antislavery apostle see 
ante, xxxix, n. 2; MacNaul, The Jefferson-Lemen Compact, passim; Buck r 
Illinois in 1818, 261 n., 280, 319. It is said that not later than January 1806 
he started antislavery petitions in the eastern counties — MacNaul, 15, and 
cp. his diary, 30, where he says that he was circulating petitions in Illinois. 
The signatures of the judges to the proslavery petitions were as follows. 
In Randolph — Beaird (1), Edgar (4), Grosvenor (1), Menard (1), W. 
Morrison (3), Barbau (1), Fisher (1). In St. Clair— G. Atchison (2), 
Bond Sr. (2), Bankson (1), W. Biggs (2), Dumoulin (3), Jarrot (1), 
Lemen (1, but see xxxix, n. 2), Perrey (3), Uel Whiteside (1), W. White- 
side (2). Mr. Esarey, in the Ind. Hist. Bulletin, February, 1924, p. 57, 
gives various convincing reasons why political lines could not have been 
drawn on the slavery issue in Indiana; but he assumes, quite gratuitously, 
that therefore there was no "division of territorial Indiana into a Harri- 
son and an anti-Harrison party." 

and Pierre Menard, from the above list. Jean Bpte. Barbau, Samuel Cochran, 
James Finney, Antoine Louviere and George Fisher signed the antidivision 
petition of 1807 (as did also two of Menard's brothers). In St. Clair, 
out of fifteen active judges only three were undeclared: Shadrach Bond 
Jr., Thomas Kirkpatrick, Benjamin Ogle. 



INTRODUCTION lv 

the Ordinance (and probably many others regarding whose prop- 
erty and whose opinions information is lacking) were opposed to 
division — such as, among the judges, Jean Baptiste Barbau, George 
Fisher, and Pierre Menard, all of whom signed not only the peti- 
tions for annexation to Louisiana but some of the later petitions 
in which slavery and division were joined, and who joined in the 
antidivision memorial of 1807. So far as regards political agita- 
tion proslavery sentiment was less, not more, intense than the 
sentiment for division. 1 

It has been customary to refer to the anti-Harrison or di- 
visionist party of the Illinois country as the "Edgar-Morrison 
party." The name is not inappropriate, but it requires qualifica- 
tions. That there was in Randolph County an Edgar-Morrison 
dominance one local expression of which was an anti-Harrison 
party is indubitable. But John Edgar and the Morrisons most 
certainly did not dominate St. Clair ; yet that county was at least 
as uncompromisingly divisionist as was the other. Clearly, then, 
-causes purely personal to Edgar and the Morrisons cannot explain 
the divisionist movement. 

Utterly trivial and negligible, of course, was the expenditure 
of money at Vincennes for public buildings, notwithstanding the 
references to this in the petitions and in the report of the Thomas 
committee. 2 

Of real importance was the issue of transition to the second 
grade of government. This was at first not a sectional issue nor 
even a party issue. It became both when Harrison espoused the 
change as a means of strengthening his control of the territory, 
and the Illinois leaders sought to defeat him in that plan. Thus, 
when the change was made it was opposition to it, not support of 
it, which he felt called upon to pardon in Shadrach Bond and 
others. Harrison's success, and his political finesse in gaining it, 

1 Compare the greater number of signatures by the judges to divi- 
sionist petitions : 30 signatures by 17 judges for slavery and 53 by 19 for 
division. And if it be admitted that in 1803 a signature of the petitions 
for annexation to Louisiana was indistinguishably one for division and for 
slavery, and omit divisionist signatures of those petitions only, the number 
would still be 51. 

2 Citations ante, xlvii, n. 1 ; Hi, n. 4. On the courthouses of several 
counties see post, ccx, n. 2. 



lvi ILLINOIS HISTORICAL COLLECTIONS 

undoubtedly left irritations in the Illinois country. The matter 
really amounted to no more. The constantly repeated charge of 
its citizens that he forced representative government upon them 
against their will would have been, in itself, a sorry reason for 
appeal to Congress. Back of it lay the real cause of complaint, 
the fear of control by the eastern counties. This, and not either 
desire for or opposition to representative government, exercised 
cohesive force upon sentiment in the Illinois counties. It has been 
seen that Harrison himself attributed to the fears of the "land- 
jobbers" the opposition to adoption of government of the second 
grade. 

Somewhat more impressive, on its face, is the suggestion that 
Harrison, in his use of his appointing power, was unfair to the 
western counties, and that he used it to build up a party headed 
by his friends. 1 His appointments to territorial offices were in- 
deed made exclusively from his intimates of Knox County. But as 
such officers were extremely few it is difficult to imagine that these 
appointments could have had consequences either wide or pro- 
found ; nor would it be easy to show, as regards the charge of 
unfairness, that men equally fit for choice were available in the 
western counties. Other appointments — to county offices, and to 
the Council so far as Harrison acted for or influenced the Presi- 
dent — were necessarily distributed. There is abundant evidence 
that in the Illinois country he used this patronage politically. There 
is rarely evidence which could justify one in attributing to him 
purely personal motives for his action ; and certainly, whatever 
may have been his motives, it cannot be denied that most of those 
whom he barred from office were unworthy. 

"Ever since Clark's Conquest [1778], office-holding" — says 
Mr. Esarey — "had been an attractive occupation in the Illinois and 
Wabash countries. For ten years dishonest men had had control 
and called their system of plunder a government . . . The 
arrival of Harrison was awaited in fear by these men. Their fears 
were justified, for they soon learned that he came to govern. Some 

1 This was one charge in the Letters of Decius of Isaac Darneille 
(post, app. n. 81) ; cp. Webster, Ind. Hist. Soc. Pub., 4: 220; Dunn, Indiana, 
328; Goebel, Harrison, 63; Alvord, Illinois Country, 423. 



INTRODUCTION lvii 

of the better men of this clique received offices from him, in which 
they rendered faithful service. The others formed an opposition 
which attacked the Harrison administration at every opportunity. 
As early as 1801 these malcontents were trying to create a party in 
favor of a representative government. They succeeded in arousing 
some interest, both at Vincennes and in Illinois." 1 

The evidence falls short of fully sustaining this eulogistic 
estimate of Harrison's strength and judgment. 2 His later en- 
emies in Randolph had not in 1801 been refused honors and emol- 
uments ; Secretary Gibson had appointed John Edgar and William 
Morrison, inter alios, judges of Quarter Sessions and Common 
Pleas (presumably, as in later cases, during good behavior) and 
Harrison, after his arrival in the territory, made no change. He 
himself, late in 1801, appointed Robert Reynolds; and still later 
John Beaird and John Grosvenor. In St. Clair, Secretary Gibson 
had similarly filled the courts, and for some reason Harrison reap- 
pointed all the judges (with one change) early in 1801, but his 
appointees included all the later prominent divisionists — George 
Atchison, William Biggs, Shadrach Bond Sr., John Dumoulin, 
Nicholas Jarrot, and J. F. Perrey ; and he later appointed David 
Badgley and James Bankson. It is true however that the first 

1 Esarey, History, 1 : 160. 

2 Harrison might, in political irritation, regard as undesirable mal- 
contents those who desired representative government ; but Mr. Esarey 
seems, somewhat naively, to adopt the same view. To his Messages of 
Harrison there is prefixed a rhetorical passage from Lew Wallace expres- 
sive of the Indiana Harrison-complex ; of its eight allegations one only is 
true and acceptable ; the others are either evidently absurd or open to grave 
doubt, or require great qualifications based upon notorious facts. Mrs. 
Goebel's characterization of Harrison is acceptable : "As governor. Har- 
rison was a good administrator ; had it been otherwise, he would probably 
have failed to secure three reappointments. That he did not distinguish 
himself by a 'noble stand' on any specific issue — for example, opposition 
to slavery, or an attempt to extend the people's powers, or a stand for the 
sale of land at a cheaper price — is true. Politics was his business, however, 
for the time being ... A study of this period must change somewhat 
the legendary conception of Harrison as the 'father of the Northwest' 
and replace it by an infinitely more real person, struggling in the limited 
field of territorial politics to maintain his power and place." Goebel, 
Harrison, 87-88, cp. 378-380. Harrison was an affable man (see the 
characterization by Isaac Darneille, quoted by Mrs. Goebel, 87), of mediocre 
ability and weak character ; but his rare political prescience is very evident 
in his administration of Indiana Territory. 



lviii ILLINOIS HISTORICAL COLLECTIONS 

petition for division of Indiana Territory itself, as distinguished 
from the earlier petitions for annexation to Louisiana — the peti- 
tion-of-350 — was not presented in Congress until late in 1805. 
But that Harrison may have had knowledge of its character before 
that date seems not an unreasonable assumption; and it happened 
that the reorganization of the county courts — which he may very 
well have brought about for political reasons — gave him at this same 
time an opportunity to be rid of his enemies. In his mind these 
would certainly have included advocates of either the second grade 
or of division. It would also be good to believe that in his action he 
treated as undesirable the officials known to be involved in the land 
frauds, if we can assume that these had been revealed so early. 1 
Not a one of the above Randolph judges was recommissioned ; 
and only Shadrach Bond Sr. and Perrey of the St. Clair group. 
Not a one of either county ever received thereafter a civil appoint- 
ment at Harrison's hands ; although he later had good words for 
Bond — when he could favor only him or Perrey — in advising the 
President on appointments to the Council (and great honors for 
Shadrach Bond Jr., who however never signed any petitions). 2 
A few minor civil appointments were given to divisionists, and some 
military also; 3 but these are doubtless of little significance. Nor 

1 The commissioners were required by the statute to begin their 
work not later than January 1, 1805 ; reappointments to the county courts 
were made in April and December, 1805. Post, app. n. 27. Michael Jones 
was named to the Randolph Common Pleas in the latter month. This in- 
dicates certainly that Jones had gained the Governor's confidence. How, 
if not by revealing the truth about Randolph conditions? However, there 
is no evidence that the implication of John Rice Jones in charges of land 
frauds (post, lxxxvii, xcix) was the cause of Harrison's break with the 
former (post, app. n. 10), and James Gilbreath's implication did not lessen 
the honors awarded him (post, lix and n. 2). All such judgments, however, 
are speculative ; the commissioners published no reports until 1809. The 
perpetrators of fraud, however, certainly knew, from their examinations 
before the commissioners, what to expect. Probably the drift of things 
was common knowledge in the Illinois country. 

2 One of the charges by Isaac Darneille against Harrison in the 
Letters of Decius was that he was holding an office as surveyor for the 
younger Bond — Goebel, Harrison, 63-64. See post, app. n. 19. 

3 John Hay, notary in 1808; John Hays, justice of the peace in 1807; 
Henry Levens, same in 1806 ; military honors to Parker Grosvenor, son 
of John, in 1806, and to Robert Robinson in 1807 (Gibson, Exec. Journal, 
146, 139, 137, 143 respectively). Darneille charged that Harrison gave office to 
three of the Whiteside family, all of them justices of Quarter Sessions, two 
of them captains of militia, though all were under indictments for horse 



INTRODUCTION lix 

is it especially significant that John Hay was retained as clerk of 
the St. Clair courts, recorder, and treasurer throughout the terri- 
torial period, and was appointed by Harrison (acting for the Presi- 
dent) to the Council in 1805 ; for he was an excellent man, has 
always been regarded as a personal friend of the Governor, and 
had signed no more than the 350-petition of that year. 1 But it 
is a striking fact that James Edgar was retained as sheriff of 
Randolph until he resigned, in 1806 ; John Edgar as head of the 
Randolph militia until he resigned, in 1806; Robert Morrison as 
clerk of the Randolph courts throughout the territorial period ; 
George Atchison as head of the St. Clair militia until his death, 
in 1808; and John Whiteside as coroner of St. Clair throughout 
the same period. John Edgar was also retained as county treas- 
urer. All of these men were pronounced divisionists and enemies of 
Harrison, and the gravest charges of corruption and official mis- 
conduct could easily have been sustained against the first three. 
Every man appointed to high civil office in Randolph after the 
date of the petition-of-350 is found among the signers of the Ran- 
dolph antidivision petition of 1807. 2 Every prominent signer 
of the petition of 1808 attacking Harrison had reason for personal 
animus. 3 This record is precisely what one could expect. Har- 
rison was not at all the man of power or principles suggested by 

1 Post, app. n. 17. 

2 Samuel Cochran, James Finney, George Fisher, and James Gil- 
breath. Pierre Menard did not sign, but his two brothers did. James 
Gilbreath signed the Louisiana petition of 1803 ; appears in Dunn's reprint 
as a signer of the prodivision petition-of-350; his name appears (as 
"Gilbrath") on the prodivision "remonstrance" of April, 1808; and on 
the antidivision memorial of 1807. Of these the first and fourth (seen 
in MS) agree and are undoubtedly genuine; the third (MS) is evidently 
not his autograph. 

3 William Wilson, surveyor of Randolph, had had his commission 
revoked outright by Harrison for good cause (post, clxxvi, n. 4). John 
Edgar and William Morrison, lords of Kaskaskia, had been ignored in 
civil offices, were deeply mired in the land scandals, their nemesis — Michael 

stealing — Goebel, Harrison, 64. William Whiteside and his son William Bolin 
probably held captaincies when Darneille wrote, but the latter was never 
a judge. William and his son Uel sat occasionally in the St. Clair Orphans' 
Court — see post, app. n. 40. The former received military appointments 
in 1802 and (of major) in November 1805; the latter was made a justice 
of the peace in 1803; and William Bolin received his captaincy in 1802 
(Gibson, Exec. Journal, 111, 116, 130). The third Whiteside referred to 
by Darneille was probably John. All were extreme divisionists. 



lx ILLINOIS HISTORICAL COLLECTIONS 

Mr. Esarey. He was of the type of administrator who preserves 
the conventions, depriving his enemies of favors, loading favors 
upon his friends, replacing the former with the latter as deaths or 
resignations give opportunities. But that he could act with judg- 
ment and despatch in creating opportunities is shown by his coup 
de main in proclaiming adoption of representative government, 
and probably by the legislation which reorganized the county 
courts, and 1 which to a large extent stripped Edgar of his duties 
as county treasurer. 

Quite evidently Harrison's exercise of his appointing power, 
far from gaining him support, could only have irritated and con- 
solidated his enemies. Emphasis has therefore rightly been placed 
upon it. But its results reduce to personal animosities. It was 
an age (not less on the Mississippi than the Atlantic) when politics 
were envenomed, slanderously and malignantly personal, to a de- 
gree beyond the comprehension of today. The ambitions of in- 
dividuals, together with personal hatreds and personal loyalties, 
were the real cohesive force of such "political" grouping as existed. 
And more important by far than resentments aroused by the dis- 
tribution of patronage were, undoubtedly, those which originated 
in the land problem. 

There is no doubt that Harrison endeavored to derive political 
credit from his land policy. He deserved to do so, for he sought 
throughout his governorship to secure to immigrants the cheap 
and abundant land which they desired. That the government ex- 
tinguished the Indian titles at a rate vastly in excess of the actual 
economic needs of immigrants cannot be denied. Only about a 
quarter of the area of the present state of Illinois had been sur- 
veyed in 1819, and of that surveyed not a sixth had been sold ; in 
1834 nine-tenths of the whole area was still unsold (and two-thirds 

1 See the discussion of the taxation statutes, post, cxvii et seq., and ante, 
xxvi, n. 3. 



Jones — had been appointed to their court, given Harrison's marked con- 
fidence. Robert Reynolds was hopelessly besmirched by the land commis- 
sioners. John Grosvenor was always likely to stand with Reynolds. Wil- 
liam and Uel Whiteside were extremely prominent in St. Clair and may 
well have resented neglect. James Lemen's signature ("Laman") was 
not his own. 



INTRODUCTION lxi 

of Indiana). 1 The one result was to encourage scattered settle- 
ment and the early picking of the richest land, leaving the govern- 
ment under difficulties in later sales ; 2 a policy very different from, 
and less wise than, that pursued in Louisiana under the Spanish 
rule. Another result, ultimately, was war ; whether or not that also 
was consciously sought by Harrison to hold his waning popularity. 
Most of the lands were bought almost for nothing. An area almost 
as great as the total of all land sold in Illinois to the end of 1819 
cost absolutely nothing; and what is worse, it was secured by in- 
sistence upon Indian cessions to the Wabash and Illinois com- 
panies which our government had repeatedly pronounced illegal 
and worthless. 3 Of his treaties in general it is said by the highest 
authority that "he made no pretense of extinguishing the title of all 
the claimants, but held treaties with factions, with isolated bands ; 
in short, with any Indians over whom he could exert a temporary 
influence, quite in defiance of Indian usage, which required the 
consent of a general council." In addition, he bribed, and threat- 
ened starvation, in order to bring to terms the chiefs who were his 
tools. This was the cause of Tecumthe's effort to restore a con- 
federate authority, and end the wastage of the hunting grounds 
by recreant and unrepresentative tribal chiefs. He did, indeed, 
secure a verdict for libel against William Mcintosh, who charged 
him with cheating the Indians of their lands and arousing their 
hostility, but the case is not one from which his apologists can 
derive great comfort. 4 Whether Harrison was principal in this 

1 See particularly Amer. State Papers: Pub. Lands, 3: 456-462; 7: 
530. Also, for other years— 3 : 497 (1821), 533 (1821) ; 4: 770, 909 (1825). 
Memorial of Illinois legislature, January 12, 1827, ibid., 4 : 871. 

2 Compare memorial of the Illinois legislature, February 8, 1825, in 
Amer. State Papers: Pub. Lands, 4: 148. 

3 H. Adams, History of the United States. 6 : 83-84. The costs are 
ascertainable from the above sources. Harrison was disappointed in a 
price of one cent per acre and expressed to Jefferson the hope that he 
could make the average lower (letter of August 29, 1805, unprinted, cited 
in Webster, Ind. Hist. Soc. Pub., 4: 260). Mrs. Goebel states that for 
none of the lands in the three great cessions of 1803-1804 {ante, xii, n. 4) 
did the government pay "more than one or two cents an acre ... al- 
though at this time the minimum price accepted by the United States for 
public land was two dollars an acre." Harrison, 105. On the Ft. Wayne 
Treaty of 1803, referred to in the text, see ibid., 100-104. 

4 The quotation is from A. H. Abel, "The History of Events result- 
ing in Indian Consolidation West of the Mississippi," Amer. Hist. Associa- 



lxii ILLINOIS HISTORICAL COLLECTIONS 

general policy, or only the hand of Jefferson, is a question which 
little affects the fact that his execution of it was wholehearted and 
unscrupulous. That he sought to counteract by a popular Indian 
policy the dissatisfaction created by his civil administration was a 
charge made at the time which historians have generally en- 
dorsed. 1 

Mrs. Goebel, in her recent monograph upon Harrison, does 
all that can be done to show that he did no more than carry out 
policies that were Jefferson's. It is evident that in regard to this 
matter, as in regard to many others, there are contradictions be- 
tween Jefferson's principles and his practice. It was inevitable 
that he should seek to secure the western lands, for cheap land, 
widely owned, was the very basis of his political philosophy. It 
is also indubitable that Jefferson (at any rate his Secretary of War) 
instructed Harrison "to ask the Indians if they did not consider 
. . . valid" their old cessions to the Illinois and Wabash com- 
panies, "and if not, what were their reasons. Secondly, he was 
told to try to persuade the Indians to transfer these cessions to the 
United States. If Harrison failed to accomplish this, he should at 
least assert a claim to the whole tract which he considered to have 
been ceded to the French." 2 And though this was not an absolute 
insistence upon those utterly discredited grants, nevertheless, acting 
under this authority, Harrison did insist upon them (and bribe and 
threaten), and secured a great cession on the basis of these claims. 
Jefferson also personally ordered Harrison to involve the tribal 

1 McMaster, History of the United States, 3 : 137, 528-529 ; H. Adams, 
History of the United States, 6 : 82-84 ; Abel, "Indian Consolidation," 267 ; 
Alvord, Illinois Country, 416. Mrs. Goebel admits this, Harrison, 94. Her 
position is that Harrison merely carried out Jefferson's instructions (ibid., 
94 and note, 97, 100, 104), and that "in following this policy Harrison 
pleased the president" — citing no evidence — "and the settlers" (97). Henry 
Adams also says, "during eight years of Harrison's government Jefferson 
guided the Indian policy" ; and that "his greed for land equalled that of 
any settler on the border." Op. cit., 69, 74. 

2 Ante, xxvi, n. 3 ; Goebel, op. cit., 100, citing MS sources. See further 
on these grants, post, lxvii, n. 1. 

tion, Report for 1906, I, 267, 388. Although Mrs. Goebel is an apologist 
for Harrison her account fully sustains the quotation, op. cit., 100-107, 
passim. On his acts in relation to Tecumthe's policy see H. Adams, op. 
cit., 6 : 78-83, 87. On the Mcintosh libel compare Dunn, Indiana, 413 ; 
Goebel, op cit., 125. 



INTRODUCTION lxiii 

chiefs in debt in order to oblige them to sell the tribal lands ; a pol- 
icy which Henry Adams scathingly, and of course justly, denounced. 
There is, nevertheless, something to be said on the other side, both 
in criticism of Harrison and in defence of Jefferson. Mrs. Goebel 
asserts that Jefferson "disapproved no land acquisitions." 1 It may 
be noted, however, that when a land office was established at Kas- 
kaskia in 1804 it was only "for so much of the lands included 
within . . . the treaty . . . with the Kaskaskia tribe . . . 
as is not claimed by any other Indian tribe" ; and this was appar- 
ently the only treaty with reference to which such reservation was 
made, and also the only one which did not give rise to discontent. 2 
And there was a special reason for the form of that statute. It 
appears in orders given to Harrison in 1805 — in view of rumors of 
an Indian conspiracy — "to make explanations to dissenting chiefs 
and to counteract the effect of his own questionable methods." In 
1809, similarly, he was ordered to make a certain treaty provided 
the chiefs of "all the Nations who have or pretend a right to these 
lands should be present." Finally, when Harrison wanted to ne- 
gotiate for still more land in 1811 he was told it was inexpedient 
until "the discontents occasioned by the one lately concluded" had 
been quieted. 3 

There is also a little to be said in defence of Jefferson. 
Granted that a political philosophy in favor of small landowners 
is not superior morally, as a reason for taking lands, to the fron- 
tiersman's unphilosophical attitude, it remains true that from the 
time of the Louisiana acquisition onward, acquisition of lands east 
of the Mississippi was associated in Jefferson's mind with the plan 
of removing the Indians onto reserved lands west of the river, 
which he believed would put an end to wars. He believed that as 
game became scarce the Indians would necessarily either become 
citizens or remove to the west. 

1 Letter of February 27, 1803, Harrison, Messages, 71 ; see H. Adams, 
History of the United States, 6: 74-75; Goebel, Harrison, 94 n. 

2 Law of March 26, 1804, U. S. Stat, at Large, 2: 278, § 2; Goebel, 
op. cit., 105. 

3 Quotations from Abel, "Indian Consolidation," 267, citing MS 
sources of 1805; compare Goebel, 106; Amer. State Papers: Ind. Aff. 
1: 761; Goebel, 113-115. Harrison disregarded the instructions, and, as 
Mrs. Goebel says (115), "the sequel of this treaty was the Battle of Tip- 
pecanoe." 



lxiv ILLINOIS HISTORICAL COLLECTIONS 

In all other matters than land cessions the attitude of both 
Jefferson and Harrison was one of genuine sympathy for the In- 
dians. 1 There is no reason to suspect that the humanitarianism 
of either was tainted by hypocrisy. 

Harrison's use of his land policy in the attempt to hold his 
position against his gathering enemies was unsuccessful. A gen- 
eral policy does not often placate men with individual grievances. 
And so it was in this case. The judges and other county officers — 
with but very few others — were the landed magnates of the Illinois 
country. Nowhere could a local gentry ever more completely have 
dominated local society and government. They feared, since the 
territorial taxes fell almost exclusively upon land, exploitation by 
the populous eastern counties so long as the territory should re- 
main undivided. They resisted to the utmost the enforcement of 
the tax laws. These grievances, we have seen, were prominent in 
the petition of 1808 which listed Harrison's misdeeds. Finally, 
there was the matter of disputed land claims. No evidence of 
friendliness to particular individuals or factions can be found in 
Harrison's action upon claims presented to him. Scores of thous- 
ands of acres of land claimed by the above named men were, how- 
ever, pronounced invalid by the land commissioners for lack of 
evidence to support their claims, for perjury, and for forgery. 
And the commissioner who for almost thirty years dominated the 
proof of titles and the sales of land, Michael Jones, the man most 
hated and feared in these early years by the Illinois potentates, 
was supported and confided in by Harrison ; appointed to the 
Randolph Court, put forward as the Harrison candidate for dele- 
gate to Congress in the legislature of that year in which division 
triumphed. 2 Division was the only real political issue of the 
time. The desire for self-government — after division, but not 
through representative government within the Indiana Territory — 
and the complications of the land problem were the chief contribu- 
tors to its vitality. 

1 Abel, loc. cit., 241, 244, 252, 268: post, cxxx, n. 1; clxxxiv, n. 3. 

2 Biographical note, app. n. 13. On governors' confirmations see post, 
lxxix, n. 3. 



INTRODUCTION lxv 

Though tedious in its details the land problem must therefore 
be considered, for the light it throws upon the character and pol- 
icies of the men who managed the affairs of the Illinois country. 

Under the French regime crown grants were originally uni- 
formly made, apparently, en franc alleu — roughly equivalent to a 
fee simple. 1 But such grants did not include all the land ; indeed, 
only a small part, trie rest being reserved to the king. The com- 
mandants seem always to have assumed a right to grant lands. It 
is open to question whether their concessions were made, not in 
fee simple but in usufruct; the land reverting to the crown upon 
abandonment. The British had to some extent regranted confis- 
cated French concessions, possibly on this theory; and St. Clair 
favored its application to the French settlers who had migrated 
across the Mississippi into Louisiana, but who — very naturally — 
asserted, under ancient grants, a continuing claim to lands formerly 
occupied. The policy adopted by the government in favor of their 
claims was generous, but the opportunity to simplify the problem 
was lost. 2 It was further complicated by the prevalence of fraud 
in Spanish and French grants throughout the Mississippi valley, and 
by the custom of making individual transfers of land — naturally 
enough under the Custom of Paris, which was the law of the valley 
— by simple delivery of seisin, or by paper grants of the most in- 

1 Alvord, Illinois Country, 203-207. On the French feudal system 
generally in America see the works of W. B. Munro : The Seigniorial 
System in Canada, ch. 4-5 ; Documents Relating to the Seigniorial Tenure 
in Canada 1598-1854, lxxxiv-xc; brief summary in his Canada and British 
North America, 137-143. 

2 St. Clair to Jefferson, February 10, 1791, Amer. State Papers: 
Pub. Lands, 1 : 19 ; St. Clair Papers, 2: 400; S. Breese, The Early History 
of Illinois, 297-299 (important example of 1762) ; Louis Houck, History of 
Missouri, 2: 199 (citing Charleville v. Chouteau, 18 Mo. at 505 — but this 
relates to lots in common fields), 214. See Alvord, Cahokia Records (I. 
H. C, 2), xxii note 2. The provisions of the Laws of the Indies are in- 
consistent. Compare, in Amer. State Papers: Pub. Lands, 5: 631 et seq. 
(White's Compilation) : Lib. IV, Tit. 12, ley 2 (p. 649), IV-12-3 (p. 650), 
IV-12-14 (651), Royal Regulation of October 15, 1754 (p. 656, § 4), all 
of which express the usufructuary theory, with III-5-1 (p. 669 — of the 
Novissima Recopilacion, 1805) and IV-12-4 (p. 650). Some examples of 
British regrants are given in McDonough, Hist, of Randolph, Monroe and 
Perry Counties, 98. In the petition by Edgar et al. cited ante, xxi, n. 1. 
it is repeatedly alleged that the French grants were made in fee. 



lxvi ILLINOIS HISTORICAL COLLECTIONS 

formal character, which of course were unrecorded. 1 Following 
the French, the local British authorities after 1763 made extensive 
grants in violation of royal proclamation, and frequently (if not 
always) for personal gain. 2 Following Clark's conquest came 
Colonel John Todd, Virginia's lieutenant of the county of Illinois, 
who made other grants ; and after him Timothe de Monbreun made 
grants "without number." 3 A court set up by Todd at Vincennes, 
and claiming authority under him to do so, granted lands in the 
Wabash country for eight years (1779-1787) "to every applicant," 
and ended by dividing among themselves — each sensitively absent- 
ing himself on his own day of good fortune — the whole of the vast 
remainder supposedly cleared of Indian titles. 4 Finally, claims 

1 Harrison to Gallatin, from Kaskaskia, October 18, 1803 — Webster 
in Ind. Hist. Soc. Pub., 4: 248; Gallatin, Amer. State Papers: Pub. Lands, 
1: 187, evidence 187-189; compare 1: 610 (Miss. Ter. 1807), 6: 6-7 (Ark. 
1829), 7: 732 (Ala. 1835). Secretary Sargent, in Amer. State Papers: 
Pub. Lands, 1 : 10 ; Judge Woodward, 282, compare 250, 599— "Abstract 
(C)"; St. Clair Papers, 2: 166 n., 171-172; H. S. Cauthorn, History 
of the City of Vincennes, 46. See Judge Law's account of conditions at 
Vincennes — John Law, The Colonial History of Vincennes, under the 
French, British and American Governments (ed. 1858), 107-108. 

2 Amer. State Papers: Pub. Lands, 2: 121, 206-209, 139 (claims 1591, 
1593, 1594, 1595, 1969, 1971). On the corruption of Lieutenant-colonel 
Wilkins, illustrated in some of these grants, see Alvord, Illinois Country, 
266, 282, 283, 297; post, lxxix, n. 1. General Gage, it seems, "always 
declined to participate in a colonizing project" — Albert T. Volwiler, George 
Croghan and the Westward Movement, 1741-1782, 263. 

3 In St. Clair's words, which seem to evidence an extraordinary 
vagueness of knowledge regarding events in the Illinois country only seven 
to eleven years before his own arrival there, "a gentleman of the name of 
Todd" and "a person of the name of De Numbrun" — Amer. State Papers: 
Pub. Lands, 1: 19. See Alvord, Cahokia Records (I. H. C, 2), index, 
"land." Of course all settlement north of the Ohio was contrary to the 
Virginia 1 statute ; but it was nevertheless favored by George Rogers Clark 
and John Todd as a means of garrisoning the country, and they had made 
grants accordingly — ibid., lxix-lxx, lxxxiv. See also Alvord, Kaskaskia 
Records, (I. H. C, 5), 446 and citations. 

4 Amer. State Papers: Pub. Lands, 1: 10 — Secretary Sargent to the 
President, July 31, 1790; 16 — members of the "court of the district of Post 
Vincennes, under the jurisdiction of the State of Virginia" to Winthrop 
Sargent; 123 — Harrison to Secretary of State, January 19, 1802 (Harrison, 
Messages, 1 : 36 — same) ; 41 — Harrison to Secretary of War, February 26, 
1802. John Law, The Colonial History of Vincennes, 117-118, gives one of 
the old deeds. The total grants by this court are stated in St. Clair Papers, 
2: 166 n. to have been about 48,000 acres; this is doubtless based (what 
purports to be Sargent's journal is mixed with the editor's paraphrases and 
additions) upon Amer. State Papers: Pub. Lands, 1 : 10, where Acting- 
governor Sargent gives the same figures, but adds : "The court has also 



INTRODUCTION lxvii 

to immense areas were asserted by land companies upon the basis 
of alleged Indian grants made during the British period, 1 as 
against which the United States denied the validity of such titles, 
and also set up later quitclaims of the Indian titles allegedly so 
gained. 2 In this there was no inconsistency; but later our land- 
hunger led our government to demand recognition of these same 
titles, already repeatedly officially pronounced invalid ! 

By a resolution of the old Congress, in 1788, the claims were 
immediately confirmed of all "French and Canadian inhabitants, 
and other settlers . . . who on or before the year 1783 had 
professed themselves citizens of the United States, or any of 
them" ; and a donation of 400 acres "for each of the families now 
living" in villages of the Illinois country. 3 As a result of 

1 The Illinois Land Company of 1773 was organized to exploit a 
decision rendered in 1757 by Pratt later Lord Camden and Charles Yorke 
(and adapted for their own purposes by the land speculators about 1773), 
that a title deriving from the grant of an East Indian potentate was 
complete without a royal patent. Virginia, in her battle with the va- 
rious western land companies, repudiated this doctrine in 1776; as did, later 
(1823), the United States Supreme Court in Johnson v. Mcintosh, 1823, 
8 Wheat. 543; cp. Commonwealth v. Roxbury, 1857, 9 Gray (Mass.) 451, 
478. And see T. M. Marshall, The Life and Papers of Frederick Bates, 
1: 72; Volwiler, George Croghan, 295-296, 298, 309, 319-320; Alvord, 
Illinois Country, 300-301, 341. On the use made by Jefferson and Harrison 
of these claims of the Illinois and Wabash companies see ante, lxii. 

2 In 1787 ("We solemnly surrender our charter whatever it is") — 
Madison to Congress, December 1, 1803, in Harrison, Messages, 1 : 90-91. 
Only bare reference to fundamental legal points involved in these contro- 
versies can here be made. 

3 In a committee report to Congress made on June 20, 1788, which 
report was approved, it was resolved: (1) that "the antient settlers . . . 
should be confirmed in the possession of such lands as they may have had 
at the beginning of the late revolution, which may have been allotted to 
them according to the laws or usages of the governments under which 
they have respectively settled" ; and that "separate tracts" should be re- 
served to satisfy such claims. (2) "That measures be immediately taken 
for confirming in their possessions and titles, the French and Canadian 
inhabitants, and other settlers on those lands, who on or before the year 
1783 had professed themselves citizens of the United States, or any of 
them, . . . and [3] for laying off for the benefit of said inhabitants 
three additional tracts adjoining the several villages, Kaskaskies, la Prarie 
du Rochers, and Kahokia, in the form of a parallelogram, . . . and of 
such extent as shall contain four hundred acres for each of the families 

granted to individuals, in some instances, tracts of many leagues square," 
etc. The 48,000 acres, as a total, would be absurd; cp. post, lxxii-lxxiii. 
Alvord, Illinois Country, 418, erroneously applied Sargent's report to the 
Illinois country; see also 347. 



lxviii ILLINOIS HISTORICAL COLLECTIONS 

petitions from various classes of settlers not included within 
the provisions of these resolutions (in particular, no doubt, late 
comers of English speech), Congress passed an act of March 3, 
1791. By this act the family donation was extended to include 
every person who in 1783 was head of a family in either "Vin- 
cennes" (which was construed to mean the Wabash country) or 
the Illinois country and who had since removed from one to the 
other; and also to such family heads of 1783 who had afterwards 
left the territory, provided they should return within five years 
after passage of this act. Subject to the same proviso they were 
also confirmed (the language included only such heads of families) 
in all grants made to them before 1783 "according to the laws and 
usages of the government under which they had respectively settled." 
In addition, with regard to lands "actually improved and culti- 
vated" under any "supposed grant of the same by any commandant 
or court claiming authority to make such grant," the governor was 
empowered to "confirm to the persons who made such improve- 
ments, their heirs or assigns, the lands supposed to have been 
granted as aforesaid, or such parts thereof as he . . . judge 
reasonable, not exceeding to any one person four hundred acres" ; 
and likewise to grant not over 100 acres to each man, not having 
received a family or improvement donation, who was enrolled in 
the militia on August 1, 1790, and had done militia duty. 1 

1 U. S. Stat, at Large, 1 : 221 ; Annals, 1 Congress, 3 session, 2348- 
2350. For lists of early Illinois inhabitants compiled for Governor St. 
Clair (1796-1797) under the several provisions of this law see Chicago 
Historical Collections, 4 : 192-229. Similar lists could of course be far 
more accurately compiled from the claims affirmed by the commissioners ; 
such lists, the accuracy of which has not been tested, are given on pp. 424- 
425 of Reynolds, Pioneer History. Compare ibid., 130-131. See post, lxxv, 
n. 2 ; ccxx, n. 8. 

This act of 1791 also confirmed (§ 5) the Vincennes commons, and 
"a tract of land including the villages of Cohos and Prairie du Pont, and 

now living at either of the villages of Kaskaskies, la Prarie du Rochers, 
Kahokias, fort Chartres or St. Phillips." Alvord, Kaskaskia Records 
(I. H. C, 5), 479-482— italics added. The limitation (later abandoned) to 
settlers who had become citizens followed a condition imposed by Virginia 
when she made her cession in 1784 (ibid., 412-413). 

Resolutions 0) and (2) covered the confirmation of ancient grants, 
(3) was the basis of "future donations" based on family rights or head- 
rights. Many difficulties inherent in the phraseology of these resolves dis- 
appeared when the act of 1791 replaced them. 



INTRODUCTION Ixix 

These powers of the governor were transferred in 1804 to 
the land commissioners within their respective districts. 1 Thus 
most — but if the statute be literally construed, not all — former 
grants were recognized, subject to proof of good faith in the claim- 
ants ; and new bounties from the United States were added. 

There was rarely a grant that could be certainly located on 
the land. Descriptions such as "on the Kaskaskia, seven or eight 
miles above the village," "on the Okaw, six miles below 
Horse Prairie," "adjoining the Jesuits' land," "on the road to fort 
Charters, opposite the village of Kaskia," "situation unknown," 
"ten leagues up the Ohio River," "on the Mississippi some thirty 
miles above the mouth of the Ohio," "right below Tower Rock," 
"on Clark's trail to Vincennes," "seven arpents front from the 
Mississippi to the hills and back on the hills eighty arpents," "a 
large tract of land on the Illinois river," "a large tract near Fort 
Chartres," "five arpents front by sixty in depth, east of the Kas- 
kaskia river, and below the village," "about three thousand acres 
lying within the Renault grant," "in the Big Wood above Kaskas- 
kia," "in the Indian Prairie," "in the Grand Prairie," 2 — were not 
unique, nor even exceptional : they are ordinary descriptions of 

1 Statute of 1804 cited post, lxxx, n. 1. 

2 These are taken from McDonough, Hist, of Randolph, Monroe and 
Perry Counties, 98; Amer. State Papers: Pub. Lands, Vol. 2, passim in 
the reports on ancient grants, 138-139, 157-161, 211-212. 

heretofore used by the inhabitants of the said villages as a common" (see 
Amer. State Papers: Pub. Lands, 3: 432; McDonough, Hist, of Randolph, 
Monroe and Perry Counties, 97). No express confirmation of the Kas- 
kaskia commons was made; the commissioners confirmed the lots within it 
under the head of ancient grants. Governor St. Clair, in 1796, referred 
to claimants as being unwilling to pay for the surveying of lands "which 
they could not cultivate, and were restrained from selling till five years 
after possession had been given them" — St. Clair Papers, 2: 399. There 
was no such provision in the statute, and the basis of his statement does 
not appear. 

The three parallelograms for donation lands, provided by the resolu- 
tions of Congress of June 20, 1788 (preceding note) were to be located 
west of "the ridge of rocks," the bluffs bordering the flood plain of the 
Mississippi. They would have fallen largely in "the American Bottom." 
Three squares east of the ridge were substituted (unacceptably to the 
inhabitants of Cahokia — Amer. State Papers: Pub. Lands, 1 : 19-20) by 
another resolution of August 28, 1788 — ibid., 32; and Alvord, Kaskaskia 
Records (I. H. C, 5), 490. The act of March 3, 1791 repealed the altera- 
tion, But the original location areas remained likewise unsatisfactory. 



Ixx ILLINOIS HISTORICAL COLLECTIONS 

locality, bounds being rare and metes unknown. The descriptions 
in the governors' patents were equally vague. The same is true of 
those of town lots in Vincennes. 1 The territorial laws on survey- 
ing were merely an invitation, or — -one might say, considering the 
state of titles, — a longing. There were no surveys because there 
were no surveyors. To be one was to be a highly educated man. 2 
St. Clair in 1790, could find only one man around Cahokia who 
knew anything of the subject; but neither there nor at Kaskaskia 
would claimants pay the fees, which he agreed they were ill able to 
afford. 3 Secretary Sargent agreed with the citizens of Cahokia 
and Prairie du Pont, in 1797, upon two tracts for their common 
lands supposedly containing 5,400 acres : it turned out that one 
alone contained 20,000. 4 Undoubtedly, too, French and Ameri- 
can measures were confused. 5 

1 In the land commissioners' report of 1807, ibid., 1 : 592, they refer 
to the great vagueness in the patents, "no topographical description being 
ever given by which it may be known in what part of the country the 
lands lie." See also Law, Colonial Hist, of Vincennes, 59-61. 

2 Post, 25 (1802), 459 (1807). The law (copied from Virginia) 
unfortunately required the surveyor to be a resident of the county. It 
forbade any survey without chain carriers. Compare Governor Reynolds, 
Pioneer History, 330, 331. There are various such passages in this book 
and in My Own Times. On the surveying problem compare St. Clair 
Papers, 2 : 166 n, 168, 171, 173, 399. 

3 St. Clair in Amer. State Papers: Pub. Lands, 1: 19-20. According 
to him the Kaskaskia surveyor was paid $2.50 per mile, $2 for a village lot. 
By territorial statute of 1802 (post, 27) the charge was fixed at $5.25 for 
not over 400 acres (plainly bounded with plats), per mile (and 30 cents 
per mile for more than 10 miles), $1 for a village lot. See, on the poverty 
of the inhabitants, Amer. State Papers: Pub. Lands, 1 : 20, (petition by 
James Piggott and 45 others), 21 (Father Gibault's picture of the misery 
of the Illinois country, the absolute impossibility of bearing the surveying 
costs); St. Clair Papers, 2: 148-149, 168 (St. Clair's concurrence with 
Gibault), 399; Alvord, Kaskaskia Records (I. H. C, 5), 513. 

4 Instead of 4,000 — Amer. State Papers: Pub. Lands, 2: 194; the 
area was given as 5,400 in the statute of March 3, 1791 — ante, Ixviii, n. 1. 

5 "Arpent" was doubtless popularly used as the equivalent of "acre," 
as by Secretary Sargent in Amer. State Papers: Pub. Lands, 1 : 84. As 
Judge Woodward in one place gives the values of the arpent of Paris 
("universally" used in the French colonies of North America, according to 
him) it amounted to .848 American acres (ibid., 264). An average of 
all instances in the reports of the Kaskaskia commissioners where com- 
parison is possible (ibid., 2: 213, 214, 219, 225) gives .846. The value of 
the arpent of length is likewise nowhere explicitly stated. Judge Woodward 
gives it as 192.25 feet, and this I have used. The commissioners twice 
give 84 arpents as the value of a league (ibid., 192, 212; though this can- 
not be reconciled with the details of claim 2641, p. 139, and the map at 
p. 183). General Harmar used 22 leagues as about 50 miles (St. Clair 
Papers, 2: 31). 



INTRODUCTION lxxi 

The titles in the Wabash country were certainly less confused 
than those in the Illinois counties. Yet Judge Symmes wrote of 
the former: "The confusion of title here is a labyrinth of per- 
plexity which requires the utmost care nay tenderness to set right — 
they have been called on to aduce their titles — they have a variety ; 
prescription, bare possession — fraudulent deeds from those who 
had no right to sell, but mere American imposters who came among 
them after the subjugation of this country, pretending authority 
to convey lands & rights to take up lands — no records are pre- 
served — they sometimes have had a notary public, but when ever 
one died or removed all his papers & entries were lost." 1 

The chaotic uncertainty of titles, the cheapness of land even 
aside from such uncertainty, offered irresistible incentives to spec- 
ulation. Furs were the chief item of trade in the pre-American 
period ; land was the chief concern of the Americans. Such specu- 
lation "was the only outlet for any considerable amount of capital. 
But it was more than that — it was practically the only activity in 
which men could give free scope to their business ability." Specu- 
lators in continental currency and in land had long since found 
their way into the Illinois country. In order to understand con- 
ditions there it is essential to remember that, as John Adams said, 
land speculation has been endemic in this country since William 
Penn (or earlier) ; to recall the notorious fact that the Ordinance 
of 1787 was born, as Alvord has said, in "a rare combination 
of New England settlers and New York land speculators"; and 
to remember that a very large part of the public men of the time 
were quite as active in land- jobbing as in statesmanship — by no 
means least so Franklin, despite the preachments of Poor Richard 
in favor of prudence and frugality. 2 All our history until very 

1 June 22, 1790, to Robert Morris — Bond, John Cleves Symmes, 291. 
In an official report by Secretary Sargent, of the same year, he wrote : 
"There is scarcely one case in twenty where the title is complete, owing 
to the desultory manner in which public business has been transacted, 
and some other unfortunate causes" (italics added) — Amer. State Papers: 
Pub. Lands, 1 : 10. See post, xciii, n. 2 on Michigan titles. 

2 Buck, Illinois in 1818, 152; Alvord, Cahokia Records (L H. C, 2), 
lxix, lxx, lxxi ; Illinois Country, 392, 393 ; Beard, Economic Origins of 
Jeffersonian Democracy, 320. 

The activities of Franklin and Washington can best be seen in Volwiler, 
George Croghan, index; likewise those of William Franklin, Sir William 



lxxii ILLINOIS HISTORICAL COLLECTIONS 

recent times has been dominated and colored by this presence of 
cheap land. It has played a part of universality, yet of paradox: 
the hope of democracy, the spur to individual initiative, the greatest 
cause of family instability, it has also been a powerful contributor 
to our national conservatism ; the strongest pillar of prosperity, it 
has also been the greatest single impulse to economic debauchery. 
It first infected us with the fever for sudden wealth. From the 
days when our forefathers began to strip the Indian of his hunting- 
grounds with beads and gallons of New England rum down to 
Teapot Dome it has tempted and corrupted us. The venality un- 
covered by the land commissioners in the Illinois country is a mere 
example, nothing more. 

Under the resolves of Congress in 1788 some claims would 
have been inalienable for three years. The Spanish authorities 
in upper Louisiana seem effectually to have barred speculation 
under their grants. 1 But the statute of 1791 placed no impedi- 
ments in its way. The amount of the traffic in the claims to be 
confirmed under that act was immense. Claims originally held by 
hundreds passed within a few years into the hands of a few score 
individuals. 2 In the Wabash country "court" grants of two and 

i Compare Houck, Missouri, 2: 215, 216, 223-224; but see 220— 
unperfected titles were evidently to some extent transferable. See also 
Amer. State Papers: Pub. Lands, 5: 735. 

2 Brink, McDonough, Hist, of St. Clair County, 74-75, summarizes 
the original record book of John Hay, recorder ; still preserved at Belleville. 

Johnson, and the firm of Baynton, Wharton & Morgan, who were active 
in Illinois. See, for interests in the early land companies, Alvord, Illinois 
Country, 289, 302, 381, 392-395. Also, for the years around 1787, Beard, 
Economic Interpretation of the Constitution of the United States, 23, 27, 49, 
151, and details in the sketches of the men (Jonathan Dayton, Franklin, 
Hamilton, Washington, etc.) named on the page last cited. As for the 
interests of Patrick Henry and Gallatin — the latter lost much of his patri- 
mony in land deals — H. Adams, Life of Albert Gallatin, 67 ; and when 
George Rogers Clark was commissioned for the conquest of the Illinois 
country Governor Henry and he seem to have formed a land partnership — 
Alvord, Illinois Country, 341-342. The act of Congress of March 3, 1791 
(ante, lxviii) confirmed to P. Gibault a lot formerly in the occupation of 
the priests at Cahokia. Cp. Law, Colonial Hist, of Vincenncs, 55-59. Query 
whether this land confirmed to Gibault was not the same which Gibault 
had tried to pass to Clark. See further on these claims Amer. State 
Papers: Pub. Lands, 2: 139, claim 336; and on Clark's land claims in 
general, J. A. James, George Rogers Clark Papers (I. H. C, 19), xxxiv. 
On Hamilton's involvements see also Lectures on Legal Topics 1921-22 
before the Association of the Bar of the City of New York, 117. 



INTRODUCTION lxxiii 

three hundred thousand acres were taken by speculators, who took 
them to the east and sold them to the ignorant. Plans for coloniza- 
tion by innocent settlers became imminent. Subgrants of a thous- 
and acres could be had "for an indifferent horse or a rifle gun." 1 
In the Illinois country smaller grants, but practically the entire 
country, were involved. When St. Clair and Randolph counties 
were organized the donation claims under the Congressional stat- 
utes, together with the French, British, Virginian, and Company 
claims, called for hundreds of thousands of acres. All of the Mis- 
sissippi bottom lands and the adjoining bluffs for many miles were 
plastered with conflicting claims. There also the traffic in claims 
had scattered them over the United States. Headrights are said 
to have sold (presumably for the higher prices in later years) at 
from seven to fifty cents per acre ; militia rights for from six to 
fourteen cents ; improvement rights for seldom less than fifty 
cents. 2 The improvement claims would naturally be to better 
lands. Variations in the other claims, unlocated, must have re- 
flected popular appraisals of their validity. The largest sale re- 
corded, of 9,233 1/3 acres (21 1/3 headrights and seven militia 

1 Harrison, Amer. State Papers: Pub. Lands, 1: 123. Matthew Lyon 
stated in Congress that he knew of 200,000 acres on the Wabash offered 
for sale at 20 cents per acre — Annals, 9 Congress, 1 session, 469. 

2 St. Clair, Amer. State Papers: Pub. Lands, 1 : 90; Hist, of Ran- 
dolph, Monroe and Perry Counties, 101. Governor Reynolds (My Ozvn 
Times, 156) says the militia rights sold for about 75 cents ; Brink, McDon- 
ough, Hist, of St. Clair County, 75-76, gives examples (chiefly of 1793-1796) 
of farm lands sold for 30 to 50 cents ; militia rights, 12 to 17 cents ; family 
rights, averaging about 20 cents. Mr. Boggess, The Settlement of Illinois 
(Chic. Hist. Colls., 5), 92, says that in 1806 $3 was the maximum price 
even in settled parts of the territory; this must have been for clear titles. 

In less than seven years claims held by about 400 individuals passed into 
the hands of 89, of whom only a dozen were French ! Of the total of over 
96,000 acres fifteen judges (fourteen of the Illinois country and John 
Cleves Symmes) held almost 63,000. With three exceptions all the men who 
claimed 1,000 or more acres, (fifteen in number) were either county or 
territorial officials. John Edgar claimed 39,700 acres ; Pierre Menard 
10,300; William Mcintosh 3,800; John Rice Jones 2,340; George Atchison 
2,100; John Dumoulin 1,826; John F. Perrey 1,520; Henry O'Hara 1,400; 
Nicholas Jarrot 1,298; John Cleves Symmes 1,200; Shadrach Bond Sr. 
1,190; William Biggs 1,100; James Piggott 1,120; two others, 1,000 each— 
a total of 70,894 acres. The Randolph County figures cannot be segregated 
in the commissioners' reports — their district included both counties and 
there is no Randolph record giving the precise data for that county alone ; 
but see post, lxxiv for the general situation. 



lxxiv ILLINOIS HISTORICAL COLLECTIONS 

rights), was for $9,000 to parties in Baltimore. 1 The profit is- 
evident. The Quarter Sessions of Randolph, in 1807, valued the 
improvement rights and headrights of various of the largest land- 
owners along the Kaskaskia — who "applicated this" — at seventy- 
five cents, and those in the Mississippi bottom at twice as much. 
Unlocated claims, confirmed, were of course of much less value. 2 
We shall see the obstinacy with which assessment was resisted. 
In what appears to be the first one regularly made in Randolph, in 
1808, 435,800 acres were taxed to less than 300 individuals, suc- 
cessors to more than 1,000 original claimants. The largest holders 
were John Edgar, 130,400 acres; Robert Morrison, 34,000; Wil- 
liam Morrison, 24,800; John Rice Jones, 16,400; James O'Hara, 
15,200; Pierre Menard, 12,600; Richard Lord, 11,200. 3 Much, 
perhaps most, of Robert Morrison's land was acquired at sheriff's 
sales. 4 Add to the above names those of Nicholas Jarrot, 
George Atchison, J. F. Perrey, and John Dumoulin of St. Clair, 
and of Henry O'Hara, William Kelly and Robert Reynolds, of 
Randolph, and the list includes the leading land traders of the 
Illinois country. All of those above named were, or had been, 
judges or other high officials except the O'Haras and Lord. Du- 
moulin died bankrupt; the land commissioners swept away large 
portions of the claims of all the others ; perhaps Edgar and Jarrot 
alone died, in some sense for that time, wealthy. Governor Rey- 

1 Sale by Pierre Menard and wife, February 22, 1799 — McDonough, 
Hist, of Randolph, Monroe and Perry Counties, 101. 

2 Post, cxviii, n. 5 ; McDonough, Hist, of Randolph, Monroe mid 
Perry Counties, 104, gives the tax valuations (per 100 acres) : $1, first 
class, river bottom) lands; $0.75, second class (uplands); $0.37^, unlo- 
cated but confirmed claims. They give the rates of 1808 (p. 98) as : $2.00, 
"cultivated" land; $1.50, "improved" land; $1, "wild" but located; $0.75, 
wild and unlocated; $2, on "fields" — i. e. doubtless, common fields — mainly 
around Kaskaskia and Prairie du Rocher; and one 3-acre tract (owned 
in London and Philadelphia), $2. 

3 McDonough, op. cit., 98. The conveyance record there referred to 
(101), in which deeds to Edgar fill 172 consecutive pages, still exists at 
Chester. The number of original grantees might be approximately deter- 
mined by counting those indicated in the reports of the land commissioners, 
which I have not done. The number 1,000 is approximately accurate. Mr. 
Webster (Ind. Hist. Soc. Pub., 4: 249) states the number of fraudulent 
claims rejected in the reports of the commissioners in 1810 as 890. This 
agrees with Davidson and Stuve, History of Illinois, 237. 

4 A large part of Randolph Deed Record L, 1805, consists of such 
deeds to him. It was characteristic of his caution. 



INTRODUCTION lxxv 

nolds — whose father was ruined, and own name smirched, by the 
temptations that surrounded Randolph titles — invariably refers 
with respect to the few, like John Hay, who never engaged in the 
traffic, "altho the whole country, almost, were engaged in it." 1 

Some of these speculators concealed from those entitled under 
the acts of 1788 and 1791 their rights thereunder, with the result 
that many Americans, becoming discouraged, left the country; 
and assured the French Catholic slaveowners that their slaves 
would be confiscated, with the result that "most" of these migrated 
to Louisiana ; the speculators buying up the rights of both. 2 

Even before the resolutions of Congress in 1788 petitions had 
been received praying a settlement of land titles, and Congress had 
voted in 1785 to send a commission to investigate them. 3 The 
action of 1788 only increased difficulties, for it was found that the 

1 See app. n. 33. It is extremely doubtful whether any, unless Edgar 
and William Morrison, retained much wealth. The absence of Robert 
Reynolds from this assessment roll of 1808 is significant ; see post, cxvii ; 
Pioneer History, 229. 

2 Amer. State Papers: Pub. Lands, 2: 124. The ruse had been used 
before. George Morgan had made use of it to draw settlers from Illinois 
to his colony at New Madrid — Hamtramck to General Harmar, March 
28, 1789: Alvord, Kaskaskia Records (I. H. C, 5), 503. Barthelemi Tar- 
diveau wrote to Governor St. Clair that Article six of the Ordinance had been 
"translated and circulated" by "some designing characters" ; "it was de- 
signedly represented to them, and with many aggravating circumstances 
rumored that the very moment your Excellency landed at the Illinois all 
their slaves would be set free. A panic seized upon their minds, and all 
the wealthiest among them, having but the wreck of once affluent fortunes, 
have gone to seek from the Spanish Government that security which they 
conceived was refused to them. The plot has succeeded to a miracle. Im- 
position has reaped the fruits of her cunning, and obtained for a paltry 
consideration very valuable estates." St. Clair Papers, 2: 118-119. See also 
St. Clair's report to the President after his visit to the Illinois country in 
1790, ibid., 175-176, 400. He mentions Morgan "particularly"; but it is 
evident that Tardiveau had the resident Illinois land-jobbers in mind. The 
population of Illinois by 1800 had fallen to about the same as in 1750. 
The greatest decrease was in the late 1780's. In 1783 there were in Kas- 
kaskia 194 heads of families (39 of these American) ; in 1790 only 44, a 
decrease of 77 per cent. By 1800 the population of Illinois had again risen 
to about 2500, of which perhaps 900 or 1000 were Americans ; and of these 
about 150 had arrived before 1787. See Alvord, Illinois Country, 359, 373, 
407-408; Cahokia Records (I. H. C, 2), cxliii. 

3 In 1784 such petitions were presented by Carbonneaux, former clerk 
of the_ Kaskaskia court, and by John Dodge, as a result of which the 
resolution referred to was passed in 1785 — Alvord, Illinois Country, 363. 
In June, 1786, seventy-one Americans at Vincennes made a similar peti- 
tion — Boggess, The Settlement of Illinois, 47. 



lxxvi ILLINOIS HISTORICAL COLLECTIONS 

lands provided for the location of headrights were nearly, if not 
entirely, covered by ancient grants of earlier governments or by 
irregular grants whose validity must be determined under the 
statute of 1791. Many claims, also, fell outside the location areas. 
It was also objected that these were in part rocky and of little 
value. 1 John Edgar, William Morrison, William St. Clair (cousin 
of the Governor), and John Dumoulin, therefore, prayed in 1796 
a relocation of donation lands. 2 The Vincennes convention of 
1802 urged that claims under the acts of 1788 and 1891 should be 
definitely estimated. 3 Five popular petitions and one from the 
General Assembly gave expression to discontent in 1805. The gist 
of these petitions was a prayer that claimants might locate their 
claims in the land offices at some fixed rate per acre, upon such 
public lands as they might select. 4 But this was impossible. 
Though seventeen years had passed, and almost nothing had been 
done, eight more were to pass before titles would be sufficiently 
settled to determine what lands belonged to the government, and 
permit the sales of public land to begin. In the meantime more 

1 St. Clair to U. S. Senate, January 7, 1799— Amer. State Papers: 
Pub. Lands, 1 : 90 ; report of committee of the House of Representatives, 
ibid., 68-69 ; land commissioners to Gallatin, February 24, 1806 — ibid., 286 ; 
Governor St. Clair to President, St. Clair Papers. 2: 400-401. 

2 On any public lands, of equal value with the donation tracts, in 
the vicinity of the respective villages. Petition of January 12, 1796, cited 
ante, xxi, n. 1. 

3 Dunn, Ind. Hist. Soc. Pub., 2: 472; Annals, 8 Congress, 1 session, 
1024; report to House of Representatives in- favor of such action. 

4 The commissioners approved of this in their report of February 
24, 1806 — Amer. State Papers: Pub. Lands, 1 : 285. Two of these petitions, 
dated December 2 and 3, 1805, and a third undated petition, were pre- 
sented in Congress on January 13, 1806 — Annals, 9 Congress, 1 session, 
339. Photostatic copies of the originals are in the Illinois Historical Survey. 
The legislative petition, presented December 18, 1805, is included in Dunn's 
"Slavery Petitions" (Ind. Hist. Soc. Pub., 2: 479-480). A fourth popular 
memorial, committed in the national House on January 17, 1806, is also 
given by Dunn, ibid., 501, 504. For the fifth, from Peoria, see post, xcv, 
n. 4. The first two petitions were from squatters, who wished bounty 
grants of the land upon which they had settled (prayer rejected, Annals, 
loc. cit., 352, January 21, 1806) and held up the generous policy of the 
Spanish authorities in Louisiana. See ante, xxxii, n. 1, for signers. The 
third petition referred to prayed that the claimants of Indiana Territory, 
under the law of 1791, be put on an equality with settlers in Louisiana 
Territory prior to December 20, 1803, who had been given, the petitioners 
believed, more generous treatment (by a law of March 2. 1805, U. S. Stat, 
at Large, 2: 324). See also the report of March 3, 1800 (House of Rep- 
resentatives), Amer. State Papers: Misc., 1: 206. 



INTRODUCTION lxxvii 

and more claimants and new immigrants became squatters on gov- 
ernment land. 

Governors St. Clair 1 and Harrison made some attempt to 
deal with the claims. St. Clair, when in the Illinois country in 1790, 
directed the inhabitants to exhibit their titles. "A great many 
claims and title deeds were accordingly exhibited, examined, and 
decided upon, and orders of survey, for such as were found au- 
thentic, were issued ; which was necessary to be done before pat- 
ents of confirmation could be made out." But no locations were 
made in view of the objections to the lands provided for that pur- 
pose. 2 As St. Clair rejected at this time all Virginia grants (by 
Todd, De Monbreun, and the Vincennes court — though these last 
did not affect the Illinois lands), and as the statute of 1791 con- 
ditionally recognized all of these, it became necessary to reexamine 
many claims, which he did on a second visit to the west in 1795 ; 
also passing upon many before then unpresented. But still no 
locations were made ; nor did he decide in any case upon the quan- 
tity of land to be granted in cases of improvement rights and head- 
rights. With respect to militia rights alone did he feel safe in 
taking final action. Finally, twenty-one claims (of other classes, 
apparently) had progressed to patents in 1799. 3 

It is interesting to observe how the laws were administered 
by those charged with their execution. Secretary Sargent, follow- 
ing the law, confirmed the whole or portions of improvement 
claims, both in the Wabash and the Illinois countries, at his discre- 
tion; 4 but ignored the law in assigning locations other than those 

1 Acting-governor Sargent, in 1797, appointed a board to investigate 
titles in the Vincennes district. Amer. State Papers: Pub. Lands, 1 : 576, 
579. 

2 Amer. State Papers: Pub. Lands, 1: 90; ante, lxviii, n. 1; lxxvi, 
n. 1. The first surveyor for Vincennes left the country, the first for 
the Illinois country did nothing — probably the pressure on them was strong. 
In 1795 new surveyors were appointed. 

3 Amer. State Papers: Pub. Lands, 1: 90; St. Clair Papers, 2: 398- 
400, 412. Governor St. Clair, in 1796, misinterpreting the statute of 1791, 
instructed his surveyor outright, with regard to the court grants in the 
Vincennes countrv, "all those will stand" ! And in fact they did — Amer. 
State Papers: Pub. Lands, 1: 298, 559; act of March 3, 1807, U. S. Stat, 
at Large, 2 : 446, § 1. See post, xcvi, n. 2. 

4 Amer. State Papers: Pub. Lands, 1: 91; see also representation 
of the Illinois legislature to Congress, January 14, 1831— Amer. State 
Papers: Pub. Lands, 8: 335. The law of 1791 (ante, lxviii, n. 1) per- 



lxxviii ILLINOIS HISTORICAL COLLECTIONS 

assigned by Congress. St. Clair observed law in the latter respect, 
but agreed with Pickering to ignore it in the other — granting 400 
acres for any honest improvement (without regard to value), or 
none at all. 1 Harrison ignored the statutory provisions with re- 
spect both to militia and family donations. St. Clair complained 
that Sargent left only "some rough minutes of his transactions" ; 
Harrison, that St. Clair would not deliver records to him ; the Kas- 
kaskia commissioners, that neither governor supplied them with a 
list of patents issued (leaving to claimants to suppress or present 
them as their interests dictated), and that St. Clair communicated 
to them the evidence upon which he acted in but a single case — 
a case, as it happened, of most manifest fraud, which he had over- 
looked. 2 Apparently St. Clair submitted very scanty memoranda 
of his confirmations, Harrison somewhat fuller. 3 One record 
of the former, cited by the commissioners as "a specimen," was a 
page from his minute book in which (in thirty-one printed lines) 
he disposed of twenty-eight claims by bundles of evidence 
("bundles of papers given in by Mr. Edgar") — with almost no 
names, no dates, no mention of specific deeds, no descriptions that 
identified any particular land; involving a total of some 13,000 
acres ! He confirmed the same claim to different persons ; the same 
claim twice over (for duplicated acreage) to the same person. 4 
To John Edgar and John Murray St. Clair, his son, he confirmed 
a claim the patent for which called for 13,986 acres but the bounds 
for 30,000, and which rested upon a British grant that on its face — 
aside from its invalidity because violating crown orders — was con- 

1 Amer. State Papers: Pub. Lands, 1: 91 (St. Qair's official report 
of January 7, 1799 ; compare his draft of 1796 in St. Clair Papers, 2 : 398) . 

2 Amer. State Papers: Pub. Lands, 1: 91, 286; 2: 204, top; Messages, 
1: 50. 

3 The commissioners' comments upon the former are elaborate and 
caustic; but a mere reference (Amer. State Papers: Pub. Lands, 1: 286). 
in the case of Harrison, to "the Governor's records sent us in November 
last," 1805. 

4 Details on these claims, ibid., 2 : 203-240 ; see especiallv 203, cl. 
2009 — taking it in its least unfavorable aspect as one of inadvertence; 205, 
219 (Geo. Atchison, Jas. Ogle) ; 147, 218 (claims 1903 and 521) ; 235 
(claim 1407). 

mitted the governor to confirm family claims in his discretion, not exceed- 
ing 400 acres per person; but Secretary Sargent's action caused endless 
complaints. To these the legislature in 1831 still gave voice. 



INTRODUCTION Ixxix 

ditioned upon approval by higher authority (never given) and 
was made speculatively by the grantor for a share reserved to him- 
self in the grant. One-half of this claim had been assigned to the 
Governor's son before the confirmation, and the patent was issued 
"after the powers of Governor St. Clair had ceased to exist in the 
Indiana Territory." 1 Another claim of precisely the same kind 
covered only 1,105 acres; and a third — save that Edgar assigned 
a moiety of this to Arthur St. Clair, another of the Governor's 
sons — was for 5,969 acres. Other egregious errors of official 
judgment seem ordinary only by comparison with these. 2 Harri- 
son's record is similar, but better. In dealing with individual claims 
his carelessness or errors of judgment were equal to those of St. 
Clair, 3 but no cases of nepotism are recorded against him. 

This hasty action by St. Clair and Harrison, whose time was 
hopelessly inadequate to deal with the interminable intricacies of 

ilbid., 204, 208, 216, 239-240 (cl. 2208). The original grant was made 
by Lieutenant-colonel Wilkins in 1769 to the firm of Baynton, Wharton, and 
Morgan (with whom Wilkins had general and corrupt connections), he 
to receive one-sixth in case of confirmation, and he himself signed the 
statement: "For form's sake I have registered the above; but the grants 
therein alluded to" — of which the one here in question was but one of six — 
"are null and void until confirmed by the General's approbation." On 
Wilkins' corruption see ante, lxvi, n. 2; also C. E. Carter, Great Britain 
and the Illinois Country, 1763-1774, 155-156. General Gage and the British 
government never confirmed these grants ; they were flagrant violations 
of crown proclamations. It is doubtless this land the deed of which by 
Edgar to John Murray St. Clair (on June 11, 1790) is printed in Brink, 
McDonough. Hist, of St. Clair County, 86 ; it is described as between 
Kaskaskia and Prairie du Rocher, and as "purchased by me at public sale, 
by order of the syndic of Kaskaskias, as the estate of Richard Winston." 
The consideration given by the Governor's son was one phaeton and har- 
ness valued at $200. See post, lxxxix, n. 1. 

2 Amer. State Papers: Pub. Lands, 2: 203 (claim 2009); 204, 211 
(claim 2207— exact acreage 1104.8) ; 214 (claim 2209). 

3 Confirmations to Wm. Atcheson, Wm. Biggs, Wm. Mcintosh, Wm. 
Morrison, Wm. St. Clair, and Robert Morrison were made exclusively, 
or almost so, by Governor St. Clair ; to Jean Bte. Barbau, Geo. Fisher, 
Nicholas Jarrot, J. Rice Jones, Jas. O'Hara, John F. Perrey, Robert 
Reynolds, John Reynolds, by Governor Harrison ; to George Atchison, 
Shadrach Bond Sr. and Shadrach Bond Jr., Jas. Dunn, John Edgar, Na- 
thaniel Hull, and Pierre Menard by both governors. Probably those who 
began early used St. Clair, and him exclusively if they had few claims ; 
and those who began late used Harrison. If the question of territorial 
division is taken as a party test it is impossible to find politics in these 
confirmations. See ante, liii, n. 4. It was charged by Isaac Darneille 
in his Letters of Decius (quoted in Goebel, Harrison, 67) that Harrison 
had confirmed claims of favorites and rejected claims of equal merit pre- 
sented by Darneille. On Darneille see post, app. n. 81. 



lxxx ILLINOIS HISTORICAL COLLECTIONS 

the problem, had no other effect than to add new snarls to the 
title of great portions of the country. 

Finally, in 1804, Michael Jones and Elijah Backus were ap- 
pointed a board of federal land commissioners to examine into all 
claims in the Illinois country. Their final reports were submitted, 
after six years of arduous labor, early in 1810. A second board 
(Michael Jones, John Caldwell and Thomas Sloo) was appointed 
in 1812 to deal with the governors' confirmations, and concluded 
its work in 1813. All the reports Of both boards in favor of claim- 
ants ; also all claims reported specially by the second board, without 
rejections ; and certain exceptional claims recommended by Michael 
Jones were confirmed by Congress. 1 

1 The first board acted under Congressional statutes of March 26, 
1804 and March 3, 1805 (similar boards operating in Vincennes, Michigan, 
Mississippi, and Louisiana). The second board acted under a statute of 
February 20, 1812. For these statutes— U. S. Stat, at Large, 2: 277 (1804), 
343 (1805), 677 (1812) ; Annals, 8 Congress, 1 session, 1285-1293 (1804) ; 
8 Congress, 2 session, 1699-1702 (1805) ; 12 Congress, 1 session, 2237-2238 
(1812). For the reports of the commissioners — Amer. State Papers: Pub. 
Lands, 1: 285-286 (1806) ; 590-591 (1807) ; 2: 123-241, 740-741 (reports of 
December 31. 1809, February 24, 1810, and January 4. 1813) ; 3: 1-5 (1815). 
For Congressional action — U. S. Stat, at Large, 2: 517 or Annals, 10 Con- 
gress, 2 session, 1811 (act of February 15, 1809, prolonging powers of the board 
to end of 1809) ; U. S. Stat, at Large, 2 : 548, or Annals, 11 Congress, 1 session, 
2506 (act of June 15, 1809, salaries for 1808) ; U. S. Stat, at Large, 590 (act 
of April 30, 1810, giving minors additional time to present claims) ; ibid., 
607, or Annals, 11 Congress, 2 session, 2584 (act of May 1, 1810. confirming 
all decisions reported December 31, 1809, in favor of claimants) ; Amer. 
State Papers: Pub. Lands, 2: 254-255, 257-258 (Congressional reports, 
1811) ; U. S. Stat, at Large, 677, or Annals, 12 Congress, 1 session 2237-2238 
(act of February 20, 1812; confirming all decisions reported December 31, 
1809, in favor of claimants to town lots, commons, and rights in common, 
subject to the right to try titles in the courts; also authorizing revision, 
by a second board, of governor's confirmations) ; act of April 16, 1814 — 
U. S. Stat, at Large, 3 : 125 — confirming (a) all confirmations by the 
second board, (b) all cases of that board "where the commissioners have 
reported specially and have not rejected the claims" in their general reports 
of January 4, 1813 and (c) claims specially reported favorably, left-overs 
from the work of the second board, by Michael Jones on January 18. 1813 
(Amer. State Papers: Pub. Lands, 2: 741-743); Annals, 13 Congress, 1 
session, 112, 127 (no action) ; Amer. State Papers: Pub. Lands, 3: 384-385 
(report of February 24, 1818, upon a petition by certain disgruntled claim- 
ants, favoring confirmation of governor's confirmations except in "cases 
dependent upon grants of the Governors, founded on 'ancient grants,'"), 
421 (report of January 27. 1820, to same effect — no action en either). It 
is generally stated that all of the findings and recommendations of the 
commissioners were approved — Alvord, Illinois Country. 422. This is cor- 
rect ; but it would be extremely difficult to say, in various of the cases 
reported specially, whether the commissioners "reported specially and have 
not rejected the claims," their comments being unfavorable. 



INTRODUCTION lxxxi 

The principles that guided both boards were generous. Under 
a literal interpretation of the statute of 1791 it was only grants 
to heads of families who were such before 1783 that were con- 
firmed, and subject to the proviso that if they had left the territory 
they must return within five years after the date of the statute. 
The commissioners ignored both restrictions ; acting, as respects 
the second, upon the liberal assumption that anyone who came 
forward to support^ claim not manifestly dishonest had complied 
with all the requisitions of the law. 1 No more was required 
than honest proof of an actual improvement. Headrights were 
allowed by the first board to all who had been ''settlers in the coun- 
try, and heads of families, become citizens of the United States, 
or some one of them, on [in] or before 1783." 2 The second 
board — following the view acted upon by St. Clair and Harrison, 
and by the board at Vincennes — went even farther, and confirmed 
donations to the heirs of those who died as heads of families be- 
tween Clark's conquest (1779) and 1783. 3 Militia rights were 
restricted by the first board to those who were residents, whether 
or not on the rolls, on the statutory date, no matter how recently 
arrived. The second board made donations to all who proved 
militia service after the country came under the dominion of the 
United States, treating the enrollment merely as evidence of the 
performance of that duty, but not as a condition. 4 Claims con- 
firmed by the governors presented the most perplexing question. 

1 Amer. State Papers: Pub. Lands, 2: 124-125; ante, lxxv, n. 2 
gives their reasons. 

2 Amer. State Papers: Pub. Lands, 2: 124 and 229-230; the language 
is that of the second board. This was probably because the resolutions of 
1788 made the grant to those "now living" in the Illinois villages ; but the 
statute of 1791, perhaps by oversight — and, it might be argued, in disregard 
of vested rights— adopted the date 1783. 

3 Ibid., 2 : 229-230 — on the theory that the intent of Congress was 
to provide "a remuneration for the probable loss they would sustain by 
the introduction of the new Government, and consequent failure of Indian 
trade." These reasons were advanced in the resolutions of June 20, 1788 — 
ante, lxvii, n. 3. 

4 Amer. State Papers: Pub. Lands, 7: 708. No such militia rolls as 
the statute required were to be found. Some were compiled for St. Clair in 
1796-1797 ad hoc, on the testimony of selected and respectable inhabitants 
and were certified by them. See the citations in lxviii, n. 1. The second 
board accepted these lists as the best evidence available — Amer. State 
Papers: Pub. Lands, 2: 237. 



lxxxii ILLINOIS HISTORICAL COLLECTIONS 

With regard to these great anxiety existed from the moment the 
commissioners were appointed. The board followed the generous 
policy of excluding confirmed claims from their findings until the 
evidences of fraud incidentally revealed in such cases forced a 
change of policy. The passage of the act of 1812, already referred 
to, ordered the revision of all confirmations. 1 

1 Claims were traced up to confirmation ; it was then assumed that 
patents had always been issued and recorded, and that the territorial law 
"might" provide rules to regulate subsequent conveyances. But no list 
of patents was supplied to them; many confirmees had in fact no patent; 
others might suppress it, if narrower than their hopes. Not only were there 
scores of cases in which parties (sometimes three or four) claimed ad- 
versely to the conveyances upon which confirmations were obtained, but 
the rights of confirmees had been split and portions were claimed by differ- 
ent assignees. To deal with the problem fully, therefore, presented a very 
difficult problem; yet, until so dealt with, no final and secure titles could 
be recorded. Amer. State Papers: Pub. Lands, 1 : 285-286. The statute 
of 1804 which defined the duties of the commissioners was very broad in its 
terms. It provided that every person claiming land under any legal grant 
from the French or British government, or under any resolution or act of 
Congress, should present his claim, and the commissioners should examine 
"the claims" and "decide thereon according to justice and equity," subject 
to approval by Congress (U. S. Stat, at Large, 2: 278, §§ 3, 4). It would 
therefore seem that the powers of the board were ample to deal with con- 
firmed claims (Amer. State Papers: Pub. Lands, 2: 255, report of a House 
committee so holding). It was contended, however, by the confirmees that 
the act of the governors, by authority of Congress, conferred an absolute 
title. But as it appeared that they had confirmed claims resting upon 
ancient grants manifestly illegal, thus exceeding any possible interpreta- 
tion of their powers, and had confirmed scores of claims supported by 
perjury and fraud, the government was forced to the position that they were 
only its agents, and it could revise its own acts. Claims under ancient 
grants rested upon a preexisting legal title; under improvement rights, 
upon an equity ; under family and militia donations, upon the statutes that 
expressed the bounty of Congress. So in all cases the right of the claimant 
was in no case derived from the Governor who was the instrument of the 
execution of the law, but antedated in existence that agency. "Viewing 
the Governors as agents, with limited and defined powers, the right to 
inquire into the performance of the duties assigned them cannot be doubted." 
Ibid., 2: 254-255, 257-258 (Congressional reports). Under the act of 1812 
the second board, empowered to review confirmations by Governors St. 
Clair and Harrison, did not stop with passing upon the validity of the 
original right (under ancient grant, improvement, etc.), but carried its 
finding forward in the chain of title to the governor's confirmation, re- 
jecting or approving the right of the confirmee. But the confirmee might 
still appeal to the courts against adverse decisions, as might also claimants 
adverse to a successful confirmee. Ibid.. 2: 210. The headings to the va- 
rious lists of the second board (except that on p. 215) are ambiguous, but 
the details of their actions clearlv reveal their effect to have been as stated 
(e. g. 213-214, claims 2049, 2209 ; 219-220, claims 322, 2047, 2066, etc.). 



INTRODUCTION 



lxxxiii 



More than 2,500 claims were considered by the boards. 1 
Nothing but a prolonged examination of their reports, which would 
fill several volumes such as this, can convey an idea of the stu- 
pendous difficulties of their task and the painstaking scrutiny with 
which they discharged it. Within a small margin of error 2 the 
results, as they affected the leading claimants, can be presented in 
figures. 

KASKASKIA LAND CLAIMS 3 



CLAIMANTS 



CLAIMS 
AFFIRMED 



CLAIMS DISAPPROVED 

because of — 



PERJURY 



INADEQUATE 
PROOF 



TOTALS 



Arundel, William. 
Atchison, George . . 

Barbau, J. Bte 

Beaird, John 



Biggs, William... 
Bond, Shadrach, Sr. 
Bond, Shadrach, Jr. 
Dumoulin, John . . . 

Dunn, James 

Edgar, John 

Fisher, George 



1500 



1100 

400 
400 

800 
1600 

400 
1290.4 

400 

400 

900 

800 

1200 
9651.8 
57881.8 
1300 
100 



7249 



49246.7 



500 

1300 
100 

400 
800 



42465.3 

31225.4 

700 



98961 
31225.4 
700 



1 The highest number noted is 2759. 

_ 2 Due partly to obscurities inevitable in the board's summary presen- 
tation of such a vast mass of detail, and partly to the fact that no acreage 
can be discovered of various tracts of vague description. 

_ 3 Compiled from the lists showing the action taken upon individual 
claims, listed under various heads in the commissioners' reports. The figures 
italicized represent claims which St. Clair or Harrison had confirmed. For 



lxxxiv ILLINOIS HISTORICAL COLLECTIONS 
KASKASKIA LAND CLAIMS— Continued 



CLAIMANTS 



CLAIMS 
AFFIRMED 



CLAIMS DISAPPROVED 

because of — 



PERJURY 



INADEQUATE 
PROOF 



TOTALS 



Gilbreath, James. 
Grosvenor, John.. 
Harrison, Wm. H. 

Hay, John 

Hull, Nathaniel.. 
Jarrot, Nicholas. . 
Jones, John Rice. 
Kelly, William... 
Lord, Richard 



Mcintosh, William. 



800 
400 

400 

900 
31597.7 

2000 
10637.3 

5294.6 

400 

1881.7 
10266.7 



2030.4 
9200 

11300 



1200 



5000 
5800 



1600 
400 
400 



8321.8 
1000 
1918 
1967.2 
2800 

4200 

400 

900 



1600 
400 
400 



8321.8 

1000 
1918 
3997.6 
17000 

21300 

400 
900 



lists of claims confirmed see: common fields, Amer. State Papers: Pub. 
Lands, 2: 174-202; ancient grants, 157-158, 211-212; and 213-214 (claims 
neither approved nor confirmed by the commissioners but reported specially 
to Congress, though clearly disfavored by them ; but confirmed by the act 
of April 16, 1814; family headrights, 162-165, 227-230; improvement rights, 
158-161, 217-220; (including, p. 219, two claims by Shadrach Bond Sr. and 
John Edgar, specially reported, confirmed bv act of April 16, 1814: militia 
rights, 166-174, 235-238. Claims rejected: ancient grants, 138-139, 215-217; 
family headrights, 148-154, 230-235 (unsupported before board — therefore, in 
effect rejected) ; improvement rights, 140-148, 220-226 (unsupported) ; militia 
rights, 155-156, 238. Rejected claims of Edgar, unclassified, 203-205 (none 
included in the other lists). See also ibid., 2: 741-743, donation claims of 
all three types, confirmed by act of April 16, 1814. 

The varying policies of the two boards of commissioners resulted in 
scarcely any contradictory action — in the main the second board merely 
dealing with cases left unsettled by the first board. A claim for 135.4 
acres by Edgar — p. 203, cl. 2056 — on which the first board had no power to 
act, but in which it reported extraordinary evidences of fraud and forgery 
was seemingly nevertheless affirmed by the second board — p. 212 ; but the 
descriptions are variant, and evidently there is in one case a misprint of 
the claim number. No final action is to be found on a few claims ; namely, 
on Edgar's claim No. 2078 (p. 203) for 400 acres, nor on 6 out of the 90 



INTRODUCTION 
KASKASKIA LAND CLAIMS— Concluded 



lxxxv 



CLAIMANTS 


CLAIMS 
AFFIRMED 


CLAIMS DISAPPROVED 

because of — 


TOTALS 




FORGERY 


PERJURY 


INADEQUATE 
PROOF 




Menard, Pierre... 
Morrison, James . . 
Morrison, Joseph.. 
Morrison, Robert . . 
Morrison, William. 

O'Hara, James 

Perrey, J. F 

Reynolds, John 

Reynolds, Robert . . 
Whiteside, William. 


8557.4 
1300 
400 

5112 

1200 

19907.8 
2500 

6700 
4232 
951.5 

477.5 


1600 
1600 
2800 

800 
7400 


400 

1200 

34800 

8400 

10800 
1200 


8221.3 
2710.6 
2100 

2000 

7700 

400 

15372 

900 

5561.4 
3501.5 
4550 
1600 

5800 

1850 

400 


8221.3 
2710.6 
2500 

44100 

400 
26572 

900 

3501.5 
4550 
1600 
800 
24000 
1850 
1600 



family rights for 400 acres each, covered by his claim No. 2055 (p. 204; 71 
approved in pp. 227-229, 13 disapproved in 230-235). No other examples 
were discovered. See also ante, lxx, n. 5. 

In the commissioners' "remarks" upon each claim one finds various 
characterizations. Classed under forgery are cases with the annotations 
"forgery," "deed fraudulent," "deed forged" — perjury being, of course, also 
usually present ; and the same is true of claims carrying the annotation 
"deed suspicious," "supposed forgery," and "no such man" (as the claim- 
ant's supposed grantor). Classed under perjury are cases carrying the 
remarks "perjury," "subornation and perjury"; and also those labeled 
"fraud," "transaction fraudulent" ; although the ambiguity of the latter 
cases is manifest. Classed under insufficient proof are cases labeled "proof 
insufficient," "entered more than once," or without any label. 

Rejected claims in the last column omit three ancient grants presented 
by Edgar (Amer. State Papers: Pub. Lands, 2: 214, cl. 2107), Jones (p. 
138, cl. 1738— "a large tract") and R. Reynolds (p. 138, cl. 35) which are 
of indeterminable area. The affirmed claims of Edgar include one for 1116.8 
acres, and half of another (totalling 5968.8 acres) claimed jointly by Edgar 
and Arthur St. Clair (p. 214, half of cl. 2209), which were disfavored by 
the commissioners, but referred to Congress, and by it approved in the law 
of April 16, 1814. (Not included are two tracts of indeterminable area 
claimed t>y Jones (p. 144, cl. 1292 and 1293) and "a large tract" of unknown 
area claimed by Wm. Morrison (p. 143, cl. 471), all three as improvement 
rights. 



lxxxvi ILLINOIS HISTORICAL COLLECTIONS 

Many of the Kaskaskia claimants were also claimants in. Mis- 
souri, and some of them also in the Vincennes district. One must 
therefore supplement the above table in order to show completely 
how well each fared at the hands of the government. 1 





Vincennes Missouri 




CONFIRMED 


REJECTED CONFIRMED 


REJECTED 


J. Edgar 


1200 






Jas. Gilbreath 




400 (perjury) 




Wm. H. Harrison 


3185.7 






N. Jarrot 






1600 


J. R. Jones 


2710 


680 




Wm. Mcintosh 


7732 


800 




P. Menard 






3000 


Jas. Morrison 






2350 


R. Morrison 






2992 


Wm. Morrison 


938.3 


440 


1222 


Jas. O'Hara 


400 






J. F. Perrey 




680 ("Jean" and 








"John" Perry 


) 3177 


R. Reynolds 




1600 (perjury) 




H. Vander Burgh 


7049 







Many men prominent as officials (judges, sheriffs, clerks, etc.) 
or otherwise in the Illinois counties do not appear at all in the lists 
of the commissioners, or only appear in a way that casts no possi- 

1 The Missouri reports (unalphabetized, and without reasons given) 
are in Amer. State Papers: Pub. Lands, 2: 463-729; see also Marshall, 
Life and Papers of Frederick Bates, index s. v., "Board of Land Com- 
missioners" ; Scharf, History of Saint Louis, 1 : 316 et seq. It appears 
however from Marshall, op. cit., 2: 293, that the Perry of the table 
was very likely not John Francis Perrey. For the Vincennes reports, see 
Amer. State Papers: Pub. Lands, 1: 288-303, 558-581 (duplicates in 7: 675 
et seq.) ; 2 : 455-463 ; 7 : 700. An act of March 3, 1807 (U. S. Stat, at Large, 
2: 447, § 4; Annals, 9 Congress, 2 session, 1290-1292) required location of all 
Vincennes confirmed claims bv July 1, 1808; otherwise thev should be void. 
Another act, of February 13, 1813 (U. S. Stat, at Large, 2: 800; Annals, 12 
Congress, 2 session, 1329) extended the time to October 1, 1813. Curiously 
enough, the only ones who made locations were J. Rice Jones, for only 722 
acres (under 1807 act, Amer. State Papers: Pub. Lands, 7: 709-727, nos. 2, 
119, 149. 150) ; Wm.Mdntosh, for only 2427 acres (under 1807 act. ibid., 
nos. 85, 86, 87, 125, 127, 129, 139, 140, 141, 143, 147, 148) ; William Morrison, 
for 1619 acres (under both acts, ibid,, nos. 134, 135, 142, 158, 170, 203, 229, 
232). These facts seem to be inexplicable. Some of the Vincennes con- 
firmations to "William Morrison," however, cannot be to him of Kaskaskia, 
who died in 1837, for they are to his heirs. 



INTRODUCTION lxxxvii 

ble discredit upon them. 1 None of the judicial and administrative 
officers of the territory except William Mcintosh, John Rice Jones 
and Henry Vander Burgh were charged with improprieties in 
either the Illinois or the Wabash districts. 2 

The incredible forgeries, fraud, subornation and perjuries 
which the commissioners uncovered are explainable only by at- 
tributing to the land-jobbers an assumption of immunity that led to 
carelessness or a stupidity of which it is difficult to believe them 
capable. The discovery of more than seven hundred perjured 
depositions given before one magistrate in upper Louisiana led to 
the uncovering of hundreds more. The board, in its own words, 
struggled "in the very mire and filth of corruption." Almost all 
of the claims rejected for perjury rested upon the supposed original 
title or improvements of fifteen persons, attributed to them either 
by themselves or by others who assumed their names. Some of 
these fifteen were respectable citizens who disavowed hundreds 
of their alleged depositions. One tool of the land-jobbers confessed 
to the wholesale use of another's name. The rest of the fifteen were 
wholesale perjurers bought and sold by the speculators. Deposi- 
tions were bought outright, or signatures obtained from drunken 
men to blank depositions. Among those who gave as many as two 
hundred depositions each, one was characterized by the commis- 
sioners as "a kind of straggling blacksmith," another as a "poor 

1 Of the judges of Randolph County, James Finney, Samuel Cochran, 
Robert McMahon, and Michael Jones do not appear at all. There is nothing 
discreditable in the cases of Jean Baptiste Barbau, a judge of earlier years, 
and a justice of the peace in the years dealt with in this volume (his 
testimony frequently enabled the commissioners to defeat fraud), John 
Grosvenor, Nathaniel Hull, John Beaird, and George Fisher. Of the 
sheriffs James Edgar (1803-1806) appears not at all, and James Dunn (1795- 
1800) not discreditably. 

Of the St. Clair judges James Bankson does not appear. In the records 
of Jean Bte. Saucier, a judge of earlier times who was heavily interested in 
ancient titles, David Badgley, George Atchison, Shadrach Bond Sr., and 
Shadrach Bond Jr., there was nothing unworthy. Nor was there in the 
records of William Arundel, prominent justice of the peace; John Hay, 
clerk and recorder; and Wm. St. Clair, former clerk and recorder. 

2 Governor Harrison received two family rights, and failed to sustain 
claim to a third. In the Vincennes district, as the above table shows, he 
was confirmed in 3186 acres (Amer. State Papers: Pub. Lands, 1 : 290, 559 
et seq., 573). He speculated more or less in land despite his animadversions 
against land-jobbers {ante, xxvi, n. 3; xlv, n. 2; xlvii, n. 1; xlix, n. 1; lviii, 
n. 1; post, clxxxiv, n. 3). 



lxxxviii ILLINOIS HISTORICAL COLLECTIONS 

wandering wretch, equally destitute of morality or character," 
several as men "of no education, property, or character." Two gave 
sworn and written confessions. Almost all of the depositions in 
these fifteen names were given to support claims of John Edgar, 
Robert and William Morrison, Robert Reynolds, William Kelly — 
three judges, the clerk, and a former coroner of Randolph — and 
Richard Lord, a mere (land) privateer. The depositions of one 
prolific deponent, proved to be false, were signed and sworn to 
exactly as written in the hand of John Edgar. 1 

Claims were made under family heads who died or left the 
country before 1783 (the second board validated some of these) 
or who entered it — sometimes long — thereafter ; under supposed 
family heads proved never to have had a family ; under militiamen 
who came to the country after 1790, or were living elsewhere in 
that year ; by inheritance from men proved still to be living ; under 
improvements that must have been made by the original right- 
holders, and under soldiers who must have served their country, in 
tender infancy. To be concrete, and confining attention to a few 
of those highest in station, it was found that John Edgar forged 
the signatures of many deponents. He presented a deed on the 
paper of a mill erected years after its date, with names of the wit- 
nesses forged thereto ; and another deed, on paper of the same 
future mill, whose grantor swore he did not give it, made by the 
latter as the heir of a man whose death the parish records showed 
to have occurred some months later. He presented a deed ac- 
knowledged (before William Morrison) five months before its- 
date, with the name of a witness forged ; and to prove bona fides 
produced a letter signed by the grantor in a good hand, although 
to the deed he affixed his mark. Another of his deeds was by a 
grantor whose brother swore he had never been in the country, 
signed in fact by a son and the father's name later substituted ; 
witnessed by John Grosvenor (who repudiated the signature) and 
William Morrison, and acknowledged before the latter ; the grant 
being based upon improvements of the grantor — made, therefore, 
in absentia ! He forged, then, the name of his follow judge, Gros- 

1 Amer. State Papers: Pub. Lands, 2: 125-127; for the confession of 
one of William Morrison's liquor-deponents, 137. 



INTRODUCTION lxxxix 

venor; and also that of Barbau (both men untainted by the land 
scandals). He interpolated a document in a book of records. He 
claimed one tract on evidence that A was illegitimate and not the 
heir of X, and an adjoining tract on the contrary evidence. He 
claimed the family right of one of his unmarried clerks who lived 
in his own house. 1 

Robert Reynolds was the first man to file claims with the com- 
missioners ; which proved his effrontery, for his record is as bad 
as Edgar's — perhaps worse, since it reveals no stupidity. He 
forged the names of witnesses, deponents and grantors; even the 

i Ibid., 2: 127 (cl. 2044), 128 (cl. 1997, 2046, 2068, 2094), 131 (cl. 
751, 2017), 203 (cl. 2056), 204 (cl. 1392-<ompare p. 234), 205 (cl. 2068), 
213 (cl. 2049). St Clair confirmed some of these claims; the commis- 
sioners remarked of Edgar — "This man has been either weak enough or 
honest enough to give us a clearer view of the grounds on which the Gov- 
ernor has acted, by producing many of his documents, than others who 
have withheld them" (ibid., 205). See Alvord, Illinois Country, 420-421; 
Davidson and Stuve, History of Illinois, 237-238. Mr. James H. Roberts 
has stated — in the Transactions of the 111. State Hist. Society, 1907, p. 64 — 
that "authentic contemporary documents show conclusively that in all his 
vast transactions in land he acted with strict integrity" ; and also that by a 
report of a committee of the United States Senate of which Judge Jacob 
Burnet was chairman Edgar was "exonerated from all blame." In fact 
this report (U. S. Sen. Documents, 21 Congress, 1 session, Sen. rep. 10, of 
January 5, 1830), made by the Committee on Private Land Claims upon a 
memorial by Edgar, did recommend the confirmation of thirteen family rights 
(5200 acres), originally confirmed by Governor St. Clair but adversely re- 
ported upon by the Board of 1812. At the same time it rejected Edgar's joint 
claim with Murray St. Clair, cited ante, lxxix, n. 1 (for 24,000 acres accord- 
ing to a survey made for Edgar), on the grounds that it violated the royal 
proclamation; was in terms subject to confirmation by the Crown, never 
given ; was on its face fraudulent on the part of John Wilkins ; was so vague 
that "neither its situation, quantity, nor limits" could be ascertained with 
any reasonable certainty ; and that the governors were never empowered 
to confirm British grants, as such, but only for actual improvement (here 
not asserted). The Committee offered no judgment whatever on Edgar's 
general record. Judge Burnet had known Edgar for more than thirty 
years. One may perhaps attribute to friendship — for no extant evidence 
in any way confirms them — the assumptions that St. Clair acted on "evi- 
dence" and "testimony" of "witnesses examined," which evidence was not 
preserved ; and that the witnesses had removed from the territory or died 
before the examination made by the commissioners in 1812. The com- 
mittee therefore regarded the revision by the latter as made unreasonably 
late, and "more liable to error than the original decision" by St. Clair. 
All existing evidence discredits such a judgment; ante, lxxviii. When 
this report was made Congress had still never acted upon the reports of 
the second board. Actually, however, Edgar had been allowed three of 
the thirteen headright claims; which must have been through the later 
action of Michael Jones. The other lands had been sold, and Edgar claimed 
an equivalent. 



xc ILLINOIS HISTORICAL COLLECTIONS 

names of fellow judges, Menard and Hull — again two honest men ; 
himself gave depositions under an assumed name, and appeared 
before a magistrate with deponents who deposed under false names 
for his benefit. 1 He forged a gVant to himself from a slave 
woman. 2 Not even against Edgar — or Lord or Kelly, whose 
records (statistically speaking) were worse — were the commission- 
ers so bitter and contemptuous as against Reynolds. 3 Needless 
to say the statutes in this volume provide ample penalties against 
acts of perjury and forgery; yet for all those revealed in the land 
cases Robert Reynolds alone was indicted. Unfortunately, the 
result of the seventeen indictments brought against him has not 
yet been discovered in the records. Robert Morrison's record was 
also bad. 4 

The cases of forgery and perjury listed by the commissioners 
do not begin to exhaust the cases of reprehensible character. The 
record of John Francis Perrey is, for example, almost clear of the 
graver charges ; yet among his claims to family rights which the 
commissioners reported merely as "unsupported" were five in 
which it appeared that the original claimant never married ; an- 
other in which he left the Illinois country at a date which barred 
the claim. In each case Perrey was the first assignee. Of such 
cases there are scores in the reports. Again, there are dozens of 
cases of double entry of the same claim by the same claimant — 
for example John Edgar secured two patents from St. Clair for the 
same piece of land, made alterations in one in his own hand, then 
filed both with the board. 5 It is difficult to reconcile these cases 
with good faith. . 

1 Either he or Wm. Kellv or both: Amer. State Papers: Pub. Lands, 
2: 136. 

2 Ibid., 2: 152 (cl. 23). See also 129 (cl. 38, 10), 142 (cl. 6), 153 
(cl. 311), 155 (cl. 12, 14), 156 (cl. 1018). _ 

3 Characterizations "as forger and perjurer" on ibid., pp. 128, 129, 136. 

4 On the Reynolds' indictments see post, clxxix, n. 1. As to Morrison, 
Amer. State Papers: Pub. Lands, 2: 130 (cl. 2492), 132 (cl. 2410, 2411— 
judge's name forged). Richard Lord used unwisely, like Edgar, paper of 
an unbuilt mill (129, cl. 1362). William Kelly had unsigned depositions 
taken before a notary of upper Louisiana (136), and presented depositions 
purporting to be given before Jean Bte. Barbau when the latter was not 
a magistrate (130. cl. 887). 

5 Amer. State Papers: Pub. Lands, 2: 206. Twenty-one double en- 
tries by Edgar were noted. For Perrey, 230-235. 



INTRODUCTION xci 

The relations of the county grandees with each other are curi- 
ous. Edgar, Reynolds, Kelly, and Robert Morrison forged the 
names of judges. Reynolds claimed, resorting to forgery in doing 
so, against John Rice Jones and against John Edgar. 1 Pierre 
Menard addressed to the second board, in 1812, a remarkable pro- 
test that throws light on these cases : 

"The subscriber having . . . understood . . . that, 
where it should appear that any fraud had been practised by the 
confirmees or patentees. . . . upon proof being adduced to 
the Board, they would . . . decide thereon according to justice 
and equity of title; or . . . would leave the parties to deter- 
mine the legality of their titles in a court of law : 

"Therefore the subscriber respectfully states, that having . . . 
presented several counter claims to fraudulent conveyances and 
confirmations obtained by surprise of the Governors ; and in some 
cases produced, and in others offered proof of fraud and surprise, 
on the part of the confirmees or their agents, in obtaining confirma- 
tions of such claims ; he therefore is driven to the necessity of pro- 
testing, and doth hereby most solemnly protest, against all con- 
firmations . . . which may be made to John Edgar, or any 
other person or persons claiming, by fraudulent and pretence titles 
[5 certain family rights and 3 improvement rights enumerated; or 
to Nicholas Jarrot etc., 3 certain improvement rights; or to Wil- 
liam Morrison etc., 2 certain family rights] . . . 

"However limited the equitable and judicial powers of your 
Board may be . . . your protestant only means to lay the 
groundwork of an appeal to a higher tribunal ; and he doth hereby 
aver, that he is in possession of the legal titles to the above-men- 
tioned tracts of land, and therefore protests against any patent 
or confirmation being made either to the said John Edgar, Nicholas 
Jarrot, or William Morrison, or any other person or persons, ex- 
cept to your protestant, or those whom he represents, or his or 
their assignee . . ." 

This was a protest after action taken. 2 It was made by a 
man whose record was clear, and who was honored later by the 

ilbid., 149 (cl. 20, 22) ; 151 (cl. 24, 61). 

2 Ibid., 238-239. The second board affirmed 5 of Edgar's claims. 
2 of Jarrot's, 2 of Morrison's. There were 5,200 acres involved. 



xcii ILLINOIS HISTORICAL COLLECTIONS 

state. During the Indiana Territory period, however, — the later 
records have not been examined — no suits were brought by Menard 
to contest title. 

In but one of these thirteen important cases does Menard ap- 
pear in the commissioners' reports as an adverse claimant. With 
titles confused and fraud unrestrained such conflicting claims were 
numerous. In one case William Morrison, John Rice Jones, John 
Grosvenor, Nicholas Jarrot, and John Edgar all claimed the same 
land. Claims by two or three grandees were common. Imperfectly 
as these facts are revealed by the lists of the commissioners — who 
did not deal at all with the rights of adverse claimants inter sese — 
it nevertheless incidentally appears that Edgar disputed at least 
21,356 acres with fellow claimants included in the table above 
printed. 1 

A charge was made against Henry Vander Burgh by the Vin- 
cennes commissioners which the full panoply of legal documents 
cannot make more than comic. The charge was that he, a federal 
judge of otherwise good although not unchallenged record, risked 
his name in order surreptitiously to obtain for his mother-in-law 
an extra allowance of 136 acres of land (which the judge's wife 
must have shared with seven other children!) by juggling with 
the improvement right and nickname of her grandfather on the 
maternal side, who died thirty years before the judge became ac- 
quainted with the family, and whose name the judge swore he had 
not known until the charge was made against him. Although the 
latter's inconsistent defences were no credit to his astuteness, and 
the balance of factual evidence was against him, it is impossible to 
believe him guilty. 2 

The case is worth citing only because it is the single one in the 
whole record that suggests a possibility of personal or political man- 
euvering. At least with regard to the Kaskaskia district it can 
be said with confidence that there is no trace, in the reports of the 

1 Of these 7,869 were disputed with William Morrison. Excluding 
disputes with Edgar, Morrison's conflicts with others in the table amounted 
to 5,144 acres, Jarrot's to 4,400. Menard tried to hold 3,822 acres against 
Eds:ar, 3.804 against William Morrison, 1,200 against Jarrot. and disputed 
1,500 with others (including the data revealed by his protest). 

2 Amer. State Papers: Pub. Lands, 1: 301-303. 575-581; 7: 716 (d. 
97) for final outcome. 



INTRODUCTION xciii 

commissioners, of political or personal influence or prejudice. For 
reasons easily to be surmised Governor Reynolds sought to give 
a contrary idea. It is indeed doubtless true as he says, that as 
years passed and investigations proceeded, without any reports by 
the board, "this delay excited the people and a very bitter and 
rancorous feeling was engendered between the commissioners and 
many of the inhabitants." He is also, doubtless, correct in stating 
that these feelings were embittered by the political activity of 
Michael Jones, 1 which was certainly most unfortunate, quite ir- 
reconcilable with his earlier hope of leaving the Illinois country, 
"by way of exception, in a state of quietude" ; 2 and indeed — in 
view of the conditions of the time — reprehensible. The land ques- 
tion necessarily became involved in "politics" when the commis- 
sioners uncovered the frauds of the leading members of the Edgar- 
Morrison faction. And the members of that faction — presumably 
in a desperate effort to drive Michael Jones from office — aggra- 
vated the situation by attempting to make him responsible for the 
murder of Rice Jones following the embittered election of 1808. 

1 Pioneer History, 351-352. 

2 Amer. State Papers: Pub. Lands, 1: 590. The hope was expressed 
in 1807, by which time it was quite clear that in Missouri and Michigan 
content would not follow the work of the commissioners. Frederick Bates 
wrote in 1807 of conditions in Missouri : "The public sentiment has ac- 
quired an astonishing degree of ferocity, and God knows where it will 
end. — One of the Land Commissioners was reminded a few days ago, that 
the board had very extensive powers . . . and that they must gratify 
the expectations of the People or expect to feel their resentments. The 
Commissioner who was Judge Lucas, replied : 'I shall do my duty ; and 
my Fate, should I die at my Post will be preferable to that of my murderer, 
who must suffer on a Gibbet' " — Marshall, Life and Papers of Frederick 
Bates, 1 : 136-137. The thousands of findings of the Missouri board are sum- 
marily stated, without reasons (ante, lxxxvi, n. 1). On fraud and speculation 
see Marshall, op. cit., 1 : 29, 221, 282 ; 2 : 10. According to Scharf, History 
of Saint Louis, 1 : 323, the board of 1808-1812 confirmed 1,342 claims ; appar- 
ently out of a total of about 3,000, Marshall, op. cit., 2 : 70 n. Under later 
acts of Congress covering other claims Bates confirmed 1,746 claims out of 
2,555 — Scharf, op. cit., 325. On Michigan see Judge Woodward's several 
letters, Mich. Pioneer and Hist. Colls. 12: 507; Amer. State Papers: Pub. 
Lands, 1 : 248, 283 ; ibid., Misc., 1 : 461. As he says in one of 
these, "in a country nearly a century and a half old, and nearly a quarter 
of a century the property of the United States," there existed "only eight 
legal titles to land." Ibid., Pub. Lands, 1 : 283. In fact the board approved 
only 6, totaling 600 acres, out of more than 700 claims — ibid., Pub. Lands, 
1 : 305-557. Naturally "the anxiety, confusion, and distress of the country 
is . . . impossible to describe or to conceive" (April, 1806). Ibid., 
Misc., 1 : 461. 



xciv . ILLINOIS HISTORICAL COLLECTIONS 

It may also safely be said that if the land question was not origin- 
ally involved in politics the Edgar-Morrison faction party did their 
best to involve it. In a letter written by John Rice Jones, before 
the murder of his son, to Judge Backus, he charged the latter with 
reported threats against his son's life if he should remain in the 
country ; and Edgar and the Morrisons, after the murder, not only 
sent these reports to Washington 1 but caused the indictment, for 
instigating the crime, of Michael Jones — who was acquitted and 
sued his accusers successfully for libel. 2 It is important to re- 

1 McDonough, Hist, of Randolph, Monroe and Perry Counties, 105. In 
the Miscellanies Eox, Chester, there is a deposition given on August 3, 1811 
in Kentucky by Matthew Lyon, part of the evidence used in the suit of 
Michael Jones against Robert Morrison, from which it appears that he re- 
ceived a letter in Washington from William Morrison, Robert Morrison, and 
John Edgar, in May or June, 1809, which he showed "to Squire Backus to 
read — in order to know how he could defend himself against the charges." 
Lyon says the original was lost, and he set out its substance in a separate 
paper which is also lacking. Alvord, Illinois Country, 426, says that letters 
were published by John Edgar to Gallatin and by William Morrison to 
Matthew Lyon, attributing the murder to the machinations of the two 
commissioners. 

2 A certified copy of the indictment against Dunlap is also in the 
Miscellanies Box at Chester. The murder was on December 7, 1808, by 
pistol. Contrary to published reports, it is not charged that Jones was 
shot in the back, but in the right breast. And it charged that Michael 
Jones on December 6, "did excite move abet council command and procure" 
Dunlap to commit the murder. In an account (apparently contemporary) 
of the details of the murder written by someone of the Edgar-Morrison 
party Judge Backus, Robert Robinson, James Gilbreath. James Finney, 

Michael Jones and Langlois were named as coconspirators of Dunlap — 

Chic. Hist. Colls., 4 : 278-279. The charge is of no importance ; the party 
grouping is more important. On the case of U. S. v. Michael Jones see 
Alvord, Illinois Country, 426-427 and W. A. Burt Jones. Chic. Hist. Colls., 
4: 280-281. He was indicted on July 20, 1809, and acquitted April 10, 1810. 
The writer has not yet examined the judicial records of the Illinois Terri- 
tory. Jones emphasizes the fact (McDonough, Hist, of Randolph, 
Monroe, and Perry Counties, 105) that two of the defendant's bondsmen 
(one of the other bondsmen was Shadrach Bond Jr.) were on the trial jury. 
Such irregularities were not uncommon (post, clxxx), but most regrettable 
in a case of importance. The relief of the prosecutor from costs, allowed 
under statute when the court found there were "probable grounds" for 
indicting, proves little ; it was very freely allowed. The plea of William 
Morrison in the libel suit brought against him by Michael Jones is in the 
Miscellanies Box at Chester — the words complained of were spoken the day 
of the murder ; and in Canvas Envelope II is a bill of costs for continuance 
at the September term, 1811, in the case of Michael Jones against John 
Edgar. The plaintiff sued Wm. Morrison for $15,000, and recovered $200 
and costs ; Robert Morrison for $9,000, but had the case dismissed : John 
Edgar for $11,000. In 1813 Edgar compromised by paying costs and $300. 
and making a public declaration "that Michael Jones was entirely innocent 
of any part in the murder of Rice Jones" (Alvord, loc. cit.). 



INTRODUCTION xcv 

member, in this connection, that Judge Backus was not an oppo- 
nent, but a supporter, of the Edgar group, politically. 1 It is not 
surprising that Governor Reynolds, in view of his father's fate, 
presents Michael Jones as moved by "excited feelings against his 
political enemies" in branding as forgers, defrauders, and per- 
jurers "many of the best citizens in the country," who — according 
to him — "had no means or manner of defending themselves." No 
one but those ignorant of the commissioners' reports can be so 
naive as to give weight to such charges. The courts were open 
to try their titles and their character. No recourse was ever had 
to them; but, as will be seen, success was achieved, by political 
means, in nullifying a few of the commissioners' decisions. 

The work of both of the land boards was mainly due to the 
infinite pertinacity and capacity for detail of Michael Jones. The 
object of Congress was to determine what was public land. 2 The 
land office at Kaskaskia was opened in 1804 by the act which cre- 
ated the first board, but the first sales were made in 1814. The 
uncertainty of titles meanwhile seriously hampered taxation, and 
also undoubtedly retarded the settlement of the country. Pre- 
emption rights were accorded in 1813 to settlers on government 
land up to that time. 3 This, and the opening of government 
sales, marked the end, substantially, of difficulties. Michael Jones 
remained register at Kaskaskia until his death in 1822. 4 

1 See post, app. n. 14. 

2 Amer. State Papers: Pub. Lands, 1: 285; 2: 182, 254. It was for 
this reason that claims in the common were simply confirmed en masse "to 
the legal representatives of the original concedees" : the United States could 
have no interest to protect, since it was certain that the French crown had 
divested itself of all claims, and therefore the claimants could settle in the 
courts their disputes inter sese. 

3 U. S. Stat, at Large, 2 : 797 ; Buck, Illinois in 1818, 47-49. As to un- 
certainty of titles, see My Own Times, 156 ; convincing data in Buck, map 
at 52-53. The reason appears, partly, in § 5 of the law of March 3, 1805 — 
Annals, 8 Congress, 2 session, 1701 — which prohibited further alienations, 
even of lands the claims to which were confirmed by the commissioners, 
until final action by Congress. 

4 On Michael Jones see post, app. n. 13. Peoria was not originally 
within the district of the Kaskaskia commissioners (Amer. State Papers: 
Pub. Lands, 1 : 285) but was included upon petition of its inhabitants 
(photostatic copy in 111. Hist. Survey ; proceedings in the Annals, 9 Con- 
gress, 2 session, 624; 10 Congress, 1 session, 1600-1601, 1846. A report by 
Edward Coles, register at Edwardsville, in 1820 leaves one wondering how 
effective were the labors of the commissioners, for he states that possession 
was the only title to the lands in that community. Amer. State Papers: 
Pub. Lands, 3 : 477. 



xcvi ILLINOIS HISTORICAL COLLECTIONS 

One important question remained open. It has been noted 
that all the reported decisions of the commissioners in favor of 
claimants were confirmed except those of the second board revising 
confirmations by the governors. It was understood by both Gal- 
latin and Harrison in 1804 that confirmations would not stand if 
proved to have been "surreptitiously and fraudulently obtained," 
and Harrison published notice to that effect at Vincennes. 1 The 
Vincennes board, accordingly, from the beginning dealt with the 
claims of confirmees; although evidently with little scrutiny, con- 
firming all with but a single exception. 2 Although no orders 
seem to have been given to the Kaskaskia board to do so, it is 
clear that Gallatin assumed they were likewise dealing with such 
claims. 3 The magnitude of the task, and its political dangers, 
undoubtedly caused the first board to abstain from making final 
findings; but the bases for such were abundantly revealed in its 
evidence. The claims summarized in the first of the tables printed 
above included some, confirmed by the governors, which the com- 
missioners condemned for fraud ; but most of the confirmed claims 
which were rejected by the board were rejected for lack of proofs 
sustaining them. 4 

1 Correspondence of July 10, 1804 — Messages, 1 : 101-102. But see St. 
Clair's view, ante, lxxvii, n. 3. 

2 Amer. State Papers: Pub. Lands, 1: 289. In the case of the Vin- 
cennes confirmation cases § 2 of the act of March 3, 1807 (£/. 6". Stat, at 
Large, 2: 447; Annals, 9 Congress, 2 session, 1291), which confirmed all 
such "unless when actually rejected by the said commissioners," might 
seem upon casual reading impliedly to confirm such rejections. Anyway, 
there was only one rejection — ante, xcii, n. 2. In Kaskaskia there were 
many such condemned (although — for supposed lack of power — no final 
rejections). See ante, lxxxii, n. 1. 

3 From his reference in Amer. State Papers: Pub. Lands, 2: 123, to 
his letter to them of May 23, 1810. Their reports however had made the 
contrary clear, ibid., 1: 285 (1806). 

4 The acreage of confirmed claims rejected by the commissioners 
for forgery was 2,030 in the case of John Rice Jones; 800 in the case of 
John Reynolds. There were no perjury cases. Such claims rejected for 
lack of supporting evidence amounted to : 400 acres in the case of William 
Biggs; 186, John Dumoulin; 31,225, John Edgar; 1,000, Nicholas Jarrot, 
1,967, John Rice Jones; 900, William Mcintosh; 2,711, Pierre Menard; 
400, Robert Morrison; 900, William Morrison; 4,550, J. F. Perrey; 1,850, 
Robert Reynolds. The confirmed claims approved by the commissioners, 
for these same men, were : Biggs, 1,600 ; Dumoulin, 800 ; Edgar, 57,882 ; 
Jarrot, 2,000; Jones, 5,295; Mcintosh, 10,267; Menard, 1,300; William 
Morrison, 2,500; Perrey, 951. 



INTRODUCTION xcvii 

Politics alone could explain the failure of Congress to approve 
the findings of the second board. 1 The natural inference from 
such inaction would be that the speculators kept the fruits of their 
perjuries and forgeries, and likewise the vast illegal British grants 
which St. Clair confirmed to Edgar after the latter shared them 
with the Governor's sons. As regards the worse of these two cases 
which were on their face totally illegal, nothing was ever done 
affirmatively by Congress to recognize its validity, but the other 
was confirmed. 2 As regards the other confirmations, its mere 
inaction prolonged uncertainties. 

In 1818 (and again in the same terms in 1820) a Congres- 
sional committee, upon petition by sundry inhabitants of the Illinois 

1 In a letter in which he recommended for approval various claims 
submitted too late for action by the second board, Michael Jones wrote to 
Gallatin (January 18, 1813 — Amer. State Papers: Pub. Lands, 2 : 741-742) : 

If confirmed "there will be an end to this perplexing business ; 
unless, indeed, the Government should indulge the speculators with 
the privilege of a re-investigation of claims rejected by the former 
[second] Board. On this subject I can only observe, that I am wearied 
with these painful duties, which, for eight years past, it has fallen to 
my lot to discharge. Nor do I believe that the Government would 
be doing justice to itself, or its officers, by extending this indulgence. 
When witnesses have been suborned, when the ancient records have 
been recently interpolated, and when the officers who dared to discharge 
their solemn duty have been attempted to be made the victims of this 
corruption, it is time to close the doors against the admission of new 
frauds. 

"My objection to the re-organization of a Board of Commissioners 
for the purpose of reviewing claims rejected by the former Board, does 
not arise from any apprehension that the former commissioners could 
be in the least degree implicated ; on the contrary, could I reconcile it to 
my feelings to stoop to the drugery of wading again through this sea 
of corruption, I would anxiously solicit it, fully persuaded that such 
an investigation would forever silence our declaimers, and raise us in 
the estimation of our Government. But the task is too laborious and 
painful ; besides, I am convinced that none but speculators desire it, and 
that they can have no claim on the Government for this indulgence. 
So far from this, it is my impression that they have had too much 
justice done them; and I am inclined to think that if a review of de- 
cisions made by the former Boards could now take place they would 
be still further curtailed. However, I am perfectly reconciled to any 
course my Government may think proper to adopt, provided it does 
not deprive me of the means of justifying my official conduct." 

2 On the worse claim (2208) see ante, lxxix, n. 1 ; lxxxix, n. 1 ; 
also Amer. State Papers: Pub. Lands, 2: 254-255, 257-258. The claim (No. 
2209) made jointly with Arthur St. Clair Jr. — see ante, lxxix, n. 2 — 
was reported specially by the second board — Amer. State Papers: Pub. 
Lands, 2: 214), and therefore confirmed by the act of April 16, 1814 — see 
ante, lxxx, n. 1. 



xcviii ILLINOIS HISTORICAL COLLECTIONS 

Territory whose names are unfortunately not given, reported in 
favor of confirming all governors' confirmations of grants depend- 
ent on family, improvement, and militia rights ; on the truly phe- 
nomenal ground that these rights created by Congress in 1788 and 
1791 had "accrued" respectively twenty-nine or twenty-two years 
before the act of 1812 that provided for their revision ! The com- 
mittee thus intimated, without explicitly asserting, that the statute 
of limitations could run against the government, and even in favor 
of fraud and corruption ; and they urged the injustice of requiring 
claimants "at so distant a period, after the death or removal of 
their witnesses, to prove again their claims" ! x It is evident that 
under this extraordinary doctrine any claimant, with or without a 
governor's confirmation, might have been held safe in 1810 or 
1805. Congress did not stultify itself by acting as recommended. 
A Congressional committee acted on a petition of James 
Hughes who claimed as assignee of John Reynolds, who had pur- 
chased the improvement right of an alleged John Fowler. The 
first board had rejected the claim and the second had listed it un- 
supported. Deponents before the second board had testified that 
"they know no such man" as John Fowler. 2 The Congressional 
committee reported that it could "not conceive how it would be 
possible to support a claim with much stronger evidence" than 
attended this, supported as it was by "upwards of twenty years 
actual possession, and a patent issued by competent authority . . . 
It does not appear to the committee that there is any foundation for 
a belief that the patent was obtained by fraud or collusion, or that 
it has ever been supposed or alleged to have been so obtained 
(italics added)"! 3 Now it may be said of this that inasmuch 
as the commissioners lived for seven years in a community of but 
a few thousand souls, all the time studying names and relation- 

1 Of course they also utterly misstated the procedure of the board. 
They say no presumption of the validity of a confirmed claim was indulged, 
"but, where the witnesses called by that Board had no knowledge of the 
claim, it was condemned" — Amer. State Papers: Pub. Lands, 3: 384 (Feb- 
ruary 24, 1818) and 421 (January 27, 1820). On the contrary, notice was 
then served upon the claimant to come forward with evidence. Claims 
vouched by the "respectable inhabitants" first consulted were accepted as 
good, others were regarded merely as impeached — ibid., 2 : 210. 

2 Ibid., 2: 223 (cl. 314), 232 (cl. 913). 
s Ibid., 3: 412-413 (February 3, 1819). 



INTRODUCTION xcix 

ships, and quite evidently uncovered the truth (of the nonexistence, 
married or single state, time of arrival in or departure from the 
territory, present whereabouts in any of the United States if still 
living though alleged dead, and so on) with regard to scores of 
individuals, there is not the least reason to doubt their conclusion 
that "John Fowler" was a man of ideal existence created merely 
for the purpose of the title. And this committee did not suggest 
that a defrauder was included within the bounty of Congress, or 
safe against attack in twenty years. 1 Upon this report, also, no 
action was taken. 

One more illustration of the attempts of the governors' con- 
firmees to secure political favor beyond the generous action of 
the second board, appears in a petition of 1818 (when he was hold- 
ing high office in Missouri) by John Rice Jones. The commissioners 
had rejected for forgery two of his claims confirmed by Harrison, 
one of them for making interpolations in the records of ancient 
grants. 2 In his petition to Congress in 1818 he stated that part 
of the land had recently been sold by the United States, and that 
the rest was up for sale. On the basis of evidence in his favor 
given, after inspection of the ancient records, by Ninian Edwards 
(then United States Senator, who had for years been a political 
enemy of Michael Jones), the committee reported that "every 
position taken by the commissioners in support of their opinion is 
indefensible," that every charge was "explained satisfactorily by 
the . . . petition, which is abundantly confirmed by Mr. Ed- 
wards." 3 Congress did not at that time give the relief recom- 

1 In the absence of fraud, of course the position would be maintain- 
able. It is pointed out ante', xciii, n. 2 that in Michigan only a half- 
dozen titles were pronounced valid. Yet, as Judge Woodward wrote to 
Jefferson (October 10, 1805, ibid., 1: 248), "However defective . . .the 
class of original proprietors may be with respect to the evidence of title 
according to the American forms, it is conceived their rights are extremely 
strong." The argument is inapplicable to intruders on the public lands, 
and to persons seeking by fraud to bring themselves within the bounty of 
the government. 

2 Ibid., 2: 215-216 (cl. 1285, 1286). 

3 Ibid., 3: 394 (December 14, 1818). When Edwards became gov- 
ernor the Edgar group presented him with an address, in which they asked 
him to make appointments exclusively from their party; and also — having 
been informed (or for effect saying so) that Edwards was authorized to 
inquire into the conduct of the Kaskaskia land office — they besought him, 



c ILLINOIS HISTORICAL COLLECTIONS 

mended, but in 1854 the two claims rejected by the commissioners 
were satisfied. 1 

The government land office (Michael Jones was the register) 
was apparently slow in selling lands of governors' confirmees the 
claims to which fell outside the confirmations made by Congress 
in 1810-1814. Doubtless all were ultimately sold, and it does not 
appear that any claimant dared to go into court in defence of his 
alleged rights. 

The law of Indiana Territory was constituted of the English 
law, adopted by statute of 1795 as of 4 James the First, 2 of all 
the enactments of the Northwest Territory, and of the additional 
legislation of the Indiana Territory under both the first and second 
grade of government. 

The statute of 1795 originated in Virginia's statutes of adop- 
tion and in turn is the origin of the present Illinois statute. The 
common law had been earlier extended over the Northwest, of 
course without restriction, by British proclamation ; but this was 
purely theoretical. St. Clair's favorite topic was the perfection 
of the common law. He favored, very sensibly, adoption as of the 
beginning of the Revolution ; and to the first Assembly of the 
Northwest Territory he pointed out that adoption as of the earlier 
date deprived the people of many improvements, 3 such as the 
writ of habeas corpus and the statute of frauds. In this he showed 
his habitual intelligence, and superiority to his fellow judges; in 

1 By act of August 4, 1854, U. S. Stat, at Large, 10 : 96. At that 
time his son, George Wallace Jones, was U. S. Senator from Iowa — Chic. 
Hist. Colls., 4: 264. Nicholas Jarrot also received a favor in 1821 — U. S. 
Stat, at Large, 6 : 258. 

2 Pease, Laws (I. H. C, 17) , 253 ; post, 323. 

3 Cp. post, clxxii, n. 1. St. Clair Papers, 1 : 210 ; 2 : 456. 

"as a precautionary measure for the security of our titles," to seal mean- 
while all the books and papers of the office. Edwards, History of Illinois, 
28-29. Edwards soon aligned himself against Jones ; why is not clear. 
See Washburne, Edzvards Papers, 39-40, and post, app. n. 70. "There was 
bitter feeling between him [Michael Jones] and the governor over the 
settlement of land claims." The two were rival candidates for the U. S. 
Senate (but see post, app. n. 13) in October 1818 and again in February 
1819, Edwards being victor both times. For a dozen years they had been 
members of opposing political groups — Buck, Illinois in 1818, 201, 303. 
Mrs. Goebel states that charges against Jones and Backus "were made by 
Governor Edwards soon after his arrival in the newly created Illinois 
Territory" — Harrison, 67, citing MS records. 



INTRODUCTION ci 

this case Parsons and Varnum, who shared the aversion, common 
enough at that time, to an institution deemed to have "entered 
essentially into the principles of monarchical government." 1 

Virginia had first given legislative recognition to the common 
law in 1662. The act of 1795 adopted literally the Virginia act of 
1776; but so far as this gave force to English statutes it was re- 
pealed by an act of December 27, 1792. It was therefore the 
opinion of Salmon P. Chase that the act of 1776, being "so far as 
the English statutes were concerned" not a law of Virginia but 
only a dead form, it could not, as to them, be adopted. 2 The 
point is of little moment, for there were various other state statutes 
adoptive of the English law that could have been chosen had this 
objection been foreseen. 

How far the adoptive act of 1795, in view of the admitted 
vitality of the Virginia act with respect to the unenacted English 
law, enlarged the field theretofore accorded to the common law, in 
the territory is a question of greater importance. It would seem, 
considerably; for the Ordinance of 1787 guaranteed to the inhabi- 
tants merely "the benefit ... of judicial proceedings according 
to the course of the common law." Chase ignored this point. 
He disposed of the whole matter by arguing that the legislative 
power conferred by the Ordinance was intended to extend merely 
"to the selection of single acts . . . with reference to the adap- 
tation of each act, to the circumstances of a new country. It was 
plainly the intention of congress, also, that each law adopted 
should be published, that every citizen might know the extent and 
nature of his social obligations. Neither of these purposes could 
be answered by the adoption of the English law, written and un- 
written, in the mass ... It appears, therefore, that the adop- 
tion of this law, if in conformity with the terms, was in violation 
of the spirit of the ordinance." This argument, albeit of a future 
chief justice of the nation, is not convincing. It was a single act, 
believed to be proper for the territory, that was adopted and was 
published. It is pure assumption that Congress expected the laws 

1 See their discussions in ibid., 2 : 71, 76 ; and cp. Charles Warren, 
A History of the American Bar, 224-239. 

2 Warren, op. cit., 39; Chase. The Statutes of Ohio and of the North- 
western Territory from 1788 to 1833, 1 : 190 n. 



cii ILLINOIS HISTORICAL COLLECTIONS 

of the territory to be more accessible than those of the original 
states; and, as to those, it is admitted that in the original states 
very few lawyers had complete sets of the local statutes, much less 
of English statutes. 

But for Chase's opinion it would hardly be worth while to 
discuss the question whether the common law was, legally and au- 
thoritatively adopted. 1 It is evident that even if "judicial pro- 
ceedings according to the course of the common law" be construed 
to cover procedure only, that would certainly include common law 
pleading, which necessarily involved adoption of great masses of 
substantive law. And the statute-book of 1795, which Chase 
lauded, would have been in truth miserably deficient without a 
common law background ; as Judge Burnet and others undoubtedly 
realized at the time. In the Indiana and Illinois territories such 
questions regarding the adoption of the common law were never 
seriously mooted. 2 

One misapprehension has also existed with reference to the 
statutes of the Northwest Territory. It has been stated that "the 
laws passed by the first session of the General Assembly [of the 
Northwest Territory, September 23 to December 19, 1799] did 
not generally go into force in Indiana Territory on account of the 
separation occurring so soon afterward (May 7, 1800)." Doubt- 
less these statutes did not go into practical effect. It is true that 
the General Assembly did reenact a few of the Northwestern 
laws ; and all of these were laws of 1799 ; and it gave, in one case as 
the reason for doing so the opinion that without revival the law 
was "of very doubtful authority and of uncertain obligation." The 
treatment of the elaborate taxation laws of 1799 (not reenacted, 

1 The Ohio Court, in 1806 (Thompson's Lessee v. Gibson, 2 Oh. R. 
339), divided equally on the question whether the statute of uses was law 
of the state. In 1819 there was published at Steubenville, Ohio, a volume 
by Milton Goodnow which is described (in Warren, Hist, of the Amer. 
Bar, 235-236) as "a learned and elaborate work ... in which it was 
endeavored to prove . . . that the Common Law . . . had no 
authority in any of the States that had been formed out of the old North- 
western Territory." Chase must have known this book. In 1833 he re- 
garded the question as "still unsettled." 

2 See Burnet's remarks in his Notes, 303-304. The Revision Act of 
September 17, 1807 (post, 323), reenacting the law of 1795, excepted the 
usury statutes of 13th Eliz. c. 8 and 37th Hen. 8 : c. 9. 



INTRODUCTION ciii 

but immediately supplanted by others of Indiana Territory), sug- 
gests the existence of the same doubt. On the other hand all the 
statutes were necessarily, on principle, part of the law of the new 
territory. Moreover some statutes of 1799 were specifically re- 
pealed; others were not reenacted, yet were clearly treated as the 
operative law. And others were neither reenacted nor regarded as 
operative. 1 Dunn's statement that the Northwestern laws were 
"always treated as in force" in Indiana Territory 2 is substantially 
accurate. 

The terms of the legislatures were as follows: 3 

Gov'r and judges : 

1st session, January 12 — January 26, 1801. 
2nd session, January 30 — February 3, 1802. 
3rd session, February 16 — March 24, 1803. 
4th session, September 20, 1803 — September 22, 1804. 

First General Assembly: 

1st session, July 29, 1805— August 26, 1805. 4 
2nd session, November 3, 1806 — December 6, 1806. 

Second General Assembly: 

1st session, August 16, 1807— September 19, 1807. 5 
2nd session, September 26, 1808 — October 26, 1808. 

1 Monks, Courts, 1:5; post, cxiv, cxxiii, notes 1, 2, 4 and 5 ; cxxiv, n. 
2 ; cxxvii, n. 1 ; cxxviii, n. 3 ; cxxxi, n. 1 ; cxxxiv, n. 1 ; cxlix, n. 5. 

2 Indiana, 294. See also the introduction to Gibson, Exec. Journal, 
68-69. 

3 For the adjournment dates under government of the first grade 
(not necessarily identical with the dates of the latest statutes) I rely upon 
Howe, Ind. Hist. Soc. Pub., 2: 17, 144; of the fourth he says, "doubtless 
with several intermediate adjournments." The dates on which the sessions 
of the Assembly began are likewise taken from Howe — loc. cit., 144. 
The adjournment dates are unfortunately nowhere stated by Dunn, Mr. 
Esarey, and Mr. Webster; though all were familiar with the journals of 
both houses of the General Assembly, printed in the Western Sun of 
Vincennes, which I have not seen. I therefore give the dates of the last 
legislative acts. 

4 On August 26, 1805 Governor Harrison prorogued the Assembly, 
"to meet again on the last Monday in Oct. 1806" — Messages, 1 : 164. 
That would be October 27. 

5 Judge Gross indicated later sessions, but this seems doubtful. 



civ ILLINOIS HISTORICAL COLLECTIONS 

It is difficult to compare quantitatively — though it has several 
times been attempted — the legislative activity of the governor and 
judges with that of the Assembly of either territory; or of one 
territory, under either grade of government, with the other terri- 
tory. Much legislation was wholly or substantial reenactment; 
and some laws were more fundamental or more original or more 
complicated than others. One thing is certain, however : that the 
task of St. Clair and the judges of the old territory under the first 
grade was heaviest. 1 For the Northwest Territory a statute-book 
had to be created de novo; the work of the legislators of the 
younger territory was supplementary only. Division caused no 
break in the administration of justice or other machinery of gov- 
ernment — as was true likewise when Indiana Territory was later 
divided, and true of the other territories for which the Ordinance 
was the basic law. The code of the older territory persisted as 
the law of the newer. Thus the latter started with a statute-book 
relatively complete, and supposedly adjusted by careful selection 
of laws from the original states to the needs of frontier conditions. 
When the Assembly appointed revisers to "reduce into one code 
the laws in force in this territory" it was understood that this in- 
cluded the legislation of the Northwest Territory ; and the revision 
reported, described as "comprising those Acts formerly in force," 
as revised and again enacted, in fact included almost the total of 
the earlier code. Never, until the revised code was enacted and all 
earlier laws repealed, in 1807, had there ever been — save of statutes 
of 1799, as above indicated — reenactment of statutes of the North- 
west Territory. 

It was not in the least by mere choice, however, that these 
were adopted. 2 True, no act of Congress, and no general statute 

iSee for statute lists, Smith, St. Clair Papers, 1: 147, 188-189, 211 - 
2: 80 n., 167 n., 275 n., 311-312 n., 355-356 n., 438 n., 452-453 n., 523-524 n., 
543-544 n. 

2 Judge Banta says (Ind. Mag. of Hist., 9: 240) that "it would 
seem as if" the old laws continued to be enforced. And apparently he 
regarded this as without legal justification. "The judges who had passed 
the laws stood ready to enforce them and from their decision there was no 
appeal, and Congress could only disapprove, not repeal." This would be less 
inaccurate if confined to laws independently enacted by governor and judges, 
excluding those properly "adopted" from laws of the original thirteen 
states; for to these, at least, the references to government under the Ordi- 



INTRODUCTION cv 

of Indiana Territory (such as that by which the statutes of the 
latter were later adopted for Illinois Territory) explicitly so pro- 
vided. But the act which divided the Northwest Territory declared 
that a portion thereof should, "for the purposes of temporary gov- 
ernment" constitute Indiana Territory; and its effect was limited 
to the establishment in the portions thus separated of "two distinct 
and separate governments." So also when Indiana Territory was 
later divided it was by an act captioned "for dividing the Indiana 
Territory into two separate Governments," and it was provided 
therein that that part of Indiana Territory west of the Wabash 
should constitute a separate territory, "for the purpose of tempo- 
rary government." These words were interpreted by everybody 
in their natural sense: "the theory adopted was that the division 
. . . was merely for administrative purposes ; that the laws were 
as much in force in one division as in the other" 1 — that is, so far 

iDunn, Indiana, 294; D. W. Howe, inlnd. Hist. Soc. Pub., 2: 14; 
the creative acts, Annals, 6 Congress, 1 session, 1498 (May 7, 1800), and 
10 Congress, 2 session, 1808 (February 3, 1809). Dunn is in error 
in referring to this as a unique example. It was in harmony with general 
principles of international law. The District of Louisiana was treated in 
the same way by explicit provision of Congress. When Harrison planned 
(under the duty laid upon him and the judges of Indiana Territory by the 
act of March 26, 1804) to enact a complete code of laws for the District, 
Madison reminded him of the statutory provision (§ 13) which continued 
in force the former French and Spanish laws "until altered, modified, or 
repealed by the Governor and judges of the Indiana Territory." Madison 
to Harrison, June 14, 1804, Harrison, Messages, 1 : 96 ; Annals, 8 Congress, 
1 session, 1298. Similar examples, without express statutory provision, are 
to be found in the history of states included in the later Mexican cession. 
In certain "deliberations" of freeholders of the Northeast Coast of Detroit, 
December 8, 1806 {Mich. Pioneer and Hist. Colls., 8 : 582) , they say that 
"agreeable to the sentence rendered in the Supreme Court in September 
last, it has been decided that the Indiana laws were in force in this Terri- 
tory." The dissenting views of Judge Bates, embodied in a memorandum 
addressed to his colleagues, are in Marshall, Life and Papers of Frederick 
Bates, 1: 84-86. Mr. Webster (in Ind. Hist. Soc. Pub., 4: 188 n., citing 
Thornton, Bench and Bar — which I have not seen) states that in 1803 the 
Territorial court decided that a law of the Northwest Territory, passed 
after 1800, was in force in Wayne County after its annexation to Indiana 
Territory, although a different law prevailed in the rest of that territory. 
Neither of these decisions was noted by me in a somewhat hurried examina- 

nance, quoted post, cix and n. 1, would clearly apply. But the view 
is unacceptable with reference even to laws improperly enacted ; they were 
part of the government de facto. Monks, Courts, 1 : 22 — referring to the 
courts of Indiana Territory as "accepting" the laws of the mother territory, 
and characterizing this action as an "assumption" — reflects the view of 
Judge Banta. 



cvi ILLINOIS HISTORICAL COLLECTIONS 

as those of the old territory, already advanced to second grade, 
were applicable to those of the new while still in the first grade. 

The statutes in this volume abound with examples, aside from 
that of the Revision of 1807, in which acts of the old territory were 
repealed or amended by legislation of the new territory. 1 In 
fact large portions of the latter's administrative system operated 
for years solely upon the authority of laws of the Northwest Ter- 
ritory. The governor and judges of Indiana Territory did not 
even amend the statutes of 1799 and earlier years relative to jus- 
tices of the peace; they passed no laws establishing or regulating 
orphans' courts or probate courts. But justices of the peace and 
judges of probate (until abolished in 1805) were continually ap- 
pointed. The same is true of coroners until the Revision of 1807. 
As for the regular county courts, it is true that their organization 
was repeatedly overhauled by legislation during both the first and 
second grade of government, but this legislation was purely emend- 
atory. Although acting Governor Gibson's first official act was 
to make appointments to all the local courts and other county 
offices, this amounted merely to a renewal of personel: the con- 
tinued operation of the administrative system was nowise depen- 
dent on such action. 

Mr. Pease has referred, in his introduction to the preceding 
volume of this series, 2 to the serious problem that arose from the 
clause of the Ordinance of 1787 which required the governor and 
judges to "adopt" laws from the original thirteen states. St. Clair 
and his fellows acted from necessity. 3 The disapproval of Con- 

1 E. g. the very first law is entitled, "A Law supplemental to a law 
[of the Northwest Territory] to regulate county levies" {post, 1) ; the sixth 
law passed is entitled, "An Act repealing certain laws and acts and parts 
of certain laws and acts" of the Northwest Territory ; and so on. 

2 Pease, Laws (I. H. C, 17), xx-xxii, xxiii-xxx, giving remarkable 
examples of "adoption." 

3 See for their views St. Clair Papers, 2: 67-68, 69, 71, 356 et seq., 
363 et seq., 439-440, 446 et seq., 453. 

tion of the Order Book of the General Court. If the cause of action, 
in the second case, arose after annexation to Indiana Territory the decision 
would be wrong. The effect of the act of March 2, 1801, which provided 
that suits initiated in Indiana, and of which the territorial court had taken 
jurisdiction before division, should proceed therein to final judgment as if 
no division had occurred, is somewhat misstated in Monks, Courts, 1 : 22. 



INTRODUCTION cvii 

gress 1 did not end what was unavoidable. The officials of the 
Indiana Territory, Mississippi Territory, and the Territory of 
Michigan all followed the same latitudinarian practice. A state- 
ment of the difficulty by Governor Hull and Presiding Judge A. B. 
Woodward of the last named territory is worth quoting. 

"On all the subjects requiring legislation, the present Govern- 
ment act with difficulty, and, on many, cannot act at all. All laws 
will be found to operate on particular places, times, and persons; 
and in no State . . . will an abstract code of principles be 
discovered free from a connexion, and that a very close one, with 
the places, times, and persons affected by them. Hence the strict 
adoption of any code, or even of any one law, becomes impossible. 
To make it applicable, it must be adapted to the geography of the 
country, to its temporary circumstances and exigencies, and to the 
particular character of the persons over whom it is to operate. 
Hitherto it has been religiously the object to follow what has been 
deemed the substance of the law, whatever modifications the form 
of it was obliged to undergo. But different minds will not always 
correspond in sentiment on what is substance, and what is form; 
and in all the litigations which arise under laws, those affecting 
the validity of the law itself are the most intricate and difficult. 
Hence, in a country whose administration ought to be marked with 
simplicity, intricacy, procrastination, and uncertainty in affairs, re- 
sult. To adopt laws from all the original States, the laws of all 

1 Amer. State Papers: Misc., 1: 82, committee report of May 24, 
1794, to the House of Representatives. The committee reported, of the 
thirteen acts passed by Acting-governor Sargent and Judges Putnam and 
Symmes on August 1, 1792, that many provisions thereof were objection- 
able, but that to enumerate these was superfluous, since the laws were 
invalid in toto : "These laws appear to have been passed by the Secretary 
and judges on the idea that they were possessed generally of legislative 
power, and have not, either in whole or in part, been adopted from laws 
of the original States." The House prepared and passed a joint-resolu- 
tion invalidating all the laws except one — Annals, 3 Congress, 601, 1214, 
1223, 1227; but the Senate did not concur— ibid., 37, 84, 825, 830. As to 
law excepted— Pease, Laws (I. H. C, 17), 87. By act of May 8, 1792— 
U. S. Stat, at Large, 1 : 286, § 6 — Congress had disapproved of the statute 
of limitations passed on December 28, 1788 — Pease, Laws (I. H. C, 17), 
25 ; hence the new law passed in 1795, ibid., 161. The territory would have 
been in a curious condition if all the laws of 1792 had been invalidated. See 
for the views of St. Clair and Symmes, St. Clair Papers, 2: 339, 350, 356- 
362, 364-366, 439-440, 450-453. 



cviii ILLINOIS HISTORICAL COLLECTIONS 

the original States ought to be furnished ; and, waiving the diffi- 
culty and expense of procuring them, what body of men, under 
the pressure of immediate business, can acquire a complete ac- 
quaintance with them? The possession of all the codes, if it were 
possible, and a complete acquaintance with their contents, would 
still prove an abortive cure ; for, in many very simple cases, a strict 
precedent will be searched for in vain. Is the object to establish 
a ferry, to regulate the affairs of any district, to erect a court- 
house, or to institute a school, however urgent the call, however 
obvious the means, it must often be abandoned for want of a pre- 
cedent that will apply; and often, when attempted, may be de- 
feated, from the want of a strict correspondence between the law 
made and the precedent from which it professes to be adopted? 
The real security for the prevalence of republican principles rests 
not in a provision of this awkward kind : for, even in the codes of 
the States, the disciple of aristocracy may sometimes find a weapon. 
. . . It rests in the parental control of Congress." 1 

When an act was needed to compensate the clerk of the As- 
sembly (a certain reward to an individual occupying a particular 
office), or to establish a ferry at a certain place on an Indiana or 
Illinois river, or to authorize payments for sending pony expresses 
on public business across the prairies 2 — in such cases, chosen 
merely as examples to point Judge Woodward's argument, how 
could the law of some other state be "adopted"? 

1 Letter to President Jefferson, October 10, 1805 — Amer. State 
Papers: Pub. Lands, 1 : 249. Compare the statement of Governor 
Sargent and judges of Mississippi Territory, Annals, 6 Congress, 
1 session, 717. A committee of Michigan citizens stated quite correctly 
in a representation of October 16, 1809 (asking for government of the 
second grade) that "the inconvenience of a legislative power under so 
extraordinary and so awkward a modification have been perpetuated after 
reason had proved its inconsistency, and transplanted to other governments 
when experience had demonstrated its inadequacy" — Mich. Pioneer and 
Hist. Colls., 12: 547. Judge Woodward _ drafted a code that ignored the 
restriction of the Ordinance ; for caustic comments upon "Woodward's 
Code" see ibid., 8: 617-619. The question long continued a thorny one. 
When the British, after having conquered that territory in 1812, regulated 
its civil government they provided that legislative provisions need not be 
adopted from any American state (ibid., 8: 634-635). This was doubtless 
intended as a grant of complete legislative power. 

2 Pease, Laws (I. H. C, 17), 287 (August 13, 1795); also post, 
18, 20, 87. 



INTRODUCTION cix 

Although the governor and judges of Indiana Territory, in 
using the words "law," "act," and "resolution" to describe their 
legislation, might be assumed to have used those words with exact 
discrimination, in fact they did not do so. They sometimes re- 
ferred to "acts" of their predecessors as "laws." Their own 
"laws" — even one amending or supplementing earlier statutes — 
are justified as "adopted from the code" of a designated state. 
When they repealed a statute by an "act" it is described as "made 
. . . conformably to" the Ordinance. But neither formula is 
used to justify a resolution — even one repealing a statute. On the 
whole the terminology means nothing except that they resolved 
when they doubted their authority to enact; but, again, in various 
cases a "resolution" is at its end "declared to be a law of the 
Territory." 

Considering that in all the territories that started with the 
Ordinance as their basic law its "adoption" clause was of necessity 
evaded, that almost nothing was actually done by Congress to in- 
validate such legislation and that all of it was locally enforced as 
law of the land, it would be a puerile technicality to insist that such 
"resolutions" lacked legality. Considering that power was assumed 
to repeal in toto any laws, whether of the Indiana or of the North- 
west Territory, 1 it seems an equally empty technicality to deny 
validity to partial repeals. 2 But very many of the laws adopted 
by the governor and judges were taken from Kentucky, 3 and such 

iThe statute of May 8, 1792 (U. S. Stat, at Large, 1: 286, § 2) 
gave the governor and judges of the old territory authority to repeal "their 
laws by them made," with no explicit reference to partial repeals. The act 
creating Indiana Territory provided that its government should be that pro- 
vided by "the ordinance" ; but it also contained the language quoted in the text, 
ante, cv. It seems, therefore, that Indiana Territory was to enjoy govern- 
ment under the Ordinance as the Northwest Territory had enjoyed it from 
1792 to 1799, i. e. with the interpretation or modification established by 
Congress through the statute cited at the beginning of this note. The 
governor and judges of Indiana Territory, as a matter of fact, exercised 
unchallenged the power of repeal, total and partial, and with respect equally 
to their own statutes and laws of the older territory. 

2 Monks, Courts, 1 : 25, characterizes as illegal all "resolutions," also 
all partial repeals of laws of the Northwest Territory. The larger question 
referred to in the preceding note is overlooked. 

3 Adoptions from southern states (especially Kentucky and Vir- 
ginia) greatly preponderated, whereas the laws of the Northwest Territory 
had come very largely from northern states. There is no reason to believe 



ex ILLINOIS HISTORICAL COLLECTIONS 

action was manifestly a violation of the literal terms of the Or- 
dinance. It has therefore, probably generally, been assumed that 
the statutes thence derived were necessarily illegal. 1 Whether 
such adoptions violated the spirit of the Ordinance, as a matter of 
statutory construction, is a difficult question. If the purpose of 
the provision was that stated above in Judge Woodward's opinion, 
could it be contended that the society or statutes of the original 
thirteen states contained more of republicanism than did those of 
Kentucky's frontier democracy? The question was formally con- 
sidered in Michigan in 1805, and the position was taken by the 
judges that, inasmuch as that territory was by its creative act 
merely given a government "similar" to that provided by the Or- 
dinance, and inasmuch as the Ordinance, with respect to Michigan, 
derived its effect from the creative statute of 1805, every state 
then existing and participating in the creation of the territory was 
one whose laws might, "conformable to the strict letter" of the 
Ordinance be adopted ; and inasmuch as the obvious general intent 
of the Ordinance's restriction was merely to apply to incipient 
states "the laws which societies further advanced under the same 
principles of government, have found convenient and advantage- 
ous," the same liberty of choice was sanctioned by the spirit of 
the Ordinance. 2 These arguments seem convincing. 

As has been said above, such was Harrison's political finesse 
that no trouble arose in Indiana Territory over what under St. 
Clair had raised a storm. But when an autocrat like Winthrop 

IE. g. by Judge William L. Gross, 111. State Bar Assoc. Proc. (1881), 
pp. 76, 81 ; Monks, Courts, 1 : 25. 

2 Report by Judges Woodward and Bates to their fellows, Mich. 
Pioneer and Hist. Colls., 8: 603-604. 



that slavery had anything to do with this. Immigration into Indiana Ter- 
ritory was in these years very largely from the south. This, and the 
different origins of the governors and other leaders of the two territories, 
are a sufficient explanation. On the Kentucky influence see J. R. Robertson 
in Ind. Hist. Soc. Pub., 6 : 82 et seq. The connection of the Illinois country 
with Nashville was close from 1782 onward — Alvord, Illinois Country, 359. 
The extraordinary number of Pennsylvania statutes adopted in the North- 
west Territory — Pease, Laws (I. H. C, 17), xxvi — is partly explainable 
by the fact that the judges did not have statute books of the other states 
(5**. Clair Papers, 2 : 334 ) , but doubtless also by St. Clair's years of ex- 
perience in administering Pennsylvania law (Pease, op. cit., xvii), and to 
his greater ability and force in comparison with his fellows. 



INTRODUCTION cxi 

Sargent did the same things in Mississippi, remonstrance against 
unconstitutional laws again reverberated in Congress, and he was 
denounced by a champion of the people, with the fervor of that age 
of romanticism, as "a tyrant, who has trampled on their rights 
with a tiger's stride; and plucked from them, by voracious and 
disgraceful laws, their hard earnings" (to wit — precisely as in 
Indiana Territory — in ferry tolls, tavern licenses, and court 
fees). 1 

Salmon P. Chase gave high praise to the statutes of the North- 
west Territory. 2 For their precise (but also cumbersome) term- 
inology many of them might indeed be praised. But as a system 
they were recognized by the judges themselves, and by Judge 
Burnet, who was mainly to be credited with their revision in 
1799, 3 as extremely incomplete. In fact they covered only a 
few subjects. The additions and amendments which they suffered 
at the hands of the legislators of Indiana Territory amply illustrate 
their deficiencies. In his address to the first legislature Governor 
Harrison suggested that there was "much room for alteration and 
improvement," and that at least the organization of the lower 
courts must be reformed; but he ventured the opinion that "the 
formation of a new code would be attended with an expense which 
our citizens are at present ill able to supply; and the advantages 
which would result from it would be probably, more than counter- 
balanced by the many embarrassments which it might occasion." 4 

1 See Annals, 6 Congress, 1 session, 717-718 (May 14, 1800) ; 2 ses- 
sion, 837, 838-840 (December 19, 22, 1800). "It is a fact well known, that 
at the time this man was appointed Governor of the Mississippi Territory, 
he was hated and despised by the people of the Western country" (Davis, 
of Kentucky: ibid., 840). The specifications against him and the judges 
related to laws regarding ferries, treason, taverns, and court fees. 

2 Namely, that the system was "not without many imperfections and 
blemishes; but it may be doubted whether any colony, at so early a period 
after its first establishment, ever had one so good" — Statutes of Ohio, 1 : 27. 

3 Symmes and Turner to St. Clair, May, 1795, pronouncing the statute 
book "by far too inadequate, at present, to answer the ends of good gov- 
ernment." St. Clair Papers, 2: 365. Mr. Esarey says that the burden fell 
"on the lawyers of the eastern [Ohio] counties," History, 1 : 150. Burnet 
lists the laws of which he was the author in his Notes, 310-311. He was a 
graduate of Princeton, well trained in law. 

4 July 29, 1805 — Harrison, Messages, 1 : 155-156. In Michigan the 
variety of governments and laws successively in force was even greater, 
including — in addition to those which entered into the law of Indiana Ter- 



cxii ILLINOIS HISTORICAL COLLECTIONS 

But the legislature resolved, nevertheless, that John Johnson 1 
and John Rice Jones should "reduce into one code" the laws in 
force in the territory and report to the next session. 2 The power 
was evidently found inadequate, for at the next session it was 
resolved that they "revise and reduce," with authority to "make 
the said laws ... as complete as the nature of the case will 
admit of." 3 The result of their revision, and of "several altera- 
tions, additions and amendments" made by the Assembly, 4 was 
the "Revision" of 1807, included in the present volume. All other 
laws theretofore of authority were repealed, and the "revisal" was 
declared to be of exclusive authority. Competent judges have 
given the work of the revisers high praise. 5 Praise it undoubt- 
edly deserves, notwithstanding that it was with few and slight 
exceptions mechanical in character. 6 

In one respect, however, the Revision is greatly superior to 
the statutes of the Northwest Territory: its phraseology is far 

1 A leading lawyer of the Wabash country. Mr. Esarey (Harrison, 
Messages, 1: 317; Monks, Courts, 1: 184) gives 1804 as the date of his 
appearance in Indiana. The Order Book of the General Court (copy of 
the original volume) , 1 : 56, shows that on January 10, 1803, he produced 
a Kentucky license as attorney and was ordered examined as a counsellor 
(by John Rice Jones and Robert Hamilton) ; and on March 1 he and Jones 
were the examiners of Isaac Darneille. One of his opinions in a slavery 
case is given in Ind. Hist. Soc. Pub., 2 : 528 ; cp. ibid., 482. For details of 
his career see Monks, op. cit., 175, 184. 

2 August 26, 1805, post, 153. 

3 December 4, 1806, post, 217. Jones and Gen. W. Johnston indexed 
the Revision, prepared the errata, and superintended the printing, and were 
paid therefor $30 and $50 respectively — post, 605, 656, 674. The revisers 
received $350 for their labors : post, 208, 607. Nine copyists (including 
Tonathan Jennings) were paid $2.50 per diem. 

±Post, 608. 

5 E. g. Judge William L. Gross, in 111. State Bar Assoc. Proc. (1881), 
86 : "The work they did in bringing together the large number of acts 
that had been in force in the Territory since 1788, and the erudition and 
judgment they displayed in framing the new legislation, was, considering 
the times and circumstances under which they worked, very remarkable." 

6 Howe seems correct, Ind. Hist. Soc. Pub., 2: 23-24. Never- 
theless, considering the qualities of statutory revision in this country, gen- 
erally (see Frederic J. Stimson, Popular Law-Making, 354 et seq.), even 
mechanical rearrangements, if accompanied by omissions of obsolete matter, 
are notable merits. 



ritory — royal ordinances of France, the Custom of Paris (not theoretically, 
but in actuality), and the statutes of Indiana Territory. The problem of 
revision was therefore correspondingly greater. Mich. Pioneer and Hist. 
Colls., 12: 464-465 (No. x), 466. 



INTRODUCTION cxiii 

more direct and less cumbersome. Referring to the difference in 
this respect between the laws of the first legislature of the younger 
territory and the enactments by St. Clair and his judges, a com- 
mentator has justly characterized it as "the difference between the 
parlance of the lawyer and layman." 1 

A great embarrassment in the administration of justice was 
the difficulty of making the laws known to the people, or even to 
the judges. Governor St. Clair had no way to make the laws 
known except through reading in the courts, which few attended. 
"Even the magistrates who are to carry them into execution" — he 
wrote — "are strangers to them, for the secretary does not conceive 
it to be his duty to furnish them with copies. Indeed the business 
of his office increases so fast, that it would be impossible to do it ; 
besides, they are in English, and the greatest part of the inhabitants 
do not understand a word of it ; the translation of them, therefore, 
seems to be necessary, and that a sufficient number of them should 
be printed in both languages ; and that can only be done in the ter- 
ritory where the original rolls are deposited. Every public act 
and communication, of what kind soever, I was myself obliged 
[when in the Illinois country in 1790] to translate into French; 
and having no person to assist me, it made the business extremely 
troublesome and laborious." 2 A few months later an act was 
passed creating the office of clerk of the legislature, and making it 
his duty to publish the laws in every county, and furnish copies 
to the governor and to the territorial and county judges ; and by 
another act a penalty (strangely enough, of only three dollars) was 
imposed for tearing down or defacing a posted statute. 3 But 
the former law (the federal government having made provision 
for publishing the territorial laws) was repealed in 1792. It has 
already been noted that John Rice Jones, two years after St. Clair's 
visit in the west, translated the statutes for the use of the French- 
speaking judges. 4 

1 Monks, Courts, 1 : 25. 

2 Letter of Secretary of State, February 10, 1791 — Amer. State Pa- 
pers: Pub. Lands, 1: 20. 

3 Pease, Lazvs (I. H. C, 17), 43 (law as to clerk) ; (law as to posted 
statutes) 42, 332, and post, 374, § 14. 

4 See ante, xvii, n. 3. 



cxiv ILLINOIS HISTORICAL COLLECTIONS 

No similar provision was made for publication of the laws of 
the Indiana Territory. Harrison urged similarly the great incon- 
venience that resulted from the want of printed laws, and he and 
the judges authorized the copying of the law on county levies, and 
such other laws as might be deemed necessary, "for the use of the 
territory." 1 The opening of the printing establishment of Elihu 
Stout in Vincennes, in 1804, relieved the situation. A moderate 
number of the statutes passed by both sessions of the first Assem- 
bly, and of the Revision printed with the laws of the first session 
of the second Assembly, were ordered sent to each county for 
official use. 2 Wayne County, while still a part of Indiana Terri- 
tory, never had any copies of the statutes, and after it became the 
Territory of Michigan, though the statutes of the older territory 
were a portion of its law, apparently never saw any of the printed 
copies. 3 

Among the statutes most elaborately devised, yet repeatedly 
amended, were those on taxation. Three times in as many years 
the Assembly overhauled the territorial land tax, constantly im- 
proving it in definiteness — though starting with an elaborate law of 
1799 under which the government operated until 1805. Twice by 
the governor and judges and four times by the Assembly the law 

1 Messages, 1 : 50 — Harrison's letter of July 7, 1802, to Secretary- 
Madison. Resolution of November 7, 1803 — post, 85. 

2 Twenty copies of the laws of the second (and probably of the 
first) session of the first Assembly ; 45 copies of the Revision of 1807 and 
of the laws of the first and second sessions of the second Assembly — to 
each county. Post, 153, 217, 578, 604, 656, 672. The act of Congress of 
May 8, 1792, cited ante, cix, n. 1, provided (§ 1) that the United States 
government should print 200 copies of the laws of the Northwest Terri- 
tory for distribution therein. No similar statute, apparently, was passed 
with reference to the Indiana Territory. 

3 In October, 1804 it was stated in a petition to Congress that of the 
laws passed by the governor and judges in September, 1803 (but see ante, 
cv, n. 1) not one had, in a year, been seen in Wayne County, nor of 
course been in actual operation — see petition in Hist. Public, of Wayne 
County Michigan, Nos. 1-2, p. 30. Judge Woodward stated in 1807 that 
"of the northwestern and Indiana laws there is not a complete copy in 
the Territory" — Mich. Pioneer and Hist. Colls., 12 : 505. And in a statute 
of 1810, repealing British and other statutes theoretically theretofore in 
force, through unavoidable ignorance of which the people might be ensnared, 
it was stated that the laws of the two territories did not exist in manuscript 
or print in Michigan, and also were out of print — ibid., 8: 612 (§ 3). 



INTRODUCTION cxv 

on county levies was amended or restated 1 — starting again with 
the elaborate law of 1799, of which manuscript copies were dis- 
tributed to the counties. The territory relied upon land, the coun- 
ties mainly upon personalty and license taxes. 

To one unable to read between the lines, the operation of the 
territorial tax would seem a veritable opera boufre. The act of 
1805 required the courts of Common Pleas to appoint assessors 
and collectors; empowered the territorial auditor to "apply for 
and procure from the proper officers" abstracts of "all entries 
and locations" of land, which lists he should forward to the 
county assessors f required the assessors thereupon to list 
every tract claimed in his county ("either by entry, patent, deed 
of conveyance, bond for conveyance, or any other evidence of 
claim"), and return valuations thereon to the auditor; who should 
then levy such assessment as would produce the revenue required. 
Provision was made for the sale of lands for taxes, and bonds were 
required of assessors and collectors ($500 and $2000 respectively). 
Now it appears that assessors and collectors were not appointed in 
St. Clair, Randolph, and Dearborn counties, nor valuation lists 
supplied to the auditor; wherefore the latter was ordered never- 
theless to assess upon said counties "their proportion of the taxes" 
for 1806, and in default of full abstracts to act "from the best 
information he can collect." Heavy penalties were put upon the 
county courts for future failure to name assessors and collectors ; 
and likewise upon "any register, surveyor, or other person in whose 
possession the records and proofs of the grant and confirmation 
of land may be" (italics added), who should, "upon being there- 
unto lawfully required," withhold abstracts from such records. 3 
Farther, it appears that the territorial auditor did not transmit the 
land entries for Randolph County until after the day of appeal, 
in consequence of which the assessments were void; yet the col- 
lector had collected some of the taxes, and sold lands for non- 
payment of others; wherefore a special session of the Common 

!For land tax 1805, '06, '07— post, 147, 171, 592; for law regulating 
county levies 1801, '03, '06, '07, 'OS— post, 1, 68, 186, 196, 481, 664. 

2 Post, 147, §§ 1-5, 11, 14, 18, 24, 25. See ante, lxxiv. 

3 Act of November 29, 1806, post, 171 §§ 5, 7, 8, 9. 



cxvi ILLINOIS HISTORICAL COLLECTIONS 

Pleas was ordered to hear appeals, and subject thereto the assess- 
ments and collections were validated. 1 Again, it appears that 
the sheriffs "of several counties," though under penalty of $500 
to do so under the act of 1805, had not taken lists of the free 
male inhabitants of their counties ; wherefore they were ordered 
to do so, under renewed threat of said penalty 2 — but it does not 
appear that the first penalty was collected. Finally, the act of 
1805 required certain publication "in some public newspaper in 
this territory" ; but "the public newspaper for this territory," — 
there was only one — "was for some time suspended" — nevertheless 
taxes were declared to have been legally collected in Knox and 
Clark counties. 3 In short the iaw of 1805 was punctually ob- 
served in not a single county. 

The act of 1806 was likewise ineffective. The assessor of 
St. Clair "refused to make an assessment and return" ; wherefore 
it was ordered that said assessor, "being furnished" with entry 
lists, which the auditor was again ordered to supply, "and having 
taken such oath as is required by law" should proceed to do his 
duty; and a special session of the Common Pleas was ordered, to 
examine his returns. It does not appear that $300 was collected 
for his first default, but the penalty of default under the corrective 
act was to be personal liability for the taxes. The collector and 
assessor of Knox had violated the law, and being conscious thereof 
the collector did not collect until by special act he was ordered to 
do so. The collector of Dearborn, on the other hand, did collect 
taxes wrongfully assessed, and was ordered to make reimburse- 
ment. 4 

With this accumulation of experience the Assembly attempted 
in 1807 to frame a law that should be proof against all officials. 
In the main the system it provided was that of the statute of 
1805, though the new law was much more precisely and clearly 
framed. A novelty was a prohibition against the appointment of 
sheriffs or deputy sheriffs as assessors. Another was provision for 

i Act of September 14, 1807, post, 558. 

2 "Resolution" of December 6, 1806, post. 177. 

3 Act of November 29, 1806 (§§ 5, 6), post, 172-173. 

4 Acts of September 3, 1807, and September 16, 1807, post, 553, 574; 
resolution of September 19, 1807, post, 602. 



INTRODUCTION cxvii 

redemption from tax sales. It would be difficult to say how the 
statute could have been better drafted. 1 But despite all precau- 
tions the law was disobeyed. The assessors of St. Clair and Ran- 
dolph failed to make and return assessments for 1808, thereby 
making impossible a valid collection for 1808 or 1809. For remedy 
whereof they were by special act "hereby directed immediately to 
proceed" to do their duty. 2 And by resolution "proper officers" 
were directed to take speedy and effectual measures to compel 
tax collectors to pay their arrearages. 3 

Such examples (for the above is not a unique presentment of 
territorial administration) make very clear the weakness of the 
executive branch of government, which was one argument for di- 
vision of the territory in 1800 and in 1809. The situation was in 
part due to the state of land titles in the Illinois counties ; in truth 
it would have been impossible to furnish reasonably exact abstracts 
or to assess a just tax. In part, also, the difficulty was simply 
recalcitrancy on the part of the Illinois officers. 4 

And back of this lay politics. In the formal charges against 
Harrison forwarded to Congress by the Illinois divisionists in 1808 
the use made of the records of the federal land registers to secure 
the names of all claimants, and the imposition of a tax upon mere 
claims, were given precedence over all others except precipitation 
into government of the second grade. It seems clear that Harrison 
used the legislature to put pressure on the Illinois dissidents ; and 
it seems probable that in this Michael Jones willingly cooperated — 

1 Act of September 19, 1807, post, 592. Mere formalism, copied from 
earlier statutes, survived in the provision that notice of tax sales should 
be advertised "in some publick news-paper, either in the Territory, or in the 
states of Kentucky, and Ohio." The act cited ante, cxv, n. 3 provided for 
advertisements set up at two or more public places in the county of location, 
in case there should be no newspaper in the Territory. The history of the 
Western Sun (1804-1845; known for the first year and a half as the In- 
diana Gazette) is given in Law, Colonial Hist, of Vincennes, 137-140. 

2 Act of October 26, 1808, post, 669. 

3 Resolution of same date, post, 673. In the Order Book of the Gen- 
eral Court, 1 (copy), 84, is a judgment of September 8, 1803, against the 
collector of Knox for arrearages of 1802. All the collectors (sheriffs) 
were constantlv in arrears. 

4 Section 2 of the law of October 26, 1808, post, 664 (appropriating 
the land tax exclusively to local building purposes) undoubtedly illustrates 
this attitude. Compare ante, lxxiv and post, cxix, n. 2. 



cxviii ILLINOIS HISTORICAL COLLECTIONS 

for certainly both he — and Harrison 1 realized that the territory- 
had no control over the records of the former's office. 

The specific provisions of the statutes on county levies, except 
as mentioned in connection with other subjects, require little com- 
ment. In the main the Court of Quarter Sessions merely voted the 
rates prescribed by the statute ; but it had some independent power 
of importance, such as fixing the rate of tavern and ferry li- 
censes. 2 More criminal prosecutions originated under the pro- 
vision for a retail license tax, which imposed a fine for the sale 
without license of merchandise other than the produce or manu- 
facture of the territory, than from any other cause. Where the 
territorial statute fixed a maximum, naturally the Quarter Sessions 
fixed the rate considerably lower; 3 and for the protection of 
bachelors they cut in half the minimum set by the statute. 4 Need- 
less to say, the court of tax appeals reduced assessments, and low 
valuations were set upon lands (on petition of the leading- land- 
holders). 5 

1 Ante, xlvii, lxiv. 

2 These were politically, even more than financially, important. Rec- 
ommendation by the Quarter Sessions had been since 1795— Pease, Laws 
(I. H. C, 17), 193 — a prerequisite to a tavern license. See post, cxxvii, 
n. 3. The act of November 5, 1803 (post, 68) refers in § 12 to the tavern 
tax, but § 1 merely refers to all "houses in town" (as real estate), and no 
other section provides for such a tax. The maximum ferry tax set by this 
statute (§ 14 — unchanged by later laws) was $10. 

3 Same act (§ 13). The maximum on slaves and bond servants was 
$1, but the Quarter Sessions of Randolph (where most of the slaves were 
held) fixed the rate at $0.50; on mills, $0.25 (in 1803, p. 43, $0.50) per 
$100 valuation ; on town houses and lots, $0.25 ; mansion houses in the 
country, $0.25. Randolph, Court Record 1802-06, 62 (term of May, 1804). 
Similar taxes, ibid., 86, 92, 10. 

4 The minimum set (post, 73, § 9) was $0.50: the rate laid, $0.25— 
Randolph, Court Record 1802-06, 1. c. The maximum of $2 was lowered 
in 1806 to $1, and the taxable property possession of which gave release 
from the tax was lowered from $400 to $200 (post, 187, § 2) ; in 1808 (post, 
664, § 1) the tax was abolished. 

5 E. g. a sawmill of Henrv Levins, valued at $500, was reduced in 
valuation to $300— Randolph, Court Record 1802-06, 43 (December, 1803). 
These values are of some interest. The tax on town lots and houses, 
"outlots" (which may have meant strips in the commons), and country 
mansion houses, was restricted to those worth at least $200 (post, 69, § 1 ; 
unamended). Compare post, exxiv on mills. On the petition of John Edgar, 
William Morrison, Robert Morrison, John Rice Jones. Pierre Menard, 
John Beaird, Robert Reynolds, William Whiteside, and George Belsha the 
"Court of Appeals" (i. e. the Common Pleas so acting in tax questions) 
fixed the value of all improvement and family concessions at 75 cents per 



INTRODUCTION cxix 

It is difficult, today, to realize which taxes were at that time 
most significant. Governor Harrison displayed great concern over 
the taxes upon cattle and horses. The Quarter Sessions laid 
taxes on horses and neat cattle under three years, 1 which 
the legislature left untaxed. The difficulty of finding objects of 
taxation, the impolicy of such heavy taxation as would discourage 
immigration, and the injustice of taxing "the incipient exertions 
of the settlers with more than they could conveniently pay," were 
repeatedly urged by Governor Harrison upon the Assembly. Ac- 
cording to his message of 1808 there was very general and just 
complaint against the weight of the county levies. Particularly 
bad, he considered, was the tax on neat cattle and working horses. 
At his behest the fees to road surveyors and the taxes on neat 
cattle and on bachelors were abolished; but he protested in vain 
against the heavy tax on horses as compared with that on land. 2 

The difficulties already noted in collection of the territorial 
taxes were not absent in the administration of the local levies. It 
is noteworthy that four very well known Americans in Randolph 
were fined one dollar each for refusing to give lists of their tax- 

1 Horses at 25, cattle at 6% cents — Randolph, Court Record 1802-06, 
62 (May 1, 1804). The Assembly had fixed maxima of 50 and 10 cents 
on horses and neat cattle, respectively, 3 years and upwards — post, 73, § 9. 

2 Messages, 1 : 157, 230, 304, 305-306, 321, 380. For the taxes abolished 
there was substituted the tax on land for county purposes referred to, ante, 
cxvii, n. 4. "The average price of all the horses ... in any county 
will not, I am confident, exceed forty dollars, and for that forty dollars 
of capital fifty cents per annum is exacted," — as a maximum, plus the 
independent county tax on younger horses — "whilst a capital of one hun- 
dred dollars in land pays only twenty cents to the Territory and five cents 
to the counties. The tax on horses in the State of Kentucky is fixed, as I 
am told, at nine cents. Let us imitate this wise example of our neighbors, 
and relieve the poorer class of our fellow citizens from the intolerable burden 
that oppresses them." 

acre, in favor of the persons named, who> had "applicated this." Ante, 
lxxiv. Also they fixed the value of "all the lands belonging to the following 
persons lying in the Mississippi Bottom" — to wit John Edgar, William 
Morrison, William Mcintosh, John Rice Jones, Pierre Menard, Robert 
Morrison, John Beaird, Robert Reynolds, and Robert Robinson — at $1.50 
per acre ; "except" when such lands might have been assessed at less, in 
which case the lower value should stand — Randolph, Court Record 1802-06, 
111 (October 15, 1807). Be it noted that Edgar, Menard, Beaird, and 
Reynolds were members of the court ; Robert Morrison was its clerk ; 
Robinson was the lawyer who represented several of those who were not 
members, also Menard. 



cxx ILLINOIS HISTORICAL COLLECTIONS 

able property, whereas one American and four French citizens who 
are raised solely in this connection out of obscurity were fined 
five times as much. 1 In 1805 the court ordered a report on de- 
linquent taxpayers and debtors. 2 It is hardly necessary to say that 
they were all of the county magnates : 
William Morrison (richest merchant), retail licenses $60 

on purchase of old courthouse 25 

Pierre Menard (judge of both county courts), retail licenses. . 60 
George Fisher (judge of both county courts), retail licenses. . 30 

for stones of old courthouse 40 

2 tavern licenses 24 

Ephraim Carpenter, 2 tavern licenses 24 

Miles Hotchkiss, 3 tavern licenses 36 

fines for contempt of court 10 

John Grosvenor (judge of both county courts), 2 tavern 

licenses 24 

Joseph Archambeau, 2 tavern licenses 24 

1 retail license 15 

John Edgar (judge of both courts, richest landowner), 2 retail 

licenses 30 

Five years later the debts remained the same. They were 
left to the county, as a part of Illinois Territory, to collect. 3 

The same was true of the various other claims, notably against 
Robert Morrison, as clerk of the Common Pleas, and against James 
Gilbreath, last sheriff of Randolph under the preceding regime. 4 
It is noteworthy that claims against the county, unpaid before, 
were promptly allowed by the new government. 5 

1 Randolph, Court Record 1802-06, 35 (September 6, 1803). And 
the $1 fine was in one case later remitted. 

2 Ibid., (December 3, 1805) 101. 

3 Countv Court Record 1810, of Illinois Territory, 37 (April 18, 
1810). 

*Ibid., (Morrison) 15, 94-98; (Gilbreath) 104, 107. Also (Morrison) 
County Commissioners volume, 124. 

5 Randolph County Commissioners, 89 — July 3, 1809, first session of 
the new court under Illinois Territory; 141, fees allowed Benj. Stephenson 
for services as sheriff in Indiana Territory period. Comity Court Record 
1810, 6, 11, 12, various allowances to judges and clerks of elections in 
1805-1808; 133, George Fisher "allowed the sum of $154 for his services as 
sheriff from the first day of August 1800 to the twentieth of August 1803 
and his Extra Services as sheriff during this period as per his account 



INTRODUCTION cxxi 

Noteworthy in the field of commercial law are the statutes 
permitting some assignees to sue in their own name. 1 The 
principle of the statute of 1799 ruling bills and notes was extended 
by that of 1805 to "bonds or other writings obligatory for the 
payment of money, or any specific article" ; the assignee being 
subject to set-offs and equitable defences against himself and 
against the assignor before notice had by defendant. The narrow- 
ness of these statutes, however, which was apparently character- 
istic of the time, leaves them less noteworthy than the contempo- 
rary judicial developments in the alienability of choses in action. 2 
The general corporation law adopted in 1798 for the Northwest 
Territory (the adoption of which was in itself remarkable) 3 was 
not altered or supplanted under the Indiana Territory. The ex- 
amples in this volume (a borough, two towns, a canal company, a 
university, a library, and a church) are all of corporations public 
or quasi-public in nature. This was typical of conditions through- 
out the country. 4 

J Law of November 15, 1799, Pease, Lazvs (I. H. C, 17), 361 (on 
promissory notes and inland bills of exchange) ; of August 15, 1805, post, 98 
(as quoted in the text) ; of 1807, post, 355 — which is a reenactment of the 
two preceding laws. 

2 Compare W. W. Cook, "The Alienability of Choses in Action," 
Harvard Law Review, 29 : 826-834. The Virginia statutes went back at 
least to 1748 (Lewis v. Harwood, 6 Cranch, 82), and were probably the 
source of the Indiana Territory act of 1805 (cp. Stewart v. Anderson, ibid., 
203), directly or through the Kentucky act of 1798 (cp. Hard. 8 and 5 J. J. 
Marsh, 43). However liberally interpreted (e. g. to include bonds for 
conveyance of land, 2 Litt. 167) such statutes necessarily left most choses 
in action under common law rules. Various other assignment statutes 
were passed about this time by S. C. in 1798, Vt. in 1798, etc. No cases 
were found in which the Indiana Territory statute was applied. 

3 Pease, Laivs (I. H. C, 17), 293. It was taken from Pennsylvania, 
whose statute of 1791 was the third (all American) "since the days of Queen 
Elizabeth" — S. E. Baldwin, in Two Centuries' Growth of American Law, 
281. 

*Post, 112, 196, 513 (Vincennes) ; 564 (Jeffersonville) ; 568 (Kas- 
kaskia) ; 154 (canal) ; 572 (church) ; 178, 184, 532 (university) ; 202, 547 
(library). It seems probable that Detroit was incorporated in 1798 or 1799 

rendered and approved" ; 9, Jas. Gilbreath, late sheriff, allowed $244 for fees 
in various criminal prosecutions, for holding elections, and for taking the 
census ; 132, Henry Hurst, clerk of the General Court of Indiana Territory, 
allowed $160 "for his salary due from this county while a part of the 
Indiana Territory at the rate of fourty dollars per year for the years 1803 
1804 1805 and 1806 ending in the month of September 1807." There are 
various other examples. 



cxxii ILLINOIS HISTORICAL COLLECTIONS 

The statutes on land are in one feature remarkable. In addi- 
tion to special acts authorizing guardians to sell the ward's un- 
productive estate and make conveyances, 1 and a partition law (in 
this respect unchanged from an act of the Northwest Territory) 
authorizing the commissioners, when the property was incapable 
of division, to sell, and give conveyances which should be good at 
law and in equity, there is a private act in which the administrators 
of a decedent are authorized to convey lands already conveyed by 
the decedent to trustees who had not acted on their trust ; 2 and, 
what is more remarkable, a general act of 1805 authorizing the 
Common Pleas to appoint commissioners to make conveyance of 
land in fulfillment of a contract made by a deceased vendor, in 
case the heirs were infants or the executor (if any) lacked au- 
thority. 3 This enactment, moreover, was actually applied. 4 
This last territorial act was one of the earliest ones, of the kind, 
of this country. Regulation of the partition of estates held by 
tenancy in common was at first, because of the scattered residence 
of the owners in all parts of the country, of especial importance ; 
by 1795 the principles adopted were substantially in accord with 
present law. 5 

There are many statutes which are of no great interest in- 
dividually but which are significant when considered together as 
an attempt to adjust the statute-book to the special situation of the 
territory. First, there is a group that bear an evident relation to 
frontier conditions. Such are the acts aimed against acquisition 
by Indians of arms and ammunition ; the elaborate militia laws — 
failures, despite Harrison's attempts to make the people take them 

1 Post, 106, 575 (in the second case Governor Harrison was the 
guardian, and the wards were children of Major Hamtramck). 

2 Pease, Laws (I. H. C, 17), 267-268 (law of 1795); post, 124, 521, 
576 (Major Hamtramck the decedent). 

3 Act of August 15, 1805, post, 93. With this and the preceding laws 
compare C. A. Huston, The Enforcement of Decrees in Equity, 66, and 
citations ; also the appendix of statutes, under Maryland, etc. 

4 St. Clair, Orphans' Court 47C (March, 1809) ; a bond for con- 
veyance given by George Atchison to Aaron Badgley was so enforced after 
the obligator's death. 

5 See St. Clair Papers, 2 : 64. 

under the act of the Northwest Territory — Mich. Pioneer and Hist. Colls., 
8: 507. See Baldwin, op. cit., 276, 311. 



INTRODUCTION cxxiii 

seriously; the acts dealing with enclosures and trespassing ani- 
mals ; x granting wolf bounties ; 2 requiring the registration of 
marks and brands ; 3 fixing penalties for cutting timber from 
private or public lands. 4 A few acts were framed still more 
specifically to meet the peculiar circumstances of the territory: 
laws which, as the governor and judges had found, could not be 
"adopted" from the statute-books of the original states. Such 
were the laws on common fields, recognizing the traditions of the 
French villages, the laws regulating ferries, 5 and pilots for the 

1 Post, 213, 294, 344, 399— based mainly on the law of 1799, Pease, Lazvs 
(I. H. C, 17), 418—590. All the legislation regarding enclosures and tres- 
passing animals followed precedents of the southern states. A law of 1791 
(Pease, op. cit., 46) specified with great exactness a lawful fence, and gave 
the landowner damages for trespass only when such a lawful enclosure had 
been broken. This has always been a common rule in the southern states. 
A statute of June 25, 1795 (Pease, op. cit., 235) made the landowner liable 
for harm done to animals driven away, unless his land was lawfully en- 
closed; but was less stringent than the earlier law in defining a lawful 
fence. A statute of 1799 (Pease, 347) restated the rule of damages due 
the landowner, but not the reverse rule. A lawful fence, as specified by 
the law of 1799 (even more stringently than in that of 1791) must have 
been rare. This statute of 1799 was embodied in the Revision of 1807 — 
post, 344 ; but, unlike some of the statutes of 1799 referred to ante, ciii, n. 1, 
without having been previously reenacted. Yet it was enforced by the 
courts, before 1807, as the operative law of Indiana Territory. 

2 By resolution of February 16, 1803, the general Northwestern law 
on wolf bounties (Pease, op. cit., 503) was repealed — post, 30. A statute 
of 1807 — post, 562 — reenacted the same law. 

3 Post, 210. Also ordering the gelding of ordinary stallions running 
wild — post, 205. The St. Clair book of brands, 1807-1809, is preserved in 
the Belleville Museum; the Randolph record begins at a later date. 

4 Post, 357, a substantial reenactment of the law of 1799 — Pease, 
Laws (I. H. C, 17), 362, displacing 254. Mr. J. J. Thompson (111. State 
Hist. Soc. Trans., 22: 69), says that the act allowed recovery in one action 
for repeated trespass ; but the statute does nothing more than fix a certain 
penalty for each tree cut. 

5 The governor and judges, in 1795, resolved that "public conven- 
ience requires, that the Governour should cause Public Ferries to be estab- 
lished. And whereas no laws concerning Ferries can be found for adoption, 
but such as are of a local, not general nature." They further resolved that 
the governor should by proclamation locate ferries and that the Quarter 
Sessions should fix the rates— Pease, Laws (I. H. C, 17), 287-288. In 1799, 
when untrammeled legislation was possible, the subject was fully regulated — 
ibid., 357. The governor and judges of Indiana Territory recited by way 
of preamble the complaint of their predecessors, but then "resolved" that 
ferries should be governed by the regulations of the statute of 1799! — and 
then ended : "The foregoing is hereby declared to be a law of the Terri- 
tory." They did not need to adopt a law that already bound them; but 
if they wished to do so would the Ordinance bar them from adopting a 
law framed precisely for them, to fit their very own needs? See ante, 
ciii, n. 1. The Revision of 1807 (post, 352) again reenacted the law of 1799. 



cxxiv ILLINOIS HISTORICAL COLLECTIONS 

rapids of the Ohio. 1 Not peculiar to the territory, and yet quite 
especially important to it, were the statutes regulating mills ; 2 for 
it was Governor Reynolds' opinion that the want of mills "retarded 
the improvement of the country in early times more than all other 
considerations." 3 A similar importance is presumably to be at- 
tributed to the road laws. Few were more carefully considered, 
and they illustrate the difficulty of making provisions theoretically 
excellent fit the actual conditions of the territory. 4 

Mixed with these enactments of prosaic ends there are others 
in this volume which show our forefathers, no less true Americans 
than we today, engaged in the task of exorcising original sin with 
preamble and command. The preamble to all their efforts might 
well have run somewhat like this : "Whereas this Territory contains 
many citizens of French origin and traditions who, though charac- 
terized by their friends as 'quiet and inoffensive' and 'an innocent 
and happy people,' and though in truth rarely guilty of serious 
crimes and less addicted than their American fellow citizens to 

i Post, 63 (September 24, 1803), 480 (Revision, 1807). Cp. ante, cviii. 
(See Annals, 9 Congress, 1 session, 827-828, on canal around the rapids). 

2 The act of 1799— Pease, Lazvs (J. H. C, 17), 366— was not re- 
enacted. Post, 133 (August 24, 1805), 361 (Revision of 1807, based on 
both sets). The laws of 1799 and 1805 did not overlap; the former was 
regarded as operative — indeed it was referred to (§9) as existing law. 

3 Pioneer History, 315. He repeatedly recurs to the subject. John 
Edgar manufactured flour for the New Orleans market ; John Francis 
Perrey was also a miller, and John Dumoulin bankrupted himself in a mill 
enterprise. This activity of three such prominent men and capitalists goes 
to confirm Reynolds' statement. 

4 Two Northwestern laws, of 1792 and 1799, were inherited — Pease, 
Laws (I. H. C. 17), 74, 257, 339, 452. Of the latter it is said by Judge 
Gross that "modern road legislation has evolved no principle or practice 
not found in the Act ; while in perspicuity, brevity, and simplicity it is a 
model" — 111. State Bar Assoc. Proc. (1881), 78. Nevertheless it was con- 
siderably amended, and large portions repealed in 1805 — post, 108 ; and these 
were not (with a trivial exception) reinstated by the Revision of 1807 — 
post, 427. With these changes, then, the governor and judges, the revisers, 
and the Assembly found the law satisfactory. And yet, in 1808, upon the 
urging of Governor Harrison it was enacted that whereas "the expence of 
laying out public roads in the different counties, is found, not only burden- 
some, and a great means of draining the county treasuries of their funds, 
but is altogether useless and unnecessary," there should thenceforth be no 
surveying. Post, 646. This was an echo of Harrison : as he said. "The 
opening of roads is certainly a matter of considerable consequence; but as 
this is always done by the labor of each individual citizen, and not by 
contract, I could never learn what public advantage has ever resulted from 
surveying them" — Messages, 1 : 305. 



INTRODUCTION cxxv 

rough and brutal vices, do nevertheless lend themselves to frivo- 
lous pleasures and also are peculiarly susceptible to the detestable 
vice of gambling: 1 And Whereas there also live among us many 
Indians, to whom we have from the beginning taught our vices 
in exchange for their possessions, and upon whom our Indian 
agents (in the words of our Governor) continue to prey, and 
who, in consequence and in particular have sunk to the utmost 
degradation and misery through indulgence in liquor, for which 
they will sell their lands, their clothes from their body, yea even 
their children : 2 And Whereas, among our American fellow citi- 
zens there are many who likewise, men and women, drink over- 
much of whiskey — even running for the bottle at weddings, — use 
profane language, indulge in brutal fighting, and in horse and 
foot-racing and all kinds of gaming for money, and even take each 
other's lives in duels, and otherwise, in their habits of exaggerated 
and unbridled individuality and independence, are forgetful of 
their social duties : 3 And Whereas all these sinners, French and 

1 The land commissioners, Michael Jones and Judge Backus, char- 
acterized them as "the most quiet and inoffensive part of this community" 
(Randolph County) — Amer. State Papers: Pub. Lands, 2: 124. Governor 
Reynolds, whose first wife was French and who lived among them for 
many years and was familiar with their language and customs, used the 
second characterization quoted in the text. According to him they "seldom 
indulged in drinking liquor," "were never an intemperate people in the use 
of liquor," "a spurious offspring was almost unknown among them," and 
they were never guilty of crimes more serious than violations of the Sunday 
laws and the like misdemeanors, My Own Times, 37, 39, 49, 51 (but 139 
is somewhat inconsistent). The court records generally bear out these 
statements, but the "nevers" must of course be changed to "rarely" and the 
"almost unknown" is much exaggerated. See citations on post, clxxxiv, n. 1, 
also clxxvi, n. 4. A priest's judgment would naturally be less lenient : 
see Father Gibault's words, Kaskaskia Records (I. H. C, 5), xlvii — 1786; 
also Volney's, in Dunn, Indiana, 118 — 1796. 

2 Dunn, Indiana, 124-125, quotes Volney's description of them in Vin- 
cennes. Harrison's statement is to quite the same effect, Messages, 1 : 28 — 
1801. 

3 Reynolds, Pioneer History, 316, 324, 345; My Own Times, 40, 48, 
51. An early duel is noted by Mr. Esarey, Harrison, Messages, 1 : 301. 
See app. n. 24. John Mason Peck, distinguished missionary and min- 
ister, contributed to Reynolds' Pioneer History a. chapter of twenty-three 
pages on "the religion and morals of Illinois prior to 1818" ; of these less 
than two are devoted to other matters than the arrival and activities of 
fellow ministers. The godless he dismisses in a fraction of a page as a 
class who, "they and their posterity," were in 1850 "unknown." Consider- 
ing Governor Reynolds himself, this lapse of memory was remarkable; 
not less so than the "strange" friendship between him and Dr. Peck — cp. 



cxxvi ILLINOIS HISTORICAL COLLECTIONS 

American and Godless Indians, pay no regard to the Sabbath: 
Now Therefore be it enacted . . ." 

A fearsome law was passed for the prevention of vice and 
immorality, making many common habits of the people crimes 
punishable by fine or imprisonment ; but it cannot be said that the 
act amounted to more than the ethical preachments with no pen- 
alties attached with which the Marietta legislators began, more 
sensibly, in 1788. Except as a joke between one judge and lawyers 
with him on the circuit 1 no trace appears of the prohibition 
against profanity; no trace of fines imposed for drunkenness 
(could it be otherwise when failure of a taverner to keep "ordinary 
liquors of a good and salutary quality" was cause for summary 
revocation of his license?) ; 2 nor of fines for tavern sales of 
liquor to slaves and bond servants ; nor of fines imposed, or con- 
tracts voided, for gaming in any of the forms — of cards, dice, 
"bullet playing," shovel-board, "bowls," cock-fighting, horse-rac- 
ing, etc. — elaborately interdicted by the statutes. Though un- 
doubtedly gouging and like incidents of frontier fighting were 
common, and though civil actions for batteries (how trivial or 
how serious cannot, of course, be distinguished through the con- 
ventional verbiage of a trespass declaration) are common, and 
prosecutions for the same are fairly illustrated in the records, 3 
no prosecution was ever made under the mayhem statute. Private 
lotteries were outlawed from 1795 onward; but the act creating 
Vincennes University provided for the raising of money by a 
public lottery. 4 Billiard playing, a vice which curiously enough 

1 Post, 367; Pease, Latvs (I. H. C, 17), 21; Smith, Early Indiana 
Trials, 53-54. 

2 Law of 1792, Pease, op. cit., 64. 

3 The mayhem law of 1798— Pease, Laws (I. H. C, 17), 296— was 
taken, most appropriately, from Kentucky. 

tPost, 183, § 15 (Nov. 29, 1806). 538. On the University see Annals, 
7 Congress, 1 session, 497 (Feb. 12, 1802), 949-950 (petition from Wayne 
County) ; Annals, 10 Congress, 1 session, 1206-1208 (House report, Dec. 17, 
1807), or Amer. State Papers: Misc., 1: 654. On the Vincennes Library 
Company see post, 202 (Dec. 3, 1806), 547. An attempt to exercise the 
lottery privileges conferred upon the University by the act of 1807 was 
made in 1879 ; but — the Supreme Court of the United States having held 
in Stone v. Mississippi, 101 U. S. 814, that a constitutional abrogation of 

J. F. Snvder, Adam W. Snyder and His Period in Illinois History, 1817- 
1842, p. 323. 



INTRODUCTION cxxvii 

laid hold upon denizens of Vincennes as far back as 1778, was at 
once banned as a gambling device and lucratively taxed. 1 

Taverns were as essential, for safety and regalement along 
the wilderness traces, as the medieval inn on the king's highway; 
so much so that the Vincennes convention petitioned for federal 
aid to them. 2 The statutes elaborately regulated them. From 
the beginning it was required that licensees be recommended by 
the county court, and by a later law they were bonded to observe 
all regulations. Yet it is a fact that men who were repeatedly 
indicted for violations of these were as repeatedly again recom- 
mended and relicensed. 3 Invalidation of credits beyond a trivial 
sum, 4 prohibition of sales to minors, Indians, servants, "bond- 
servant or slave," 5 were other attempts at social control. Rates 
were established by the county court. 6 

More significant than the statutes that consciously expressed 
moralistic ideals are those which unconsciously embodied the habits 
and accepted standards of the time with regard to the family, the 
dependent, the stranger, the ignorant, the poor and weak and un- 
fortunate. One rises from a study of the statute-book somewhat 
surprised that the supposed liberative and regenerative influence 

1 Dunn, Indiana, 109. The law of 1799— Pease, Lazvs (I. H. C, 17), 
380 — forbade any to continue after May 1, 1802. The territorial tax law 
of 1807, post, 601-602 (§ 34-36), taxed each table $50 annually; as much 
as one hundred horses or fifty slaves. This is apparently another instance 
of a statute of 1799 which was not regarded as in force in Indiana Terri- 
tory — ante, ciii, n. 1. 

2 Adverse report in Annals, 8 Congress, 1 session, 1023 (H. R. Feb. 
17, 1804). 

s Pease, Laws (I. H. C, 17), 63 (of 1792), 193 (1795); post, 114, 
§ 1 (1805), 284 (1807) ; post, clxxx, n. 1; clxxxi, n. 1. 

4 This provision of the laws of 1792 ($2 — Pease, op. cit., 66) and 
1795 (ibid., 196) was repealed in 1805 (post, 115, § 5). 

5 These prohibitions dated from 1795 — Pease, Laws (I. H. C, 17) , 
195, 196; post, 286-287, §§ 7-8 (1807). 

6 Ante, cxviii. Randolph rates set in November 1806 were : break- 
fast, 25 cents; dinner, 33%; supper, 25; lodging, 6: horse at hay 24 hours, 
\2y 2 \ whiskey per half -pint, \2y 2 ; brandy ditto, 37^2', taffia (Monongahela 
whiskey), 25. Court Record 1802-06, 109. The rates set in June 1803 
were somewhat lower — ibid., 24. The St. Clair rates were about the same — 
Orphans' Court, 47B ("bedding," 12^). 

lottery privileges was not an impairment of contracts within the prohibi- 
tion of the Federal constitution — it was held that the Indiana constitution 
of 1851 (Thorpe, Federal and State Constitutions, 2: 1091) had abrogated 
the territorial statute. See State v. Woodwan, 89 Ind. 110. 



cxxviii ILLINOIS HISTORICAL COLLECTIONS 

of the frontier seems totally lacking, and that the legislators, with 
the statutes of all the older states to choose from, should have 
done no better. The statutes are typical of the time. 

Few states could match in 1805 the law permitting aliens to 
purchase and hold realty. 1 

Bachelors were, as has been seen, subjected to a county tax; 2 
possibly because they were a factor of disorder, but more probably 
out of regard for family life. In any event the Randolph Court 
thought the penalty severe, for it violated the statute outright by 
making the tax half the minimum set by the legislature. The 
fundamental safeguards over marriage banns, parental consent for 
minors, civil or ecclesiastical celebration, and registration of cer- 
tificates were established in 1788, and aside from alterations of 
the provisions concerning licenses the Northwestern statutes were 
left unaltered. 3 In 1803, however, a startling law was passed 
"to prevent forcible and stolen marriages." The vindicatory state- 
ment that "women, as well maidens as widoms, and wives having 
substances . . ., for the lucre of such substances, have been 
oftentimes taken by misdoers, contrary to their will ; and after- 
wards married to such misdoers, or to others by their consent, or 
defiled," is suggestive of a state of society vastly worse, doubtless, 
than the reality. It is impossible to believe that such conditions 
characterized our territorial society ; rather, we must assume that 
the statute was responsive to sporadic abuses. In fact the law 
was taken bodily from Virginia, whose law in turn goes back to 
one of 3 Henry VII. Bigamy, by the same act, was made a 
felony. 4 No prosecutions under the statute appear in Randolph 

1 Post, 94, 500. 

2 Ante, cxviii, n. 4. The tax was remitted to Andrew Barbau, as 
he proved property taxed in the name of his father, the judge — Randolph 
Court Record 1802-06, 43 (December 17. 1803). 

3 Pease, Laws (I. H. C, 17), 22, 88, 330; post, 205, 251. The mar- 
riage certificate records of Randolph and St. Clair have for the most part 
disappeared; some original certificates remain in Chester, Miscellanies Box. 
On dower the law of 1795 stood until embodied in the Revision of 1807 — 
Pease, op. cit., 244 ; post, 306-307. 

4 Post, 66 ; further, to "take any woman, so against her will unlaw- 
fully . . . and the procuring and abetting to the same and also receiv- 
ing wittingly the same woman so taken" was made a felony. The meaning 
of this is not beyond doubt. Section 3 covers abduction ; 4, abduction and 
rape ; 2, possibly to rape alone. Section 1 was taken from a Virginia statute 



INTRODUCTION cxxix 

or St. Clair. Nothing in the Ordinance or in the statutes on wills 
denies married women the power to devise their lands, but it has 
been stated that in fact the right was denied. 1 Separate exam- 
ination of the wife in acknowledgments of joint conveyances by 
husband and wife was law from 1795 onward. 2 

A divorce law adopted in 1795 from Massachusetts had al- 
lowed absolute divorce for attempted bigamy (annulment), im- 
potence, or adultery; and separation from bed and board for ex- 
treme cruelty. This act assumed throughout a chancery procedure, 
though no court of equity existed. It also optimistically required 
service by publication, when defendant was out of the county of 
suit or the territory, "in one of the Territorial News Papers." 
Only the General Court and circuit courts had jurisdiction. The 
act was repealed in 1801, then reestablished in 1803 — prophet- 
ically — "until the end of the first session of the general assembly 
of the Indiana Territory." The first Assembly did no more than 
restrict publication to cases of respondents absent from the terri- 
tory. 3 Governor Harrison attempted, in his message to the 
Assembly of 1807, to prevent the inclusion of the statute in the 
revised laws, 4 but it was nevertheless adopted. 5 No records 
of divorces before this date, in the Illinois counties, seem to exist ; 
but some of later date do. A legislative divorce appears in the 
present volume. 6 

1 Judge W. L. Gross says so, 111. State Bar Assoc. Proc. (1881), 75. 
The writer has not yet examined the probate records. If Judge Gross is 
correct such denial was an outright violation of the Ordinance — Pease, 
Laws (I. H. C, 17), 123. 

2 Pease, op. cit., 242; post, 292, § 11. 

s Pease, Laws (I. H. C, 17), 258; post, 15 (January 26, 1801), 65 
(September 26, 1803), 107. 

4 Messages, 1 : 232. He favored reservation to the legislature, ex- 
clusively, of power to grant divorces. 

5 Post, 323. 

6 Belleville Museum, Francois Arenousse (undated, probably late 1808 
or 1809, since John Rice Jones was his attorney) ; Gilbreath, Atchison 
(undated, but of the same circuit term). No divorce bills were discovered 
in Randolph. Brink, McDonough, Hist, of St. Clair County, 83, gives 
instances of 1811, 1817. Post, 648, for a legislative divorce. 

of December 8, 1788, Hening, Statutes, 12: 691 (reproduced almost ver- 
batim) : sections 2-4 are a reproduction of a statute of November 19, 1789, 
Hening, Statutes, 13 : 7. The wording of the Virginia statute copies that 
of 3 Hen. .VII Cap. 2. 



cxxx ILLINOIS HISTORICAL COLLECTIONS 

All the statutes for the protection of the Indians against the 
ruin of liquor were idle words, and even as such they are not 
particularly creditable. 1 

The statutory provisions protecting minors, the poor, and the 
mentally incompetent were in theory good enough. The North- 
western statutes relating to guardians, minors, and orphans were 
left unaltered. 2 What really happened may better be judged 
from the record of the Orphans' Court of St. Clair : 

July, 1807 — "Ordered that the Insane Boy (Lemay) be put 
in the hands of J. F. Perrey" — a member of the Court — 
"for boarding and clothing — for the same sum as last year 
— beginning last March." 
March, 1808 — "The Insane Boy Lemay was cried down to 
Francois Turcotte for sixty-nine dollars for one year 
from that date." 
Nov., 1808 — "Ordered that the Overseers of the Poor of 
Eagle Township do give out to the lowest bidder the 
keeping of one McNeal a pauper now sick in the care of 
John Scott, untill our next March term — proviso that he 
do getted better before that time. The purchaser to be- 
gin on the day the said pauper came to the said J. Scott's 
'house.' " 3 
Of course the statutes required bonds and accountings. It 
is true that the court was only "empowered" to name guardians 

1 Jefferson's fine but unattainable humanism appears in a letter to 
Harrison, in the latter's Messages, 1 : 69-73. Harrison's attitude also does 
him some credit— ibid., 199-200. A statute of 1790— Pease, Laws (I. H. 
C, 17), 26 — a good beginning, was repealed in 1795 (ibid., 256) ; in 1799 
protection was given to Indian towns only (ibid., 415). Harrison and the 
judges did nothing. The Assembly, in 1805, empowered the Governor to 
establish prohibition during treaty meetings (post, 91) ; another, of 1806, 
established prohibition for forty miles around Vincennes (post, 216). The 
Revision of 1807 retained only the first of these acts. Post, 497. In 1805 
a general and stringent law was passed to go into effect when like statutes 
should be passed, by the states of Ohio and Kentucky and the territories 
of Louisiana and Michigan (post, 97). This was also embodied in the 
Revision of 1807. Proclamations bv Harrison, before the empowering act 
of 1805; Gibson, Exec. Journal, 102, 103, 112-113; Messages, 1 : 31, 32, 59-60. 

2 An act of 1792 protected even prodigal minors — Pease. Lazvs 
(I. H. C, 17), 92, § 6. This was omitted in the act of 1795 {ibid., 181). 
This second act (§ 7) authorized the Orphans' Court, at the request of 
guardians, to bind minors out as apprentices. 

s St. Clair, Orphans' Court, 35, 41, 46. 



INTRODUCTION cxxxi 

for lunatics and minors (but also the judges of Quarter Sessions 
were merely "empowered" to hold an Orphans' Court) : they 
sometimes acted under the law for the relief of "poor, old, blind, 
impotent and lame persons" 1 which permitted the farming out 
of paupers "at public vendue, or out-cry" ; but wards were perhaps 
usually indentured. 2 

Gamesters, wife deserters, and "other idle, vagrant and dis- 
solute persons, rambling about without any visible means of sub- 
sistence," must be apprenticed if minors, hired out if adults (earn- 
ings going to creditors, then to family) ; but if nobody would 
hire — though only for food and clothing during "his servitude," he 
must be lashed. 3 Notwithstanding that all justices, sheriffs, 
constables, and grand juries were commanded to be zealous in 
enforcing this law it does not appear that any vagrants were dis- 
covered. 

Imprisonment for debt existed from the beginning under the 
laws of the Northwest Territory. Debtors occupied, indeed, an 
apartment in the jail separate from that for other prisoners, but 
they received bread and water alone, and for that became indebted 

1 The law of 1795 — Pease, Laws (I. H. C, 17), 216 — provided for a 
poor rate, assessable by the township overseers, and for poor houses ; 
though also permitting (§ 5) the contracting out of any or all their wards. 
The law of 1799 (ibid., 510) substituted the system of farming out. The 
two are embodied in the Revision of 1807 (post, 308) with no great change 
except in greatly elaborating the provisions regulating the overseers' records, 
certificates and accounts. Apparently no trace of these remains for either 
St. Clair or Randolph. In both of these counties French citizens are prom- 
inent — indeed greatly predominent among the overseers appointed. It is 
quite impossible to suppose that the extremely elaborate provisions of the 
statute regarding pauper settlements were living law. 

2 Bateman and Selby, Hist, of St. Clair County, 2: 699, quotes a 
Cahokia indenture (undated) binding out "a poor child, named Philis, aged 
six years, with Joseph Buelle, for twelve years from this date ; to learn 
the arts, trade and mystery of a spinster." In the St. Qair Orphans' Court 
1797-1809, 19 (March, 1803) is an indenture of three orphans, one to Shad- 
rach Bond. In the Chester Miscellanies Box is an indenture of two boys, by 
Nathaniel Hull, chairman of the Randolph Orphans' Court, to his fellow 
judge John Beaird. In the County Court Record, 1810 (111. Territory), 5 
(March 6, 1810), it is "Ordered that John Grosvenor be allowed the sum 
of twenty eight dollars for keeping Branham a Blind man four months 
previous to the April Court of Common pleas in the year 1808 in conformity 
to an order of the said court" — which order is not recorded. Other allow- 
ances, pp. 22, 47. 

8 Post, 566. This is one of the very few original statutes of the 
1807 Revision. Similarly, post, cxxxiii, n. 2. 



cxxxii ILLINOIS HISTORICAL COLLECTIONS 

to the sheriff (this was not true of "the expense of furnishing 
meat, drink and fire-wood to a prisoner in jail for a crime" ! — 
such as murder) — who might jail them again for nonpayment. 
Indeed imprisonment was originally a positive requirement, even 
for debts under five dollars, collectible before a single justice with 
final jurisdiction and on allegations of a creditor alone; but Gov- 
ernor St. Clair induced his fellow judges so to change the law as 
not to compel a humane creditor to take advantage of it. All these 
statutes continued law throughout the Indiana Territory period. 
The harshness of the early statutes was mitigated by the first 
Assembly of the older territory, which introduced a usury act and 
a bankruptcy discharge (though judgments remained in force 
against property later acquired) ; and also by allowing the prisoners 
the liberty of prison bounds, by day only, under bond. 1 These 
two statutes were substantially reenacted, with slight ameliorations, 
by the first Assembly of Indiana Territory 2 — again the governor 
and judges had done nothing. 

The Pennsylvania constitution of 1776, first in this country, 
pronounced for the abolishment of imprisonment for debt, but the 
declaration was evidently long a dead letter. The gross disparity 
between judgment sum — for tort or debt — and the costs added 
by legal procedure (often added in a revengeful spirit, especially 
when the creditor split a larger claim into smaller claims that gave 
him the advantage of the summary procedure of a justice's court) 
was characteristic of conditions throughout the country. In some 
ways conditions in Indiana Territory were, after 1795, very much 
less harsh than in the older communities of the east; for by a 
statute passed in that year it was provided that imprisonment 

1 Single- justice courts for small causes were created in 1788 — Pease, 
Laws (I. H. C, 17), 8; and the statutes of 1792, though not directly en- 
acting imprisonment for debt, assumed it with reference even to debts col- 
lected in these courts — ibid., 77-78 (separate room), 83 (food — cp. §§ 9 
and 10 ; of course other prisoners, able to do so, could buy better fare) , 98 
(form of final execution). For proceedings for debts under $5, ibid., 143- 
144 ; the change — St. Clair Papers, 2 : 366 ; Pease, op. cit., 286. Duration 
of imprisonment, ibid., 286 (1795). Usury law, ibid., 352 (post, 347 — Re- 
vision of 1807) ; bankruptcy statute, Pease, op. cit., 448 ; prison bounds, 494. 

2 Post, 99. It saved to the prisoner "his or her necessary apparel and 
utensils of trade," and gave the freedom of the prison bounds by night. It 
was taken into the Revision without this last generosity — post, 502. 



INTRODUCTION cxxxiii 

should not extend beyond the second day of the next session of 
the court unless the plaintiff should show that the defendant was 
concealing assets. This was a law truly remarkable for its time. 
Nevertheless, if guilty of hiding assets, and those found were in- 
sufficient to satisfy the creditor, the debtor was required to make 
satisfaction "by personal and reasonable servitude" ; and — with 
some concessions to age and to men with families — this might 
extend to seven years. However, no matter what the statute-book 
permitted, the practical nonexistence of jails must have involved 
substantial abolishment of imprisonment. The generous spirit 
expressed by Pennsylvania in her Revolutionary constitution grad- 
ually spread, and debtors' prisons disappeared under the influence 
of Jeffersonian and Jacksonian democracy. From a few records 
remaining of very humble creditors who "scheduled out" under 
the bankruptcy law one infers that it must have been freely ap- 
plied. 1 

The first legislature (1805) also passed an act on exoneration 
of sureties which, naturally, is still (in part) embodied in the 
statute-book of Illinois. The Revisers added an attachment statute 
against absconding debtors. 2 

The slavery statutes of the territory cannot be understood 
apart from the social legislation that accompanied them. All were 
part of a state of mind now disappeared. A thief who could not 
restore the value of the thing stolen and pay the fine set by law 
was lashed, and could be sold to labor for not exceeding seven 
years to "any suitable person" who would discharge the sentence. 3 
A defendant convicted under the mayhem law (1798) was im- 
prisoned and fined, and for want of means to pay was "sold to 
service . . . for any time not exceeding five years the pur- 
chaser finding him food and raiment during the term." The debtor 
who had no estate Avas bound to "make satisfaction, by personal 
and reasonable servitude." The vagrant was similarly sold to 

1 Two were found in the St. Clair records; that of Benj. Hagerman, 
Belleville Museum; of Frangois Paillet, Orphans' Court, 42 (June, 1808). 
Brink, McDonough, Hist, of St. Clair County, 70 gives another example 
of 1801 (Baptiste Mercier). The Randolph records seem to be gone. 

2 Post, 120, 517, 555. 

3 Pease, Laws (I. H. C, 17), 18, law of September 6, 1788. 



cxxxiv ILLINOIS HISTORICAL COLLECTIONS 

labor, and apprentices and indentured servants — as will be seen — 
performed service much on the same terms. The road acts con- 
tained language of compulsion, and at best a defaulter could not 
escape imprisonment for debt. 1 From 1788 onward imprison- 
ment was the penalty for disobedience by servants or children, and 
whipping the penalty for striking a master or a parent. 2 The 
revised statutes of 1807 introduced the general provision that any 
person convicted of any crime punishable by fine — and this in- 
cluded mayhem, bigamy after 1807, sodomy, larceny (except of 
horses), obtaining goods by false pretences, altering brands, mis- 
branding, perjury, forgery, and assault and battery — might be 
"sold or hired" to anybody paying the fine and costs for any term 
judged reasonable by the court. 3 The jail, the lash, and com- 
pulsory labor, far from being confined to the criminal law, were 
part and parcel of family government, of township government, 
and even of the law's charity for the weak and poor. The social 
conscience — though perhaps no more in Indiana Territory than 
in Virginia or Massachusetts — was calloused by ideas of class and 
force. 

While the fruitless efforts, already detailed, were being made 
in Congress to secure the legalization of slave immigration, the 
proslavery party had turned with greater success to the territorial 
legislature. It did what was possible to legalize slavery. Some 
of the antislavery members of the Assembly must have joined in 
adopting what they regarded as compromise measures. And only 
one private petition seems to have been made against these extra- 
ordinary statutes. 4 

1 Ante, cxxvi, n. 3. By the acts of 1792 and 1799 — Pease, Lazvs (I. 
H. C, 17), 76, § 6 and 458, § 10— the recalcitrant or idle forfeited a fixed 
sum daily to the supervisor, recoverable before a justice of the peace; ante, 
cxxxii, n. 1. The same (1799, § 14) for asking money or drink or other 
reward of any passerby ! The act of 1805 authorized the supervisor to 
■"compel" men to work (post, 108, § 1) ; which could have been interpreted 
to mean by subjecting them to the danger of imprisonment for debt upon 
such forfeitures, but the revisers omitted it from the law of 1807 (post, 
427). Persons might also, by authority of law, be committed to the super- 
visors for labor on the roads, in which case, the labor "being performed," 
they should be "discharged" (1799, § 30; 1807, post, 438, § 23). 

2 Pease, op. cit., 20, law of September 6, 1788. 

3 Post, 250. 

4 In 1807, from Dearborn County (presented to Congress in January. 
1808). Annals, 10 Congress, 1 session, 1331. This is, of course, aside from 



INTRODUCTION cxxxv 

A law of 1803 "concerning servants," borrowed from Vir- 
ginia, — a law which in fact referred only to black servants — was 
the first of the "black laws" of Indiana (and by later adoption of 
Illinois) Territory. This law provided that negroes and mulattoes 
— "and other persons not being citizens of the United States" ! — 
who should "come" into the territory "under contract" to serve 
"in any trade or occupation" should "be compelled to perform 
such contract specifically during the term thereof." A second act, 
of 1805, dealt with white apprenticeship, which had existed under 
the legislation of the Northwest Territory. 1 Similarly to the 
servant act, this provided that apprentices, bound of their own will 
or by their guardians (to serve, if males, until twenty-one, and if 
females until eighteen) "shall serve accordingly." Another act of 
1805 authorized the master to "hold ... to service and labour" 
his registered servant, and declared that the latter "shall serve." 2 
It was not until 1821, in Indiana, that the Supreme Court found 
occasion to make the self-evident holding that such a contract 
could not be specifically enforced. 3 Meanwhile extralegal en- 
forcement doubtless almost always sufficed ; yet at least as regards 
a white indentured servant, an Illinois court assumed to order 

1 The highway law of 1792 — Pease, Laws (I. H. C, 17), 76 — refers 
to apprentices. The statutes of 1795 regulating poor relief and orphans' 
courts authorized indenturing in particular cases. In general, such service 
must have been treated as existing under the common law. Post, 42, § 1 
(September 22, 1803) ; 95, § 1 (August 15, 1805) ; 500 (reenactment in 
1807). 

2 Post, 136 (August 26, 1805), §§ 2, 5, 6; 523 (reenactment in 1807). 

3 Case of Mary Clark (1821), 1 Blackf. 122; specific performance 
asked of an indenture for 20 years entered into in 1816. Application was 
made for discharge under a writ of habeas corpus. This sufficiently proved 
the service to be involuntary ; and the constitution of 1816 prohibited in- 
voluntary servitude. The court might therefore have rested its holding 
on this ground — as in later cases under the 13th amendment of the federal 
constitution. It held also, however, that even if considered as a contract 
voluntarily made, "neither the common law nor the statutes in force in 
this state recognize the coercion of a specific performance of contracts." 
This loose statement necessarily had to be restricted later, as the equitable 
jurisdiction developed. The general question was a relatively novel one 
in 1821. In 1808 a writ of habeas corpus sued out by a mulatto girl was 
dismissed bv the General Court of the Territory — Hannah v. Benj. Beckes, 
Jr., Order Book, 281, 290, September 12-13, 1808. 

the disingenuous and purely political attack upon Harrison for favoring 
these acts made by his Illinois opponents in 1808, various of them slave- 
holders, and many, undoubtedly, of proslavery sentiments. See ante, xlviii. 



cxxxvi ILLINOIS HISTORICAL COLLECTIONS 

performance — and without the legal basis which, in the case of 
negroes and mulattoes, was later afforded by the constitution of 
1818. 1 

The law of 1803 made void all other contracts between master 
and servant during the term of service; made the benefit of the 
"contract" assignable by a master if the servant should "freely 
consent" thereto in the presence of any justice of the peace; and 
made it pass to legatees and personal representatives. 2 

Under the first act of 1805, complaints by either party might 
be made to "some Justice of the Peace, unconnected with either 
of the parties within the county" (certainly none such could have 
been found in Randolph or St. Clair), who should discharge the 
apprentice or administer "due correction" according to the equities 
— with an appeal to the Common Pleas. This statute was taken 
over unaltered into the Revision of 1807. The second act of 1805, 
dealing with the introduction of negroes and mulattoes provided 
that such, being under fifteen years of age and "owing service" 

iSt Clair, Orphans' Court 1797-1809, 14 (June, 1801); "Ordered 
that Mr. Baptiste Saucier inquire if Miss Baudre was right in leaving Mrs. 
Pinconneaus, if so, for Mrs. Pinconneaus to return her cloaths, if not, the 
girl to return." The later territorial act of September 17, 1807 (post, 
cxxxviii, n. 2) was adopted for the Illinois Territory June 13, 1809. 
It contained no express provision for specific performance, but only the 
general language of the second act of 1805. The Constitution of December 
3, 1818, prohibited slavery and "involuntary servitude," but it provided 
that : "Each and every person . . . bound to service by contract or 
indenture in virtue of the laws of the Illinois Territory heretofore existing, 
and in conformity to the provisions of the same, without fraud or collusion, 
shall be held to a specific performance of their contracts or indentures ; 
and such negroes and mulattoes as have been registered in conformity with 
the aforesaid laws shall serve out the time appointed by said laws : Provided, 
however, That the children hereafter born of such person, negroes, or 
mulattoes, shall become free, the males at the age of twenty-one years, the 
females at the age of eighteen years." Under this constitutional provision 
specific performance of indentures was enforced Nance v. Howard, 1, 111. 
242 ; Phoebe v. Jay, ibid., 268 ; Boon v. Juliet, 2, 111. 258 ; Choisser v. Har- 
grave, ibid., 317; Sarah v. Borders, 5 111. 341. 

2 Act of September 22, 1803, post, 42. No appeal by a servant to the 
court was found in the St. Clair or Randolph records — who would make 
the motion (§§ 5, 7) ? The provisions for the whipping of lazy and dis- 
orderly servants, as pointed out in the text, merit no special comment if 
regarded in the setting of their time. And the phraseology of the provis- 
ions that under laws fining "free persons" servants should be whipped. 
and that at the end of his term a servant should receive a certificate of 
'"freedom," has been overemphasized by laymen unacquainted with the age- 
old phraseology of indentures. 



INTRODUCTION cxxxvii 

as slaves in other states or territories might be brought into the 
territory and there held to labor until thirty-five if males or thirty- 
two if females. If over fifteen their "owner or possessor" must 
take them before the clerk of Common Pleas, register them, and 
there "agree" with them upon the term of years that their service 
should continue ; giving bond that they should not, after expiration 
of such term, become public charges. The master might remove 
them from the territory, and must do so (or forfeit all his rights 
over them) should they refuse to bind themselves to service! 
Heavy penalties were laid upon persons kidnapping and removing 
from the territories negroes bound to others. The children of 
"a parent" so bound were themselves bound to serve the master 
of the parent, with the same protection against ill-usage as was 
given to apprentices under the first act of 1805, above referred to. 
But there was no similar provision for the protection of those, 
under or over fifteen years of age, who immigrated into the ter- 
ritory. This act was altered scarcely at all in the Revision of 
1807. 1 

These two acts of 1805 were passed by the first session of 
the first legislature. The second session added a fourth act "con- 
cerning Slaves and Servants" (of color) which contained char- 
acteristic slave-code provisions for punishing the unauthorized 
wandering of slaves from home, their assembling, and the harbor- 
ing of them. These were made more stringent by a fifth act of 
the second legislature in 1808. 2 Such provisions are intelligible 
in states of the lower south, with great populations of blacks, but 
were mere imitations, quite unresponsive to local conditions, in a 
territory which in 1800, according to the census, contained only 
135 slaves, and in 1810 contained 168 (and 613 free persons, other 
than whites and untaxed Indians, who must have been mainly 
blacks). 3 The General Assembly in a proslavery memorial 
addressed to Congress in the very month in which they passed 
the fourth statute solemnly argued that slavery could never be a 

iPost, 95, 136 (1805), 523 (1807). 

2 Post, 203 (December 3, 1806) ; 657 (October 25, 1808). 

3 Dunn, {Indiana, 296) estimated the slaves in 1800 as 175, five-sixths 
in Randolph, and the free negroes at 123. See ante, xiii, n. 2. 



cxxxviii ILLINOIS HISTORICAL COLLECTIONS 

danger in the territory. 1 The fourth act and the first were con- 
solidated by the revisers of 1807 into one act "concerning Ser- 
vants." 2 

"The law of the Territory entitled an act concerning the in- 
troduction of negroes and mulattoes into the Territory," — wrote 
General Washington Johnston in his legislative report of 1808 — 
"makes it lawful for an holder of slaves to bring them into the 
Territory and to keep them therein during sixty days, during which 
period the negroe is offered the alternative of either signing an 
indenture by which he binds himself for a numbr of years, or of 
being sent to a slave state or Territory there to be sold. The 
natural inference from this statement forces itself upon the mind 
that the slave thus circumstanced is held in involuntary servitude, 
and that the law permitting such proceedings is contrary both to 
the spirit and letter of the ordinance and that therefore it is un- 
constitutional — your committee might add that the most flagitous 
abuse is made of that law ; that negroes brought here are commonly 
forced to bind themselves for a number of years reaching or ex- 
tending the natural term of their lives, so that the condition of 
those unfortunate persons is not only involuntary servitude but 
downright slavery — it is perhaps unnecessary to advert to the novel 
circumstances of a person under extreme duress of a slave becom- 
ing a party to a contract, parting with himself and receiving 
nothing." It has already been noted that some of the greatest 
slave owners of the territory themselves characterized the law as 
one "for the Establishment of disguised slavery." 3 The Ordi- 
nance of 1787 declared that there should be "neither slavery nor 
involuntary servitude" in the Northwest ; the thirteenth amendment 
to the federal constitution later adopted the same terminology; 
the modern cases under that amendment denying specific perform- 
ance of contracts to do manual labor — like those (already cited) 4 

1 Amer. State Papers: Misc., 1 : 467. 

2 September 17, 1807, post, 463 ; combining the laws of 1803 and 1806 
cited ante, exxxv, n. 1 and exxxvii, n. 2. 

3 December 17, 1808— Ind. Hist. Soc. Pub., 2: 522-523; ante, xlviii. 
Compare Buck, Illinois in 1818, 140 ; Howe, in Ind. Hist. Soc. Pub., 2 : 20, 
29; Goebel, Harrison, 77, 81; Dunn, Indiana, 315. 

4 Ante, exxxv, n. 3; exxxvi, n. 1. Early cases holding "slavery" illegal 
after the adoption of the Ordinance, see ante, xxxvi, n. 1. 



INTRODUCTION cxxxix 

decided under the Ordinance — have never attempted to distinguish 
between "slavery" and "involuntary servitude." To stress the 
point seems foolishly superfluous; yet the existence of slavery in 
Indiana Territory has been denied by casuists. 1 

These statutes did not require free blacks to register and 
secure passes, but such was probably at this time the practice — 
as it was later; for otherwise — in the words of Blackstone's jejune 
definition of liberty — they could have enjoyed no freedom of 
motion and locomotion whatever. They sometimes appeared by 
their next friends in litigation. 2 

Various indentures of white servants still exist in the records 
of St. Clair and Randolph counties. They follow the prescriptions 
of the statutes, and save for their oddity have little interest. Some- 
times they paint a picture of the local magistrates. For example : 3 

1 In an article by Mr. Esarey upon unsolved problems of early Indiana 
history we find the following : "Slavery never existed in Indiana. The 
term is not used in American history except in the legal sense. It is sharply 
defined from all phases of indenture. The latter condition was generally 
in use in the states in 1800 and recognized by the codes of most of the 
states. The Ordinance of 1787 is older than Indiana either as a territory 
or state. It is an unfortunate mistake to represent even in a title" — refer- 
ring to Dunn's Indiana: a Redemption from Slavery — "that Indiana was 
redeemed from what never existed. The only way to open Indiana either 
as territory or state to slavery was by a law of congress, by constitutional 
provision or by judicial decision. None of these was ever done. Colored 
persons remained with masters in both territory and state of Indiana, some 
for love of their masters, some for fear of kidnapping and others because 
it was the safest way to procure a living. Colored persons had few if any 
legal rights in Indiana which they could enforce." (Ind. Hist. Bulletin, 
February 1924, p. 57). This naive argument is Mr. Esarey's answer to 
"special pleading on the slavery question." In confirmation of the last 
lines, however, there are apparently "instances of colored men selling them- 
selves to masters" in St. Clair County in 1794 — that is before any indenture 
acts were passed; see Brink, McDonough, Hist, of St. Clair County, 88. 
And Governor Reynolds says : "Although this proceeding" — i. e. introduc- 
tion of the indenture system — "was intended by the legislature to introduce 
a species of slavery, yet I knew many slaves and their families who were 
manumitted by the operation, and are now free. This act of the legislature 
operated as a kind of gradual emancipation of slavery in the Territory" — 
My Ozvn Times, 133. Governor Ford says : "Such slaves" — those regis- 
tered — "were then called indentured and registered servants ; the French 
negroes were called slaves" — History, 32. See ante, xxxvi, n. 1. 

2 John, a free negro, by John Edgar his next friend, sued Robert 
Patton for assault in the Randolph County Court, October 1809. Chester 
Miscellanies Box. On the treatment of free blacks, from 1800 onward, in 
Ohio and elsewhere see F. N. Thorpe, A Constitutional History of the 
American People, 1 : ch. 12 (especially 360 et seq. and 375) ; 2 : 326-327 n., 
404, 447-448. 

3 1808, Belleville Museum. 



cxl ILLINOIS HISTORICAL COLLECTIONS 

"Indeana (this indenter witnesseth that on 

S tc County (the 9th Day of June 1808 Isaak Gilham 

and James Cirkpetrick two of the overseers of the poor hath put 
John Henderson Soposed to be 14 years oald, in the County of 
S 1 Clere Goshen township and by these presence Doth bind the 
S d John Henderson a prentis to James Downing of S d County 
to Larn the art of farming and after the manner of anaprentis 
to Serve him from the Day and Date hereof for and During the 
whoale terme of time untill he arives to the age of one and twenty 
During all which time he the S d aprentis his master shall feath- 
fully Serve his Secrets keep his Lawfully comand Gladly obey he 
shlal Do No Damage to his S d master. Nor Se it Dun by others 
without Letting his master know he Shall. Not Sell his S d 
masters Goods. Nor lend them without his Leve he shall Not 
Comit any misdemener Nor by nor Sell without his Leve he Shall 
Not absent him Self Day nor Night without Leve he Shall Not 
Contract marrag Nor Comit furnecation but in all things beheve 
him Self. Asafethfull aprentis ought to Do. During the S d term — 
And he the S d master Doth oblegate him Self to give the S d 
apprentis one yares Scooling if S d apprentis Can be Conformed 
to the Rueels of the Scool and instruct the S d aprentis in the art 
of farming and provid Sefisent meet Drink aperrell lodging and 
washing and a Soot on and a Soot of at the End of S d term — 
And for all and Every porformence of the S d Covenant we asign 
our hand s ad Seels in presents of D White one of the Acting 
Justis of S d County 

"Isaak Gilham (seel) 
"James Kirkpatrick (seel) 
"James Jones (seel) 
The St. Clair records under the act of 1805 show the reg- 
istration of various colored boys and girls of sixteen to eighteen 
years of age who "agreed" to terms of eighteen to forty-seven 
years. The average term for three registered by Shadrach Bond 
Jr. was twenty-one years. 1 To permit the continued introduction 

1 The examples are from the period 1805 to 1809. In addition he 
registered one boy of 13 years. There is one free woman, aged 23, who 
bound herself for 12 years. Various bonds to the territory still exist at 
Chester and at Belleville. 



INTRODUCTION cxli 

into the territory of slaves under the guise of indentured servants 
was a subterfuge so bold and transparent that — once it was seen 
to go unchallenged — we may confidently assume that slaves whose 
term of "contract" bondage had expired were not always released 
and furnished with their certificates of freedom. 1 The very 
record book of the St. Clair Court was labeled "indentured slaves." 
In a bond given to Governor Harrison by John Beaird, a judge of 
the Randolph Common Pleas, the condition stated was that Beaird 
should indemnify county and territory against all charges for the 
support of his mulatto boy Berry after the expiration of the term 
for which he was bound "as a slave." 2 Bills of sale of negroes, 
with warranty of title, were recorded in the records of the 
courts. 3 Sheriffs were authorized by statute to collect fees by 
distraint upon "slaves, or goods and chatties" ; 4 taxes were levied 
upon each "bond servant and slave" ; the "time" due from inden- 
tured blacks was subject to execution and sale. 5 Trover was 
brought in Randolph for a negro woman. 6 Negroes, mulattoes 
and Indians were not permitted to testify except in federal indict- 
ments against, or in civil pleas the parties to which were exclu- 
sively, persons of one or other of those classes. 7 

One or two cases that got into the courts 8 caused much 
excitement. In 1794 two negroes held by Judge Vander Burgh 
as slaves, but who in Judge Turner's opinion were "free by the 

1 McDonough, Hist, of Randolph, Monroe and Perry Counties, 109, 
gives an example of a servant indentured to John Edgar in 1794 for eleven 
years whose certificate was granted in 1819. 

2 Chester, Miscellanies Box, bond of September 20, 1807 (with Wil- 
liam Morrison). 

3 E. g. by James Jordan to George Belsha, December 14, 1804, loc. cit. 
*Post, 61 (§ 27 of law of September 24, 1803); see also post, 478, 

§29; 542. 

s Post, 73, § 9 (November 5, 1803). Post, 189, § 7 (November 26, 
1806), 541, § 7 (Revision of 1807). 

6 Chester, Aliscellanies Box, docket papers of 1809. I cannot state 
the outcome of the case, but the chances are very heavy that plaintiff 
succeeded. 

* Post, 40, § 21 (1803). 

8 Cockrum, Pioneer History of Indiana, 131-132, states that "the ques- 
tions that came principally before the courts . . . were land speculation, 
the adjustment and settling of land titles and the perplexing question of 
slavery," and that the last "was one of the most stubbornly contested ques- 
tions before the courts." Hardly a trace of the three questions appears in 
the judicial records up to 1810. 



cxlii ILLINOIS HISTORICAL COLLECTIONS 

Constitution of the Territory," applied to the latter for a writ of 
habeas corpus, but — again according to Judge Turner — were seized 
and forcibly abducted by persons in the employ of Judge Vander 
Burgh. This was one time Governor St. Clair, whose interpreta- 
tion of the Ordinance did not accord with that of Judge Turner, 
gave him no encouragement, and the matter was dropped. 1 Judge 
Symmes, when on circuit in the Illinois country in 1798, held that 
a former slave and his wife, brought into the territory by their 
master, were citizens of the United States, entitled "to enjoy all 
and every privilege and franchise with relation to their personal 
liberty and protection of property, unmolested, subject only to the 
laws of the land. And all persons are hereby" — his judgment ran 
— "advised and forewarned not to invade or annoy the entire free- 
dom of the said Guy and Abigail, which by this record is abso- 
lute." 2 The influence of such a case is not to be forgotten in 
connection with the slavery petitions and agitation already dis- 
cussed. Another and more sensational case was that of United 
States v. Simon Vannorsdall, which in its varied aspects runs 
through the record of the General Court for more than four 
years. It involved the question whether George and Peggy, 
colored, were fugitives from service within the meaning of 
the federal fugitive slave act of 1793 ; 3 and unfortunately the 
issue turned in part upon the sufficiency of proof of a foreign 
record. In substance nothing more was decided than the fact that 
Peggy was not proved to be a fugitive, and therefore Vannorsdall's 

1 Turner wrote to the Governor, June 14, 1794 : "I have caused 
several of the offenders to be apprehended, but others of them were en- 
couraged by Vanderburgh to resist the execution of process, and in one 
instance this was actually done by drawing a knife upon the sheriff. Such 
of the offenders, however, as were not taken have since surrendered them- 
selves, and, full of contrition for their misconduct, have amply exposed 
the machinations of Judge Vanderburgh in this nefarious business" — St. 
Clair Papers, 2: 325-326. For St. Clair's attitude, ibid., 331 (a letter after 
six months of delay, to Turner) and citations ante, xxxvi, n. 1. The negroes 
were kidnapped pendente lite, and sold into slavery in the south. 

2 McDonough, Hist, of Randolph, Monroe and Perry Counties, 107-108. 
Various important records, seen by the authors of the county histories of 
St. Clair and Randolph cited in this introduction, are apparently no longer 
in the archives. 

8 This act, together with the Ordinance of 1787, which commanded 
the return of fugitive slaves — Pease, Lazvs (I. H. C, 17), 130 — and the 
Constitution, was printed with the Northwestern laws of 1799 in an edition 
of 400 copies and distributed among all the counties (ibid., 519, 546). 



INTRODUCTION cxliii 

writ of habeas corpus was dismissed, without prejudice to "the 
right that V armor sdall or any other person shall have to the said 
negro girl Peggy provided he Vannorsdall or any other person 
can prove said Peggy to be a slave, nor shall this order impair 
the right of said Peggy to her freedom provided the said Peggy 
shall establish her right to the same." She was permitted to sue 
Vannorsdall in forma pauperis, with time to take advice of counsel 
and summon witnesses; and in this suit (represented by Thomas 
Randolph, attorney-general of the territory) she failed. 1 The 
interest of the case lies partly in the fact that the judges of the 
court when the first decision was rendered were Vander Burgh 
(who had brought slaves with him to the territory) 2 and Davis, 
a Virginian, Benjamin Parke being also a member of the court 
when the second case was decided ; and partly in the circumstance 
that the negroes were for a time in the custody of Governor 
Harrison. 

More numerous and more intricately wrought than any others 
in this volume are the statutes regulating courts. 3 At the head 
of the judicial system was the General Court, which met twice 
yearly. Its judges were, of course, appointed by the President — 
to serve during good behavior; and its writs ran in the name of 
the United States. It could be held by any two judges, and had 
both original and appellate jurisdiction, with power to issue writs 
of habeas corpus, certiorari, and of error. Its jurisdiction under 
the last writ was unrestricted, except that this must be brought 
within five years ; but its original jurisdiction and its jurisdiction 
in cases on appeal were limited in 1806 to causes that might involve 
more than fifty dollars (omitting the alternative of earlier laws, "or 
relate to a franchise or freehold") ; and so great did the demands 
on it continue that in 1808 it was provided that no suit should be 

"General Court, Order Book, 1: 203 (April 10, 1806), 290 (Septem- 
ber 16, 1808). Dunn gives an abstract of the proceedings and a full 
discussion — Indiana, 237-239. See Cockrum, Pioneer History, 133-134. There 
seems to be little ground for criticism of the court. 

2 Monks, Courts, 1 : 13. 

3 Of the thirty-eight laws in the Maxwell Code of 1795 thirty dealt 
primarily with this subject. The statutes in the present volume are mainly 
revisions or readoptions, but they fill a large part of it. The whole system 
was of colonial origin ; compare, for example, C. L. Raper, North Carolina. 
A Study in English Colonial Government, ch. 7. 



cxliv ILLINOIS HISTORICAL COLLECTIONS 

removable to it (or other court) after issue joined in the court 
where such suit was begun. It also had jurisdiction over capital 
crimes, and (with the circuit courts) exclusive jurisdiction of di- 
vorce cases. Finally, it was empowered to punish "contempts, 
omissions and neglects, favours, corruptions, and defaults" of 
all judges and judicial-administrative officers of the territory. 1 

Below the General Court were the circuit courts, held in 
each county by a judge of the former once yearly. 2 Not only was 
the jurisdiction of the General Court in capital crimes and in di- 
vorce exercised largely on the circuit, but "an issue" in a cause 
pending in the General Court was tried by the circuit judge in 
the county whence such cause was removed ; a final decision being 
possible only in the General Court. The Revision of 1807 pro- 
vided that the Circuit Court might order new trials, and should 
render final judgment and issue execution unless a bill of excep- 
tions should be filed, or some other good cause appear for taking 
the opinion of the General Court. 3 

i Pease, Laws (I. H. C, 17), 156-158, §§ 8-12 (1795): 259, § 5 (di- 
vorce). Post, 3-5, § 5 and 454, § 34 ($50 lower limit) ; 10-12 §§ 8-12 (Jan. 
23, 1801) ; 215 (Dec. 5, 1806) ; 551; 662 (Oct. 25, 1808). By this last act 
the session was restricted to a maximum of twenty days. Appeal to the 
Supreme Court in cases involving a freehold goes back to § 5 of post, 
3-4 (1801). 

2 Under the law of 1788 it sat four times yearly, in such places as 
were judged "most conducive to the general good" ; in 1790 an annual session 
in each county was introduced. Pease, op. cit., 11, (repealed, 255), 35. 

s Post, 10-11, 12, §§ 9, 12; 215, § 1; 230-231, § 2. The "issues" made 
in the General Court, but triable on circuit, were of fact only; they are 
erroneously stated in Monks, Courts, 1 : 27, to have been "both of the fact 
and law." The law (post, 10-11, § 9) did not provide that only one judge 
should go on circuit in each county, but this was doubtless the invariable 
practice (and compare post, 215, § 1). The circuit courts of Randolph 
and St. Clair opened on the first and third Mondays in October respectively, 
but as it was found that these times "interfere with the General court 
of the Louisiana Territory, to the great detriment of several suiters in the 
said courts," they were changed to the last Monday of October for St. 
Clair and the first Monday of November for Randolph — post, 555 (Sept. 
8, 1807). The interference was undoubtedly more with counsel, several 
attorneys of St. Louis being among the most prominent practitioners in 
these counties. The name Oyer and Terminer was apparently often applied 
to the Circuit Court, and sometimes (even statutory terminology being 
obscure — post, 8-9, 12, §§ 3, 4, 13) to the General Court. Monks states 
that the latter was "usually" so called — Monks, Courts, 1 : 26. The Circuit 
Court was frequently called the Court of Oyer and Terminer and General 
Jail Delivery. 



INTRODUCTION cxlv 

In addition to the civil session the circuit judge held a jail 
delivery whenever necessary. As a court of jail delivery the 
jurisdiction of the Circuit Court was not, of course, restricted to 
the capital cases in which the General Court had exclusive original 
jurisdiction. 1 Whenever officially informed that a prisoner was 
held in a county for a capital crime the Governor was empowered 
to issue a commission to one or more judges of the General Court 
to hold a special court of oyer and terminer. 2 In practice no 
more than one was ever commissioned ; but commissions were 
simultaneously sent to one or more local judges to sit with the 
circuit judge. 3 

It is evident that the Circuit Court was the hub of the judicial 
system. "Upon it," as Mr. Esarey says, "fell the burden of up- 
holding the power of the government and teaching the people its 
supreme value." 4 The life of the circuit-rider — lawyer or mis- 
sionary — was one of rough romance. In the coming of the circuit 
judge, attended by a retinue of leading lawyers who spellbound 
local political meetings and social gatherings with their eloquence 
and made the court itself a thing of wonder through the country- 
side, the law revealed its picturesque aspect. The courts were 
the theater of the backwoods. Indiana Territory, in this respect, 
merely reproduced the experience of colonial times and of all the 

1 The statement in Monks, Courts, 1 : 27, that "as a matter of fact, 
courts were held much oftener for jail delivery" is correct if the special 
courts of oyer and terminer are included. But even so these were not 
frequent. 

2 Post, 215, § 3 (Dec. 5, 1806). 

3 Gibson, Exec. Journal, 104, shows such commissions (Sept. 28, 1801) 
to Judge Vander Burgh for Randolph and St. Clair, with John Edgar and 
Pierre Menard as his associates in the first, and John Dumoulin and Shad- 
rach Bond [Sr.] in the second, county. Commissions for another court 
in Randolph were issued only a few weeks later {ibid., 105, Nov. 3, 1801) 
to the three judges of the General Court — Vander Burgh, Clarke, and Griffin ; 
on March 24, 1802 (ibid., 107) to Clarke for Clark County, with two local 
associates. Commissions of September 24, 1802, to Edgar and Menard as 
associates of Judge Griffin are preserved in the Chic. Hist. Colls., 4: 168- 
171 ; Harrison, Messages, 1 : 57-59. It is highly probable that such courts 
were associated every year with the regular circuit courts, and that Secretary 
Gibson's record is incomplete. 

The reference in Exec. Journal, 112, to an oyer and terminer in Knox 
is presumably to a special court {post, 10-11, § 9, and 215, § 1, do not set the 
date of the Knox circuits). 

4 History, 1 : 167. 



cxlvi ILLINOIS HISTORICAL COLLECTIONS 

older states. The emphasis placed by the frontier upon eloquence 
and cleverness has exercised an abiding- and pernicious influence 
upon the legal profession of the country. 1 

Circuit-riding greatly weakened the General Court. Judge 
Symmes complained in 1790 that the judges must employ the whole 
year in traveling, snatching a little time for legislating when a 
quorum could be brought together. In 1795 he seems to have left 
Marietta at the end of March in order to hold the General Court 
at Vincennes in May. This is somewhat difficult to understand, 
for Governor Reynolds says — with reference, indeed to travel 
sixteen years later, but modes of travel had not changed — that by 
"exceedingly fast" travel one could go from Vincennes to his 
home near St. Louis in two and a half days. 2 At the best, how- 
ever, it was exhausting and time consuming work, 3 so much so 
that as counties increased in number it became necessary, in 1803, 
to authorize the holding of a General Court by a single member ; 
a change that had bad results and caused great dissatisfaction. 

Until 1805 the county system was extremely elaborate. The 
Court of General Quarter Sessions of the Peace, in addition to its 
quarterly regular sessions, held "special and private sessions when 

1 Senator Smith's Early Trials (e. g. 168-169) gives interesting views 
of circuit-riding of somewhat later years ; conditions, however, evidently 
could not greatly have changed. See also Warren, Hist, of the Amer. Bar, 
124, 204-206. "At a court in Cahokia, in olden times, a great crowd of peo- 
ple remained there all night" — Reynolds, My Own Times, 103. Governor 
Ford describes, not unkindly, the old-time ministers, who "made up in loud 
hallooing and violent action what they lacked in information" (History, 
38-40), and adds: "In course of time their style became the standard of 
popular eloquence. It was adopted by lawyers at the bar, and by politicians 
in their public harangues; and to this day [1854], in some of the old settled 
parts of the State, no one is accounted an orator unless he can somewhat 
imitate thunder in his style of public speaking. From hence, also, comes 
the vulgar notion that any bellowing fellow, with a profusion of flowery 
bombast, is a 'smart man,' a man of talents, fit to make laws, govern the 
country, and originate its policy" (ibid., 40). Dean Roscoe Pound has 
emphasized the importance, in the development of our law, of the frontier 
attitude toward the court as a theater (The Spirit of the Common Law, 
124-125, 137). 

2 Smith, St. Clair Papers, 2 : 187, 339-340 ; Revnolds, My Own Times, 
77. 

3 Compare Burnet, Notes. 65-67; Smith, Early Trials, 116-117. Even 
in 1820, on the first circuit of Indiana there was only one tavern, though 
the judge was fourteen weeks on circuit — Ind. Hist. Soc. Pub., 6: 119-121. 
Judge Parsons, of the first General Court, was drowned in crossing a stream 
when on circuit in 1789 — Pease, Lazvs (I. PI. C, 17), xxii. 



INTRODUCTION cxlvii 

and as often as occasion shall require," and had cognizance of 
crimes, except the capital cases reserved to the General Court. 1 
The Court of Common Pleas met at the same time, and with few- 
exceptions was composed of the same judges. Its jurisdiction 
was unrestricted, and concurrent with that of the General Court. 2 
Each court could be held by three judges, and each judge had 
certain powers (later, in both civil and criminal cases) which he 
could exercise out of court. Any judge of any court — county or 
general — could issue writs and other process, which ran through- 
out the territory. 3 

An Orphans' Court was established in 1795 by a law which 
remained unchanged so long as the court existed. Its judges were 
likewise those of the Quarter Sessions. 4 It had jurisdiction over 

1 Post, 8-10, § 1-7. It is stated in various places (e. g. by Air. Esarey 
Indiana, 1 : 168) that the court tried "petty" crimes and misdemeanors, and 
that "felonies" were reserved to the territorial courts. Of course the 
Quarter Sessions did try petty crimes primarily, and it is also true that the 
penalties prescribed by the law of 1788 (continued in force in 1799, Pease, 
op. cit., 13, 338) — when jails were practically non-existent — make the 
crimes seem less serious. But from 1795 onward it was only felonies of 
death that were reserved to the General (or Circuit) Court — ibid., 158, § 
12 ; law of 1801, post, 12, § 12. 

2 Post, 13, § 14. It is said in Monks, Courts, 1 : 14, that "three 
Common Pleas Justices usually sat together, one of whom should be a 
lawyer, though one of them, the lawyer, frequently held court alone." Even 
the law of 1788 (Pease, Laws {I. H. C, 17), 4, 7) required three judges 
to hold the Common Pleas. There is no trace in the records of St. Clair 
and Randolph of action such as that stated. It is also stated in Monks, 
op. cit., 2: 807-808, that "according to the federal statute, two courts were 
provided for the territory. The so-called General court exercised jurisdiction 
throughout the whole territory, while the Common Pleas court was re- 
stricted in its jurisdiction to the county where it was organized. The 
latter court exercised civil and criminal jurisdiction, and also had charge 
of all probate matters. These two courts were in existence during the 
sixteen years [1800-16] Indiana was a territory, the Federal Judges having 
charge of the General court and the Associate Judges presiding over the 
Common Pleas courts in the respective counties." 

3 Post, 8, §§ 2, 6, 14-17. In 1790, when the county of St. Clair was 
organized, three judicial districts and courts were established — at Cahokia, 
Kaskaskia, and Prairie du Rocher (John Dumoulin, John Edgar, and 
Jean Bte. Barbau being the respective judges) ; and writs ran in each 
district only. Governor Reynolds relates John Rice Jones' plea to the 
jurisdiction of one of these courts — Pioneer History, 180; Washburne's 
note, Edwards Papers, 73-74. Doubtless this early experience sufficed. 

4 Under the creative act of June 16, 1795 — Pease, Laws (I. H. C, 
17), 181 — an Orphans' Court was proclaimed open for St. Clair County on 
August 5, 1796: St. Clair Orphans' Court 1797-1809, p. 1. See post, app. 
notes, 17, 28. No records of a court in Randolph County seem to exist. 



cxlviii ILLINOIS HISTORICAL COLLECTIONS 

all persons who, "as guardians, trustees, tutors, executors, admin- 
istrators or otherwise" were anywise accountable for property 
belonging to an infant. It controlled investments, bound minors 
as apprentices, controlled the Probate Court in matters pertaining 
to their estates. Appeals lay to the Circuit or General Court. 1 

A Probate Court — ordinarily consisting of one judge — had 
been established earlier, in 1788, in each county; and this law also 
remained unaltered. In deciding upon contested points, and in 
his final decrees the probate judge was required to join with him 
two judges of the Common Pleas as members of the court. 2 A 
statute of 1792 conferred temporarily upon the judge of probate 
the powers given three years later to the Orphans' Court; indeed 
more, for his powers extended to persons mentally incompetent. 3 
The subject of probate, and also the court, were first dealt with, 
in the legislation of Indiana Territory, by the Revision of 1807, 
and very considerably modified. A provision of 1808, that no 
judge of the county court should be administrator of an estate 
unless entitled thereto as decedent's next of kin, 4 would — had 
it been earlier in effect — most radically have altered the business 
of the Probate Court. Administration by the judges had been 
exceedingly common. The Executive Journal of the territory does 

i Pease, Laws (I. H. C, 17), 181. 

2 Ibid., 9 ; reenacted in 1799, 338. This act of 1788, as finally adopted, 
was largely due, in essentials, to Governor St. Clair. His comments upon 
the original draft of the judges (Parsons and Varnum, St. Clair Papers, 
2 : 67-68) is a fair illustration of his sound judgment and ability. The 
Probate Court was abolished by the statute of August 24, 1805 — post, 117, 
§ 10. 

3 Pease, Lazvs (I. H. C, 17), 89. This act was repealed after the 
creation of the Orphans' Court (ibid., 257). 

4 Post, 270, 652, 662, § 3. See post, ccvii, n. 6, as to Perrey. Other 
instances: Orphans' Court 1797-1809, p. 21 (Perrey), 22 (George Atchison). 

The orphans' courts were abolished by statute of August 24, 1805 — post, 
115. In the records of the St. Clair Court there is an order of February 
23, 1797, giving the clerk of the Orphans' Court the same fees as allowed 
"in the former fee bill to the Judge of Probate" (p. 2). The statute re- 
ferred to must be that of 1795, Pease, op. cit., 179; this law, unlike the 
laws of 1792 and 1798 {ibid., 104, 305), did not regulate fees in the Orphans' 
Court. In Monks, Courts, 1 : 33, it is suggested that "since the prothonotary 
of the Common Pleas was always clerk of the Orphans' court, it seems 
the Common Pleas Justices presided." But the creative statute required 
the court to be held by iustices of the Quarter Sessions — Pease, op. cit., 
181-182. 



INTRODUCTION cxlix 

not show many appointments to these last two courts, but it does 
show some, 1 and the local records indicate that both courts were 
in regular operation. 2 

The same obscurity surrounds the boards of county commis- 
sioners. The statutes of the Northwest Territory provided for 
their appointment by the Quarter Sessions, and for their perform- 
ance of important duties, and maintenance of distinct records. 3 
The Quarter Sessions, like its prototype developed in all 
the southern colonies (where tendencies far advanced in the 
English Quarter Sessions before the seventeenth century had 
simply been carried farther), 4 exercised large powers of self- 
government; indeed, in it were gathered most of the functions of 
civil administration. The township system, elaborate in its statu- 
tory form, in reality probably scarcely existed. 5 The county 

1 Secretary Gibson appointed clerks of the orphans' courts of Knox, 
Randolph, St. Clair, and Clark {Exec. Journal, 92, July 28, 1800; 93, 94, 
August 1, 1800 — Robert Morrison for Randolph, John Hay for St. Clair; 
101, February 4, 1801). The place of meeting of the Clark County Court 
was changed in 1802 (ibid., 109) ; appointments were made to the court 
for Dearborn County in 1803 (ibid., 117, March 7, 1803). No other appoint- 
ments appear. 

On the same days just noted some appointments were also made of 
probate judges — including John Edgar for Randolph. No appointment for 
St. Clair anywhere appears ; nevertheless the court was there in operation. 
Shadrach Bond was judge in 1805 (Orphans' Court 1797-1809, 27). William 
St. Clair was judge in 1796 (ibid., 1). In the Miscellanies Box at Chester 
are some probate records, e. g. letters of administration issued December 
1, 1802, to John Edgar by Robert Morrison. 

2 See list of estates administered by the St. Clair judge of probate 
from 1790 onward in Brink, McDonough, Hist, of St. Clair County, 83. 
In the records of that court (St. Clair Orphans' Court 1797-1809) we find 
a resolution (p. 21, February 6, 1804) : "It is the opinion of the Court that 
the Adm r shall be paid in preference to all other creditors." 

s Pease, Laws (I. H. C, 17), 201 (1795), 483 (1799), and index. 
The justices evidently sat, themselves (at least generally) as commissioners. 
In the Randolph record of the County Commissioners 1809-10 those attending 
are usually referred to simply as "Justices of the Peace," sometimes (p. 148) 
as "the Worshipful — [naming them], Justices of the Peace." The earlier 
records do not furnish similar evidence. 

4 Compare G. E. Howard, An Introduction to the Local Constitutional 
History of the United States, 406-407, 416 ; G. W. Prothero, Select Statutes 
and other Constitutional Documents, index, s. v. "Justices." 

5 The editors of Secretary Gibson's Executive Journal (p. 77) correctly 
state that the elaborate law of 1790 (Pease, Lazvs, 37) was "never carried out, 
nor was any similar act adopted in the Indiana Territory." Cp. ante, ciii. 
"Indeed, the township as a political organization seems to have attained very 
little importance during the territorial period. The existence of townships 



cl ILLINOIS HISTORICAL COLLECTIONS 

commissioners, unlike those of present-day officers of the same 
name, had relatively limited, though very important, powers rela- 
tive to the assessment and collection of taxes and the auditing 
and settlement of county claims and debts. Substantially, their 
powers appear in the records as powers of the Quarter Sessions. 
In Randolph County their proceedings, inextricably mixed with 
proceedings of the Quarter Sessions, are recorded in a court record 
of the latter ; in St. Clair their proceedings are similarly mixed 
with records of the Orphans' Court — which themselves, for reasons 
elsewhere set out, were confused with acts of the Quarter Ses- 
sions. 1 That court (until absorbed in 1805 into the Common 
Pleas) created and bounded townships and appointed their officers; 
controlled all public improvements — the purchase or erection of 
county buildings, the authorization and building of bridges and 
roads, the appointment of road-viewers and surveyors and of 
superintendents of highways ; it licensed ferries and fixed their 
rates ; licensed taverns and fixed their rates ; exercised large powers 

1 The Randolph Court Record 1802-06, and the St. Clair Orphans' 
Court 1797-1809. In McDonough, Hist, of Randolph, Monroe and Perry 
Counties, 101, it is stated that after January 13, 1804 "the administrative 
functions of the county were next performed by a court, styled orphans' 
court . . . from 1804 to 1808." Rather, it seems that in both periods the court 
was, in substance and reality, the same; that is, the justices of the Quarter 
Sessions. This Randolph record of the Orphans' Court seems to have 
disappeared. In the St. Clair Orphans' Court 1797-1809, p. 31, a road is 
ordered laid out; 31, 36, 40 constables are appointed; 40, overseers of the 
poor and supervisors of the road appointed; 41, county levy list delivered 
to sheriff for collection ; 42, petition granted for division of a township. 
And on 43 (July, 1808) the record very properly refers — this being after 
the absorption of the Sessions in the Common Pleas — to "this County Court 
of Common Pleas." 



was recognized in the law for appointing overseers of the poor, and also 
in the laws governing elections, but as a distinct political organization the 
township was scarcely known in the laws or" — but of course it had no 
place here — "in the appointments made by the governor." Overseers of 
the poor were regularly appointed — and here alone French names are com- 
mon after 1800 ; but what they did does not appear. Constables and super- 
visors of highways were also more or less regularly appointed ; and town- 
ship appraisers of personalty. In remarks to the St. Clair Quarter Sessions 
made in October 1791 by the presiding judge, we read : "It is a long time 
since the publication of an act for laying off our county into townships, 
and appointing clerks and overseers of the poor to each, and nothing is 
done in that yet." Bateman and Selby, Hist, of St. Clair County. 2 : 699. 
From 1802 onward, at least, such appointments were regular in Randolph 
County. 



INTRODUCTION cli 

in taxation — appointing assessors, fixing basic land valuations, 
remitting taxes. 1 Except in the control of elections — which, 
for historical reasons, fell more naturally to the Common Pleas 2 
— it might assume to act for the community in any way. The 
St. Clair Court, for example, corresponded (in 1797) with the 
Spanish authorities of St. Louis, protesting against competition 
with the ferry between that village and Cahokia; 3 established 
local liquor prohibition in Cahokia after the law of 1790, under 
which it might have claimed authority, had been repealed ; 4 and 
took measures (1801) to exclude the smallpox, when prevalent 
in upper Louisiana. The office of county commissioner has had 
a long development. A century ago its differentiation from the 
quarter sessions was new and insecure. To this is due the vague- 
ness that envelops it in the records. 

A little group of men controlled the entire local government, 
judicial and administrative. They recommended each other, and 
a few friends, to the governor as fit to keep the taverns ; and it 
will be seen that repeated indictments for violations of the laws 
did not affect either recommendations or appointments. Similarly, 
they and a few others held the ferry licenses. As county commis- 
sioners — for with rare exceptions they acted as such themselves — 

1 Ferries : the record of the commissioners' proceedings in the Ran- 
dolph Court Record 1802-06 is incomplete. George Fisher (p. 6, September, 
1802) and Pierre Menard {ibid., 57, March, 1804) appear as filing bonds 
when they presented the Governor's license; also a Mrs. Sally Lusk {ibid., 
76, December 1804). The taxes in 1803 were $7 on John Edgar's ferry 
across the Kaskaskia ; $5 on George Fisher's across the Mississippi ; $1 on 
James Edgar's across the Mississippi {ibid., 27, July 1803). In 1805 Fisher, 
John Edgar, James Edgar, Pierre Menard, paid $5; William Goings, $1.50; 
Paul Herlston, $1 {ibid., 91, June, 1805). The ferry rates fixed in March 
1804 were : for single man, 6*4 cents ; children under 8 years, 3 ; horse, 
6^4 ; man and horse, \2y 2 ; full-grown cattle, 6^2 ; cattle 2 years old or 
younger, 3 J /i; cart and 2 oxen, or 2 horses, 25; 4 horses or oxen, 50; sheep 
or hog, 3 T /8 {ibid., 57). 

Roads : the Randolph Court Record 1802-06 contains a few examples, 
pp. 17. 33, 41. See ante, cxxiv, n. 4 for Harrison's attitude. 

2 Compare Howard, Local Const. Hist., 407, and Pease, Lazvs {I. H. 
C, 17) , 409, etc. 

3 Bateman and Selby, Hist, of St. Clair County, 2: 700; Brink, Mc- 
Donough. Hist, of St. Clair County, 70. Grand juries have always acted in 
much the same way; see ibid., 85, the recommendations of the grand jury in 
1791 relative to the Indian trade. 

4 Bateman and Selby, Hist, of St. Clair County, 2 : 700, and ante, 
cxxx, n. 1. 



clii ILLINOIS HISTORICAL COLLECTIONS 

they appointed the tax collectors, and assessors if none were 
elected; supposedly pursued delinquent collectors and taxpayers 
(we have seen that half of the delinquent taxpayers — delinquent 
over five years — were judges themselves) ; and supposedly pur- 
sued themselves as delinquent commissioners. They tried each 
other for misdemeanors and nonpayment of debts. Two hundred 
names would more than include, a hundred names would come near 
to including, all the judges, clerks, sheriffs, assessors, collectors, 
notaries, constables, coroners, court-criers, grand jurymen, petit 
jurymen, road supervisors, fence viewers, county commissioners, 
large landowners, tavern-keepers, ferrymen, mill-owners, store- 
keepers, and even wolf -killers who appear in the Randolph records. 
And these would include also a very large share of the civil liti- 
gants and criminal defendants. 

In 1805 all powers theretofore vested in the Common Pleas, 
Quarter Sessions, and Orphans' Court, and judge of probate were 
vested in a new Court of Common Pleas of three judges, two of 
whom constituted a court. There were six sessions annually, three 
reserved excusively for the business of the former courts of Com- 
mon Pleas and Quarter Sessions. The act took effect on January 
1, 1806. The jurisdiction of the former courts passed unaltered 
to the new. 1 

Even after this simplification of the judicial system its ex- 
pense was burdensome, and statutory limits were placed upon 
sessions of both the General Court and the county courts. 2 

Below all these courts were those of the justices of the peace. 
It has been seen, in discussing imprisonment for debt, that the 
second law established for the Northwest Territory empowered 
any judge of Common Pleas to hear and finally determine claims 
for debt under five dollars. 3 The law of 1795 gave exclusive and 
final jurisdiction in these cases to any judge of Common Pleas and 
any justice of the peace ; and extended it to claims between five and 

iPost, 115 (Aug. 24, 1805), 225 (Revision of 1807), 661 (fees). 

2 Post, 663, § 2 (1808). 

3 Pease, Laws (I. H. C, 17), 8. As is suggested in Monks, Courts, 1 : 
30, the act of 1788 could not have been conveniently used until townships 
were created and constables appointed in 1790 (Pease, op. cit., 37), for the 
sheriff lived at the county court, and (the counties being immense), his 
services were expensive. 



INTRODUCTION cliii 

twelve dollars, with appeal to the Common Pleas. It excluded 
in all cases claims for rent, and those where the title to land 
"comes into question" ; and in the second class of cases, also, actions 
in covenant, "or upon any real contract," replevin, trover, case for 
slander, and trespass to the person. 1 Some hardships or abuses 
that became apparent under these laws were corrected by a statute 
of 1799, which in turn was amended by the General Assembly of 
Indiana Territory, no changes having been made by the governor 
and judges. This emendatory legislation points plainly to hard- 
ships which it was found difficult to correct. The law of 1795 re- 
quired the action to be brought within the county where defendant 
resided or should be found; that of 1799 within the township of 
defendant's residence, and the justice must also there reside; a law 
of 1806 made it available where the debt was contracted, or where 
the plaintiff resided, or where the defendant might be found (if 
brought elsewhere, and the magistrate should find "vexatiously," 
the suit must be dismissed), and the justice was not required to be 
a resident thereof. Monetary jurisdiction was raised to eighteen 
dollars in 1799, and in 1806 jurisdiction was extended to causes for 
personal property. Stay laws began in 1799. One great abuse 
under the act of 1788, that of splitting demands into five-dollar 
claims, in order to recover them summarily and without appeal, 
was cured by penalties from 1799 onward. Reference to arbi- 
trators, upon whose findings judgment must be given, was intro- 
duced in 1795 and preserved thereafter. Set-off was introduced 
in 1799, and likewise continued. Appeals, except for very trivial 
claims, were allowed in all cases after 1799. The laws of the 
territory after 1806 made no important changes except in raising 
the monetary jurisdiction to forty dollars ; and in repealing the 
power, in view of the abuses that had arisen therefrom, to sue 
where the plaintiff resided. 2 

1 Pease, op. cit., 143 (1795), §§ 1, 4 (jurisdiction); 2, 15 (whether 
exclusive); 3, 16 (excepted cases). 

2 Ibid., §§ 4 and 9 (referees); 389 (1799), §§ 1 and 4 (jurisdiction), 
8 (set-off in small causes), 9 and 4 (referees), 10 (stay laws), 14 (appeals), 
18 (splitting causes), 21 ($18 jurisdiction) ; 354 (November 15, 1799, gen- 
eral arbitration act, not confined to small causes). Post, 184-185 (Dec. 6, 
1806), §§ 1, 2 (jurisdiction); 223-224 (1807), §§ 2, 3 (petty crimes, bat- 
teries) ; 351, § 6 (1807, extending set-off to higher courts) ; 375 (1807, 



cliv ILLINOIS HISTORICAL COLLECTIONS 

Maintenance of the peace, with power to take recognizances 
or commit, and also jurisdiction to try petty crimes, had been en- 
trusted to the justices under another line of statutes from the 
beginning, but they were brought together in 1807 in the statutes 
regulating the trial of small causes. 1 

All the justices and county judges were, of course, appointed 
by the governor; and all the latter, apparently, were appointed 
to serve during good behavior. 2 

The abundance of legislation on the topic is in itself evidence 
that trouble in regard to the courts was experienced from the be- 
ginning. 

Dissatisfaction was felt by the bar with the combination in 
the General Court of broad original and appellate jurisdiction. 3 

1 Pease, Laws (I. H. C, 17), 5, 6, 20 (1788); 328 (same, revised 
1792); 297 (1798). Puzzlement is expressed in Monks, Courts, 1: 31-32, 
over the fact that the earlier statutes regulating the trial of small causes 
conferred no such jurisdiction. The other line of statutes, here cited, was 
overlooked. Confusion was caused by an unhappy statutory terminology. 
In 1788 civil jurisdiction was conferred upon judges of the Common Pleas, 
and criminal upon justices of the peace, in the same statute (Pease, op. cit., 
5, 6, 8). But the latter were inseparably united in men's minds with the 
justices of the General Quarter Sessions of the Peace, which could be held, 
under this statute of 1788, by any three justices of the peace in the county. 
Moreover, justices of the peace were in 1795 added to the "justices" (in 
later years consistently called "judges") of the Common Pleas in the civil 
jurisdiction (ibid., 143, §§ 1, 3), and in 1799 part of the criminal jurisdiction 
was conferred upon both (ibid., 378) ; but then it became necessary to enact, 
first that no judge of Common Pleas should hear on appeal such cases 
decided by himself below (ibid., 148, § 14; 397, § 15), and later that no 
such judge (this was after the Quarter Sessions was abolished) should 
hear the cases originally (post, 185, § 4; 388, § 22). This restored the 
original division of jurisdictions ; and meanwhile, in 1805, the Quarter 
Sessions were abolished. It was therefore evidently felt desirable to em- 
phasize in the statute of 1807 the fact that the two jurisdictions belonged 
to the justices of the peace. See post, 223. 

2 See ante, xix, notes 2 and 3. Secretary Sargent, while acting 
governor in 1793 — ignoring with characteristic arrogance the troubles over 
this question between England and the colonies only thirty years before — 
had commissioned county judges to hold at the pleasure of the governor, 
and this had raised a storm in the territory. Compare St. Clair Papers, 
2 : 312 n., 323 n., 366 ; G. E. Howard, Preliminaries of the Revolution, 86. 

3 See ante, x and n. 3 ; Monks, Courts, 1 : 175-177. See Mr. Esarey's 
account of the Indiana constitutional convention of 1816, Ind. Hist. Soc. 
Pub., 6: 105-108. 



general revision of Pease, 389). §§ 1, 4, 8, 9, 10, 14, 18, 21, 22, corresponding 
to above §§ of 1799; 443 (1807), practice in the General Court and County 
Common Pleas; 658 (1808), § 1 (no suit merely where plaintiff resides), 
660, § 3 (monetary jurisdiction $40, $100 in Prairie du Chien). 



INTRODUCTION civ 

The increasing burden of circuit duties made it necessary as early 
as 1792 (as already noted) to permit the holding of a General 
Court by a single judge; and the law had never required more for 
the Circuit Court and the Court of Oyer and Terminer. The com- 
bination of the two provisions was not a happy one. It was not 
acceptable to one judge on circuit to be overruled by one at 
Vincennes. 1 Nor were litigants content, apparently, with final 
decisions by a single judge in the General Court. It seems 
probable that there must have been few such cases, of either 
class. Nevertheless, the connection of the Northwestern judges 
with the great land companies made the last law, in the opinion 
of Governor St. Clair, actually dangerous. Many representations 
were made to him against it. He favored its repeal, and the 
establishment of appeals, from a fuller court, to the Supreme 
Court of the United States. By an act of the Indiana Territory 
passed in 1801 two judges were declared necessary — as the Ordi- 
nance had provided — to hold the General Court or (as to which 
the Ordinance contained no provision) courts of oyer and terminer 
and general jail delivery. By another act of 1803 — whose validity 
is no more doubtful than that of the Congressional act of 1792 
which had similarly modified the "compact" of 1787 — one judge 
was declared sufficient. Experience evidently showed that a court 
of one was better than no court at all. 2 

There was also dissatisfaction with the circuit courts held by 
one judge. A bill passed by the General Assembly in 1808, for- 
bidding the same judge to hold the circuit courts successively in 

1 This seems to have been the case in one of the clashes between 
Judges Turner and Symmes in 1795; see St. Clair Papers, 2: 397-398. 

2 The Ordinance — Pease, Laws (I. H. C, 17), 522 — had required 
two judges to hold a General Court; this had been violated in Michigan — 
see the protest of December 8, 1806 in Mich. Pioneer and Hist. Colls., 
8: 581, and that of December 12, 1806 in the same, 12: 647. For act of 
May 8, 1792, declaring one judge sufficient: U. S. Stat, at Large, 1: 285. 
For St. Clair's comments upon the evil effects of this law see Amer. State 
Papers: Misc., 1: 116 (December 15, 1794, to Edmund Randolph; given 
erroneously in St. Clair Papers, 2 : 333 as of December 14 to Thomas 
Jefferson). The editor of the St. Clair Papers (1: 194) says that "the 
act" — of Congress, of 1792 — "which permitted the holding of the Supreme 
Court by a single judge was productive of many unpleasant complications, 
which taxed the address and patience of the Governor sorely to adjust." 
For the laws of 1801 and 1803 see post, 8, 85. The latter appears as a 
"resolution" of the governor and judges "assembled as a legislature" ! 



clvi ILLINOIS HISTORICAL COLLECTIONS 

the same county, was necessarily vetoed by Governor Harrison. 
The difficulty persisted in Indiana until it became a state. 1 

Great discontent was necessarily incident, also, to the incon- 
venience and expense of litigation in the General Court. 2 This 
difficulty was unavoidable; it was mainly due to the great size of 
the territory. The expense of litigation in the county courts was 
high for the same reason ; and this had caused Governor St. Clair 
in 1790, when St. Clair County was created, to divide it into three 
judicial districts. Grand juries were organized in each; writs ran 
only within each; separate sessions of the various county courts 
were held in each, and under arrangements that made them almost 
independent courts ; a defendant could be sued only in the district 
of his residence; although the judges, sheriff, and clerk had juris- 
diction throughout the county. For these arrangements there was 
no authority in the Ordinance or statutes. St. Clair, always a 
strict constructionist in defending his own authority against en- 
croachments by his fellow judges, himself acted in this instance 
upon latitudinarian principles, under a plea of necessity. As this 
division of the county did not "give that ease and facility to the 
administration of justice which was expected, and the great extent 
of the county would render it almost impracticable were the courts 

1 Messages, 1 : 319. See, on the interesting conflict which arose in 
1814 between the legislature and the federal territorial judges, Smith, Hist, 
of Indiana, 2 : 575-579 ; and Mich. Pioneer and Hist. Colls., 12 : 642 for a 
parallel case. Compare Dillon, Indiana, 543. 

2 In the report by a committee to the House of Representatives in 
1808, Jesse Thomas, chairman, they say that "the great difficulty of travel- 
ling through an extensive and loathsome wilderness, the want of food, and 
other necessary accommodations on the road, often presents an insurmountable 
barrier to the attendance of witnesses ; and even when their attendance is ob- 
tained, the accumulated expense of prosecuting suits where the evidence is at 
so remote a distance, is a cause of much embarrassment to a due and impar- 
tial administration of justice, and a proper execution of the laws for the re- 
dress of private wrongs." Amer. State Papers: Misc., 1 : 945 (Dec. 31, 
1808). Similarly, Annals, 8 Congress, 1 session, 29 (November 1, 1803) ; 
10 Congress, 1 session, 2067 (April 11, 1808). In a memorial of 1805 from 
the Illinois country committed January 17, 1806 (Ind. Hist. Soc. Pub., 
2: 499), the petitioners declared: "the poor man is often deeply oppressed 
by the appeal of a wealthy antagonist to a court so distant." And again : 
"a considerable portion of the inhabitants of the Illinois are obliged, several 
times a year, to travel as officers, as jurors, as witnesses, as suitors in the 
National Court holden at Vincennes" over the 150 miles of dreary waste 
separating them from that town. The colossal exaggeration of the second 
statement somewhat discredits the first. 



INTRODUCTION clvii 

to be held at one place only," Randolph County was created in 
1795. 1 

A cause of dissatisfaction probably more important than any 
of the preceding — although less emphasized than the last as a 
reason for the division of the territory in 1800 — was the impossi- 
bility of carrying the burden that rested on the circuit courts. 
Here lay the true "inconveniences and embarrassments" of con- 
tinued connection with the Wabash country. Governor St. Clair 
was never able to visit Michigan and in six years only two circuit 
courts were held there. 2 It was stated by a Congressional com- 

1 The quotation is from St. Clair's proclamation of October 5, 1795 
creating Randolph County — St. Clair Papers, 2 : 345 n. See St. Clair to 
President Washington, November 21, 1790, ibid., 172, giving his reasons 
for ignoring legal requirements ; also 371. Reynolds, Pioneer History, 
180 ; Davidson and Stuve, History, 213 ; May Allinson, "The Government 
of Illinois, 1790-99," 111. State Hist. Soc. Trans. (1907), p. 284-285. Mr. 
Alvord's statement (Illinois Country, 404) that "the courts established in each 
district . . . were those of common pleas, general quarter sessions, the 
justices of the peace, and the probate court," is technically wrong. Prac- 
tically, however, since the prothonotary of the common pleas, the "clerk 
of the peace" (i. e. of the Quarter Sessions), and the judge of probate 
were ordered to elect deputies and open offices in each district, and since a 
"chief justice" was appointed (or at least acted) for each district, the result 
must have been substantial decentralization. Compare St. Clair Papers, 
2 : 172, with Miss Allinson, loc. cit., 284-285. It should be remembered that 
under the law of 1788, there being no substantial distinction between justices 
of the peace and justices of the Court of General Quarter Sessions of the 
Peace (ante, cliv, n. 1), that court could readily have been held in any 
district, andl probably was. It was different with the Common Pleas, if 
the statute was observed; for it required — Pease, Laws (I. H. C, 17), 7 — 
the appointment of from 3 to 5 judges, a majority of whom were alone 
competent to hold the court anywhere. St. Clair's action, according 
to Miss Allinson (loc. cit., 285) and the editor of the St. Clair Papers (2: 
198 n. 2), was condemned by Jefferson and Washington. In truth the 
sections of St. Clair's journal of his proceedings in the Illinois country 
upon which Jefferson animadverted (The Writings of Thomas Jefferson 
(Ford ed.), 5: 260) did not include that — of April 27, St. Clair Papers, 
2 : 165 n. — which referred to the creation of the three judicial districts. How- 
ever, St. Clair frankly excused it solely on the ground of necessity, and 
the _ strictures of Jefferson and Washington (ibid., 198), were directed 
against similar irregularities under a like plea. 

2 Mich. Pioneer and Hist. Colls., 8 : 512. In Hist. Publications of 
Wayne County Michigan, Nos. 1-2: "Documents relating to the Erection 
of Wayne County and Michigan Territory" various memorials to Congress 
are given. In one of March 20, 1803 the petitioners complain that the de- 
fective administration of justice under the Northwest Territory was ag- 
gravated by the attachment of Wayne County to Indiana Territory: "Ex- 
perience has already taught us the various consequences which a procras- 
tination in judicial proceedings, produces to Commerce; for a term of more 



clviii ILLINOIS HISTORICAL COLLECTIONS 

mittee in March, 1800 that in the five preceding years only one 
court of criminal jurisdiction had been held in the three western 
counties, including Knox. If this is correct it must have been the 
court held in the Illinois country in 1795. 1 After 1800 the courts 
seem to have been held annually, but these sessions were inade- 

1 Amer. State Papers: Misc., 1 : 206. Compare St. Clair Papers, 
2: 483. St. Clair spent considerable time — March 5 to June 11 — in Illinois 
in 1790; his official report is in St. Clair Papers, 2: 164-180 (see also 129, 
130, 131), but contains little on legal matters and nothing regarding courts. 
Judges Symmes and Turner were apparently on their way to Illinois in 
May and June of 1790, and Mr. Bond says that the former met the Governor 
"at Kaskaskia early in the summer" ; it seems rather that both judges 
joined him at Vincennes in June after his return from the Illinois country 
(B. Bond, John Cleves Symmes, 83 n., 128, 130 and n., 287), and apparently 
did not go farther west. In January 1792 Symmes thought that he "must" 
hold the Illinois courts in June, unless the President should grant him leave 
of absence, in which case he would feel "justified in neglecting the western 
circuit" {ibid., 161-162). There is no evidence that he went either east or 
to the Illinois ; but he was in the east from February 1793 to September 
1794 (ibid., 163 n.). His land interests were primary, and allowed only 
slight attention to his official duties : ibid., 22-23, 140-141. In the meantime 
Judge Turner held Circuit Court in Illinois — apparently early in 1795, though 
the time fixed by law was June! He was, therefore, as Miss Allinson says, 
"the first territorial judge to hold court in Illinois," at least "so far as 
present records reveal to us" (111. State Hist. Soc. Trans. (1907) p. 287. She 
says he reached Kaskaskia in October 1794 ; St. Clair Papers, 2 : 345-346 and 
373 indicate that court was held in late winter or early spring) . Apparently 
he held court at Kaskaskia only, wherefore the complaints of Cahokia : 
ibid., and Amer. State Papers: Misc., 1 : 151. See post, ccvi for troubles 
he stirred up. Later in 1795 — again at a time not provided by law (Septem- 
ber) — Judge Symmes, who had gone to the Illinois with the Governor to 
allay the excitement aroused by Judge Turner, held court in both Kaskaskia 
and Cahokia (St. Clair Papers, 2 : 345 n., 396 ; Bateman and Selby, Hist. 
of St. Clair County, 699). St. Clair's health prevented him from going 
again in 1796. Apparently there were no more courts until 1801. 

than Six Years, whilst under the Government of the North Western Ter- 
ritory, but Two Superior-Courts were held in the County of Wayne ; not- 
withstanding the many Actions removed into the General Court by error 
& ca — Several of which still remain undecided, altho' pending for Three 
or Four years." The distance which the judges must travel on circuit under 
the Indiana Territory was "at least double the distance the late Judges 
had to travel" and would increase earlier inconveniences (pp. 13-15). In 
another memorial, perhaps of 1805, after commenting upon the practical 
immunity of criminals, it is stated : "In Civil matters, too, the delay and 
the expense are equally fatal. — During the last eight years, we have had 
but two Circuit Courts. — The Creditor is deterred from an appeal to the 
laws, under the painful assurance, that altho' justice is not sold, it costs 
more than, some among us are, able to pay" (p. 34). 



INTRODUCTION clix 

quate. An increase of the judges of the General Court would 
have remedied this difficulty. 1 

Agitation began early to secure an appeal from the General 
Court to the Supreme Court of the United States. Governor St. 
Clair had favored this change in 1794; mainly because the 
large interests of all the judges of the first court in land 
speculation weakened the independence of the court. 2 There 
was probably no reason to doubt the impartiality of the court in 
later years, and it was obvious that, whatever the advantages of 
such appeals, they were open to all the objections urged at the 
same time against appeals from the Illinois county courts to the 
General Court. 3 Nor could the magnitude of the issues involved 

1 Petition of the General Assembly in 1805, Dunn, Indiana, 338 ; 
Bateman and Selby, Hist, of St. Clair County, 699. No records of the 
circuit courts remain in Randolph except a few scrappy sheets of 1808 ; 
and none in St. Clair except a few undated sheets, apparently also of 1808. 
The General Court, on September 5, 1809, ordered them sent to the clerk 
of that court (Order Book, 1: 328). Possibly they now exist at Vincennes 
or in Indianapolis. 

2 Writing to the Secretary of State, December 14, 1794, of the pro- 
vision that one judge might hold the General Court, without appeal, he 
says : "Many representations have been made to me on this subject. The 
people very generally think it an unsafe situation which they are in . . . 
Circumstances exist at present that render it dangerous. The principal 
settlements have been made in tracts of land purchased by . . . the Ohio 
Company, and . . . the Miami Company. In both these associations 
the management of the directors and agents are thought to have laid the 
foundation of endless disputes. General Putnam has been the active director 
in the first association, and Mr. Symmes the principal, if not the sole, agent 
in the second ; and they are both judges of the Supreme Court. Every land 
dispute will be traced to some transaction of the one or of the other of those 
gentlemen, and they are to sit in judgment upon them. It must, I think, be 
acknowledged that . . . the people have but a slender security for the 
impartiality of their decision" — St. Clair Papers, 2 : 332-333 ; Amer. State 
Papers: Misc., 1 : 116. See ante, civ, n. 2, and post, cxcix, n. 4. 
Dunn, Indiana, 276-277, says that "nearly all of the litigation of the territory 
grew out of transactions" with the land companies in which the judges 
were interested. This is a vast exaggeration. My examination of the 
Order Book of the General Court and records of the Illinois county courts 
has revealed nothing to support the statement. 

3 A committee of the House of Representatives, December 29, 1803, 
reported adversely to the change on the ground of delay and expense. 
Such appeals, they said, would certainly sometimes be made "an instrument 
of vexation and oppression." Again : "The committee are not informed, 
nor do they believe, that there is any unusual want of confidence in the 
courts of the Territories." Annals, 8 Congress, 2 session, 1577-1579. 



clx ILLINOIS HISTORICAL COLLECTIONS 

well justify appeal. 1 Appeals were granted, however, in cases 
involving federal questions, in 1805. 2 

Some irritation arose from employment of the attorney-gen- 
eral of the territory in causes of the United States, for which he 
was not at first compensated. 3 

The county courts were held with considerable irregularity 
under the government of Northwestern Territory, but this was less 
noticeable under that of the Indiana Territory. 4 Another dif- 
ficulty arose from the fact that the county judges were paid from 
fees, and so inadequately that Governor Harrison finally urged, in 
1808, that their compensation' be assumed by the territory. 5 This 
difficulty existed throughout the territorial period. The judges 
derived little or no emolument from their commissions, and in 
consequence it was necessary, in order to assure the attendance 
of a sufficient number to hold the regular sessions of the courts, 

1 Mr. Webster, in Ind. Hist. Soc. Pub., 4: 212, cites a letter by 
Thomas Terry Davis relative to a verdict for $13,000 given in the General 
Court in a case involving a doubtful point of law. And some of the ver- 
dicts in the Randolph County Court were very large ; see post, cxci. 

2 Annals, 8 Congress, 2 session, 1693 (March 3, 1805). No debates 
whatever are reported. By act of April 18, 1806, the Judiciary Act of 
February 28, 1799, was extended to the territories. Probably the strongest 
reason for desiring the change was that Kentucky had been given a United 
States District Court. The act gave to the superior courts of the several 
territories in which no federal District Court had been established the 
same jurisdiction and powers, in cases involving a federal question, as 
were possessed by the District Court of Kentucky Territory. 

3 See reports to the House of Representatives in Annals (1803), 7 
Congress, 2 session, 1354, and (1804) 8 Congress, 1 session, 1024. Also 
post, app. n. 9. 

4 William St. Clair wrote to the Governor on June 2, 1793 from 
Kaskaskia : "Our courts are in a deplorable state ; no order is kept in the 
interior, and many times not held. Prairie du Rocher has had no court 
this sometime, and Kaskaskia has failed before. The magistrates, however, 
have taken upon themselves to set it going again" — St. Clair Papers. 2: 317: 
cp. resolution of August 20, 1795 in Pease, Laws (I. H. C, 17), 288. The 
prothonotary and clerk of Knox County absented himself for a long period 
in 1794 — St. Clair Papers, 2: 326, 332. The Hamilton County Court met 
illegally and invalidated its proceedings (1795) — ibid., 348. In Adams 
County the justices — apparently for reasons connected with land specula- 
tions — removed the courts from the place appointed by law for their meet- 
ings (1798) — ibid., 425 n. The Knox Court was not held in August, 1805 
"by reason of the non attendance of a sufficient number of Justices to form 
a court" — post, 98. The court of Dearborn County was held by mistake a 
week early — post. 201. 

5 Messages, 1 : 305. 



INTRODUCTION clxi 

to multiply their number, as Governor Harrison pointed out in 
his message of 1805, "to an extent which precludes all hope of a 
uniformity of decision. It is, indeed, not infrequent that the 
judges who determine the question are not those who have pre- 
sided at its discussion." It was in accordance with his insistence 
that it was "indispensably necessary that an evil should be cor- 
rected which strikes at the roots of one of the first objects of civil 
society" that the Assembly reconstituted the county courts in 
1805. 1 The effects of that act were probably very slight indeed. 
The abolition of separate courts of criminal, probate, and orphan 
jurisdiction would have effected a great saving had the judges of 
each been paid independent salaries. But as almost the same in- 
dividuals were actually appointed to serve in these various courts 
(presumably because of the considerations just stated), the only 
effect of the reduction in the number of courts was that the same 
fees were thenceforth collected for services performed in one 
court that had previously been performed in several. For the 
same reason the number of variant opinions cannot have been 
lessened ; the slight difference in personnel between the old Com- 
mon Pleas and Quarter Sessions being unimportant, since the 
jurisdictions were distinct. The reconstitution of the courts was 
therefore a mere administrative simplification, notwithstanding 
that the Assembly doubtless believed its statute to be responsive 
to the Governor's criticisms. The real improvement was made 
by Harrison himself, in appointing fewer and better men to the 
reconstituted courts. 

Confusion between justices of the peace — of whom, though 
seemingly numerous, there were apparently never enough 2 — and 
judges of the county courts, particularly justices of the Quarter 
Sessions, leaves plain traces in the records. In England it was 

i Ibid., 1 : 156, July 29, 1805. 

2 See the petition of 69 inhabitants of Randolph County to the Gover- 
nor, of March 23, 1807, in Messages, 1 : 204, as to the need ; and 105 — 
Dearborn County, 1804— as to the quality that was frequently the best 
available. Note that in the second case the petitioners, as a matter of course, 
recommended that a man, of whom the best that they could say was that 
he would be better "than none," be appointed justice of the peace and justice 
of the Quarter Sessions of the Peace. Compare also St. Clair Papers, 2: 
424 on Jefferson County in 1798. 



clxii ILLINOIS HISTORICAL COLLECTIONS 

easy to maintain a distinction between ordinary justices of the 
peace and those of the "quorum" — the law members — who were 
members of the Court of General Quarter Sessions of the Peace. 
Some traces of the distinction, but only the barest traces, are dis- 
cernible in the records of the Northwest Territory : General Ruf us 
Putnam, for example, was appointed by Governor St. Clair in 
1788 a "Justice of the Peace and Quorum." But this is almost a 
unique example. 1 And Secretary Sargent, at least, did not keep 
the distinction plain, for on April 29, 1790, he tells us that St. 
Clair made appointments for St. Clair County of — first, "Judges 
of the Court of Common Pleas" ; secondly, "Justices of the Court 
of General Quarter-Sessions of the Peace, and Justices of Peace 
and Quorum" ; thirdly, "Justices of the Court of St. Clair County." 
But these last were simply justices of the peace, none of them 
included in the first lists and none of them ever members of the 
courts. 2 The confusion was unavoidable, because of provisions 
in a law of 1788 already discussed. In fact the confusion went 
back before the creation of the Northwest Territory. 3 No com- 
missions of this period, seemingly, survive. As Secretary Gibson 
kept the Executive Journal there is no distinction indicated be- 
tween ordinary justices of the peace and those of the Quarter 
Sessions. Thus, John Beaird was named "Judge of the Court of 

1 St. Clair Papers, 2 : 79 n. 

2 Italics added. See ante, cliv, n. 1. St. Clair Papers, 2: 165 n. 
These appointees were five : Frangois Janis, Bte. Saucier, Frangois Trot- 
tier, James Piggott, and Nicholas Smith. The first seems to have left no 
significant mark in contemporary records. The other two Frenchmen were 
distinguished, had been judges in Todd's Virginia court of 1779 — and Trot- 
tier also in that of Clark of 1788 [Alvord, Cahokia Records, (I. H. C, 2), 
index] — but were advanced in years. Of the two Americans, Nicholas Smith 
had been a justice of the peace in Grand Ruisseau but Piggott had not. 
He was however soon to become, in 1795, a judge of the county courts. 
In stating that none of these five sat in either court I am relying (the 
judicial records are missing) upon the fact that I have nowhere found 
any indication that they served as judges. 

3 Jean Bte. Barbau, when deputy county-lieutenant of Illinois in 1787, 
issued commissions to various persons as "Justices of the peace for the 
District of KasKasKias and judges of the Court of the said District in 
cases both civil and criminal" (italics added) — Alvord, Kaskaskic Records 
(I. H. C, 5), 402. In McDonough, Hist, of Randolph, Monroe and Perry 
Counties, 100, it is said — after naming the judges under the Indiana Terri- 
tory (incorrectly, confusing the two courts) : "These gentlemen were 
territorial or United States justices of the peace, and as such members of 
the court of common pleas." Cp. Reynolds, Pioneer History, 302. 



INTRODUCTION clxiii 

Common Pleas and Justice of the peace for the County of Ran- 
dolph," and we find him sitting regularly in the Quarter Ses- 
sions; 1 but he had been recommended for appointment to the 
court and the appointment was so intended. 2 "Judge" was the 
usual designation for members of the civil, and "justice" that for 
members of the criminal, court. But the latter was also used, 
even in the judicial records and statutes, to designate members 
of the Common Pleas. That can perhaps not be properly called a 
confusion ; but there are examples in the statutes of positive con- 
fusion. 3 The failure to discriminate between ordinary justices 
and those of the quorum, and between "judges" and "justices," 
had the result of blurring the line between the Common Pleas and 
the criminal-and-administrative sessions. There was some con- 
fusion of jurisdiction ; and there are curious cases of judges sitting 
in the civil court who had no authority to do so unless by virtue 
of commissions as justices of the peace — or appointment (pre- 
sumably for good behavior) to the court in the Virginia period, 
before the creation of the Northwest Territory. 4 Finally, in 
1806, judges of the Common Pleas were forbidden to act as 
justices of the peace. 5 

More important than most of these questions, intrinsically, 
was that of the introduction of courts of equity jurisdiction. The 
Ordinance of 1787 — which in this respect reflected the strange 
misunderstanding and distrust of chancery procedure which pre- 
vailed generally at that time — conferred upon the General Court 

1 December 25, 1802 — Gibson, Exec. Journal, 114. Thus in appoint- 
ing Henry Fisher and Charles Reaume, ostensibly, as justices of the Court 
for St. Clair County, there is also the statement regarding Reaume : "ap- 
pointed to the same office at LaBay in St. Clair County" (italics added, 
ibid., 122). Neither ever sat as a member of the court. Mr. Esarey has 
expressed doubts regarding the status of certain appointees, by St. Clair in 
1790, for Clark County (Monks, Courts, 1: 31) — due to the same vagueness 
in commissions. 

2 See ante, xix, n. 2. 

3 Compare post, 389, paragraph 3 of § 2, with Pease, Laws (I. H. C, 
17), 402, § 2; also post, 426, § 3 ("and the Justices of the several courts 
of Common Pleas, of the Peace," etc.) with Pease, 444, § 3. And this 
was in 1807. The revisers must have left their work to an assistant, or 
failed to revise the work of a presumptuous copyist. 

4 See post, cci. "There must have resulted considerable confusion 
from the lack of a clear boundary between the Common Pleas and Justice 
of the Peace courts" — Monks, Courts, 1 : 32. 

5 Act of December 6, 1806, post, 185. 



clxiv ILLINOIS HISTORICAL COLLECTIONS 

merely a common law jurisdiction. Appeals to the Supreme Court 
of the United States could not, of course, alone have remedied 
this. 1 In 1802 James Johnson, for most of the time since 1790 
and for years later the presiding judge of the Knox Common 
Pleas, joined with his fellow judges in a petition to Congress 
praying that the Ordinance should be amended and chancery pow- 
ers conferred. The petition was referred to a committee then 
engaged in a revision of the federal judicial system, but nothing 
further was done. 2 The next year, however, the same committee 
which reported appeals to the Supreme Court to be inexpedient 
urged with understanding words the conferment of equity pow- 
ers, 3 and the act of 1805 already referred to introduced this 
change with the other. 

Equity might have been introduced into the local courts (sub- 
ject to Congressional approval during, the continuance of govern- 
ment of the "first grade") at any time, if we assume that the 
mention of the common law in the Ordinance did not impliedly 
and as matter of principle exclude the other. This assumption 
the legislature later (under the second grade) made and acted 
upon — that is, by assuming concession of the power under the 
Ordinance's grant of "authority to make laws, in all cases, for the 
good government of the district, not repugnant to the principles 
and articles in this Ordinance established and declared." Until 
that step was taken hardly a trace of equity parlance occurs in the 
statutes. 4 This was quite proper. It is curious that although 
Pennsylvania, which affords our most notable example of a state 
without equity courts where equity principles were slowly insin- 
uated through common law actions, was the source of the basic 
legislation of the Northwest Territory, the only statute that avow- 
edly introduced equity was taken from Massachusetts — though, to 

1 Pease, Laws (I. H. C, 17), 522; Monks, Courts, 1: 36, erroneously 
assumes the contrary. 

2 Annals, 7 Congress, 1 session, 1131 (April 3, 1802). The district 
courts of the United States were given the power to issue injunctions by 
an act of February 13, 1807 — ibid., 9 Congress, 2 session, 1258. 

3 Ante, clix, n. 3. 

4 Notable is the reference, above quoted, to the accountability of 
"trustees" to the Orphans' Court. And testimony dc bene esse (post, 6) 
was not common law of 1607. 



INTRODUCTION clxv 

be sure, her experience in attempting- to do without equity was 
almost as notable as that of Pennsylvania. 1 The choice of this 
statute (which limited recoveries in forfeitures to so much as 
should be due "in equity and good conscience") presumably re- 
sponded to some special local need. 2 An attempt to give other 
equitable relief was, however, inevitable. "The Courts of Com- 
mon Law," says Judge Burnet, "as far as their forms and modes 
of administering justice would permit, assumed those powers from 
necessity, by which partial relief was obtained." An attentive 
examination of even the scanty existing records of the General 
Court would doubtless yield various interesting examples of the 
judicial application of equity principles. Debt was allowed, for 
example, on an equity decree of one of the United States. 3 

In the county courts conditions were very different. The 
unschooled judges of those courts undoubtedly would not have 
known when they crossed the border of equity, or of any recondite 
province of the common law. What, for example, could a court 
untrained in equity and future interests make of a "deed of gift" 
of livestock, household furnishings and utensils, and a "crop" of 
corn and oats given by William Chribbs to his daughter 4 in 
these terms? — 

"The total of these items ... I do freely & of my own 
accord grant & convey unto the said Mary Chribbs under the 
following restrictions to wit the said property or at least the use 
of the said property is to be & remain subject to the control & 
direction of my wife Eliz a Chribbs during her natural life or 
untill by & with the free consent of the parties concerned it might 
or may be thought proper to revoke the within given under my 
hand & seal this 22 d day of September 1804 
"Witnesses present 
W. King 
Mathew Adams." 

1 S. G. Fisher, "The Administration of Equity through Common 
Law Forms," Law Quart. Rev., 1 : 455-465 ; E. H. Woodruff, "Chancery in 
Massachusetts," Law Quart. Rev., 5 : 370-386. 

2 Pease, Laws (/. H. C, 17), 246 (1795); post, 307 (Revision of 
1807). 

3 Burnet, Notes, 305 ; and see post, cxcvii, n. 1. 

4 Randolph, Deed Record K, 35. 



clxvi ILLINOIS HISTORICAL COLLECTIONS 

What William Chribbs wanted done, undoubtedly they tried 
to do; and that was equity. The bar did not know enough to 
litigate such matters. 

A few months after Congress conferred equity jurisdiction 
upon the General Court the General Assembly set up a territorial 
court of chancery (of a single judge) under the rules and practice 
of the English courts. The statute contained, doubtless by way 
of quieting apprehensions, a provision that no injunction should 
issue against proceedings at law, before judgment, unless the 
court should "be satisfied of the complainants Equity" ; but this 
provision — which was evidently put in to quiet the fears of some 
opponent — the Revision of 1807 omitted. 1 Its provisions for 
sequestration, execution, and enforcement generally of decrees 
were ample in the extreme. In case respondent should not obey a 
decree, fieri facias against his property could be had to satisfy 
the complainant's demand, or a capias ad satisfaciendum under 
the same rules as at law, or an injunction for the delivery of 
property. And a decree for a conveyance, release, or acquittance 
not actually given should have in all courts of law and equity the 
same effect as the act decreed but unperformed. The local need 
which more than anything else had led to the creation of the court 
was satisfied by the provision that the court should always be 
open for the granting of ne exeats. 2 Procedure was fully regu- 
lated by another statute. 3 In view of the abolishment by the 
legislature, in this same session, of superfluous common courts, 
it is somewhat surprising that it should have created a separate 
court of chancery, instead of imitating the federal statute which 
had just conferred double jurisdiction on the General Court. 

The chancellors successively appointed have already been re- 
ferred to. The creative act had fixed no salary, and the legislature 
provided none. No doubt in part this was due to repentance over 
the creation of a new court. It seems evident from the messages 
of Governor Harrison, who ardently favored it, that doubts con- 
tinued regarding the looseness of equitable discretion, and the 

iPost, 110 (August 22, 1805), 507. 

2 A statute passed four days later (August 26, 1805) taxed lands 
claimed under a bond for conveyance — post, 147. 

3 Post, 193. 



INTRODUCTION clxvii 

desirability otherwise of the court. As regards the first objection, 
there is no evidence that such distrust of magisterial power was 
any greater in the frontier community of Indiana Territory than 
in various of the old states of the east. The Governor first re- 
minded the Assembly, merely, that no appropriation had been 
made; then he argued the issue, assuring them that equity is 
"bound down by rules and laws as well defined, and as well under- 
stood, as those of any other court," and urging its peculiar value 
"to protect the simple and ignorant against the artful and design- 
ing," and to meet the special needs of the territory; finally he 
could only again remind them that without appropriation there 
could be no court. 1 His words are worth quoting: 

"If ever there was a country where a court of Chancery was 
necessary, ours is the one; because in no other (as I believe) has 
there ever been so* much valuable property transferred without 
the observance of the legal forms of conveyance, or where the 
evasion of the specific performance of contracts would produce 
so much confusion, injustice, and ruin. It is not many years since 
a bare assignment of title to lands upon a bit of paper, without any 
of those peculiar phrases which our laws require in the transfer 
of real property, was deemed both by the buyer and seller a suf- 
ficient conveyance. Indeed, there have been instances where the 
delivery of possession has been considered and accepted as suf- 
ficient evidence of purchase. To enforce the observance of bona 
fide contracts made in this manner it is believed a court of Chan- 
cery is alone competent; nor is it by any means that loose and 
fluctuating tribunal which some have considered it, where will and 
not law presides, and where the arbitrary opinion of the judge is 
the only rule of decision." 

In a memorial to Congress drawn up in the Illinois counties 
in 1805 the petitioners declared: "altho your Memorialists can 
sufficiently appreciate the advantage of having a Court acting with 
Chancery powers, yet they wish to see these powers vested in the 
Supreme Court of the territory. It was with pain therefore that 

1 Messages of August 18, 1807 (Messages, 1: 231); September 27, 
1808 (ibid., 307) ; October 17, 1809 (ibid., 382) ; the quotation is from the 
second message. Cp. Baldwin (ed.), Two Centuries' Growth of American 
Law, 130. 



clxviii ILLINOIS HISTORICAL COLLECTIONS 

they saw a law passed by the last territorial assembly vesting these 
powers in a single judge appointable by the Governor." The 
memorial of 1808 which directly attacked Harrison included among 
its nine complaints two based upon his advocacy of a court of 
chancery and his veto of bills designed to obviate the conferment 
of equitable powers upon the ordinary courts of law. 1 Both 
memorials affected a concern for the continued control of the ter- 
ritory which properly pertained to Congress ; their real motives 
were doubtless enmity to Harrison, and, very likely, fear for the 
land claims of the petitioners. 2 Their gross exaggerations reveal 
their political motive. Illinois was a separate territory before a 
chancery court became a reality. That it was needed appears in 
the records of Illinois Territory from the moment of its intro- 
duction. 3 

Not a few things in the practice acts evidence a liberalism 
that is modern. Practically all of these laws came from Virginia, 
directly or by way of Kentucky, and reflect Virginian experience. 
Not only was the English statute of jeofails (as of 1752) adopted 

1 This petition is described ante, xlvii, n. 1 and xlviii. The charges 
were: "Fifthly, That he has given his sanction to a Law establishing a 
Court of Chancery, independent of and superior to the National Court 
[established in the] Territory — a measure which has for its effect the 
wounding and weakening of the great ligature which was intended to bind 
the Colony to the Nation. This Court has already granted a number of 
Injunctions; the causes are hung up to be tried, when a salary (which has 
not yet been done) shall be granted, For this Court, impressed with the force 
of the old French Maxim, that the 'point d' Argent' is the 'point de Suisse,' 
is at present in a torpid state. . . . 

"Seventhly, That he has in an arbitrary manner put his veto on several 
bills passed by both Houses of the Legislature, which were calculated for 
the impartial administration of Justice and the general good of the Terri- 
tory — and among many others the following, A Bill for the selection and 
[MS torn: appointment of judges and a bill vesting certain] equitable 
powers in the several Courts of Law, which would supercede the necessity 
of a Court of Chancery, relieve the Inhabitants from an oppressive burthen 
and the Suitors from the delays and expences attendant on such Courts." 

On the "many" acts vetoed see ante, xxx. 

2 Memorial cited ante, clvi, at end of n. 2. "It is with pain" — 
they also declared, "they are now told that it is in proposition, at the next 
session, to create a court of appeals. Where will this end? Is it in con- 
templation to deprive the present Government of its control over its colony?" 

3 The governor and judges of the territory of Michigan (though 
the United States statute of 1805 clearly made this unnecessary) conferred 
equity powers upon their Supreme Court in 1812 — Mich. Pioneer and Hist. 
Colls., 8 : 617. 



INTRODUCTION clxix 

by the first statute passed in the field of procedure, but a very 
full and explicit statement was made of defects that should not 
be substantial. 1 Rather broad power was given to- the General 
Court to adopt its own rules of procedure, though it did not go far 
in exercising this. 2 Not more than two new trials were granted 
to the same party in one cause ; where less than all of several de- 
fendants were served, judgment was taken against those served 
and a scire facias against the others ; in case of several counts, one 
defective, and verdict for entire damages, this was good. The 
jury might take any papers read in evidence, even though unsealed. 
A scroll was given the effect of a seal. The provision that "after 
issue joined in an ejectment on the title only, no exception of form 
or substance shall be taken to the declaration in any court 
whatsoever," presumably was intended to exclude pleadings to the 
fictions in the form of action; but may possibly, in view of the 
state of land titles in the territory, have embodied an expression 
of broader public policy. Extremely modern is the rule that if 
the verdict in detinue omit the value it might be ascertained by 
writ of inquiry; and that if several things were claimed and the 
verdict given only for part, it should be good as to those. 3 The 
capias ad respondendum was generally used instead of a summons. 
The statute of 1795 regulating small causes provided that it should 
not be used against a freeholder, but there was no such restriction 
in actions generally. 4 There are scores of suits in the Randolph 
records in which a capias was employed against judges and other 
leading members of the community. 

1 Post, 7, and 40, § 24. 

2 Post, 3. Rules of Court appear in its Order Book, 1 : 1, 19 — these 
deal only with return days and delivery of the record, on appeal to the 
presiding judge; 26 — motions in arrest to be argued the same term unless 
put over at request of plaintiff. 

sPost, 39, § 18 (1803)— new trials; Pease, Laws {I. H. C, 17), 
351 (1799) — unserved defendants; post, 39, § 19 — seal; § 20 — defective 
count; 41, § 25 — evidence; § 26 — ejectment; § 27 — detinue. 

4 Pease, op. cit., 94 (1792), 143, 145 (1795) simply assume it as a 
regular procedure; the statute of 1799 on small causes — ibid., 390 — was 
the first to define the special circumstances in which it might be used. 
This was law throughout the territorial period — post, 376, § 2; 377, § 4. 
Out of 47 pleas in the St. Clair Order Book 1801-03 the capias was used 
in 26. In Randolph it was at least as common. A protest against the use 
of the capias in Michigan is printed in Mich. Pioneer and Hist. Colls., 8 : 
579 (1806). 



clxx ILLINOIS HISTORICAL COLLECTIONS 

The capias ad satisfaciendum was also, at least in statute 
theory, in common use. 1 

The statutes of the Northwest Territory did not subject real 
estate to execution if the rents and profits were reported, by in- 
quest of twelve men, sufficient to pay the debt in seven years ; and 
this remained the law until 1806. 2 Right to redeem from the 
sale, during one year, the tenement "upon which the defendant is 
chiefly seated" was also recognized in 1795 ; and both the home- 
stead and the redemption rights were extended by the legislation 

1 "A writ of capias ad satisfaciendum upon which, the judgment debtor 
was committed to prison till the debt was paid was as common a remedy one 
hundred years ago as an ordinary writ of execution to sell the debtor's 
goods" — J. F. Dillon, The Laws and Jurisprudence of England and America, 
359. The writ has gradually disappeared in this country ; as a result of 
statutes prohibiting its use unless in specified cases, and of other statutes 
facilitating the discharge of debtors. 

"Statutes abolishing imprisonment for debt have been generally held 
not to affect the right to take the body in execution in actions of tort. It 
may be laid down as a proposition, generally true, that except where by 
statute this right has been expressly taken away, it exists [in the U. S.] as 
it did in the time of Henry VIII, subject to the defendant's right of freedom 
upon taking the 'Poor Debtor's Oath'" — Baldwin (ed.), Two Centuries' 
Growth of American Law (1901), 112. The law of 1795 ( Pease, Lazvs (I.H. 
C, 17), 145, § 6) assumes the c. a. s. as always available in default of goods 
and chattels to satisfy the judgment. In the Randolph judicial records the 
execution returns are not generally available. The absence of adequate 
jails must have made c. a. s. more theoretical than real : post, clxxxi, n. 4. 
Preference for a c. a. s. over a summons was presumably shown with a 
view to making easily available execution against the body. In the Michigan 
protest cited ante, clxix, n. 4, the petitioners say : "We find it very 
lamentable to us that now a freeholder, for the smallest sum under twenty 
dollars, is taken by a capias as a criminal, and that execution follows im- 
mediately ; whereas by our ancient laws we were all summoned, and execu- 
tion could not be had but three or six months after judgement." 

2 Pease, op. cit., 132, §§ 3, 4; post, 188, § 6 (1806). See St. Clair 
Papers, 2 : 353-354 n. on this law of 1795 ; also, on its application in the terri- 
torial period see the dissenting opinion of Judge Burnet in McArthur v. 
Porter, 1 Ohio R. 99. The policy of Major Hamtramck in October, 1789, 
before the new governor and judges had reached the territory, was stated 
in a letter to John Edgar thus : "I mean that the authority of such mag- 
istrates shall extend to the internal policy of your country, & prevent debtors 
from absconding from their creditors ; but my intentions are that for the 
present, no execution shall take place in favor of a creditor, but as the 
people are daily moving on the Spanish side without paying their debts, 
it is my wish that against such people attachments may be granted, provided 
the plaintiff gives bond & securitv, & not otherzvise." Alvord, Kaskaskia 
Records (I. H. C, 5), 511. There was no statute until 1795. What was 
the law, and the practice? See post, ccxvii, n. 3. 



INTRODUCTION clxxi 

of Indiana Territory. 1 The right of the debtor to offer particular 
lands for either execution or foreclosure sale was recognized in 
1805, but not until 1808 2 was it expressly provided that the 
officer must first take what the execution debtor should designate, 
realty or personalty, and sell in the order of his preference. This 
statute of 1805 is far more notable, however, for its stay law pro- 
visions. Not only must the officer take what the debtor tendered, 
but if the property (real or personal) would not sell for two- 
thirds of its value, ascertained by inquest, enough thereof, chosen 
by the creditor, to satisfy the judgment, exclusive of costs, was 
"adjudged to be purchased by the creditor" at the two-thirds 
valuation. After the "sale or valuation" the debtor could be dis- 
charged. And if the creditor refused to take the lands the sheriff 
should repeatedly offer them for sale, until they should sell for 
two-thirds of the appraised value or the creditor should become 
willing to accept them. 3 Such valuation-and-stay laws, which 
practically suspended the collection of debts, have had a large 
history since colonial times, the final chapter in which was written 
by the Supreme Court of the United States in holding unconsti- 
tutional a later statute of Illinois of this type. 4 

The Northwest Territory started with a criminal law 5 
(1788) which was evidently regarded as satisfactory so far as it 
went, since its actual provisions were altered only in details ; but it 
was very inadequate. As has been said; "This code is more re- 
markable, if possible, for what it does not contain than for what 
it does. There is not an act of turbulence or injury to the person 
of another that is forbidden either by way of admonition or fine, 
save those of murder and robbery. The citizens of the new terri- 
tory might fight, engage in riots, slit noses, perpetrate mayhem, 

1 Nothing further appears on this in the law of 1805 (post, 126), but 
a two-year redemption (half per year) was allowed in 1806 (post, 171, § 1 ; 
554, § 4— Revision of 1807) . 

2 Post, 665. 

-Post, 126 (August 24, 1805). 

4 See I. N. Arnold's reminiscences in 111. State Bar Assoc. Proc. 
(1881), 110-111; citing Bronson v. Kinzie, 1 How. 311, and McCracken v. 
Hayward, 2 How. 608. 

s Pease, Laws (I. H. C, 17), 13. 



clxxii ILLINOIS HISTORICAL COLLECTIONS 

gamble, commit rape, but they must not get drunk, and they ought 
not to swear nor fail to keep the sabbath." 1 Though this is 
much exaggerated, the law was in truth a mere beginning. 

Treason, murder, and arson resulting in a death were the 
original capital crimes. All arson was made such in 1799 ; 2 forg- 
ery (of public securities) in 1799 ; 3 horse stealing, for a second 
offence, in 1805, and for a first — and equally for knowingly re- 
ceiving the stolen animal — in 1808; bigamy and abduction of 
women, in 1803; rape in 1807. No statute of limitations existed 
in the case of capital offences until 1807, when a bar of three 
years was established for all except murder ; and for lesser of- 
fences two years. 4 

To the original felonies of 1788 — arson not resulting in death, 
manslaughter, burglary and robbery by one armed with dangerous 
weapons — mayhem was added (substantially) in 1798 ; 5 rape was 
substantially so treated before 1807 ; 6 bigamy and abduction of 
women (now reduced in gravity) were added in 1807; sodomy in 
1807. 7 

Hanging was the penalty imposed for capital crimes. For 
all others the punishments varied. The construction of jails, 

1 Judge D. D. Banta, "The Criminal Code of the Northwest Terri- 
tory," Indiana Quarterly Magazine History, 9 : 236, 241-242. The statute 
punished riots and assaults and batteries (Pease, op. cit., 16, 19). Moreover, 
it specifically adopted the common law with respect to one crime, and since 
the Ordinance of 1787 had guaranteed the territory some of the common law 
guaranties of personal liberty, that law must therefore be regarded as par- 
tially in force even before its formal and general adoption in 1795 (Pease, 
op. cit., 253). 

2 Pease, Laws (I. H. C, 17), 505; post, 243, § 15. The law against 
treason was, of course, open to the general objection that it exceeded the 
powers of the legislators under the Ordinance ; but the definition came 
apparently within that of the Constitution (the adoption of which was pro- 
claimed on July 2, 1788), and seems to be substantially descriptive of acts 
that were taking place, or might well take place, in the western country 
at the time. Compare post, 246-247, § 20. 

3 Pease, op. cit., 388, § 17. 

*Post, 66, 118, 120, § 5; 243, § 16; 247, § 21; 249, § 28; 667. 

5 Pease. Lazvs (I. H.< C, 17), 296. There was no state's prison; a 
jail sentence was imposed by the territory. The first penitentiary of In- 
diana was established in 1820; in Illinois there was none until considerably 
later. 

6 Note case of 1802, post, clxxvi. Perhaps § 3 of the bigamy act of 
1803 (post, 67) means rape; § 4 includes it. 

* Post, 247, §§ 23, 24; 248, § 25. 



INTRODUCTION clxxiii 

whipping posts, pillories, and stocks was first ordered by statute 
in 1792. 1 No reference to stocks is found in the records of 
the courts. But the noose, whip, pillory, and branding iron 
were statutory realities. 2 In the Virginia period, never later, 
the stake and fire — and some other extralegal punishments 
— were not wholly absent. On the other hand there is no 
trace of the ducking stool, cropping knife, cage, wheel or 
stocks ; all of which had been, and to a varying degree still were, 
used in the Atlantic states. From them the statutes of North- 
western Territory were taken, but with moderation in the number 
of capital offences; and the governor and judges of the Indiana 
Territory, in their continued borrowings from the older states and 
from Kentucky, mitigated the ferocity of their criminal codes. 
Nobody acquainted with the history of the criminal law could 
regard the statutes in the present volume barbarous for their time. 

1 Pease, Laws (I. H. C, 17), 77. 

2 The statute of 1788 provided for imprisonment up to 40 years in 
punishment of burglary or robbery with violence. The longest terms im- 
posed by any other laws were those under the statute against forcible and 
stolen marriages (1803, 1807— post, 68, § 4; 249, § 27), 5 years, and for 
sodomy (1807) ; this being only 1 to 5 years. This extraordinary fact is 
probably associated with the lack of jails. See post, clxxxi, n. 4. 

The lash was alternative with fine in larceny of less than $1.50 (up to 
15 lashes), in larceny generally if the first offence (up to 31 stripes), and 
in perjury (up to 39). It was prescribed for arson before 1799 (not ex- 
ceeding 39 stripes) ; burglary or robbery without violence or carrying deadly 
weapons (up to 39) ; bigamy and forcible marriage after 1807 (100 to 300) ; 
sodomy after 1807 (100 to 500) ; larceny, second offence (not exceeding 39 
stripes) ; horse stealing, first offence, until 1808 (50 to 200) ; hog stealing, or 
alteration of brand with larcenous intent (25 to 39) ; altering brands, first 
offence (40) ; striking of parent or master by child or servant (up to 10). 

The piliory was prescribed in arson until 1799; perjury, forgery, and for 
altering brands (second offence). Three hours for forgery was the maxi- 
mum pillory penalty possible. Brink, McDonough, Hist, of St. Clair County, 
61, and Bateman and Selby, Hist, of St. Clair County, 2 : 679, say that the 
only case of actual use of the pillory was one of 1822, for forgery. 

Branding was a penalty for the second offence of altering brands. 

Forfeiture was part of the penalty for arson (until 1799), burglary 
with violence, robbery with violence. (The statute attempted impossible 
distinctions between violence and violent intention). 

Disability as witness, juror, or office holder was included in the pen- 
alties for bigamy after 1807, perjury, and forgery. 

In general fines, if not paid, were followed by imprisonment : see 
ante, cxxxiii-cxxxiv. 

On the startlingly variant penalties imposed today in different states 
for the same offence — some of them reminiscent of details of the legislation 
of Indiana Territory — see Baldwin (ed.), Two Centuries' Growth of Ameri- 
can Law, 375, 377-378. 



clxxiv ILLINOIS HISTORICAL COLLECTIONS 

Indeed, as regards their list of capital offences they were strikingly 
humane. 1 

The records of the courts reveal illustrations of most of the 
crimes provided for in the statutes. None, however, have been 
discovered of arson, robbery, riot, obtaining of property by false 
pretences (treated as larceny), mayhem, bigamy, dueling, or per- 
jury. At least two murderers were ordered hung by the General 
Court, of whom Governor Harrison pardoned one; 2 and at least 
two in Randolph County (both Indians) and one in St. Clair. 3 

1 A translation of Beccaria was printed in 1793 in Philadelphia, with 
Voltaire's commentary. Note, post, cxcv, presence of a Beccaria in a 
frontier lawyer's library. On the general character of criminal punishments 
in the older states in the period 1776-1820 see J. B. McMaster, Rights of 
Man in America, 36-40, 48-49. Also Baldwin, op. cit., 354-356, 360-361; 
Howard, Local Const. History, 416-423. Judge Banta's article, cited ante, 
clxxii, n. 1, is a defence of the Northwest (and Indiana) Territory code 
against Howard's characterization of it as "barbarous." 

2 Robert Slaughter {Order Book, 1: 107, 133, 134, 145; hung October 
25, 1804) ; Abraham Hiley, indicted with three others {ibid., 291, 293-296, 
ordered hung October 29, 1808; pardoned — Gibson, Exec. Journal, 150). 
Defendant's counsel (whose name does not appear) moved an arrest of 
judgment because: (1) the indictment named no township where defendant 
resided or the crime was committed ; (2) did not state which hand held the 
rifle; (3) alleged four shots, but that the victim received three wounds; 
(4) did not allege the length or depth of the wounds; (5) omitted "then 
and there"; (6) was argumentative; (7) charged all defendants as prin- 
cipals both in the first and second degree; (8) concluded "against the 
statute," whereas there was none in the territory against the crime as al- 
leged; (9) some jurors were not freeholders; (10) "Speir" Spencer was 
summoned as juror, but "Pierre" was sworn as such; (11) the indictment 
was not properly signed by the foreman and indorsed as a true bill. 

3 Governor Reynolds says {Pioneer History, 304) that in 1802, late 
autumn, a Delaware Indian was hung for the murder of a white man. The 
existing records of the Quarter Sessions {Court Record 1802-06) begin 
September 7, 1802, and show (p. 101, December 1805) an allowance to 
James Edgar, sheriff, of $37.50 "for expenses of 25 soldiers in attending the 
execution of the Delaware Indians." Edgar was sheriff 1803-1806. At a 
Circuit Court of Oyer and Terminer held at Kaskaskia by Judge Vander 
Burgh in November 1808 (Canvas Envelope No. 2) the Indian Marangoin 
was ordered hung for the murder of John Russell, gentleman. This may 
be the Piankashaw chief "Le Maringouin or Mosquito" (signature "Mar- 
ingoin" — Amer. State Papers: Pub. Lands, 2: 119, 120). There are refer- 
ences to the murderer in the record of County Commissioners (Illinois 
Territory July, 1809-January 1810), 117, 118. Governor Reynolds also 
says {Pioneer History, 304; My Own Times, 49) that Emsley Jones was 
hung at Kaskaskia in 1804 for killing a man named Reed, and that the two 
executions were the last in Illinois until 1821. Both statements are appar- 
ently erroneous. An Emsley Jones was indicted for assault and battery 
in 1806 (Randolph Common Pleas, 5 : 257) and the action abated by death of 



INTRODUCTION clxxv 

A man indicted for murder in the General Court was found guilty 
of manslaughter, and was sentenced to be branded with an M in 
his left hand — "which sentence," says the record, "was executed 
by the sheriff in open court, and proclamation being made as the 
manner is" he was then discharged. 1 Sentence was similarly 
executed upon a defendant in Cahokia. 2 Such punishment was 
wholly extralegal. 3 As further illustrations of extralegal pun- 
ishment it may be mentioned that in 1779 a negro was ordered 
burned at the stake in Kaskaskia, though the order was super- 
seded by one for hanging; 4 and that when a man was convicted 
(with his wife) of a "statutory offense" at Cahokia in 1794 it was 
"Ordered that . . . he be mounted on horseback with his face 
to the tail, and conducted through the town from the jail to the 
church door and then back to jail and then to be liberated," and 

1 Nelson Johnson (John Johnson his attorney, and James Johnson one 
of his witnesses)— Order Book, 1: 297, 299-305; convicted April 6, 1809. 
For another similar case from Harrison County in 1811 see Gibson, 
Exec. Journal, 176 n. In Baldwin (ed.), Two Centuries' Growth of 
American Law, 381, it is suggested that burning and branding would come 
within the constitutional prohibition of "cruel and unusual punishments." 
No doubt they might, today, be held to do so; but there were undoubtedly 
many instances of both after 1789. Branding was recognized in the statutes 
of Illinois Territory. See E. J. White, Legal Antiquities, 239-240, 242. 

2 Ante, clxxiv, n. 3. The other defendant there involved, and here 
referred to, was a white. 

3 The statutes of 1788, 1799, and 1807 punished manslaughter simply 
as at common law. 

4 McDonough, Hist, of Randolph, Monroe and Perry Counties, 94, 
gives Colonel John Todd's written order of June 13, 1779 to Richard Winston, 
sheriff of the District of Kaskaskia, in the case of Negro Manuel, slave : 
"after having made honorable fine at the door of the church, to be chained 
to a post at the waterside, and there to be burnt alive and his ashes scat- 
tered, as appears to me by record." And another slave, Moreau, was 
ordered to be executed about the same time at Cahokia {ibid., 94). The 
two orders for execution are also given in Chic. Hist. Colls., 4 : 302-303, 
where the name of the second convict is given as "Morace." But Governor 
Todd changed his order in Manuel's case to death by hanging — Alvord, 
Kaskaskia Records (I. H. C, 5), 97 and note. See also Alvord, Cahokia 
Records (I. H. C, 2), 12-21; cp. Reynolds, Pioneer History, 175, who 
dates these events as of 1790, and states that Moreau was hung, "Emanuel" 
shot. 



the defendant. I find no reference evidence of a capital crime by any such 
man. Mr. Webster, in Ind. Hist. Soc. Pub., 4: 232 quotes from the West- 
ern Sun an account of two indictments at Cahokia for murder in 1808; 
the defendant in one was an Indian, who was executed. The records of the 
St. Clair courts for this time are lost. 



clxxvi ILLINOIS HISTORICAL COLLECTIONS 

''Ordered that she lead the horse." 1 This was medieval practice, 
English as well as French, persisting on the Mississippi. 

Of crimes against the person, other than homicide, the only 
ones largely represented in the records are assaults and batteries. 
One rapist, convicted in the General Court, was fined $15 and 
sentenced to "stand in and upon the pillory at Vincennes" for two 
hours on each of two days, and lie in jail six weeks. 2 But Gov- 
ernor Harrison pardoned him. 3 Indictments were brought in 
the Illinois county courts for adultery, bastardy, and other sex 
offences ; 4 but it would be difficult to find legal basis for these 
proceedings. Indictments for assault and battery were more nu- 
merous than civil suits. Both were distinctly discouraged by the 
statutes ; so much so in criminal prosecutions that the complainant 
was made responsible for the errors of the state's attorney and 
grand jury, and equally for the leniency of the former in discharg- 
ing defendants. 5 It seerns reasonably safe to assume, considering 
the manners and customs of the southwest at that time, that the 

1 Frangois Quintett — Bateman and Selby, Hist, of St. Clair County, 
699-700. This passage is probably translated from the French. The authors 
presumably mean buggery. There was no statutory law governing this in 
1794. 

2 Joseph Michel— Order Book, 1 : 8, 10, 13, 21, 34-35, 37, 41-44 ; con- 
victed September 11, 1802. The jury included John Edgar, Shadrach Bond, 
and John Hays, of the Illinois country. 

3 Gibson, Exec. Journal, 112 (September 16, 1802). 

4 William Wilson (the surveyor) and Cole Beatt were indicted in 
the Randolph Quarter Sessions (Court Record 1802-06, 24, 31 — June 7 and 
September 6, 1803) for bastardy. The former was discharged; the latter 
was found guilty, and ordered to pay $40 to the complainant, $8 for "Lying 
Inn," and $8 quarterly for one year. The women were French. An indict- 
ment of William Goings for adultery (ibid., 22, June, 1803) was quashed. 
Goings was a picturesque old reprobate (Reynolds, Pioneer History, 182-183), 
quite prominent in the court records. As far back as 1797 he and George 
Adams were indicted for stealing Indian women (Bateman and Selby, 
Hist, of St. Clair County, 2: 700; compare post, ccx, n. 3). Ephraim 
Connor was indicted in St. Clair in 1799 "for being a nuisance in living 
with" another's wife (Bateman and Selby, op. cit., 701) . In St. Clair, in 
addition to the conviction in 1794 for "statutory offences" referred to ante, 
clxxv, there were other indictments in 1797. Bateman and Selbv, op. cit.. 700. 

5 Order Book, 1: 76, 91, 92, 94 (1803 Anthony Campbell, assault and 
battery upon a woman, but nothing to indicate a more serious offence) ; 62, 
72, 93 (1803, Joseph Scaffen, battery upon Pierre Gamelin, a leading citi- 
zen) ; 149, LSI, 164 (1805, Josias Carrico) ; 181, 193 (1806, Benjamin D. 
Price) ; 268 (1808, John Glass). In the Belleville Museum is a paper of a 
Circuit Court of October 31, 1808, showing a fine of 25 cents upon Guillaume 
Vaudry for a battery committed in 1806. Mr. Webster, "Harrison's Admin- 



INTRODUCTION clxxvii 

cases in court were not trivial, yet we find even the General Court 
imposing fines of $3.11, $2, $1, 25 cents, 1 cent — and costs — 
upon the guilty defendant. 1 It was quite the same, of course, 
in the county courts, with the remarkable exception that in Ran- 
dolph the heavy fine of $20 was imposed upon a woman for an 
assault upon another, apparently in a quarrel over the affections 
of a man. 2 

The only defendant charged with burglary, 3 and most of 
those indicted for larceny, were acquitted. One Philip Catt, in- 
dicted for theft, possibly turned upon the informant, for we find 

1 Costs could not be recovered in the civil action unless the verdict ex- 
ceeded $16.66 in the General Court or $6.66 in a county court {post, 41). By 
act of 1805 (post, 141) by which the cost of prosecuting in the past persons 
discharged or unable to pay was ordered paid by the counties, it was pro- 
vided that thereafter the name of the prosecutor, indorsed on the indict- 
ment, was essential to its validity, and if defendant should be acquitted or 
otherwise lawfully discharged the prosecutor should pay all costs, unless 
the court should think there had been reasonable cause for the indictment. 
See ante, xciv, n. 2. The prosecuting officer constantly dismissed or 
failed to prosecute. There was no attempt to control him. Compare, for 
example, post, cc, n. 6 ; Gilbreath paid $24.66 in costs. 

2 Randolph Court Record 1802-06—30 (1803, Mary Adams, assault 
on Mary Dunn ; defendant and Wm. Chaffin each bound in $100 to keep the 
peace) ; 60, 66 (1804, Miles Hotchkiss — see app. n. 74 — fined $5) ; Randolph 
Common Pleas, 5 : 107 ( 1807, Henry Levens "Esq" — see app. n. 67 — fined 50 
cents and costs; ibid., 4: 131 (1807, Jas. Henderson, for assault and battery 
upon a woman in her home, fined 25 cents and costs) ; 177 (a second as- 
sault by Henry Levens upon the same victim, Charles Hulsey, plea guilty, 
fine 25 cents and costs. The cause of these two assaults is clear : con- 
temporaneous with the first Levens was defendant in a civil action brought 
by Hulsey, discontinued, defendant paying costs (ibid., 4: 179). In St. Clair 
County — 1796, Marianna Arnouse, fined $1.50 and costs (Bateman and Selby, 
Hist. St. Clair County, 2: 701). 

Elizabeth Chribbs was indicted in 1806 for battery upon her husband, 
but the charge was dismissed. Daniel Bissel, Stephen Rumsey, and Eliza- 
beth Chribbs were indicted in December 1804 for attempting the life of 
William Chribbs — this must have been at common law, since the statutes 
did not cover the case; the men defendants could not be found. They had 
blown up the house with gunpowder (Randolph Court Record 1802-06, 71, 
94; Common Pleas, 5: 304, 306). The deed of gift quoted ante, clxv was 
made in September 1804. 

3 John Jessup — Randolph Common Pleas, 5: 308 (1805). 

istration," 214, cites various cases. It should be remembered that prices 
were high (see St. Clair Papers, 2: 317 n., figures for Kaskaskia in 1793) 
as compared with the east. Nevertheless, compared with those prices, or 
with the cost of tavern lodging (ante, cxxvii, n. 6), or with the rate of 
current wages (men were paid 25 cents daily to guard prisoners — but see 
ante, xxxvi ; and the regular witness fee was 25 cents daily) fines laid 
were absurdly and stultifyingly low. 



clxxviii ILLINOIS HISTORICAL COLLECTIONS 

Joseph Buchanan indicted soon thereafter for theft of corn from 
Catt, and the verdict was, "guilty of stealing corn to the amount 
of five cents" ! In accordance with the statute, not being able to 
make restitution of the corn, he paid ten cents to Catt, ten cents 
to the territory, and costs, thereby avoiding an alternative penalty 
of twenty lashes. 1 This is the only case found in which, for any 
offence whatever, whipping was included in the penalty, even 
alternatively. 2 Horse stealing is supposed to have been a com- 
mon crime — and probably it was, as on all frontiers ; but the only 
conviction mentioned was followed by a pardon from the gover- 
nor. 3 Hog thieves have left but a trace of their wrongdoing in 
the records of the courts. In the only case where the defendant 
was convicted the statute was not observed in the penalty im- 
posed. 4 Evidence of the operation of the misbranding statute is 
even scantier. 5 

1 General Court, Order Book, 1: 233 (April 1807). There are several 
other indictments in the General Court; one for stealing a cotton shirt 
worth $1.50, and one pound of tea worth $2.50 (ibid., 113, 120). In Ran- 
dolph only two indictments were found, both defendants found not guilty 
(Court Record 1802-06, 68, 69). 

2 In 1794, however, in St. Clair Auguste Bellecoure was given fifteen 
lashes for the nonpayment of a debt — Bateman and Selby, Hist, of St. Clair 
County, 2 : 700. Brink, McDonough, Hist, of St. Clair County, 61, intimate 
that whipping was common. This is extremely doubtful. 

3 In his message to the General Assembly in September 1808 (Mes- 
sages, 1 : 306) Governor Harrison refers to horse stealing as frequent on 
the southeast boundary of the territory. It was there, in Clark County, 
that one Ingram was condemned to death for the offence in 1807, but par- 
doned on the scaffold; this being the only sentence in that county under 
the statute — hid. Mag. of Hist., 4: 17. There were no cases in Randolph 
from 1802 to 1809. The records in St. Clair do not exist that would give 
an answer for that county. Apparently the law was ineffective. Monks, 
Courts, 1 : 145, 151, throws no light from the records of the Indiana coun- 
ties. (Houck, Missouri, 2: 203, cites a whipping imposed by the Spanish 
commandant at Cape Girardeau in 1799 upon a well-known inhabitant of 
Horse Prairie, near Kaskaskia, for horse stealing; restitution of the ani- 
mals, payment of costs, and 30 lashes — and 500 every time he should return). 

4 Thomas Drinnen, tried in the General Court, was found not guiltv 
(Order Book, 1: 100, 101, 104,115, 163; 1803-1805, including one jury dis- 
agreement). John and Benjamin Vermillion were found not guilty in Ran- 
dolph (Common Pleas, 5: 318 — 1806). Joseph Barns was convicted in Ran- 
dolph in 1806 of stealing a sow worth $10. The penalty was : payment of $20 
to the owner, and a fine of $50. If the first offence, the court should have 
imposed a fine of not more than $20 or not exceeding 39 lashes ; if a second 
offence, a fine of not exceeding $40 and a whipping (ibid., 316). 

5 One indictment only (Randolph Common Pleas, 4: 405 — December 
1808). Defendants misbranded a bull (worth $4), and unwisely chose 



INTRODUCTION clxxix 

Despite the scores of perjuries of which leading citizens were 
guilty, and likewise forgeries, according to the land commissioners, 
no indictments were brought except eighteen against Robert Rey- 
nolds; and neither in those, nor in the other cases of forgery 
discovered, was there a conviction. 1 Practically, therefore, the 
statutes on perjury and forgery were as empty homilies as the 
preachments of the Marietta code — without penalty attached — 
against profanity and sabbath breaking. 

The almost total ineffectiveness of the moralistic legislation 
of the territory — as to gambling, drunkenness, sabbath breaking, 
and profanity — has been already pointed out. 2 

Statutes under which indictments were relatively numerous 
were those forbidding purchases from Indians 3 without special 

1 Solomon Hays was indicted in the General Court for forgery of a 
deed; a capias and an alias were issued but apparently defendant got safely 
away. This transaction involved one of the Vincennes court grants referred 
to ante, lxvi. Hays sold 3,000 acres for $55 ; he had himself bought 66,000 
acres for a price unspecified (Order Book, 1: 60, 74, 75). Wilson Buttel 
was indicted in the Randolph Quarter Sessions (Court Record 1802-06, 
83 — March, 1805), and found not guilty. There was an indictment for 
forgery in St. Clair in 1796 — Bateman and Selby, Hist, of St. Clair County, 
2 : 700. Seventeen indictments against Reynolds were brought in the Ran- 
dolph Common Pleas in August 1806 (5: 261-301) and one in December 
1807 (ibid., 1). John Grosvenor was foreman of the grand jury, Robert 
Robinson state's attorney. The last in date was for forgery of the name 
of Pierre Menard ; two others were for forging the names of John Beaird 
and Nathaniel Hull. All were taken up by certiorari to the General Court, 
the seventeen in August 1807 and the other in December 1808. Under the 
law they must have been tried in the Circuit Court in Randolph; and as 
nothing of them appears in the Order Book of the General Court such pro- 
ceedings must have been final. But there are no records left of proceedings 
in these cases on circuit. However the penalty of conviction would have 
included the pillory and civil disability; and it is inconceivable that, if 
there was a conviction, no report of it should have survived. The files 
of the Western Sun have not been examined, but as Dunn, Mr. Webster, 
and others have examined them, and cite them on various subjects, it may 
be assumed that they contain no information. 

2 Ante, cxxiv et seq. 

3 James Gilbreath, before he became sheriff, was indicted for buying 
a cloth "called stroud" (Randolph, Court Record 1802-06, 59, 60, 66) in 
1804, but was found not guilty. Another indictment, with the same result, 
occurred in the General Court (John Small, 1800 — Order Book, 1 : 9, 13, 
26, 31). 



one belonging to the sheriff, James Gilbreath. The action was quashed, since 
the county court lacked jurisdiction to try felonies. Robert Robinson, as 
state's attorney, made the error. 



clxxx ILLINOIS HISTORICAL COLLECTIONS 

license, forbidding the sale of whiskey to Indians, 1 and pro- 
hibiting the sale of merchandise without license. 2 Add a few 
indictments for entering upon Indian lands, for not properly serv- 
ing a ferry, and for counterfeiting, and one has a complete view 
of the work of the courts in enforcement of the criminal stat- 
utes. 3 The only object of indictments under the license statute 
was to compel the taking out of licenses. 4 

On the whole, whatever might be thought of punishments 
theoretically possible under the statutes, it is impossible to find in 
their application anything of brutality. It might have been other- 
wise in an older community whose government was capable of 
enforcing its laws. In Indiana Territory their enforcement was 
imperfect in the extreme. It is merely characteristic, for example, 
that when — in one of the cases above cited — a prominent citizen 
was indicted for illegally selling liquor without a license, an equally 
prominent citizen and tavern-keeper, twice indicted in the pre- 
ceding year for sales of liquor to Indians (indictments quashed), 
was on the jury. It is no more surprising that in the very term 
when the latter was indicted for the second time he was again 
recommended to the Governor as a fit and proper person to con- 
duct a public house. It is necessarily unusual, but otherwise not 
surprising, that a few months later he should have been named 

1 Drusilla Turcotte, John Grosvenor, Miles Hotchkiss, and Joseph 
Archambeau — all tavern-keepers at one time or another, and presumably at 
the times when indicted — were defendants under this statute in Randolph 
(Court Record 1802-06, 21, 22, 23, 32, June and September 1803), and only 
Hotchkiss was found guilty. He was fined $5. 

2 In General Court — Joseph Barron, discharged (1803, Order Book, 
1: 80, 89) Ephraim Doolittle, fined 50 cents and costs (1803, ibid., 82, 88) ; 
Antoine Marchal, not guilty (1803, ibid., 81, 102). In Randolph James 
Gilbreath was found not guilty (Court Record 1802-06, 59, 60, 66) ; Joseph 
Benoke pleaded guilty, and was fined $1 and costs, and required to take out 
a license. 

3 Only one indictment for each of these crimes was noted in the 
General Court (Order Book, 1: 5, 13, 18 — Joshua Fleehart. 1801. plea of 
guilty, fined $30; 64, 91— John Small, guilty, fined $6; 230, 241, 242— 
outcome not discovered). But it should be noted that the cause of indict- 
ment frequently does not appear in the Order Book. It is therefore impos- 
sible to make conclusive statements. 

4 Thus in the above case of Joseph Benoke the costs were $9.83, 
the license could have been had in the beginning for $12. Had there been 
any other purpose, the fine of 50 cents — when taffia brought in 25 cents 
and brandy 37^2 per half pint — would have been ridiculous. 



INTRODUCTION clxxxi 

a, judge of the Common Pleas. 1 As for the penalties imposed 
for minor offences it can only be said that then, as today, no less 
and no more, the courts made the statute-book ridiculous by the 
fines which they imposed. 

Lynchings, and private vengeance less extreme in form, must 
have been more or less common, but the evidences of it seem to be 
scanty. 2 It is worthy of remark that in 1809 it was moved in a 
special court of oyer and terminer at Vincennes that the court 
"instruct the grand jury to find according to the truth of the case, 
as well in regard to the fact as the law arising on it." The court 
followed English authorities in rejecting the motion. 3 

The lack of secure jails was a cause of early complaint. 4 
Undoubtedly it largely explains the severity of the criminal code. 

1 Gilbreath case, ante, clxxx, n. 2. The juror was John Grosvenor, 
his indictments — Randolph Court Record 1802-06, 21, 32, 38. Several cases 
were noted of men who served on juries while themselves under indictment. 

2 Mr. Esarey says that such cases "often" occurred, particularly 
lynching of horse thieves — Indiana, 1 : 167. According to Bateman and Selby, 
Hist, of St. Clair County, 679, the people "often took the law into their 
own hands." Governor Reynolds says that the action of the regulators 
who put down counterfeiters in St. Clair County after the war of 1812 
(ibid., 737) was the first instance of lynch law in Illinois — My Own Times, 
113. Private vengeance, of which he gives earlier instances, was evidently 
not regarded by him as lynch law — e. g. Pioneer History, 286. Cp. Burnet, 
Notes, 57. 

3 General Court, Order Book, 1 : 298. Vander Burgh and Parke 
were the judges. They cited 2 Hale P. C. b. 157-159 ; 2 Ld. Raym. 1485, 
1574; 2 Stra. 166, 882; Foster, 255. Their argument was a careful one. 

4 In 1780 the military authorities at Kaskaskia gave the court leave 
to use the military prison "in case of necessity" ; but later in the same year 
Richard Winston wrote to John Todd from Kaskaskia : "as to our Civil 
department it is in but an indifferent way ever [since] the Military have 
refused us their Prison for which we off[ered to] Pay very handsomely" 
Alvord, Kaskaskia Records (I. H. C, 5), 152, 195. In 1782 various in- 
habitants petitioned the court to erect a jail, and the court ordered a general 
assembly of "all the French and American citizens ... to consider the 
erection of a jail, at which meeting none should be absent" — ibid., 286, 
290-291. Evidently nothing was done. The difficulty continued for years, 
and involved some problems of great gravity. It was one of the various 
subjects over which Judge Turner quarreled with Governor St. Clair and 
his other colleagues — St. Clair Papers, 2: 218-222; their correspondence 
shows that in 1791 there was still no jail at or near Ft. Washington, and 
that the military guard-house had been used more or less as a jail for civil 
prisoners up to that time. While St. Clair was in the Illinois country in 
1790 "orders were issued for erecting prisons and an assignment of lots 
to build them upon" — ibid., 2: 177. If these orders were the Governor's 
they were extra-legal ; but any way they were not observed. "Genteel 
Men" : — said James Piggott, presiding judge to his colleagues of the St. 



clxxxii ILLINOIS HISTORICAL COLLECTIONS 

A penitentiary was beyond the means of the territory: in the 
meantime, therefore, "adequate punishment" was relied upon. 1 
The frequency of escapes from such jails as existed is reflected in 
the early law fining negligent jailers, and making those who con- 
nived at escapes subject to the same penalties as the fugitive 2 — 

1 Harrison, Messages, 1 : 306. 

2 1792— Pease, Laws (I. H. C, 17), 80, § 1 (civil prisoners), 82, § 5 
(criminals) ; post, 259, § 5. It was modified by later law as regarded 
prisoners who gave bonds and were allowed the freedom of prison bounds 
(Pease, op. cit., 495; post, 258, § 3). Monks, Courts, 1 : 18, 29, assumes that 
the sheriffs actually aided escapes, being out of sympathy with the judges ; 
and states that the sheriffs, in the absence of jails, '"often" accepted bail on 
their own authority, which bail "frequently" was worthless. The law above 
cited of 1799 (Pease, op. cit., 495) was passed in December. In September 
Governor St. Clair stated to the legislature : "As the law now stands, the 
sheriffs are not answerable for the escapes of prisoners" — St. Clair Papers, 
2: 456. This is inexplicable. St. Clair seems to have been personally 
responsible) cp. his views in 1791, ibid., 2: 220, 221, with the law of 1792, 
Pease, 80) for the liability imposed upon sheriffs for escapes. 

Clair County Quarter Sessions in October, 1791 — "It is now one year and 
six months since this court set under an established constitution. And as 
yet we have not a prison in our county, for want of which the transgressors 
of the law pass unpunished . . . It is now about one year since I under- 
stood that there was a collection of money or property for buliding or re- 
pairing a house for a prison, and nothing further is done in that yet" — Bate- 
man and Selby, Hist, of St. Clair County, 2: 699. The first grand jury of 
St. Clair accordingly reported "that for the support of the laws and gov- 
ernment of our county the speediest means be taken to have a proper jail 
in this village" (Cahokia — ibid., 699). A statute of 1792 ordered the 
erection in each county of a courthouse (post, ccx, n. 2) and a jail — Pease, 
Laws (I. H. C, 17), 77. McDonough, Hist, of Randolph, Monroe and Perry 
Counties, 101, says that James Dunn, sheriff "prior to 1803" (really 1795- 
1800), built the first jail of Randolph County, which it bought for $270.35 
on July 12, 1803. In the records, from 1802 onward, I have noted no such 
transaction. Of course the sheriff's own house was ordinarily the jail. In 
petitioning Congress in 1803 for authority to tax Indian traders Harrison 
declared: "Every [other] object which would bear a Tax, and for [which] 
legal precedent could be found, has been sufficiently burthened to raise 
County Levies for the Erection of Jails, Court Houses, &c." — Messages, 1 : 
88. Stories of the use of rail fences by resourceful judges, for short but 
effective confinement of prisoners (confined with their necks under the 
bottom rail) appear in various books on Indiana. That the jails were still 
of little account in 1799 is apparent from Governor St. Clair's legislative 
address, St. Clair Papers, 2 : 456. "It would be proper," he concluded 
". . . to pass laws to compel the inhabitants of every county to erect 
proper jails and convenient court-houses." In Wayne County there seem, 
strangely enough, to have been jails; for petitioners to Congress, about 
1805, stated that, "persons capitally punishable are seldom prosecuted to 
conviction. They remain in confinement for the want of competent authority 
to try them," — ante, clvii, n. 2 — "until they are forgotten, when, with the 
assistance of their associates in guilt, they break their bonds, and deride 
from the opposite bank" — of the Detroit River — "the impotence of our 
magistrates" — Hist. Public, of Wayne Co. Mich., Nos. 1-2, p. 35. 



INTRODUCTION clxxxiii 

surely a statute of tremendous theoretical difficulties! Another 
aid to criminals was the poverty of the territory, which, according 
to a statement to Congress by Governor Harrison in 1803, made 
impossible "the Apprehension and prosecution of the most notori- 
ous offenders against the laws." 1 The uncertainty of bounda- 
ries, 2 and questions of the competence of a Territory in matters 
of extradition, 3 were further hindrances. 

A committee of which Governor Harrison himself, when a 
delegate in Congress in 1800, was a member, in a report on defects 
in the administration of justice, declared that the territory was 
an asylum for "the most vile and abandoned criminals." 4 Others 
have repeated and exaggerated the statement. 5 The unbridled 
independence of frontier life is possibly more productive of lesser 
crimes of violence than are the concentrated irritations and covet- 
ousness of more densely settled communities. This has never, 
however, been proved; and the idea rests upon more than one 
doubtful assumption. 6 But serious crimes of violence were cer- 
tainly not common, and crimes of the myriad forms assumed by 
fraud and cunning in cities were almost unknown. On the whole 

1 Messages, 1 : 88. 

2 Dawson, Harrison, 8 (Harrison to Secretary of War, 1801) ; Bur- 
net, Notes, 308-310. There was also a question of jurisdiction over roads 
leading through Indian lands : Harrison, Messages, 37-38, 43. 

3 Harrison, Messages, 1: 318. Monks, Courts, 1: 42, gives three 
instances of extradition. One of them is from Randolph, 1806 : that of 
Michael Squires charged with the murder of Abraham Stanley. Post, 83-84, 
is a special appropriation in a case of extradition. 

4 Report of March 3, 1800, Annals, 6 Congress, 1 session, 1321. 

5 Thus, Mr. Esarey speaks of "the great numbers of vicious men who 
came from the east to the borders to gratify their criminal natures" — 
History, 1 : 148. And Monks, Courts, 1 : 12, 19, speaking of the rarity of 
circuit courts, says : "Such a country, of course, soon became a rendezvous 
for criminals of the worst type . . ." 

"The West at that time was full of desperate criminals . . . Every 
frontier is largely a dumping ground for the social misfits of settled society. 
In the history of crime there are few worse criminals to be found than the 
professional horsethief. The Northwest was full of them . . . Counter- 
feiters . . . deluged the back country with their spurious products." 
The horse thief was, of course, no more than a frontier annoyance, though 
the penalty he suffered was often extreme, in proportion to the annoyance. 

6 Namely, that criminal impulses are rarer in "settled" communities ; 
that their expression is restrained by the mere presence of more numerous 
punitive agencies ; or at least by punishment. The penalties actually imposed 
upon lesser offenders in Indiana Territory could not have restrained anybody. 



clxxxiv ILLINOIS HISTORICAL COLLECTIONS 

the records would not support a contention that criminals were 
either numerous or active. 

The French were unquestionably more law-abiding than the 
Americans. 1 

The criminal law broke down completely where Indians were 
either defendants or complainants. Governor Reynolds says that 
it was "rather common" for the whites to hire Indians to kill per- 
sons they wished to get rid of. 2 But if one wished to kill an 
Indian it could be done without such roundabout proceedings, and 
with impunity. Both Governor St. Clair and Governor Harrison 3 
deplored the situation, but it was irremediable. The rather con- 
siderable legislation 4 designed to protect them against the horrible 
ravages caused among them by whiskey 5 was equally ineffective. 
Harrison's denunciation of the Indian traders, 6 his own exem- 
plary conduct as superintendent of Indian affairs, and his repeated 
efforts to secure justice to the Indians in the courts do him the 
greatest credit. An Indian accused was as much as convicted, 

1 Governor Reynolds says that the records of the courts "do not 
exhibit an indictment of a creole Frenchman for any crime higher than 
keeping his grocery open on a prohibited day of the week" {Pioneer History , 
126). This is an exaggeration; see ante, cxxv, n. 1; clxxvi, notes 1 and 
2; also Alvord, Kaskaskia Records (I. H. C, 5), 543. There were, 
presumably, very few non-Creole Frenchmen — J. F. Perrey and Pierre 
Menard being the most notable exceptions ; and the latter was a Creole, 
though of Quebec. It is barely possible that various French defendants 
indicted at different times were not Creoles. 

2 Pioneer History, 285. 

3 Smith, St. Clair Papers, 2 : 396-397, 503. See also Harrison, Mes- 
sages, 1 : 25, 199, 515, and post, clxxxv, n. 1 ; also Dillon, Indiana, 424 
n. Mrs. Goebel's discussion, Harrison, 96-97, is excellent ; she says, and 
apparently with entire justice, that "aside from the question of land policy 
Harrison tried to treat the Indians fairly" (95). The land policy — the 
encroachment of white settlement, the extinction of Indian title to old hunt- 
ing grounds — was, however, absolutely the crux of all difficulties, as Harri- 
son himself al times recognized; cp. his Messages, 1: 179 and 26-27. 

4 Ante, cxxx, n. 1. 

5 Harrison, Messages, 1 : 29, 154, 155 n. ; Dunn, Indiana, 124-125. 

6 Writing in 1802 to the Secretary of War he says that the trade, 
"with a few exceptions, is in the hands of the greatest villains in the 
world" — Messages, 1 : 44 ; also 32. "An act to regulate trade and inter- 
course with the Indian tribes, and to preserve peace on the frontiers' 7 
(March 3, 1795), Annals, 5 Congress, 3 session, 3956-3963, gives a view of 
many abuses sought to be corrected. 



INTRODUCTION clxxxv 

but the juries would not convict a white murderer of an Indian. 1 
Of course there were indictments in such cases, but the first con- 
victions — perhaps the first ever secured in the United States — were 
obtained in Indiana in 1824. 2 Such legal subtleties were naturally 
beyond the comprehension of the Indians. Their delivery of 
every Indian murderer of a white was rigorously exacted, but "no 
consideration on earth," as Governor Harrison confessed, would 
move them to deliver to our courts an Indian who killed another 
Indian. 3 

If one is left somewhat in doubt with regard to the criminal 
propensities of the pioneers, the records leave no room whatever 
for doubt with reference to their tastes for litigation. They make 
it abundantly evident that the general arbitration law, 4 the taxes 

1 Reynolds, Pioneer History, 304. "The Indian always suffers, and 
the white man never" — Harrison to the General Assembly, 1806 : Messages, 
1 : 199. See Dawson, Harrison, 31, for the statement that throughout the 
territory it was "the prevailing opinion that a white man ought not in 
justice to suffer for killing an Indian" ; St. Clair Papers, 2 : 327-329 for 
references to a mob attack upon Choctaws at Cincinnati in 1794; also a 
"Public Notice" issued in the Miami purchase territory in the same year 
by a committee acting for "many good citizens," offering rewards for 
Indian scalps. The county court at Cincinnati ignored the mob. When 
Judge Turner was in Illinois in 1795 two Indians were murdered in the 
presence of a militia guard, and in the custody of the sheriff to whom the 
guard had just delivered them. According to the Governor the Judge. took 
no steps to cause the arrest of the murderers, and although Judge Symmes 
later endeavored to secure the indictment of two inhabitants of St. Clair 
County whom "the most positive testimony" showed to be the murderers, 
no indictment even for manslaughter could be secured. Governor St. Clair 
proposed that fines should be levied upon the counties that failed to bring 
wrongdoers "to justice." See St. Clair Papers, 2: 344 n., 351, 374, 376, 
386 n., 396-397. Compare Houck, Missouri, 2: 209-214. 

2 On a case that arose in 1802 in Clark County, see Harrison, Mes- 
sages, 60; Monks, Courts, 1: 43-44 (possibly not the same case). James 
Red was indicted in the General Court in 1806 for killing Indian Rob (May 
26, 1806, Order Book, 1: 206 — no further entries noted). Harrison felt 
that a conviction was so important that he brought a lawyer from St. Louis 
to prosecute, but Red escaped before trial. A reward of $300 was offered 
for his capture, and $100 for the discovery of any accomplice, but in vain 
(Dawson, Harrison, 85-86; Gibson, Exec. Journal, June 21, 1806, 134). 
Smith, Early Trials, 51-53, 55-57, 176-179. 

3 Compare Messages, 1 : 131, 199, 223. 

* Pease, Laws (I. H. C, 17), 354; post, 349 (1807 Revision). The 
provisions for arbitration in the justices' courts have been referred to ante, 
cliii, n. 2. Arbitration was very characteristic of procedure under the 
French law; see Alvord, Kaskaskia Records (I. H. C, 5), 40, 384 n., and 
index s. v. "Arbiters" ; Illinois Country, 266. There is nothing whatever 
to indicate that the territorial statutes were a concession to French tradition. 



clxxxvi ILLINOIS HISTORICAL COLLECTIONS 

on process, 1 and the court fees taxed as costs (which in general 
were small) were all insufficient to curb the litigious character of 
the people. 2 Nor were the trivial damages recovered — trivial 
not only from our standpoint but judged by the conditions of that 
time — any more effective. 3 

The fees of the sheriff and of the clerk however caused 
much trouble. A law of 1808 recites that "whereas, numerous, 
and in some cases, just complaints do still exist among our citizens 
with respect to the exorbitancy of the Clerks' fees of the courts 
of record in this territory; and likewise that they are compellable 
by execution, to pay large sums of money for fees, without know- 
ing for what services they do pay: for remedy whereof" the 

1 Post, 31, 32, 201, 496 (1807 Revision), 649. For the early fee statutes: 
Pease, op. cit., 102 (1792), 170 (1795), 302 (1798); but these are taxed 
costs. The later laws are county taxes. The taxed costs in the Randolph 
County fees in 15 sample cases run between extremes of $8.35 in an action 
for $18 to $42.97 in one for $600. The clerk's fees were almost always the 
largest item; very rarely the sheriff's. In these sample cases the largest 
costs were: for the judges $3.34; clerk, $26.97; sheriff, $11.10; jurors, $3; 
witnesses, $0.75; attorneys, $5. Randolph Common Pleas, 4: (3), 263, 265, 
274, 303, 326, 335, 339, 353, 405, 413, 416, 432, 436, 438. For the fees 
prevailing in 1807 in all the states see Amer. State Papers: Misc., 1 : 656-700. 

2 Smith, Early Trials, gives some extraordinary examples, probably 
from the 1820's— pp. 11, 13, 19-21, 27-28, 59-60. Among them: action for 
sale of beef worth $0.25, final costs over $1100; for sale of a hoe, final 
verdict for plaintiff for $7, costs over $300. There are many cases in 
Randolph and St. Clair that were carried to the General Court, but in no 
case, probably, could the costs be calculated ; many passed through the 
Circuit Court, for which no data exist. The litigiousness of the Illinois 
communities is clearly indicated by other facts mentioned in the text. The 
fee system was open to many abuses. In the Randolph County Court Record 
1810 the account is given of Robert Morrison (94-98) as clerk of the Com- 
mon Pleas under Indiana Territory. His salary from December 31, 1807 
to March 1809 was $35 ; his claim for fees, $193.26. He made a claim "for 
swearing witnesses to the Grand Jury" ; denied, "it is an ex officio." In 
the same volume (99-100) are allowances, under Illinois Territory, for 
bringing a prisoner to jail, "keeping" him in jail, and paying jail guards 
to keep him there. There are various such instances in older records. 

3 Ante, clxxvi, n. 5 ; clxxvii, n. 2. 

Such statutes, in various states, were associated with the contemporary 
prejudice against lawyers — cp. Warren, Hist, of the Amer. Bar, 221, 223, 
etc. There are fairly numerous examples of arbitration in the records : 
e. g. — Randolph Common Pleas 4: 162 (Rebecca Shanklin v. John Beaird 
Sr., December, 1808). This was submitted to the award of five — three of 
them fellow judges of Beaird (John Grosvenor and Robert Reynolds, his 
close friends, for him ; John Edgar and Paul Herlston for plaintiff) ; later, 
Edgar and Grosvenor, and William Morrison as umpire, were ordered to 
make a final award, upon which judgment was given. 



INTRODUCTION clxxxvii 

clerks were ordered to deliver to the sheriff with the execution 
"a detailed bill of the costs in the said suit, from its commence- 
ment to its termination," and the sheriff must deliver the same 
to the debtor, and also a receipt when he paid. 1 

The same persons occur over and over, litigating debts until 
one wonders who ever paid voluntarily, and torts until one wonders 
more over the relation of neighbor with neighbor — for such they 
were in their little community, and nowhere more closely than in 
the records of the court. The French were far more prominent 
in the St. Clair than in the Randolph Court. 2 

With some remarkable exceptions all the common law actions 
are abundantly illustrated in the records. Trespass in assault or 
battery is far less frequent than one would expect (evidently self- 
help was the usual and sufficient redress), 3 and one therefore 
regrets the more that the verbiage of the action makes it impossible 
to distinguish the trivial from the grave; 4 the usual charge being 
of a battery "with swords, staves, sticks, and fists" at the least, 
with feet, knives, hammers, sledges, chisels, and guns not infre- 
quently, and sometimes "tomahaks," added for good measure. 
Nor are the damages given of much help, since — as already noted — 
damages for serious offences were often quite illusory. Trespass 
quare clausum fregit is decidedly rare. Trespass on the case in 
tort also occurs rather rarely, though instances of it occur for 
negligent performance, for conversion, for consequential harm in 

1 October 22, 1808— post, 649-650; compare 31, 32. 

2 In the St. Clair Order Book 1801-03 there are 36 litigants with 
French and 32 with British names (in some cases it is difficult to be sure, 
of course) ; 49 names occur more than once as plaintiff or defendant. In 
the index to volume 3 of the Randolph Common Pleas out of 109 names I 
should classify 20 as French. Of these 109 there are only 72 that occur but 
once as a party; the other 37 occur 114 times. 

3 Three cases in St. Clair in three years ; three (doubtless not an 
exhaustive count) in Randolph, 1798-1808. 

4 Judge Hoover (Ind. Quart. Mag. Hist., 2: 22), who settled in 
Indiana in 1806, describes a case of 1811 in which a juryman thought unduly 
harsh the charge of force and arms in an indictment for stealing a pocket 
knife ; the defendant, a boy, was found guilty, however. This case was 
remarkable in that Judge Parke traveled several hundred miles to try it, 
it being the only case on the circuit docket. (Smith, Indiana, 1: 200; 
Webster, Ind. Hist. Soc. Pub., 4: 214; and others mention this case). 



clxxxviii ILLINOIS HISTORICAL COLLECTIONS 

battery and in damming a stream, and for slander. 1 Case was 
almost invariably used for trover or assumpsit. Exceedingly few 
instances were noted of their use as independent actions ; evidently 
the attorney who dared so to use them was one both of sure knowl- 
edge and of courage. 2 By far the most common action was case 
on promises; and general assumpsit was very many times more 
common than special assumpsit. 3 The latter was rarely used, 
even when perfectly applicable, as where the declaration was on a 
note. Debt is less abundantly, but still well, illustrated — on for- 

1 Every case of trespass q. c. f . noted in Randolph was for entering 
and taking crops — only half a dozen; though probably the count was not 
exhaustive it indicates the rarity of the action. Not a case occurred in 
three years in St. Clair. No instance of trespass by cattle was noted in 
either county. Distribution of trespass on the case : for slander — half a 
dozen in Randolph, three in St. Clair ; for obstructing a stream, one in St. 
Clair; for negligent performance of an undertaking, two in Randolph (I, 
pi. 5; III, pi. 66 — the latter against an attorney) ; for consequential harm 
in battery, one in Randolph (II, pi. 9). Notes below as to conversion and 
assumpsit. In the mill case John Dumoulin alleged an expenditure of 
$6000 in 1800 in building a grist mill on a rivulet in St. Clair, and of $6000 
more in 1801 in building and furnishing "a mill house, race and tail race 
and all and singular the wheels and other running works of the said water 
grist mill." Negligence cases were probably everywhere rare at this time. 
C. Warren, History of the Harvard Law School and of Early Legal Condi- 
tions in America, 1 : 248 — the first in New York being of 1810. See also 
on the distribution of actions Baldwin (ed.), Two Centuries' Growth of 
American Law, 84; Brink, McDonough, Hist, of St. Clair County, 88. 

2 Only two instances were noted of assumpsit as an independent action, 
and one of trover, in Randolph; none of either in St. Clair. The first 
instances occurred in 1807, and Robert Robinson was the innovating attorney 
(IV, pp. 215, 254). His opponent, Rufus Easton (215), demurred on the 
ground that no such action was known. 

3 Trespass on the case on promises occurs in scores of cases. In 
St. Clair, 1801-1803, out of a total of 47 pleas, 39 were in case. In 12 of 
these the exact nature is not identifiable (the declaration is often omitted 
from the record in both counties). Two of the others are indicated in the 
preceding note. The other 25 included three for conversion; one on a 
note, the form of assumpsit not appearing ; two on notes in special assumpsit ; 
five on notes in general assumpsit ; fourteen others in general assumpsit on 
common counts. (The other 9 of the 47 pleas were 5 in ejectment and 
3 in trespass for battery, noted elsewhere). In Randolph the figures 
would not be different in their general nature. Only 13 cases of case in 
special assumpsit were noticed there, but not all declarations were read 
with care. In the St. Clair Common Pleas {Order Book 1801-03. pi. 30) 
is an action in general assumpsit by John Lyle v. Dennis Valentin for 
"divers medicaments Ointments fomentations and other necessaries by him 
the said John at the special instance and request of him the sd Dennis and 
his family [for the cure] of a certain Malady called . . . small Pox 
of which the said Dennis and his family as af S(i languished, found, pro- 
vided applied and Administered." 



INTRODUCTION clxxxix 

eign judgments, writings obligatory, accounts stated, notes, and 
(but more rarely) for goods sold and work done. Notes payable 
in peltries, lead, or other merchandise were of course very com- 
mon, the rarity of money being a matter of considerable mo- 
ment; 1 and they involved nice distinctions between debt and 
assumpsit of which in our moneyed age pleaders are safely ignor- 
ant. 2 

Not that the pleaders whom we are discussing were less so. 
Even the ignorant, armed with a form book that is the precipitate 
of centuries of practice, may seem learned, but they often 
slipped ; 3 and there was usually no one to take advantage of their 
fault. A statute of 1805 repealed the practice provision which 
required the true species of action to be indorsed upon the original 
writ or subsequent process. 4 

As might be expected such complicated matters as partnership 
scarcely leave a trace in the records. 5 What is truly remarkable 

1 Compare Harrison, Messages, 1 : 88. 

2 Typical notes : for "150 dollars in receiptable peltries" ; for "18 
bushels good merchantable salt" ; for "32 dollars in lead or merchantable 
peltries at current price" ; for "157 dollars to be paid in good merchantable 
salt at 3 dollars per bushel" ; for "50 dollars in peltry at 2-1-2 pounds per 
dollar." In one note sued in St. Clair, for 4,585 livres and 14 sols ($917.14) 
in peltry, these prices are given: deerskins, 25 cents per pound; raccoon, 
15; wildcat, fox, mink, wolf, 30; bear, $1.00; otter, $1.60. Notes for cash 
were also very common; perhaps more so. Only one action was noted in 
Randolph upon a bill — against the acceptor ; there may be others, but evi- 
dently bills were rare. 

s For example — 3 : pi. 75, entitled Trespass on the Case, is really 
debt (not indebitatus assumpsit) on a note — Rufus Easton was plaintiff's 
attorney ; 3 : pi. 81, 82, 83, all labeled debt, on sealed notes, were really 
framed in indebitatus assumpsit, and common counts were added in each 
declaration for goods sold — Wm. C. Carr was plaintiff's attorney; 4: 348, 
entitled debt, is really special assumpsit on a note ; 4 : 243, entitled trespass 
on the case, really trespass q. c. f. — Rufus Easton was plaintiff's (John 
Edgar's) attorney, John Scott demurred for defendant correctly, and action 
was discontinued ; 4 : 348, 350 — actions on notes entitled simply "Trespass," 
even by Robert Robinson (in 4: 348, though in 346 he used special assump- 
sit). 

4 Post, 104, repealing matter on 33. 

5 In Randolph one action of covenant was brought on a partnership 
agreement (for dealings in buffalo hides at $4 each — Common Pleas, 2: 
pi. 71). A case of partnership accounting between John Singleton and 
Isaac Darneille appears in the St. Clair Circuit Court of October 1808 as 
continued from 1807 (Belleville Museum) ; it had been in the General 
Court — presumably was there begun — and was sent down for an accounting, 
the auditors to report in September 1807; later proceedings in the General 



cxc ILLINOIS HISTORICAL COLLECTIONS 

is that no single instance was noted, in Randolph County, of re- 
plevin, detinue, or ejectment. It is curious, considering the elab- 
orate legislation of the territory regarding fences and branding 
of cattle and estrays, that no cases in trespass quare clausum 
fregit, detinue, or replevin should reflect the frontier conditions 
to which this legislation must have been responsive. The nonuse 
of replevin is, indeed, understandable, since the territory took its 
practice acts from states where that action had not been liberal- 
ized. But detinue, which has always been used in the southern 
states, whence so many of the immigrants and (at least some of 
the leading) lawyers came, one would have expected to find. 
Trover was used instead. As for ejectment, the explanation of 
its absence must be due to a wise wariness against judicial tests 
of the land titles. Quite aside from their almost universal inse- 
curity, there could scarcely have arisen any case in which members 
of the court would not have been, directly or indirectly, immedi- 
ately or remotely interested. In St. Clair Isaac Darneille used 
the weapon of Richard Smith and William Stiles effectively to 
secure several lots in Peoria. One of these suits was apparently 
against J. F. Perrey — who, if so, sat on his own case ; and there 
was notice by the casual ejector and writ of restitution in proper 
form. 1 In the other four cases, however, all recovered on de- 
faults against simple French citizens unrepresented by counsel — 
to whom an ejectment action would have been legal acroamatics 
beyond possibility of comprehension — the record causes one to 
suspect that Darneille may have gone back to the practice of Tudor 
times, recovering against Stiles without notice to the actual occu- 
pant. 2 He would undoubtedly have been capable of such clever- 

1 Order Book 1801-03, pi. 14. Rich. Smith dem. Isaac Darneille v. 
Wm. Stiles dem. J. F. Perrey. Stiles' notice is to "Mr. Francois La Pierre" 
the index is "Perrey" ; the writ of restitution (in the Belleville Museum) 
has "Francis La Pierre." This confusion is doubtless due to the copyist 
of the Order Book. Perrey's name occurs constantly in the records of the 
St. Clair courts. 

2 Unlike the case against Judge Perrey they do not show (pleas 
33-36) any notice to the actual occupant. On the other hand the writ in 
pleas 33 and 34, at least, ran in the names of the true parties, and the writ 

Court continued into 1809 (Order Book, 1: 246, 307, 322, 331). Equity 
bills for partnership accountings appear in the Randolph records of the 
beginning of Illinois Territory. 



INTRODUCTION cxci 

ness. 1 Two other ejectment actions were litigated in the General 
Court. 2 

Some judgments were for large sums. James O'Hara recov- 
ered one for $43,086, and another for $5,481, against Pierre 
Menard on foreign judgments. 3 But actions for above a thousand 
dollars were rare. The work of the General Court being mostly 
appellate, the sums involved in its cases were not greater. 

In the juries, petit and grand, there is a constant reappear- 
ance of prominent citizens. One day they litigated with a friend, 
the next day they gave a verdict on his quarrel with another. 
Lawyers appeared on the juries not infrequently. So, it may be 
added, did past sheriffs and future judges* — and in the Circuit 
Court the judges of the county court sat on the grand jury. 5 
Few French names occur in the jury lists of Randolph; a much 
larger number in St. Clair. 6 

As for the attorneys who practiced in the courts of the terri- 
tory, it would be difficult to find a law of any place or time more 
admirably expressing the qualifications proper to members of the 

1 See post, app. n. 81. 

2 Elliot ex. d. F. Vigo v. Buntin {Order Book, 29, 32-33, 71—1802-1803) 
is a complicated case. Judge Edgar was sued by Bartholomew Richard ; 
the case was continued six times, through three years, and was then settled 
out of court {ibid., 48, 74, 89, 102, 143, 153, 163, 174, 211). Reynolds 
{Pioneer History, 181) says, apparently of years even before 1800, "Eject- 
ment suits were common." 

3 Randolph Common Pleas, 1 : pi. 7 (1802), 71 (1801). 

4 James Finney and John Grosvenor, in particular, frequently served 
as jurymen in Randolph County. See ante, clxxxi, n. 1. 

5 In the Circuit Court held in St. Clair County in October 1808, the 
grand jury included James Lemen, William Whiteside, Nicholas Jarrot 
and Benjamin Ogle (Belleville Museum). The record of the Common 
Pleas does not exist beyond 1803 ; one cannot be certain which judges actu- 
ally sat in 1808. 

6 In eleven lists from three volumes of the Randolph Common Pleas 
there are 62 different names, only 3 French ; if twenty lists were taken 
the total number of names would be little increased. In three lists of 1801 
in St. Clair there are 31 names, 15 being French. 

of restitution in the Perrey case (unfortunately the only one preserved) 
was "against William Stiles and Francis La Pierre the supposed tenant 
in possession." The statutes of 1795 contained the usual modern enactment 
requiring notice by the tenant to his landlord — Pease, Laws {I. H. C, 17), 
281. The remark by Judge Gross upon this statute, 111. State Bar Assoc. 
Proc. (1881), 76, is curious. 



cxcii ILLINOIS HISTORICAL COLLECTIONS 

bar than a statute of the Northwest Territory of 1792 •} 
". . . .no person shall be admitted or practise as an attorney in 
any of the courts of this territory unless he is a person of good 
moral character and well affected to the government of the United 
States and of this territory and shall pass an examination of his 
professional abilities before one or more of the territorial judges 
and obtain from him or them before whom he may be examined 
a certificate of possessing the proper abilities and qualifications 
to render him useful in the office of an attorney. And further 
shall in open court have taken and subscribed the oath prescribed 
to all officers by an act of the United States and an oath in tenor 
following 

" 'I swear that I will do no falsehood nor consent to the 
doing of any in the courts of justice and if I know of an intention 
to commit any I will give knowledge thereof to the justices of 
the said courts or some of them that it may be prevented. I will 
not wittingly or willingly promote or sue any false groundless or 
unlawful suit nor give aid or consent to the same and I will conduct 
myself in the office of an attorney within the said courts accord- 
ing to the best of my knowledge and discretion and with all good 
fidelity as well to the courts as my clients. So help me God.' " 

This law was repealed in 1795, and attorneys left unregulated 
until 1799. A law of that year provided that a practising attorney 
of the territory, in whose office the candidate should have studied 
for four years, should give the certificate of his ability; that not 
less than two judges of the General Court should then examine 
him ; and only thereafter might he be licensed. Only "counsellors" 
could practice before the General Court, after being for two years 
an attorney and passing a second examination "on the theory of 

1 Pease, Laws (I. H. C, 17), 88-89 (August 1, 1792); repealed in 
1795, ibid., 257. No party was permitted to employ more than two attorneys, 
and only one if there should be only two attorneys available, and in no 
case might the fees of more than one be taxed. As the number of lawyers 
increased this provision against "cornering" legal talents became unneces- 
sary. There were various old colonial precedents for these statutes — 
Warren, Hist, of the Amer. Bar, 78, 218 (Mass. Statutes of 1715, 1785. 
1786) ; 52, 107 (same problem in Maryland, 1669, and Pennsylvania, 1709, 
but no statute; equitable relief — an injunction against the rich adversary — 
sought in the Pennsylvania case). 



INTRODUCTION cxciii 

law." 1 Members of the bar elsewhere in the United States were 
not excused from these examinations. 2 

The legislation of the Indiana Territory considerably weak- 
ened these provisions. Office study ceased to be prescribed; like- 
wise all examinations. A shorter residence, moral character, an 
oath, and a license became the requirements for admission. 3 
The requirements of the older law were ignored by Governor 
Harrison before their repeal or modification. Some good lawyers 
were unquestionably needed, but it cannot be possible, in view of 
the great number of attorneys admitted to practice, that the low 
admission requirements were necessitated by the circumstances of 
the territory. It is certain that few were well prepared, and of 
course some proved to be disreputable. 4 

1 Judge Gross, overlooking this statute, could not discover the dis- 
tinction between attorneys and counsellors, 111. State Bar Assoc. Proc. 
(1881), 74. In colonial times the distinction between attorneys and coun- 
sellors (or "barristers" in Massachusetts) existed in New York, New 
Jersey and Massachusetts; in the latter sergeants existed from 1755-1859; 
and the United States Circuit Court, First Circuit, recognized for a time 
after 1789 the classes of attorneys, counsellors, barristers and sergeants. 
See Warren, Hist, of the Amer. Bar, 85, 113, 202, 242-244. For the re- 
quirements for admission to the bar in Massachusetts about 1800 see ibid., 
196-200 and in other states, 200-202. 

2 Pease, Laws (I. H. C, 17), 340 (October 29, 1799). The admirable 
oath of 1792 was replaced by one shorter to mumble. 

s Post, 2 (January 20, 1801); 86 (undated— September 1803); 141 
(August 26, 1805) ; 340 (1807 Revision). Both Monks, Courts, 1: 20, and 
Webster, in Ind. Hist. Soc. Pub., 4: 192-193, misstate the act of 1799: it 
required four years of resident office study. That of 1803 permitted a single 
judge to examine and license. This was in turn repealed in 1805. The 
Revision of 1807 reenacted in part the law of 1799. It retained the require- 
ment of good moral character which was present in both the earlier statutes, 
but abandoned the requirement of examination. Under the act of 1799 
(§ 11) an attorney of any court of record in the United States could be 
examined at any time after a residence of one year in the territory for the 
degree of attorney, and could be examined for the degree of counsellor 
without prior residence. It was the former requirement that was repealed 
in 1801. 

4 The following admissions were noted in the Order Book of the 
General Court, volume one. George Bullitt (101, 105). William C. Carr 
(105) ; see post, app. n. 80. James Clark (101, 105). Isaac Darneille (59, 
already admitted as an attorney in the territory; 68) ; see post, app. n. 81. 
Rufus Easton (105) ; see post, app. n. 83. Rodominck Gilmore (39, 46) . James 
Haggin (17, 22, examination ordered; 25, license produced, oath taken; 
26, examination ordered) ; see post, app. n. 84. Robert Hamilton (2, exam, 
ordered : appears later in practice) ; see post, app. n. 85. Edward Hemp- 
stead (101, 105) ; see post, app. n. 87. John Johnson (56, produced license 
before examinations ; 59) ; see ante, cxii, n. 1. General Washington 



cxciv ILLINOIS HISTORICAL COLLECTIONS 

Whether the statutes of the Northwest Territory regulating 
fees were intended merely to regulate attorneys' fees taxable with 
costs, or to control the contract between lawyer and client, is not 
entirely clear; 1 but it would seem that both purposes were in- 

!The statute of 1792— Pease, Laws (I. H. C, 17), 110— reads: 
"Attornies fees to be allowed to the party recovering costs" ; that of 1795 
(170, 176) says, "No officer or person shall, at any time, exact or demand, 
for services hereafter to be rendered, any larger, or other fee than as 
hereinafter provided"; that of 1798 (302, 305) was "in addition to" the 
last-named act, and its own language indicates nothing. Limitation of con- 
tract fees was common in the colonies during the 1600's — Warren, Hist, 
of the Amer. Bar, 41-42, 53, 72, 121, 143. As fixed in 1795 and 1798 the 
fees were — in the General Court : retaining fees, $3.50 ; term fee, $0.75 ; 
arguing special motion, $1.25; trial fee, $1.50; brief (and copy or copies), 
$1.12; examining witness, $0.50; selecting jury, $0.62^; and lesser charges 
for every process, entry, bond, affidavit, service, motion, copy, notice, etc. 
In the county courts: retaining fee, $1; pleading ("where issue or de- 
murrer"), $1.50; term fee, $0.50; the other fees in General Court applying. 

The statutes of Indiana Territory began with modifications of the act 
of 1795 {post, 19, 31, 32) ; but in 1803 all the prior statutes of both the 
Northwest and Indiana Territories were repealed {post, 64) and a new and 
complete schedule established, under which attorneys' fees were very con- 
siderably raised (September 24, 1803; post, 46-63). This statute was sub- 
stantially unchanged in the 1807 Revision {post, 467-80) ; but by act of 
September 14, 1807 attorneys' fees in the General Court were again con- 
siderably reduced {post, 560-562). 

Johnston, John Rice Jones (2 — exam, ordered; 22, took oath); see ante, 
cxii, n. 3, and post, app. n. 10. Benjamin Parke (22, produced license 
as "counsellor" and took oath; 23, exam, ordered as "attorney") ; see post, 
app. n. 7. John Scott (105) ; see post, app. n. 93. Daniel Symmes (35, 
admitted upon prior admission to bar of Northwest Territory ; 43, admitted 
later as attorney!). John Taylor (105, exam, ordered) ; he later practiced 
in Illinois ; see post, app. n. 94. Beyond this point few names were noted. 
Among those later occurring are James Boyle (229, 241) ; Jonathan Jen- 
nings (232, 242). 

These citations reveal various cases in which the Governor gave licenses 
without heed to the law. They certainly show, also, an excess of men 
ready to act as lawyers and accepted as such. John Rice Jones, Washington 
Johnston, Benjamin Parke, Hamilton, Haggin, and Darneille were particu- 
larly active in the General Court. 

Attorneys especially prominent in Randolph and St. Clair in the earlier 
years of Indiana Territory were: J. Rice Jones, before his removal to Vin- 
cennes ; Isaac Darneille, James Haggin and Rufus Easton. Those most 
active in its later years were : Easton, Robert Robinson, John Scott and 
Nathaniel Pope. (Of these four Easton was least effective). Less prom- 
inent were John Rector, John Taylor, Henry Jones, Wm. C. Carr, William 
Hamilton, Robert Hamilton. None of these save the last was a strong 
lawyer (at that time in their careers, at least). 

All of the above appeared in Randolph. In St. Clair a far greater 
proportion of litigants appeared for themselves, but in almost all cases in 
which any lawyer appeared, between 1801 and 1803, it was Darneille or 
Haggin, or both. 



INTRODUCTION 



cxcv 



eluded. The fees established, seemingly extremely low, were not 
so when judged by the circumstances of the time. A few dollars 
as surveying fees sufficed to hold up for years the survey and 
patenting of lands, so poor were most of the citizens ; and taxes 
seemingly trivial were deemed by Governor Harrison to be a crush- 
ing burden. There is no doubt that attorneys' fees, unlimited by 
law, would have been a great impediment to the administration 
of justice. Even those fixed by the statute, assuming them to 
exclude all untaxed remuneration, would have mounted high in a 
protracted cause. 1 

In Illinois the lawyers seem to have relied almost wholly on 
local business, including the occasional circuit courts ; though some 
practiced also in the courts of upper Louisiana. Rarely did at- 
torneys resident in the eastern counties ride circuit in the Illinois 
country. Doubtless almost all were self-made ; apparently very 
few possessed a classical education, and probably only in rare cases 
legal training. 2 Few textbooks, and fewer reports, were available 
in the territory. We have the list of books owned by Samuel 
H. I. Young of Ste. Genevieve, left at his death in 1810, with their 
values as estimated by the clerk of the Randolph County Court 
and the actual prices which they brought when sold, and the names 
of the buyers. 3 The list of law books is worth reproduction : 

Appraised Sold Buyer 

at — for — 

Burns' Law Dictionary $2.50 

Criminal Law of Kentucky. . 2.00 

Beccaria on Crimes 1.00 $ 1.50 Andrew Scott 

Barton's Equity 1.00 

Powell on Contracts 2.00 4.00 Henry Breckinridge 

Graydon's Digest 2.00 2.25 Andrew Scott 

1 See ante, clxxxvi, n. 1. 

2 Compare ante, exciii, n. 4. Possibly conditions in Indiana were 
better; see Smith, Early Trials, 117-119, 122, 130. Woollen, Sketches, gives 
details regarding such men as Jonathan Jennings, James Noble, J. Brown 
Ray (pp. 29, 178, 56). 

3 Randolph Execution Docket, 1813-1822, at end, entered in reverse. 

In fourteen actions picked at random from volume four of the Randolph 
Common Pleas the fees for attorney were $2.50 in twelve; $5.00 in one; 
$0.50 in one. 



cxcvi ILLINOIS HISTORICAL COLLECTIONS 

Appraised Sold Buyer 

at — for — 

Little's Law & Equity 25 . 

Clerk's Magazine 75 .75 Hempstead 

Blackstone's Commentaries . 4.00 8.00 Thomas F. Crittenden 

Dec. of the Court of Appeals .50 1.75 John Rice Jones 

Espinasse's Nisi Prius 5.00 8.00 Thomas F. Crittenden 

Comyn's Digest (6 vol.) .. .18.00 25.00 Nathaniel Pope 

Gilbert's Law of Evidence.. 2.50 .... Rufus Easton 

Chitty on Bills 1.50 3.00 Andrew Scott 

Laws of Ohio 25 .... William C. Allen 

Laws of Louisiana 1.50 .... 

Laws of U. S. (6 vol.) 1.00 .... 

Pleader's Assistant 2.00 3.25 Rufus Easton 

Compton's Practice (2 vol.) . 3.00 5.00 Rufus Easton 

Caine's Prin. of Equity.... 2.00 5.25 Andrew Scott 

Morgan's Vademecum 2.00 3.25 Rufus Easton 

That the library was unusual is shown by the purchasers. 
In 1805, when James Haggin's career as a leading attorney col- 
lapsed, the sheriff levied on "twenty two law books" which he 
owned — evidently a large collection for the time. 1 

A law of 1808 required written opinions in the General 
Court, 2 and in two opinions rendered soon thereafter the court 
cited various English and two United States (federal) decisions, 
and one colonial Connecticut case; but whether at first hand can- 
not be known. 3 It is regrettable that so little remains of the 

1 Randolph Common Pleas, 4: 291. Smith, Early Trials, writing of 
Indiana about 1824-1826 when he was a circuit prosecuting attorney, says 
that Espinasse's Nisi Prius, Peak's Evidence, Phillips' Evidence, and Breck- 
enridge's Miscellanies were extensively used (pp. 19, 170). Fifty to a 
hundred volumes was, for that time, a very considerable collection. Warren, 
Hist, of the Amer. Bar, 161-164. 

2 Post, 663 (October 25, 1808). It was not obeyed — only a few 
opinions are given. Connecticut had made the same requirement by statute 
of 1785 — Warren, o/>. cit., 328 ("the first move towards the establishment 
of a record of American law"). 

3 Order Book, 313-316 (Ewing v. Hurst, Ap. 10, 1809), 316-319 (Hill 
v. Robert Morrison, same date). Copies of Blackstone were probably fairly 
common, for John Edgar and fellow petitioners cited Blackstone (1 : 424-425) 
in their proslavery petition of January 12, 1796 — ante, xxi, n. 1. The 
Connecticut case cited was Kibbe v. Kibbe, 1786 (Kirby, 119). 



INTRODUCTION cxcvii 

records of the court, for in one of these cases, the decision is not 
only an important one in the field of conflict of laws but refers 
to an earlier decision in the same cause which is of extraordinary 
interest. 1 

The idea prevails that the proceedings of the territorial 
courts were characterized by technicality. 2 Possibly this was so 
in Indiana — at least the stories told by Senator Oliver H. Smith 
of Indiana practice of a few years later, as compared with the 
practice then prevalent in Kentucky and Ohio, support such views 
regarding Indiana special pleaders. 3 So far as the court records 
of the Illinois country show, there is little visible basis for such 
generalizations. Doubtless litigants disliked the cost and delay 
of procedure — they always will; but both were apparently low. 
Doubtless there were shysters ; and — among self-educated prac- 
titioners who learned a few books more or less by heart — there 
were inevitably pettifoggers. But the truth is, evidently, that 
lawyers and judges did not know enough law, in most fields, to 
be technical. Relatively speaking, pleading is an exception ; form 
books are easily copied, and there is some good pleading. 4 But 

1 Namely : "This court decided at the last term that an action of 
debt would lie on the decree of the Court of Chancery" of New Jersey. 
See W. W. Cook, "Powers of Courts of Equity," Columbia Law Rev., 
15: 116-118, 237-242. The final decision (Hill v. R. Morrison, ante, cxcvi, 
n. 3) was that the New Jersey decree was not to be treated as a foreign 
judgment in regard to an inquiry into the original merits of the New Jersey 
proceedings. 

2 Esarey, Indiana, refers (1) to "the delays and expenses of pro- 
cedure" as wearing out the patience of the pioneers ; and says (2) that 
"the courts, then even more than now, were hide-bound by precedents and 
technicalities. [3] Juries, under the influence of eloquent lawyers, were 
disposed to do substantial justice. But [4] there were plenty of pettyfogging 
shysters who took advantage of the technicalities and delay of the law to 
rob the unwary or evade justice" (pp. 167, 171). And again, in Monks, 
Courts, 1 : 15 : "These minor courts," — the county courts — "which ought 
to have been as free as possible in their action, were limited [5] by all the 
formalities of the Common Law and many to which the Common Law was 
a stranger." Statements (2) and (5) are certainly quite wrong; (3) seems 
naive; I know of no special evidence supporting (1) and (4) — they would 
be more or less true of any period of law. 

s Early Trials, 43, 46, 47, 160-161, 170-171. 

4 The appearance of John Scott, Robert Robinson, Nathaniel Pope, 
and Rufus Easton immediately changed the appearance of the Randolph 
records. Before them there was no pleading worth the name. In St. Clair 
James Haggin and Isaac Darneille were adroit but far less sound. Impor- 
tant clients, like Bryan and Morrison, took these younger men up immed- 



cxcviii ILLINOIS HISTORICAL COLLECTIONS 

even there countless openings for technical wrangles were over- 
looked. Some of the stock stories used to illustrate the technical 
pedantry of the courts could only have been true, in civil cases, 
of later times when the territorial statutes had been abandoned, 
since they directly contradict these. 1 There are no records of 
the evidence admitted. 

Of the members of the territorial General Court something 
has already been said. In the main they seem to have attended 
zealously to their duties. Thomas T. Davis, however, was cen- 
sured in 1807 by the grand jury of Knox County for his failure 
to attend the court during two successive terms. 2 It was also 
necessary, at least once, to adjourn a session of the court, 3 pre- 
sumably in order to secure the attendance of two judges. 

Their salaries were very meager. Under the Northwest Ter- 
ritory, and at first under the Indiana Territory, 4 they received 
$800. With good reason Judges Symmes and Turner had com- 
plained to Governor St. Clair, when their circuits extended from 
Marietta to Kaskaskia and from Cincinnati to Detroit, that the 
allowance was not "of that ample nature which the duties of the 
office and the expenses, fatigues, and danger unavoidable on these 
wide-extended circuits, seem in our opinion to require." 5 The 

1 Senator Smith, op. cit., 160-161, and Monks, Courts, 1 : 151-152 relate 
a story of a judge who discouraged technical objections such as these: 
that the defendant was indicted as "John" but was really "John H.," that 
the animal involved and described as a "horse" was really a "gelding," and 
that no value was laid. So far as regards criminal cases even laymen 
probably know that such cases do not show more technicality than existed 
almost yesterday in Illinois (and others of the United States) in the cause 
of saving criminals. But as regards civil causes most of such obstructionism 
was curbed by the very liberal statute of jeofails already referred to (ante, 
-clxviii-clxix). 

2 General Court, Order Book, 1: 232, April 8, 1807— terms of Sep- 
tember, 1806 and March, 1807. 

s Post, 551. 

4 Amer. State Papers: Misc., 1: 260, 305. 

5 Smith, St. Clair Papers, 2: 188 (1790). 



iately, and shifted from one to the other as any one seemingly established 
his superiority. The earliest recorded deeds have the swollen verbosity 
of Anglo-American tradition; see e. g. Brink, McDonough, lifts*, of St. 
Clair County, 86-87, for examples. Compare, too, a French manumission by 
B. Tardiveau (a very prominent citizen) in four lines, with one in English 
(of which John Rice Jones was witness, and probably draftsman) in twenty ! 
Ibid., 87, 88. 



INTRODUCTION cxcix 

circuits, though somewhat shorter later, were more regularly trav- 
eled, and the situation was not eased. Efforts made to raise the 
salary were vain until 1807, 1 when the salaries of judges in all 
the territories were raised to $1200. 2 Special remuneration (of 
$300 each) was also given them for their services in drafting — 
"after a lengthy and laborious Session, under many difficulties" — 
a half dozen laws for the District of Louisiana, organizing the 
government, and holding a court therein. 3 

The judges under the Northwest Territory were all heavily 
and — at least to one who looks back upon them — embarrassingly 
involved in land speculation. 4 In considering the smirch left by 
land deals upon the county judges of the Illinois country it is 
necessary to remember this fact ; as also, indeed, the fact that the 
first settlement of the Northwest Territory was accompanied by — 
or perhaps one should say, more properly, initiated by — contribu- 
tions to the financial needs of land speculators in Congress. 5 It 

^Annals, 8 Congress, 1 session (1803-1804); 9 Congress, 1 session 
(1806). 

2 Mississippi, Indiana, Michigan, and Louisiana — Annals, 9 Congress, 
2 session, 1272, act of March 3, 1807 ; for proceedings, index s. v. Mississippi 
Territory. 

3 Harrison, Messages, 1 : 170-171, gives their petition to Congress of 
November 10, 1805. Not only Governor Harrison but Judges Vander Burgh, 
Griffin, and Davis all went to the District — Houck, Missouri, 2 : 382. Pro- 
ceedings in Annals, 9 Congress, 2 session. Harrison's claim was for services 
up to October 1, 1804. On that day he arrived at St. Louis as Governor 
(Messages, 1: 113 n.). Presumably, then, he received thereafter $2000 as 
governor of each territory. Houck, op. cit., 379-381, gives a summary ot 
these laws. 

4 See ante, civ, n. 2 ; clix, n. 2. Judges Parsons and Symmes 
were directors in the Ohio Company which held some 900,000 acres. 
Symmes was the purchaser for the Miami Company (holding about 250,000 
acres). Amer. State Papers: Public Lands, 3: 459; 4: 909. Harrison was 
a son-in-law of Symmes, but apparently not involved in his land deals. See 
Hulbert, Records of the Ohio Company, introduction. General Putnam, 
General Parsons, and Secretary Sargent were all active; indeed, leaders in 
the company. Mr. Bond says of the appointments of Symmes and Putnam : 
"As the judges exercised final jurisdiction in land disputes, these two ap- 
pointments caused much criticism. Journals of Cont. Congress, February 
19, 1788 [MSS], vol. 38; Annals of Congress, I, 64; Proceedings, New 
Jersey Historical Society, 2d Series, V. 23, 26, 43 (note VI)"— B. Bond, 
John Cleves Symmes, 38 n. 26. 

5 St. Clair became governor, Winthrop Sargent secretary, and General 
Parsons chief-judge as a result of arrangements growing out of the land 
speculation in which members of the Continental Congress and their friends 
were interested. The sources can be found through Dunn, Indiana, 216-218. 



cc ILLINOIS HISTORICAL COLLECTIONS 

has already been noted that the court was distrusted because of 
their entanglements with the great land companies of the territory. 
Governor St. Clair complained, but he too speculated. 1 Judge 
Turner had to be ordered off of a military reservation, and warned 
that a judge of a federal court should set an example of respect 
for government. 2 

Whatever the weaknesses of the court under the daughter 
territory, its members were not similarly tied to any special "in- 
terest." Some shadow seems to hang about Judge Vander Burgh 
in regard to liquor sales to Indians. 3 He was also the only mem- 
ber who engaged heavily in the land trade. 4 And he was guilty 
of some slight administrative irregularities. 5 John Rice Jones, 
after he had ceased to be attorney-general but while a member of 
the Legislative Council, was indicted at least twice, once for mal- 
feasance as attorney-general ; although found not guilty. 6 Henry 
Hurst, clerk of the court throughout the territorial period, was 
indicted for accepting from a prisoner in the county jail a fee for 
serving him as an attorney, although he was also then retained 
as prosecutor for the government ; and for having failed to prose- 
cute the prisoner. He was found not guilty. 7 But we may note 
again the statute which specifically forbade the clerk of the Gen- 
eral Court to practice as an attorney. 8 

Of the judges of the Randolph County Courts of Common 
Pleas and Quarter Sessions who were appointed upon the creation 

i St. Clair Papers, 1 : 194. 

2 Ibid., 2 : 212 n. 

3 See post, app. n. 3. 

4 Ante, lxxxvi, lxxxvii. 

5 He acted as the deputy of the deputy of the clerk of the Knox 
County Court; see St. Clair Papers, 2: 326, 330. 

6 Post, app. n. 10, for the latter case. In the Belleville Museum is 
an undated record of the Circuit Court, almost certainly of 1808, in which 
a case of U. S. v. John Rice Jones was dismissed, "by reason that the 
prosecutor N. Jarrot will not farther prosecute." In the other case (General 
Court, Order Book, 1 : 270, April 6, 1808) he was found not guilty. It 
was upon statements by Henry Hurst (next note) that Judge Parke relied 
in joining with Harrison and others in the petition to the President to have 
Jones removed from the Legislative Council. 

7 General Court, Order Book, 1: 44, 52, September 1802. The prisoner 
was taken for larceny from John Small — ferry keeper and local politician 
and former sheriff (Monks, Courts, 1 : 11) ; and after the trial Hurst was 
put under bonds to keep the peace with Small for three months. 

s Pease, Laws (I. H. C, 17), 343-344; post, 342, § 6. 



INTRODUCTION cci 

of Indiana Territory, four — John Edgar, William Morrison, Pierre 
Menard, and Nathaniel Hull — had been members in the preceding 
period of the Northwest Territory. Morrison rarely sat after 
1801, nor Hull after 1803. Edgar was active until 1805. Of these 
men Nathaniel Hull was probably the most valuable. None were 
reappointed to the new Common Pleas created in 1805, when the 
other county courts were abolished, except Menard ; but Hull was 
then near death. Of the other judges appointed under the first 
grade of government but not recommissioned when the county 
courts were reconstituted in 1805, John Beaird and Robert Mc- 
Mahon were certainly men of better character than John Gros- 
venor and (most decidedly) Robert Reynolds. Reynolds was 
much the most active in the court. The term of appointments 
made by Governor Harrison in 1800 and in 1805 was presumably 
in all cases for good behavior. 1 

Somewhat difficult to explain is the fact that two judges fre- 
quently sat after the creation of Indiana Territory who were not 
commissioned by Governor Harrison in 1800 in the reconstitution 
of either the Quarter Sessions or the Common Pleas : Antoine 
Louviere and Jean Baptiste Barbau. The former does not appear 
after the spring of 1801, but the latter frequently sat down into 
the summer of 1803. The probable explanation of this is the 
confusion, already referred to, between the jurisdiction of justices 
of the peace and that of justices of the county courts. 2 Both 

1 See Harrison, Messages, 1 : 23, 182 (or Chic. Hist. Colls., 4 : 168, 171- 
172) for the commissions of Pierre Menard of 1801 and 1805. It was resolved 
by the governor and judges of the Northwest Territory in 1795 "that where 
persons sufficiently learned in the law can be found to fill the benches of 
the courts of Common Pleas, it would be the safer way to commission them 
during good behaviour." Pease, Lazvs (I. H. C, 17), 288. Apparently it was 
assumed that all commissioned met this test, and Governor Harrison followed 
the example of St. Clair. See ante, xix, notes 2 and 3 ; cp. Reynolds, 
My Own Times, 67. 

2 See ante, cliv, n. 1 ; clxi. We find Barbau sitting in both 
county courts — in Quarter Sessions down through 1805 at least. In fact 
he was appointed justice of the peace on October 27, 1801 ; though it does 
not appear whether one of the quorum. When the Quarter Sessions were 
abolished in 1805, new appointments must have been made to the Common 
Pleas ; but evidently no commissions theretofore issued to justices of the 
peace were withdrawn. Louviere was not even commissioned a justice of 
the peace under the Indiana Territory. Similarly we find James Finney, 
who was appointed a judge of the Common Pleas on October 7, 1807, acting 
also as "Justice of the Peace" {Common Pleas, 4: p. 118, 120, 285) ; al- 



ccii ILLINOIS HISTORICAL COLLECTIONS 

of them, however, had rendered judicial service in the period o£ 
Virginian supremacy; and it is barely possible that such appoint- 
ments, during good behavior, may have been regarded as entitling 
them to sit in the courts of the Northwest and Indiana Terri- 
tories. It is also a curious fact, and even more difficult to explain, 
that months before John Grosvenor and George Fisher were ap- 
pointed to the Common Pleas or Quarter Sessions under the In- 
diana Territory, and without any appointment thereunder as 
justice of the peace, they sat as judges of the Common Pleas ;* 
which might be due either to an appointment as justice of the 
peace (under the Northwest or the Indiana Territory) — of which 
there is no trace — or to a judicial appointment by Harrison un- 
noted in the Executive Journal — which seems improbable. 

In St. Clair County, similarly, William and Uel Whiteside 
sat in the Orphans' Court, which only justices of the Quarter 
Sessions had authority to do. But they were never appointed 
such, nor is there any evidence that William was even commis- 
sioned as justice of the peace. 

In the new Common Pleas after 1805 only two judges were 
at first appointed — Menard and Michael Jones. The latter, how- 
ever, apparently never sat; undoubtedly he resigned because he 

1 Fisher was appointed to both courts January 7, 1804 (Gibson, 
Exec. Journal, 122) ; his first appearance noted in the Quarter Sessions 
is on April 10, 1804 (Randolph Court Record 1802-06, 54) ; but he was 
sitting in the Common Pleas in 1803 (e. g. 2: pi. 3, June, 1803; 5, September, 
1803). Yet if sitting simply as a justice of the peace one would have ex- 
pected him to sit, more certainly, in the Quarter Sessions. Hence it is 
possible that there is an omission in the Executive Journal. Similarly, 
Grosvenor was appointed to both courts on February 16, 1805 ; but we find 
him sitting in 1803 and 1804 in the Common Pleas (4: p. 267 — September 
1803; 2: pi. 35— March, 1804). 

though the Executive Journal does not show that he was so commissioned, 
and although acting as such after 1806 would have been in violation of a 
statute. In an action of Charles Gratiot v. John Rice Jones in 1800 (ibid., 
2: pi. 41), defendant craved oyer of the writ which concluded, "Witness 
John Edgar Esquire first Justice of our said court at Kaskaskia aforesaid 
the fifteenth day of July in the year . . . one thousand eight hundred." 
He then prayed judgment, pleading that Edgar — who was appointed to both 
courts of the county on August 1, 1800 — "was not at that day a Justice of 
the said court of common pleas," etc. The Court gave defendant time "to 
imparle herein" until the next term ; the cause was then continued to a 
third term; and, the plaintiff not appearing, he was nonsuited. Edgar's 
judicial status under the Northwest Territory was regarded, doubtless, as 
continuing until appointment of a new court actually displaced the old. 



INTRODUCTION cciii 

had already discovered how deeply members of the court had been 
involved in the land frauds. To this involvement one also naturally 
attributes the nonreappointment of Edgar, Morrison, and Rey- 
nolds. George Fisher was promptly named in place of Michael 
Jones, and also Samuel Cochran. Later James Finney replaced 
Cochran. All three of these judges were active in performance 
of their duties. There are blemishes upon the record of Fisher, 1 
but none upon that of the others. Rarely, judges of the pre- 180 5 
court apparently sat in the court of later years. 2 

In the courts of both Randolph and St. Clair counties the 
judges were the most persistent litigants. In one volume of the 
Randolph pleas ten of them occur as plaintiff or defendant forty- 
two times ; the sheriff, a former sheriff, the coroner and the clerk 
of court appeared — this was decidedly below their usual showing — 
only once each. 3 In the forty-one pleas of another volume sixteen 
of the parties come from the same list. 4 In another volume all 
except Menard and Jarrot appear, and seven of them appear a 
total of twenty-six times. 5 Two only of the Randolph judges 
never appear as litigants: James Finney and Samuel Cochran. 6 
The statutes forbade any judge or other officer of court to prac- 
tice as an attorney in the county of his office. 7 But they some- 

1 Ante, cxx. 

2 E. g. in Common Pleas, 5: p. 77 (March, 1806), John Beaird, 
Robert Reynolds, and John Grosvenor all sat. An easy — and presumably 
the correct — explanation of such cases is that the case began in the old 
court, and that the record is not made up to show this fact. 

3 Randolph Common Pleas, vol. 3; Judges William Morrison (12 
times — 11 as a member of his firm), R. Reynolds (9), G. Fisher (5), N. 
Jarrot (5), J. Grosvenor (3), P. Menard (3), J. B. Barbau (2), J. Du- 
moulin, J. Edgar, J. F. Perrey (1 each). Other officers: Jas. Gilbreath, 
Jas. Dunn, W. Kelly, R. Morrison. 

4 Vol. 2: G. Fisher (4), W. Morrison (3), R. Morrison (2), W. 
Kelly (2), R. Reynolds, J. Dumoulin, J. Grosvenor, J. B. Barbau, J. Gil- 
hreath. 

5 Vol. 5 : W. Morrison, 6 ; R. Reynolds, 7 (not counting 18 indict- 
ments against him); G. Fisher, 3; J. Grosvenor, 2; J. B. Barbau, 2; J. 
Edgar, 4; R. Morrison, 2. In addition there appear J. Beaird (2) and R. 
McMahon (2). The number of appearances of the other judges was not 
noted, nor those of any judges in volumes one and four. But all would 
tell the same story. In St. Clair, in 47 pleas of 1801-1803, J. Dumoulin ap- 
pears 6 times; N. Jarrot, 2; J. F. Perrey, 1. 

6 Also Michael Jones, but apparently he never sat with the court. 

t Pease, Laws (I. H. C, 17), 344, § 7 (1799); post, 342, § 6 (1807 
Revision) . 



cciv ILLINOIS HISTORICAL COLLECTIONS 

times practiced in another county, and in the St. Clair Common 
Pleas several of the judges appeared for themselves, both as plain- 
tiffs and defendants, before the court of which they were mem- 
bers I 1 The Randolph judges were eternally litigious but they 
invariably hired lawyers to appear for them. However, lest their 
lawyers make a mistake, some of them frequently sat as judges in 
their own cases. 2 The same thing also happened in St. 
Clair. 3 

Judged by present-day standards of spelling, of course most, 
if not all, of the county judges seem but semi-literate. 4 No evi- 

1 In the St. Clair Order Book 1801-03, George Fisher appears in plea 
No. 3 for himself and John Fisher. John Dumoulin appeared for himself 
in pleas 4, 5, 16, 18 (semble) — but not in 23. J. F. Perrey appeared for 
self in plea 7, and defaulted in plea 14; Nicholas Jarrot appeared for him- 
self in plea 16. The statute of 1799 (then governing) read: "No person 
shall . . . practice as an attorney at law, by instituting, conducting or 
defending any action . . . who is not a citizen ... (of the territory) 
or who holds a commission as a judge of the general court; nor shall . . . 
a judge of any court of common pleas . . . practice as an attorney or 
counsellor at law in the county in which he is commissioned or appointed." 
In the St. Clair Orphans' Court, Perrey, George Atchison, and Shadrach 
Bond appear as administrators of estates before their own court — "off the 
Bench," then "back on the bench" (pp. 21, 22, 30, 43). 

2 Ante, cciii, notes 3, 4 and 5, include all of the cases (in the 
volumes cited) to which the persons named — judges at one time or 
another between 1801 and 1809 — were parties. The present note, of course, 
refers solely to cases brought or determined when they were actually mem- 
bers of the court. Out of 13 cases to which W. Morrison was a party he 
sat in 12 not at all — neither during the hearings nor when judgment was 
rendered ; in 1 he was on the bench only when hearings were in progress ; 
in none did he join in judgment. The corresponding figures for other judges 
were: J. Edgar— 8, 1, 0; J. B. Barbau (if he is to be regarded as a member 
of the court in March, 1805) — 1, 0, 0; J. Grosvenor (if he is to be so 
regarded in December 1806 and August 1807)— 3, 0, 0; P. Menard— 5, 1, 2— 
with two additional doubtful cases ; G. Fisher— 0, 2 (once plaintiff, once 
defendant, both discontinued), 3 (judgment for Fisher in all three cases) — 
also one doubtful case; R. Reynolds — 1, 3 (once plaintiff, twice defendant, 
all discontinued), 6 — with two additional doubtful cases. The doubtful 
cases are where the clerk started to write in the name of the judge in 
question, then stopped; or wrote it but it is marked out. 

3 In the three cases of 1795 against John Dumoulin (post, ccvi), Jean 
Baptiste Barbau presided, coming from Prairie du Rocher for the purpose — 
May Allinson, 111. State Hist. Soc. Trans. (1907), 291. N. Jarrot sat in 
one case in which he was defendant ; it was continued to another term. 
St. Clair Order Book, 120. In another case "Nicholas Jarrot Esquire comes 
down the bench and was admitted to enter special bail" for the defendant. 
Ibid., 60. William Biggs did the same. Ibid., 76. As for J. F. Perrey 
see supra, n. 1. 

4 For example, in the Randolph Miscellanies Box is this note by 
George Fisher — leading physician, legislator, and judge: 



INTRODUCTION ccv 

dence has been seen that any of them had schooling, or owned 
or read books. They made, as Governor Reynolds said, "no pre- 
tention to law-learning; but were about similar to the best of our 
Justices of the Peace" seventy-five years ago, when he wrote. 1 
It was, of course, difficult to find good men. Governor St. Clair's 
utmost hope was that there should be one lawyer on the bench 
"where their decisions are final." He complained of the ignorance 
of courts and juries. 2 

The same complaint might have been made — of the same 
judges and the same juries, speaking generally — under the Indiana 
Territory. Necessarily few illustrations of monumental ignorance 
or extravagantly bad law have been preserved. Senator Oliver 
H. Smith's stories are from somewhat later years. He tells of an 
indictment for theft of a log-chain quashed because the words 
"then and there being found" showed that the remedy should 
have been trover; of a defence under the statute of frauds over- 
come by reading the constitutional provision that no state shall pass 
a statute impairing the obligation of contracts; of a day of ad- 
verse British authorities overcome by reading the Declaration of 
Independence. 3 Governor Reynolds' story of an indictment 
brought in Prairie du Rocher for the murder of a hog 4 is not 
at all surprising, for we have seen that even in later years the 
French judges could not understand the statutes until translated. 

1 My Own Times, 66. Doubtless this has a special reference to the 
Quarter Sessions, and justices of the peace who were or were not of the 
quorum — ante, clxi. 

2 St. Clair Papers, 2 : 415. 

3 Early Trials, 46, 62, 122-123. Also 55 (on habeas corpus). As re- 
gards the British authorities, see Warren, Hist, of the Amer. Bar, 224-239 
on the post-Revolution prejudice against them. New Jersey (1799), Ken- 
tucky (1807), and Pennsylvania (1810-1836) passed statutes forbidding the 
citation in their courts of British decisions made after July 4, 1776 (ibid., 
232-233). 

4 Pioneer History, 181. The case evidently arose when Prairie du 
Rocher was a separate judicial district, ante, cxlvii, n. 3. 



"Sir Pleas to let the bearer Henry Conner have a Coppy of the Laws 
which will be the one that I am intiteled to as one of the Members of the 
Legislator. 

August 26th 1808 George Fisher 

Rob Morrison Esq." 

See John Edgar's letters in Alvord, Kaskaskia Records (I. H. C, 5), 
376, 395 (but compare 513) ; letter of Shadrach Bond Jr. quoted post, app. 
n. 19. 



ccvi ILLINOIS HISTORICAL COLLECTIONS 

A justice of the peace, whom a widow petitioned in 1784 to restrain 
an intruder from working her sugar-claim, offering evidence by old 
inhabitants of her prior rights, rejected the petition, "it being the 
intention of the State that all persons may seek after their own 
happiness." 1 

Judge Turner's visit to the Illinois country in 1794 was so 
stormy that one might discount his reports of improprieties on the 
part of the local judges if the evidence of later years did not con- 
firm him. 2 His personality is a guaranty that his charges were 
piquant, but unfortunately they are not preserved. We only know 
that they gave pain to Governor St. Clair, who fondly hoped that 
any improprieties of which the judges might have been guilty had 
proceeded "from a mistaken judgment, and not a perverted 
will . . . You must be sensible, . . ." he wrote in reply, 
"that to find persons in that country who are capable of perform- 
ing the duties of judges in a strictly legal manner, is impossible." 3 

It has been noted that various judges, in violation of the stat- 
ute's explicit prohibition, acted as attorneys — and, if it be said 
that they merely represented themselves, as any citizen might, 
though before their own court, it was at least an impropriety ; and 
that some of them sat as judges of their own causes. There are 
other evidences of their judicial unfitness. John Dumoulin, of 
the St. Clair Court, was defendant in three suits in 1795 ; one of 
them brought, successfully, by a fellow Frenchman for depriving 
him of a cow. 4 "In February of 1796, three of the judges, 
Dumoulin, William St. Clair and James Piggott, were involved 

1 Amer. State Papers: Pub. Lands, 2: 206. 

2 Ante, clviii, n. 1. The charges against him will be found in the 
Amer. State Papers: Misc., 1: 151, 157; St. Clair Papers, 2: 372-374. Gov- 
ernor St. Clair's bitterness against the Judge is unpleasantly clear ; he even 
proposed to William St. Clair (clerk of the St. Clair Court, with whom 
Turner had quarreled) the circulation of a petition to Congress embodying 
charges against him. See also ibid., 2: 342, 345-347, 348-349. Some of the 
judges were too inactive to suit St. Clair; Judge Turner was too active 
and officious, the Governor resenting his encroachment upon executive func- 
tions. See also, on trouble between Judges Turner and Vander Burgh, 
ibid., 2 : 353 n. ; Monks, Courts, 1 : 13. See also St. Clair Papers, 2 : 354 n., 
for some legislative motions by Turner that certainly reflected popular 
desire, tabled by his fellows. 

3 St. Clair Papers, 2: 348, letter of May 2, 1795 to Judge Turner. 
^Allinson, 111. State Hist. Soc. Trans. (1907), 291; Bateman and 

Selby, Hist, of St. Clair County, 2: 700. 



INTRODUCTION ccvii 

in law suits, which came before the court of this session and which 
would seem to undermine the efficiency and even the justice of 
the court." 1 Notwithstanding these faults Dumoulin was re- 
commissioned by Harrison in 1800 and 1801. In 1803 he was 
indicted for an assault and battery. 2 Meanwhile, in 1801, the 
grand jury found a presentment against him in the Circuit Court 
for having in several instances acted tyrannically, corruptly, and 
illegally in the conduct of his office. A commission headed by 
Shadrach Bond Sr., his fellow judge, was appointed to take testi- 
mony and report to the Governor, 3 but their report has disap- 
peared. However, he was continued in office. In 1802 two in- 
formations issued against him for "malpractice" in his office as 
justice of the peace and "malpractices" as judge of the Common 
Pleas. As he made oath in both cases that he could not expect 
a fair and impartial trial in St. Clair County the venue was changed 
to Knox. He was found not guilty in one case; the outcome in 
the other does not appear. 4 Nicholas Jarrot was indicted in 
1802, for what offence does not appear; apparently he was found 
not guilty. 5 J. F. Perrey seems to have taken a special and an 
undue interest in the administration of estates. Presumably they 
were profitable, and there is evidence that he was guilty of some 
of the improprieties — in addition to that of being an executor de 
son tort, which would seem to be an impropriety of conduct in 
case of a judge — that occurred in this field of the law. 6 He 

1 Allinson, loc. cit., 291 ; ante, cciv, n. 3. 

2 Battery upon John Porter, General Court, 1803, Order Book, 1 : 72, 
76, 86. Quashed. 

3 Gibson, Exec. Journal, 105-106. 

* General Court, Order Book, 1: 23, 24, 45, 49, 50, 69, 70, 72. No 
later entry in second case noted. 

& Ibid., 25 (March 25, 1802) 37, 46, 132; to the country, on plea of 
not guilty; later entry not noted, but presumably overlooked — it is prac- 
tically certain that he got the verdict. 

6 See ante, cxlviii, n. 4. In the record of the Orphans' Court 1797- 
1809, p. 1, it appears that on August 5, 1796 the Probate Judge, William 
St. Clair, represented that several cases had arisen in which the security 
given did not satisfy the law, but "great inconveniences would arise (as 
also Great loss to several persons) should the administration heretofore 
granted to them be declared void" ; wherefore it was ordered that all ad- 
ministrators be cited to lodge sufficient security. The first appearance of 
William Mears (see Reynolds, Pioneer History, 361) in the records is 
in ousting an administrator not qualified to act as such — Orphans' Court, 



ccviii ILLINOIS HISTORICAL COLLECTIONS 

too was indicted, in the Circuit Court, for what offence does not 
appear, but found not guilty. 1 Sam S. Kennedy, a justice of 
the peace in St. Clair County and later a county judge under the 
Illinois Territory, was sued in the Common Pleas in 1808 for 
assault and battery. 2 

In Randolph the record is similar. The several indictments 
against John Grosvenor 3 and Robert Reynolds 4 have already 
been referred to. In 1808 an attempt was made to impeach Robert 
Morrison, a clerk of the Common Pleas. 5 It appears from a 
record of the General Court of earlier years that Morrison had 
been permitted by the court to appear before it as attorney, but the 
grounds for the impeachment in 1808 do not appear. 6 

The fundamental trouble, of course, was that the courts were 
political ; as they are today in the main. Beyond a doubt there 
were some (and very likely many) better men available than 
those appointed. 7 Several of the attorneys who practiced in 

1 Records in the Belleville Museum, of October 1808. 

2 Belleville Museum, recognizance of April 17, 1808 (of Kennedy, 
Robert Reynolds, and William Bolin Whiteside). 

3 Ante, clxxx, n. 1 ; clxxxi, n. 1. 

4 Ante, clxxix, n. 1. 

5 Webster, Ind. Hist. Soc. Pub., 4 : 238. He says "Mr. Morrison, 
a Judge in Randolph county." William Morrison had not for several years 
been a judge; Robert Morrison never was, but the reference must be to 
him. See post, app. n. 70. 

6 They may appear in the journal of the Assembly in the Western 
Sun, which I have not seen. On March 9, 1803 in the General Court 
(Order Book 1: 74), on motion of James Haggin, it was ordered that the 
Randolph Court seal a bill of exceptions tendered to them at the trial (if 
tendered — this showing the court's distrust of Haggin), objecting to the 
appearance of Robert Morrison as attorney. It is significant that the objec- 
tions were merely that he was neither a licensed attorney nor held a power 
of attorney; the violation of statute involved was not mentioned! See 
ante, cciii. 

7 In Harrison's Messages, 1 : 221, appears the complaint of some 
inhabitants of Knox County that "by means of rong or Pertial Information 
Given" to Harrison he had appointed as justice of the peace one Captain 

47 (1808). Perrey was the administrator of John Dumoulin — ibid., 29 
(March 1806) ; there are many references to this administration in the 
Order Book of the General Court — 1 : 153 et seq. In the Belleville Museum 
are papers of a circuit court of October 1808 which show a suit against him 
by Nicholas Jarrot as executor de son tort. The record of the Orphans' 
Court 1797-1809, 48 (March 20, 1809) shows that he had taken the admin- 
istration of two estates, which he declared "trifling," on condition that 
Shadrach Bond Sr. "would charge half the Costs of the letters" ; and Bond 
testified (the bonds were already lost!) that he thought this was done. 



INTRODUCTION ccix 

Randolph were vastly superior to the judges of the county court. 
So undoubtedly were some of the justices of the peace: however 
poor the quality of some of the justices of the peace that of others 
was excellent. The judges were largely the economic and political 
magnates of their counties, the "county gentry" ; they had no other 
qualifications, educational or moral, in any noticeable degree. 

The governor had power, of course, to dismiss undesirable 
judges, but apparently the power was never exercised. In 1805 
the General Assembly passed an impeachment statute. 1 No pro- 
vision for impeachment had, until this, existed. No removal was 
accomplished under the statute, although several impeachments 
were made. 2 A bill passed by the Assembly in 1808 was vetoed 
by Governor Harrison because it provided that the executive should 
remove any clerk of court upon application of the court. It seems 
proper to assume that the bill was due to dissatisfaction with the 
qualities or conduct of the clerks. The veto was based on the 
ground that the executive discretion could not be subordinated to 
the wishes of the judges. 3 

Some irregularities of procedure in the county court of Ran- 
dolph, corrected in the General Court, appear in the records of 
the latter. Thus, in a case of 1801, on motion of John Rice Jones, 

i Post, 123, 520. 

2 Monks, Courts, 1 : 42. Governor Reynolds says that the governor 
"scarcely ever exercised his power in dismissing any [judges] from office" — 
Pioneer History, 179 ; he gives no instances, and none have been discovered. 

3 It is natural to connect this with the impeachment (or attempted 
impeachment) of Robert Morrison this same year. We have seen, also, 
that the record of Henry Hurst, clerk of the General Court was far from 
impeccable : ante, cc. The bill also provided that the clerks of the 
Common Pleas should be ex officio clerks of the "district" (i. e. circuit) 
courts in their respective counties "where the emoluments of each are not 
sufficient to induce a properly qualified person to undertake the discharge 
of them." Harrison, Messages, 1 : 319. The Governor, naturally, refused 
to renounce his power of unrestrained appointment. For a third provision 
of the bill see ante, civ. Another bill, concerning the office of attorney - 
general, was vetoed by the Governor at the same time on the ground that 
it violated his appointing power and interfered with a federal office. Har- 
rison, Messages, 1 : 320. Apparently the bill proposed election of the at- 
torney-general by the Assembly. Mr. Esarey says {ibid., 320 n.) that the 
second bill was political, inspired by the antislavery and prodivision coali- 
tion in the Assembly {ante, xlii). 

Jacob Winemiller, who according to his critics "Cannot or at least does 
not speak or Write any language so as to be understood." On the other 
hand, see post, app. n. 65. 



ccx ILLINOIS HISTORICAL COLLECTIONS 

counsel for appellant, writs were issued commanding that court 
to sign and seal a bill of exceptions as tendered to them at the 
trial below, and correcting deficiencies in the record. And this 
was not the only instance. 1 

Unlike jails, courthouses, of a kind, seem to have existed at 
both Kaskaskia and Cahokia at an early date. That at Kaskaskia 
was sold before 1802, and during the remainder of the period of 
Indiana Territory rooms were rented in private houses or (usually) 
taverns. 2 There was no need, as in some of the wilderness 
counties, to hold courts in the forest clearings, with logs and 
stumps for seats. It is most probable that all the county courts 
were conducted with extreme informality. 3 But the judges 
seem to have received the deference to which in their own opinion 
they were entitled, for only one case of contempt appears in the 

1 General Court, Order Book, 1: 18 (September 8, 1801), 25, 29. And 
see ante, ccviii, n. 6. 

2 County-lieutenant Todd seems to have built what was used as a 
courthouse at Kaskaskia, in 1779; and this was, apparently (McDonough, 
Hist, of Randolph, Monroe and Perry Counties, 100) the one sold to William 
Morrison and George Fisher, and for which they were, in 1805, still indebted 
to the county — ante, cxx. Construction of another was contemplated in 1804, 
Randolph Court Record 1802-06, 6, 52. The rate allowed John Grosvenor 
for use of his house (which was a tavern) was $1.50 a day ; the houses 
of Philip Fouke, Robert Morrison, Drusilla Turcotte (a tavern), and others 
were also used as meeting places. (Randolph Court Record 1802-06, passim; 
bills by Grosvenor for 1806, 1807 in Chester Miscellanies Box ; allowances 
to Grosvenor and Fouke for 1808, in Randolph County Commissioners 
volume of Illinois Territory, 1809-1810, pp. 110, 116; McDonough, Hist, of 
Randolph, Monroe and Perry Counties, 101). 

3 "It is said, that at that time," when Judge Symmes held Circuit Court 
in St. Clair under the Northwest Territory in 1796 (Governor St. Clair 
was with him), "courts were . . . disorderly and indecorous": Bateman 
and Selby, Hist, of St. Clair County, 2 : 699 ; see McDonough, Hist, of 
Randolph, Monroe and Perry Counties, 66, on William Goings' bell-dance 
in Judge Symmes' Circuit Court. For John Reynolds' manner of holding 
court, in somewhat later vears, see Governor Ford's History of Illinois, 
82-85, and Reynolds' My Own Times (Fergus ed.), 138, 139-140. C. Warren, 
History of the Harvard Lazv School and of Early Legal Conditions in 
America, 1 : 81, says that : "Anthony Stokes, Chief Justice of Georgia, in 
1783, in his View of the Constitution of the British Colonies of North 
America and the West Indies, states that in the Colonies where a system 
of County Courts prevailed and where there were a large number of judges 
in general unacquainted with the law, little decorum was observed; in 
Colonies where judges went on circuit there was more impartial adminis- 
tration of justice." This, of course, anybody would have expected. For one 
illustration of the greater dignity of the circuit courts in Illinois compare 
ante, cxci, on juries. 



INTRODUCTION ccxi 

Randolph records. In that case a fine of five dollars was imposed 
"for an insult to the State's attorney" and an equal sum for an 
insult "to the Court while on the bench." But the fines were not 
paid, and after six years were remitted. 1 John Dumoulin was 
sued in St. Clair County for assault ; but the evidence showed that 
he had only ordered the plaintiff imprisoned for insultingly and 
contemptuously obstructing him in the performance of his duties 
as a justice of the peace, the officer having apparently found con- 
siderable force necessary in executing the order; and the court 
sustained Dumoulin in maintaining the dignity of his office. 2 
A harassed witness, who attacked a judge in court and broke his 
arm, in Dearborn County, was imprisoned for a few hours beneath 
a heavy worm fence. 3 

Apparently many contempts were shown for the General 
Court. In the unique ejectment suit against John Edgar (already 
referred to), taken up from Randolph County, William Wilson, 
county surveyor, was twice ordered attached for contempt in 
failing to survey the land, as ordered ; but there is nothing to 
show that he was actually punished. 4 In 1805 James Edgar, 
sheriff of Randolph, was ordered to show cause why an attachment 
should not issue against him for not executing a ca. sa. against 
Robert Morrison, "and for making an improper and untrue return" 
to the General Court ; also for not bringing in one "William' Wil- 
liams" (probably William Wilson) as ordered. He appeared, and 
— being of course a powerful politician — he was fined in each case 
twenty-five cents and costs, 5 for thus flouting the Supreme Court 

1 Miles Hotchkiss was so fined on June 5, 1804 — Court Record 
1S02-06, 60. See ante, cxx, on the nonpayment of the fines. They weie 
remitted by the county court of Illinois Territory in 1810 on "satisfactory 
proof being adduced to the Court that the said Court of Common Pleas 
[of Indiana Territory] had ordered the same to be remitted but had omitted 
to be entered on their records" — County Court Record 1810, 62 (July 7, 
1810). 

2 Miss Allinson quotes the record in 111. State Hist. Soc. Trans. (1907} 
291 n. 

3 About 1803— Monks, Courts, 1: 44-45 (2: 629 for proper date). This 
is given among incidents vouched for (1 : 41) as "of unquestioned historical 
standing." Compare ibid., 1 : 151, and ante, clxxxi, n. 4. 

4 General Court, Order Book, 1, 89 (September 10, 1803), 143 (Sep- 
tember 26, 1804) : post, app. n. 75. 

* Order Book 1: 157 (June 14, 1805), 159 (June 15, 1805), 165 
(September 15, 1805). 



ccxii ILLINOIS HISTORICAL COLLECTIONS 

of the territory. The next year he was again ordered to show 
cause why he should not be punished for failing to return execu- 
tion in three cases — two of them again against Robert Morrison. 1 
The next year shows two attachments for contempt against him — 
whether or not in the same causes not appearing — that were con- 
tinued. 2 No punishment appears in any of these cases. One 
wonders why he should have felt he could show contempt for 
such a court. It is to be remembered that the Edgar-Morrison party 
had for years been dominant in the county. In 1805 attachments 
were issued against William Morrison (then a judge of the Ran- 
dolph Common Pleas), James Gilbreath (a former sheriff), and 
others, for contempt of the process of the General Court. 3 No 
punishment appears. Absent jurymen or officers of the court were 
usually excused or fined in petty sums (and the same in the county 
courts) for nonattendance. 4 

It is hardly necessary to add, however, that the efforts of 
the General Court to punish contempts, contemptibly feeble as they 
were, were made the basis of political charges and maneuvers. 5 

Casual references have been made to the French inhabitants 
in connection with certain laws and administrative details : the part 
played by them in the legal history of Indiana Territory was very 
small. Their submergence beneath the flood of American immi- 
grants is unintelligible apart from the incidents of earlier years. 
The story is essentially one of the clash of two noncoalescible 
cultures. Except illiteracy there was nothing common to the two 
classes. Self-sufficient in their traditional isolation, the French did 

ilUd., 202 (April 10, 1806). 

2 Ibid., 234 (April 8, 1807, continued to the September term) . 

'Ibid., 156 (June 5, 1805). 

4 Ibid., 7 (constable fined 50 cents) ; 11 (three grand jurymen excused) ; 
35 (grand jurymen fined $4 and costs) ; 61 (same, $1) ; 63 (same, $1) ; 
69 (petit jurymen put under $100 bond to appear next day and regularly). 
Except the last, which is most extraordinary, these are fair samples. 

5 In the Illinois-country petition to Congress of 1805 (Ind. Hist. 
Soc. Pub., 2 : 488 ; ante, xxxviii, n. 2) the memorialists stigmatize "the prac- 
tice of issuing attachments for contempt of court, against witnesses for 
non-attendance, and public officers, upon pretexts, in the opinion of your 
memorialists, resting upon the slightest grounds, a vexatious practice, which 
has a great tendency to sour the minds of the citizens of this remote part of 
the territory, from the hardships, as already described, to which they must 
be exposed from these proceedings." For fees allowed witnesses, see post, 
51, 58, 473, 475. 



INTRODUCTION ccxiii 

not use the word "America" as including the Illinois country. 1 
Also, as Governor Reynolds says, they had lived so long in villages 
that they could not conceive of existence otherwise. 2 Very dif- 
ferent was the spirit of the American backwoodsmen, whose rule 
was : "When you hear the sound of a neighbor's gun, it is time 
to move away." 3 The attitude of the two peoples toward religion, 
the Indians, law, and mode of life was sharply distinct. A splen- 
did, had it not been a licentious, independence, a hard nature, a 
general indulgence in liquor and in boisterous and brutal contests, 
an utter intolerance of law and other social restraints, characterized 
the Americans. A gentler and indolent nature, a greater temper- 
ance, dependence upon authority, devotion to community life, and 
a taste for at least some refinements, characterized the French. 
Small differences of life — in industry, in farming, in amusements, 
in social attitudes — were numerous, and such matters are always 
irritating. 4 Variant opinions regarding Indian relations caused, 

1 Reynolds. Pioneer History, 297. French was for many years the 
language used in Governor Reynolds' home. 

2 Reynolds, Pioneer History, 229. Count Volney says : "Visiting 
and talking are so indispensably necessary to a Frenchman from habit, that 
throughout the whole frontier of Canada and Louisiana there is not one 
settler of that nation to be found, whose house is not within reach or within 
sight of some other" — View of the Climate and Soil of the United States 
(ed. London, 1804), 386. "The French People for the most part live in 
villages and cultivate a Common Field. They cannot bear the idea of 
separation. To live in the country without a neighbour in less than half a 
mile is worse than death, and almost as bad as Purgatory" — letter of Fred- 
erick Bates in 1807 from St. Louis, Marshall, Life and Papers of Frederick 
Bates, 1 : 243. These quotations show how profoundly this characteristic 
of the French impressed all observers. 

3 Mr. Buck, Illinois in 1818, 99, quotes this from George Flower. 

4 For descriptions, men who wrote from personal observation, see : 
Volney, op. cit., appendix IV, especially 369-375, 385-389 ; Governor St. Clair, 
in St. Clair Papers, 2 : 137 ; V. Collot, A Journey in North America, 1 : 
232-233 ; "Invitation Serieuse aux Habitants des Illinois," 111. State Hist. 
Soc. Trans. (1908), 294, 338-339; Reynolds, My Own Times, 23, ch. 12-13, 
15-18, and Pioneer History, 61, 67-73, 125-126; Judge Symmes, in B. Bond, 
John Cleves Symmes, 287-290 ; Marshall, Life and Papers of Frederick 
Bates, 1 : 241-244; Ford, History of Illinois, 35-38. See also Alvord, Cahokia 
Records (I. H. C, 2), xxi n., xxii-xxv, lxiv-lxvi; Houck, Missouri, 2: 267- 
283 ; Buck, Illinois in 1818, ch. 4. Governor Reynolds says of his arrival at 
Kaskaskia in 1800 : "In fact, the people, their dress, language, houses, manner 
of living and doing business were so different from the Americans in the 
States that it almost made us believe we had traveled out of America." 
Pioneer History, 297. He says of the Illinois French that they "scarcely 
ever troubled themselves with milking cows . . . and made little or no 



ccxiv ILLINOIS HISTORICAL COLLECTIONS 

in the beginning, intense feeling. The French enjoyed an immunity 
from Indian attacks, and wished free association and open trade ; 
the Americans deserved no immunity, enjoyed none except through 
war and fear, and of course were opposed to the free intercourse 
which had existed before the establishment of American domin- 
ion. 1 From the time of Clark's conquest onward, first from 
necessity and later without excuse, the French were plundered by 
American troops. As early as 1779 they prayed their court to 
relieve them from this "brigandage and tyranny" and to bestow 
upon them "some glimmer of that liberty which has been so often 
announced" ; but for years, it continued as a monstrous abuse. 2 
The land donations to the French were largely intended as a recom- 
pense for the loss of the Indian trade, and for their sacrifices due 
to the long military occupation of their country. 3 The inevitable 
result of all these irritations was that the French came to regard 
the Americans as intruders upon an idyllic past; and very much 
could be said to support them. 4 In return they were, by the 
Americans — as Alvord has said — "held in contempt and regarded 
as aliens settled on American soil." 5 

In these conflicts and animosities questions of law and courts 
played a large part. The British commandants of the country had 

1 Boggess, Settlement of Illinois, 48-49, referring to the Wabash 
country. Governor Reynolds says that, about 1800, great numbers of Indians 
camped most of the year around Kaskaskia ; perhaps two Indians to one 
white. 

2 Alvord: Cahokia Records (I. H. C, 2), lxxx-i; cp. li, lxvii-viii, 
lxix, lxxv-lxxxii, xcvii, xcix, cxxi ; Illinois Country, 346, 352-353. 

3 Alvord: Cahokia Records (I. H. C, 2), cxxi; Kaskaskia Records 
(I. H. C, 5), 445-449, 479. 

4 Compare Reynolds, Pioneer History, 66, and Alvord, Illinois Coun- 
try, 202, 373, 375. Count Volney, op. cit., 370, records in his diary the 
story as told by the French of Vincennes. 

5 Alvord, Illinois Country, 360. 

butter. They scarcely ever used a churn, a loom, or a wheel." — My Own 
Times, 57. So Count Volney, recording in his diary the opinions voiced of 
each other by the French and Americans of Vincennes, includes in the 
charges against the former this : "The women can neither sew, nor spin, 
nor make butter ; but spend their time in gossipping, and leave their houses 
dirty and in disorder. The men . . . know neither how to cure salt or 
hung pork or venison, make small beer or sour crout, or distil spirits from 
corn or peaches ; all capital things for a farmer" — op. cit., 373-374. Such 
matters, far from being trivialities, were doubtless of very exceptional im- 
portance in their effect upon the relations of the two races. 



INTRODUCTION ccxv 

assumed — though the proclamation of 1763 gave them no explicit 
warrant for so doing — to introduce English law; but there was a 
British court for only a brief time, 1 and it is certain that not 
much could have been done in displacing the old customs. Under 
Virginian rule there was greater displacement of that law ; but 
the judges remained almost wholly French and in the main it was 
French law that was applied, slightly modified by Virginian stat- 
utes. 2 The French inhabitants clung to the court throughout 

i Ibid., 266-268. 

2 Alvord, Cahokia Records (I. H. C, 2), cxii. The whole Virginia 
tradition was one of generous adjustment to the French tradition. The 
statute of December 1778 which established government for the "county of 
Illinois" provided for administration of the Custom of Paris — ibid., lii-iii. 
In February 1785 Congress adopted a committee report which recommended 
that a commissioner be sent to Illinois "to suppress those disorders and 
irregularities of which the said Inhabitants complain. And that in the 
•exercise of his Authority and the administration of justice he pursue the 
mode which he may judge the best calculated to quiet the Minds of those 
peop[l]e and secure their attachment to the fcederal government" — Alvord, 
Kaskaskia Records (I. H. C, 5), 370. A committee of Congress, reporting 
on the powers of such commissioner, recommended that he cause the elec- 
tion, by districts, of "three or more magistrates, who shall be invested with 
power and authority to hear and determine all civil Controversies not rela- 
tive to the property in lands, agreeably to the laws, usages and customs that 
prevail in such districts"; though in criminal cases no penalty might extend 
to "loss of life, limb or member," unless sanctioned by Virginia law. Sub- 
stantially the same recognition of former laws and customs was provided 
for in cases involving "titles and possessions." (March 14, 1785, ibid., 
371-372; italics added). Another committee made similar recommendations 
two years later (May 7, 1787, ibid., 399-400). No such commissioners were 
appointed. Much less liberal concessions were made by the Ordinance of 
1787. These two committee reports substantially described, apparently, the 
practice under Virginian administration : the law enforced was the French 
custom modified by the Virginia bill of rights, and perhaps some Virginian 
statutes relative to courts or procedure — Alvord, Cahokia Records (I. H. 
C, 2), lxii-iii; cp. Alvord, Kaskaskia Records (I. H. C, 5), 383-384, note 
on 384. The French judges, in July 1787, protested against the addition 
to the court of English judges ; and the consequent agreement among the 
citizens which excluded those judges referred to them as "not understanding 
the French language in order to . . . follow the law to which we are 
accustomed which has been granted us bv the General Assembly of Virginia" 
—ibid.. 405, 409, to the same effect, 286-287. 

The Custom of Paris was, apparently, often not observed even in 
Canada, that of Normandy — whence came a very large proportion of the 
population — being followed instead. Moreover, it had been modified by vast 
numbers of royal orders etc., that remained in manuscript and inaccessible. 
Its enforcement, especially by the British courts set up after 1763, was very 
difficult, and they had resort to evidence of local — unenacted — custom, in- 
stead until a digest of the law was published in London in 1772-1774 ; more- 
over, in 1772-1773, elaborate reports were made, by competent law officers 
of the British crown, upon the legal situation of the colony. See W. B. 



ccxvi ILLINOIS HISTORICAL COLLECTIONS 

the period of Virginia's rule, because it was their sole protection 
against military rule and pillage. 1 

It goes without saying that the American authorities, as be- 
fitted the special guardians of liberty, held toward their French 
subjects a patronizing attitude. When Patrick Henry sent John 
Todd out as county lieutenant-commandant of the County of 
Illinois he instructed him: ''You are on all Accatons to inculcate 
on the people the value of liberty and the Difference between 
the State of free Citizens of the Commonwelth and that Slavery 
to which Uinois was Destined." 2 "All these people" — wrote 
General Harmar nine years later — "are entirely unacquainted with 
what Americans call liberty. Trial by jury, etc., they are strangers 
to. A commandant with a few troops to give them orders is the 
best form of government for them ; it is what they have been 
accustomed to." 3 "The are worse," wrote John Edgar, "then 
the Indians and ought to be ruled by a rod of Iron." 4 And 
Judge Symmes had barely reached Vincennes in 1790 when he 
expressed similar opinions : "We have an arduous task before us 
to form the government & put the laws in operation here — from 
appearances the people will not relish a free government, they say 
our laws are too complex, not to be understood, and tedious in 
their operation 5 — the command or order of the Military com- 
mandant is better law and spedier justice for them & what they 
prefer to all the legal systems found in Littleton and Blackstone. 
it is a language which they say they can understand, it is cheap 

1 Alvord, Cahokia Records (I. H. C, 2), lxvi, lxvii, lxxv. 

2 December 12, 1778 — ibid., liii, liv, lv. 

3 November 24, 1787— St. Clair Papers, 2 : 32. Compare the court 
order quoted ante, clxxxi, n. 4. Harmar merely voiced the contempt felt 
by John Dodge for the Kaskaskia French, who permitted him to insult and 
bully them. See Alvord, Kaskaskia Records (I. H. C, 5), 425, and Illinois 
Country, 369-371. 

4 November 7, 1785, to George Rogers Clark — Alvord, Kaskaskia 
Records (I. H. C, 5), 376. 

5 Only the statutes of 1788 had at this time been passed. For every 
one of these criticisms there was much justification. The statutes were 
exaggeratedly legalistic in form (ante, cxi), the system of local government 
was extremely cumbersome, and nothing had been done to make the laws 
known to the French population. 

Munro : The Seigniorial System in Canada, 10, 100, 195-196, 198 n., 205-208, 
209 and n. ; Documents Relating to the Seigniorial Tenure in Canada, 
1598-1854, c-ciii, 154 n. 



INTRODUCTION ccxvii 

and expeditious & they wish for no other — Indeed I am of opin- 
ion that the establishing of law in this extremity of the United 
States will be the means of driving to the Spanish government, 
multitudes of those who remain — very many having already gone. 
Indeed they went away because they had no government — and 
they will still go away because the government they now are like 
to have is not on the foot of an absolute Government like f ranee." 1 
There is nothing to support the idea that the establishment "of 
law" caused migration from the territory; but it is certain that 
toward the system established the French population was un- 
sympathetic. Even trial by jury was not acceptable to all. 2 Of 
the French in Missouri Frederick Bates (who had known them 
also in Michigan) wrote, a few years later: 

"The very name of liberty deranges their intellects, and it 
appears absolutely impossible for them to form accurate concep- 
tions of the rights which Justice creates on the one hand, and 
the obligations which it imposes on the other. 

"The summary decree of a military officer however tyrannical 
or absurd is much better suited to their ideas of the fitness of 
things, than the dilatory trial by jury and 'the glorious uncertainty 
of the Common Law.' " 3 

Small concession was made to their traditions by Congress. 
Virginia's deed of cession confirmed to them their "possessions and 
titles," "rights and liberties." The Ordinance of 1787, how- 
ever, merely saved to them "their laws and customs . . . rela- 
tive to the descent and conveyance of property." Yet the system 

1 June 22, 1790— B. Bond, John Cleves Symmes, 290-291. 

2 The British court of 1768-1770 had not attempted to apply trial by 
jury; although the reasons given ("on account of its Small number of In- 
habitants as Well as their Want of Knowledge of the Laws and Customs of 
England") seem meaningless — Alvord, Illinois Country, 267-268. In a petition 
of 1810 from Michigan inhabitants to their governor and judges they asked 
that it should be merely permitted in the higher courts, and to those desiring 
it — Mich. Pioneer and Hist. Colls., 8: 619. See Houck, Missouri, 2: 394 
on distrust of jury trial among the inhabitants of upper Louisiana (report 
by Rufus Easton to President Jefferson, January 7, 1805). Alvord's state- 
ment, already referred to — Cahokia Records (I. H. C, 2), lxiii — is based 
upon the court proceedings. 

3 Marshall, Life and Papers of Frederick Bates, 1 : 242-243. On gov- 
ernment by a military commandant, see the American instance ante, clxx, 
n. 2. 



ccxviii ILLINOIS HISTORICAL COLLECTIONS 

to which they were immediately subjected did not protect them, 
even within the Ordinance's narrow guaranty. 1 They had, for 
example, retained in their isolation, like their fellows in Louisiana 
and Quebec, the political and economic traditions of the France 
of Louis XIV, of common fields and manorial organization; yet 
their American rulers forced upon them the elaborate county and 
township organization which had been developed in the British 
colonies. 2 Although the displacement of the French custom by 
Anglo-American law was general, it was of course somewhat 
gradual. This was probably especially true in the field of family 
relations. 3 

As the service of the courts improved the government became 
more acceptable. In early years — under the Northwest Territory 

1 The Virginia legislative act tendering cession, of December 20, 1783, 
included the guarantees quoted; the deed of cession of 1784, was "on the 
conditions of the said recited act" — Thorpe, Federal and State Constitutions, 2 : 
955-957. The Ordinance of 1787— ibid., 958; Pease, Laws (I.H.C., 17), 124— 
was less generous, but more practicable. Neither instrument could easily 
be construed to guarantee slavery. Governor St. Clair, when in Illinois in 
1790, commissioned notaries in order to enable them to make their convey- 
ances as in the past, in accordance with the guaranty of the Ordinance — 
St. Clair Papers, 2: 172-173. But the American system seems to have dis- 
placed very quickly the old practices. The absence of ejectment suits 
makes it impossible to say whether it was forced upon French claimants. 

2 Mr. Esarey (History, 1: 137) and Dunn (Indiana, 271) have both 
pointed out this anachronism. Count Volney, comparing the French of 
Vincennes with the recent immigrants at Gallipolis, attributes to the former 
the feudal sentiments of the subjects of Louis XIV and XV — op. cit., 391. 
Tocqueville, after similar opportunities for observation of Canadian insti- 
tutions, declared that the qualities of the old regime — social, economic, and 
political — could best be studied in the colonies (cited in Munro, The Seig- 
niorial System in Canada, 15). Governor Reynolds says that the Cahokia 
inhabitants were predominantly from Canada, and those of Kaskaskia 
from Louisiana, and that their speech and customs were slightly different — 
My Own Times, 37. 

3 Nothing like the sources mentioned, ante, ccxv, n. 2, exist for 
the study of the Custom of Paris in the Illinois country. Nor is there 
anything comparable to the study, for Michigan, by Justice W. R. Riddell, 
Michigan Under British Ride. Law and Lazv Courts 1760-1796 (Mich. 
Hist, Commission), 35 et seq. and passim. In editing the records of Cahokia 
and Kaskaskia Alvord omitted documents "of a private character, such 
as marriage contracts, settlements of estates, petitions to the Court in private 
law suits, etc." — Kaskaskia Records (I. H. C, 5), iv. Doubtless a great 
mass of such material remains to be garnered. An example of the persistent 
vitality of the old customs in the period of the Northwest Territory — a 
prenuptial property contract between Pierre Menard and his wife — is printed 
in Chic. Hist. Colls., 4: 145, 162-165. See also Amer. State Papers: Pub. 
Lands, 2: 83; Houck, Missouri, 2: 195-197. 



INTRODUCTION ccxix 

— when the executive branch of government was wholly auto- 
cratic, judicial service in the western counties practically non- 
existent, and legislation was imposing a political system totally 
alien and unintelligible, the feelings of the French population 
were undoubtedly identical with those of their countrymen in 
upper Louisiana (many of their leaders emigrants from Illinois) 
who remonstrated in 1804 against the illiberal characteristics of 
the government first accorded them — to wit : "A single magistrate, 
vested with civil and military, with executive and judiciary powers, 
upon whose laws we had no check, over whose acts we had no 
control, and from whose decrees there is no appeal: the sudden 
suspension of all those forms to which we had been accustomed; 
the total want of any permanent system to replace them ; the intro- 
duction of a new language into the administration of justice; the 
perplexing necessity of using an interpreter for every communica- 
tion with the officers placed over us ; the involuntarry errors, of 
necessity committed by judges uncertain by what code they are 
to decide, wavering between the civil and the common law, . . . 
and with the best intentions unable to> expound laws of which they 
are ignorant, or to acquire them in a language they do not under- 
stand." 1 

So far as regards administration of the new government, in 
the first county organizations (both in the Wabash and the Illinois 
counties) the French element was preponderantly represented; 
but the courts, and all the rest of the system above the townships 
(at least in Illinois), were speedily and completely given over to 
Americans. The change was made by Governor St. Clair in 1795. 2 
It has been said of the beginnings of the judiciary under the 

1 Annals, 8 Congress, 2 session, 1598. See ante, cv, n. 1 as to 
the status of French and Spanish law in Louisiana, after cession to the 
United States. The situation in Illinois was simpler, and occasions for the 
application of foreign law were less numerous. 

2 Of his appointees to' the two St. Clair courts in 1790 (there was 
then but one county) five — including Philip Engel — were French ; only 
one, John Edgar, was an American. St. Clair Papers, 2: 165 n. In 1795 only 
two Frenchmen were appointed, and six Americans, in St. Clair County. 
Allinson, 111. State Hist. Soc. Trans. (1907), p. 290. In Randolph County 
three French judges — Menard, Barbau, and Louviere — may possibly have 
been appointed. For the period following 1800 see the court lists in Ap- 
pendix. 



ccxx ILLINOIS HISTORICAL COLLECTIONS 

Northwest Territory that "the majority of the first court officers 
were French and showed no capacity for political affairs. The 
government soon fell into the hands of the Americans, where it 
remained." 1 The estimate is both ungenerous and inadequate. 
The contrasting history of the older courts at Kaskaskia and at 
Cahokia is significant. Of the French court' of the former village 
during the Virginian era Alvord has said that "it is probably 
true that the leaders of the party were ignorant, . . . and 
incapable under the existing conditions of fulfilling the duties 
which the accidents of war and geographical position had thrust 
upon them" ; 2 that they made money out of their offices, illegally 
retained them, and did little to relieve the sufferings of their 
countrymen. 3 But the failure of the British court of 1768-1770, 4 
and of Todd himself 5 were equally complete; the former, too, 
was characterized by corruption, and the latter not unstained by 
self-interest. 6 On the other hand the courts at Cahokia were 
annually elected, functioned regularly, enforced order with decis- 
ion; and in every way their record challenges a judgment that 
denies to the French element capacity for self-government. 7 
The cause for the difference seems plain. In Cahokia, up to about 
1790 there had been, aside from British merchants, only four 
immigrants of non- French race, and three of these were connected 
by marriage with their French fellows. In Kaskaskia, on the 
other hand, the American element had steadily increased from 
1779, at least, onward. 8 It would not submit to be ruled by the 
French; and the court — unlike the court at Cahokia — lacked the 

1 Monks, Courts, 1 : 12. 

2 Alvord, Cahokia Records (I. H. C, 2), cxii. 

3 Alvord, Illinois Country, 347. For a picture of the appalling condi- 
tions at Kaskaskia in 1786 see Father Gibault's letter in Alvord, Kaskaskia 
Records (I. H. C, 5), xlvii, 542-544. Also John Edgar to Major Ham- 
tramck, October 28, 1789, and John Rice Jones to the same — ibid., 513-514, 
514-517. 

4 Alvord : Illinois Country, 267-268, 293 ; Cahokia Records (I. H. C, 
2), lvii. 

5 Alvord, Cahokia Records (I. H. C, 2) , lxvii-viii, lxxiii-iv, lxxviii. 

6 Ibid., lxix and (as to Wilkins) ante* lxvi, n. 2; lxxix, n. 1; Alvord, 
Illinois Country, 282-283. 

7 Alvord: 'Cahokia Records (I. H. C, 2), cxlvii-cl, 589-591; Illinois 
Country, 374-378. 

8 Alvord: Illinois Country, 373, 375, 376; Cahokia Records (I. H. C, 
2), xxxi, n., exxii, cxlviii ; ante, lxviii, n. 1; lxxv, n. 2. 



INTRODUCTION ccxxi 

strength to compel obedience. The French, too, influenced by the 
example of the Americans ceased to give obedience to their own 
court. 1 Most of their leaders, at Kaskaskia, left them and mi- 
grated to Louisiana. They left, as Judge Symmes said, because 
there was no government. Not, however, because of their own 
political incapacity but for lack of support by the government that 
owed them thanks and protection. They were ruined by generous 
loans to the cause of the Revolution, and by the maintenance and 
pillage of troops; they were neglected in their ruin for years by 
Congress ; the title to their slaves was threatened by the Ordinance ; 
the lands promised them in recompense for their sufferings were 
long withheld, until speculators beguiled them into parting, almost 
for nothing, with their claims ; in place of the political system 
which — if not through institutions of self-government at least in 
spirit — had been their own, another was established over them 
that did not preserve to them the privileges which the Ordinance 
had guaranteed ; and they were crowded out of its administration. 
They left, in short, because they were ruined, hoping to retrieve 
their fortunes under a more friendly government beyond the Mis- 

1 "The difference in the destinies of the two villages can only be 
ascribed to the presence of the turbulent frontiersmen in the southern 
village; for the inhabitants of the villages were of the same origin, and 
their experience had been practically identical except for the few years of 
the Virginia period" — Alvord, Cahokia Records (I. H. C, 2), cxxi-ii; cp. 
cl. "Influenced by the example of the Americans, the French themselves 
gave no obedience to the court which they had established" at Kaskaskia — 
ibid., cxl. John Edgar's explanation was of course different: "You know 
better than I, the dispositions of a people who have ever been subject to a 
military power, & are unacquainted with the blessings of a free government by 
the voice of their equals" — ibid., cxl; Kaskaskia Records (7. H. C, 5), 513 
as above cited. It is true that the record of the French court at Vincennes 
preceding 1790 was both corrupt and inefficient — see ante, lxvi; Major Ham- 
tramck to General Harmar, November 11, 1789 — Alvord, Kaskaskia Records 
(J. H. C, 5), 512; same, August 14, 1789, ibid., 508; and that before that 
time there was little American immigration. Monks says that "no higher 
tribute can be paid to the early lawyers of Indiana than is involved in a 
comparison of Vincennes at the time of the visit of Count Volney, with 
it in 1810 after an American court had been in power ten years." Courts, 
1 : 12. It was twenty years, however, instead of ten. There were great 
improvements, also, in Kaskaskia. But these, to which Governor Reynolds 
testifies, are not by him attributed to the courts. There is no evidence 
that the courts made any appreciable contribution to the punishment of 
crime and the betterment of public order. Besides, various distinctions 
might be pointed _ out, if the state of the Illinois country were not here 
primarily in question, between conditions at Vincennes and at Kaskaskia. 



ccxxii ILLINOIS HISTORICAL COLLECTIONS 

sissippi. They "gave way before the egoism"— though in justice 
one must add, the steady energy — "of the Americans." 1 

The institutions of the old Illinois country have now been 
passed somewhat elaborately in review. Some dozens of its char- 
acters, in some aspects of their life, have been shown in the high 
relief of administrative and judicial process. If the doubt at 
times (somewhat belatedly) assails one whether it is worth while 
to lift them out of the flatness and obscurity of their village com- 
munities, and subject them to such minute attention, the answer 
must be that at least it should be; for their manner of life was 
unquestionably typical of the American frontier of the time. 2 
One is impelled, too, to offer one or two conclusions ; adequately 
grounded, it is hoped, in the evidence already stated. 

The first is that the statutes in this volume cannot support 
the theory, of which lawyers are vainly and inordinately fond, 
that the laws of a community are unique memorials of its history. 3 

1 Alvord, Cahokia Records (I. H. C, 2), lxv. "The French villagers 
gave freely to the cause of independence and were rewarded with destitu- 
tion" — Alvord, Illinois Country, 397. "We are well convinced that all these 
misfortunes have befallen us for want of some Superior or commanding 
authority ; for ever since the cession of this Territory to Congress we have 
been neglected as an abandoned people, to encounter all the difficulties that 
are always attendant upon anarchy & confusion ; neither did we know from 
authority until latterly, to what power we were subject. The greater part 
of our citizens have left the country on this account to reside in the Spanish 
dominions" — Le Dru (curate), in the name of the inhabitants of Kaskaskia, 
to Major Hamtramck at Vincennes, September 14, 1789; Alvord, Kaskaskia 
Records (I. H. C, 5), 510. 

2 It is not, however, such a pioneer community as Dean Pound, for 
example, has repeatedly assumed. Dozens of times he has contrasted the 
problem of administering justice in our present urbanized population with 
courts designed to do justice "in a homogeneous pioneer or rural community 
of the first half of the nineteenth century," "a homogeneous community, of 
vigorous pioneer race, restrained already for the most part by deep religious 
conviction and strict moral training" (R. Pound, The Spirit of the Common 
Lazv, 114, 115; cp. 71, 117). Even with the French subtracted the Illinois 
of 1790-1810 could not be brought within such a description. 

3 "The legislation of a community is the exponent of its needs and 
the measure of its attainments, and the laws of any given period become the 
best memorial of its history . . . They not only tell what our prede- 
cessors needed — they show what they were. They faithfully exhibit the 
state of society, the successive steps of change and progress, and the gradual 
but sure advance in civilization" — W. L. Gross. 111. State Bar Assoc. Proc. 
(1881), 57. "Law . . . arises from what is being done in the community 
and is the final record of the community mind. It is, therefore, the most 
reliable historical criteria" (sic) — J. J. Thompson, 111. State Hist. Soc. 
Trans., 22 : 70. 



INTRODUCTION ccxxiii 

These statutes were not an indigenous product, slowly developed, 
responsive and nicely adjusted to the peculiar needs of the terri- 
tory. Some, indeed, do represent a rough attempt at such ad- 
justment. The rest are the foreign system of older states, imposed 
upon the scattered villages of the territory. They did not embody 
the attainments, and only in a very partial sense did they express 
the traditions and the spirit of the territory — even of the American 
element. It is not in the statute-book, but outside of it, that one 
must seek for a view of the real life of the territory. Far from 
representing accurately what was being done in the community, 
we have seen that the laws most fundamental and most painfully 
drafted were very indifferently observed; and it is almost certain 
that the same was true of all the statutes. They were commands 
to live in a certain way that was an unfamiliar way, awkwardly 
and slowly learned. Despite the legislative mandates in this volume, 
to a large extent the people undoubtedly lived quite otherwise than 
commanded. To imagine that such things — merely for example — 
as the law of pauper settlements were a reality in the Illinois 
country would be absurd. The whole system was overwrought, 
too complicated for application — or even, as regards the French 
inhabitants, for understanding ; it could actually have worked only 
where it had been long familiar. It was not alone, but only in a 
greater degree than of the American, that all this was true of the 
French population. 

Lawyers are prone to believe that a society is civilized in 
proportion as its law is elaborated. By this test, in view of the 
bulky legislation of the Northwest and Indiana territories dealing 
with the administration of justice, there must have been a pro- 
digious forward step in civilization between 1787 and 1809. Yet 
anyone who reflects upon the life which was led, before the 
American period, in the French villages of Illinois, may recall 
the other doctrine, implicit in our national political professions, 
that "civilization consists in teaching men to govern themselves 
by letting them do it," and must harbor doubts as to the progress. 

The truth is, of course, that the bulk of the statute-book is 
no test at all. The legislation on the courts in the book before us 
is bulky precisely because most of it was ineffective and had no 



ccxxiv ILLINOIS HISTORICAL COLLECTIONS 

adjusted relation to the social life that it supposedly served. The 
true test — one true test — is the actual administration of justice. 1 
How was it with that? When the first court was opened with 
pomp and circumstance at Marietta in 1788 the sheriff naturally 
proclaimed with the three solemn "Oyes" of tradition that it was 
open "for the administration of even handed justice to the poor 
and the rich, to the guilty and the innocent, without respect of 
persons, none to be punished without a trial by their peers, and then 
in pursuance of the laws and evidence in the case." 2 It is quite 
evident from the preceding pages that this ideal was most imper- 
fectly realized. This is not, as we have seen, primarily because it 
was lacking in equity procedure, or in equity in a broader sense. 
The inexpertness of the bar and bench, though involving what 
we today would regard as miscarriages of justice, fell impartially 
upon all litigants ; and besides, from a nontechnical viewpoint, 
must often have been the more just for its ignorance. We might 
well apply to both judges and attorneys what Governor Reynolds 
said of Judge George Fisher as a physician : "His practice was 
bold and fearless and he succeeded well." On the other hand the 
courts of the Northwest and Indiana territories, as little as those 
of the Virginia period, were capable of controlling the society of 
which they were a part, thrown together by the accidents of war 
and the advance of the backwoodsmen. They did little to punish 
even violent crime; nothing to punish crime more recondite in 
nature, or fraud ; nothing to restrain the barbarous personal com- 
bats and license characteristic of a frontier. Of course as much 
might be said of the frontier courts of later times ; self-help has 
always had wide freedom under like conditions. 3 Finally, when 
judges were so corrupt in their personal affairs, it is impossible to 

1 "The administration of justice is a good test of the civilization of 
the people where it exists ; it shows their interest in equity, their freedom 
to adapt themselves to new conditions and their courage in protecting the 
weak and controlling the rapacious. It measures the point they have reached 
in education and in virtue, and how far they are serious in the formal ex- 
pression of their will" — Judge Learned Hand, in Lectures on Legal Topics 
1921-22 of the Association of the Bar of the City of New York, 105. The 
test is one which evidently requires a considerable past and development 
of law before it can be well applied r a frontier system is necessarily im- 
perfect even in substance, much more in operation. 

2 Ind. Hist. Soc. Pub., 2 : 7. 

3 See ante, clxxxvii. 



INTRODUCTION ccxxv 

suppose that embracery was absent from their official practice. 
Nevertheless, great as the shortcomings of the profession may 
have been it seems certain that so far as there was any learned 
profession in the territory it was that of the lawyers; that — as 
Mr. Esarey has said — "by far the most vigorous part of the early 
government with the judiciary" j 1 and that on the whole theirs 
was the greatest social contribution to their time. 

1 Ind. Hist. Soc. Pub., 6 : 121. 



APPENDIX 

TERRITORIAL AND COUNTY OFFICERS AND PROM- 
INENT ILLINOIS ATTORNEYS OF 1800-1809. 1 

GOVERNOR 
William Henry Harrison— July 4, 1800-March 3, 1813. 

SECRETARY 
John Gibson— July 4, 1800- November 22, 1816. 

JUDGES OF THE GENERAL COURT OF INDIANA 
TERRITORY 

William Clarke 2 — July 4, 1800-November 11, 1802. Died. 
Henry Vander Burgh 3 — July 4, 1800-April 12, 1812. Died. 
John Griffin 4 — July 4, 1800- [ ?] . 

Thomas Terry Davis 5 — February 8, 1803-November 15, 1807. 
Waller Taylor 6 — April 17, 1806-December 11, 1816 [?]. 
Benjamin Parke 7 — April 22, 1808-December 11, 1816 [?]. 

TERRITORIAL CHANCELLORS 

John Badollet 8 — September 2, 1805-March 1, 1806 [?]. 
Thomas Terry Davis — March 1, 1806-November 15, 1807. 
Waller Taylor— November 24, 1807-March 11, 1813. 

ATTORNEYS-GENERAL OF THE TERRITORY 9 

John Rice Jones 10 — January 29, 1801- [?]. 

Benjamin Parke — August 4, 1804- [?]. 

Thomas Randolph 11 — June 2, 1808-November 7, 1811. Died. 

CLERK OF THE GENERAL COURT 
Henry Hurst 12 — January 14, 1801-December 11, 1816 [?]. 

ccxxvii 



ccxxviii ILLINOIS HISTORICAL COLLECTIONS 

FEDERAL LAND COMMISSIONERS 

Michael Jones 13 — November 20, 1804-[?]. 
Elijah Backus 14 — November 20, 1804- [?]. 
John Caldwell 15 — April 1, 1812- [?]. 
Thomas Sloo 16 — 1812- [ ?] . 

REPRESENTATIVES AND LEGISLATIVE COUNCIL- 
LORS IN THE GENERAL ASSEMBLY 

St. Clair County 

legislative councillors 

John Hay 17 — May [?], 1805-January 9, 1806 [?]. Resigned. 
Shadrach Bond Sr. 18 — January 9, 1806. Resigned before August 

31, 1807. 
Shadrach Bond Jr. 19 — February 1, 1808-March 1, 1809. 

REPRESENTATIVES 

Shadrach Bond Sr.[?]— May 21, 1805 [?]-January 9, 1806 [?]. 

William Biggs 20 — May 21, 1805-March 1, 1809. 

Shadrach Bond Jr.— 1806 [?]-1808 [?]. 

John Messinger 21 — July 25, 1808-March 1, 1809. 

Randolph County 
legislative councillors 

Pierre Menard 22 — January 6, 1806- September 19, 1807. Resigned. 
George Fisher 23 — February 1, 1808-March 1, 1809. 

REPRESENTATIVES 

George Fisher— May 20, 1805-February 1, 1808 [?]. 
Rice Jones 24 — August 13, 1808-December 7, 1808. Died. 

DELEGATES IN CONGRESS 

Benjamin Parke— December 12, 1805-April 22, 1808. 
Jesse B. Thomas 25 — December 1, 1808-March 3, 1809. 



APPENDIX ccxxix 

COUNTY COURTS 26 — ST. CLAIR COUNTY 

General Quarter Sessions 27 

John Dumoulin 28 — August 1, 1800-1802 [?]. 
George Atchison 29 — August 1, 1800- January 1, 1806. 
Shadrach Bond Sr.— August 1, 1800- January 1, 1806. 
John Francis Perrey 30 — August 1, 1800- January 1, 1806. 
James Lemen 31 — August 1, 1800- January 1, 1806. 
William Biggs— August 1, 1800- January 1, 1806. 
Benjamin Ogle 32 — August 1, 1800-February 3, 1801. 
Nicholas Jarrot 33 — February 3, 1801 -January I, 1806. 
David Badgley Sr. 34 — April 22, 1805- January 1, 1806. 
James Bankson 35 — April 22, 1805- January 1, 1806. 

Common Pleas 36 

John Dumoulin— August 1, 1800-1802 [?]. 

George Atchison — August 1, 1800- January 1, 1806. 

Shadrach Bond Sr.— August 1, 1800-May 12, 1808 [?]. Resigned. 

John Francis Perrey— August 1, 1800-March 1, 1809. 

James Lemen — August 1, 1800- January 1, 1806. 

William Biggs— August 1, 1800- January 1, 1806. 

Benjamin Ogle — August 1, 1800-February 3, 1801. 

Thomas Kirkpatrick 37 — December 10, 1805-March 1, 1809. 

Shadrach Bond Jr.— May 12, 1808-March 1, 1809. 

Orphans' Court— 1795-1806 38 

John Dumoulin— August 5, 1796-1802 [?]. 

Shadrach Bond Sr. — August 5, 1796-January 1, 1806. 

James Piggott 39 — August 5, 1796-February 20, 1799. Died. 

George Atchison — August 5, 1796-January 1, 1806. 

James Lemen — August 5, 1796-January 1, 1806. 

Wm. Biggs— August 5, 1796-January 1, 1806. 

John Francis Perrey — August 1, 1801 -January 1, 1806. 

Nicholas Jarrot — February 3, 1801-January 1, 1806. 

William Whiteside 40 — 1803-1805 [?]. 

Uel Whiteside— 1803-1805 [?]. 



ccxxx ILLINOIS HISTORICAL COLLECTIONS 

David Badgley— April 22, 1805 [?] -January 1, 1806. 
James Bankson— April 22, 1805 [?] -January 1, 1806. 

Probate Court 

William St. Clair 41 — 1797- January or February 1799. Died. 
Shadrach Bond Sr.— 1799- January 1, 1806 [?]. 

COUNTY COURTS— RANDOLPH COUNTY 

General Quarter Sessions 42 

John Edgar 43 — August 1, 1800- January 1, 1806. 

William Morrison 44 — August 1, 1800. Resigned before November 

28, 1801. 
Antoine Pierre Menard — August 1, 1800-January 1, 1806. 
Nathaniel Hull 45 — August 1, 1800-January 1, 1806. 
Robert McMahon 46 — August 1, 1800-January 1, 1806. 
Robert Reynolds 47 — November 28, 1801-January 1, 1806. 
John Beaird 48 — December 25, 1802-January 1, 1806. 
George Fisher — January 7, 1804-January 1, 1806. 
James McRoberts 49 — April 4, 1804-January 1, 1806. 
John Grosvenor 50 — February 16, 1805-January 1, 1806. 
Jean Baptiste Barbau 51 — 1800-1805. 
Ant. Duchaufour de Louviere 52 — 1800-1801 [?]. 

Common Pleas 
John Edgar— August 1, 1800-January 1, 1806. 
William Morrison — August 1, 1800. Resigned before November 

28, 1801. 
Ant. Pierre Menard— August 1, 1800-March 1, 1809. 
Nathaniel Hull— August 1, 1800-January 1, 1806. 
Robert McMahon— August 1, 1800-January 1, 1806. 
Robert Reynolds — November 28, 1801-January 1, 1806. 
John Beaird — December 25, 1802-January 1, 1806. 
George Fisher — January 7, 1804-January 1, 1806. 
John Grosvenor — February 16, 1805-January 1, 1806. 
Michael Jones — December 28, 1805. Resigned before February 

28, 1806. 



APPENDIX ccxxxi 

George Fisher— February 28, 1806-March 1, 1809. 

Samuel Cochran 53 — February 28, 1806. Resigned before October 

7, 1807. 
James Finney 54 — October 7, 1807-March 1, 1809. 

Probate Court 
John Edgar— August 1, 1800- January 1, 1806. 

JUSTICES OF THE PEACE 55 

(All the Justices of Quarter Sessions were also Justices of the 

Peace. ) 

St. Clair County 

Dr. [Peter?] Mitchell 56 — September 1, 1801. 

Adehemar St. Martin — September 1, 1801. 

Lewis Labosierre [Labuxiere] — October 29, 1801. 

Antoine Champs — October 30, 1801. 

John Campbell— August 19, 1802. 

Robert Dickson — August 19, 1802. 

Uel Whiteside— March 2, 1803. 

Henry Fisher — November 26, 1803. 

Charles Reaume — November 26, 1803. 

Richard Rue 57 — April 11, 1806. 

Robert Elliot— April 11, 1806. 

John Hays 58 — March 14, 1807. 

Caldwell Cairns 59 — March 14, 1807. 

John Boon— March 24, 1807. 

James Long — March 24, 1807. 

Charles Jou vet— April 11, 1807. 

John Kinzey 60 — April 11, 1807. 

David White— June 1, 1807. 

Sam. Simpson Kennedy 61 — August 28, 1807. 

Nicholas Bole— October 27, 1808. 

Randolph County 

Jean Bte. Barbau 62 — October 27, 1801. 
Pierre Compte— October 29, 1801. 



ccxxxii ILLINOIS HISTORICAL COLLECTIONS 

James Ford — December 14, 1805. 
Robert Hays— December 14, 1805. 
James Gilbreath 63 — April 19, 1806. 
Paul Herlston 64 — April 19, 1806. 
William Rogers— July 28, 1806. 
Frederick Graeter 63 — August 15, 1806. 
Audrien Langlois 66 — November 18, 1806. 
Henry Levens 67 — November 18, 1806. 
Joseph Evermaull — November 18, 1806. 
Hamlet Ferguson 68 — April 11, 1806. 
Thomas Ferguson — April 11, 1806. 
Sam. Omelvany 69 — July 30, 1807. 
Jonathan Taylor— March 3, 1808. 
Isaac White— March 3, 1808. 
Archibald Thompson — September 7, 1808. 
William Fouk— October 3, 1808. 
David Anderson — October 5, 1808. 
William Alexander — January 16, 1809. 

CLERKS OF THE COUNTY COURTS 
St. Clair County 
John Hay— August 1, 1800-March 1, 1809. 

Randolph County 
Robert Morrison 70 — August 1, 1800-March 1, 1809. 

SHERIFFS 

St. Clair County 

George Blair 71 — August 1, 1800. Resigned before May 5, 1802. 
John Hays— May 5, 1802-1809. 

Randolph County 

George Fisher — August 1, 1800. Resigned before August 30, 1803. 
James Edgar 72 — August 30, 1803. Resigned before October 11, 

1806. 
James Gilbreath— October 11, 1806-March 1, 1809. 



APPENDIX ccxxxiii 

CORONERS 
St. Clair County 
J. Whiteside 73 — August 1, 1800-March 1, 1809. 

Randolph County 

Giles Hull— January 28, 1801-August 19, 1802 [?]. 

Miles Hotchkiss 74 — August 19, 1802. Resigned before June 26, 

1804. 
Thos. Newbery— June 26, 1804-July 26, 1806 [?]. 
James Gilbreath — July 26, 1806. Resigned before November 19, 

1806. 
James Finney— November 19, 1806-March 23, 1808 [?]. 
David Robi[n] son— March 23, 1808-March 1, 1809. 

RECORDERS OF DEEDS 
St. Clair County 
John Hay— August 1, 1800-March 1, 1809. 

Randolph County 
Robert Morrison— August 1, 1800-March 1, 1809. 

TREASURERS 

St. Clair County 
John Hay— August 1, 1800-March 1, 1809. 

Randolph County 
John Edgar— August 1, 1800-March 1, 1809. 

SURVEYORS 

William Wilson 75 — March 10, 1802. Commission revoked before 

September 5, 1805. 
David C. Robinson 76 — September 5, 1805-March 1, 1809. 
Elias Rector 77 — Acting in May, 1808. 
William Rector 78 — Acting in May, 1808; June, 1809. 



ccxxxiv ILLINOIS HISTORICAL COLLECTIONS 

LAWYERS WHO PRACTICED IN ILLINOIS COURTS 

George Bullitt 79 
William C. Carr 80 
Isaac Darneille 81 
Benjamin H. Doyle 82 
Rufus Easton 83 
James Haggin 84 
Robert Hamilton 85 
William Hamilton 86 
Edward Hempstead 87 
Henry Jones 88 
John Rice Jones 
William Mears 89 
Nathaniel Pope 90 
John Rector 91 
Robert Robinson 92 
John Scott 93 
John Taylor 9 * 



NOTES TO APPENDIX 

1. The act of Congress (of May 7, 1800) creating- Indiana Territory 
took effect on July 4, 1800; on that day, also, the government became a 
reality, Secretary Gibson taking charge. Gibson, Exec. Journal, 65. The 
act (of February 3, 1809) creating Illinois Territory took effect on March 
1, 1809. The state of Indiana came into existence on December 11, 1816. 
Ibid., 68, 69. 

2. This William Clarke is often confused with two other men of the 
same name, a brother and a cousin of George Rogers Clark, who were for a 
time resident in the territory — W. H. English, Conquest of the Country 
Northwest of the Ohio, 1015-1016. His appointment as "Chief Justice of the 
Indiana Territory" was confirmed on December 10, 1800 — U. S. Senate, 
Exec. Journal, 1:357. He died very suddenly on November 11, 1802 — 
English, op. cit., 1017, 1018; according to the editors of Gibson's Exec. 
Journal (91 n. 3) after attending two sessions of the governor and judges. 

3. He was born in 1760 in Troy, New York. Apparently in November, 
1806 he wrote of himself as 47 years of age, of which 30 had been spent 
in public service — Amer. State Papers: Pub. Lands, 1: 578. He entered 
the Revolutionary War as a lieutenant in 1776, and served until the close 
of the war, becoming a captain. Sometime before February, 1790, when 
he was married to a young French woman of Vincennes, he had removed 
to that village. J. P. Elliott, A History of Evansville and Vanderburgh 
County, Indiana, 66. On June 26, 1790 he was appointed a major in the 
militia — St. Clair Papers, 2 : 166 n. On August 12, 1791 he was appointed 
by Governor St. Clair judge of probate and "Justice of the Peace" — i, e. 
doubtless a judge of the Quarter Sessions — of Knox County; and possibly 
also a judge of the Common Pleas — ibid., 2: 275 n. ; compare 167 n. and 
275 n. — the tangle is inextricable, but at least he was appointed to the 
Quarter Sessions. On August 13, 1792 he was named one of the two com- 
missioners for that county, "to license merchants, traders, and tavern- 
keepers" — ibid., 2: 311 n. And on July 23, 1793, the judges of Knox being 
charged with the enforcement of the law {ante, xviii) prohibiting the sale 
of liquor to Indians, he was appointed one of "a committee to take charge 
of the business, and to supply Indians visiting Vincennes such quantity of 
spirits as should seem to them proper" — St. Clair Papers, 2: 323 n. Out of 
this last office sprang some of the charges made against him by Judge 
Turner of the General Court, who threatened to impeach him before the 
governor and judges; see ibid., 325, 330, 397: Monks, Courts, 1:13; 
ante, cc. The other charges had to do with two negroes, "who" — 
according to Turner — "were free by the Constitution of the Territory," i. e. 
the Ordinance of 1787 {ante, xxxvi), and who, being held by Vander Burgh 
as slaves, had applied to Turner for a writ of habeas corpus. Ante, cxli-ii. 
He was presumably that "one of the principal proprietors, by birth a 
Dutchman, who spoke very good French" who entertained Count Volney 
during the latter's visit to Vincennes in August, 1796 : according to the 

ccxxxv 



ccxxxvi ILLINOIS HISTORICAL COLLECTIONS 

latter "with all the kind offices of simple, frank, and easy hospitality" — 
Volney, View of the United States, 369. The next year he was a 
member of a commission appointed to investigate land titles in the Wabash 
country, and acted as secretary of the board — Amer. State Papers: Pub. 
Lands, 1 : 577, 580. Though not elected to the lower house of the first 
General Assembly of the Northwest Territory (1799) he was among those 
nominated by it for the Legislative Council, and was appointed by the 
President. U. S. Senate, Exec. Journal, 1: 323 (March 3, 1799). He was 
the only member from all the western country, outside the Ohio counties. 
Judge Burnet speaks of him in this connection as "an intelligent citizen of 
Vincennes, engaged in the Indian trade," and Governor St. Clair as having 
"been in trade" ; so that he probably had never studied law. He was chosen 
president of the Council when it was organized — Burnet, Notes, 289, 296; 
St. Clair Papers, 2: 441. See the signatures to the laws of 1799 in Pease, 
Laws (I. H. C, 17), 337 et seq. When the Indiana Territory was created 
he was appointed probate judge of Knox on July 28, 1800 — Gibson, Exec. 
Journal, 92 — and acted as such until (his successor was appointed on January 
14, 1801 : ibid., 95) he took office as a judge of the General Court, to which 
office he had been confirmed on December 10, 1800 — U. S. Senate, Exec. 
Journal, 1 : 357 and in which he served until his death. References to this 
service will be found ante, xv. The editors of Secretary Gibson's Executive 
Journal, 71, say that "Davis, Vanderburgh and Griffin served until the Ter- 
ritory passed to second grade" ; which is correct, though transition to the 
second grade had nothing to do with their judicial tenure. In Monks, 
Courts, 2: 404, it is stated that Vander Burgh was again ap- 
pointed to the Legislative Council — this time of Indiana Territory — in 1805, 
and "continued to serve until the state was admitted to the Union in 1816;" 
but this is erroneous. He was never a member of Indiana Council ; and in 
Harrison, Messages, 1 : 21 n., Mr. Esarey states that he died at Vincennes 
on April 12, 1812. His career amply indicates his ability and the confidence 
which he inspired in those who knew him. 

4. See ante, xvi. He was a son — Harrison, Messages, 1 : 24 n. — 
of Cyrus Griffin, last president of the Continental Congress, president of the 
admiralty court of the Confederation, and a district federal judge in Vir- 
ginia from 1789 until his death in 1810 — Biog. Congressional Directory, 
1774-1911, 61 Congress, 2 session, Sen. Doc. 654, p. 686. His birth is given 
as in "1799" (possibly 1769) in the Michigan Biographies (Mich. Hist. 
Commission, 1924), 1: 354, and his death as "between 1842 and 1845," 
probably in Philadelphia ; Mr. Esarey, however, gives 1840 — Harrison, 
Messages, 1 : 24 n. According to the former authority "he made a tour 
of Europe and when he returned he was appointed" to the territorial court 
of Michigan. Presumably this tour preceded his appointment to the Indiana 
court — U. S. Senate, Exec. Journal, 1 : 357. He was nominated for the 
Michigan court on December 23, 1805 ("agreeably to his own desire, as is 
represented"), and confirmed on March 29, 1806— ibid., 2: 11, 30. Accord- 
ing to Judge Campbell and Judge Cooley he was wholly dominated by his 
imperious colleague, Chief-justice Augustus B. Woodward, and was a 
mischief-maker in the court — J. V. Campbell, Political Hist or y of Michigan, 
238, 239, 245, 411; T. M. Cooley, Michigan, 150. His own letters and 
those of his colleagues show that he was fond of social pleasures ; and 
according to Governor Bates he was the life of the circles in which he 
moved— Mich. Pioneer and Hist. Colls., 8 : 559-560, 12 : 472-473 ; Marshall, 
Life and Papers of Frederick Bates, 1 : 172, 174-175, 192-193, and 2: 113. 



APPENDIX ccxxxvii 

5. Thomas Terry Davis represented Mercer County in the Ken- 
tucky legislature in 1795-1797 (Lewis Collins, Hist, of Kentucky, ed. 1877, 
603) ; and represented Kentucky in the U. S. House of Representatives 
from 1797 to 1803 (Biog. Congressional Directory, 1774-1911, 596). See 
his denunciation of Winthrop Sargent, ante, cxi, n. 1, which doubtless en- 
deared him to Indiana Territory. Davis was named judge of Indiana 
Territory on February 8, 1803, in succession to William Clarke — U. S. 
Senate, Exec. Journal, 1 : 441, 442. On March 1, 1806 he was appointed 
chancellor of the territorial Court of Chancery — Gibson, op. cit., 132. Ac- 
cording to Monks, Courts, 2 : 404, he served in both offices, until his death, 
which occurred on November 15, 1807 — Dunn, Indiana, 361. 

6. He was born in Virginia, probably in 1785 ; was educated in the law 
and practiced in Virginia; served as a representative in the Virginia legis- 
lature; removed to Vincennes in 1804; was appointed to the General Court 
on April 17, 1806 — U. S. Senate, Exec. Journal, 2: 32, 33, 34; and as chan- 
cellor (vice Davis) on November 24, 1807 — Gibson, Exec. Journal, 144. 
He seems to have served in the General Court until Indiana became a 
state, and as chancellor until the court was abolished in 1813. Monks, Courts, 
1 : 39 ; 2 : 404. In 1812, he was an unsuccessful candidate against Jonathan 
Jennings for the office of delegate to Congress. He was one of Indiana's 
first two United States Senators (a Democrat), serving from December 12, 
1816 to March 3, 1825. Died in Virginia, August 26, 1826. The preceding 
statements, if other authority is not cited, are based upon the Biog. Congres- 
sional Directory, 1774-1911, 1046; Nat. Cycl. Amer. Biog., 4: 531; Lamb, 
Biog. Diet, of the U. S., 7 : 295. 

7. See ante, xvi. Born in New Jersey in 1777 (Gibson, Exec. 
Journal, 109 n., has it 1787), he moved to Kentucky in 1797. He studied 
law at Lexington in the office of James Brown (minister to France in 
1823-1829, G. W. Ranck, History of Lexington, 151). According to 
Dunn — Indiana, 322 — he began to practice law at Vincennes in 1801 ; but 
he was licensed by the General Court as a counsellor, with no earlier action 
on him as an attorney, on March 2, 1802 — Order Book, 1 : 22 — and by the 
Governor to practice as an attorney, on May 26, 1802 — Gibson, Exec. Journal, 
109. He became attorney-general on August 4, 1804 — Gibson, op. cit., 
Y2A. He was a member of the first House of Representatives of Indiana 
Territory, 1805, was elected delegate to Congress in September, 1805, was 
reelected in August, 1807, and resigned to accept appointment to the terri- 
torial court — Dunn, op. cit., 327, 328, 357 ; Harrison, Messages, 1 : 21 n., 304. 
His nomination to the General Court was confirmed on April 22, 1808 — 
U. S. Senate, Exec. Journal, 2: 81. He served as a circuit judge of the 
state of Indiana from December 21, 1816 to February 8, 1817 — Monks, 
Courts, 2: 812; and as a federal district judge from March 6, 
1817 (U. S. Senate, Exec. Journal, 3 : 73, 92, 93) until his death on July 12, 
1835. See Woollen, Sketches, 384-390. He founded the Indiana (State) Law 
Library and the Indiana Historical Society — Dunn, op. cit., 329. 

8. He was born in Geneva in 1758, the son of a Lutheran minister — 
Cauthorn, A History of the City of Vincennes, 184; but H. Adams, The 
Life of Albert Gallatin, €A6, would indicate 1759. A college mate of Gallatin 
at the Academy in Geneva (1775-1779), he was urged by the latter to come 
to America, and arrived in 1786. For a time they lived together in western 
Pennsylvania, and they remained affectionate friends throughout life. Gal- 
latin secured his appointment as register of the land office at Vincennes, 
1804-1835 (confirmed on November 20, 1804— U. S. Senate, Exec. Journal, 
1: 472, 473), and as such was one of the commissioners who investigated 



ccxxxviii ILLINOIS HISTORICAL COLLECTIONS 

land claims in the district of Vincennes, 1804-1806. He was one of the orig- 
inal trustees of Vincennes University in 1807 — post, 178. Unlike Gallatin, 
he seems not to have engaged at all in land speculation. He was character- 
ized by his friend as one of the purest of men ; too honest and too simple to 
win material success — H. Adams, op. cit. 645-646 (see also 15, 51, 60, 63, 
404-405). Henry Adams refers to him as "carrying on" — evidently in 1808 
or 1809 — "a fierce and passionate struggle with General W. H. Harrison, 
the governor, to prevent the introduction of negro slavery." And Harrison 
evidently feared his influence, for Gallatin judged it well to assure him 
that Badollet would not seek his displacement as governor — H. Adams, the 
Writings of Albert Gallatin, 1 : 463. In 1835 he resigned his office as reg- 
ister (his son Albert succeeding him — U. S. Senate, Exec. Journal, 4 : 504 — 
on January 13, 1836). In 1816 he served as a member of the first constitu- 
tional convention of Indiana — Dunn, Indiana, 425. He died on July 29, 
1837 — Cauthorn, op. cit., 185. There is no evidence that he studied law, 
but he studied and taught theology in Geneva — J. A. Stevens, Albert Galla- 
tin, 26. He was a very critical man, and it is evident that he reported to 
Gallatin that vice and intrigue were triumphant in Indiana Territory — 
H. Adams, Life, 133, 404. See also ibid., 15, 51, 60, 62. 

9. There were some peculiarities about this office. The attorney-gen- 
eral was a territorial, and therefore a federal, officer ; yet the earlier 
holders of the office were appointed by the governor — there is no evidence 
of presidential appointment. In later years, after Illinois became an inde- 
pendent territory, it seems that the president appointed — Monks, Courts, 
2 : 405. On claims by the territory because the attorney-general was called 
upon to do work for the United States see ante, clx. 

Appointments of special prosecuting attorneys, or deputy attorneys- 
general, were numerous. Thus, on May 21, 1808, John Johnson "was ap- 
pointed Attorney General of this Territory to Prosecute in behalf of the 
United States, Abigail Rough," etc. (Gibson, Exec. Journal, 146) ; but 
on June 2, Thomas Randolph "was appointed Attorney General of the 
Indiana Territory, vice Benjamin Parke Esqr." (146). This was especially 
true in Randolph's term during which both he, and others after his resigna- 
tion, were also appointed "prosecuting attorney" for individual counties — 
Clark, Dearborn, Franklin, Harrison, Jefferson, and Knox — {ibid., 169, 176, 
179; also index under counties, civil appointments). Though none appear 
in the Journal for Randolph and St. Clair counties, at any time, it is a 
fact that various attorneys (Robert Hamilton, Robert Robinson, Benjamin 
Doyle, Edward Hempstead, George Bullitt, and perhaps others) so served in 
the circuit courts in Illinois. 

10. The chief authorities are Chic. Hist. Colls., 4: 230-270 (an un- 
critical sketch by W. A. Burt Tones) ; Revnolds, Pioneer History. 170-172, 
179-181, and My Own Times, 128 ; Monks, Courts, 2: 404-405. There are 
important inconsistencies in dates between these authorities. The first is 
followed in such cases, and for statements when no other authority is cited. 

He was born in Wales on February 10, 1759 ; is said to have been 
educated at Oxford in letters, and afterwards to have taken "a regular 
course" in both law and medicine. He "came" to this country in February, 
1784, practiced law for two years in Philadelphia, and then removed to the 
west. 

In September, 1786, at Louisville, Kentucky, he joined the army under 
George Rogers Clark which that autumn campaigned against the Indians 
of the Wabash country. For this army (perhaps as a lieutenant in rank) 
Jones bought supplies in the Illinois country ; on this "depredation and 



APPENDIX ccxxxix 

plunder," as viewed by Governor St. Clair (Clark was invading territory 
of the United States), see St. Clair Papers, 2: 168. Jones acted at great 
danger to himself both then and later in opposing John Dodge, Connecticut 
bully of Kaskaskia, and the courage he displayed was evidently the only 
thing needed to break Dodge's prestige, for he soon was forced to remove 
to the Spanish side of the Mississippi : Alvord, Kaskaskia Records 
(I. H. C, 5), 426, 430, and Illinois Country, 367-368, 372: compare St. Clair 
to Jefferson — St. Clair Papers, 2 : 168, 399. He was made commissary of the 
garrison established by Clark at Vincennes in October, 1786 — Boggess, 
Settlement of Illinois, 54, citing secret Journals of Congress, at which time, 
or soon after, his family were also there — Dunn, Indiana, 164, 167-168. He 
was not awarded, and did not claim, a donation as head of a family in 
Illinois before 178&—Amer. State Papers: Pub. Lands, 2: 151, 163, 288. 

His residence during the next decade, contrary to various statements, 
was in Illinois. In October, 1789, we find him writing from Kaskaskia 
as a resident thereof — Alvord, Kaskaskia Records (I. H. C, 5), 517; in 
July 1790, he is listed as one of the effectives in Pierre Gamelin's militia 
company at Vincennes — Law, Colonial Hist, of Vincennes, 157; but 
also on the Kaskaskia roll of August 1, 1790 — Chic. Hist. Colls., 4 : 210 (and 
his militia right was affirmed by the land commissioners, Amer. State 
Papers: Pub. Lands, 2: 170) ; in 1792 the court at Cahokia employed him 
to translate the laws into French for the French judges — ante, xvii, n. 3; in 
1793 he was licensed as a merchant at Kaskaskia — Brink, McDonough, 
Hist, of St. Clair County, 83 ; sometime in the 1790's he seems to have 
practiced law in both St. Louis (Missouri) and the Illinois courts — 
Billon, Annals 1804-21, 161, 162 (as of 1796) and Reynolds, Pioneer 
History, 181 (before 1794) ; and in 1795 he was appointed by Judge Turner 
deputy clerk of the St. Clair Court. St. Clair maintained that this was 
illegal ; but it would hardly seem so under his own orders — St. Clair Papers, 
1 : 195 ; 2 : 165 n., 172 — regarding William St. Clair's plural offices ; the Gov- 
ernor also referred to Jones as of "known bad character," ibid., 372 — the rea- 
son, almost certainly, being his acts for "the Wabash Regiment" above re- 
ferred to. In 1798 he was prothonotary of Common Pleas of Randolph Coun- 
ty {Court Record 1 : 269 — April 1798), and a deed in Deed Record J, of that 
county (p. 148) shows that he was still in Illinois in January, 1800. He was 
still there in the following spring — Reynolds, My Own Times, 17. He 
must have returned shortly thereafter to Vincennes ; if W. A. Burt Jones, op. 
cit., 235 is correct in saying that Secretary Gibson found him resident there 
in July, 1800; but the only case noted in the records of the Randolph courts 
in which Jones appeared as counsel was one of the November term of 1800 
in which he was defendant — Charles Gratiot v. John Rice Jones, Randolph 
Common Pleas, 2 : 120 ; ante, cci-ccii, n. 2. 

On January 29, 1801, he was appointed attorney-general of the terri- 
tory — J. Gibson, Exec. Journal, 95. His examination for license as coun- 
sellor was set, however, by the General Court (at its first session on March 
3, 1801) for September 7, 1801 — Order Book, 2. He was secretary of the 
Vincennes slavery convention of December, 1802 — Ind. Hist. Soc. Pub., 2 : 
468, 469 ; although not a delegate thereto — Dunn, Indiana, 305 ; and the con- 
vention recommended him for appointment as chief -justice of the territory — 
ibid., 307. He resigned the attorney-generalship some time before August 4, 
1804, when his successor was appointed — Gibson, Exec. Journal, 124. 

It is barely possible that he went to the Illinois country temporarily 
after the appointment in 1804 of the commissioners to investigate land titles 
in the same, for by special act of Congress passed in 1819 he was given 



ccxl ILLINOIS HISTORICAL COLLECTIONS 

compensation, not to exceed $281, for services rendered to them "as an in- 
terpreter and translator of the French language" — U. S. Stat, at Large, 
Private Acts 1789-1845, p. 229, act of March 3, 1819; Annals, 15 Con- 
gress, 2 session, index. See ante, c, n. 1. He was not clerk or deputy 
clerk of the first board (Robert Robinson and James Finney held those 
positions) ; moreover we know from his deposition given years later that 
he was in attendance with the second board, which was the one which re- 
jected on the ground of fraud a claim whose confirmation he later sought 
from Congress. It was therefore the second board, almost certainly (the 
first board is assumed in Chic. Hist. Colls., 4: 248), which he aided as trans- 
lator — cp. Amer. State Papers: Pub. Lands, 2: 216-217; 3: 394. On the other 
hand the General Court in September, 1804, ordered several lawyers (William 
C. Carr, Rufus Easton, John Taylor) to be examined by him and Benjamin 
Parke at the opening of the autumn Randolph circuit; and as Parke, who 
had just become attorney-general would properly be on circuit, it is plain 
that Jones expected to be in Illinois — General Court Order Book, 1 : 105. 

Selected in April, 1805 for appointment by the President to the Legis- 
lative Council (Harrison, Messages, 1: 126-128), his appointment was con- 
firmed on January 6, 1806 (U. S. Senate, Exec. Journal, 2: 9, 10, 13). 
He served as president pro tern, of that body in the second session of the 
first Assembly (this volume, post, 175 et seq., Dec. 1806), and as president 
in the second session of the second Assembly {post, 646 et seq., Sept.-Oct. 
1808). Meanwhile he had served as "Clerk to the Commissioners of the 
Land Office at Vincennes District" — at least in 1806, Amer. State Papers: 
Pub. Lands, 1 : 579. Meanwhile, also, he had quarreled with Harrison ; 
which was one of several causes that prevented his election as delegate of 
the territory to Congress, although he evidently held the balance of power- 
Dunn, op. cit., 368, 376. 

This quarrel was of momentous consequences to both men. Mr. Esarey — 
(in Harrison, Messages, 1 : 296 n.) says that they "parted when Jones be- 
came interested in land speculation." But he had then for many years been 
speculating in lands, as the Governor perfectly well knew. The excuse for 
their final break in 1808 is shown by the documents printed by Mr. Esarey 
(ibid., 296-299) ; namely his indictment for corrupt practices while attorney- 
general several years before (ante, cc, n. 6). Though Harrison had in 
the meantime (1805) recommended him to Jefferson for appointment to the 
Legislative Council, his excuse was that Jones had conducted himself with 
such "art" as to deceive everybody. He was, the Governor assured the 
President in 1808, "really one of the most abandoned men I ever knew" 
(letter of July 16, 1808, Harrison, Messages, 297) . Mr. Esarey interprets this 
statement morally, and takes it seriously — Ind. Hist. Bulletin, February, 1924, 
p. 54. So interpreted, there is apparently no shred of evidence to support it. 
It should evidently be read politically. The underlying difficulty was perhaps, 
as Dunn suggested, that Jones was not appointed to the territorial court. 
Dunn, Indiana, 361. Although recommended by the convention of 1802 for 
appointment as chief-justice (ibid., 307), he was not appointed, and he was 
supplanted in Harrison's counsels by Parke and the Governor's fellow 
Virginians, and doubtless this rankled. Supervening upon, though possibly 
deriving from, this difficulty was one undoubtedly even more important ; 
namely, Jones's activity, and that of his son Rice Jones in Randolph, in 
advocating division of the territory. This is the view taken by W. A. Burt 
Jones, Chic. Hist. Colls., 4: 244-246. The triumph of the separationists, or 
anti-Harrisonians, in Randolph County in the election of August 13, 1808 — 



APPENDIX ccxli 

Rice Jones being returned to the House of Representatives {ante, li) was 
coincident with Harrison's denunciation of Jones. Read politically one can 
make sense of Harrison's statement that "his whole conduct" after appoint- 
ment to the Council had manifested "a total absence of moral & Political 
virtue & a most rancorous enmity, both to the administration of the General 
Government & that of the Territory." Harrison, Messages, 1 : 298. There 
is no independent evidence whatever to support such charges. They evidently 
sprang from Harrison's political intemperance. Yet Harrison should have 
anticipated independence of action, for Jones had shown it in the past. In 
further explaining his earlier recommendation of him for the Council Har- 
rison says : "His talents are unquestionable — And he had taken so decided 
a part in favor of the second Government altho one of the largest land- 
holders in the Territory, & altho a professed Federalist had manifested 
so much Moderation that it appeared to me that he could not with Justice 
be neglected in the arrangement of officers consequent upon the change of 
System." Harrison, Messages, 1 : 297. Jefferson showed acumen and good 
sense in not removing him. 

After this quarrel Jones "formed an alliance with William Mcintosh 
and Elijah Backus for newspaper work against the opposition, and their 
bitter articles goaded their enemies almost to madness." Dunn, Indiana, 
362. It is hinted by Mr. Esarey that he had earlier aided Isaac Darneille in 
composing the Letters of Deems — post, app. n. 81 ; Ind. Hist. Bulletin, 
February, 1924, p. 58. His bitterness against Harrison, perhaps as much as or 
more than distrust of Jesse B. Thomas, explains his requiring that the latter 
sign a bond to work for division before permitting his election — ante, li, 
n. 3. After Harrison's dissolution of the General Assembly in October, 
1808, he immediately (W. A. Burt Jones, op. cit., 238) removed once more 
to Kaskaskia. Mr. Esarey, referring to Jones (apparently) as co-author 
with Isaac Darneille of the Letters of Deems, says that the former "when 
charged with bribery fled the jurisdiction" — loc. cit. This is wide of the 
facts. He retained his office in the Council ; he was elected its president 
(see signatures to the laws of 1808, post 646 et seq.) for the session following 
Harrison's vitriolic denunciation of him — we may certainly assume, despite 
Harrison's opposition. After that he did leave the Territory. 

In Kaskaskia his eldest son was murdered in December, 1808 — ante, xciii. 
He finally, in 1810, removed to Louisiana Territory (Missouri), where he 
practiced law, and mined lead at Potosi. He was appointed to the Legis- 
lative Council of Missouri Territory — nominated January 7, confirmed 
January 11, 1815: U. S. Senate, Exec. Journal, 2: 601, 602 (though accord- 
ing to Houck he took his seat in December, 1814) ; holding the office, ap- 
parently, for but two years ; was named by the legislature a trustee of an 
academy at Potosi incorporated in 1817; and was one of the most con- 
spicuous members of the Missouri constitutional convention in 1820. Al- 
though an unsuccessful candidate for election by the first legislature to the 
U. S. Senate (1820), this was after his appointment as a justice of the 
first Supreme Court of the state, in which position he served for four years. 
He died on February 18, 1824. Houck, Missouri, 3 : 6-8, 69, 249, 256-257, 
266, 267. According to Houck he established his home in Ste. Genevieve 
in 1804, "but continued the practice of law both at Kaskaskia and Vincennes" 
{ibid., 257). This seems impossible. Houck gives the death-date as above, 
and as he quotes from a contemporary newspaper this date is adopted; 
although February 1 is the date given by W. A. Burt Jones, op cit., 254. 
Billon, Annals 1804-21, 30, gives him as elected to the Council in 1816. 



ccxlii ILLINOIS HISTORICAL COLLECTIONS 

On his land claims (and a forgery charge against Jones) see ante, xcix. 
Governor Reynolds is certainly not an impeccable character witness, but on 
the whole his characterization of Jones {My Own Times, 128) — as having 
"sustained his professional, official, and private character and standing, as a 
gentleman and scholar, during his long and eventful life in the Valley of the 
Mississippi" — is unquestionably much truer than Harrison's. His family 
was also remarkable. One son held high office in Texas during its era 
of independence, another was a senator of the United States. See W. A. 
Burt Jones, John Rice Jones {Chic. Hist. Colls., 4), 260 et seq. 

11. According to Woollen, Sketches, 391-398 (which is followed 
except where other authority is cited), he was born in Virginia in 1771, 
was graduated from William and Mary, subsequently studied law, served 
one term in the Virginia legislature, and arrived in Indiana Territory by 
May, 1808. He was appointed attorney-general on June 2, 1808 — Gibson, 
Exec. Journal, 146 ; and held the office until killed at Tippecanoe, November 
7, 1811. It was on September 6, 1808, that he produced his commission 
and took the oath of office before the General Court — Order Book, 1 : 264. 
A report by him upon John Rice Jones's alleged corruptions (so soon after 
his arrival in the territory that it arouses suspicion of politics) was the 
basis of Harrison's charges against Jones discussed in app. n. 10. As Mr. 
Esarey does not print this report in Harrison's Messages it is presumably 
lost. Like other prominent Virginians in the territory he followed Harrison 
and was close in his councils. In 1809 he was the candidate of the pro- 
slavery or Harrison party for delegate to Congress, but was defeated (May 
22, 1809) by Jonathan Jennings. He was counsel, with General Washing- 
ton Johnston, for Harrison in his successful libel suit against William 
Mcintosh — ante, lxi. Mcintosh and John Johnson {ante, cxii, n. 1) were 
numbered among his special enemies. 

12. According to Monks, Courts, 2: 808, he was clerk both of the 
General Court and of the Knox County Common Pleas from 1801 to 1816 ; 
presumably also of the Quarter Sessions 1801-1805 — cp. post, app. n. 36. 
A charge against him of corruption in office is mentioned ante, cc. 

13. Michael Jones was born, according to Reynolds, in Pennsylvania. 
In nominating him for the office of register of the land office at Kaskaskia 
the President described him as "of Ohio" ; he was confirmed on November 
20, 1804— U. S. Senate, Exec. Journal, 1 : 472-473. This was his first fed- 
eral position. He held the office for many years ; apparently continuously 
until his death. He was appointed a last time on March 2, 1821 — U. S. 
Senate, Exec. Journal, 3 : 251, 254. The Senate's Journal shows no appoint- 
ments between 1804 and 1821 ; but the continuity of his service is indicated 
by the various statutes extending the powers of the first board of com- 
missioners (Jones and FClijah Backus) until 1810 — ante, lxxx, n. 1; then, 
by the form of the reports of the second board of commissioners, 1812-1813 
(Jones, John Caldwell, and Thomas Sloo) — cp. Annals, 12 Congress, 1 
session, 2237 (act of February 20, 1812) with reports in Amer. State 
Papers: Pub. Lands, 2: 210 et seq.; and finally by the reports from the 
Kaskaskia office in ibid., 3 : 2, 385 ; 4 : 9, — in later years. The date of his 
last report clearing up unfinished business of the second board was January 
18, 1813. 

It is clear enough that Harrison supported him against the clamor 
that rose when he uncovered the land frauds ; as well he might, not only 
for moral but also for political reasons, for all the chief offenders were 
members of the Edgar-Morrison divisionist group (they were united only 
as Masons — Bateman and Selby, Hist. Ency. of Illinois, 1: 176). In Febru- 



APPENDIX ccxliii 

ary 1805 — the commissioners apparently began their work on January 1 — 
Harrison, in a letter introducing him to August Choteau, spoke of him as 
"a gentleman of worth and integrity & one who possesses my entire con- 
fidence" — Messages, 1: 116. In December, 1805, the Governor appointed 
him to the reorganized Common Pleas — Gibson, Exec. Journal, 131 ; but 
he never sat, and in February, 1806, George Fisher was appointed to the 
court, "vice Michael Jones Resigned" — ibid., 132. In May, 1807, in a 
letter to Pierre Menard Harrison refers to having "hitherto entrusted 
the management of the Indian business in the Illinois country" to Jones — 
Messages, 1 : 214. Finally, he was the candidate of the Harrisonians for 
delegate to Congress, against Jesse B. Thomas, in October 1808 ; receiving, 
however, only three out of ten votes — Alvord, Illinois Country, 425 ; Dunn, 
Indiana, 368, 376-377. Undoubtedly his decided ability was generally recog- 
nized, and no doubt he was generally respected (note e. g. that he was one 
of the trustees of Kaskaskia chosen by the legislature in September, 1807 — 
post, 568) ; it is difficult, however, to understand the strategy of such a 
candidacy — whether it was simply an appeal to the sentiments of decent 
men, or particularly one to Indiana prejudices against the Illinois di- 
visionists. 

It is very plain that Jones did indeed possess the governor's entire 
confidence. Nevertheless, the statement of Alvord that "the members 
of the Edgar-Morrison faction were fighting for property and honor in 
their effort to overthrow the governor's ring" {Illinois Country, 424 ; italics 
added) embodies, aside from the "property," nothing but regrettable mis- 
apprehensions ; it implies a full acceptance of the only argument that the 
defrauders could use in appealing to localism in the Illinois counties, 
making themselves out defenders of and sufferers for the community of 
which in truth they were despoilers (as Alvord knew — ibid., 421). 
Alvord also says that "there was an element of politics in the whole process 
of investigation which should have been avoided by referring the questions 
at issue to United States courts" {Illinois Country, 421; italics added). 
No evidence whatever has been discovered that supports the phrase italicized ; 
and the statement misses the point that only favorable reports were con- 
firmed by Congress, leaving claimants free to assert in the courts claims 
reported on by the commissioners adversely. It also overlooks the fact that 
the primary duty and object of the statute was to protect the claim of the 
United States to public land {ante, xcv, n. 2) ; this could not be settled 
in private lawsuits. He also says {Illinois Country, 427) of Jones that 
"his passion and that of his opponents had involved the question of the 
land titles in a partisan strife," and {ibid., 424) that "the infusion of this 
question . . . into politics weakened the effect of the commissioners' 
report and strengthened the suspicion of the judicial character of their de- 
cisions" (italics added). This italicized matter seems to the writer 
unfair to Michael Jones. It rests, probably, upon Reynolds' statement 
{Pioneer History, 352) that Jones was sometimes overwhelmed by passion, 
and upon a desire to compromise which was uncorrected by a careful 
study of the commissioners' reports. But of course Alvord is correct in 
stating that the discrediting and banishment of Jones became a chief pur- 
pose of the defrauders. That they failed is evident from their own political 
fate — ante, lix, n. 3. The drift of popular opinion is only apparent in the 
election of Jones to the lieutenant-colonelcy in the Randolph militia — 
Alvord, op. cit., 426 ; Edgar himself being colonel all these years since 
1800 — ante, lix. (Elections were sometimes held to guide the governor in 



ccxliv ILLINOIS HISTORICAL COLLECTIONS 

appointments — cp. app. n. 19 ; but in this case the appointment of Jones does 
not appear in Gibson's Journal). The bitterness that accompanied and fol- 
lowed the election of 1808, the murder of Rice Jones, the charges made by 
the Edgar faction against Michael Jones of complicity therein, and the result 
of his libel suits against Edgar and William and Robert Morrison, are 
discussed ante, xciii-iv. The career of Michael Jones after 1812 is obscure. 
The opposing faction sought the confidence of Ninian Edwards immediately 
upon his accession to the governorship of Illinois Territory — Ninian W. 
Edwards, Hist, of Illinois, 28-30) ; Washburne, Edwards Papers, 40. 
That they gained it is manifest from his favors to Robert Morrison (post, 
app. n. 70), his removal of Michael Jones from his militia command in 1811 
(Buck, Illinois in 1818, 201), and his later aid to John Rice Jones in at- 
tempting to reverse one galling decision of the second board commissioners — 
ante, xcix-c. Whether the Michael Jones named by Reynolds — My Own 
Times, 134 — as a leader of the anti-Edwards party was the land commis- 
sioner, or was the Shawneetown politician is a question still obscure. Ac- 
cording to Mr. Buck it was the land commissioner who was an unsuccessful 
rival of Ninian Edwards for the United States senatorship in October, 1818 — 
op. cit., 303 (though the index states — erroneously in that case — "of Gal- 
latin" County). This is presumably correct; although no evidence survives 
of political activity, popularity or ambition on his part in the years 1808-1818. 
On the other hand the other Michael Jones, although young, had already 
been a member of the constitutional convention (111. State Hist. Society 
Journal, 6: 358), was a senator in this first General Assembly (The Illinois 
Intelligencer October 7, 1818, p. 2), with a prominent career ahead of him, 
and, being a half-brother of Jesse B. Thomas and a brother-in-law of an- 
other enemy of Edwards (Buck, op. cit., 201), might well have been the 
candidate — as it is stated in J. M. Palmer, Bench and Bar of Illinois, 2 : 852, 
that he was in 1820. Although it is surprising that Reynolds (and others) 
should not have noted such a fact in the life of the land commissioner, it 
would be more surprising that no comments should survive had Edwards' 
ambitions been challenged simultaneously by two brothers. He died on 
November 26, 1822— Buck, op. cit, 201 n. 

14. Elijah Backus was receiver in the land office at Marietta when ap- 
pointed to the same office at Kaskaskia on November 20, 1804 — U. S. Sen- 
ate, Exec. Journal, 1 : 353, 354, 472, 473. He signed with John Edgar and 
others the proslavery, prodivision petition-of-20, January 17, 1806; Ind. 
Hist. Soc. Pub., 2: 502 (Dunn's transcriber made the name "Barker"). 
He is named as one of the "convention" that framed the preceding — ibid., 
503. It was doubtless this petition which he himself took to Washington, 
whither he was sent by the Edgar-Morrison party to urge division upon 
Congress — Dunn, Indiana, 350. He cooperated with John Rice Jones and 
William Mcintosh, after the former's break with Harrison in 1808, in bitter 
newspaper writing against the Harrisonians — ibid., 362. In the land mat- 
ters it pleased the Ederar group to regard Backus as the tool of his col- 
league. The utterly silly nature, from the legal standpoint, of the charges 
against Judge Backus and others can best be judged bv the passages from 
a Morrison record printed in Chic. Hist. Colls.. 4: 278-279. The date of the 
last report by the first board of land commissioners — Amer. State Papers: 
Pub. Lands, 2: 239 — was January 5, 1811. 

15. John Caldwell was appointed receiver of the Kaskaskia land office 
on April 1, 1812, and to the same office at Shawneetown on October 3, 
1814 — U. S. Senate, Exec. Journal, 2: 242, 531. 532. In nominating him 



APPENDIX ccxlv 

in 1812 the President described him as of Indiana, and in 1814 as of Illinois 
Territory. The date of the final report of the second board was January 4, 
1813. 

16. Thomas Sloo was chosen, with Michael Jones and John Caldwell, 
as the third member of the second board of land commissioners — Annals, 
12 Congress, 1 session, 2237, § 1. On October 3, 1814, he was made reg- 
ister at Shawneetown — U. S. Senate, Exec. Journal, 2 : 531, 532. The date 
of the final reports made by the second board was January 4, 1813. 

17. According to Governor Reynolds, whose sketch of Hay was based 
upon long personal acquaintance and is suffused with admiration and affec- 
tion, Hay's father was a Pennsylvanian, the last British governor of Upper 
Canada; his mother was a French native of Detroit. He himself married 
a French creole of Cahokia. Born at Detroit, 1769 ; settled in Cahokia, 
1793 ; died at Belleville, 1843 — Pioneer History, 225-230. He received a good 
schooling, used French and English with equal ease, and in addition pos- 
sessed in eminent degree the ability and honesty that made him an invaluable 
public servant. In 1793 he was licensed as a merchant at Cahokia — Brink, 
McDonough, Hist, of St. Clair County, 83. But he soon drifted into politi- 
cal life. He was, it is said, appointed by Governor St. Clair on February 
15, 1799, clerk of the Quarter Sessions, the Common Pleas and the Orphans' 
Court, and also treasurer — Brink, McDonough, Hist, of St. Clair County, 
46. But he was clearly clerk of the Common Pleas earlier, for cp. ibid., 71 ; 
and it is extremely probable that he held these offices, all or some of them, 
from at the latest 1795 onward. The record of the Orphans' Court: 1797- 
1809 refers (p. 11) to William Arundel, "late Clerk of the Orphans' Court," 
as having on May 9, 1799, given up all papers thereto pertaining "according 
to the receipt given him by John Hay." (Arundel was also "clerk to the 
Qt Sessions from 1795 to 1799," ibid., 40: account disallowed). He was 
sworn into office {ibid., 13) on October 9, 1800. On August 1, 1800 
Governor Harrison made him treasurer, recorder, and clerk of the Quarter 
Sessions and Orphans' Court; and on December 10, 1805 clerk of the new 
Common Pleas — Gibson, Exec. Journal, 94, 130. He accompanied Har- 
rison and the judges of the General Court to St. Louis in 1804 — Reynolds, 
Pioneer History, 229; Dunn, Indiana, 326. In 1805 President Jefferson gave 
him a recess appointment to the Legislative Council, probably about May or 
June; but although a friend, and in general apparently a political supporter 
of Harrison, he resigned, so that his appointment did not come before the 
Senate in December for confirmation — U. S. Senate, Exec. Journal, 2: 9, 11 ; 
Harrison, Messages, 1 : 127, 174, 187. He was therefore actually a Coun- 
cillor for some months, but whether he actually sat (I have not seen the 
journals of the Council) is doubtful. As it is not known when his resigna- 
tion was accepted his term is indicated as ending with the appointment of 
his successor. Michael Jones employed him in taking depositions relative to 
land claims ; which, as Governor Reynolds says, was "a very delicate 
trust" — Pioneer History, 228 — and a marked proof of confidence by one 
who gave no confidence lightly. He served as clerk of various county 
courts of St. Clair County from 1809 to 1836; circuit clerk, 1818-1841; 
probate judge, 1825-1842. He was also a member of the temporary county 
Court of Justices of 1818 — Bateman and Selby, Hist, of St. Clair County, 
2: 689, 690; Brink, McDonough, Hist, of St. Clair County, 76, but com- 
pare E. B. Greene and C. W. Alvord, The Governors' Letter-Books 1818- 
1834 (I. H. C, 4), 8 n. According to Governor Reynolds he made "a bare 
living" out of all his offices, and he notes with an emphasis that was merited 



ccxlvi ILLINOIS HISTORICAL COLLECTIONS 

the fact that he never speculated in land — Pioneer History, 228. See also 
Brink, McDonough, Hist, of St. Clair County, 46-47. 

18. Much confusion exists between Shadrach Bond "Sr." ("Judge" 
Bond) and Shadrach Bond "Jr." ("Captain" or "Governor" Bond) ; cp. 
the index of Buck, Illinois in 1818, s. v. "Bond, Shadrach." The former 
was by birth a Virginian. Reynolds gives 1781 as the date of his arrival 
in Illinois — Pioneer History, 113; but according to his own testimony in 
court in 1781 (when he was, he said, about 30 years old) he had come 
with Clark (in 1779), and after his discharge was a day laborer 
for the inhabitants — May Allinson, "A Trial Scene in Kaskaskia in 1781," 
Transactions of 111. State Hist. Society, 1906, p. 267 ; English, Con- 
quest of the Northwest, 1060. He signed B. Tardiveau's contract with 
the Americans in 1787 — Alvord, Kaskaskia Records (I. H. C, 5), 444; 
and the land commissioners affirmed his claim to a family right as a resi- 
dent head of a family before 1788 — Amer. State Papers: Pub. Lands, 2: 
162; see also 217, cl. 321, and 219, cl. 322. On September 28, 1795 he was 
appointed a justice of the Common Pleas — see letter patent in Brink, Mc- 
Donough, Hist, of St. Clair County, 69. And doubtless he was also made a 
justice of the Quarter Sessions, for he was one of the four judges who on 
August 5, 1796 proclaimed the opening of the Orphans' Court, whose record 
shows him sitting regularly in 1797-1799, in one term of 1803, 1804, and 1806, 
and regularly again in 1807-1808. His last appearance was in July, 1808, 
when, having resigned, he was succeeded by Shadrach Bond Jr. {Orphans' 
Court: 1797-1809, 43). He also succeeded William St. Clair as probate judge 
when the latter died (post, app. n. 41, and Brink, McDonough, Hist, of St. 
Clair County, 83), and was still serving as such in 1805 (September, 1805 — 
Orphans' Court: 1797-1809, 27; doubtless he served until January 1, 1806), 
although no such appointment under Indiana Territory is recorded in the 
Executive Journal. Meanwhile he represented his county in the first legis- 
lature of the Northwest Territory, which met at Cincinnati on September 
23, 1799—57. Clair Papers, 2: 439 n. and 446-447 n.; Burnet, Notes, 289. 
Washburne, Edwards Papers, 44 n., erroneously states that Shadrach 
Bond Jr. was the delegate (and gives the date as 1789). He signed the 
proslavery petition forwarded to Congress under date of October 1, 1800 — 
Ind. Hist. Soc. Pub., 2: 460. As the election was held on January 5, 
1799 — Brink, McDonough, Hist, of St. Clair County, 70-71 — it is improbable 
that Bond attended the preliminary meeting of the House of Representatives 
on February 4 to nominate members of the Legislative Council ; he was 
absent, however, from the February session of the Orphans' Court, present 
at the May session, and absent thereafter until September 1803. At an 
election held on December 7, 1802 he was chosen a delegate to the Vincennes 
slavery convention — Brink, McDonough, Hist, of St. Clair County, 71, 73 ; 
and doubtless voted for the petition of that body to Congress asking sus- 
pension of the antislavery article of the Ordinance — Ind. Hist. Soc. 
Pub., 2 : 462. The index (to p. 304) of Dunn's Indiana errs in making 
Shadrach Bond Jr. the delegate to this convention. He was named in this 
as the third judge, but he headed the commission appointed on December 26, 
1801 to try charges made against John Dumoulin — Gibson, Exec. Journal, 
105-106. Both Bond and Perrey signed the petition-of-350 which in 1805 
attacked Harrison for adoption of government of the second grade and 
demanded division of the territory — Ind. Hist. Soc. Pub., 2: 489, 491; 
Perrey's greater activity than Bond in land speculation seems primar- 
ily to have influenced Harrison in recommending the latter to the presi- 
dent in preference to the former (after having earlier given preference 



APPENDIX ccxlvii 

over Perrey to John Hay, who resigned the office — ante, app. n. 17, and 
Dunn, Indiana, 326), for appointment to the Legislative Council in 1805. 
The appointment was confirmed on January 9, 1806 — Harrison, Messages, 
1: 174-175, 186, 187; U. S. Senate, Exec. Journal, 2: 11, 13. (He was rec- 
ommended, November 20, 1805 ; nominated, December 23 ; confirmed, January 
9, 1806; and his commission forwarded, February 2, 1806 — these dates illus- 
trate the time then consumed in such changes, even when there was no 
opposition). He offered his resignation from the Council before August 31, 
1807 — Harrison, Messages, 1: 245-247. It is not absolutely clear whether 
Shadrach Bond Sr. was a member of the House of Representatives when 
nominated for the Council. The confusion on this point is immense — see 
e. g. Buck, Illinois in 1818, 187, 191 ; McDonough, Hist, of Randolph, Mon- 
roe and Perry Counties, 112; Harrison, Messages, 1: 230, note by Mr. 
Esarey. Most books (including Dillon) name the two men simply as 
"Shadrach Bond," without attempting to distinguish them. The journal of 
the Assembly in the Indiana Gazette (which Miss Nellie C. Armstrong 
of the Indiana State Library kindly examined for me) gives no aid. Ac- 
cording to Brink, McDonough, Hist, of St. Clair County, 71, 73, it was the 
elder Bond who on May 21, 1805 was elected; his later elevation to the 
Council creating a vacancy in the House which was filled in 1806 (at a 
special election of which there is seemingly no printed evidence) by the 
choice of the younger Bond; the latter subsequently succeeding his uncle, 
similarly, in the Council, thereby creating a second vacancy in the lower 
house that was filled by the election of John Messinger. These are the 
facts assumed in the table of members of the General Assembly as given 
above. But according to Dunn, who was acquainted with the Journals 
of the Assembly — Indiana, 327, 355 — it was Shadrach Bond Jr. who was 
elected in 1805 to the House of Representatives (giving the date May 20, 
on which the election should indeed have been held, but apparently was not) . 
If this be so the table is incorrect in including the elder Bond as a repre- 
sentative; and there was no need for an election in 1806. After 1807 he 
held no other offices. His death occurred in 1812, and he left a personal 
estate valued at $2879 — Brink, McDonough, op. cit., 83; Amer. State Papers: 
Pub. Lands, 2: 219, cl. 322. Governor Reynolds' characterization of him 
is apparently well deserved : "Judge Bond in his neighborhood possessed 
a standing for integrity and honesty that could not be surpassed . . . 
and when he acted for the public it was to accommodate them, not him- 
self. He possessed a strong mind and an excellent heart. He had 
a very limited education" — Pioneer History, 114-115; cp. his letter, Harrison, 
Messages, 1 : 177. Governor Harrison's judgment of him was very sim- 
ilar : "altho' he has had little advantage from education he posses [ses] 
a very strong natural capacity & his character for honesty has never been 
impeached. He is withall a staunch republican & much more popular than 
any other man in his County" — Messages, 1 : 175. On his land record 
see ante, lxxxiii. 

19. Shadrach Bond "Jr.", nephew of Shadrach Bond "Sr.", was born 
in 1773 in Maryland, and arrived in 1794 in Illinois. Apparently he held 
no public office before 1805. Examples of confusion between him and his 
uncle — by Washburne in making him a representative in the first 
legislature of the Northwest Territory (1799), and by Dunn in making 
him a delegate to the Vincennes convention (1802) — have been referred to 
in the preceding note ; and the question which was the representative of 
St. Clair County elected on May 21, 1805 to the first legislature of Indiana 
Territory is also there discussed. It is believed that he was first elected in 



ccxlviii ILLINOIS HISTORICAL COLLECTIONS 

1806 to fill his uncle's unexpired term (to June 30, 1807), and reelected 
on February 2, 1807 for a second term (to June 30, 1809) — Brink, McDon- 
ough, Hist, of St. Clair County, 71, 73 ; McDonough, Hist, of Randolph, 
Monroe and Perry Counties, 102; Dunn, Indiana, 355. Harrison's favor- 
itism toward him at this time was one of the "charges" against the former 
made by Isaac Darneille in his Letters of Decius (1805 — Goebel, Harrison, 
63-64). When his uncle resigned from the Council, he was nominated to 
fill the vacancy, and was appointed by the President — Harrison, Messages, 
1 : 245-247, 295 ; U. S. Senate Exec. Journal, 2 : 68 (nominated January 28, 
confirmed February 1, 1808). It was after this, apparently, that he re- 
signed his seat in the lower house — Gibson, Exec. Journal, 147, entry of 
July 6, 1808 stating that July 25 was the date proclaimed for election of 
Bond's successor as representative. On May 12, 1808 he was made judge 
of the Common Pleas of St. Clair County; again vice the elder Bond, 
who had resigned — ibid., 145. In the July term of the record of the Orphans' 
Court 1797-1809 is the entry : "Shadrach Bond Jun r came into court and 
was sworn in as a presiding Judge of this County Court of Common Pleas, 
and took his seat accordingly — Sharach Bon Sen 1- resigning — Shadrach 
Bon Sen 1 " off the bench" — loc. cit., 43. His second appearance was on 
March 20, 1809, after Illinois Territory was independent. His duel with 
Rice Jones in 1808 — presumably shortly before or after the bitter election 
of August in Randolph County, — followed as it was by the murder of Jones 
by Bond's second, did not of course, injure him with Harrison, but it 
probably did hurt him with Ninian Edwards. On July 7, 1806 Harrison 
had appointed him adjutant in the St. Clair militia, and on October 26, 
1808 lieutenant-colonel, vice George Atchison, deceased — Gibson, Exec. 
Journal, 134, 149. This office Secretary Pope had continued under the 
Illinois Territory (May 3, 1809). There is some evidence, however, and 
there was a contemporary feeling, that Governor Edwards leaned toward 
the Edgar-Morrison faction of Randolph — ante, xcix, n. 3 ; Bond, on the other 
hand, was more or less of the anti-Edwards group — Washburne, Edwards 
Papers, 150; Buck, Illinois in 1818, 201-202; T. C. Pease, Illinois Election 
Returns 1818-1848 (/. H. C, 18). Probably for political reasons Edwards 
displaced him in the militia by William B. Whiteside, Bond refusing to 
submit their rivalry to a popular election. "I shall send you the Certifi- 
cate" — he wrote on July 2, 1809 to Governor Edwards — "of Thomas Todd 
Esq 1 " which will enable you to judge wheather or not Whiteside has been 
that terror to Disorganisors as represented in his Potition. he has been 
indited for horse stealing" — see ante, lviii-ix, n. 3 — "and now lies under an 
inditement in this County Court for harboring runaway Negroes, these 
with other reasons I believe induced governor Harrison to give me the ap- 
pointment over Whiteside — as I never wrote to brake on the Corrector of 
anyman, I am sorry to be compeled to Do it now nor would I but to show 
your Excelency the Corrector of the man which you Propose for me to go 
into an election with .... I cannot condesend to put myself on a 
level with such a character as Major Whiteside" — Chic. Hist. Society, 
MSS; cp. Washburne, Edwards Papers, 45-46; Buck, Illinois in 1818, 202, 
says it was William B. Whiteside. He was made a justice of the peace 
by Edwards, December 9, 1809 ; and on April 4, 1812 a judge of the St. Clair 
Common Pleas — Greene and Alvord, The Governors' Letter-Books 1818- 
1834 (I. H. C, 4), 4 n. He served as the first delegate in Congress of 
Illinois Territory, October 10, 1812 (taking his seat December 3) to October 
3, 1814 when his appointment was confirmed as receiver of public money 
for lands at Kaskaskia — Brink, McDonough, Hist, of St. Clair County, 74; 



APPENDIX ccxlix 

U. S. Senate, Exec. Journal, 2: 531, 532. His correspondence while dele- 
gate in Congress is in Washburne's Edwards Papers, but contains prac- 
tically nothing of interest. He was elected on September 19, 1818 the 
first governor of Illinois (1818-1822) almost without opposition; probably 
because his rivals for election to Congress induced him to take the gover- 
norship and leave them unmolested — Buck, Illinois in 1818, 296, 299. On 
October 3, 1814 he was appointed receiver of public moneys in the Kas- 
kaskia land office — U. S. Senate, Exec. Journal, 2: 531, 532; which office 
presumably he resigned when elected governor (although seemingly his suc- 
cessor — Edward Humphreys — was not named until February 23, 1821 — 
ibid., 3 : 218, 246) . On January 28, 1823 he was appointed register, vice 
Michael Jones, deceased — ibid., 3 : 325, 328 ; and on January 5, 1827 was 
reappointed — ibid., 551, 555. He was defeated in 1824 by Daniel P. Cook 
in his candidacy for election to Congress — T. C. Pease, Election Returns 
(I. H. C, 18), 24. His death took place on April 11, 1830 according to 
Reynolds — Pioneer History, 327; on the 14th according to Washburne — 
Edwards Papers, 44 n. ; and in 1832 according to Greene and Alvord, 
op. cit., 4 n. Against a man of Daniel Cook's charm and force Bond's 
popularity, in earlier years sufficient to give him any elective office for 
the asking, was of no avail (though neither was the strength of anybody 
else in Illinois). In that later period, too, real political issues had come 
to exist; whereas in the territorial period there was little more than per- 
sonal groups. Both of the Bonds were seemingly plain and simple men, 
with nothing colorful in their personality— although Governor Bond seems 
to have possessed a certain bonhomie — yet they were the most popular men, 
each in his generation, in St. Clair County. Sound practical judgment and 
indubitable integrity were apparently the basis of their popular appeal. See 
a curious marriage item in McDonough, Hist, of Randolph, Monroe and 
Perry Counties, 140. 

20. William Biggs, according to Governor Reynolds, was born in 
Maryland in 1755, was a subaltern officer under George Rogers Clark in 
1778-1779, returned after the Revolution to western Virginia, and before 1788 
to Illinois — Pioneer History, 341-342. There is no evidence in the Clark 
Papers (I. H. C, 8 and 19), or in English's Conquest of the Northwest 
(see e. g. 1067) that he actually served under Clark. Nevertheless, by act 
of May 22, 1826 and "in consideration of his services as lieutenant in the 
regiment of the late General George Rogers Clark, which marched against, 
and subdued, the posts of Kaskaskias and Vincennes," Congress granted 
him three sections of land — U. S. Stat, at Large, 6: 353. According to the 
lists prepared in 1796 and 1797 by William St. Clair he was a head of 
family in 1783 and as such entitled to a land donation — Chic. Hist. Colls., 
4 : 205, 208 ; and his claim was confirmed to him by the land commission- 
ers — Amer. State Papers: Pub. Lands, 2: 162 (though they recognized 
claims for residence to 1788, ante, lxxxi). He signed the Tardiveau con- 
tract of 1787— Alvord, Kaskaskia Records (I. H. C, 5), 445. After the 
French court at Cahokia had suppressed the attempt of Americans at 
Bellefontaine and Grand Ruisseau to set up an independent magistracy, in 
August or September of 1787, they were permitted to elect justices of the 
peace, and on November 2 Biggs took the oath of office before the Cahokia 
court — Alvord, Cahokia Records (I. H. C, 2), cxlix, 307. Governor 
St. Clair appointed him sheriff of St. Clair County on April 29, 1790 — St. 
Clair Papers, 2 : 165 n. ; and according to May Allinson he was made a 
judge of the Quarter Sessions (but not of Common Pleas) in 1795 — 
111. State Hist. Soc. Trans. (1907), p. 290. There is some evidence that he 



ccl ILLINOIS HISTORICAL COLLECTIONS 

continued to act also as sheriff until 1798 — Brink, McDonough, Hist, of 
St. Clair County, 51, 71 (George Blair appearing as sheriff on January 5, 
1799), 77, 86-87; Bateman and Selby, Hist, of St. Clair County, 2: 690. 
Although not one of the judges who opened the Orphans' Court in August, 
1796, he sat in it fairly regularly— in 1797, 1800-1802, and again in 1804 and 
1805 — until the reorganization of the county courts in the last year, having 
been reappointed to the Quarter Sessions, and also appointed to the Com- 
mon Pleas, by Governor Harrison in 1800 — Gibson, Exec. Journal, 94. 
He was not reappointed to the new Common Pleas in 1805. In 1802 
he was an unsuccessful candidate for election to the Vincennes conven- 
tion. Contrary to the statement of Governor Reynolds, Pioneer History, 
343, he never served in the legislature of the older territory (1799), but he 
was elected on May 21, 1805 to the first General Assembly of Indiana Ter- 
ritory, and was reelected in 1807 — Brink, McDonough, Hist, of St. Clair 
County, 71, 73. He was not of the Harrison party, signing various of the 
Illinois petitions for division of the territory that were sent to Congress — 
ante, liii, n. 4; lvii. His integrity, however, was unquestioned. For 
his land record — ante, lxxxiii. He took proofs of land claims for the first 
board of land commissioners in St. Clair County — see Amer. State Papers: 
Pub. Lands, 2 : 133 ; and his evidence (along with that of Jean Bte. Barbau 
and others) was relied upon to disprove fraudulent claims — e. g. see ibid., 
134. From 1812 to 1816 he represented St. Clair County in the Legislative 
Council of Illinois Territory. At the same time he was a member, from 
October 1813 onward, of the first county court of St. Clair ; and again 
of the reorganized county court from February 1816 to January 12, 1818. 
Brink, McDonough, Hist, of St. Clair County, 76. He was defeated in 1818 
as a candidate for the state Senate. He signed an antislavery address to 
the "friends of Freedom" in Illinois while the constitutional convention 
was sitting in 1818. He died in 1827. Brink, McDonough, Hist, of St. 
Clair County, 51, 72; Buck, Illinois in 1818, 261, 301. 

21. John Messinger (he wrote well, and always used the i) was 
born in Massachusetts in 1771 ; migrated in 1799 to Kentucky with Matthew 
Lyon, who was his father-in-law ; and in 1802 removed to Illinois. He is 
more important as a surveyor and an educator than in political life. He 
surveyed large portions of the public domain in southern Illinois, partici- 
pated in the official demarcation of its northern boundary, and published in 
1821 a manual on practical surveying which must have been one of the 
earliest scientific books of the middle west. As an educator he was a 
man of importance. In evening schools and in private instruction he taught 
young and old, and according to Governor Reynolds many adults — in- 
cluding Governor Kinney — learned of him their letters. In 1827 he became 
professor of mathematics in the Rock Spring Theological Seminary and 
High School. See Reynolds, Pioneer History, index. In the election 
of July 25, 1808, in which Rice Jones (on August 13 post, app. n. 24) 
was elected by the prodivisionists as their representative in the lower 
house of the Assembly from Randolph County, Messinger was elected by 
them in St. Clair in succession to Shadrach Bond Jr. — Gibson, Exec. Journal, 
147 ; Harrison, Messages, 1 : 295 ; Brink, McDonough, Hist, of St. Clair 
County, 53 ; Dunn, Indiana, 366-367 ; ante. li. He was appointed county 
surveyor by Governor Edwards on June 22, 1809 ; was clerk pro tern of 
the lower house of the first legislature of Illinois Territory, November, 
1812; was appointed county treasurer on December 24, 1814. In 1818 he 
was a member of the Illinois constitutional convention, and voted with the 
proslavery party and land speculators. Buck, Illinois in 1818, 279-280, 



APPENDIX ccli 

289-292; 111. State Hist. Society, Journal, 6: 358, 380, 401-402. It is interest- 
ing to observe that he was president of an antislavery convention held at 
Belleville on March 22, 1823, at which was formed the "St. Clair Society for 
the prevention of slavery in the State of Illinois" — Alvord, Governor Ed- 
ward Coles (I. H. C, 15), 333-334. The explanation of this strange incon- 
sistency does not appear; though it is possible that Messinger was a man 
whose opinions could be changed by argument. The same year he repre- 
sented St. Clair County in, and served as speaker of, the first House of 
Representatives of the state. Buck, op. cit., 300; Greene and Alvord, Gov- 
ernors' Letter-Books 1818-1834 (I. H. C., A), 47 n.; Brink, McDonough, 
op. cit., 52-53. He died in 1846. 

22. Antoine Pierre Menard was a native of Quebec, born on October 7, 
1766; son of a Frenchman who fought for the American cause in the Revo- 
lution. As early as 1788 (Reynolds says 1786) he was working in the Indian 
trade for Francis Vigo at Vincennes. He removed in 1790 to Kaskaskia, 
and in 1792 became related by his first marriage to the Bauvais family; as 
he did by his second, in 1806, to the Saucier family of Cahokia. (Cp. post, 
app. n. 30). His militia claim, for service in or before 1790, was affirmed 
by the first board of land commissioners — Amer. State Papers: Pub. Lands, 
2: 172. He was licensed as merchant at Kaskaskia in 1793 — Brink, Mc- 
Donough, Hist, of St. Clair County, 83. He was doubtless appointed by 
Governor St. Clair in 1795 to the county courts of Randolph County. He 
sat before 1800 in the Common Pleas, as appears from the scanty records of 
that court — Common Pleas, 1 : 73, of July 1798. He also appears as a notary 
in the records of the time — e. g. in Deed Record J, of 1799. On August 
1, 1800 Governor Harrison appointed him to both the Quarter Sessions and 
Common Pleas — Gibson, Exec. Journal, 92, 93 ; the commission for the 
latter court is printed in the Chic. Hist. Colls., 4: 168, and is dated February 
5, 1801 ; also in Harrison, Messages, 1 : 23. He was reappointed in 1805 
to the new Common Pleas — Gibson, Exec. Journal, 131, under date of 
December 28 ; the commission, dated the 27th, is printed in Chic. Hist. Colls., 
4 : 171-172, and in Harrison, Messages, 1 : 182 ; it was effective January 1, 
1806 but he took the oath of office on July 18. He was notably regular 
in attendance during his eight years of service. On his land record see ante, 
lxxxv, lxxxvi, xc. He was county commissioner from 1803 to 1809 — 
McDonough, Hist, of Randolph, Monroe and Perry Counties, 125. He was 
one of the Randolph delegates to the Vincennes convention of 1802 — Dunn, 
Indiana, 304; see also ante, liv, n. 1. His commission of that year 
(September 24) to sit with John Edgar and Judge Griffin of the General 
Court in a court of general jail delivery is printed by Mason, Chic. Hist. 
Colls., 168-171, and in Harrison, Messages, 1 : 57-58. When the territory 
passed to representative government it was he and George Fisher who car- 
ried Randolph County for the change, against the efforts of the Edgar- 
Morrison party — ante, xxvi. The lower house of the Assembly — Fisher 
was the Randolph representative — nominated Menard for the Legislative 
Council and he was appointed by Jefferson — U. S. Senate, Exec. Journal, 
2 : 9, 10, 13 (nominated December 20, 1805 ; confirmed January 6, 1806) ; 
serving as president pro tern, in both sessions of the first Assembly — post, 
for signatures to laws in this volume. He resigned on Sep- 
tember 19, 1807— Harrison, Messages, 1 : 256 and 253, 263. The reasons 
are disputed; but whether or not one attribute to Menard disaffection with 
Harrison, it is clear that the resignations of Bond (Sr.) and Menard had 
great political significance in their effect, inasmuch as the elections thereby 
caused (see ante, 1) were the beginning of Harrison's loss of control over 



cclii ILLINOIS HISTORICAL COLLECTIONS 

the territory. When Illinois Territory attained in turn to representative 
government, Menard was elected to the Legislative Council in all three of 
the territorial legislatures, and served as president in all six sessions — 
McDonough, Hist, of Randolph, Monroe and Perry Counties, 40-41. In 
the struggle over slavery in December 1817 in the third territorial legis- 
lature he voted against the repeal of the indenture laws — Buck, Illinois in 
1818, 217. He stood aloof from the political factions of the period — Buck, 
Illinois in 1818, 202; his honors were due to his universal popularity. He 
served as first lieutenant-governor of the state, October 6, 1818 to December 
5, 1822. His election to this office was for one reason most remarkable. 
He was naturalized only in 1816; but the constitution (art. Ill, §§ 3, 13) 
required a lieutenant-governor to have been thirty years a citizen of the 
United States. The constitutional convention, to make Menard eligible, 
provided in the schedule for transition to the new regime (§ 14) merely 
that the candidate must be a citizen. Certainly a remarkable tribute ! — 
H. S. Baker, in Chic. Hist. Colls., 4: 153. This was the end of his service 
in state politics. In addition, like all the local gentry of that time, he held 
offices in the militia. St. Clair made him a major in 1795; Secretary Gibson 
renewed the office in 1801 — August 1 : Gibson, Exec. Journal, 93 ; Harrison 
made him lieutenant-colonel of the Randolph regiment in 1806 when John 
Edgar resigned — July 12 : ibid., 135 ; and Nathaniel Pope continued him 
in the office in 1809 (May 6). In addition to thus serving the three terri- 
tories of his successive allegiance, he received in 1809 (April 1) from 
Governor Meriwether Lewis of the Territory of Louisiana a commission 
as "Captain of Infantry in a Detachmt. of Militia, on special service" — 
the nature of which seems to be indeterminable. All these commissions 
are printed in Chic. Hist. Colls., 4 : 166, 167, 172, 173-174, 175. Meanwhile 
he had continued all these years his trading ventures. Reynolds states that 
he spent 1808 in the Rocky Mountains in the interest of "the mammoth 
company of Emanuel Liza and others" — Pioneer History, 294. He was on 
the bench frequently through 1807 and down to April, at least, of 1808; 
but may have gone thereafter. On April 2, 1813 he was appointed by the 
Secretary of War a subagent of Indian Affairs, and held the office many 
years — Chic. Hist. Colls., 4: 176; cp. Buck, Illinois in 1818, 13. With Lewis 
Cass he served as a commissioner in the negotiation of Indian treaties in 
1828— Chic. Hist. Colls., 4: 176. U. S. Senate, Exec. Journal, 3: 618 
(confirmed May 24, 1828). He died on June 13, 1844. His education was 
slight, but his career sufficiently evidences his reputation for public spirit, 
fair mindedness, and judgment. Nothing could speak more highly for his 
character than Reynolds' statement that "the Indians almost worshiped 
him" — Pioneer History, 292. In his very large dealings in lands the Kas- 
kaskia commissioners discovered nothing discreditable — ante, lxxxv, xci ; 
the Vincennes commissioners did him the signal honor of empowering him 
to take depositions and examine witnesses in his county relative to land 
claims of the Vincennes district — Chic. Hist. Colls., 4 : 171 (commission of 
December 14, 1805). The forgery of his name by fellow judges and land- 
jobbers — ante, lxxxix-xc — bears out Reynolds' statement that there 
was no guile or cunning in him. "Menard," he also says, "was first in 
almost every enterprise in pioneer times in Illinois." He was particularly 
interested in schools. See Revnolds, Pioneer History, 291-294; My Ozvn 
Times. 67. 113; E. G. Mason, "Pierre Menard," Chic. Hist. Colls., 4: 142- 
148; H. S. Baker, "The First Lieutenant-Governor of Illinois," ibid., 149- 
161 ; the "Pierre Menard Papers," ibid,, 162-180, most of which are cited 



APPENDIX ccliii 

above; Greene and Alvord, Governors' Letter-Books 1818-1834 (I. H. C, 4), 
10-11 n. 

23. Ante, ccii, n. 1. George Fisher, who settled in Kaskaskia in 
1798, was the most prominent physician of the Illinois country in the early 
1800's. In September 1802 he was licensed to keep a ferry across the Mis- 
sissippi, six miles below Kaskaskia; the tax upon it in 1803 and in 1805 was 
$5— Randolph Court Record, 1802-06,^ 6, 27 (June 1803), 91 (June 1805). 
In the December term, 1803 he was licensed to keep an inn in Kaskaskia — 
ibid., 42; and no doubt he continued to do so for years. He was also a 
merchant; for it appears that in 1805 he was delinquent on one retail license 
as well as for two tavern licenses — ante, cxx. To keep a ferry or a 
tavern was a certain sign of political favor. To be sheriff was to control 
politics. He had been made sheriff of Randolph County on August 1, 1800 — 
Gibson, Exec. Journal, 93 ; from which office he resigned, however, be- 
fore August 30, 1803, when James Edgar became his successor — ibid., 121. 
The county commissioners of Illinois Territory in 1810 allowed him $154 for 
his services, regular and "extra," from August 1, 1800 to August 20, 1803, 
"as per his account rendered and approved" — County Commissioners (1810), 
133. He was a county commissioner himself between 1803 and 1809 — Mc- 
Donough, Hist, of Randolph, Monroe and Perry Counties, 125. On January 
7, 1804 he was made a judge of both county courts — J. Gibson, Exec. Journal, 
122. Before this he had acquired extraordinary popularity. It was his in- 
fluence and Menard's that carried Randolph County in 1805 in favor of 
(whereas St. Clair opposed) transition to government of the second grade — 
ante, xxvi. In the election called for the first House of Representatives 
of Indiana Territory Fisher was chosen (on May 20, 1805) as representa- 
tive of Randolph County. He was reelected on February 2, 1807 — Gibson, 
Exec. Journal, 72; Dunn, Indiana, 277, 325, 327, 355, 365. When Pierre 
Menard resigned (ante, app. n. 22) from the Legislative Council, and he 
and James Finney were nominated by the House to fill the vacancy, Har- 
rison favored him in his recommendations to the President, and he was 
appointed on February 1, 1808 — Harrison, Messages, 1 : 253, 263 ; U. S. 
Senate, Exec. Journal, 2: 68 (nominated January 28, confirmed February 
1). When Illinois Territory passed to the second grade he was the repre- 
sentative of Randolph County and speaker of the House in both the first 
and the third Assemblies (Nov. 25-Dec. 26, 1812 and Nov. 8, 1813; Dec. 2, 
1816-Jan. 14, 1817 and Dec. 1, 1817-Jan. 12, 1818)— McDonough, History 
of Randolph, Monroe and Perry Counties, 40-41. In 1814 he was also a 
member of the reconstituted Common Pleas of Randolph County — ibid., 
181. He had always joined with the proslavery party in their petitions 
to Congress — ante, xxi, n. 1. The third legislature closed with an im- 
portant debate on slavery, in which Fisher took a leading part in defence of 
the indenture law. Slavery became the dominant issue in the campaign 
for delegates to the constitutional convention. Fisher was elected, and 
again stood with the proslavery party — Buck, Illinois in 1818, 215-218, 257, 
280; 111. State Hist. Society, Journal, 6: 358, 380, 401. But he was defeated 
as a candidate for election to the first state Senate, in 1818 — Buck, op. cit., 
300. He died in 1820. Reynolds' sketch of him is inadequate and evidently 
not based on close acquaintance — Pioneer History, 358. 

24. Rice Jones, the eldest son of John Rice Jones, was born in Wales 
September 28, 1781. He is said to have graduated from Transylvania 
Universitj', from_ Judge Reeve's famous law school at Litchfield, Connecti- 
cut, and— in medicine — from the University of Pennsylvania ; to have opened 
a law office at Kaskaskia in 1806; and to have been a young man of bril- 



ccliv ILLINOIS HISTORICAL COLLECTIONS 

liant abilities and promise. See Reynolds, Pioneer History, 172-174; Chic. 
Hist. Colls., 4: 271-284 — an uncritical memoir by W. A. Burt Jones. 
No trace whatever of his activity as a lawyer appears in the Randolph 
archives. The existing records of Transylvania University merely contain 
the name "Jones" in a list of "tuition monies, 1802," but presumably he 
was graduated. He certainly did not graduate in medicine at Pennsylvania, 
and there is no evidence that he attended any classes ; he certainly did not 
attend those of Dr. Benjamin Rush, said to have been his father's friend. 
(Chic. Hist. Colls., 4: 231), whose class books are intact. Nor is there any 
evidence that he completed a course of study at Litchfield, although the 
catalogs do list him as an attendant in 1807 (from Louisiana). It is there- 
fore most improbable that he opened an office at Kaskaskia in 1806. His 
name is not upon a single one of the petitions to Congress of 1806 to 1808. 
Of his abilities and personality there is, however, ample evidence in one 
field, that of politics. He joined the Edgar-Morrison faction — the divisionist 
or anti-Harrison party — in Randolph, and if he did not become its leader 
(as the two authors last cited state, although it is impossible to believe that 
he was more than a useful instrument of Edgar and the Morrisons), he 
did become one of its passionately ardent and prominent members when 
only 26 years old. To what extent this factional grouping was affected 
by opposition to the local land commissioners, Michael Jones and Elijah 
Backus — whose later reports, after these events, involved in charges of 
forgery John Rice Jones, Edgar, both Morrisons, and others of their group — 
is not clear ; Alvord says (Illinois Country, 424) that he "had thrown 
himself whole-heartedly" into their defence — although as yet there were no 
public reports of the commissioners' findings ; ante, lviii, n. 1. According 
to Dunn Judge Backus was ardently anti-Harrison (ante, t app. n. 14), 
yet it was he by whom John Rice Jones considered the life of his son to 
be threatened — see his letter in McDonough, Hist, of Randolph, Monroe 
and Perry Counties, 105. On the other hand Michael Jones was most cer- 
tainly and decidedly pro-Harrison — ante, app. n. 13 — yet he was generally 
charged with inciting Dunlap in his attacks upon Rice Jones. The order 
of events was probably thus : First, the break between John Rice Jones 
and Governor Harrison, for reasons no longer precisely determinable (ante, 
app. n. 10), probably much antedating the division campaign of 1808, but 
doubtless aggravated thereby, and possibly also by Jones's anticipation of 
the report of the commissioners ; second, the open conflict between Jones 
and Harrison with division as the immediate occasion; third, the consequent 
candidacy of Rice Jones at the election of August 13, 1808, resulting in his 
election by the divisionists to the lower house of the Assembly. See ante, 
1-li. Before the election he had engaged in a duel, seconded by William 
Morrison, against Shadrach Bond Jr. The principals settled their differ- 
ences amicably on the field; but the circumstance that Jones's pistol was 
prematurely discharged gave rise to a bitter controversy between him and 
Bond's second, Dr. James Dunlap, the end of which was the murder of 
the former by the latter on December 7, 1808. (The original indictment — 
Miscellanies Box, Chester — does not allege that he was shot down from be- 
hind as stated by Governor Reynolds). Dunlap escaped and was never 
brought to trial. See ante, xciv, n. 2. The extremely uncritical statements of 
W. A. Burt Jones, save one, are there sufficiently discussed. That one is a 
reference to "the interests" of Rice Jones which the land commissioners de- 
liberately attacked. No evidence has been found that he owned a foot of 
land (or anything else) ; his name does not occur in the land commissioners' 
reports. 



APPENDIX cclv 

25. Jesse Burgess Thomas was born in Maryland in 1777, but grew 
to manhood in Kentucky, whither his family removed in 1779. There he 
studied and began the practice of law. In 1803 he removed to Indiana Ter- 
ritory. Dearborn County elected him on January 3, 1805 a representative 
in the first General Assembly and reelected him on February 2, 1807. He 
was elected speaker of the lower house in both legislatures, and served as 
such in all four sessions, from July 29, 1805 to October 24, 1808. His sig- 
nature is on practically all the laws in this volume. The struggle over 
territorial division in the summer of 1808, and the circumstances under 
which Thomas was picked by the anti-Harrison party — the prodivisionists 
of Illinois and the antislavery men of eastern Indiana — as a compromise 
candidate against the Harrison forces have been stated. See ante, li, and 
n. 3 ; app. n. 10. He was elected on October 24, 1808 — see Dunn, 
Indiana, 376 — and in his brief term of service from December 1, 1808 to 
March 3, 1809 fulfilled his obligations to those who elected him by securing 
passage of the act of February 3, 1809 which made Illinois an independent 
territory. That act became effective on March 1, 1809. On March 7, 1809, 
he was appointed by President Madison one of the judges of the Illinois 
territorial court — U. S. Senate, Exec. Journal, 2: 119, 120. The President 
described him in his nomination to the Senate as "of the Illinois Territory." 
It was of course his knowledge that he could have no further political 
future in Indiana which prompted him to secure the judgeship. "The citi- 
zens of Vincennes were so incensed at what they considered his perfidy 
that they hung him in effigy, and heaped upon him, upon his return from 
Washington, the vilest abuse and reproach" — J. F. Snyder, Adam W. Snyder, 
12. He settled first in the country near Kaskaskia, later at Cahokia. He 
served as judge throughout the territorial period of Illinois. Elected on 
July 8, 1818 one of the St. Clair delegates to the constitutional convention, 
and was elected its president (August 3-24, 1818) — 111. State Hist. Society, 
Journal, 6 : 356, 358. On October 4 he was elected by the first legislature 
United States senator, and reelected by the third, serving for ten years 
(December 4, 1818-March 3, 1829)— Buck, Illinois in 1818, 303, 316; Pease. 
The Frontier State, 95-98. The amendment that is the gist of the Missouri 
Compromise of 1820 was introduced by him and bears his name. In 
1829 he again changed his residence, this time to Ohio, and thereafter 
acted with the Whig party, although up to that time his record had 
been strongly proslavery. Aside from being a delegate to the Whig 
national convention of 1840, and activity in advancing the candidacy of 
Harrison his political career ended, substantially in 1829. From August 
6, 1843 to December 4, 1848 he was a justice of the Supreme Court 
of Ohio. He died, by suicide, on May 4, 1853. Friendly sketches by 
J. F. Snyder, in Adam W. Snyder, 9-18, and 111. Hist. Soc. Trans., (1904), 
pp. 514-523 ; Thomas was a benefactor of Adam W. Snyder. See also 
Reynolds, Pioneer Historv, 401-402; Greene and Alvord, Governors' Letter- 
Books 1818-1834 (7. H. C., 4), 4 n. 

26. The law creating Indiana Territory went into effect on July 4, 
1800. The first appointments of August 1st, could not have been officially 
known for some little time, nor the appointees sworn into office until the 
October sessions. It seems best, therefore, to use the date of appointment. 
It appears from ante, app. n. 17, that some officers may possibly have had 
unofficial information in advance. As no sessions of the courts were held 
between July and October there was no need to act under old commissions ; 
though doubtless as justices of the peace they did so. 



cclvi ILLINOIS HISTORICAL COLLECTIONS 

27. The first seven named justices were appointed on August 1, 1800 — 
Gibson, Exec. Journal, 94. On February 3, 1801 all except Benjamin 
Ogle were reappointed — ibid., 97 — December 10, 1805 and December 28, 
1805, were the dates on which, for St. Clair and Randolph counties respec- 
tively, the judges of the new Common Pleas, in which the Quarter Ses- 
sions and other courts were merged, were appointed ; but the act creating 
the new court (post, 115) did not go into effect until January 1, 1806. The 
terms of the old judges are therefore indicated as continuing to this date. 

28. According to Governor Reynolds, Dumoulin was Swiss by birth 
and came to Illinois from Canada, had enjoyed an education in the sciences 
and classics, and knew the civil law — Pioneer History, 209. He is mentioned 
first in Alvord's Cahokia Records in January, 1786, and frequently there- 
after in the judicial records of the years 1786-1789. He was at this time 
evidently employed in miscellaneous mercantile ventures — op. cit., index. 
His militia claim, for services up to 1790, was affirmed by the second board 
of land commissioners — Amer. State Papers: Pub. Lands, 2: 236. Ap- 
parently he held no judicial office, even as a justice of the peace, until 
1790. Governor St. Clair appointed him in that year a judge of the Com- 
mon Pleas; and apparently he acted as the chief -judge of the Cahokia dis- 
trict (ante, cxlvii, n. 3), though order of appointments would not have indi- 
cated such precedence — cp. St. Clair Papers, 2 : 165 n. (April 29, 1790) and 
Allinson, 111. State Hist. Soc. Trans. (1907), p. 285; Reynolds, op. cit., 
180, 209. On September 28, 1795, he was named by Governor St. Clair, 
who was then at Cahokia, a judge of the Common Pleas — see letter patent 
in Brink, McDonough, Hist, of St. Clair County, 69. He was also evi- 
dently, made a justice of Quarter Sessions, presumably at the same time, 
for he was one of the four judges who proclaimed the opening of the 
Orphans' Court on August 5, 1796; and the Orphans' Court 1797-1809 
record shows him in regular attendance thereafter. On February 23, 1797 
he was ordered to surrender to the Judge of Probate all records in his 
possession relating to "succession business & Estates" — St. Clair Orphans' 
Court 1797-1809, 2. Why such should have been in his custody does not 
appear. No evidence seems to support the statement of Reynolds, Pioneer 
History, 209, that he was judge of probate. He was at some time 
appointed by Governor St. Clair lieutenant-colonel in the militia — not in 
1790: St. Clair Papers, 2: 165 — for in March, 1800 he was the county 
commandant — ibid., 495 ; and Governor Harrison recommissioned him on 
August 19, 1802 — Gibson, Exec. Journal, 110. He seems to have been both 
decorative and efficient in this position — Reynolds, Pioneer History, 209, 
210. He ceased to sit in the Orphans' Court (and presumably in other 
courts) after the end of 1802. On December 26, 1801 Governor Harrison 
commissioned Shadrach Bond Sr. and the six other colleagues of Dumoulin 
in the Court of Quarter Sessions to inquire into charges against him made 
by the grand jury of St. Clair to the Circuit Court "for. having in several 
instances therein enumerated, acted tyrannically corruptedly and Illegally 
whilst in the Execution of the duties of his said offices" — Gibson, Exec. 
Journal, 105-106, and ante, ccvii. Although the findings of the commission 
are apparently lost, they presumably forced his retirement. He lived until 
1805. (Alvord gives 1808— Cahokia Records (I. H. C, 2), 230 n. ; and 
Governor Reynolds, 1808 — op. cit., 210). He left a personal estate, accord- 
ing to the Brink, McDonough, Hist, of St. Clair County, 83. of $7307.67. 
But his fellow judge, John Francis Perrey, who was his administrator, se- 
cured an order from the Orphans' Court in March, 1806 for the sale of 
his house, "it being going to ruin, and the yearly rent will not pay the 



APPENDIX cclvii 

repairs" — Orphans' Court 1797-1809, 29; and another order a year later 
"to sell the real Property of said dec'd as the said estate is insolvent" — ibid., 
33. After more than another year John Edgar was still granted time to 
settle his account with decedent — July, 1808, ibid., 44. Governor St. Clair, 
stating his military qualifications, characterized him as "a very good man, 
of fair character" — St. Clair Papers, 2: 495; cp. Reynolds, loc. cit. He 
was a large speculator in lands, buying up the claims of his fellow French- 
men, and was supposed to be wealthy until death revealed the truth. "His 
virtues of benevolence, kindness, and generosity," says Reynolds, "were not 
questioned, and he lived and died very popular. . . . Altho he speculated 
in lands, he was honest and correct" — op. cit., 210, 211. There is nothing 
discreditable to him in records of the land commissioners. Ante, lxxxiii. 

29. George Atchison is said by J. M. Peck to have settled in the 
Illinois country in 1786 — Reynolds, Pioneer History, 255-256; which may 
well be correct, notwithstanding that he does not appear (for neither does 
John Dumoulin) in the 1787 census of Cahokia — Alvord, Cahokia Records, 
(I. H. C, 2) , 624 et seq. ; and that Governor Reynolds names two other per- 
sons as the only non-French residents in Cahokia before 1788 — Pioneer 
History, 128. He may have been living in the Kaskaskia district, or in 
Grand Ruisseau, which was but barely organized and of disputed juris- 
diction — Alvord, Cahokia Records (I. H. C, 2). At any rate he signed 
Tardiveau's contract of August 1787 with the American land claimants — 
Alvord, Kaskaskia Records (I. H. C, 5), 444. See also English, Con- 
quest of the Northwest, 1067. In 1790 he was appointed a lieutenant 
of militia— St. Clair Papers, 2: 165 n. On September 28, 1795, he was 
commissioned judge of the Common Pleas of St. Clair County — see letter 
patent in Brink, McDonough, Hist, of St. Clair County, 69. Presumably he 
was named at the same time a justice of the Quarter Sessions, for he 
was one of the four judges who on August 5, 1796, proclaimed the opening 
of the Orphans' Court, in which {Orphans' Court 1797-1809, passim) he 
sat very regularly down into 1805. In August 1802 he was made a major 
by Harrison — Gibson, Exec. Journal, 111 ; became a lieutenant-colonel on 
the death of Dumoulin ; and died sometime before October 26, 1808, when 
Shadrach Bond succeeded him in this command — ibid., 149. His name is 
spelled variously, and not always in one way by himself, but his habitual 
signature was "Atchison." 

30. The main source of information regarding his purely personal 
characteristics is a sketch by his grandson, J. F. Snyder, in Adam W. Snyder, 
426-434. Although he always wrote his name "Perrey" (usually in the French 
style, without initials), and it uniformly so appears in the judicial records, he 
was doubtless generally known as Perry ; Governor Reynolds calls him "Jean 
Francis." He was born in France in 1766, of a middle-class family (Mr. 
Esarey's statement — Harrison, Messages, 1 : 175 n. — that he was "an emigre 
noble" is erroneous), educated and well to do, and had himself been rather 
well schooled, including some study of law, when in 1792 he left France, 
"well supplied with money" which enabled him to begin business in Illinois. 
According to Snyder, "his polished manners and polite, courteous de- 
portment testified to the refined social conditions in which he was reared." 
In 1797 he married a daughter of Jean Baptiste Saucier, who had been a 
member of Todd's Virginia court created in 1779, and altogether a leading 
citizen; named by Governor St. Clair in 1790 only a justice of the peace, 
but in 1795 a judge of Common Pleas and presumably also of Quarter 
Sessions — post, app. n. 38. On August 1, 1800, he was appointed by Gover- 
nor Harrison to the two county courts, but he was not sworn in as a judge 



cclviii ILLINOIS HISTORICAL COLLECTIONS 

of Quarter Sessions until April of 1801 — Bateman and Selby, Hist, of St. 
Clair County, 701 ; and his attendance in the Orphans' Court began with 
the June term. He continued a rather regular attendance to the end of 
the Indiana Territory. In 1802 he was one of the three St. Clair County 
delegates to the Vincennes slavery convention — Brink, McDonough, Hist, 
of St. Clair County, 71, 73 ; and he signed various of the proslavery con- 
ventions of the time — ante, liv, n. 1. According to his grandson, how- 
ever, so far as can be ascertained he was not a slaveholder — Snyder, op cit., 
430. He was twice nominated by the lower house of the Assembly, in 1805, 
for appointment to the Legislative Council ; first with John Hay — Dunn, 
Indiana, 325 — and then, after Hay declined the office, with Shadrach Bond — 
Harrison, Messages, 1 : 174 ; but in both cases Harrison gave the preference 
to the other nominee. Unlike Bond he was not a member of the nominating 
body. Harrison's criticism of him, certainly disingenuous {ante, xxvi, 
n. 3), was that he had speculated heavily in the French land claims — 
Messages, 1 : 175. His record therein is relatively honorable — ante, lxxxv, 
lxxxvi, xc. On a fondness for administration of estates, ante, ccvii, n. 6. 
His signature to prodivision petitions ante, liii, n. 4, was assuredly dis- 
tasteful to Harrison; though Bond was very likely for other reasons the 
better man. He died at Cahokia in 1812. According to Snyder, "He 
was popular with all people, and distinguished for his kindness, charity and 
unstinted hospitality. Honor with him was instinctive, not the bantling 
of policy, and he recoiled from everything suggestive of deceit, vulgarity 
or immorality" — op. cit., 432. As Snyder's characterizations of his 
relatives are very impersonally critical this judgment deserves especial 
weight. Although some typically generous exaggerations in Governor 
Reynolds' Pioneer History, 287-291, are pointed out by him, he adds and 
alters little in the way of facts, and leaves uncorrected his statement that 
Perrey had served with Bond and John Moredock in the territorial Assem- 
bly; it was in the Vincennes convention, Brink, McDonough, op. cit., 71. 

31. James Lemen was born in 1761 and came to Illinois in 1786 — Brink, 
McDonough, Hist, of St. Clair County, 163; Alvord, Kaskaskia Records 
(I. H. C, 5), 445 n. ; Reynolds, Pioneer History, 271 (where J. M. Peck 
says he reached Kaskaskia on July 10, 1786). He signed B. Tardiveau's 
land contract with American land claimants in August, 1787 — Kaskaskia 
Records (I. H. C, 5), 445; and the land commissioners affirmed his claim 
as a resident head of family before 1788, and also his militia claim — Amer. 
State Papers: Pub. Lands, 2: 164, 236 (the confirmation in each case was 
to James "Lemon," but such confusion was very common ; cp. for example 
Governor Ford's History, 42). He was not appointed to the Common Pleas 
in 1795 — see Brink, McDonough, op. cit., 69. But he must have been named 
then or later a justice of the Quarter Sessions ; for although he was not one 
of the justices who opened the Orphans' Court in August 1796, he attended 
sessions in February, 1797, one in 1800, 1801 and 1803, two in 1802, and 
three in 1804, after which his name appears no more — St. Clair Orphans' 
Court 1797-1809, 2, 13, 15, 17, 18, 20, 23, 24. His record on slavery is of 
particular interest inasmuch as family tradition has made him an anti- 
slavery apostle of early Illinois. Such he very likely was ; for although his 
signature on at least one proslavery petition appears to be genuine, on others 
it clearly is not — ante, xxxix, n. 2; and assuming one to be in fact his own, 
he might have been in some way deceived He was a defeated candidate 
in the election, on December 7, 1802, of delegates to the Vincennes slavery 
convention — Brink, McDonough, op. cit., 71. In the early history of the 
Baptist church in Illinois, he was a very important figure — Reynolds, 



APPENDIX cclix 

Pioneer History, 256, 259, 272; Brink, McDonough, op. cit., 163. Whether 
he was actually a friend of Jefferson, who sent him west' to fight slavery 
in the Northwest Territory, and of what value the "Lemen Notes," had 
they been preserved in their alleged original form, might have been for 
the student of early Illinois history, are mysteries of historiography. See 
ante, liv, n. 1; 111. State Hist. Soc. Trans. (1908), pp. 74-84; Alvord, 
Kaskaskia Records (I. H. C, 5), 445 n. His later leadership against 
slavery is clear. He joined in an antislavery address to "the friends of 
Freedom in the state of Illinois" published on the day on which the con- 
stitutional convention was called, Buck, Illinois in_ 1818,_ 260-261, 280. (Al- 
though Mr. Buck artd many others do not so indicate it was James_ Lemen 
Jr. who was a member of the convention, and voted with the antislavery 
members— J. F. Snyder, Adam W. Snyder, 309). He died on January 8, 
1822— Brink, McDonough, op. cit., 163. For sketches of him and other 
members of his family see Reynolds, Pioneer History, 271-272, 411-413. 

32. There seems to be little information regarding him. Governor 
Reynolds refers to him principally as an Indian fighter — Pioneer History, 
153, 175. Likewise Brink, McDonough, Hist, of St. Clair County, 50. He 
signed the Tardiveau contract in 1787 — Alvord, Kaskaskia Records (I. H. 
C, 5), 445, and the second board of land commissioners allowed him his 
militia claim — Amer. State Papers: Pub. Lands, 2: 237; cp. McDonough, 
Hist, of Randolph, Monroe and Perry Counties, 137. He was therefore 
still living in 1813. Just why he was so pointedly omitted in the recom- 
missions of February 3, 1801 does not appear ; but Nicholas Jarrot, who took 
his place, was doubtless a better man for the position. 

33. Most that is known of Nicholas Jarrot is found in Governor 
Reynolds' sketch — Pioneer History, 211-215 — which is evidently based upon 
personal acquaintance; and this is followed or quoted when other authority 
is not cited. He was born in France, whence he emigrated in 1790, arriving 
in Cahokia in 1794 after stops in Baltimore and New Orleans. (On state- 
ments that he came to Illinois with George Rogers Clark — statements made 
of nearly everybody who achieved prominence in early Illinois — cp. English, 
Conquest of the Northzvest, 1067). The fact that he was an emigre of 
1790 gives color to Reynolds' statement that he came of "a highly respecta- 
ble family." "He received a liberal education and was, withal, a gentleman 
of elegant and accomplished manners." To these qualities were added the 
impulses of poverty and an extraordinary energy, which was directed into 
the extravagantly profitable trade with the Indians of the upper Mississippi, 
a retail store in Cahokia, and traffic in land claims. No doubt he was 
aided by his marriages, first to a daughter of Jean Baptiste Barbau, and 
later into the Bauvais family, which in the early years of the Virginian 
period was the richest and most influential of the Illinois country, and three 
of whose members had been justices of the Cahokia court — see Alvord, 
Cahokia Records (I. H. C, 2), index. In 1798 he was a county assessor — 
Allinson, 111. State Hist. Soc. Trans. (1907), p. 291. He was appointed 
a judge of Quarter Sessions on February 3, 1801 — Gibson, Exec. Journal, 
97; and took the oath of office in March — Bateman and Selby, Hist, of St. 
Clair County, 701 ; but his attendance in the Orphans' Court began only in 
June, 1802, and was rather occasional (at 7 sessions out of 12 in 3 
years), Orphans' Court 1797-1809, 16, 17, 18, 20, 23, 24, 27. According 
to Reynolds "his decisions on the bench were prompt and quick"' — Pioneer 
History, 214. He was appointed on February 3, 1801 to the Common Pleas 
and sat somewhat irregularly in that court — e. g. Order Book, 54 and 60 
(1801), 120 (Dec. 1802), etc. He was also commissioned by Harrison 



cclx ILLINOIS HISTORICAL COLLECTIONS 

as a major in the militia on February 6, 1801 — Gibson, op. cit., 101. He 
was a very ardent Catholic, according to Reynolds. He gave to the Monks 
of La Trappe the Cahokia (or Monks') Mound, where they made their 
home from 1807 to 1816, then returning to France. Brink, Hist, of Madison 
County, 80. Although he at one time held what Governor Reynolds calls 
"an immense fortune in real estate .... the best selection of land in 
the country" — op. cit., 213 — a large part of his claims were disallowed by the 
land commissioners — ante, lxxxiv, lxxxvi ; he dissipated much of his means, 
like John Dumoulin, in milling enterprises. His record in the reports of 
the land commissioners was relatively honorable; see, however, the protest 
by Pierre Menard, ante, xci-xcii. He died at Cahokia in 1823. 

34. David Badgley was a Baptist minister who was born in New 
Jersey in 1748 or 1749, and settled in Illinois in 1797, after having helped 
to organize in 1796 the first Baptist church in Illinois. His appointment 
to the Quarter Sessions — Gibson, Exec. Journal, 127 — was of course ac- 
companied by service as a justice of the peace, probably for many years. 
He died on December 16, 1824. In order to secure some idea of his 
knowledge of the English language consult Rufus Babcock, Memoir of 
John Mason Peck, 157, and cp. Ford, History, 38-41. See Brink, McDon- 
ough, Hist, of St. Clair County, 53, 282 ; Bateman and Selby, Hist, of St. 
Clair County, 1 : 35, 445 ; Reynolds, Pioneer History, 236, 259-260, 269 ; 
and My Own Times, 123; Chapman, Portrait and Biographical Record of 
St. Clair County, 211. 

35. James Bankson is not mentioned in Alvord's Cahokia Records 
(I. H. C, 2) up to 1790. Nor does he seem to have appeared again in 
public life after holding the judgeship in the Quarter Sessions — Gibson, 
Exec. Journal, 127. He appears at but one session in the record of the 
Orphans' Court 1797-1809, namely in November, 1805, p. 28. 

36. The first seven named judges were appointed to this court at the 
same time as to the Quarter Sessions — Gibson, Exec. Journal, 94; and, with 
the exception of Benjamin Ogle, were reappointed on February 3, 1801 — 
ibid., 97. Bond and Perrey were reappointed, and Thomas Kirkpatrick 
added, on December 10, 1805 to the new Common Pleas — ibid., 130. The last 
two served until Illinois became a separate territory on March 1, 1809. 
Shadrach Bond Jr. was appointed presiding judge, vice Shadrach Bond Sr., 
who had resigned, on May 12, 1808 — ibid., 145 and likewise served until 
Illinois became independent. 

37. The appointment of Thomas Kirkpatrick to the St. Clair Common 
Pleas on December 10, 1805 — Gibson, Exec. Journal, 130 — is the earliest 
definite record regarding him. He sat regularly in every term in the Or- 
phans' Court, beginning in August, 1806, through the rest of the Indiana 
territory period— St. Clair Orphans' Court 1797-1809, 30, 32, 34, 37, 41, 43, 
45, 47. At this time he was a miller — Reynolds, Pioneer History, 315; on 
June 2, 1817 he took the oath as a judge of the county court of Bond County, 
newly created, and was such at least through 1818 — W. H. Perrin, Hist, of 
Bond and Montgomery Counties, 31, 73, 74. He was a delegate from Bond 
County to the constitutional convention, and voted therein with the anti- 
slavery group — 111. State Hist. Society, Journal, 6 : 358, 380, 401 ; Buck, 
Illinois in 1818, 280-281. _ 

38. The St. Clair judges of the Quarter Sessions appointed in 1790 
were John Edgar, Ant. Girardin, Philip Engel, and Ant. Louviere — St. 
Clair Papers, 2: 165 n. When Randolph County was created out of 
St. Clair — on October 5, 1795: St. Clair Papers, 2: 345 — new appoint- 
ments for St. Clair were necessarily made, although they are not recorded 



APPENDIX cclxi 

in the St. Clair Papers. We know otherwise, however, that on September 
28, 1795 Governor St. Clair, then at Cahokia issued his letter patent 
naming as judges of the Common Pleas : William St. Clair, John Du- 
moulin, James Piggott, Shadrach Bond Sr., Jean Baptiste Saucier, and 
George Atchison — see Brink, McDonough, Hist, of St. Clair County, 69. 
Presumably the same men were made justices of the Quarter Sessions, 
but no record evidence exists to prove this. At any rate when an Orphans' 
Court was proclaimed open on August 5, 1796 it was by Dumoulin, Bond, 
Piggott, and Atchison — Orphans' Court 1797-1809, p. 1. And neither 
St. Clair nor Saucier ever sat in that court (which was held by justices 
of the Quarter Sessions — ante, cxlvii, n. 4). Those sitting are indicated in 
the table. 

39. James Piggott, according to Reynolds, was born in Connecticut, 
and served in the privateering service in the Revolution — My Own Times, 
33. His commissions as captain in the Pennsylvania infantry in 1776 
are still preserved, and he served under General St. Clair in 1776-1777 — 
Alvord, Cahokia Records (I. H. C, 2), 190 n. There is no evidence to 
support Reynolds' statement that he served with George Rogers Clark — 
no more than in the cases of William Biggs, George Atchison, and Nicholas 
Jarrot — English, Conquest of the Northwest, 1067. Piggott himself de- 
clared that he settled in Illinois in 1780 — Alvord, op. cit., 191 n., citing 
Pap. of Old Congress. His various appearances in the Cahokia Records 
are never favorable. He was leader in 1787 of the movement by disgruntled 
Americans to make Grand Ruisseau independent of the French court at 
Cahokia, which that court promptly and decisively checked, holding him for 
24 hours in irons at Cahokia by way of giving meaning to orders that he 
cease from further insubordination on pain of expulsion from the district 
and confiscation of his property. See Alvord, op. cit., cxlix, 599 et seq., and 
index. He signed the Tardiveau land contract of 1787 — Alvord, Kaskaskia 
Records (I. H. C, 5), 444; the first board of land commissioners confirmed 
to his heirs his claim as a head of family before 1788 — Amer. State Papers: 
Pub Lands, 2: 164; list compiled by William St. Clair in 1796 — Chic. Hist. 
Colls., 4: 208; cp. Alvord, Cahokia Records (I. H. C, 2), 289 et seq. When 
Governor St. Clair, his old commander, came to the Illinois country in 1790 
he appointed Piggott a captain of militia and a justice of the peace of St. 
Clair County on April 29, 1790 — St. Clair Papers, 2: 165 n., and ante, clxii, 
n. 2. September 28, 1795, he was made a judge of the Common Pleas — 
commission in Brink, McDonough, Hist, of St. Clair County, 69 ; and pre- 
sumably also a justice of the peace and of the Quarter Sessions, for he was 
one of the justices of the latter court who on August 5, 1796 proclaimed 
the opening of the Orphans' Court. He attended thereafter in February 
1797 and in February 1799— St. Clair Orphans' Court 1797-1809, 1, 2, 9. 
In 1795 he established what was later famous as Wiggins Ferry to St. Louis. 
He died on February 20, 1799, leaving only $409 in personal property — 
Reynolds, My Own Times, 36; Bateman and Selby, Hist, of St. Clair 
County, 2 : 761 ; Brink, McDonough, Hist, of St. Clair County, 83. 

40. William Whiteside was the head of the numerous Whiteside family, 
which came from the frontier of North Carolina through Kentucky to 
Illinois. According to Governor Reynolds (whose brother Robert married 
a daughter of William Bolin Whiteside, son of William), he was a soldier 
in the Revolution, fought at King's Mountain, and settled in Illinois in 1792 
(My Own Times, t 109) or 1793 (Pioneer History, 185, 416). The whole 
family was conspicuous in Indian warfare, and William preeminently so — 
ibid., 186-189. He is called both "captain" and "colonel" ; the latter appar- 



cclxii ILLINOIS HISTORICAL COLLECTIONS 

ently by courtesy only. He is stated by Reynolds to have been "a justice- 
of-the-peace and judge of the court of common-pleas" — ibid., 190. Neither 
he nor Uel ever appears sitting in the latter court according to its Order 
Book 1801-03 (January, 1801-March, 1803). They both did sit in the 
Orphans' Court — which they could do only as justices of the peace and of the 
Quarter Sessions in December, 1803, February 1804, and in May and June, 
1805— Orphans' Court 1797-1809, 20, 21, 25, 27. No evidence exists to show 
an appointment of either to the Quarter Sessions, by Harrison; but Uel was 
made a justice of the peace in 1803 (Gibson, Exec. Journal, 116), and it is 
possible that St. Clair had given William some appointment. It is elsewhere 
stated — Brink, Hist, of Madison County, 76 — that the latter was "justice of 
the peace, and judge of the court of common pleas of Monroe county" 
(created in 1816), and this may be true. William Whiteside died in 1815 — 
Reynolds, Pioneer History, 190. Of Uel, who was also his son {ibid., 188, 
189 n.) practically nothing is known. (Washburne, Edwards Papers, 45, 
speaks of some Uel as the son of William Bolin). In Isaac Darneille's 
Letters of Decius he charged that Harrison made three of the Whiteside 
family justices of Quarter Sessions in order to curry popularity in St. Clair 
County, notwithstanding that all three had been indicted for horse stealing, 
though the trial had been continually deferred. Goebel, Harrison, 64. The 
third was doubtless William Bolin; but in the Orphans' Court, at least, he 
never sat. When Shadrach Bond Jr. was asked by Governor Edwards in 
1809 to enter an election with William Bolin to settle their rivalry for the 
lieutenant-colonelcy of the St. Clair militia he refused, and protested in a 
letter which is quoted ante, app. n. 19. The matter is puzzling ; for though 
the charges might possibly have been no more than a bit of the rancorous 
personal politics of the time, such charges were not likely to be made with 
impunity on the frontier, certainly not against a family like the Whitesides. 
Bolin Whiteside later took a prominent part in Illinois' participation in the 
War of 1812. See Reynolds, My Ozvn Times, 84, 91, 94, 97; Pioneer His- 
tory, 416-417. In 1822 a "William B. Whiteside" who, by the description, 
appears to have been William Bolin, was tried for burglary in Greene 
County, but the jury disagreed (he had a friend on it), and after the death 
of the complaining witness the case was dismissed; a fellow defendant — the 
complainant had testified that he recognized both — was, however, convicted. 
Hist, of Greene and Jersey Counties (Contin. Hist. Company, 1885), 599-600. 
William Whiteside was also the father of John D. Whiteside (1794-1850; 
state treasurer, 1837-1841) who had a distinguished political career. Some 
other William Whiteside signed an address to the "friends of Freedom" in 
Illinois when the constitutional convention had just assembled. He was 
from Madison County — Buck, Illinois in 1818, 261 n. — to which the home of 
William Bolin Whiteside and Samuel Whiteside (cousin of William Bolin) 
had moved in 1802 — Reynolds, Pioneer History, 416 ; Brink, Hist, of Madi- 
son County, 76. 

41. William St Clair was a younger son of the Earl of Roslin and 
cousin of Governor St. Clair — Alvord, Illinois Country, 404 n. — who wrote 
of him in 1799 : "He was formerly a resident at Detroit, and was obliged 
to leave it, for refusing to serve in the militia to aid the savages against 
this part of the country, and threw himself on my protection." He had 
but very recently settled in Cahokia (if indeed he had already gone there) — 
St. Clair Papers, 2: 441 — when, on April 29, 1790, he was appointed pro- 
thonotary and clerk of the Common Pleas of St. Clair County, and on May 
7 recorder of deeds — St. Clair Papers. 2 : 165 n., 166 n. His difficulties 
with Judge Turner in connection with the territorial records are referred 
to ante, ccvi, n. 2. September 28, 1795 he was named chief judge of the 



APPENDIX cclxiii 

Common Pleas — Brink, McDonough, Hist, of St. Clair County, 69. He must 
have been made, also, at this time or shortly thereafter, judge of probate, 
for he appears as such when the Orphans' Court was proclaimed open on 
August 5, 1796— St. Clair Orphans' Court 1797-1809, 1; John Dumoulin 
being ordered on February 23, 1797 to surrender to him the records of that 
office — ibid., 2. He appears acting as the probate judge in April, 1797 — 
Brink, McDonough, op. cit., 82. Miss Allinson states that he was also 
named in 1795 a justice of Quarter Sessions — 111. State Hist. Soc. Trans. 
(1907), p. 290; but, inasmuch as he never sat in the Orphans' Court, this 
seems improbable. In February, 1799 Governor St. Clair wrote of him and 
Jacob Burnet to President Adams as "two young gentlemen of the bar, and 
of handsome abilities," and of the former as then "in trade" — St. Clair 
Papers, 2: 441. His will, of January 12, 1799, is printed in Brink, McDon- 
ough, op. cit., 82-83. John Hay was one of the subscribing witnesses and 
an executor. In fact he was dead when Governor St. Clair wrote his letter. 
On February 8, 1799 George Wallis presented letters granted by "the de- 
ceased William St. Clair, Judge of Probate" — Orphans' Court 1797-1809, 
9. In December 1801 his property was sold to satisfy creditors, and in the 
following June John Iiay rendered his final account — ibid., 15, 16. See also 
the Order Book of the Common Pleas, 13 (September 7, 1801). 

42. The first five judges named were appointed on August 1, 1800 — 
Gibson, Exec. Journal, 92. There were no reappointments, such as were 
made in St. Clair County, during the further existence of the Quarter Ses- 
sions. Further details appear in the biographical memoranda below. 

43. John Edgar was born in Ireland; according to his first wife, in 
1733, though he claimed greater youth when he remarried. When he came 
to America, and whether he married his first wife in Boston before or after 
1781, does not appear — J. H. Roberts, "The Life and Times of General 
John Edgar," 111. State Hist. Soc. Trans. (1907), p. 68. According to 
his own affidavit he commanded from 1772 to 1775 a British public vessel 
on Lakes Huron and Erie, engaged then in trade, was arrested in Detroit 
in August 1779 for correspondence with Americans (other documents in 
the Draper Collection show that he aided American prisoners to escape), 
was imprisoned for about two years, and escaped in September 1781 — ibid., 
66-67. Roberts could find no evidence in Canada, England or this country 
to substantiate Edgar's naval service either for Great Britain or the United 
States — ibid., 65-66, 68, 70; cp. Alvord, Cahokia Records (I. H. C.,2), cxxxiii, 
n. 3 — repeating the story as to 1772-1775, though citing the Roberts' study. His 
name does not appear in Edward W. Callahan's List of Officers of the Navy 
of the United States and of the Marine Corps from 1775 to 1900, compiled 
from the official records of the Navy Department. Congress, however, on 
May 26, 1830 granted him a pension as "an acting Captain in the Navy, 
during the revolutionary war" — JJ. S. Stat, at Large, 6 : 427 and 4 : 269-270. 
His administrators collected the full amount, $2291.33, after his death — 
McDonough, Hist, of Randolph, Monroe and Perry Counties, 117 n. He 
made known upon escaping to this country the correspondence (which he 
supposed treasonable) between Vermonters and the British in Canada — 
Roberts, loc. cit., 66-67, 69. This was not, however, a novelty. Congress had 
received full information from the Vermont negotiators nine months earlier ; 
indeed most of Edgar's details were matters of public suspicion six months 
earlier. Hiland Hall, The History of Vermont, 347-349, 363-364 ; S. Williams, 
The Natural and Civil History of Vermont — 1809 ed. — 2: 204 et seq., and 214 
n. Edgar's affidavit left no trace in either the regular or the secret Journals 
of Congress. He immediately began pressing upon Congress relief for the 
losses he had suffered through his attachment to the American cause; and, 



cclxiv ILLINOIS HISTORICAL COLLECTIONS 

upon a committee report "that his peculiar sufferings . . . requires the 
particular attention of Congress," it was resolved that the Superintendent 
of Finance should give him "assistance . . . for his support," not exceeding 
one year, until he should secure employment — W. C. Ford, Journals of the 
Continental Congress, 22: 6i (January 29, 1782), 201 (April 20, 1782). 
After Congress had on April 23, 1783 and again on June 30, 1786 resolved 
to aid the Canadian refugees as soon as possible — ibid., 24 : 268-269 ; Journals 
of Congress (Folwell ed.), 8: 144; 11 : 95— by act of April 7, 1798 relief was 
provided, and by supplementary act of February 18, 1801 — which provided 
more generous relief — Edgar received 2,240 acres of land; which was the 
largest amount granted, and only to five persons. U. S. Stat, at Large, 
1: 547; 2: 101. (Roberts' quotation, loc. cit., 69, is not in the statute 
he indicates, nor in any of the other sources here cited). By no means all 
of Edgar's fortune was confiscated. He came to Kaskaskia in 1784 with 
a stock of goods, and money that enabled him to begin business in a large 
way — Amer. State Papers: Pub. Lands, 2: 132 n,; Reynolds, op. cit., 
116; Roberts, loc. cit., 70. His donation claims both under his militia right 
and a head of family before 1788 were affirmed by the land commissioners — 
Amer. State Papers: Pub. Lands, 2: 168, 227. He engaged in the local and 
Indian trade ; operated the largest — and one of the few — flour mill in Illi- 
nois, shipping great quantities of flour to New Orleans ; and engaged in 
land speculation on a vast scale. For many years he was the wealthiest 
man in Illinois — Reynolds, op. cit., 116-117. His trading practices did not 
meet with the approval of Father St. Pierre, minister at Kaskaskia, who 
denounced them repeatedly (1785) as stealing; no doubt judging him by 
unworldly standards. Alvord, Kaskaskia Records (I. H. C, 5), 522-532. 
When John Rice Jones came to Illinois in 1786 to purchase provisions for 
George Rogers Clark's Wabash expedition Edgar guaranteed his purchases — 
Alvord, Cahokia Records (I. H. C, 2) cxxxiii. In other ways he proved 
his patriotism. When the Kaskaskians prayed Major Hamtramck in 1789 
to send 21 soldiers to relieve them from anarchy, Edgar offered to provis- 
ion them, taking in payment bills on Congress — Alvord, Kaskaskia Records 
(I. H. C, 5), 511; though he knew that such advances to George Rogers 
Clark, a few years earlier, had ruined the richest French families of Illinois. 
The Spanish authorities across the Mississippi were making strenuous efforts 
to attract population from the Illinois villages ; offering free land, and to 
Edgar freedom in addition to work the lead and salt mines, all untaxed. 
These offers he refused— -ibid., 516. In 1785 he wrote to George Rogers 
Clark : "it is impossoble to live here if we have not ragluer Justice very 
Soon." Alvord, Kaskaskia Records (I. H. C, 2), 376. It is very much to 
his credit that he gave no countenance to John Dodge, and that on the 
whole he stood for the French party and upheld the French court against 
the subversive tendencies of the restless American squatters. Alvord, Ca- 
hokia Records (I. H. C, 2), cxxxv, cxlii ; Kaskaskia Records (I. H. C, 5), 
376 n., 430. In 1789 he wrote to Major Hamtramck: "I have waited five 
years in hopes of a Government; I shall wait until March . . . but if no 
succour nor government should then arrive, I shall be compelled to abandon 
the country, & I shall go to live at St. Louis. Inclination, interest & love 
for the country prompt me to reside here, but when in so doing it is ten to 
one but both my life & property will fall a sacrifice, you nor any impartial 
mind can blame me for the part I shall take." Ibid.. 514. There is no reason 
to doubt the sincerity of his assurance to George Rogers Clark : "There 
is Nothing that I would not do to Serve General Clark, & my Country" — 
ibid., 395. It must be said, however, that remaining behind when his French 
neighbors crossed the Mississippi did not serve him ill. The claim lists of 



APPENDIX cclxv 

the land commissioners show that the wealth of the Bauvais and other once- 
dominant French families passed to Edgar and fellow land-jobbers. Indeed 
the commissioners declared that the speculators (and, though unnamed, 
Edgar was the greatest) stimulated the terror of the emigrants — ante, lxxv. 
Be that as it may, Governor St. Clair came to Kaskaskia in March, 1790 
and Edgar stayed. On April 29, 1790 he was appointed a captain of militia, 
judge of the Common Pleas, and justice of Quarter Sessions — St. Clair 
Papers, 2: 165 n. He was chief -justice of the Kaskaskia district — ante, cxlvii, 
n. 3. August 13, 1792 he was appointed, with Antoine Girardin of Cahokia, 
a county commissioner, "to license merchants, traders, and tavern-keepers" — 
St. Clair Papers, 2: 311 n. ; cp. Brink, McDonough, Hist, of St. Clair Coun- 
ty, 83. No doubt (the records seem lost) he was reappointed to both courts 
in 1795 when Randolph County was created. We find him acting as a justice 
of the peace (e.g. Chic. Hist. Colls., 4: 204, 222, both of 1797) ; and a man 
so prominent, if a justice, would undoubtedy have been of the "quorum," 
i.e. of the court — ante, clxi-iii, cci. We find him sitting, too, in the 
Common Pleas — Randolph Common Pleas, 1 : 32 (April, 1798), 67 (January, 
1800), etc. In an action recorded in the Randolph Common Pleas, 2: 120, 
Charles Gratiot v. John Rice Jones, the defendant craved oyer of the writ, 
which concluded : "Witness John Edgar Esquire first Justice of our said 
court . . . the fifteenth day of July . . . one thousand eight hundred." 
Defendant pleaded (in part) that Edgar "was not at that day a Justice of 
the said court of common pleas." The plea was in effect overruled, but — 
coming from Jones — it leaves one doubting whether Edgar had in fact 
received an appointment before Harrison's, of August 1, 1800. Edgar was 
also, apparently, one of the "notaries" (the Randolph Deed Record J. shows 
him acting as such) whom Governor St. Clair appointed to give effect to 
the Ordinance's guaranty to the French inhabitants of their ancient forms 
of conveyance — St. Clair Papers, 2: 172-173. For this he was unfitted; an 
Anglo-American deed seems to exercise a peculiar fascination upon non- 
legal minds — Edgar used it even to manumit a slave. The Northwest Ter- 
ritory passed under representative government in 1799 and Edgar represented 
Randolph County in the first House of Representatives — Burnet, Notes, 
289; St. Clair Papers, 2: 439 n. In 1800 he was made first judge of both 
the county courts and judge of probate — Gibson, Exec. Journal, 92, 93. 
He had already risen to the chief command of the Randolph militia — St. 
Clair to President Adams, March 30, 1800, St. Clair Papers, 2: 495 (com- 
pare the words with which he characterized Edgar and Dumoulin). He 
held his judicial offices until the creation of the new Common Pleas became 
effective with the beginning of 1806 : i.e., for fifteen years — not twenty-five, 
as stated by Roberts, loc. cit., 71, and by Alvord, Cahokia Records, 
(I. H. C, 2), cxxxiii n. He was not then reappointed. In this politics of 
course played a part ; no man, certainly not another politician like Harrison, 
could have overlooked Edgar's political activity — ante, xxv, n. 1. Neither 
could his moral deficiencies be ignored. It is lamentable that a record on 
the whole good should have been ruined by the temptations of the land 
donations ; but Edgar's record is beyond explanation or palliation ; it was 
full of fraud on an immense scale — ante, lxxxiii, lxxxvi, lxxxviii, lxxxix, n. 
1, xc. It is said that after the creation of Illinois Territory he again served 
as a member of the county court — McDonough, Hist, of Randolph, Monroe 
and Perry Counties, 125. On December 16, 1817 he was appointed, as from 
October 10, 1816, brigadier-general of the first regiment of militia of Illi- 
nois Territory — U. S. Senate, Exec. Journal, 3 : 98, 99. He died on De- 
cember 19, 1830 — McDonough, Hist, of Randolph, Monroe and Perry Coun- 
ties, 117 n. 



cclxvi ILLINOIS HISTORICAL COLLECTIONS 

44. William Morrison, the leading merchant of early Illinois, was a 
Pennsylvanian who settled at Kaskaskia in 1790 — Reynolds, Pioneer History, 
160, My Own Times, 112; Amer. State Papers: Pub. Lands, 2: 132 n. In 
1793 he was licensed as a merchant — Brink, McDonough, Hist, of St. Clair 
County, 83 ; but presumably he had entered trade immediately upon his 
arrival. In partnership with his uncle, Guy Bryan (not "Bryant"), of 
Philadelphia, he maintained stores in both Kaskaskia and Cahokia which 
were wholesale providers for the Indian trade and for all the nearby settle- 
ments across the Mississippi, and shipped to the east and south the furs, lead, 
and flour of Illinois and Missouri. The law reports of Randolph and St. 
Clair counties are full of their law suits. Their business extended to 
Pittsburgh, New Orleans, Prairie du Chien, and the Rocky Mountains. 
They entered the last field in 1804 (though from the beginning they had 
doubtless sold to the trans-Mississippi Indians). Reynolds is apparently 
correct in stating that Morrison (Bryan remained in the east) "was the 
first who laid the foundation of the commerce across the plains from the 
Mississippi Valley to New Mexico" — My Own Times, 112; Pioneer History, 
161-163 ; Elliott Coues, The Expeditions of Zebulon Montgomery Pike, 2 : 
500-502, 602-603. His militia right— for enrollment in August, 1790, and 
actual service — was recognized by the first board of land commissioners — 
Amer. State Papers: Pub. Lands, 2: 171; however, on the Kaskaskia militia 
roll compiled by Governor St. Clair when there in October 1795, he appears 
as "Etable Depuis 1790" — Chic. Hist. Colls., 4: 213; while in another sworn 
to before John Edgar and William Morrison in 1797 the latter appears 
with no such comment — ibid., 221. He must have been appointed by Gover- 
nor St. Clair a justice of Quarter Sessions in 1795 ; at least he acted in 
this period as a justice of the peace (e.g. Chic. Hist. Colls., 4: 204, 222, in 
1797), and he was too important to be omitted from the quorum. He also 
sat in the Common Pleas — Common Pleas, 1: 67 (January, 1800), 73 (July, 
1798), etc. Governor Harrison appointed him on August 1, 1800 to both 
the county courts — Gibson, Exec. Journal, 92, 93 ; before November 28, 
1801, when his successor was appointed, he resigned — ibid., 105. He and 
John Edgar were chief of the "Edgar-Morrison" faction, which stood for 
slavery and division of the territory, and was unfriendly to Harrison. 
This alone is doubtless sufficient to explain his omission from the recon- 
stituted county court of 1806 — see ante, cci. But his land record was also 
decidedly bad — ante, lxxxv. A William Morrison (possibly his son) is 
stated to have been a member of the Randolph Common Pleas as re- 
established in 1814 — McDonough, Hist, of Randolph, Monroe and Perry 
Counties, 181. In later years he devoted himself mainly to his commercial 
enterprises. In 1827 and 1830 he appears in the federal statutes as an army 
contractor — U. S. Stat, at Large, 6 : 361, 442. He died in April, 1837. 

45. Nathaniel Hull was born in Massachusetts, and according to 
Reynolds came to Illinois in 1780 — Pioneer History, 207. His only appear- 
ance in the Kaskaskia Records is in 1787 — Alvord (/. H. C, 5). 444 — 
when he signed the Tardiveau contract. In 1790 he was listed, most re- 
liably, as having been a head of family in Prairie du Rocher on or before 
1783, and as an ensign in James Piggott's militia company — Chic. Hist. 
Colls., 4 : 204, 214. His family right was confirmed (to John Edgar) by 
the first board of land commissioners — Amer. State Papers: Pub. Lands, 
2 : 163 ; Governor St. Clair must have appointed him in 1795 to the Common 
Pleas, since he is found on its bench — Randolph Common Pleas, 1 : 32, 73, 67 
(April 1798, July 1798, January 1800) ; and it is a safe prediction that he 
was also a justice of the Quarter Sessions. On August 1, 1800 Governor 
Harrison made him a judge of both courts — Gibson, Exec. Journal, 92, 



APPENDIX cclxvii 

93. According to Governor Reynolds "he possessed a character for probity 
and integrity that was recognized by all," and "was for many years the main 
pillar of the Randolph- County court" — Pioneer History, 208. It is believed 
that both these statements are just. On his showing with the land com- 
missioners see ante, xc. He rarely sat in court after 1803. He was active 
as an Indian fighter, but his military career was not exceptional. St. Clair 
made him an ensign in 1790 — St. Clair Papers, 2: 166 n. ; and Harrison, 
in 1802, a captain — Gibson, Exec. Journal, 110. According to Reynolds — 
op. cit., 208 — he lived until 1806. As late as 1810 Shadrach Bond Sr. ap- 
peared as his surviving executor — Randolph County Court Record, 1810, 
116 (November 5, 1810). See also McDonough, Hist, of Randolph, Monroe 
and Perry Counties, 76. 

46. Robert McMahon was born in Virginia, removed to Kentucky, 
and thence in 1793 or 1794 to Illinois. In 1795 his wife and six children 
were killed or captured by the Indians ; he himself was also made prisoner, 
but escaped — such instances explain of course the treatment of the Indians 
in the courts : ante, clxxxv, n. 1. On August 1, 1800 he was made a judge 
of both county courts of Randolph — Gibson, Exec. Journal, 92, 93. There 
is no evidence that discredits Governor Reynolds' statement that he "exe- 
cuted the duties of these offices with punctuality and honesty" ; nor does 
he seem to have been active in politics. Nevertheless he was not reap- 
pointed in 1805. He died in 1822. See Reynolds, Pioneer History, 193-197 ; 
McDonough, Hist, of Randolph, Monroe and Perry Counties, 67. In My 
Own Times, 103-104, Reynolds tells a bedroom story of "backwoods' merri- 
ment" of which McMahon was the butt, and which illustrates not only the 
coarse humor of the time but also the little respect which a judge, even 
"rather a dignified character," inspired in a pioneer community. 

47. Robert Reynolds, father of Governor Reynolds, was born in Ire- 
land. In 1788 the family moved to eastern Tennessee, and in 1800 to Illi- 
nois, settling first in Randolph and in 1807 in St. Clair County. According 
to the Governor he was induced to stay at Kaskaskia, in part (instead of 
going on into upper Louisiana), by John Edgar, Robert Morrison and other 
leading men of that community. It must have been due to them that he 
was appointed a judge of the two county courts — November 28, 1801 : Gib- 
son, Exec. Journal, 105. He attended very regularly to his duties. Some 
minor irregularities of judicial decorum are referred to ante, ccx, n. 3. 
In December, 1802 he was chosen one of Randolph's delegates to the 
Vincennes slavery convention — Reynolds, My Own Times, 67 ; Dunn, 
Indiana, 304. He was not reappointed to the reorganized and united county 
court of 1806. This was doubtless in part due to his affiliation with the 
anti-Harrison party. He was very ardent in politics, and various details 
in the records show that his friends were of the Edgar-Morrison, not of 
the Menard-Fisher, group; also, he signed most of the prodivision peti- 
tions — note list of signatures, ante, liii, n. 4 (and apparently was respon- 
sible for some of their irregularities — ante, xlvii, n. 1). But his land frauds 
also barred his reappointment. The boldness displayed in these, in their 
maintenance as much as their commission, and very likely politics in addi- 
tion — for in all those cases prosecuted there were forgeries of the name of 
Pierre Menard (which, however, was equally true of some of Edgar's 
deeds) — presumably explain why he alone was indicted under the perjury 
and forgery statutes ; for his operations were small as compared with 
John Edgar's. Ante, lxxxv, lxxxvi, xc, xci, clxxix and n. 1. Besides, by 
1803 or 1804 he had begun to drink to excess — Reynolds, My Own Times, 
49-50 ; J. F. Snyder, Adam W. Snyder, 300, 314 n. He was "pensioned as a 
Revolutionary soldier by act of Congress of June 30, 1834 — U. S. Stat, at 



cclxviii ILLINOIS HISTORICAL COLLECTIONS 

Large, 6: 585. He was living in 1814 (Snyder, op. cit., 314 n.) but his 
son nowhere gives the date of his death. According to the Governor he 
"possessed a good English education," though no library in the Governor's 
youth; and in his later years "read much and wrote essays for the papers" 
Pioneer History, 300. Most of Governor Reynolds' excellent traits of 
character — his complete abstinence from liquor and gambling after his early 
manhood, his discretions in land speculation (for a forgery case in which his 
name was involved, ante, xcviii), and complete cessation therein when he 
assumed judicial duties, his rigid financial probity in public office, and very 
likely too the admirable character of his home life — were evidently due to 
the warnings of his father's career. Cp. My Own Times, 52, 110; Pioneer 
History, 352; J. F. Snyder, Adam W. Snyder, 312, 314 and n. The rarity 
of his references to his father, amid the vast reminiscences of his con- 
temporaries is extremely noticeable. 

48. John Beaird was born in Virginia, removed in 1787 to Tennessee, 
and later to Kentucky, and finally to Randolph County in 1801. While 
in Tennessee he had been a representative in the legislature, and very 
prominent in Indian warfare. In 1793, when in command of a punitive ex- 
pedition against some Indian raiders, he precipitated border war by killing 
indiscriminately a group of principal chiefs who had assembled at the 
express order of the President. He was court martialed, but not punished. 
J. G. M. Ramsey, The Annals of Tennessee, 577-578, 624, 626 ; Tames Phelan, 
Hist, of Tennessee, 157. On December 25, 1802, upon the recommendation 
of the court of Quarter Sessions — ante, xix, n. 2 — he was appointed a 
member of both county courts ; the governor preferring him to James Mor- 
rison (brother of William and Robert) and Thomas Todd (one of the 
very early pioneers) — Court Record, 1802-06, 8, and Gibson, Exec. 
Journal, 114. A peculiarity in his appointment is noted, ante, clxii. He 
was faithful in his attendance, and there is nothing to indicate that he was 
other than a satisfactory judge. He was not reappointed to the reorganised 
court in 1805. One judges from the statements of Governor Reynolds, 
who was intimately associated for years with his son, that he was of less 
education than several of his fellow judges. He died in the second half of 
1809 — Randolph County Commissioners, 1809-10, 122; County Court Record 
1810, 9. He was connected by marriage with Robert Reynolds. See 
Reynolds, Pioneer History, 310-312. 

49. James McRoberts was born on May 22, 1760 in Scotland, and 
came with his family in 1772 to Pennsylvania. He fought in the Revolu- 
tion from 1777-1781, and continued in the army until 1783. He removed to 
Kentucky in 1788, thence to Illinois in 1797, according to Reynolds. But 
the second board of land commissioners confirmed his donation claim under 
a militia right (as it had been confirmed by the governor the first board 
did not deal with it) — Amer. State Papers: Pub. Lands, 2: 236; which re- 
quired militia service before August 1, 1790. He appears on the general 
militia list of St. Clair— Chic. Hist. Colls., 4 : 225. On April 4, 1804 he 
was appointed a judge of the Quarter Sessions (but not of the Common 
Pleas) — Gibson, Exec. Journal, 123. He was not reappointed in 1805. He 
died in September, 1846. Two of his sons had distinguished political 
careers. The fact that both were graduates of Transylvania University 
throws light upon the father. See Reynolds, Pioneer History, 300-303. 
There is a James McRoberts on two lists of American residents in the 
Illinois country prepared in 1787 — Alvord, Kaskaskia Records (I. H. C, 5), 
423, 444. As Reynolds states that McRoberts visited Kaskaskia in 1789 
(but returned to Kentucky after exploring "the Northwest and the Spanish 

country west of the Mississippi"), it is probable that his visit was actually in 



APPENDIX cclxix 

1787. The confirmation of his militia claim must have been connected with 
his visit. He seems to have served again as a county judge under the Illinois 
Territory — McDonough, Hist, of Randolph, Monroe and Perry Counties, 
125; Reynolds says that he was "elected to the office of county-judge under 
the State government." He was a slaveholder — McDonough, op. cit., 133. 

50. John Grosvenor (who signed his name both with and without, but 
more often with, the s) went from Connecticut to Illinois at least as early 
as 1799 — under circumstances which, Governor Reynolds hints, would today 
be a violation of the Mann Act, but were then still a matter of individual 
liberty, and which left him, in the Governor's habitually generous judgment 
"an honest, correct man, moral in all things." Reynolds, Pioneer History, 
184. Appointed to both of the county courts on February 16, 1805 — Gibson, 
Exec. Journal, 126 — and not reappointed the same year to the reorganized 
Common Pleas, he served for but a few months. He was fairly regular 
in attendance in the courts, but some of his professional shortcomings, and 
violations of the law as an innkeeper, are noted ante, clxxx, n. 1 ; clxxxi, n. 
1. On his land record, ante, lxxxviii. He was of the Edgar-Morrison 
political faction, signing various prodivision (and proslavery) petitions — 
ante, liii, n. 4; liv, n. 1; and seems, in personal relations to have been near 
to Robert Reynolds and John Beaird. 

51. Jean Baptiste Barbau's is one of the most honorable names in the 
early history of Illinois. He was probably born in New Orleans, whither 
his parents had emigrated from France, about 1720. Alvord, Cahokia Records 
(I. H. C, 2), lvi and n., cxxxii and n. He was a member of the British 
court created at Kaskaskia in 1768 by Lieutenant-colonel Wilkins 
(abolished in 1770), at which time he was a captain of militia — ibid., lxi; 
Kaskaskia Records (I. H. C, 5), 18, 69. On May 19, 1779 he was elected 
from Prairie du Rocher — under the description "captain of the militia and 
commandant of this village" — as a member and first-judge of the Virginia 
court set up at Kaskaskia by County-lieutenant John Todd — ibid., 85, 86. 
He was not reelected on June 18, 1782, as the policy of rotation was 
adopted — ibid., 291-292. One of the fraudulent land claims of William Kelly, 
ante, xc, n. 4, included an acknowledgment before Barbau in 1782 
when he was not a magistrate — Amer. State Papers: Pub. Lands, 2: 130, 
cl. 887. He was the undisputed leader of the French party throughout the 
chaotic maladministration, pillage, and disorder of the years 1782-1790 — Al- 
vord, Kaskaskia Records (I. H. C, 5), index s. v. Barbau. It was he who 
was "called upon to lead the French in their struggle for political liberty" — 
Alvord, Illinois Country, 367; and when Timothe de Monbreun was forced 
to resign on August 14, 1786 lie commissioned Barbau to take his place as 
deputy lieutenant and commandant of the County of Illinois — Alvord, Kas- 
kaskia Records (I. H. C, 5), 232, 390, 396, 580. His powers nominally 
ceased, necessarily, when Congress created a government for the Northwest 
Territory, theoretically, in 1787, but the long delay in actually extending 
administration to the Illinois country only increased the anarchy of the 
last years preceding 1790; cp. John Edgar's letters quoted above in app. n. 
43. Governor St. Clair named him on April 29, 1790 as a judge of the 
Common Pleas, but not of the Quarter Sessions, the criminal court — St. 
Clair Papers, 2 : 165 n. ; ante, app. n. 38. It is indicated ante, cxlvii, n. 3 — 
the vast extent of the county rendering administration according to the 
letter of the statute impossible — the Governor divided it into three districts, 
one with Prairie du Rocher as its center, over the courts of which Barbau 
presided. He is described in this period as "judge and president of the 
district of Prairie du Rocher" — Alvord, Kaskaskia Records (I.H. C.,5), 322 
n. ; Reynolds, Pioneer History, 180. According to Miss Allinson he was not 



cclxx ILLINOIS HISTORICAL COLLECTIONS 

included in the appointments to the St. Clair courts in 1795 — 111. State Hist. 
Soc. Trans. (1907), p. 290; and this — which is as it should be, for Prairie 
du Rocher fell within the new county of Randolph whose creation necessi- 
tated new appointments — is confirmed by his absence from the St. Clair 
Orphans' Court: 1797-1809 record. On the other hand he sat in the Ran- 
dolph Common Pleas before 1800. Similar facts regarding Dumoulin and 
various other personages of St. Clair County have been treated as sufficient 
evidence of their appointment in 1795 to the Quarter Sessions of that 
county — since they sat in the Orphans' Court : ante, app. notes 18, 28, 29, 
31, 38, 39. But such an assumption proves unfounded in the case of Barbau 
and Louviere; for they continued to sit in the court after 1800, notwith- 
standing that Harrison gave them no appointments as judges, though he 
did appoint Barbau (if it was not his son) a justice of the peace on October 

27, 1801 — Gibson, Exec. Journal, 104. Louviere had no appointment what- 
ever. That the explanation is probably to be found in their old commissions 
as justices of the peace is suggested ante, cci, n. 2. Barbau sat in the 
Quarter Sessions as late as March 1805 {Court Record: 1802-06, 10, June, 
1803; 39, December, 1803; 77, March 5, 1805). The extraordinary omission 
of honorable and distinguished Frenchmen from Governor St. Clair's ap- 
pointments in 1795 is noted ante, ccxix, n. 2. No instance is more remarkable 
than Barbau's. In 1802 Harrison appointed him captain in the Randolph 
militia — Gibson, Exec. Journal, 110. Barbau died in 1810 — Alvord, Cahokia 
Records (I. H. C, 2), lvi, n. ; cxxxii. On April 17, 1810 letters of admin- 
istration were granted to his widow — Randolph County Court Record 1810, 

28. His record as a judge, citizen and man is apparently stainless. The 
first board of land commissioners — ante, lxxxvii, n. 1 — frequently used his 
testimony to disprove fraudulent claims. Strange to say, there do not seem 
to have been presented, by him or others, any donation claims based upon 
his militia right; but his family right was affirmed by the first board — 
Amer. State Papers: Pub. Lands, 2: 162. He wrote an educated French 
style — see for example Alvord, Kaskaskia Records (I. H. C, 5), 398; 
and his written English was decidedly superior to that of John Edgar and 
various others of the American leaders of the time — cp. Alvord, Cahokia 
Records (I. H. C, 2), cxxxiv and ante, app. n. 43. 

52. Of Antoine Duchaufour de Louviere less is known than of Barbau. 
He was also a resident of Prairie du Rocher. Though not an original 
member of the court established in 1768 under the British regime by Lieu- 
tenant-colonel Wilkins, he became a member in the winter of 1769-1770 — 
Alvord, Illinois Country, 267. With Barbau he was elected on May 19, 
1779 as a member of Todd's court at Kaskaskia — Alvord, Cahokia Records 
(I. H. C, 2), lxi ; Kaskaskia Records (I. H. C, 5), 85, 86; and served 
the full term of three years, but was not reelected — ibid., 291-292, 419 n. 
On April 29, 1790 Governor St. Clair appointed him one of the judges of 
the Quarter Sessions, but not of the Common Pleas — St. Clair Papers, 2: 
165 n. Thus, according to the record, Barbau should have presided over 
the civil, and Louviere over the criminal, courts in the district of Prairie 
du Rocher. With respect to his status after 1795 what is said in the pre- 
ceding note of Barbau applies also to Louviere. He died some time before 
March 1802, for a sheriff's return on a writ of that date is found in a suit 
by his administrator in the Randolph Common Pleas — 4: pi. 27 (June, 1803). 

53. Of Samuel Cochran nothing seems to be known save his service 
in the court — Gibson, Exec. Journal, 132, 143. He was conspicuously con- 
scientious in his attendance. There are two Cochrans who left traces in 
the Kaskaskia Records (I. H. C, 5) — see index — and he was probably of the 
same family. 



APPENDIX cclxxi 

54. The earliest appearance of James Finney noted in the records is as 
foreman of a petty jury in the June term, 1803 — Randolph Court Record 
1802-06, 23. Various documents in the Amer. State Papers: Pub. Lands, 
vol. 2 (pp. 132, 134, 136-137, 205-208) show a "J." Finney acting as the 
deputy-clerk of the first board of land commissioners in 1805 to 1809. He 
was appointed by the board {Annals, 8 Congress, 1 session, 1287). It is 
assumed that the jury foreman and the clerk of the land board are the 
same James Finney (no "John" anywhere appears) whom Harrison appointed 
coroner of Randolph County in November, 1806 and judge of the Common 
Pleas a year later — Gibson, Exec. Journal, 137, 143. Like Cochran he was 
extremely faithful in attendance. In 1807 he was the second choice of the 
House of Representatives (George Fisher being the first) for appointment 
to the Council — Harrison, Messages, 1 : 253, 263. A record made by one of 
the Morrisons of the events connected with the murder of Rice Jones quotes 
Finney as declaring that "if Dunlap was to go to heaven, he would get a 
higher seat in heaven than Jesus Christ, and be set at the right hand of 
God for killing Rice Jones" — Chic. Hist. Colls., 4 : 279. Whether he did 
or not say just this, it conveys a significant reflection of the incredibly bitter 
personalities which made up the "politics" of the day. Beginning in 1813 a 
James Finney served for many years as clerk of the county court of Johnson 
County — Palmer, Bench and Bar, 2 : 872 ; and this might well be the 
Randolph County judge. On the other hand it is stated that — after serving 
from 1803 to 1809 as a county commissioner — James Finney was a member 
of the Common Pleas Court of Randolph County as reestablished in 1814 — 
McDonough, Hist, of Randolph, Monroe and Perry Counties, 125, 181. 

55. See ante, app. notes 27, 42. Dates for appointments are taken 
from Gibson, Exec. Journal. 

56. Among the many Mitchells of St. Clair County the only one pos- 
sibly identifiable as this appointee is Peter Mitchell. He was an immigrant 
of 1797 — Reynolds, Pioneer History, 237, 337; Brink, McDonough, Hist, 
of St. Clair County, 269. He is on the election roll of 1799 — ibid., 70; and 
is described as having served as justice of the peace — ibid., 53. He was an 
unsuccessful candidate for the first General Assembly in 1818 — ibid., 72; a 
member of the temporary "court of justices" of St. Clair County in 1818 — 
ibid., 76 ; a county commissioner from 1826 to 1830 — ibid., 77. But Peter 
Mitchell is nowhere referred to as "Dr." 

57. It is impossible to tell, because of the punctuation in Gibson's 
Journal, 132-133, whether Rue was an appointee in Dearborn County or in 
St. Clair. The French name makes St. Clair probable. In Monks, Courts, 
2: 632, he is assigned to Dearborn County. 

58. John Hays was born in 1770 in New York City; was employed in 
the Indian trade of the Northwest while a youth ; in 1793 settled in Cahokia 
and after acting for a time as clerk in John Hay's commercial house en- 
tered the Indian trade independently — Reynolds, Pioneer History, 223-225. 
On May 5, 1802 he was appointed by Harrison sheriff of St. Clair County — 
Gibson, Exec. Journal, 109; in which office he continued until after the 
inauguration of state government in 1818 — Brink, McDonough, Hist*, of 
St. Clair County, 72, 73, 76, 77. He was acting as sheriff as early as June, 
1802 — Order Book of Common Pleas, 120. In January 1814 he was made 
collector of direct taxes and internal revenue for Illinois Territory — U. S. 
Senate, Exec. Journal, 2: 457, 461 (confirmed January 22); on March 3, 
1821 was confirmed as Indian agent at Fort Wayne, Indiana — ibid., 3 : 235, 
255; on May 12, 1824, on January 21, 1828, and on April 26, 1832 was con- 
firmed as receiver of public monevs at Jackson, Missouri (this is assumed 
to be the same John Hays)— ibid'., 3: 375-376, 586, 594; 4: 236, 242. Ac- 



cclxxii ILLINOIS HISTORICAL COLLECTIONS 

cording to Reynolds he was also, in early times, for many years postmaster 
in Cahokia. The same authority states that he died there, an old man. 
This is consistent with the statement in Brink, McDonough, op. cit., 46, 
that he was a resident of Cahokia from 1798 to 1822 and again later, and 
died there. 

59. Caldwell Cairns was later one of the three judges of the first 
county court of St. Clair County under Illinois Territory, 1813 to 1816 — 
Brink, McDonough, Hist, of St. Clair County, 76. 

60. This John "Kinzey" was not the John Kinzie of Chicago history — 
see A. T. Andreas, History of Chicago, 1 : 72-75. And although the latter 
early established trading posts on the Kankakee, Rock, and Illinois rivers it 
seems that he could hardly have been the J. "Kinzie," described as "merchant," 
who was sued in the St. Clair Court, by John Lyle, administrator of Jean 
Baptiste Maillet (commandant at Peoria — Alvord, Cahokia Records (I. H. 
C, 2), lvi, 230 n. ; St. Clair Papers, 2: 138, 167 n. and ante, xii, n. 4) for 
conversion in August 1801 of a stock of trading goods — Order Book: 
1801-03 of Common Pleas, 92. Accordingly, it seems probable that the 
defendant in that suit and the justice of the peace were one person. Noth- 
ing else appears regarding any John Kinzie in Illinois at this time. The 
stock of goods converted has some general interest : 33 3-4 yards of blue 
cloth, 11-4 do. of fine cloth, 10 3-4 do. molton, 9 1-2 do. spotted Kersey, 
2 pair of 3-point blankets, 7 1-2 pr. of 2 1-2-point blankets, 3 pr. of 1 1-2- 
point blankets, 2 1-2 yd. striped cloth, 2 1-4 yd. scarletts, 3 black silk hand- 
kerchiefs, 4 1-2 yd. calico, 1 roll red teritan, 2 dowgaines, and 10 butcher 
knives, 4 "paper looking-glasses," 5 black ostrich feathers, 18 1-2 pr. large 
ear bobs, 19 1-2 pr. common ditto, 8 steels to strike fire, 168 large silver 
brooches, 129 common ditto, 4 screws for fusils, 10 oz. small beads, 9 boxes 
of combs, 1-4 lb. vermillion, 3-4 lb. white thread, 3-4 piece ribband, 59 
needles, 1 spur, 5 do-z. buttons, 13 gun flints, 13 3-4 lb. ball, 104 doe, 4 
buck, 3 raccoon, and 1 muskrat skin. Declared value, $1000 ; verdict that 
"the goods were worth $393 according to the Value of the same." 

61. See ante, ccviii. 

62. Probably this was Jean Baptiste Barbau Sr. — ante, app. n. 51. 
Possibly it was his son. Three generations of the same name appear as 
early as in the census of Prairie du Rocher in 1787 — Alvord, Kaskaskia 
Records (I. H. C, 5), 419: the "Mr. Barbau pere" of that census is the 
noted French leader, the "Mr. barbau fils" is the son now referred to. 
He appears infrequently in the records — ibid., 292, 442. 

63. The Gilbreath family, according to Reynolds, came to Illinois in 
1804 — Pioneer History, 398. If this be correct it is rather remarkable that 
James Gilbreath should have been made a justice of the peace in April, 
coroner in July, and sheriff in October, 1806 of Randolph County — Gibson, 
Exec. Journal, 133, 135, 137. The first appointment might well have been 
made upon petition of his neighbors ; the others would seemingly require 
some extraordinary qualities. Of these, and of his antecedents, we have 
no knowledge. He signed the petition of 1807 opposing division — see ante, 
xlvi, notes 1 and 2; and probably signed no prodivision petition except 
that of 1803 for annexation to Louisiana — ante, lix, n. 2. His record 
before the land commissioners was not creditable — ante, lxxxiv. Yet 
he held the very important office of sheriff through the remainder of the 
Indiana Territory period. On his alleged complicity in the Rice Jones 
murder, and party affiliations, see ante, xciv, n. 2 and see also ante, clxxix, n. 
3. He served as a county commissioner of Randolph County from 1803 to 
1809 — McDonough, Hist, of Randolph, Monroe and Perry Counties, 125. He 
was a member of the second territorial General Assembly (November 14- 



APPENDIX cclxxiii 

December 24, 1814), from which he was expelled, the reasons not appear- 
ing — McDonough, op. cit., 40, 112. It is said that he built the first cotton 
gin in Illinois — Brink, McDonough, Hist, of St. Clair County, 53. 

64. Paul Herlston (Harolson, etc. — the name was spelled with the most 
careless freedom — but he sometimes spelled it very plainly as Herlston) 
appears frequently in the early records. He served as a county commissioner 
in the period 1803-1809; and, as a justice of the peace, was a member of the 
first county court of Randolph as organized under the Illinois Territory, 
1809 — McDonough, Hist, of Randolph, Monroe and Perry Counties, 125, 181. 

65. Frederick Graeter wrote a beautiful and cultivated hand. A Franz 
Graeter was licensed as a merchant at Cahokia in 1793 — Brink, McDonough, 
Hist, of St. Clair County, 84. Frederick appears in land transactions in 
1793 and 1794 — ibid., 87. The name does not appear in Alvord's Cahokia 
and Kaskaskia Records, as occurring before 1790. 

66. The Langlois family was very numerous and important in Kas- 
kaskia — see Alvord, Kaskaskia Records (I. H. C, 5), index; but the identity 
and relationship of Audrien Langlois does not appear. He is presumably 
the Langlois charged by the Edgar-Morrison faction with complicity in 
the murder of Rice Jones — ante, xciv, n. 2. 

67. Henry Levens is very prominent in the early records of Randolph 
County. He signed his own name variantly, and very plainly — "Levens" 
and "Leavens" ; but the former more commonly. Some Henry Levens was 
in Illinois at least as early as 1787 — Alvord, Kaskaskia Records {I. H. C, 
5), 444. Governor Reynolds, however, says that the well-known pioneer 
of that name immigrated from Pennsylvania in 1797. His grist and saw- 
mills were important in the economy of the territory ; the latter was the 
only one in the country about 1800 — Reynolds, My Own Times, 23; com- 
pare ante, cxxiv. As justice of the peace he was a member of the first county 
court under Illinois Territory in 1809 — McDonough, Hist, of Randolph, 
Monroe and Perry Counties, 181. In 1818, a true pioneer, he moved to the 
frontier of Missouri — cp. Houck, Missouri, 3 : 83. To Reynolds' sketch, 
which gives the character of the man well — Pioneer History, 157-159 — it may 
be added that he was decidedly litigious. See ante, clxxvii, n. 2. 

68. Hamlet Ferguson, as a justice of the peace, was a member of the 
new county court of Illinois Territory in 1809 — McDonough, Hist, of 
Randolph, Monroe and Perry Counties, 125, later appears as a member of 
the first county court of Johnson County under the Illinois Territory, in 
July, 1813 — Palmer, Bench and Bar, 2: 872; also as a delegate to the 
constitutional convention of 1818 from Pope County — 111. State Hist. Society, 
Journal, 6 : 358. 

69. Samuel Omelvany, as a justice of the peace, was a member of the 
first county court of Randolph County under Illinois Territory — McDonough, 
Hist, of Randolph, Monroe and Perry Counties, 181. He was also a delegate 
from Pope County to the constitutional convention of 1818 — 111. State Hist. 
Society, Journal, 6 : 358. 

70. Robert Morrison was a brother of William Morrison, whom he 
followed to Kaskaskia from Pennsylvania in 1798 — Reynolds, Pioneer 
History, 165. He was one of the three delegates of the county to the Vin- 
cennes convention in December, 1802 — Reynolds, My Own Times, 67; 
Buck, Illinois in 1818, 186. He was a county commissioner from 1803 to 
1809 — McDonough, Hist, of Randolph, Monroe and Perry Counties, 125. 
He served as clerk of the Randolph courts of Indiana Territory from 1800 to 
1809 — Gibson, Exec. Journal, 93, 131 (though the appointment does not appear 
he served as clerk of the Common Pleas before 1805). After 1809 he was 
clerk of the General Court of Illinois Territory. On his land record see 



cclxxiv ILLINOIS HISTORICAL COLLECTIONS 

ante, lxxxv, lxxxvi, xc, xci. For attempt to impeach him in 1808 — 
ante, ccviii. He seems to have gained the confidence of Ninian Edwards 
soon after the latter came to Illinois. It was of his appointment to the 
office of adjutant-general of Illinois Territory (he served from July 18, 
1809 to May 28, 1810 — McDonough, Hist, of Randolph, Monroe and Perry 
Counties, 40) that Senator John Pope of Kentucky (brother of Nathaniel 
Pope) on November 9, 1809 wrote to Edwards : "I am sorry you removed 
Rector and appointed Morrison . . . The Rectors are honest men and 
would have been your firm friends. Morrison I know to be a scoundrel 
and will not be your friend unless you do the hundredth good turn and is 
identified with a party which will require more of you than you can do for 
them. Robert Morrison professed to be a friend to Nat. Pope, although 
Nat. would not speak to his brother, and clandestinely signed a petition 
to the executive containing some very strong representations against him 
. . . I saw the paper with his signature" — Washburne, Edwards Papers, 
40. Alvord, Illinois Country, 431 n. refers to this letter as directed 
against Edwards' refusal to remove Morrison from the clerkship of the 
General Court ; but no Rector held that position, whereas Elias Rector was 
adjutant-general from May 3 to July 18, 1809, and again from May 28, 1810 
to October 25, 1813. McDonough, op cit., 40. It looks as though the gover- 
nor came to accept Senator Pope's views. And see post, app. n. 77, on Elias 
Rector. In 1818 he was an unsuccessful candidate for a United States 
senatorship — Buck, Illinois in 1818, 303. He died in Kaskaskia in 1842. 

71. George Blair came to Illinois in 1796 — Brink, McDonough, Hist, 
of St. Clair County, 51 ; Reynolds, Pioneer History, 377. Belleville was 
located on his land in 1814. Governor Reynolds' picture of him — in Brink, 
McDonough, op. cit., 183-184 — is unflattering. In 1818 he was one of a few 
signers of an address "to the friends of Freedom in the state of Illinois" — 
Buck, Illinois in 1818, 260-261 ; presumably, therefore, well-known for anti- 
slavery sentiments (as certainly various of the other signers were). 

72. James Edgar was a brother of John. Aside from his service as 
sheriff — and that unsatisfactorily: see ante, lix — he left no traces in the 
records. 

73. John Whiteside was a brother of William Whiteside (ante, app. n. 
40), and, like him, had served in the Revolutionary War — Reynolds, 
Pioneer History, 185, 190. He was active as an Indian fighter — ibid., 186. 
Otherwise his service as coroner gives him his only place in history. Gen- 
eral Samuel Whiteside, of the Winnebago and Black Hawk wars, was his 
son. 

74. Miles Hotchkiss was a prominent citizen, an innkeeper ; repeatedly 
in trouble for violation of the liquor laws, and once for insulting the court; 
all of which — as pointed out ante, clxxx, n. 1 ; ccxi, n. 1 — in the end in- 
volved no punishment at all. It is said that he was a member of the 
reorganized Common Pleas in 1814 — McDonough, Hist, of Randolph, Monroe 
and Perry Counties, 181. 

75. William Wilson was appointed, according to Gibson's Exec. 
Journal, 107, for St. Clair County ; but " — Robinson" was appointed for 
Randolph County, "vice William Wilson whose commission is Revocked" — 
ibid., 145. The reason for the revocation is shown ante, clxxvi, n. 4. For 
the reason indicated no attempt is made to distinguish between the two 
counties. 

76. A general map of Kaskaskia's situation, made "agreeably to a re- 
quest of the Board of Commissioners for the District of Kaskaskia," dated 
September 21, 1807 and signed by him as "County Surveyor," appears in 
Amer. State Papers: Pub. Lands, 2: between pages 182 and 183. 



APPENDIX cclxxv 

77. Elias Rector's name is signed to map of Prairie du Pont dated 
May 23, 1808, and printed in ibid., 2: at 194-195. Another map, undated— 
ibid., 182-183 — of the Kaskaskia common field is signed by "Elias Rector 
D. S.," i.e. Deputy Surveyor ; as deputy of the then surveyor of public lands 
in Illinois. Wilson and Robinson were probably the only county surveyors. 
The whole Rector family moved to St. Louis with William Rector about 
1816. Elias Rector was postmaster of the city from 1819 to 1822. Houck, 
Missouri, 3 : 184, 255. 

78. William Rector was the oldest of the large Rector family. Four 
maps, all signed by him as "D. S.," of dates 1808-1810, are found in Amer. 
State Papers: Pub. Lands, 2: at 182-183, 186-187, 192-193, 194-195. He was 
appointed surveyor of the public lands of Illinois and Missouri in 1816, and 
reappointed — and his jurisdiction extended over Arkansas — in 1823 — U. S. 
Senate, Exec. Journal, 3: 51, 52, 329, 334. On February 7, 1811 he was 
appointed brigadier-general of the territorial militia of Illinois — U. S. 
Senate, Exec. Journal, 2 : 165, 166. He commanded a regiment in 1812 in 
operations against the Indians in Illinois, and was known as "colonel" 
Rector — Reynolds, Pioneer History, 354. After his removal to Missouri 
in 1816, he was prominent in the politics of that territory sitting in the con- 
stitutional convention of 1820 as a representative of St. Louis County. His 
brother Thomas killed Joshua Barton, U. S. attorney of Missouri, in one 
of the famous duels of Missouri annals (June 30, 1823), which grew out 
of a dispute over William Rector's conduct as surveyor-general — Houck, 
Missouri, 3 : 17, 249, 255-256 ; and cp. U. S. Senate, Exec. Journal, 3 : 329, 
331 (the instructions to the committee indicate the charges against him). 
He died in Illinois on June 6, 1826. 

79. George Bullitt was admitted by the General Court on September 
4, 1804 to examination by Benjamin Parke and John Rice Jones for the 
degree of attorney and counsellor, and on the 6th produced his license as 
counsellor and took the oath — Order Book, 1 : 101, 105. In December 1805 
he served as deputy attorney-general in Kaskaskia — Randolph Common 
Pleas, 5 : 308. He practiced very little in Illinois. He had a distinguished 
career later in other fields. On February 9, 1814, and again on February 
19, 1818 he was appointed a judge of Missouri Territory, at which times 
the President, in nominating him, described him as of that territory — U. S. 
Senate, Exec. Journal, 2: 470; 3: 122, 124. He was a member (from Ste. 
Genevieve) of the first territorial House of Representatives, elected in 
November, 1812, and acted as speaker in its second session, in December 
1813 — Houck, Missouri, 3 : 3, 5. On April 6, 1820 — being now described 
as "of Arkansas," he was made register of the land office at Cape Girardeau. 
To this office he was reappointed on April 19, 1824 and on January 21, 
1828, and on April 26, 1832 he was appointed to the same office at Jackson — 
ibid., 3: 205, 206, 368, 372, 585, 594; 4: 236, 237, 242. 

80. William C. Carr was born on April 15, 1783 in Virginia, where 
he was educated and studied law before coming west. According to Billon 
he was one of the first Americans to arrive in St. Louis (March 31, 1804) 
after its transfer to the United States, and the first American lawyer after 
John Rice Jones. It was only on September 6, 1804 that the General Court 
set the first day of the next Randolph circuit for his examination by Benja- 
min Parke and John Rice Jones (subject to his producing a license as 
attorney from some one of the United States and a certificate of moral 
character) — Order Book, 1 : 105. Perhaps, however, he was not present 
in the court. He acted as U. S. attorney for the district of Ste. Genevieve 
(where he settled for one year immediately after reaching the territory) 
when its first courts were organized by the governor and judges of Indiana 



cclxxvi ILLINOIS HISTORICAL COLLECTIONS 

Territory in December 1804. On his practice in the Kaskaskia courts see 
ante, clxxxix, n. 3 and cxciii, n. 4. Apparently from December 1805 until 
1810 he served as agent of the United States (clerk) before the board of 
land commissioners to examine the land titles of the territory — Houck, 
Missouri, 3 : 44 ; Marshall, Life and Papers of Frederick Bates, 1 : 
127-128, 278, 280; 2: 151. He was in Kentucky much of 1810-1812— ibid., 2: 
151, 227, 229. He was strongly opposed to General Wilkinson when gov- 
ernor of the territory, and an intimate friend and executor of his successor, 
Governor Meriwether Lewis. In November 1812 he was elected from St. 
Louis as a representative in the first territorial General Assembly, was 
chosen speaker (presiding over the first session, in December of that year, 
but not over the second) ; and was a member of the second legislature, of 
1814-1816. In 1817 he was one of seven men, including Governor William 
Clark and Thomas Hart Benton, named by the legislature as the first trus- 
tees of the St. Louis public schools. From 1826 to 1834 he served as state 
circuit judge. He was impeached, 1832, for neglect of duty, incapacity, and 
favoritism, but v/as acquitted. His death occurred on March 31, 1851. He 
was of great prominence and influence in St. Louis throughout his life. 
See Billon, Annals of Si. Louis, 1804-21, index ; Scharf , Hist, of St. 
Louis Citv and County, 1: 340; 2: 1453-1454; Houck, Missouri, index, add- 
ing 2 : 383. 

81. Isaac Darneille, according to Governor Reynolds, was the second 
resident lawyer of Illinois ; he settled in Cahokia in 1794 (Pioneer History, 
181) or 1796 (My Own Times, 128). The latter date is probably correct, for 
Darneille was doubtless the "Isaac Daxueille" appointed by Governor St. 
Clair United States attorney for Hamilton County on November 27, 1794 — 
St. Clair Papers, 2 : 337 n. There were good lawyers in Ohio, and Darneille 
would not have lasted long. On March 1, 1804 the General Court appointed 
John Rice Jones and John Johnson to examine him for admission as coun- 
sellor (it is stated that he had already been admitted as an attorney), and 
on the 4th he took the oath— Order Book, 1 : 59, 68. In 1798 he was clerk 
of a Court of Commissioners and Assessors of St. Clair County — 
Allinson, 111. State Hist. Soc. Trans. (1907), p. 291. He was very active 
for a time in law at Cahokia, appearing in almost every case (in which the 
parties employed counsel) in the years 1801-1803; and not infrequently in 
Kaskaskia. See ante, cxc and n. 2; cxciii and n. 4; cxcvii and n. 4. As 
early as 1797, however, "for several contempts and disorders in this court, 
and by reason of his horrid moral character" the Common Pleas of St. 
Clair County had barred him from appearing before it — Bateman and Selby, 
Hist, of St. Clair County, 2: 701, quoting the entry; possibly "1797" is a 
misprint for 1807. He was also active in the General Court. His legal 
attainments were shallow, but sometimes effective in offering obstructions 
to opponents in common law pleading. As Governor Reynolds says (Pioneer 
History, 222), "The courts and juries at that day were not remarkably well 
versed in the technical learning and therefore Darneille could figure with 
ease and safety before these tribunals." An example of his resourcefulness : 
in the General Court he made a motion which the court overruled ; he then 
moved that the plaintiff show cause why it should not be allowed ! — the 
court finally overruled this — Order Book. He was also active in politics. 
He was defeated by Shadrach Bond, Sr. on January 5, 1799 as a candidate 
for the office of representative in the General Assembly of the Northwest 
Territory — Brink, McDonough, Hist, of St. Clair County, 71 (the vote was 
72 to 113; the list of those supporting each candidate is interesting) ; and 
he was again unsuccessful in 1802 as a candidate for delegate to the Vin- 
cennes proslavery convention — ibid., 71, 73. Whether he again tried his 



APPENDIX cclxxvii 

political fortunes does not appear. He was the author of the Letters of 
Decius (1805) ; cleverly written and barbed attacks upon Harrison which 
caused the latter much anguish of mind. According to Harrison Darneilie 
made a retraction under threat of violence, by "12 of the Citizens of Ken- 
tucky" (Messages, 1 : 195 ; but cp. Mrs. Goebel's sensible comments, Harri- 
son, 63-64, 67, and Dunn, Indiana, 302 n., 328. Possibly he had, thus early, 
some special connection with Kentucky. His adventures of gallantry in- 
cluded an elopement with a Cahokian matron to Peoria, where, according to 
Governor Reynolds, he lived "many years." He was living there in 1812 — 
Bateman and Selby, op. cit., 1 : 418. He owned various claims to land in 
Prairie du Pont — (Amer. State Papers: Pub. Lands, 2: 200-202; also in 
Peoria — note ante, cxc. Rejection of his claims by Harrison (ante, lxxix, 
n. 3) was one point of bitterness in the Letters of Decius. He seems also 
to have puttered in the fur trade— Wis. Hist. Colls., 19 : 301-303. He fell 
out with John Singleton, his partner (in what business does not appear). 
See ante, clxxxix, n. 5. In later years he removed to Kentucky, taught 
school, and died there, "rather humbled and neglected," in 1830. It is said 
that he was trained for the ministry. He was well educated, of polished 
appearance and impressive address, facile in speech, and abundant in talent. 
He was for some time very conspicuous. See Reynolds, Pioneer History, 
221-223. General Wilkinson, writing to Jefferson, referred to him as "that 
rascal Darnielle whose name is mentioned only in the same breath as 'libel 
on integrity !' " — Houck, Missouri, 3 : 14. 

82. Benjamin H. Doyle came to Illinois from Tennessee (Brink, 
McDonough, Hist, of St. Clair County, 89, say Knox County, Kentucky), 
and settled at Kaskaskia in 1804 or 1805 — Reynolds, My Own Times, 
129; Pioneer History, 360. The date of his admission by the General Court 
was not noted in examining its Order Book. He was appointed attorney- 
general of Illinois Territory, and served as such from July 24 to December, 
1809 — McDonough, Hist, of Randolph, Monroe and Perry Counties, 40. 
Why he resigned, and why he left the territory, does not appear. 

83. Rufus Easton was born on May 4, 1774 in Litchfield, Connecticut. 
He was well educated before studying law, 1791-1793, in the office of Ephraim 
Kirby of Litchfield, of repertorial fame. At the beginning of the century 
he was practicing in Rome, New York. While there, and during two 
winters in Washington (1803-1804 and 1804-1805) he established political 
relationships with Gideon Granger, De Witt Clinton, Aaron Burr and other 
influential men. Burr seems to have shown him many courtesies. He 
traveled from Vincennes to Louisiana with Harrison and the Indiana Ter- 
ritory judges in the autumn of 1804. Just before starting west, evidently, 
he — and several others who were ready to start for St. Louis (George 
Bullitt, Edward Hempstead and John Scott) — produced to the General 
Court licenses as counsellors and took the oath on September 6, 1804. John 
Rice Jones and Benjamin Parke were appointed to examine him for ad- 
mission as attorney and as counsellor on the first day of the next Randolph 
circuit. Order Book, 1 : 105. Thenceforth he practiced actively in the 
Kaskaskia courts and in the General Court of Indiana Territory ; see ante, 
clxxxix, n. 3 ; cxciii, n. 4 ; and cxcvii, n. 4. He was prothonotary of the St. 
Louis district Quarter Sessions in 1804; U. S. attorney for the St. Louis 
district of the District of Louisiana from March 19 to June 18 (between 
two terms of Edward Hempstead) , 1805 ; and judge of the territorial 
General Court from March 1805 to April 21, 1806. The termination of this 
last service is the peculiar incident above referred to. When not reap- 
pointed, venturing to request an explanation, he received from Jefferson the 
reply (of February 22, 1806) : "Your commission as Judge of Louisiana, 



cclxxviii ILLINOIS HISTORICAL COLLECTIONS 

according to its own terms and those of the Constitution, is to expire at 
the end of the present session of the Senate . . . Every one must be 
sensible what kind of altercation I should be involved in, on every nomina- 
tion, were I to specify the grounds of passing over a candidate, as you 
desire in your letter. However, if you think proper to call on me I will 
verbally state to you two or three facts and hear anything you may wish 
to say respecting them. It is the first time it has ever been asked, and it is 
most probable that it is the last time it will ever be yielded to." Houck, 
Missouri, 2: 401-402 n. Burr seems to have procured this judgeship for 
Easton, and to have endeavored to establish confidence between him and 
Wilkinson, doubtless judging both fit material for tools — Scharf, Hist, of 
St. Louis City and County, 2 : 1455. Before he came west Easton had ap- 
plied for a position as one of the land commissioners for the District of 
Louisiana : Gallatin found him "an amphibious character" — Houck, Missouri, 
3 : 40 n. Easton and Wilkinson did their best to discredit each other — ibid., 
2 : 402-403 and n., 405. Scharf attributes Easton's failure to be reappointed 
as judge to Wilkinson's charges of his official corruption; says he saw 
Jefferson, cleared himself, and was appointed U. S. attorney. But there 
was no appointment after the president's letter. He continued to serve, 
however, as the first postmaster of St. Louis, 1805-1814. On September 17, 
1814 he was elected delegate of Missouri Territory in Congress, holding 
office from November 16, 1814 to March 3, 1817. From 1821 to 1826 he 
served also as U. S. district attorney for the state. His death occurred July 
5, 1834. Scharf characterizes him as "indisputably the leading lawyer of 
the territory" : his early efforts certainly contained no promise of such 
attainments. Alton, Illinois (named after his son) was laid out by him 
in 1817. See Scharf, op. cit., 1: 334; 2: 1454-1456; Billon, Annals of St. 
Louis, 1804-21, index; Houck, Missouri, 2: 384, 401-402; Brink, Hist, of 
Madison County, Illinois, 375 ; Biog. Congressional Directory, 1774-1911, 
80, 85, 622. Cp. Frederick Bates's characterizations of Easton to William 
C. Carr and of Carr to Easton — Marshall, Life and Papers of Frederick 
Bates, 2: 231, 292; rather characteristic of Bates. 

84. James Haggin settled at Kaskaskia in 1803. Beginning in Sep- 
tember 1801 the General Court three times set a date for his examination 
as attorney; in the meantime — a not uncommon occurrence (present e. g. 
also in the case of Benjamin Parke) — he produced a license as, and 
took the oath of, a counsellor on March 6, 1802. General Court, Order 
Book, 1 : 17, 22, 25, 26. He practiced in both Randolph and St. Clair 
counties and in the General Court ; for some years he and Darneille almost 
monopolized practice at Cahokia. Ante, cxciii, n. 4 and cxcvii, n. 4. In 
shiftiness of character they were well matched. In 1803 and 1804 we find 
five suits against him in the Randolph Common Pleas : to recover a retainer 
fee, services not performed ; for fees collected for services not performed ; 
to recover the statutory penalty imposed for selling without a license goods 
from without the territory ; for negligence in services rendered as attorney ; 
and for breach of promise to pay $70 if the General Court should reverse 
a judgment recovered by plaintiff in the county court, Haggin his attorney. 
Randolph Common Pleas, 1 : pi. 55 ; 3 : pi. 57, 58, 66, 67. We also find this, 
in the General Court — Order Book, 1 : 94, I. Darneille v. J. Haggin, Sep- 
tember 16, 1803 : "The sheriff having this day returned the writ of 
Habeas Corpus not executed, for a want of time, and it appearing to the 
satisfaction of the Court that the execution thereof was entirely owing to 
the Defendant, Ordered that the elk do not issue a second writ for the 
same cause." See also ante, ccviii, n. 6. In a paper analyzing political 
conditions in the territory, supposedly written by Benjamin Parke, Haggin 



APPENDIX cclxxix 

was characterized as an adherent of the Edgar-Morrison party, and as 
"an attorney, notorious for his avarice, impudence and cowardice" — Woollen, 
Sketches, 5. In March, 1805 Bryan and Morrison recovered a judgment 
against him under which the sheriff attached on house, 200 acres of land, 
"and 22 law books" — Randolph, Common Pleas, 4: p. 291. My Own Times, 
128; Pioneer History, 360. In the Miscellanies Box at Chester there is a 
petition of Haggin to the Mercer Circuit Court, Kentucky, probably of 1807, 
in some proceeding against Robert Morrison. In this Haggin says he was 
"about to leave that country" — Randolph County — "in December 1804 or 
January 1805," and complains of money collected for and withheld from him 
by Morrison (clerk of the court), and of an unjust settlement which he 
was forced to make with him, "being anxious to set off for this country." 
He was an associate judge of the short-lived "new court" of appeals (Jan- 
uary 15, 1825-December 30, 1826) which was the storm-center of Kentucky 
politics for two years. See Collins, Hist, of Kentucky, 1 : 31, 321-323, 
494-497. 

85. Robert Hamilton seems to have acted as prosecuting attorney for 
the U. S. in the Circuit Court of St. Clair County in October, 1800 — Brink, 
McDonough, Hist, of St. Clair Count v, 70. He appeared in a private action 
in the St. Clair Court on October 9, 1800— Orphans' Court 1797-1809, 13. On 
the first day that the General Court met, March 3, 1801, his examination 

(and that of General Washington Johnston and John Rice Jones) for a 
counsellor's license was set by the General Court for September 7, 1801 — 
Order Book, 2. He was very active in practice before the General Court, 
but appeared — after 1800 — very rarely, if ever, in the Illinois courts. He 
was a representative of Pope County (if indeed it be the same man) in 
the first General Assembly of the state, 1818-1820. 

86. William Hamilton appeared as attorney in some cases of the Ran- 
dolph Common Pleas, vol. 2; but their dates were not noted. Nor was any 
action noted in the Order Book of the General Court admitting him to 
practice. 

87. Edward Hempstead was born on June 3, 1780 at New London, 
Connecticut. He received an academic education, read law, was admitted 
to the bar in 1801, and practiced somewhat in Rhode Island, before coming 
west. He was one of those who hurried to Louisiana upon its transfer to 
the United States. According to Houck he walked from Vincennes to that 
territory. It must have been in the autumn, for on September 4, 1804 his 
examination for admission as an attorney and for counsellor (by Benjamin 
Parke and John Rice Jones) was ordered by the General Court; and on 
the 6th he — together with John Scott and George Bullitt — produced his 
license and took the oath as counsellor. Order Book, 1 : 101, 105. Accord- 
ing to Washburne, however, he accompanied Governor Harrison and 
the judges of the Indiana Territory (address cited below). He was 
several times between 1804 and 1809 deputy attorney-general of the districts 
of St. Louis and St. Charles, in the District of Louisiana and Louisiana 
Territory (first by appointment of Governor Harrison in December, 1804) ; 
clerk of the court of the St. Charles district, 1805 ; clerk of the Legislative 
Council, 1805; clerk of the legislature (of governor and judges), 1806; and 
on May 29, 1809 became attorney-general of the Territory of Louisiana, 
serving as such until October 31, 1810 (when his successor — Thomas T. 
Crittenden took office upon his resignation) ; curious questions are suggested 
by the note in Washburne, Edwards Papers, 56. On November 9, 1812 he 
was elected the delegate of Missouri Territory in Congress, serving from 
January 4, 1813 to November 16, 1814 — the first representative in Congress 
of the trans-Mississippi west. He was a member of the third territorial 



cclxxx ILLINOIS HISTORICAL COLLECTIONS 

General Assembly, and speaker of the House of Representatives, when 
he was killed in an accident on August 9, 1817. See Billon, Annals 
of St. Louis 1804-21, index; Houck, Missouri, index; Scharf, Hist, of St. 
Louis City and County, 1 : 331 et seq. (quoting address of Washburne before 
Missouri legislature) ; Marshall, The Life and Papers of Frederick Bates, 
index (unfriendly to Hempstead) ; Biog. Conqressional Directory, 1774-1911, 
75, 80, 718. 

88. Of Henry Jones nothing is known. He appears in the Randolph 
records only ; as attorney and as litigant in various cases. The action by the 
General Court with respect to his license was not noted. 

89. William Mears was the first attorney after Isaac Darneille to make 
his permanent home in Cahokia. The action of the General Court upon his 
license was not noted. According to Reynolds he was born in Ireland in 
1768, and had taught school and studied law in Pennsylvania before coming 
to Cahokia, where he arrived in 1808 "as if he had dropped down from the 
clouds — without horse, clothes, books, letters, or anything except himself — 
a rather singular and uncouth-looking Irishman." Pioneer History, 361 ; 
My Own Times, 129. His first appearance noted in the St. Clair records 
was in that year — Orphans' Court: 1797-1809, 47 A. He was attorney- 
general of Illinois Territory, from August 1, 1813 — U. S. Senate, Exec. 
Journal, 2: 400, 418, 436 (he was nominated on July 26) — to February 17, 
1818; circuit judge, of the eastern circuit of the Territory, from that date 
onward ; and attorney-general of the state from December 14, 1819 until 
February 26, 1821. McDonough, Hist, of Randolph, Monroe and Perry 
Counties, 40, 42; Brink, McDonough, Hist, of St. Clair County, 77, 89, 186. 
He died at Belleville, of which he became a resident in 1816, in 1826. 

90. Nathaniel Pope was born at Louisville, Kentucky on January 5, 
1784. He was educated at Transylvania University. He is said to have 
emigrated from Kentucky to New Orleans in 1804, but evidently went almost 
immediately to upper Louisiana, where he remained for some years, making 
Ste. Genevieve his home — Reynolds, Pioneer History, 393. He was a resi- 
dent of Ste. Genevieve when the first court was opened there in December 
1804; and was resident there when made a trustee of the Ste. Genevieve 
Academy, organized in 1808. It was in these years that he attended court at 
Kaskaskia. No action of the General Court upon his license was noted. 
His eminence, with John Scott, among those there practicing has been noted 
ante, cxcvii, n. 4. He does not appear in the St. Clair records. He studied 
law with his brother John Pope, later senator from Kentucky ; evidently 
before leaving Kentucky. Alvord says that when he became secretary 
he "had been living in the country for about a year, during which time 
he had associated himself in politics with his relative, Michael Jones, by 
whom he had been put forward as a rival of Rice Jones" — Illinois Country, 
428; which partly explains his opposition to the Edgar-Morrison party. 
Why he would not speak to William Morrison — ante, app. n. 70 — does not 
appear. He was appointed secretary of Illinois Territory on March 7, 1809 
and reappointed on June 1, 1813 — U. S. Senate, Exec. Journal, 2: 119, 120, 
347, 348 ; serving until he was elected delegate of the territory in Congress 
in the summer of 1816 — Washburne, Edwards Papers, 126. He took his 
seat December 2, 1816. (According to McDonough, Hist, of Randolph, 
Monroe and Perry Counties, 40, he served as secretary until December 17). 
On November 30, 1818 he was appointed register of the land office at Ed- 
wardsville — U. S. Senate, Exec. Journal, 3 : 143, ISO. When nominated as 
secretary of the territory in 1809 he was described as "of Louisiana Ter- 
ritory," and in 1813 as "of Kentucky" : he was now, in 1818, described as 
"of Illinois." March 3, 1819 he was nominated and confirmed as U. S. 



APPENDIX cclxxxi 

district judge for Illinois — ibid., 184. In this position he served until his 
death (at St. Louis) on January 23, 1850. In 1826 he was an unsuccessful 
candidate for appointment to the U. S. Supreme Court, when the creation 
of a new circuit was in contemplation. See Reynolds, Pioneer History, 
393-395; My Own Times, 86, 104, 106, 128-129, 134, 154; Bateman and 
Selby, Hist, of St. Clair County, 1 : 428 ; McDonough, op. cit., 40 ; Wash- 
burne, Edwards Papers, 122-123 n., 245, 249; Buck, Illinois in 1818, 
index; Biog. Congressional Directory, 1774-1911, 85, 90, 930; Houck, 
Missouri, 3 : 13, 67 n. On his judicial career, in which he displayed 
rare talents and legal knowledge see Judge John M. Scott, Supreme Court 
of Illinois 1818, 266; and General Alfred Orendorff's address at the un- 
veiling of Judge Pope's portrait in the rooms of the federal courts at Spring- 
field on June 2, 1903. His brother, John Pope, 1770-1845, was U. S. senator 
from Kentucky, 1807-1813 ; governor of Arkansas Territory, 1829-1835 ; and 
representative in Congress, 1837-1843. Nathaniel was the father of Major- 
general John Pope, of the Civil War. 

91. John Rector, according to Governor Reynolds, was a Virginian, 
who came to Kaskaskia in 1804 (My Own Times, 129) or 1806 (Pioneer 
History, 360), and after practicing a few years at that town and Cahokia 
"left the country." The action in the Order Book of the General Court 
upon his license, and the date when he first appeared in the Randolph courts 
— Common Pleas, vol. 4 — were not noted. He did not begin practice in 
Cahokia until 1808. In July of that year "John Rector was admitted as a 
Practicing attorney for this County Court," the Common Pleas — St. Clair 
Orphans' Court: 1797-1809, 43, 44. His family and presumably he, went 
to Missouri — Houck, Missouri, 3 : 255-256. Reynolds characterizes his 
family in Pioneer History, 353-354. He was a brother of Elias Rector and 
William Rector, ante, app. notes 77, 78. 

92. Of Robert Robinson little is known. He was clerk of the first 
board of land commissioners, 1805-1809 — Amer. State Papers: Pub. Lands, 
2: 133, 134, 135, 137 (the date "1803" in the first document so signed is a 
misprint) ; and sometimes signed and was referred to by the commissioners 
as "agent" — ibid., 132, 239. The fact that he was named by the legislature 
one of the trustees of Kaskaskia in 1807 — post, 568 — (the name "Robeson" 
is almost certainly a misprint : Robeson, Robinson, Robertson are often con- 
fused in the county records where the identity seems plain) — indicates his 
high standing. No action upon his license to practice was noted in the 
Order Book of the General Court. He was active as an attorney, and 
ranked with Nathaniel Pope and John Scott in the high quality of his work. 
Ante, clxxviii-ix, n. 5; clxxxviii, n. 2; clxxxix, n. 3; cxciii-iv, n. 4; cxcvii, 
n. 4. He served more than once as prosecuting attorney for the U. S. in the 
Kaskaskia courts. He was of course closely associated with Michael Jones. 
Whether he was active in politics does not appear, but he was one of those 
whom the Edgar-Morrison faction named as implicated in the murder of 
Rice Jones — Chic. Hist. Colls., 4 : 278-279 ; which, of course, only shows that 
he was prominent, and honored by their enmity. 

93. John Scott was a Virginian, born about 1782, a graduate (1802) of 
Princeton College. He probably came to Vincennes and on to Louisiana 
in 1804 (Billon; though Houck says he stopped in Vincennes, studied law 
there, and moved to Ste. Genevieve in 1805). He remained all his 
life in Ste. Genevieve, from 1806 onward. In early years he was active in 
practice in the Illinois courts, and his work was of strikingly good quality. 
Ante, cxciii-iv, n. 4; cxcvii, n. 4. For a time he was in partnership with 
Nathaniel Pope, before the latter left Missouri. Governor Reynolds says, 
quite justly, of Scott and Nathaniel Pope: "These two young gentlemen 



cclxxxii ILLINOIS HISTORICAL COLLECTIONS 

were the choice fruits of nature, possessing great strength of intellect and 
much energy. They rose fast in the profession, and stood deservedly at the 
head of the bar in their day in Missouri and Illinois." My Own Times, 
128-129. On February 16, 1813 he was appointed to the Legislative Council 
of Missouri Territory — U. S. Senate, Exec. Journal, 2: 318, 324. He was 
nominated U. S. attorney for Missouri Territory in July, 1813, but the 
nomination not being acted upon, he was renominated, and confirmed on 
February 9, 1814— ibid., 2 : 401, 418, 470. On August 5, 1816 he was elected 
delegate to Congress over Rufus Easton, the then incumbent, and sat from 
December 2, 1816 to January 13, 1817, when, his election being voided for 
irregularities, he was again elected and repeatedly reelected under the ter- 
ritory and the state, sitting from December 1, 1817 until March 3, 1827 
(Missouri having meanwhile become a state, in 1821). His vote for Adams 
as President in 1825, resulted in his relegation to private life. He was 
thereafter absorbed in the practice of law, in which he won great distinction. 
He died on October 1, 1861. See Billon, Annals of St. Louis 1804-21, index ; 
Houck, Missouri, 3 : 3, 13, 67, 77, 243, 245, index ; Reynolds, My Own 
Times, 53, 128; Biog. Congressional Directory, 1774-1911, 85, 90, 96, 99, 
105, 110, 981. 

94. The examination of John Taylor (by Benjamin Parke and John 
Rice Jones) for admission as an attorney and counsellor was ordered by 
the General Court to be held on the first day of the Randolph circuit in 
the autumn of 1804 — Order Book, 105. He appears almost exclusively in 
the second volume of the Randolph Common Pleas. Little more can be 
definitely stated. (There was a John Taylor who was nominated in 1813 
as a collector in Massachusetts, but was not confirmed; was (if the same) 
later nominated and confirmed to a similar office in Mississippi Territory, 
in 1814; and served as a legislative councillor of that territory in 1816. 
A John Taylor, also, — now described as "of South Carolina" — was next, 
in 1817, made receiver of public moneys at a land office in Mississippi; and 
in 1821 at another in Alabama; having meanwhile, in 1820, served as a 
commissioner to treat with the Creek Indians. U. S. Senate, Exec. Journal, 
2: 438, 443, 444, 457, 473; 3: 24, 25, 92, 93, 213, 251, 254. It would not be 
in the least extraordinary if but one man, and not three individuals, was 
here involved. Cases of service in two territories in these years were 
numerous ; of three by no means unknown. 



LAWS 

ADOPTED BY THE 

GOVERNOR AND JUDGES 

OF THE 

INDIANA TERRITORY, 

AT THEIR FIRST SESSIONS HELD AT 

SAINT VINCENNES, 

January 12th, 1801. 



Published By Authority. 



FRANFORT, (K.) 
PRINTED BY WILLIAM HUNTER. 

1802. 



TABLE 



OF 

CONTENTS. 

* 

NO : PAGE. 

I. A Law supplemental to a law to regulate county 
-**■ levies, 5 

II. A Resolution, 6 

III. A Law to regulate the practice of the General Court 

upon Appeals and Writs of Error, and for other 
purposes, 7 

IV. A Law respecting amendment and jeofail, 13 

V. A Law establishing courts of judicature, 14 

VI. An Act repealing certain laws and acts and parts of 

certain laws and acts, 24 

VII. A Law appointing a Territorial Treasurer, 26 

VIII. A Resolution respecting the establishment of Ferries, 28 

IX. A Law in addition to a law, entitled a law ascertaining 
and regulating the Fees of the several Officers and 
persons therein named, 30 

X. A Resolution respecting the compensation of the Clerk 

to the Legislature. 31 

Certificate of the Secretary, 32 



LAWS 

FOR THE GOVERNMENT OF THE 

INDIANA TERRITORY. 

I. 

A Law supplemental to a law to 

Indiana territory. regulate county levies, 

****** Adopted from the Pennsylvania 

* L. S. * code, and published at Saint Vin- 

****** cennes the nineteenth day of 

Willm. Henry Harrison, January, one thousand eight hun- 

Wm. Clarke, dred and one, by William Henry 

Henry Vander Burgh, Harrison, governor, William 

John Griffin. Clarke, Henry Vander Burgh, 

and John Griffin, judges in and 
over said territory. 

THE commissioners, or any two of them, in every county shall 
within three weeks after their annual appointments, issue 
forth their precepts directed to the constables of every township, 
requiring them to make, within six weeks next after the date of such 
precepts, fair and true certificates and lists in writing, upon their 
oaths or affirmations, of all persons and property declared to be 
objects of taxation by the law to which this is a supplement. And 
the said constables are hereby vested with the same powers, are to 
perform the same duties, be 

B 

[6] 

subject to the same penalties, and are to receive the same 
emoluments as are by the said recited law given to, or imposed 
upon persons therein denominated listers of land. 

The foregoing is hereby declared to be a law of the territory, 
to take effect accordingly. In testimony whereof, we, William 
Henry Harrison, William Clarke, Henry Vander Burgh, and John 



* 



2 ILLINOIS HISTORICAL COLLECTIONS 

Griffin, have caused the seal of the territory to be thereunto 

affixed, and signed the same with our names. 

Willm. Henry Harrison, 
Wm. Clarke, 
Henry Vander Burgh, 
lohn Griffin. 

INDIANAJERRITORY. A R^fa 

T ~ ^ Entered into the twentieth day of 
January, one thousand eight hun- 

, dred and one, by William Henry 

Willm. Henry Harrison, Harrison, governor, and William 

Wm. Clarke, Clarke, Henry Vander Burgh, & 

Henry Vander Burgh, John Griffin, judges in and over 

John Griffin. ; he said territ i ry s 

RESOLVED, that so much of the act passed at the first session 
of the general assembly of the territory of the United 
States north-west of the Ohio, entitled 'an act regulating the 
admission and practice of attornies and counsellors at law/ as 
makes a residence of one year in the territory necessary to persons 
desirous of obtaining licenses 

[7] 

to practice as attornies, previously to the issuing such licenses; 
and so much of the second section of the said act as makes it 
necessary for an applicant to the general court for a license, to 
produce to the court a certificate of his having studied law for the 
space of four years, shall be, and the same is hereby repealed. 

Published at Vincennes the day and year above written, by 
William Henry Harrison, governor, and William Clarke, Henry 
Vander Burgh, and John Griffin. 

Willm. Henry Harrison, 
Wm. Clarke, 
Henry Vander Burgh, 
John Griffin. 



GENERAL COURT, 1801 3 

III. 

A Law to regulate the practice of 

the General Court upon Appeals 

Indiana territory. and Writs of Error, and for 

****** other purposes, 

* L. S. * Adopted from the Kentucky code, 

****** an( j published at Saint Vincennes 

Willm. Henry Harrison, the twentieth day of January, one 

Wm. Clarke, thousand eight hundred and one, 

Henry Vander Burgh, by William Henry Harrison, gov- 

John Griffin. ernor, and William Clarke, Henry 

Vander Burgh, and John Griffin, 
judges in and over the said 
territory. 



T 



HE general court shall annually appoint one of 
the judges thereof, to inspect the clerk's office 
of the said 

[8] 



court, and to report to the next session of the said court the 
condition in which he shall find the papers and records, which 
report shall be recorded. 

§ 2. There shall be no discontinuance of any suit, process, 
matter or thing returned to, or depending in the general court, 
although a quorum of judges shall fail to attend at the commence- 
ment, or any other day of any session ; but if a majority of them 
shall fail to attend at the commencement of any session, any judge 
of the said court, or the sheriff attending the same, may adjourn 
the said court from day to day, for three days successively; and 
if a quorum shall not attend on the fourth, or having attended one 
day, shall fail to attend on a subsequent day of a session, the 
court shall stand adjourned 'till the court in course. 

§ 3. Execution shall be issued from the general court 
according to law; and the returns shall be appointed by the said 
court. 

§ 4. The general court shall have power to direct the writs, 
summonses, process, forms and modes of proceedings to be 
issued, observed and pursued by the said general court. 

§ 5. In appeals and writs of error the following rules shall 
be observed: — No appeal shall be granted from the judgment or 



4 ILLINOIS HISTORICAL COLLECTIONS 

decree of an inferior court to the general court, unless such judg- 
ment or decree be final, and amount, exclusive of costs, to fifty 
dollars, or relate to a franchise or freehold. 

[9] 

Every appeal shall be prayed at the time of rendering the judg- 
ment, sentence or decree. 

The person appealing shall, by himself or a responsible person 
on his behalf, in the office of the clerk of the court from whence 
the appeal is prayed, give bond and sufficient security, to be 
approved by the court, and within a time to be fixed by the court 
to the appellee, for the due prosecution of his appeal. The penalty 
of the said bond shall be in a reasonable sum in the direction of 
the court. 

It shall be the duty of the appellant to lodge an authenticated 
copy of the record, in the clerk's office of the general court before 
the expiration of the next succeeding term thereof ; provided 
there be thirty days between the time of making such appeal and 
the commencement of the said term; and if there be not thirty 
days between the making the appeal and the sitting of the first 
term of the general court, then the record shall be lodged as afore- 
said, at or before the commencement of the second term of said 
court ; or else it shall stand dismissed, unless further time shall be 
granted by the court before the end of the term to which the same 
should have been returned. 

If the judgment or decree be affirmed in the whole, the appel- 
lant shall pay to the appellee a sum not exceeding ten per centum, 
at the discretion of the court, on the sum due thereby, besides the 
costs upon the original suit and appeal. 

[10] 

If the judgment or decree shall be reversed in the whole, the 
appellee shall pay to the appellant such costs as the court in their 
discretion may award. Where the judgment or decree shall be 
reversed in part, and affirmed in part, the costs of the original 
suit and appeal shall be apportioned between the appellant and 
appellee in the discretion of the court. The general court shall 



GENERAL COURT, 1801 5 

in case of a partial reversal, give such judgment or decree as the 
inferior court ought to have given. 

On appeals or writs of error it shall be lawful for the general 
court to issue execution, or remit the cause to the inferior court, 
in order that an execution may be there issued, or that other pro- 
ceedings may be had thereupon. 

No writ of error shall be a supersedeas, unless the general 
court, or some judge thereof in vacation (as the case may be) 
after inspecting a copy of the record, shall order the same to be 
made a supersedeas, in which case, the clerk issuing the said writ, 
shall endorse on the said writ of error "that it shall be a super- 
sedeas, and it shall be obeyed as such accordingly;" and it shall 
also be necessary before a writ of error shall operate as a super- 
sedeas, that bond, to be approved by the clerk of the court issuing 
the said writ, shall be given in the same manner and under the 
like penalty as in the case of appeals. And the plaintiff in error 
shall lodge an authenticated copy of the record, under the 

[11] 

same regulations, and the parties in error shall be subject to the 
same judgment and mode of execution as is already directed in 
the case of appeals. 

A writ of error shall not be brought after the expiration of 
five years from the passing the judgment complained of ; but 
where a person thinking himself aggrieved by any decree or judg- 
ment, which may be reversed in the general court, shall be an 
infant, feme covert, non compos mentis, or imprisoned when the 
same was passed, the time of such disability shall be excluded 
from the computation of the said five years. 

Whensoever the said general court shall be divided in opinion 
on hearing any appeal or writ of error, the judgment or decree 
appealed from, shall be affirmed. 

§ 6. The clerk of the general court shall carefully preserve 
the transcript of records certified to his court, with the bonds for 
prosecution, and all papers relating to them, and other suits 
depending therein, docketing them in the order he shall receive 
them, that they may be heard in the same course ; unless the court 



6 ILLINOIS HISTORICAL COLLECTIONS 

for good cause to them shewn, direct any to be heard out of 
its turn. 

The proceedings of every day during the term, shall be drawn 
at full length by the clerk, against the next sitting of the court, 
and such corrections as are necessary being first made therein, 
they shall be signed by the presiding judge. 

When any cause shall be finally deter- 

[12] 

mined, the clerk shall make a complete record thereof. And all 
writs, processes and summonses, issuing from the general court, 
shall be signed by the clerk of the same, and shall bear test in the 
name of the chief justice, or presiding judge for the time being. 
§ 7. For good cause the general court, or any judge 
thereof, may grant commissions for the examination of witnesses ; 
and the clerk of the said court, when any witness is about to depart 
from the said territory, or shall by age, sickness or otherwise, be 
unable to attend the court, or where the claim or defence of any 
party, or a material part thereof, shall depend on a single witness, 
may upon affidavit thereof, issue a commission for taking the 
deposition of such witness de bene esse, to be read as evidence at 
the trial, in case the witness be then unable to attend ; but the party 
obtaining such commission shall give reasonable notice to the other 
party of the time and place of taking the deposition. 

The foregoing is hereby declared to be a law of the territory, 
to take effect accordingly. In testimony whereof, we, William 
Henry Harrison, William Clarke, Henry Vander Burgh, and John 
Griffin, have caused the seal of the territory to be thereunto 
affixed, and signed the same with our names. 

Willm. Henry Harrison, 
Wm. Clarke, 
Henry Vander Burgh, 
John Griffin. 



INDIANA TERRITORY. 



AMENDMENT AND JEOFAIL, 1801 7 

[13] 

IV. 

A Law respecting amendment and 

jeofail, 
Adopted from the Kentucky and 
T ' ' ' ^ Virginia codes, and published at 

* * * * * * Saint Vincennes the twenty sec- 

_, T XT TT ond day of January, one thousand 

Willm. Henry Harrison, eight £ und J ed an d one, by Wil- 
Wm. Clarke, U am j^enry Harrison, governor, 

Henry Vander Burgh, and w]1 £sm Clarke, Henry 

John Griffin. Vander Burgh, and John Griffin, 

judges in and over the said 
territory. 

WHEN a demurrer shall be joined in any action, the court 
shall not regard any other defect or imperfection in the 
writ, return, declaration or pleading, than what shall be specially 
alledged in the demurrer as causes thereof, unless something so 
essential to the action or defence, as that judgment according to 
law and the very right of the cause cannot be given, shall be 
omitted. And for prevention of delay, by arresting judgments, 
and vexatious appeals, the several acts of parliament commonly 
called the statutes of jeofails, which were in force and use in 
England on the seventh day of February, one thousand seven 
hundred and fifty-two, shall be and are hereby declared to be, for 
so much thereof as relates to mispleading, jeofail and amendment, 
in full force in this territory. 

The foregoing is hereby declared to be a law of the territory, 
to take effect accordingly. In testimony whereof, we, William 
Henry Harrison, William Clarke, Henry Vander Burgh and John 

Griffin, have caused 

C 

[14] 

the seal of the territory to be thereunto affixed, and signed the 

same with our names. 

Willm. Henry Harrison, 

Wm. Clarke, 

Henry Vander Burgh, 

John Griffin. 



8 ILLINOIS HISTORICAL COLLECTIONS 

V. 

A Law establishing courts of 

Indiana territory. judicature, 

****** Adopted from the Pennsylvania 

* L. S. * code, and published at Saint Vin- 

****** cennes the twenty third day of 

Willm. Henry Harrison, January, one thousand eight hun- 

Wm. Clarke, dred and one, by William Henry 

Henry Vander Burgh, Harrison, governor, William 

John Griffin. Clarke, Henry Vander Burgh and 

John Griffin, judges in and over 
the said territory. 

§ 1. ' I V HERE shall be a court styled the general 
■*■ quarter-sessions of the peace, holden and 

kept four times in every year in every county, viz. — In the 
county of Knox, on the first Tuesdays of February, May, 
August, and November, yearly and every year ; — in the county of 
Randolph, on the first Tuesdays of June, September, December 
and March, yearly and every year; — and in the county of Saint 
Clair, on the last Tuesdays in the same months, yearly and 
every year. 

§ 2. There shall be a competent number of justices in 
every county, nominated and authorised by the governor, by com- 
mission under the seal of the territory ; which said 

[15] 

justices, or any three of them, shall and may hold the said general 
sessions of the peace according to law. 

§ 3. The said justices of the peace or any three of them, 
may, pursuant to their said commissions, hold special and private 
sessions when and as often as occasion shall require. And the 
said justices and every of them, shall have full power and 
authority in or out of sessions, to take all matter of recognizances 
and obligations, as any justice of the peace in any of the United 
States may, can, or usually do; which said recognizances and 
obligations shall be made to the United States. And all recogni- 
zances for the peace, behaviour, or for appearance, which shall 
be taken by any of the said justices out of sessions, shall be 
certified into their said general sessions of the peace, to be holden 



COURTS, 1801 9 

next after the taking thereof : and every recognizance taken before 
any of them for suspicions of any manner of felony or other 
crime, not triable in the said court of quarter-sessions of the 
peace, shall be certified before the judges of the general court, or 
court of oyer and terminer, at their next succeeding court to be 
holden next after the taking thereof, without concealment of, or 
detaining or embezzeling the same ; but in case any person or per- 
sons shall forfeit his or their recognizances of the peace, behaviour 
or appearance for any cause whatsoever, then the recognizance so 
forfeited, with the record of the default, or cause of the forfeiture, 

[16] 

shall be sent and certified without delay by the justices of the 
peace, into the said general court or court of oyer and terminer, 
as the case may require, that thence process may issue against the 
said parties according to law; all which forfeitures shall be levied 
by the proper officers, and go to the territory. 

§ 4. All fines and amerciaments which shall be laid before 
the justices of the said courts of general quarter-sessions of the 
peace, shall be taxed, afreered and set, duly and truly, according 
to the quality of the offence, without partiality or affection; and 
shall be yearly estreated by the clerks of the said courts respec- 
tively, into the said general court or court of oyer and terminer: 
to the intent that process may be awarded to the sheriff of every 
county, as the case may require, for levying such of their fines and 
amerciaments as shall be unpaid to the uses for which they are or 
shall be appropriated. 

§ 5. Provided always, that the said courts of the general 
quarter-sessions of the peace, may be kept and continued for the 
space of three legal days, or seventy-two hours, in every of the 
said counties respectively, at any of the said times herein before 
appointed to hold and keep the said court and session there. 

§ 6. To the end that persons indicted or outlawed, for 
felonies or other offences, in one county or town corporate, who 
dwell, remove or be received into another county 

[17] 

or town corporate, may be brought to justice, it is hereby directed 



10 ILLINOIS HISTORICAL COLLECTIONS 

that the justices, or any of them, shall and may direct their writs 
or precepts to all or any of the sheriffs or other officers of the 
said counties, (where need shall be) to take such persons in- 
dicted or outlawed ; and it shall and may be lawful to and for the 
said justices, and every of them, to issue forth subpoenas and 
other warrants under their respective hands and seal of the county, 
into any county or place of this territory, for summoning or 
bringing any person or persons to give evidence in & upon any 
matter or cause whatsoever, now or hereafter examinable or in 
any ways triablebyor before them, or any of them, under such 
pains and penalties as subpoenas or warrants of that kind usually 
are or ought by law to be granted or awarded. 

§ 7. If any person or persons shall find him or themselves 
aggrieved by the judgment of any of the said courts of general 
quarter-sesons of the peace, or of anyother court of record 
within this territory, it shall and may be lawful to and for the 
party or parties so aggrieved to appeal from the said judgment, 
under the restrictions and regulations of the law 'to regulate the 
practice of the general court upon appeals and writs of error/ or 
to have his or their writ or writs of error which shall be granted 
of course, in manner as other writs are to be granted and made 
returnable to the general court. 

§ 8. There shall be holden and kept 

[18] 

twice in every year, a supreme court of record, which shall be 
called and styled the general court; the sittings of which court to 
commence at Saint Vincennes, in the county of Knox, on the 
first Tuesday in March and September, yearly and every year; 
and the judges of the said court, and every of them, shall have 
power when as often as there may be occasion, to issue forth 
writs of habeas corpus, certiorari, and writs of error, and all 
remedial and other writs and process returnable to the said court 
and grantable by the said judges by virtue of their office. 

§ 9. Provided always, that upon any issue joined in the 
said general court, such issue shall be tried in the county whence 
the cause was removed, before the judges aforesaid, or any one 



COURTS, 1801 11 

of them, as a circuit court, who are hereby empowered and re- 
quired to go the circuit once in every year in each county in this 
territory; the said circuit courts for the counties of Randolph 
and St. Clair, shall be held, in the former on the first Monday in 
October, and in the latter on the third Monday of the same month, 
to try such issues in fact as shall be depending in the said general 
court, and removed out of either of the counties aforesaid, when 
and where they may try all issues joined or to be joined in the 
same general court, and to do generally, all those things that shall 
be necessary for the trial of any issue, as fully as justices of nisi 
prius in any of the United States may or can do, 

[19] 

§ 10. The said judges, or any two of them, shall in their 
said court hear and determine all causes, matters and things 
cognizable in the said court; and also hear and determine all and 
all manner of pleas, plaints and causes which shall be removed or 
brought there from the respective general quarter-sessions of the 
peace, and courts of common pleas, or from any other court to be 
holden for the respective counties, and to examine and correct all 
and all manner of errors of the justices of the inferior courts in 
their judgments, process and proceedings in the said courts, as 
well in all pleas of the United States, as in all pleas real, personal 
and mixed ; and thereupon to reverse or affirm the said judgments 
as the law doth or shall direct; and also to examine, correct and 
punish the contempts, omissions and neglects, favours, corruptions 
and defaults of all or any of the justices of the peace, sheriffs, 
coroners, clerks and other officers within the said respective coun- 
ties ; and also shall award process for levying as well of such fines, 
forfeitures and amerciaments as shall be estreated into the gen- 
eral court, as of the fines, forfeitures and amerciaments 
which shall be lost, taxed and set there, and not paid to the uses 
to which they are or shall be appropriated; and generally shall 
minister ample justice to all persons, and amply exercise the 
jurisdictions and powers herein mentioned, concerning all and 
singular the premises according to law. 



12 ILLINOIS HISTORICAL COLLECTIONS 

[20] 

§ 11. All the said writs shall run in the name and style of 
the United States of America, and bear test in the name of the 
chief justice; but if he be plaintiff or defendant, then in the name 
of one of the other judges; and shall be sealed with the judicial 
seal of the said court, and made returnable to the next court after 
the date of such writs. 

§ 12. The judges of the general court, have power from 
time to time, to deliver the jails of all persons who now are, or 
hereafter, shall be committed for treasons, murders and such other 
crimes, as by the laws of this Territory now are, or hereafter shall 
be made capital, or felonies of death, as aforesaid ; and for that 
end, from time to time, to issue forth such necessary precepts and 
process, and force obedience thereto, as justices of the assize, jus- 
tices of oyer and terminer, and of jail delivery, may or can do, 
within the United States. 

§ 13. In order to compel the due attendance of jurymen on 
the said circuit and nisi prius courts, and all other courts within 
this Territory; — it is hereby declared, that if any person shall be 
duly summoned to attend any court of judicature, to serve on a 
jury, or on any inquest required by law ; and shall neglect or 
refuse to give his attendance on the day, and during the time his 
service is necessary, — every such person so offending, shall be 
fined for every such offence in the general court, and court of 
oyer and terminer, by the judges thereof, any sum not exceeding 

[21] 

eight dollars; and for every such offence in in the court of com- 
mon pleas, or court of quarter-sessions of the peace, for any 
county of the Territory, by the justices thereof, any sum not 
exceeding five dollars, unless such delinquent shall at the same, or 
next succeeding court, render to the judges or justices thereof, a 
reasonable excuse for such neglect or refusal, to be allowed by 
such of them as shall be present; which said judges or justices 
are hereby empowered and required on failure of such delinquent 
to render such reasonable excuse, to issue a writ to the sheriff of 
the county, to levy the said fines on the goods and chattels of 



COURTS, 1801 13 

every such delinquent, to be paid to the clerks of the several courts 
of quarter-sessions, common pleas, and general court respectively, 
and by the said clerks to the Territorial treasurer, for the use of 
the Territory. 

§ 14. A competent number of persons shall be commis- 
sioned by the governor, under the seal of the Territory, as jus- 
tices of the common pleas, who shall hold and keep a court of 
record in every county, and which shall be styled and called the 
court of common pleas, of [naming the particular county] and 
shall be holden four times in every year, in each county, at the 
place where the general quarter-sessions of the peace shall be 
respectively kept; which said justices, or any three of them, ac- 
cording to the tenor or directions of their commissions, shall hold 
pleas of assize, scire facias, replevins, and 

D 

[22] 

hear and determine all and all manner of pleas, suits, actions and 
causes, civil, personal, real and mixed, according to law. 

§ 15. Every of the said justices shall, and are hereby em- 
powered to grant, under the seal of their respective courts, re- 
plevins, writs of partition, writs of view, and all other writs and 
process upon the said pleas and actions, cognizable in the said 
respective courts, as occasion may require. 

§ 16. The said justices of the said respective courts last 
mentioned, shall and are hereby empowered to issue forth sub- 
poenas under their respective hands and seal of the court, into any 
county or place within this Territory, for summoning or bringing 
any person or persons, to give evidence in, or upon the trial of 
any matter or cause whatsoever, depending before them, or any 
of them, under such pains and penalties, as by the rules of the 
common law, and course of the practice of the general court, are 
usually appointed. 

§ 17. Upon any judgment obtained in any of the said courts 
of common pleas, and execution returned by the sheriff or coroner 
of the proper county where such judgment was obtained, that the 
party is not to be found, or hath no lands and tenements, goods or 



14 ILLINOIS HISTORICAL COLLECTIONS 

chattels in that county ; and thereupon it is testified, that the party 
skulks, or lies hid, or hath lands, tenements, goods or chattels in 
another county, in this Territory; it shall and may be lawful to, 
and for the court that 

[23] 

issued out such execution, to grant, and they are hereby required 
to grant an alias execution, with a testatum, directed to the sheriff 
or coroner of the county or place where such person lies hid, or 
where his lands or effects are; commanding him to execute the 
same, according to the tenor of such writ or writs, and make 
return thereof to the court of common pleas, where such recovery 
is had, or judgment given ; and if the sheriff, or coroner to whom 
such writ or writs, shall be directed, shall refuse or neglect to 
execute and return the same accordingly; he shall be amerced in 
the county where he ought to return it, and be liable to the action 
of the party grieved ; and the said amerciament shall be truly and 
duly set, according to the quality of the offence, and estreated by 
the prothonotaries of the respective courts of common pleas into 
the next succeeding general court, or court of oyer and terminer, 
in course, that thence process may issue against the offenders, for 
levying such fines and amerciaments as shall be unpaid, to the uses 
for which they are, or shall be appropriated. 

§ 18. All suits, actions, and causes before the general court, 
or the courts of common pleas, & general quarter-session of the 
peace, that shall remain undetermined, shall be continued over to 
the next respective term ensuing, under the authority of this law. 

§ 19. The courts of common pleas in each county, shall 
commence their term, on the 

[24] 

same day as is herein directed for the commencement of the courts 
of general quarter-sessions of the peace. 

The foregoing is hereby declared to be a law of the territory, 
to take effect accordingly. In testimony whereof, we, William 
Henry Harrison, William Clarke, Henry Vander Burgh and John 



REPEAL, 1801 



15 



INDIANA TERRITORY. 



L. S. 



Willm. Henry Harrison, 
Wm. Clarke, 
Henry Vander Burgh, 
John Griffin. 



Griffin, have caused the seal of the Territory, to be thereunto 

affixed, and signed the same with our names. 

Willm. Henry Harrison, 
Wm. Clarke, 
Henry Vander Burgh, 
John Griffin. 

VI. 

An Act repealing certain laws and 
acts and parts of certain laws 
and acts, 

Made and published conformably to 
the act of the United States, 
entitled 'an act respecting the 
government of the Territories 
north-west and south of the river 
Ohio,' at Saint Vincennes the 
twenty sixth day of January, one 
thousand eight hundred and one, 
by William Henry Harrison, gov- 
ernor, & William Clarke, Henry 
Vander Burgh, and John Griffin, 
judges in and over said territory. 

BE it enacted that the laws and acts and parts of laws and 
acts, herein after particularly enumerated and expressed, be 
and the same are hereby repealed, to wit : — The ' act to create 
the offices of territorial 

[25] 

treasurer and auditor of public accounts/ passed by the general 
assembly of the territory of the United States north-west of the 
Ohio, on the second day of December, one thousand seven hun- 
dred and ninety-nine, excepting the fifth section of said law; — 
the 'law respecting divorces/ adopted and published by the gov- 
ernor and judges, the fifteenth day of July, one thousand seven 
hundred and ninety-five; — the 'act for allowing compensation to 
the attorney general of the territory, and to the persons prose- 
cuting the pleas in behalf of the territory in the several counties/ 
passed by the general assembly of the territory north-west of the 
Ohio, the nineteenth day of December, one thousand seven hun- 
dred & ninety-nine. 



16 ILLINOIS HISTORICAL COLLECTIONS 

The foregoing is hereby declared to be a law of the terri- 
tory, to take effect accordingly. In testimony whereof, we, Wil- 
liam Henry Harrison, William Clarke, Henry Vander Burgh, and 
John Griffin, have caused the seal of the territory to be thereunto 
affixed, and signed the same with our names. 

Willm. Henry Harrison, 
Wm. Clarke, 
Henry Vander Burgh, 
John Griffin. 

[26] 

VII. 

A Law appointing a Territorial 
Treasurer 
indiana^territory. Adopted from the Kentucky code, 

^ t Q * and published at Saint Vincennes 

in * * * * * tne twenty sixth day of Jan- 

TTr tt tt u ar Y> one thousand eight hun- 

Willm. Henry Harrison, dre J and onC) by wmia ^ Henry 

Wm. Clarke, Harrison, governor, and William 

Henry Vander Burgh. Clarke, and Henry Vander 

Burgh, judges in and over the 

said territory. 

§ 1. / ~|~" V HAT the governor be authorised and required to 
-* appoint and commission during pleasure, a treas- 
urer for the said territory, who shall keep his office at the 
seat of government thereof ; that the said treasurer shall not be 
capable of executing the said office until he hath given bond with 
two sufficient securities, to be approved by the governor, in the 
sum of three thousand dollars, payable to the governor and his 
successors, for the use of the territory, and conditioned for the 
faithful accounting for and paying according to law, all such sums 
of money as shall be received by him from time to time, by 
virtue of any law of the territory, to be recovered upon the 
breach thereof, on motion of the attorney general in the general 
court for public use ; provided, ten days previous notice be given 
in writing of such motion. And moreover, the said treasurer 
before he enters on his said office, shall take the following oath 
before the governor: — I A. B. do swear or 



TREASURER, 1801 17 

[27] 

affirm that I will faithfully and truly execute the office of treas- 
urer in all things relating to the said office to the best of my skill 
and judgment according to law. So help me God. 

§ 2. And the said treasurer is hereby authorised, empow- 
ered & required to receive of the several clerks & prothonotaries 
of this territory, all fines & other monies by them, or any of them 
received for the use of the territory; and all other public money 
payable, or that may become payable into the treasury by virtue 
of any law of the territory. 

§ 3. And the said treasurer shall keep in a book or books, 
to be provided for that purpose at the public charge, true, faithful 
and just accounts of all the money received by him from time 
to time, by virtue of any law of the territory ; and also of all such 
sum and sums of money as he shall pay out of the treasury pur- 
suant to law; and he shall lay a statement thereof before the 
legislature annually. 

§ 4. And if the said treasurer divert or misapply any of 
the money paid into the treasury for public use, contrary to the 
direction of law, the said treasurer for such offence shall forfeit 
his office ; and moreover shall be liable to pay double the value of 
any sum or sums so misapplied, to be recovered for the public use, 
by motion of the attorney general in the general court, provided 
ten days previous notice be given in writing of such motion, to 
the said treasurer so offending. 

[28] 

§ 5. The said treasurer shall be allowed a commission of 
six per centum on the sums by him received, as a compensation 
for his services. 

The foregoing is hereby declared to be a law of the territory, 
to take effect accordingly. In testimony whereof, we, William 
Henry Harrison, William Clarke and Henry Vander Burgh, have 
caused the seal of the territory to be thereunto affixed, and signed 
the same with our names. 

Willm. Henry Harrison, 

Wm. Clarke, 

Henry Vander Burgh. 



18 ILLINOIS HISTORICAL COLLECTIONS 

VIII. 

Indiana territory. A Res olution respecting the estab- 

****** hshment of Femes, 

* t c * Published at Saint Vincennes the 

* * *' *' * * twenty-sixth day of January, one 

Willm. Henry Harrison, ^r^ *& hun ^ red . and one ' 
Wm Clarke by William Henry Harrison, gov- 

Henry Vander Burgh. £ nor ' ^d William Clarke, & 

Henry Vander Burgh, judges in 
and over the said territory. 

WHEREAS it is provided by the first section of the law, to 
establish & regulate ferries, that application shall be made 
to the general assembly, for leave to erect ferries over any river 
or creek in the Territory; and whereas no general assembly has 
yet been organized in this Territory, and as public convenience 
requires that ferries 

[29] 

should be erected, other than those which have been established 
by the said law ; and as no laws can be found for adoption on the 
subject of ferries, but such as are of a local, not a general nature : 
Resolved, therefore, that the governor be requested, and he 
is hereby authorized and empowered to declare by proclamation 
or otherwise, from time to time, what ferries shall be erected, by 
whom to be kept, and where. And the ferries so erected, shall be 
subject to the same rules, regulations and restrictions, as are pro- 
vided by the said recited law, for ferries intended to have been 
established by the general assembly. 

The foregoing is hereby declared to be a law of the Terri- 
tory, to take effect accordingly. In testimony whereof, we, Wil- 
liam Henry Harrison, William Clarke and Henry Vander Burgh, 
have caused the seal of the Territory to be thereunto affixed, and 
signed the same with our names. 

Willm. Henry Harrison, 
Wm. Clarke, 
Henry Vander Burgh. 
E 



FEES, 1801 



19 



[30] 



IX. 



INDIANA TERRITORY. 
* T c; * 



L. S. 

T T * * 



Willm. Henry Harrison, 
Wm. Clarke, 
Henry Vander Burgh, 
John Griffin. 



A Law in addition to a law, entitled 
'a law ascertaining and regulating 
the fees of the several officers and 
persons therein named,' 

Adopted from the Virginia code, 
and published at Saint Vincennes 
the twenty sixth day of January, 
one thousand eight hundred and 
one, by William Henry Harrison, 
governor, & William Clarke, 
Henry Vander Burgh and John 
Griffin, judges in and over the 
said territory. 



THE clerk of the general court's fees, for taking bond on 
issuing a writ of error or supersedeas — forty three cents; 
for making a complete record of every cause, inserting a case 
agreed on special verdict, at large from the notes, and all deeds 
and other evidences at large, for every twenty words — two cents ; 
for issuing a dedimus potestatum — thirty-five cents. 

The foregoing is hereby declared to be a law of the Terri- 
tory, to take effect accordingly. In testimony whereof, we, Wil- 
liam Henry Harrison, William Clarke, Henry Vander Burgh and 
John Griffin, have caused the seal of the Territory to be thereunto 
affixed, and signed the same with our names. 

Willm. Henry Harrison, 
Wm. Clarke, 
Henry Vander Burgh, 
John Griffin. 



20 ILLINOIS HISTORICAL COLLECTIONS 

[31] 

X. 

A Resolution respecting the com- 
indiana territory. pensation of the clerk to the 

****** legislature, 

* L. S. * Published at Saint Vincennes on the 

****** twenty sixth, day of January, one 

Willm. Henry Harrison, thousand eight hundred and one, 

Wm. Clarke, by William Henry Harrison, gov- 

Henry Vander Burgh. ernor, and William Clarke, and 

Henry Vander Burgh, judges in 
and over the said territory. 

"D ESOLVED, that Henry Hurst, clerk to the legislature, shall 
*^ receive as a compensation for his services — four dollars per 
day, for each and every day that he may have officiated as clerk; 
and the governor is hereby authorized to draw by warrant, from 
the treasury, the sum which may be found due to the said Hurst, 
upon the settlement of his accounts, for services as aforesaid ; 
and a reasonable allowance for stationary, which may have been 
expended in the service of the legislature. 

The foregoing is hereby declared to be a law of the Terri- 
tory, to take effect accordingly. In testimony whereof, we, Wil- 
liam Henry Harrison, William Clarke and Henry Vander Burgh, 
have caused the seal of the Territory to be thereunto affixed, and 
signed the same with our names. 

William Henry Harrison, 

Wm. Clarke, 

Henry Vander Burgh. 



Indiana Territory, ss. 

I hereby certify, that the foregoing 'copy of Laws, passed in 
the Indiana Territory, in January 1801/ has been carefully 
collated with, and rendered literally conformable to the original 
on file, in the office of the Secretary of the Territory. 

JOHN GIBSON, Secretary. 



LAWS 

ADOPTED BY THE 
GOVERNOR AND JUDGES 

OF THE 

INDIANA TERRITORY, 

AT THEIR SECOND AND THIRD SESSI- 
ONS, BEGUN AND HELD AT SAINT 
VINCENNES, 
30th January, 1802, & February 16th, 

1803. 



Published by Authority. 

VINCENNES, (I. T.) 
PRINTED BY E. STOUT. 

1804. 



SURVEYORS, 1802 25 

LAWS 

FOR THE GOVERNMENT OF THE 

INDIANA TERRITORY. 

i. 

Indiana territory. A Law for the appointment of Surveyors 

and their deputies, 

Adopted from the Virginia code, and published at Vin- 

(L. S.) cennes the thirtieth day of January, one thousand 

eight hundred and two, by William Henry Harrison, 

governor, and William Clarke, Henry Vander 

Burgh, and John Griffin, judges in and over said 

territory. 

§ 1. A SURVEYOR shall be appointed in every county 

*■ *> and commissioned by the governor, with res- 
ervation in such commission for one sixth part of the legal 
fees for the use of the Territory, for the yearly payment of which 
he shall give bond with sufficient security to the governor, shall 
reside within his county, and before he shall be capable of enter- 
ing upon the execution of his office, shall, before the court of 
quarter sessions of said county take an oath, and give bond with 
two sufficient sureties to the governor and his successors, in such 
sum as he shall direct for the faithful execution of his office. 

§ 2. All deputy surveyors shall be nominated by their 
principals, who shall be an- 

(4) 

swerable for them, and if of good character commissioned by the 
governor, and shall thereupon be entitled to one half of all fees 
received for services performed by them respectively, after de- 
ducting the proportion thereof due to the territory. 



26 ILLINOIS HISTORICAL COLLECTIONS 

§ 3. If any principal surveyor shall fail to nominate a suffi- 
cient number of deputies to perform the services of his office in 
due time, the court of quarter sessions of the county shall direct 
what number he shall nominate, and in case of failure, shall nom- 
inate for him, and if any deputy surveyor, or any other on his 
behalf and with his privity shall pay, or agree to pay any greater 
part of the profits of his office, sum of money in gross, or other 
valuable considerations to his principal for his recommendation 
or interest in procuring the deputation, such principal and his 
deputy shall be thereby rendered incapable of serving in such 
office. 

§ 4. That no survey shall be made without chain carriers, to 
be paid by the person demanding the same, and sworn to measure 
justly and exactly to the best of their knowledge, and to deliver a 
true account thereof to the surveyor, which oath every surveyor 
is hereby empowered and required to administer. 

The foregoing is hereby declared to be a law of the terri- 
tory, to take effect from the adoption thereof. In testimony 
whereof, we, William Henry Harrison, William Clarke, Henry 

(5) 

Vander Burgh, and John Griffin, have caused the seal of the 
territory to be hereunto affixed, and signed the same with our 
names. 

WIILLIAM HENRY HARRISON. 

Wm. CLARKE. 

HENRY VANDER BURG, 

JOHN GRIFFIN. 

II. 

Indiana territory. A Law allowing fees to the Surveyors. 

Adopted from the Virginia code, and published at Vin- 

cennes, the third day of February, one thousand 
(L. S.) eight hundred and two, by William Henry Harrison, 

governor, and William Clarke, Henry Vander 

Burgh, and John Griffin, judges in and over said 

Territory. 



FEES, 1802 27 

D C 

§ 1. T7>OR every survey by him plainly bounded, as 
-F the law directs, and for a platt of such sur- 
vey after the delivery of such platt, where the survey shall 
not exceed four hundred acres of land, 5 25 

For every hundred acres contained in one survey above 
four hundred 25 

For surveying a lot in town. 1 

And where a surveyor shall be stopped or hindred 
from finishing a survey by him begun, to be paid by the 
party who required the same to be surveyed 2 62 

For running a dividing line. 2 10 

For surveying an acre of land for a mill. 1 5 

(6) D C 

For every survey of land formerly patented, and which 
shall be required to be surveyed, and for a platt thereof 
delivered as aforesaid the same fee as for land not before 
surveyed, and where a survey shall be made of any lands 
which are to be added to other lands in an inclusive patent, 
the surveyor shall not be paid a second fee for the land first 
surveyed, but shall only receive what the survey of the addi- 
tional land shall amount to. 

And where any surveys have been actually made of 
several parcels of land adjoining, and several platts deliv- 
ered, if the party shall desire one inclusive platt thereof, 
the surveyor shall make out such platt for, 1 5 

For running a dividing line between any county or 
township, to be paid by such counties or townships in pro- 
portion to the number of taxable inhabitants, if ten miles or 
under, 10 50 

And for every mile above ten 30 

For receiving a warrant of survey, and giving a receipt 
therefor, 17 

For a copy of a platt of land, or a certificate of survey, 25 

Provided always, That where any person shall employ a sur- 
veyor, and shall have received a platt of land surveyed, and after- 
wards shall assign the platt of land to any o- 



28 ILLINOIS HISTORICAL COLLECTIONS 

[7] 

ther, either before or after obtaining a patent for the same, if such 
person for whom the land was first surveyed shall not have paid 
for the said survey, it shall and may be lawful for the sheriff or 
other officer of the county or corporation where such assignee shall 
reside, at the instance of such surveyor, to make distress upon the 
slaves, goods and chattels of such assignee, in like manner as is 
herein after provided for surveyors fees refused, or delayed to 
be paid. 

The surveyor of every county shall annually before the 
twentieth day of January, deliver, or cause to be delivered to the 
sheriff of every county, his account of fees due from any person 
or persons residing therein, which shall be signed by the said 
surveyor. 

And the said sheriffs are hereby required and empowered to 
receive such accounts, and to collect, levy and receive the several 
sums of money therein charged of the persons chargeable there- 
with, and if such person or persons after the said fees shall be 
demanded, shall refuse or delay to pay the same till after the 
tenth day of April in every year, the sheriff of every county 
wherein such person resides, or of the county in which such fees 
became due, shall have full power, and he is hereby required to 
make distress of the slaves, or goods and chattels of the party so 
refusing or delaying payment, either in that county where such 
person inhabits, or where the same fees became due. 

[8] 

Every sheriff of every county, shall, on or before the last day 
of May in every year, account with the respective surveyors for 
all fees put into his hands pursuant to this act, and pay the same 
abating six per centum for collecting. And if any sheriff shall 
refuse to account or pay the whole amount of fees put into his 
hands, after the deductions aforesaid made, together with an allow- 
ance of what is charged to persons not dwelling or having no 
visible estate in his county, it shall and may be lawful for the 
surveyors, their executors or administrators, upon a motion made 
in the next succeeding general or circuit court, or in the court of 



FEES, 1802 29 

common pleas of the county, to demand judgment against such 
sheriff, for all fees wherewith he shall be chargeable by virtue of 
this act, and such court is hereby authorized and required to give 
judgment accordingly, and to award execution thereupon provided 
the sheriff have ten days previous notice of such motion. 

The executors or administrators of any such sheriff or under 
sheriff shall be liable to judgment as aforesaid, for the fees re- 
ceived to be collected by their testator or intestate and accounted 
for. Every receipt for fees produced in evidence on any such 
motion shall be deemed to be the act of the person subscribing it, 
unless he shall deny the same upon oath. 

The foregoing is hereby declared to be a law of the territory, 
to take effect from the 

(9) 

adoption thereof. In testimony whereof, we, William Henry Har- 
rison, William Clarke, Henry Vander Burgh, and John Griffin 
have caused the seal of the territory to be hereunto affixed, and 
signed the same with our names. 

WILLIAM HENRY HARRISON, 

WILLIAM CLARKE, 

HENRY VANDER BURGH, 

JOHN GRIFFIN. 



30 ILLINOIS HISTORICAL COLLECTIONS 

LAWS 

FOR THE GOVERNMENT OF THE 

INDIANA TERRITORY. 

ADOPTED AT THEIR THIRD SESSION. 



"O ESOLVED by the governor and judges of the Indiana Ter- 
-*-^* ritory in their legislative capacity, that the act passed by the 
general assembly of the North Western Territory, on the nine- 
teenth day of December, one thousand seven hundred and ninety- 
nine, "entitled an act to encourage the killing of Wolves" be, and 
the same is hereby repealed. 

The foregoing is hereby declared to be a law of the territory, 
to take effect accord- 

B 

(10) 

ingly. In testimony whereof, we, William Henry Harrison, gov- 
ernor, and Henry Vander Burgh, and John Griffin, judges in and 
over said territory, have caused the seal of the territory to be 
hereunto affixed, and signed the same with our names, at Vin- 
ceenes, this sixteenth day of February, one thousand eight hun- 
dred and three. 

WIILLIAM HENRY HARRISON, 
HENRY VANDER BURG, 
JOHN GRIFFIN. 



REPEAL, 1803 31 

II. 

Indiana territory. A Resolution, 

Repealing certain parts of the law entitled a law ascer- 

(L. S.) tainingand regulating the fees of the several officers 

and persons therein named. Published at St. Vin- 
cennes, on the twenty fourth day of March, one 
thousand eight hundred and three, by William 
Henry Harrison, governor, and Henry Vander 
Burgh, and John Griffin, judges in and over said 
territory. 

RESOLVED that so much of the law entitled a law ascer- 
taining and regulating the fees of the several officers and 
persons therein named, adopted from the New- York & Pennsyl- 
vania codes, and published at Cincinnati the sixteenth day of 
June, one thousand seven hundred and ninety-five, as relates to 
sheriffs fees in serving executions out of any court of record of 
this territory, and also so much thereof as relates to mileage pay- 
able to the sheriff on service of writs out of 

(11) 

the general court, be, and the same are hereby repealed. 

The foregoing is hereby declared to be a law of the territory, 
to take effect accordingly. In testimony whereof, we, William 
Henry Harrison, Henry Vander Burgh, and John Griffin, have 
caused the seal of the territory to be thereunto affixed, and signed 
the same with our names. 

WILLIAM HENRY HARRISON. 

HENRY VANDER BURGH, 

JOHN GRIFFIN. 



32 ILLINOIS HISTORICAL COLLECTIONS 

III. 

Indiana territory. A Law in addition to a Law regulating 

certain Fees. 
Adopted from the Virginia and Pennsylvania codes, 
and published at Saint Vincennes, the twenty- 
(L. S.) fourth day of March, one thousand eight hundred 

and three, by William Henry Harrison, governor, 
and Henry Vander Burgh, and John Griffin, judges 
in and over said Territory. 

FOR proceeding to sell on any execution on behalf of the 
United States, or of any individual of this territory, if the 
property be actually sold, or the debt paid, the commission to the 
sheriff shall be five per centum on the first three hundred dollars^ 
and two per centum on all sums above that, and one half of such 
commission, where the land or goods seized or taken shall not be 
sold, and no other fee or reward shall be allowed upon a- 

(12) 

ny execution except for the expence of removing and keeping the 
property taken. 

And sheriffs on service of writs issuing out of the general 
court, shall be entitled to a mileage fee of six cents a mile. 

The foregoing is hereby declared to be a law of the territory, 
to take effect accordingly. — In testimony whereof, we, William 
Henry Harrison, Henry Vander Burgh, and John Griffin, have 
caused the seal of the territory to be thereunto affixed, and signed 
the same with our names. 

WILLIAM HENRY HARRISON. 
HENRY VANDER BURGH, 
JOHN GRIFFIN. 



GENERAL COURT, 1803 33 

LAWS 

FOR THE GOVERNMENT OF THE 

INDIANA TERRITORY, 

ADOPTED AT THEIR FOURTH SESSION. 

Indiana territory. A Law in addition to a law intitled a law 
to regulate the practice of the General Court upon Appeals 
and Writs of Error, and other purposes. 

Adopted from the Virginia and Kentucky codes, and 
(L. S.) published at Vincennes the twentieth day of Sep- 

tember, one thousand eight hundred and three, by 
William Henry Harrison, governor, 

(13) 

and Thomas T. Davis, and Henry Vander Burgh, 
judges in and over said territory. 

§ 1 st. T N all actions hereafter brought to recover the 

-*• penalty for the breach of any penal law not 
particularly directing special bail to be given, in actions for 
slander, trespass, assault and battery, actions on the case for trover 
or other wrongs, and all personal actions except such as shall be 
hereinafter particularly mentioned, the plaintiff or his attorney 
shall on pain of having his suit dismissed with costs, indorse on 
the original writ, or subsequent process, the true species of action 
that the sheriff to whom the same is directed, may be thereby in- 
formed whether bail is to be demanded on the execution thereof, 
and in the cases before mentioned, the sheriff may take the engage- 
ment of an attorney practising in the general court, and the courts 
of common pleas endorsed on the writ, that he will appear for the 
defendant or defendants, and such appearance shall be entered 
with the clerk in the office, on the first day after the end of the 



34 ILLINOIS HISTORICAL COLLECTIONS 

court to which such process is returnable, which is hereby declared 
to be the appearance day in all process returnable to any day of 
the court next proceeding. And although no such engagement of 
an attorney shall be offered to the sheriff he shall nevertheless be 
restrained from committing the defendant to prison, or detaining 
him in his custody for want of appearance bail, but the sheriff shall 
in such case 

[14] 

return the writ executed, and if the defendant shall fail to appear 
thereto there shall be the like proceeding against him only as is 
herein after directed against defendants and their appearance bail, 
where such is taken. — Provided always, That any judge of the 
general court, or justice of the common pleas, in actions of tres- 
pass, assault and battery, trover and conversion, and in actions on 
the case where upon proper affidavit or affirmation, it shall appear 
to him proper that the defendant or defendants should give 
appearance bail, may, and he is hereby authorized to direct such 
bail to be taken, by indorsement on the original writ, or subse- 
quent process, and every sheriff shall govern himself accordingly. 
§ 2d. In all actions of debt founded upon any writing oblig- 
atory bill or note in writing for the payment of money, all actions 
of covenant & detinue, in which cases the true species of action 
shall be indorsed on the writ as before directed, and that appear- 
ance bail is to be required, the sheriff shall return on the writ the 
name of the bail by him taken, and a copy of the bail bond to the 
clerks office before the day of appearance; and if the defendant 
shall fail to appear accordingly, or shall not give special being 
ruled thereto by the court, the bail for appearance may defend the 
suit and shall be subject to the same judgment and recovery as the 
defendant might or would be subject to, if he had appeared and 
given special bail ; and in actions of de- 

[15] 

tinue the bail piece shall be so changed as to subject the bail to 
the restitution of the thing whether animate or inanimate sued for, 
or the alternative value, as the court may adjudge. 



BAIL, 1803 35 

§ 3d. And if the sheriff shall not return bail, and the copy 
of the bail bond, or the bail returned shall be adjudged insufficient 
by the court, and the defendant shall fail to appear and give special 
bail if ruled thereto in such case the sheriff may have like liberty 
of defence, and shall be subject to the same recovery as is pro- 
vided in the case of appearance bail, and if the sheriff depart this 
life before judgment be confirmed against him, in such case the 
judgment shall be confirmed against his executors or administra- 
tors, or if there shall not be a certificate of probat, or administra- 
tion granted, then it may be confirmed against his estate, and a 
writ of Fieri Facias may in either case be issued. But the plaintiff 
shall object to the sufficiency of the bail during the sitting of the 
court next succeeding that to which the writ is returnable, or in the 
office on the first or second rule day and at no time thereafter. 
And all questions concerning the sufficiency of bail so objected to 
in the office, shall be determined by the court at their next suc- 
ceeding term; and in all cases where the bail shall be adjudged 
insufficient, and judgment entered against the sheriff, he shall 
have the same remedy against 

[16] 

the estate of the bail, as against the estate of the defendant. 

§ 4th. And every judgment entered in the office against a 
defendant and bail, or against a defendant and sheriff, shall be 
set aside, if the defendant at the succeeding court shall be allowed 
to appear without bail put in good bail, being ruled so to do, or 
surrender himself in custody, and shall plead to issue immediately. 
The court shall regulate all other proceedings in the office during 
the preceding vcaation, and rectify any mistakes or errors which 
may have happened therein. 

§ 5th. Any Judge of the General Court, or Justice of the 
court of Common Pleas may take recognizance of special bail in 
any action in either of the said Courts depending which shall be 
transmitted by the person taking the same before the next suc- 
ceeding Court to the Clerk of the said Court to to be filed with 
the papers in such action. — And if the plaintiff or his attorney 
shall except to the sufficiency of the bail so taken, notice of such 
exception shall be given to the defendant or his attorney at least 



36 ILLINOIS HISTORICAL COLLECTIONS 

ten days previous to the day on which such exception shall be 
taken, and if such bail shall be adjudged insufficient by the Court, 
the recognizance thereof shall be discharged, and such proceedings 
shall be had as if no such bail had been taken. The form of which 
recognizance shall be in the following words, to wit, 

(17) 

County to wit: Memorandum, that upon the day of 
in the year E. F. of the county of personally appeared 

before me (one of the Judges of the General Court, or Justices 
of the Court of Common Pleas of the county aforesaid, as the 
case may be) and undertook for C. D. at the suit of A. B. in an 
action of now depending in the (naming the court where the 

suit is depending) that in case the said C. D. shall be cast in the 
said suit, he the said C. D. will pay and satisfy the condemnation 
of the court; or render his body to prison, in execution for the 
same, or that he the said E. F. will do it for him. 

§ 6th. The person taking such bail as aforesaid, shall if re- 
quired, at the same, deliver to the person or persons acknowledg- 
ing the recognizance afore mentioned, a bail piece in the words & 
form, following, to wit : county to wit : C. D. of the county 

of aforesaid is delivered to bail on a Cepi Corpus unto E. F. 

of the county aforesaid, at the suit of A. B. the day of 

in the year 

§ 7th. Rules shall be held monthly in the clerks office of 
the general court, and each court of common pleas beginning the 
day after the rising of such court: the plaintiff shall file his dec- 
laration in the clerks office at the next succeeding rule day after 
the defendant shall have entered his appearance, or the 



(18) 

defendant may then enter a rule for the plaintiff to declare, which 
if he fails or neglects to do, at the succeeding rule day, or shall at 
any time fail to prosecute his suit, he shall be nonsuited, and pay 
to the defendant or tenant, besides his costs, three dollars, where 
his place of abode is at the distance of twenty-five miles or under 



GENERAL COURT, 1803 37 

from the place of holding the said general court, or court of com- 
mon pleas, and where it is more, ten cents for every mile above 
twenty. 

§ 8th. One month after the plaintiff hath filed his declara- 
tion, he may give a rule to plead, with the clerk, and if the defend- 
ant shall not plead accordingly at the expiration of such rule the 
plaintiff may enter judgment for his debt or damages and costs. 

§ 9th. All rules to declare, plead, reply, rejoin, or for other 
proceedings, shall be given regularly from month to month, shall 
be entered in a book to be kept for that purpose, and shall expire 
on the succeeding rule day. 

§ 10th. No plea in abatement shall be admitted or received 
unless the party offering the same, shall prove the truth thereof 
by oath or affirmation as the case may require, and no plea of 
non est factum offered by the person charged as the obligor or 
grantor of a deed, shall be admitted or received unless the truth 
thereof shall in like manner be proved by oath or affirmation. 

§ 11th. And where any person other than 

(19) 

the obligor shall be defendant, such defendant shall prove by oath 
or affirmation, that he or she verily believes that the deed on 
which the action is founded, is not the deed of the person charged 
as the obligor or grantor thereof ; in which last mentioned case 
the plea of non est factum shall not be admitted or received with- 
out such oath or affirmation. — And where a plea in abatement 
shall upon argument be adjudged insufficient, the plaintiff shall 
recover full costs to the time of over ruling such plea, a lawyers 
fee only excepted. 

§ 12th. The plaintiff in replevin and the defendant in all 
other actions may plead as many several matters whether of law 
or fact as he shall think necessary for his defence. 

§ 13th. The clerk shall proportion the causes upon the 
docket from the first day of the court to the twentieth both inclu- 
sive if in his opinion so many days will be expended in trying the 
causes ready for trial, and issue subpoenas for witnesses to attend 
the days to which the causes stand for trial. He shall docket the 
causes in order as they are put to issue, and no cause shall be 



38 ILLINOIS HISTORICAL COLLECTIONS 

removed from its place on the docket, unless where the plaintiff 
at the calling of the same, be unprepared for 'trial, in which case, 
and no other shall the cause be put at the end of the docket. 

§ 14th. All actions of trespass quare clausum f regit, all 
actions of trespass detinue, actions sur trover, and replevin for 
taking away goods and chatties, all actions of ac- 

[20] 

count, and upon the case, other than such accounts as concern 
the trade of merchandise between merchant and merchant, their 
factors, or servents, all actions of debt grounded upon any lending 
or contract without specialty ; all actions of debt for arrearages of 
rent; all actions of assault, manace, battery, wounding and im- 
prisonment, or any of them, which shall be sued or brought here- 
after shall be commenced and sued within the time and limitation 
hereafter expressed, and not after, that is to say; the said actions 
upon the case other than for slander, and the said actions for 
account, and the said actions for trespass, debt detinue and re- 
plevin, for goods and chatties, and the said action of trespass 
quare clausum fregit, within five years next after the cause of 
such action or suit, and not after ; and the said actions of trespass, 
of assault, battery, wounding, imprisonment, or any of them within 
three years next after the cause of such actions or suits and not 
after, and the said action upon the case for words within one year 
next after the words spoken, and not after. 

§ 15th. In all actions upon any bond, or on any penal sum, 
for nonperformance of covenants or agreements, in any indenture, 
deed or writing contained, the plaintiff or plaintiffs may assign as 
many breeches as he or they shall think fit; and the jury upon 
trial of such action or actions, shall and may assess damages for 
such of the breaches as the plaintiff 

[21] 

shall prove to have been broken, and on such verdict the like judg- 
ment shall be entered as heretofore has been usually done in such 
actions; and where judgment on a demurer, or by confession, or 
nihil dicet, shall be given for the plaintiff he may assign as may 
breaches of the covenants or agreements as he shall think fit, upon 



GENERAL COURT, 1803 39 

which a jury shall be summoned to enquire of the truth of every 
one of those breaches and to assess the damage the plaintiff shall 
have sustained thereby & execution shall issue for so much, & 
judgment shall remain as a security to the plaintiff, his executors 
& administrators for any other breaches which may afterwards 
happen, and he or they may have a sclera facias against the de- 
fendant, and assign any other breach, and thereupon damages shall 
be assessed and execution issued as aforesaid. And in all actions 
which shall be brought upon any bond or bonds, for the payment 
of money, wherein the plaintiff shall recover, judgment shall be 
entered for the penalty of such bond, to be discharged by payment 
of the principal and the interest due thereon, and the other costs 
of suit, and execution shall issue accordingly, or if before judg- 
ment the defendant shall bring into court the principal and in- 
terest due upon such bond, he shall be discharged, and in that case 
judgment shall be entered for the costs only. And in any action 
Of debt on single bill, or in debt, or sclera facias upon a judgment, 
or in debt upon bond 

[22] 

if before action brought the defendant hath paid the principal and 
interest due by the defeasance or condition he may plead payment 
in bar. 

§ 16th. Interpreters may be sworn truly to interpret when 
necessary. 

§ 17th. Every person desirous of suffering a nonsuit on 
trial, shall be barred threfrom unless he do so before the jury 
retire from the bar. 

§ 18th. Not more than two new trials shall be granted to 
the same party in the same cause. 

§ 19th. Any instrument to which the person making the 
same shall affix a scrall by way of seal, shall be adjudged and 
holden to be of the same force and obligation as if it were actually 
sealed. 

§ 20th. Where there are several counts, one of which is 
faulty, and entire damages are given, the verdict shall be good; 
but the defendant may apply to the court to instruct the jury to 
discharge such faulty count. 



40 ILLINOIS HISTORICAL COLLECTIONS 

§ 21st. No negro, mulatto or Indian shall be a witness ex- 
cept in the pleas of the United States against negroes, mulattoes 
or Indians, or in civil pleas where negroes, mulattoes or Indians, 
alone shall be parties. 

22nd. Every person other than a negro, of whose grand 
fathers or grand mothers any one is, or shall have been a negro, 
altho' all his other progenitors, except that descending from a 
negro, shall have been white 

[23] 

persons, shall be deemed a mulatto, and so every such person who 
shall have one fourth part or more of negro blood shall in like 
manner be deemed a mulatto. 

§ 23rd. No suit shall hereafter be commenced in any court 
within the territory by a non-resident until he shall file in the 
clerks office of such court, a bond with a proved security, who 
shall be a resident of this territory, conditioned for the payment 
of all costs that may accrue in consequence thereof, either to the 
opposite party or to any of the officers of such court, and the 
same may be put in suit by any of the persons aforesaid for the 
nonpayment of the sums that may respectively become due to 
them. 

§ 24th. No judgment after a verdict of twelve men, shall 
be stayed or reversed for any defect or default in the writ orig- 
inal, or judicial, or for a variance in the writ from the delara- 
tion or other proceedings, or for any mispleading, insufficient 
pleading, discontinuance, mis joining of the issue, or lack of a 
warrant of attorney, or for the appearance of either party, being 
under the age of twenty-one years, by attorney, if the verdict be 
for him and not to his prejudice; or for not alledging any deed, 
letters testamentary, or commission of administration, to be brot' 
into court, or for omission of the words 'with force and arms' or 
'against the peace' or for mistake of the christian name, or sur- 
name of either party, sum of money, quantity of mer- 

[24] 

chandize, day, month or year, in the declaration or pleading, (the 
name, sum, quantity, or time being right in any part of the record 



GENERAL COURT, 1803 41 

or proceeding) or for omission of the averment 'this he is ready 
to verify' or 'this he is ready to verify by the record,' for not 
alledging 'as appeareth by the record,' or for omitting the averment 
of any matter, without proving which, the jury ought not to have 
given such verdict, or for not alledging that the suit or action is 
within the jurisdiction of the court, or for any informality in 
entering up the judgment by the clerk, neither shall any judgment 
entered upon confession, or by nil dicit, or non sum informatus, 
be reversed, nor a judgment after enquiry of damages be stayed 
or reversed for any omission or fault, which would not have been 
a good cause to stay or reverse the judgment if there had been a 
verdict. 

§ 25th. Papers read in evidence, though not under seal may 
be carried from the bar by the jury. 

§ 26th. After issue joined in an ejectment on the title only, 
no exception of form or substance shall be taken to the declara- 
tion in any court whatsoever. 

§ 27th. If in detinue the verdict shall omit price or value 
the court may at any time award a writ of enquiry to ascertain 
the same. If on an issue concerning several things in one count 
in detinue, no verdict be found for part of them, it shall not be 
error, but the 

(25) 

plaintiff shall be barred of his title to things omitted. 

§ 28th. A judgment on confession shall be equal to a re- 
lease of errors. 

§ 29th. In all actions of assault and battery and slander, 
commenced and prosecuted in the general court, if the jury find 
under the sum of sixteen dollars and sixty-six cents, and in the 
like actions commenced and prosecuted in any county court, if the 
jury find under six dollars and sixty-six cents, the plaintiff in 
either case, shall not recover any costs. 

§ 30th. This law shall commence and be in force from and 
after the first day of January next. 



42 ILLINOIS HISTORICAL COLLECTIONS 

Published at Vincennes the day and year above written, by, 
William Henry Harrison, governor, and Thomas T. Davis, and 
Henry Vander Burgh, judges in and over said territory. 

WILLIAM HENRY HARRISON. 
THOMAS TERRY DAVIS, 
HENRY VANDER BURG, 

D 

(26) 

II. 

Indiana territory. A Law concerning Servants. 

Adopted from the Virginia code, and published at Vin- 

(L. S.) cennes, the twenty-second day of September one 

thousand eight hundred and three, by William 
Henry Harrison, governor, and Thomas T. Davis, 
and Henry Vander Burgh, judges in and over said 
Territory. 

§ 1st. A LL negroes and mulattoes (and other persons 

•*■*■ not being citizens of the United States of 
America,) who shall come into this territory under contract to 
serve another in any trade or occupation, shall be compelled to 
perform such contract specifically during the term thereof. 

§ 2nd. The said servants shall be provided by the master 
with wholesome and sufficient food, cloathing and lodging, and at 
the end of their service if they shall not have contracted for any 
reward, food, cloathing and lodging, shall receive from him one 
new and complete suit of cloathing, suited to the season of the 
year, to wit : a coat, waistcoat, pair of breeches and shoes, two 
pair of stockings, two shirts, a hat and blanket. 

§ 3rd. The benefit of the said contract of service, shall be 
assignable by the master to any person being a citizen of this 
territory, to whom the servant shall in the presence of a justice of 
the peace freely consent that it shall be assigned, the said justice 
attesting such free consent in writing, and shall also pass to the 
executors, administrators and legatees of the master. 

(27) 

§ 4th. Any such servant being lazy, disorderly, guilty of 
misbehavior to his master or his masters family shall be corrected 



SERVANTS, 1803 43 

by stripes on order from a justice of the county wherein he re- 
sides; or refusing to work, shall be compelled thereto in like 
manner, and moreover shall serve two days for every one he shall 
have so refused to serve, or shall otherwise have lost without suf- 
ficient justification. All necessary expences incurred by any 
masters for apprehending and bringing home any absconding 
servant, shall be repaid by further service after such rates as the 
court of the county shall direct; unless such servant shall give 
security to be approved of by the court for repayment in money, 
within six months after he shall be free from service, and shall 
accordingly pay the same. 

§ 5th. If any master shall fail in the duties prescribed by 
this act, or shall be guilty of injurious demeanor towards his ser- 
vant, it shall be redressed on motion, by the court of the county 
wherein the servant resides, who may hear and determine such 
cases in a summary way, making such orders thereupon as in their 
judgment will relieve the party injured in future. 

§ 6th. All contracts between master and servant during the 
time of service, shall be void. 

§ 7th. The court of every county shall at all times receive 
the complaints of servants, being citizens of any one of the Unit- 

(28) 

ed States of America, who reside within the jurisdiction of such 
court, against their masters or mistresses, alledging undeserved or 
immoderate correction, insufficient allowance of food, raiment or 
lodging, and may hear and determine such cases in a summary 
way, making such orders thereupon, as in their judgment will 
relive the party injured in future ; and may also in the same man- 
ner hear and determine complaints of masters or mistresses against 
their servants for desertion without good cause, and may oblige 
the latter for loss thereby occasioned, to make retribution, by fur- 
ther services, after the expiration of the times for which they had 
been bound. 

§ 8th. If any servant, shall at any time, bring in goods or 
money, or during the time of their service, shall, by gift or other 
lawful means acquire goods or money, they shall have the property 
and benefit thereof, to their own use. And if any servant shall be 



44 ILLINOIS HISTORICAL COLLECTIONS 

sick or lame, and so become useless or chargeable, his or her 
master or owner, shall maintain such servant until his or her whole 
time of service shall be expired. And if any master or owner shall 
put away or lame or sick servant under pretence of freedom, and 
such servant becomes chargeable to the county, such master or 
owner shall forfeit and pay thirty dollars to the overseers of the 
poor of the county wherein such offence shall be committed to the 
use of the poor of the 

(29) 

county, recoverable with costs, by action of debt in any court of 
common pleas of this territory ; and moreover shall be liable to the 
action of the said overseers of the poor, at the common law for 
damages. 

§ 9th. No negro, mulatto or Indian shall at any time pur- 
chase any servant, other than of their own complexion; and if 
any of the persons aforesaid, shall nevertheless presume to pur- 
chase a white servant, such servant shall immediately become free, 
and shall be so held deemed and taken. 

§ 10th. No person whatsoever shall buy, sell, or receive of, 
to, or from any servant, any coin or commodity whatsoever, with- 
out the leave or consent of the master or owner of such servant; 
and if any person shall presume to deal with any servant without 
such leave or consent, he or she so offending, shall forfeit and pay 
to the master or owner of such servant four times the value of the 
thing so bought, sold or received; to be recovered with costs by 
an action upon the case in any court of common pleas of this 
territory ; and shall also forfeit and pay the further sum of twenty 
dollars to any person who will sue for the same ; or receive on his 
or her bare back, thirty nine lashes, well laid on, at the public 
whipping post, but shall nevertheless be liable to pay the costs of 
such suit. 

§ 11th. In all cases of penal laws, where free persons are 
punishable by fine, servants shall be punished by whipping, after 
the rate 

[30] 

of twenty lashes for every eight dollars, so that no servant shall 



SERVANTS, 1803 45 

receive more than forty lashes at any one time, unless such 
offender can procure some person to pay the fine. 

§ 12th. Every servant upon the expiration of his or her 
time, and proof thereof made before the court of the county where 
he or she last served, shall have his or her freedom recorded, and 
a certificate thereof under the hand of the Prothonotary, which 
shall be sufficient to indemnify any person for entertaining or 
hiring such servant ; and if such certificate shall happen to be torn 
or lost, the Prothonotary, upon request shall issue another, re- 
citing therein the loss of the former. And if any person shall 
harbour or entertain a servant, not having and producing such 
certificate, he or she, shall pay to the master or owner of such 
servant, one dollar for every natural day he or she shall so har- 
bour or entertain such runaway ; recoverable with costs, by action 
of debt, in any court of common pleas of this territory. And if 
any runaway shall make use of a forged certificate, or after 
delivery of a true certificate to the person hiring him or her, shall 
steal the same, and thereby procure other entertainment, the person 
entertaining or hiring shall not be liable to the said penalty, but 
such runaway besides making reparation for loss of time, and 
charges of recovery, shall stand two hours in the pillory, on a 
court day, for making use of such forged or stolen certificate, 

[31] 

and the person forging the same shall forfeit and pay thirty dol- 
lars ; one moiety to the territory, and the other moiety to the owner 
of such runaway, or the informer, recoverable with costs, in any 
court of common pleas of this territory ; and on failure of present 
payment, or security for the same within six months such offender 
shall receive thirty-nine lashes on his or her bare back, well laid 
on, at the common whipping post. And where a runaway shall 
happen to be hired upon a forged certificate, and afterwards denies 
the delivery thereof the ownus probandi shall lie upon the party 
hiring such runaway. 

§ 13th. This law shall commence and be in force from and 
after the first day of November next. 



46 ILLINOIS HISTORICAL COLLECTIONS 

Published at Vincennes, the day and year above written, by, 
William Henry Harrison, governor, and Thomas T, Davis, and 
Henry Vander Burgh, judges in and over the said territory. 

WILLIAM HENRY HARRISON: 
THOMAS TERRY DAVIS, 
HENRY VANDER BURGH, 

[32] 

III. 

Indiana territory. A Law ascertaining and regulating the fees 
of the several officers and persons therein named. 
Adopted from the New- York, Pennsylvania, and Vir- 
ginia codes, and published at Vincennes the twenty- 
(L. S.) fourth day of September, one thousand eight 

hundred and three, by William Henry Harrison, 
governor, and Thomas T. Davis, and Henry Vander 
Burgh, judges in and over said territory. 

§ 1st. T\J ^ °ffi cer or Person shall at any time exact or 

-I- ^ demand for services hereafter to be rendered, 
any larger or other fee to be taxed in the bill of costs, than as 
herein after is provided. 

§ 2nd. The attorney general or his deputy's fees, where the 
duty is performed by them. n r M 

Entering nolo prosequi, for each defendant, 62 5 

Every process or indictment, 75 

Every information per sheet of seventy two words, 18 

Drawing all special indictments and pleadings per sheet 

of seventy-two words 18 

A copy thereof per sheet as aforesaid 18 

Every motion in court, 62 5 

Fee on trial, demurrer, special verdict, or in error, or in 

pleas confessed. 3 

For trial of every capital cause where life is concerned, 10 

(33) 



D C M 



For the whole prosecution, except for drawing of the 
indictment or information, for the trial of every other 
matter by bill of indictment or information, 5 



FEES, 1803 



47 



Term fee, 

Arguing every special motion, 

Making up judgment, 

Examining a witness, 

Taxing bill, 

Copy of cost bill if before issue joined 

If after issue joined, 

And to the attorney general in lieu of such fees as here- 
after may be chargeable to the territory, the annual 
sum of 

§ 3rd. Counsellors and Attorneys fees in the 

General court. 

In all civil actions where the title of lands do not come 
in question, 

In all civil actions where the title of lands comes in 
question. 

For advice where the suit is not pending, 

§ 4th. The Clerk of the General court in civil 

causes. 

For drawing, sealing and entering a writ, 

Filing a declaration, 

Entering an appearance, 

Filing all other pleadings each, 

Entering every rule, 

D 

(34) 

Swearing and entering a jury, 

The return of a writ and filing the same 

Swearing each witness, 

Swearing a constable, 

Taking the jurys verdict and entering the same in the 

minutes, 
Special verdict drawing or engrossing per sheet of 

seventy-two words, 
Entering judgment, 
A retraxit, or discontinuance, 



75 
50 
75 
50 
75 
37 
75 



60 



10 
3 50 



D 



8 2 
12 5 
12 5 
12 5 
18 



C M 
28 
12 5 

6 

6 

18 

12 5 
28 
12 5 



48 ILLINOIS HISTORICAL COLLECTIONS 

Copies of records or pleadings per sheet of seventy-two 

words, 12 5 
Attending and striking a special jury, and delivering a 

copy thereof to each party, 75 
Filing an affidavit or other paper on request, 9 

Entering satisfaction of record. 18 

Searching the record within a year, 18 
And for every year back, 6 

Drawing recognizance of bail, 25 

Every continuance, 40 

Entering issue joined, 50 

Venire Facias, 50 

Every trial, 50 
Every rule of reference, for trial, to shew cause, to take 
depositions, give security for costs, for persons out of 

the territory, 17 

Copy of the same if demanded, 25 

Entering default of either party, 26 

Commissions to take depositions, 82 

(35) 

D C M 

Taking bond on issuing writ of error or supersedeas, 43 
For making a complete record of every cause, intering a 
case agreed on special verdict at large from the notes, 
and all deeds and other evidences at large, for every 

sheet of seventy two words, 18 

Certificate and seal, 75 

Entering lease, entry and ouster, 25 
For entering each suit on the judges docket, 6 

§ 5th. In Criminal cases. 

For every appearance, 12 5 

Discharge any person on bail, 12 5 

Every imparlance to an indictment. 12 5 
Drawing process against any person upon information 

or other process, 44 
The plea to an indictment or information, 6 

Reading the indictment, information or record, 6 



FEES, 1803 49 

Swearing every witness on trial, 6 

Engrossing judgment or information. 18 

Respecting every recognizance 9 

Taking a recognizance, and entering thereof, 56 
Copies of all indictments, informations, and pleadings 

per sheet of seventy-two words, 12 5 

Relinquishing a plea, 12 5 

A submission, 12 5 

(36) 

D C M 

Judgment thereon, 12 5 

Copy of the traverse, 12 5 

Every subpoena with seal for four witnesses or under 50 

Every witness more 6 

Every order or rule of court, 18 
Taking copy of every special verdict per sheet of 

seventy-two words, 18 
For the allowance and recording a warrant of nolo 

prosequi, 50 
And to the clerk of of the general court in lieu of such 
fees in the general court as hereafter may be charge- 
able to the territory, the annual sum of 40 
§ 6th. To the clerk of the circuit court, 
For entering in the judges book every cause to be tried, 6 

Filing every nisi prius record, 25 

Entering every rule 18 

Swearing and impannelling a jury, 28 

Swearing each witness 6 

Swearing a constable, 6 

Reading every deed or piece of evidence, 12 5 

Filing a bill of exceptions or demurrer, 12 5 

Copies thereof per sheet of seventy-two words, 12 5 

Taking verdict and entering it on the minutes, 28 

Entering every nonsuit. 18 

[37] 

D C M 

Entering default of a juror, and the discharge of others, 18 



50 ILLINOIS HISTORICAL COLLECTIONS 

§ 7th. Sheriffs fees in the general court, 
Serving a writ, 75 

Every mile to be computed from the court house of the 

county to the place of defendants residence 6 

Taking bail bond and copy or same, 50 

Returning a writ 12 5 

Milage for returning writs to the general court from 
any county other than the one from which the writ issued, 
for the first forty miles, 4 

And for every mile over forty 2 

Summoning a jury, 1 25 

For proceeding to sell on any execution on behalf of the 
United States, or of any individual of this territory if the prop- 
erty be actually sold, the commission to the sheriff shall be five 
per centum on the first three hundred dollars, and two percentum 
on all sums above that; and one half of such commission where 
the money is paid to the sheriff without seizure, or where the 
land or goods seized or taken, shall not be sold, and no other fee 
or reward shall be allowed on any execution, except for the ex- 
pence of removing and keeping the property taken. 

[ 38 ] D C M 

Serving a writ of possession without the aid of the posse 

comitatus 1 25 

With the aid of the posse comitatus, 3 75 

Every mile from the court house 6 

Executing a criminal, 7 50 

Calling a verdict, 9 

Discharging every person by proclamation, 9 

Calling plaintiff on nonsuit, 9 

Calling a defendant on recognizance, 9 

Calling a defendant, 9 
§ 8th. Jurys fees in the general court, 

Every juryman in each action on which he is sworn 25 
Every juror in coming to and attending a view and re- 
turning per day 75 
Every juror attending court from a foregn county, com- 
ing and returning per day 56 



FEES, 1803 51 

§ 9th. Witnesses fees in the general court. 
Each witness attending in his own county on trial per day. 37 5 
Attending from a foregn county, and coming and re- 
turning per 56 
Each witness subpoenaed in the county and detained 

from a foreign county per day. 56 

To a witness on a duces tecum coming from a foreign 

county attending and returning per day 56 

Except for the judge of probat, a clerk 

(39) 

D C M 
of a court, attending in a foreign county with wills, 
records, and other paper evidence, on subpoena, per 
day. 1 66 

Making a list of freeholders to strike a jury, 2 

Serving a scire facias and returning, 75 

Every person committed to prison, 37 5 

Discharging of every person out of prison, 37 5 

Bringing up a prisoner by habeas corpus in civil case 1 50 

Where the prisoner is actually brought, for every mile 
from the place of taking him, 6 

Executing a writ of enquiry and returning the same 2 50 

Attending a view in the same county per day, 1 87 5 

The like in a foreign county per day 1 87 5 

Attending with a prisoner before a judge on his being 
surrendered by his bail 1 

Summoning a jury on forcible entry and detainer 3 75 

Besides a milage fee for every mile from the place of 
holding court 6 

Copy of every writ 18 

Serving warrant of attachment so much as the judge 
issuing the same shall certify 

serving subpoena on each witness 37 5 

Calling every action 9 

[ 40 ] 

D C M 

Calling every jury 12 5 

swearing a witness. 6 



52 



ILLINOIS HISTORICAL COLLECTIONS 



50 



For dieting a prisoner per day 

For making a deed for the sale of land, and which deed 
it is hereby made the duty of the sheriff to make. 
And to the sheriff for such fees as hereafter may be- 
come chargeable to the territory, the annual sum of 

§ 10th. surveyors fees. 
For going to and returning from a view per day, and 
thirty miles per day 
His actual service on the view per day 
For going to, attending the court on trial and returning 
per day, 

§ 11th. Justices fees in the court of common pleas. 
For all actions in the court of common pleas, 
signing every judgment of court, 
Taking bail, 

Acknowledging satisfaction on record, 
Taxing and signing bill of cost, 
Proof or acknowledgement of a deed before a justice 
of the court of common pleas, 
For every issue joined, 
For every trial, 1 

Allowing writ of error, habeas corpus, 
Certiorari when presented from the judges of the gen- 
eral court, 
Granting reference, 

[41] 

D 

Approving report of referrees 

On surrrender of principal in court, 

Hearing petition and making order thereon, 

§ 12th. Justices of the peace, their fees. 

For every warrant in a crimical case. 

On every trial for forcible entry and detainer, 2 

Every precept in forcible entry and detainer, 

Every bond or recognizance, 

Administering an oath, 

Every certificate or order upon act of relief of insolvent 

debtors. 



25 



25 
50 



1 25 

37 
12 
25 
9 
25 

37 
50 



50 
25 

C M 
30 
20 
25 

18 
50 

37 5 
25 
12 5 

37 5 



FEES, 1803 53 

Every warrant, order, report or certificate upon an ab- 
sconding act, 37 5 
Every appointment of trustees, 37 5 
For summons or capias on debt, 10 
For every subpoena, 10 
For every name inserted after, 3 
Entering every judgment for debt when trial, 20 
Every judgment by confession of defendant, 10 
Every execution, 20 
Certified copy of all proceedings on appeals or certiorari, 33 
Writing, signing and sealing every attachment, 13 
Entering rule of reference on docket, 10 
Every recognizance of bail in civil causes, 10 



[42] 

D C M 

Issuing special bail piece, 13 
Swearing a witness, 6 

Administering oath on deposition, 10 
Acknowledgment of a deed and power of attorney by 

every justice of the peace, 25 

Order for removing a pauper, 50 

Order for relieving a pauper, 25 

Issuing scira facias against special bail, 20 
Issuing scire facias to revive a judgment after a year 

and a day, 20 

Or to appraise damages in trespass, 20 

Publishing banns of matrimony. 67 

§ 13th. Prothonotarys fees. 

Every writ of capias, entering action and seal, 50 
A bond given by the plaintiff when he is not a resident 

of the territory, 37 5 
Filing declaration, 6 

Copy of declaration or other pleading if required per 

sheet, each sheet containing seventy two words, 6 

Discontinuance or retraxit, 12 5 



54 ILLINOIS HISTORICAL COLLECTIONS 

Altering declaration in ejectment and admitting a de- 
fendant, 15 
Entering every motion & rule thereon, 12 5 
Copy of every rule when required, 12 5 
Bringing a particular record into court, 25 
Entering satisfaction of record, 12 5 
Receiving and entering verdict, 12 5 
Entering judgment, 15 
Reading and entering allowance of e- 



(43) 



D C M 



very habias corpus writ of orror or certiorari, and 

the return, 25 

An execution, 20 
Transcript of the record in error, and returning it with 

the writ, every sheet of seventy-two words, 6 

Entering a defendants appearance, 6 

Drawing and filing special bail in or out of court, 18 

Every writ of enquiry per sheet, 6 
Filing every plea, replication, or rejoinder or other 

pleading, 6 

A Venire, 28 

Receiving and entering the panel and swearing the jury, 18 

A habeas corpora juratorum 28 

Subpoena for four witnesses or under, 37 

Swearing each witness, 6 

Swearing constable, 6 
Making up and entering a record of a judgment per 

sheet of seventy-two words, 12 

Engrossing, 6 
Copy of a record of a judgment when required per sheet 

of 72 words, 6 

Searching the record within one year, 12 

Every year back, 6 

Copy records per sheet of seventy-two words each, 6 

Entering report of referrees, 15 

On confession of judgment, default, joinder or demurrer, 25 



FEES, 1803 55 

[44] 

D C M 

Entering rule of court on appointing referrees, 15 

Continuing each cause, 20 

On surrender of principal in court by sureties, 15 

On every issue joined, 25 

On entering every principal motion, 10 

On every trial, 25 
On drawing special list of jury, attending and striking 
and making copies of jury list for plaintiff and 

defendant, 50 

Issuing commission to take depositions, 50 

§ 14th. Clerk of the sessions fees. 
For taking recognizance and drawing it up in form to 
be paid to the clerk or other person who does the 

service, 37 5 
For engrossing every indictment and filing and reading 

the same, 56 

Subpoena for four witnesses or under, 37 5 

A venire or other writ, 50 
Entering defendants appearance, 6 

An execution, 25 

Making up the record per sheet of seventy-two words, 12 5 
Copy of same, 6 

Every order or rule of court, 9 

Entering a nolo prosequi or cessat processus, 18 
A venire for a jury to enquire of riots, forcible entries, 

detainers, &c. 25 

[45] 

D C M 

Drawing and engrossing inquisition, and returning same, 6 

Filing record, 12 5 

Entering the panel and swearing the jury, 25 

Swearing witness and constable each, 6 

Reading each evidence or petition in court, 6 

Taking and entering verdict. 12 5 

Entering judgment and the fine, 15 



56 ILLINOIS HISTORICAL COLLECTIONS 

Entering defendants confession, 15 

Copies of indictments and pleadings if required each 

sheet of seventy-two words, 6 

Receiving, reading and filing every order brought to 
be allowed at the court of sessions, and entering the 
confirmation, and recording the same as in other cases 
per sheet of seventy-two words. 12 5 

For discharging a recognizance, 10 

Each order on recommendation for license including 

record, 25 

Reading petition and entering order of court thereon, 20 

For examining every account in court, 10 

On entering appeal allowing habias corpus and writ of 
certiorari when presented from the judges of the 
general court. 12 5 

Every trial, 25 

Continuing a cause, 20 

(46) 

D C M 

Entering nolo prosequi, 12 5 

Certificate and seal, 75 

To the clerk of Quarter sessions in lieu of all fees 
hereafter chargeable to the county, the annual 
sum of 25 

§ 15th. Sheriffs fees in the Common Pleas in civil matters. 
For serving a writ and taking into custody, 50 

For every mile as fixed by law, 6 

Every bail bond and copy of the same, 50 5 

Returning writ, 9 

Summoning jury, 75 

Attending on view per day, 1 

Going and returning, 1 

Serving and returning sciera facias, 37 5 

For proceeding to sell on any execution on behalf of the United 
States, or of any individual of this territory if the property be 
actually sold or the debt paid, the commission to the sheriff 
shall be five per centum on the first three hundred dollars, and 



FEES, 1803 57 

two per centum on all sums above that, and one half of such 
commission where the money is paid to the sheriff without 
seizure, or where the lands or goods seized or taken shall not 
be sold, and no other fee or reward shall be allowed upon any 
execution except for the expence of removing and keeping the 
property taken, 

(47) 

D C M 
Serving a writ of possession with the aid of the posse 

commitatus, 2 50 

Every mile from the place of holding court, 6 

Serving such writ without the aid of the posse com- 
mitatus, 1 25 
For calling a jury on each cause, 12 5 
Every person committed to the common jail, 37 5 
Calling every witness, 6 
Discharging of every person out of the common jail, 37 5 
Calling every action, 9 
Executing a writ of inquiry, drawing inquisition and re- 
turning the same, 1 50 
Discharging every person by proclamation, 9 
Serving a summons, 37 5 
For attending with a prisoner before a judge when sur- 
rendered by his bail and receiving the prisoner into 
custody 50 
In criminal cases the like fees in the respective courts 
as for the like services in civil cases to be allowed 
where the defendant enters a nolo contendere or on 
voluntary composition, hath his fine mitigaged, or 
where the services are done at the request of, or for 
the ease or advantage of the defendant or prisoner, 
or by order of court, 

(48) 

D C M 
For dieting a prisoner per day, 25 

To the sheriff in lieu of all fees that may be hereafter 
chargeable to the county the annual sum of, 50 



58 ILLINOIS HISTORICAL COLLECTIONS 

§ 6th. jurors fees in the common pleas. 

Every juryman sworn in each action, 25 

Every juror attending a view per day. 50 

§ 17th. Coronors fees. 
For the view of each body, 3 

Each juryman that sets on the body, 12 5 

For witnesses the same allowance as in the general 
court, serving writs in all cases the same as is before 
allowed to the sheriff for like services. The fees of 
the coroners inquest shall be certified by the coroner 
and paid by the treasurer of the county. 
§ 18th. Fees of the probate. 
For administering an oath, 18 

For all copies for each folio of one hundred and twenty- 
eight words, 18 
For seal, 75 
For filing, 18 
For a citation exclusive of seal, 50 
For a letter of administration, 2 50 
Taking and filing a renunciation, and taking proof of a 
renunciation, and which proof the judge of probate 
is hereby authorised and required to take, 50 
Where a will or administration is contested for hearing 
and determining, 2 



(49) 



D C M 



For proving a will, endorsing certificate thereon, record- 
ing the same and filing it. 2 50 
For qualifying administrator, taking bond and writing 

certificate. 1 50 

For a citation when issued, 50 

For filing caveat, 18 

For proving codicil, if proved seperately, endorsing cer- 
tificate, recording the same and filing it, 1 50 
For examining and proving an inventory or account, 1 
For granting administration with the will annexed, 2 50 
For a search. 18 



FEES, 1803 59 

§ 19th. Recorders fees. 

For recording mortgages per sheet of one hundred words, 16 

And the like fees for recording all other deeds and in- 
struments. 

For copies of records and deeds per sheet. 12 5 

§ 20th. Attornies fees in the common pleas and quarter 
sessions. 

In all civil actions where the title of lands do not come 
in question, 2 50 

In all civil actions where the title of lands do come in 
question. 5 

For advice where suit is not pending, 1 27 

§ 21st. Secretary's fees. 

For copies or exemplifications of re- 

G 

( 50 ) D C M 

cords per sheet of 72 words, twelve and one half cents, 12 5 
And for seal and certificate thereto when required 

seventy-five cents, 75 

For affixing the seal to any patent, seventy-five cents, 75 

For recording an extract of every patent for land, where 

the same is not recorded at full length. 25 

For recording at full length any such patent, on the 
application of the patentee, requesting the same, but 
not otherwise, for every 100 words, 16 

§ 22nd. Clerk of the Orphans court, 

Entering every judgment order or rule of court, 20 

For reading and filing every petition and report, 13 

Entering report, 25 

Certificate with seal annexed to a copy for parties use, 50 

Every citation, 33 

Entering settlement of accounts of executors and ad- 
ministrators, 50 
For every copy of said accounts not exceeding one hun- 
dred items with certificate and seal of office, 1 50 
Reading and filing petition to sell land swearing admin- 
istrator to the truth of the statement made, and enter- 



60 ILLINOIS HISTORICAL COLLECTIONS 

ing the necessary order thereon, 67 

Giving notice by order of court for sale of land for 
every advertisement not exceeding three, 25 

[51] 

Sec, 23. And to the end all persons chargeable with any 
of the fees aforesaid, may certainly know for what the same 
are charged, none of the fees herein before mentioned, shall be 
payable by any person whatsoever, until there shall be pro- 
duced, or ready to be produced unto the person owing or 
chargeable with the same, a bill or account in writing contain- 
ing the particulars of such fees, signed by the clerk or officer 
to whom such fees shall be due, or by whom the same shall be 
chargeable respectively; in which said bill or account, shall 
be expressed in words at length, and in the same manner as 
the fees aforesaid are allowed by this law, every fee for which 
any money is or shall be demanded. 

Sec. 24th. The clerks of the general and circuit courts, 
clerks of the quarter sessions and prothonatories of the courts 
of common pleas of this territory shall cause to be set up in 
some public place in their offices and there constantly kept, 
a fair table of their fees herein before mentioned, on pain of 
forfeiting forty dollars for every court day the same shall be 
missing through their neglect. Which penalty shall be to the 
use of the person or persons who shall inform or sue for the 
same, and shall and may be recovered in any court of record 
within this territory, by action of debt or information. 

§ 25th. If any officer hereafter shall claim, charge, de- 
mand, exact or take any more or 

(52) 

greater fees for any writing, or other business by him done, 
within the purview of this act, than herein before set down 
and ascertained, or if any officer whatsoever shall charge or 
demand and take any of the fees herein before mentioned 
where the business for which such fees are chargeable, shall 
not have been actually done and performed, (to be proved by 



FEES, 1803 61 

the fee book of such officer upon his corporeal oath) such officer 
for every such offence shall forfeit and pay to the party injured, 
besides such fee or fees, six dollars for every particular article 
or fee so unjustly charged or demanded or taken; to be re- 
covered with costs, in any court of record in this territory, 
by action of debt or information : Provided the same be sued 
for within twelve months after the offence shall be committed. 

§ 26. And for the better collection of the said fees, the 
clerks and prothonotaries of every court respectively, shall 
annually before the first day of March deliver or cause to be 
delivered to the sheriff of every county in this territory, their 
accounts of fees due from any person or persons residing 
therein which shall be signed by the clerks or prothonotaries 
respectively. 

§ 27. And the said sheriffs are hereby required and em- 
powered to receive such accounts & to collect, levy and re- 
ceive the several sums of money therein charged of the per- 
sons chargeable therewith, and if such person 

[53] 

or persons, after the said fees shall be demanded, shall refuse 
or delay to pay the same 'till after the tenth day of April in 
every year, the sheriff of that county wherein such person 
resides, or of the county in which such fees became due, shall 
have full power and are hereby required, to make distress of 
the slaves, or goods & chatties of the party so refusing or de- 
laying payment, either in that county where such person in- 
habits or where the same fees became due. And the sheriff 
of any county for all fees which shall remain due and unpaid 
after the said tenth day of April in any year, either to them- 
selves or the sheriffs of another county, which shall be put 
into his hands to collect as aforesaid is hereby authorised and 
empowered to make distress and sale of the goods and chat- 
ties of the party refusing or delaying payment, in the same 
manner as for other fees due to any of the officers herein 
before mentioned, but no action, suit or warrant from a justice 
shall be had or maintained for clerks or prothonotaries fees, 



62 ILLINOIS HISTORICAL COLLECTIONS 

unless the sheriff shall return that the person owing or charge- 
able with such fees hath not sufficient within his bailiwick, 
whereon to make distress, except where the clerk or prothono- 
tary as aforesaid shall have lost his fee book by fire or other 
misfortune, so that he be hindered from putting his fees into 
the sheriffs hands to collect; and in that case any suit or war- 
rant may be had and maintained for the recovery there- 

[54] 

of. And if any sheriff shall be sued for any thing by him done, 
in pursuance of this law he may plead the general issue and 
give this law in evidence. 

§ 28th. Every sheriff of every county, shall on or before 
the last day of May in every year account with the clerks and 
prothonotaries respectively, for all fees put into his hands pur- 
suant to this law, and pay the same abating ten per centum 
for collecting. And if any sheriff shall refuse to account or 
pay the whole amount of fees put into his hands, after the 
deductions aforesaid made, together with an allowance of what 
is charged to persons not dwelling, or having no visible estate 
in his county, it shall and may be lawful for the clerks or 
prothonotaries, their executors or administrators upon a 
motion made in the next succeeding general court, circuit 
court, or in the court of common pleas of the county of such 
sheriff, to demand judgment against such sheriff, for all fees 
wherewith he shall be chargeable by virtue of this law, and 
such court is hereby authorised and required to give judgment 
accordingly, and to award execution thereupon; provided the 
sheriff have ten days previous notice of such motion. 

§ 29th. The executors or administrators of any such 
sheriff or under sheriff shall be liable to a judgment as afore- 
said, for fees received to be collected by their testator or 
intestate, and accounted for. Every receipt 

(55) 

for fees produced in evidence on any such motion, shall be 
deemed to be the act of the person subscribing it unless he 



PILOTS, 1803 63 

shall deny the same upon oath. 

§ 30. Sheriff's poundage and all other legal fees in a 
suit from final judgment to execution, shall, by the sheriff, 
be levied out of the estate and effects of the person against 
whom such execution shall be issued. 

The foregoing is hereby declared to be a law of the ter- 
ritory, to take effect accordingly. In testimony whereof, we, 
William Henry Harrison, Thomas T. Davis, and Henry Van- 
der Burgh, have caused the seal of the territory to be there- 
unto affixed, and signed the same with our names : 

WILLIAM HENRY HARRISON. 
THOMAS TERRY DAVIS, 
HENRY VANDER BURG, 

IV. 

Indiana territory. A Law authorising the appointment of a 

Pilot. 
Adopted from the Kentucky code, and published at 
Vincennes, the twenty-fourth day of September 
one thousand eight hundred and three, by Wil- 
(L. S.) liam Henry Harrison, governor, and Thomas T. 
Davis, and Henry Vander Burgh, judges in and 
over said Territory. 

WHEREAS great inconveniences have been experienced, 
and many boats have been lost in attempting to pass 
the rapids of the Ohio for want of a pilot, and from persons 
offering their services to strangers to 

[56] 

act as pilots by no means qualified for the business for remedy 
whereof the Governor of this territory is hereby authorised 
and directed to appoint such person or persons for pilots as to 
him shall seem best qualified for that purpose, taking bond 
and security of the person so appointed payable to the gov- 
ernor and his successors in the sum of eight hundred dollars 
for the due and faithful performance of his office ; and the pilot 
so appointed shall receive for each boat he pilots through the 
rapids two dollars. And any other person acting as pilot 



64 ILLINOIS HISTORICAL COLLECTIONS 

without being- duly authorised as by this law directed, shall for 
every such offence forfeit and pay ten dollars to the use of 
the territory to be recovered before any justice of the peace 
of the county of Clark, at the suit of the pilot, whose duty it is 
hereby made to prosecute for the same, and collected by the 
sheriff or constable of the said county in the same manner that 
other fines are by law directed to be collected ; and the sheriff 
or constable shall pay the money so collected to the treasurer 
of the Territory taking his receipt for the same and the sheriff 
or constable shall have the same fees for their services as they 
are entitled to by law for collecting- fines and forfeitures in 
other cases, but nothing herein contained is meant to compel 
any owner or skipper of a boat to employ said pilot or pilots, 
but they shall be at liberty to pilot their own boats thro the 
said rapids. 

(57) 

The foregoing is hereby declared to be a law of the ter- 
ritory, to take effect accordingly. In testimony whereof, we, 
William Henry Harrison, Thomas T. Davis, and Henry 
Vander Burgh, have caused the seal of the territory to be 
thereunto affixed, and signed the same with our names. 

WILLIAM HENRY HARRISON. 

THOMAS TERRY DAVIS. 

HENRY VANDER BURGH, 

V. 
Indiana territory. An act repealing certain laws and acts and 
parts of certain laws and acts. 
Made and published conformably to the act of the 
United States, entitled "an act respecting the 
government of the territories north west and 
south of the river Ohio," at Saint Vincennes, the 
(L. S.) twenty-sixth day of September one thousand 
eight hundred and three by William Henry Har- 
rison, governor, and Thomas T. Davis and 
Henry Vander Burgh, judges in and over said 
Territory. 



REPEAL, 1803 65 

BE it enacted that the laws and acts and parts of laws and 
acts herein after particularly enumerated and expressed 
be and the same are hereby repealed, to wit, the law ascertain- 
ing and regulating the fees of the several officers therein named 
adopted from the New- York and Pennsylvania codes and pub- 
lished at Cincinnati the sixteenth day of June one thousand 
seven hundred and ninety five; the law in addition to a law 
entitled a 

H 

[58] 

law ascertaining the fees of the several officers and persons 
therein named published at Cincinnatti the first day of May 
one thousand seven hundred and ninety eight. The law re- 
specting amendment and jeofail adopted from the Kentucky 
and Virginia codes and published at Saint Vincennes the 
twenty second day of January one thousand eight hundred 
and one. The law in addition to the law entitled a law ascer- 
taining and regulating the fees of the several officers and per- 
sons there in named adopted from the Virginia code and pub- 
lished at Vincennes the twenty sixth day of January one thou- 
sand eight hundred and one. The law in addition to a law 
regulating certain fees, adopted from the Virginia and Penn- 
sylvania codes, and published at Saint Vincennes the twenty 
fourth day of March one thousand eight hundred and three. 
The Resolution repealing certain parts of the law entitled a 
law ascertaing and regulating the fees of the several officers 
and persons therein named published at Saint Vincennes the 
twenty-fourth of March one thousand eight hundred and three. 
So much of the act intitled an act repealing certain laws and 
acts and part of certain laws and acts published at Vincennes 
the twenty sixth day of January one thousand eight hundred 
and one, as repeals the law entitled a law respecting divorce 
adopted from the Massachusetts code and published at Cin- 
cinnatti the fifteenth day of July one thousand seven hundred 
and ninety five. 



66 ILLINOIS HISTORICAL COLLECTIONS 

[59] 

And the said law respecting divorce is hereby declared to be 
and continue in full force until the end of the first session of 
the general assembly of the Indiana Territory. 

The foregoing is hereby declared to be a law of the ter- 
ritory to take effect accordingly. In testimony whereof we 
William Henry Harrison, Thomas T. Davis and Henry 
Vander Burgh have caused the seal of the territory to be 
thereunto affixed and signed the same with our names. 

WILLIAM HENRY HARRISON, 
THOMAS TERRY DAVIS, 
HENRY VANDER BURGH. 

VI. 

Indiana territory. A Law to prevent forcible and stolen mar- 
riages; and for punishment of the crime of Bigomy, 

Adopted from the Virginia code, and published at 
Vincennes the fourth day of November, one 
thousand eight hundred and three, by William 
(L. S.) Henry Harrison, governor, and Thomas T. 
Davis and Henry Vander Burgh, judges in and 
over the said territory. 

§ 1st. TF any person or persons within this territory, 

-*■ being married, or who shall hereafter marry, 
do at any time after the commencement of this law. marry any 
person or persons, the former husband or wife being alive, 
every such offence shall be felony, and the person or persons 
so offending, shall suffer death, as in cases of felony; and the 
party and parties so offendinding, 

[60] 

shall receive such and like proceedings, trial, and execution 
within this territory, as if the offence had been committed in 
the county where such person shall be taken or apprehended. 
Provided, that nothing here in contained, shall extend to any 
person or persons whose husband or wife shall be continually 
remaining beyond the seas, by the space of seven years to- 



MARRIAGES, 1803 67 

gether, or whose husband or wife shall absent him or herself, 
the one from the other, by the space of seven years together, 
in any part within the United States of America or elsewhare 
the one of them not knowing the other to be living within that 
time. Provided also, that nothing herein contained, shall ex- 
tend to any person or persons, that are or shall be at the time 
of such marriage divorced by lawful authority, or to any per- 
son or persons where the former marriage hath been, or here- 
after shall be by lawful authority, declared to be void and of 
no effect, nor to any person or persons for or by reason of any 
marriage, had or made, or hereafter to be had or made within 
age of consent, And provided also, that no attainder for the 
offence made felony by this law, shall make or work any cor- 
ruption of blood, or forfeiture of estate whatsoever. 

§ 2nd. And whereas women, as well maidens as widoms, 
and wives having substances, some in goods moveable, and 
some in lands and tenements, and some being heirs apparent 
unto their ancestors, for the lucre of such substances, have 
been oftentimes tak- 

(61) 

en by misdoers, contrary to their will ; and afterwards married 
to such misdoers, or to others by their consent, or denied: 
Be it further enacted, that whatsoever person or persons shall 
take any woman, so against her will unlawfully, that is to say, 
maid, widow or wife ; such taking, and the procuring and abet- 
ting to the same, and also receiving wittingly the same woman 
so taken, against her will, shall be felony, and that such mis- 
doers, takers, and procurers to the same, and receivers, know- 
ing the said offence in form aforesaid, shall be reputed and 
judged as principal felons. Provided always, that this law 
shall not extend to any person taking any woman, only claim- 
ing her as his ward or bond-woman. 

§ 3rd. If any person above the age of fourteen years, shall 
unlawfully take and convey away or shall cause to be unlaw- 
fully taken or conveyed away, any maiden or woman child un- 
married, being within the age of sixteen years, out of, or from 



68 ILLINOIS HISTORICAL COLLECTIONS 

the possession, and against the will of such person or persons 
as then shall happen to have by any lawful ways or means, the 
order, keeping, education or governance of any such maiden, 
or woman child, and being thereof duly convicted, shall suffer 
imprisonment, without bail or mainprize, for any term not ex- 
ceeding two years, as shall be adjudged against him. 

§ 4th. If any person or persons shall so take away, or 
cause to be taken away, as is 

[62] 

aforesaid, and deflower any such maid, or woman child, as is 
aforesaid, or shall against the will or knowledge of the father 
of any such maid or woman child, if the father be in life, or 
against the will or knowledge of the mother of any such maid 
or woman child, having the custody and governance of such 
child, if the father be dead, by secret letters messages or 
otherwise, contract matrimony with any such maiden or 
woman child, every person so offending and being thereof 
lawfully convicted, shall suffer imprisonment of his body, by 
the space of five years, without bail or mainprize. 

The foregoing is hereby declared to be a law of the terri- 
tory; and to take effect accordingly. In testimony whereof, 
we, William Henry Harrison, Thomas T. Davis, and Henry 
Vander Burgh, have caused the seal of the territory, to be 
thereunto affixed and signed the same with our names. 

WILLIAM HENRY, HARRISON, 
THOMAS TERRY DAVIS, 
HENRY VANDER BURGH. 

(63) 

VII. 

Indiana territory. A Law to regulate county levies. 

Taken from the law heretofore in force in the territory 
on that subject, and from the Virginia code pub- 

(L. S.) lished at Vincennes the fifth day of November one 

thousand eight hundred and three by William 
Henry Harrison governor, and Thomas T. Davis 
and Henry Vander Burgh judges in and over the 
same. 



TAXATION, 1803 69 

§ 1st. IT* HAT all houses in town, town lots, out lots, and 

■■■ mansion houses in the country, which shall be 
valued at two hundred dollars and upwards, and all able bodied 
single men, who shall not have taxable property to the amount of 
four hundred dollars, all water and windmills and ferries, all stud 
horses and other horses, mares, mules and asses, three years old 
and upwards, all neat cattle three years old and upwards, all bond 
servants and slaves, except such as the court of quarter sessions 
shall exempt for infirmities, between sixteen and forty years of 
age, within this territory, are hereby declared to be chargeable 
for defraying the county expences, in which they may respectively 
be found, to be taxed and collected in such manner and proportion 
as herein after directed. 

§ 2d. That the sheriffs in the several counties within this 
territory shall and are hereby empowered and required as herein 
after mentioned to receive from each and every person or persons 
chargeable with taxes, under this law, a written list under 
oath con- 

(64) 

taining a just and true account of all and every species of prop- 
erty in his or her possession or care, subject to taxation under 
this law, and the said sheriffs respectively are hereby empowered 
and directed to administer the following oach or affirmation to 
such persons, I A. B. do solemnly swear or affirm, as the case may 
be, that this list signed by me contains a just and true account of 
all persons and of every species of property in my possession or 
care within this county, and that no contract change or removal 
has been made or entered into or any other method devised prac- 
tised or used by me in order to evade the payment of taxes. 

§ 3rd. That the said sheriff shall advertise at the county 
town, and also in each and every township in their counties that 
he will attend at a convinent place, therein to be mentioned, not 
within five days of such advertisement in each township to receive 
of each person a list of all the taxable property, which they pos- 
sess as above mentioned, and the said persons are hereby required 
to attend at such time and place in their respective townships 
therefor accordingly. 



70 ILLINOIS HISTORICAL COLLECTIONS 

§ 4th. If any person or persons shall give or deliver to a 
sheriff a false or fraudulent list of persons or property, subject to 
taxation, or shall refuse to give a list on oath or affirmation at 
such time and place, to the sheriff, the person or persons so re- 
fusing shall be liable to a fine, of fifteen dollars, and the sheriff 
shall proceed to list such person or per- 

[65] 

sons property agreeable to the best information he can procure, 
and all such property so ascertained shall be moreover subject to 
a triple tax to be collected and destrained for by the sheriff of the 
county as in other cases, and in the case of an imperfect false or 
fraudulent list the person or persons giving the same shall be 
subject to pay a fine of fifteen dollars, and the property subject 
to a triple tax, which fines and triple tax shall be recovered in the 
county court of common pleas, by the following mode of pro- 
ceeding and applied as herein after directed. 

§ 5th. The sheriff shall give information thereof personally, 
or if unable to attend, in writing under his hand to the next court 
of common pleas held for his county, which court shall forthwith 
direct the prothonotary to issue a summons requiring the party 
to appear at the next court, to be held for the county, to shew 
cause, if any he can, why he should not be fined and triply taxed 
for giving an imperfect or fraudulent list of his or her taxable 
property, and the person or persons upon being served therewith 
by the coroner, and appearing shall immediately plead to issue, 
and the matter thereof shall be enquired into by a jury or the 
court, at the defendants option, and on conviction, or the person 
not appearing, being summoned, the fine and triple tax shall be 
established by the judgement of the court, who un- 

I 

[66] 

less good cause shewn to the next succeeding court for such fail- 
ure, shall award execution for the fine and costs and certify the 



TAXATION, 1803 71 

amount of the tax to the sheriff for collection, the amount of 
which fine, after deducting thereout such allowance as the court 
may think reasonable to make the coroner for his extraordinary 
trouble on the occasion, shall be applied towards lessening the 
county levy, and the triple tax shall be charged to the sheriff, and 
accounted for in like manner as other taxes. 

§ 6th. Every person or persons having knowledge of any 
incorrect false or fraudulent list being given a sheriff shall give 
information thereof either to a sheriff or the county court of 
common pleas, in like manner as the sheriff is directed, and there- 
upon the same mode of proceedings shall be had, as if the sheriff 
gave information, and the person informing, shall be entitled to 
receive one half of the fine imposed on the offender or offenders 
to his own use, and the other half to be applied towards lessening 
the county levy. 

§ 7th. In case any person taxable, should not attend at the 
time and place notified by the sheriff to give in a list of his tax- 
able propty, and it should appear to the sheriff that such absence 
was not intentional or done with a view of avoiding the delivery 
of such list it shall be lawful for the sheriff to receive his or her 
list at any time at the dwelling house 

[67] 

of the sheriff, provided such person tenders his or her list to the 
sheriff and makes oath to the justness of it, on or before the 
twentieth of March annually, and in case of failure, the sheriff 
shall proceed in like manner, as is before directed in cases of re- 
fusal to give in lists and the courts shall determine upon the 
circumstances of the case, whether to inflict or remit the fine and 
triple taxes. 

§ 8th. That the sheriffs in the several counties, throughout 
this territory shall and they are hereby required to make two fair 
and complete lists of the persons and property so taken in, and 
arranged in alphabetical order in manner following, to wit: 



72 



ILLINOIS HISTORICAL COLLECTIONS 



en 

a 

o 

en 


1 

cu 

en 


CU 

<U ° 

<« CO 

b «-< 

O re 


4— 

to *g 
u o 


en 

0) 

CO 

u, 
O 
J3 


d 
o 


u 

cu 


G 

o w 
•2 £ 
«+h re 

O "~2 


TO £ 

r 1 TO 
•- 1 cu 


a 

CO 


CO 

re 
cu 

CO 


o 


•4-1 ^» 


«+-! >"> 


<-M 


CU 


w CO 


O CO 


°Ci 


o 


»G 


to 


cu c# 


S-h a) 


S3 g 
§•9 


1-4 


CU 

-4-> 

TO 


cu 

s 


,Q 


cu > 


cu 


J3 


£-2 


£ 


& 


a 


►-v TO 


3 TO 

5 


3 TO 


3 
£ 





one of which he shall keep, and the other together with the 
vouchers, taken by him as aforesaid shall deliver to the clerk of 
the court of quarter sessions, on or before the 

[68] 

last day of March yearly. Which lists and vouchers the clerk 
shall file in his office, and the clerk of the said court shall make 
thereof a true transcript, which he shall lay before the court at 
the same term at which they audit the public accounts for their 
examination and allowance. The bill of tax being allowed by the 
said court, they shall annex thereto their warrant, under the hand 
and seal of the presiding justice, and the clerk of the said court, 
shall, ten days thereafter deliver the same to the sheriff for col- 
lection, for which, and for all other services, rendered under this 
law, the said clerk shall receive from the county ten dollars. 
Every sheriff so charged shall collect all sums for which he is 
accountable within four months after he is charged with the col- 
lection of the same, and shall be allowed in full compensation for 
his trouble in taking in the property and collecting the levy ten 
percentum on all sums by him collected. And the said sheriff 
shall previously to his entering on those duties take and subscribe 
before any justice of the peace the following oath or affirmation 
"I do solemnly swear or affirm (as the case may be,) that 

I will faithfully and impartially execute the office of collector 
of county, according to the best of my abilities," which 

oath shall be filed by the said justice with the clerk of the court of 
quarter sessions, and the said sheriff shall enter into a bond in the 
penalty of two thousand 



TAXATION, 1803 73 

[69] 

dollars payable to the governor of the territory and his successors 
in office with two or more responsible sureties, and bonnd for the 
faithful collection, accounting for and paying the sums wherewith 
he shall be chargeable as collector of the county, in manner 
directed by law : and every sheriff so charged to collect the county 
taxes and levies, may appoint one or more deputies to assist him 
as well in taking in the property as in the collection of the levy, 
for whose conduct he shall be answerable, which deputies shall 
have the same power as the sheriff" himself, and such sheriff shall 
have the same remedy and mode of recovery against his deputies, 
or either of them, and their sureties respectively for any sums of 
money which by virtue of this law such sheriff may be subject to 
the payment of on account of the transactions of any of his 
deputies, as he himself is subject to by law. And all monies 
collected by the sheriff as aforesaid shall remain in his hands 
subject to the orders of the court of quarter sessions of each 
county respectively for the payment of the debts of the county. 

§ 9th. That the following rate of taxation be observed by 
the court of quarter sessions, in levying the county tax, viz. on 
each horse, mare, mule or ass, a sum not exceeding fifty cents, on 
all neat cattle as aforesaid a sum not exceeding ten cents, on 
every stud horse a sum not exceeding the rate for which he stands 
at the season. E- 

[70] 

very bond servant and slave as aforesaid, a sum not exceeding 
one hundred cents, and every able bodied single man of the age 
of twenty one years and upwards, who shall not have taxable 
property to the amount of four hundred dollars, a sum not ex- 
ceeding two dollars nor less than fifty cents. 

§ 10th. That it shall be the duty of the courts of quarter 
sessions throughout this territory at the first term next after the 
last day of March annually, and at such other special sessions as 
they shall appoint to proceed to audit and adjust all claims and 
demands against their counties, allowing all just claims and de- 
mands which now are, or hereafter shall be chargeable upon the 
said counties respectively. 



74 



ILLINOIS HISTORICAL COLLECTIONS 



§ 11th. That the several courts of quarter sessions through- 
out this territory at their court preceding the thirty first day of 
March annually, appoint two discreet freeholders in each township 
who shall proceed to appraise and value each house in town, town 
lot, town out lot, and mansion house in the country of the value 
aforesaid, and also shall appraise and value all water and wind- 
mills, situate on such tract of the country as may be assigned to 
them respectively by the court of quarter sessions, taking into 
view the situation and value of the same, and the said freeholders, 
after having fixed such valuation shall proceed and make out two 
fair alphabetical lists thereof, stating the proprie- 

[71] 

tors or occupiers of such lots and mills, with the valuation of 
each annexed to the same in form following, viz. 



CO 


c/5 


1-1 

CD 

d 


CD 

s 


o 


d 




CO 


CO 


U 


s- 


.a 


O 


'a, 


<D 


3 


U 

o 


y 

CJ 

O 



Ph o 



3 

o 

d 



d 

o 
H 



-a 

d 
a 



y 

°3 



d 
o 



o 



d 
.2 

•M 

> 



of which lists of valuation the said freeholders shall keep, 
and deliver the other to the quarter sessions at the next court 
to be held for said county, which list shall be filed by the clerks 
in their respective offices, and the said quarter sessions shall 
at the same time when they lay the county tax, levy a sum 
not exceeding thirty cents on each hundred dollars of such 
appraised value. 

§ 12th. It shall be the duty of the courts of quarter ses- 
sions throughout the territory at the same term at which they 
audit the public accounts of the sheriff for monies collected 
and paid by him as aforesaid, and having allowed all such 



TAXATION, 1803 75 

claims and demands against the county as are just and reason- 
able, to proceed to ascertain the probable expen- 

[72] 

ces of the county, the aggregate amount of claims allowed, and 
also such sum or sums of money as will be necessary to carry 
into effect any contract that shall have been made for building 
or repairing any county jail, court-house, or bridges, adding 
thereto the expence of collection, and such other sum or sums 
of money, as the said court of quarter sessions shall conceive 
needful to make good deficiencies in collections, insolvencies, 
delinquencies and other contingencies. And the said court 
shall take into view the money [if any there be] in the treas- 
ury, the probable amount that will be received from licences, 
to vend and retail merchandise, tavern licences, and taxes on 
ferries, and other sources of county revenue, such as fines, 
forfeitures &c. after which the said court shall proceed to levy 
a tax upon the owners, proprietors or occupiers of all and 
singular the objects of taxation pointed out by this or any 
other law, having due reference to the returns of the sheriffs 
and freeholders aforesaid, and the rule of taxation, truly ap- 
portioning such tax upon all objects taxable by this law, so 
as to raise a sum of money sufficient to answer and satisfy all 
demands then existing against the said county, or which shall 
afterwards become due by virtue of any contract or contracts 
by the said courts of quarter sessions in behalf of the county 
as aforesaid, previously made and entered into, and to answer 
such other con- 

[73] 

tingent county expences, as the necessities of said counties 
may require. 

§ 13th. That from and after the first day of March next, 
every person within this territory, being owner occupier, or 
possessor of merchandize, other than the produce or manu- 
facture of this territory, shall previously to offering the same 
for sale, by himself or agent, within the territory, or on any 



76 ILLINOIS HISTORICAL COLLECTIONS 

of the waters within or bounding the same pay to the sheriff, 
for the use of the county in which he or she resides, or offers 
such merchandize for sale, the sum of fifteen dollars for each 
store or stand, in which he or she may vend any such mer- 
chandize, and the sheriff on receipt thereof, shall give such 
person paying as aforesaid, a certificate in the words follow- 
ing, viz. Indiana territory, county, the day of 
this certifies that A. B. is authorised to vend merchandize 
within this territory for one year from the date hereof, the said 
A. B, having this day paid to me, C. D. sheriff of the said 
county of the sum of fifteen dollars, it being the an- 
nual tax imposed on the retailers of merchandize by a law 
of this territory. 

C. D. sheriff of the county of 
Any person obtaining a certificate as aforesaid shall be author- 
ised to vend and sell merchandize by retail in this territory, 
for one whole year from the date of the same, 

K 

[74] 

and no longer. And if any person or persons shall, after the 
first day of March next, presume by himself or his agent, to 
vend or sell, any kind of merchandize within this territory, 
or on any of the waters aforesaid, not the growth or manu- 
facture of said territory, not having first obtained a certificate 
as aforesaid he, she or they so offending, shall for every such 
offence forfeit and pay a sum not exceeding eighteen dollars, 
to and for the use of the county in which the offence was com- 
mitted, to be recovered at the suit of the sheriff, whose duty 
it is hereby made to prosecute therefor, before any court 
proper to try the same. And the sheriff is hereby required to 
keep a fair account of all monies received as aforesaid, and also 
a regular account of the dates of all the certificates by him 
given to retailers or venders of merchandize under this law. 
And it shall be the further duty of the sheriffs respectively 
to lay the same before the county courts of quarter sessions 



TAXATION, 1803 77 

at the same term at which they audit the public accounts 
annually. 

§ 14th. That it shall be the duty of the court of quarter 
sessions in each and every county at their session next after 
the thirty-first day of March annually to fix and establish a 
reasonable tax or duty upon each ferry within their respective 
counties, the said court in fixing said tax, to take into con- 
sideration the value and income of said ferries, 

[75] 

provided that no one ferry shall be taxed in one year more 
than ten dollars. And it shall be the duty of the courts of 
general quarter sessions, when they lay the county levy, to tax the 
owners or proprietors of such ferries accordingly. 

§ 15th. That if any sheriff shall take, demand or receive 
of any person from whom taxes are due more than his her, or 
their proper taxes, or shall in any sale of property taken for 
taxes act contrary to the true intent and meaning of this act 
or shall neglect or refuse to render a just and true account of 
all such sales to the county courts of quarter sessions he shall 
forfeit and pay any sum, not exceeding one hundred dollars 
to be recovered by action of debt, qui tarn, or by indictment 
before any court having jurisdiction, the one half to the person 
suing for the same, the other half to the use of the county, 
and moreover be subject to the suit of the the party injured 
for damages. 

§ 16th. That all sheriffs shall settle and close their ac- 
counts annually with the county courts of quarter sessions, at 
the second term after the period at which they are obliged by 
this law to finish the collection of the taxes, and shall in their 
settlements be credited for all the orders of the said court by 
them produced, and by such deficiencies arising from delin- 
quencies and insolvencies as the said court shall allow, to- 
gether with the commission, and paying the monies by them 

[76] 
received. But should any such sheriff fail or neglect to settle 



78 ILLINOIS HISTORICAL COLLECTIONS 

his accounts in manner aforesaid, it shall be the duty of the 
attorney prosecuting the pleas in the respective counties on 
giving such delinquent sheriff and his security their executors 
or administrators, ten days notice thereof in writing delivered 
personally or left at their usual place of abode, on motion to 
obtain a judgement against them before any court having com- 
petent jurisdiction for the amount due such county, with an 
interest of twelve per cent thereon from the time the same 
became due. Provided always that if any such delinquent sheriff 
shall produce his account authenticated as aforesaid to the 
court to which he is notified, judgement shall not be taken for 
more than the balance due the county with interest as 
aforesaid. 

§ 17th. That the several courts of quarter sessions shall 
have power, and they are hereby authorised to make and enter 
into contracts, in the name and in behalf of their said counties 
for building anew, or repairing county jails, court houses, 
pillories, stocks & whipping-posts, and county-bridges when 
and so often as the courts of quarter sessions may conceive the 
interest or convenience of said counties may require. And 
the better to carry such contract into operation the said courts 
respectively may appoint one or more persons to superintend 
such building or repairs, and to see that the same is done 
agreeably to 

[77] 

the conditions of such contracts, and to make reasonable al- 
lowances to such person or persons for his or their services 
therein. The original contracts so by the said courts to be 
made for the purposes aforesaid shall be filed in the office of 
the clerk of the said court. — And the said courts are hereby 
authorised and required to pass, audit, and allow, the accounts 
and demands arising under such contracts made by said court, 
the same being certified by three justices of said court, and 
to draw orders in favor of such creditors in like manner as 
they draw other orders on the treasury. Provided always that 
no such contracts by the said courts to be made shall be of 



TAXATION, 1803 79 

any force or authority to warrant the said court to allow or 
pass any accounts or demands arising thereon unless the per- 
son contracting with the said court shall enter into bond with 
one or more sufficient surety or sureties to be approved of by 
the said court in double the sum of said contract payable 
to the justices of said courts for said county or their success- 
ors in office, conditioned for the faithful performance of such 
contract which bond when executed, shall be lodged with the 
clerk of said court in trust for said county. 

§ 18th. That if any justice of the peace, sheriff as col- 
ector, coroner, clerk of the sessions, lister or freeholder shall 
neglect or refuse to do or perform any of the duties required 
of them or either of them by this law, he, she, 

[78] 

or they so offending shall forfeit and pay any sum not exceed- 
ing one hundred dollars to be recovered before any court 
having jurisdiction, by action of debt qui tarn or indictment, 
one moiety to the person suing for the same, the other to the 
use of the county. 

§ 19th. That if any person charged with county taxes or 
levies, by virtue of this act shall neglect or refuse to pay the 
same to the collector, or his deputy, within three months next 
after the court of quarter sessions at which the county tax or 
levy is or shall be approved, the collector or his deputy shall 
have power to take the property of such delinquent (he first 
having demanded the same, and furnished such person with 
the sum of his or her tax ten days before such distress made, 
or having left a copy of such tax, ten days as aforesaid, at the 
usual place of abode of such delinquent) and may proceed to 
sell the same to the highest bidder. Provided always, that ten 
days previous notice of such sale be given, by advertising the 
same in the most public place of the township where such de- 
linquent resides; and provided also that the delinquent may, 
at any time before the property destrained be sold, ask for, 
demand and receive the same on tendering his or her taxes 
then due, and the expences of keeping the property destrained. 



80 ILLINOIS HISTORICAL COLLECTIONS 

And in case the property taken sells for more than the taxes 
that are due, the collector shall pay the overplus [after de- 
ducting reasona- 

[79] 

ble expences for keeping and taking care of such property] 
to the person from whom the same was taken. And the said 
collector shall keep a fair & regular account of all such sales, 
stating particularly what he detained for his trouble in keep- 
ing the property, &c. and lay the same before the court of 
quarter sessions, who shall examine the same, and if they find 
the collector has acted in any wise improper they shall forth- 
with see justice done to the party injured. 

§ 20th. And if any person shall think him or herself 
aggrieved by the valuation of his or her house by the free- 
holders to be appointed for that purpose, he or she may appeal 
to the court of quarter sessions of the county, who shall in a 
summary way, hear and determine upon the case, and shall 
confirm or alter the assessment of the said freeholders, as to 
them shall appear just and reasonable. Provided always, that 
the appeal shall be made before the bill of taxation shall be 
put into the hands of the sheriff for collection. 

§ 21st. It shall be the duty of all the house holders in 
their respective townships to give in to the sheriff, at the same 
time that they deliver in a list of their taxable, property and 
under the like penalties, the names of all single men, (above 
the age of twenty one years, & who have not taxable property 
to the amount of four hundred dollars) who lodge or dwell 
in their respective houses, and if any 

[80] 

such single man &c. as above mentioned, shall neglect or 
refuse, on application being made to him, for the purpose by 
the sheriff or his deputy to pay his tax, it shall be lawful for 
such sheriff or deputy, to commit such delinquent to the 
county jail, where he shall remain, until the said tax shall 
be paid, unless some responsible person, in the opinion of the 
sheriff shall be forthcoming threfor. 



TAXATION, 1803 81 

§ 22nd. The office of county treasury in each of the coun- 
ties, within this territory, shall be abolished from and after 
the first day of February next, from which period, all the 
duties of the county treasurer, in each of the counties re- 
spectively, shall be performed by the sheriffs, who shall be 
allowed two per centum on all the monies by them paid upon 
the orders of the courts of quarter sessions or otherwise con- 
formably to law. 

§ 23rd. That the act entitled an act to regulate county 
levies [excepting - the proviso contained in the twenty fifth 
section thereof, which provides for the collection of the taxes 
then due and unpaid under the former law of the territory] 
subjecting lands to taxation, shall be and the same is hereby 
repealed, provided nevertheless that all penalties and forfeit- 
ures that have been incurred may be recovered, and prosecu- 
tions and suits, that may have been commenced, may be prose- 
cuted to final judgment, under the said act, as if the said act 
was continued and in full force. 

[81] 

The foregoing is hereby declared to be a law of the Ter- 
ritory, to take effect on and from the first of January next. 
In testimony whereof, we, William Henry Harrison, Thomas 
Terry Davis, and Henry Vander Burgh, have caused the seal 
of the territory to be thereunto affixed, and signed the same 
with our names. 

WILLIAM HENRY HARRISON, 
THOMAS TERRY DAVIS, 
HENRY VANDER BURGH. 

VIII 
Indiana territory — A Law laying a tax upon law process. 

Adopted from the Virginia code, and published at 
Vincennes the fifth day of November, one thou- 
sand eight hundred and three, by William Henry 
L. S. Harrison governor and Thomas T. Davis and 
Henry Vander Burgh, judges in and over the 
said territory. 



82 ILLINOIS HISTORICAL COLLECTIONS 

§ 1st. The following tax on law process shall be paid 
for the use of the territory: 

D C 

On each writ or declaration in ejectment, instituting 
a suit in the general court, the sum of 1 

On each writ of error, supersedeas and habeas corpus, 
cum causa, or certiorari, issued from the general court 1 

On each appeal from any court of common pleas, or 
quarter sessions, to the general court 1 

On each writ or declaration in eject- 



[82] 

D C 

ment instituting a suit in any court of common pleas, 
the sum of 50 

On each certificate under the seal of any court, the 
sum of 50 

which taxes shall by the respective clerks be taxed in the 
bill of costs. 

§ 2d. No writ, supersedeas, certiorari, habeas corpus 
cum causa, or writ of error shall be issued, or declaration in 
ejectment, filed by any clerk, unless the taxes hereby imposed 
be paid down. And in all appeals and writs of error, no tran- 
script of the record shall be delivered to the appellant, or 
plaintiff in error, by the clerk of the court, or forwarded by 
him to the general court, before the tax thereon be paid, nor 
shall any certificate under the seal of any court be granted, 
until the tax thereon shall have been first paid to the clerk 
keeping such seal. 

§ 3d. The clerks of the said several courts respectively 
shall keep regular accounts of all the monies which they may 
or ought to have received, in pursuance of this law, and shall 
on every the first Tuesdays of March and September account 
with, on oath, and duly pay to the treasurer of the territory, 
for the public uses thereof, the said several sums of money by 
them so received, under the penalty of paying to the use of 



APPROPRIATIONS, 1803 83 

the territory for every default or neglect, the sum of one hun- 
dred dollars, to be recovered with costs, on motion of the 
treasurer, in the general 

[83] 

court on giving ten days previous notice of such motion. 

The foregoing is hereby declared to be a law of the 
territory ; to take effect on and from the first day of December 
next ensuing. In testimony whereof, we, William Henry 
Harrison, Thomas T. Davis and Henry Vander Burg have 
caused the seal of the Territory to be thereunto affixed and 
signed the same with our names. 

WILLIAM HENRY HARRISON, 
THOMAS TERRY DAVIS, 
HENRY VANDER BURGH. 

IX. 

Indiana territory — A Resolution authorising the Governor to 
drazv money from the territorial treasury, for the purposes 
therein mentioned. 

Published at Vincenns the fifth day of November, one 

thousand eight hundred and three, by William 

(L. S.) Henry Harrison, governor, and Thomas T. Davis, 

and Henry Vander Burgh, judges in and over the 

said territory. 

Resolved, that the governor be, and he is hereby authorised 
to draw from the territorial treasury, for such sum or sums of 
money as shall be sufficient to pay and discharge the expences 
incurred by the territory in demanding and obtaining from the 
governor of the state of Tennessee, Robert Slaughter, a fugitive 
from justice, charged with having committed a felony in this 
territory. 

Also that the clerks to the legislature, shall 

[84] 

receive as a compensation for their services, four dollars per day, 
for each and every day that they may, respectively have officiated 
as such — and the governor is hereby authorised, to draw by war- 



84 ILLINOIS HISTORICAL COLLECTIONS 

rant, from the treasury, the sums which may respectively be found 
due to them, upon the settlement of their services as aforesaid. 

The foregoing is hereby declared to be a law of the territory, 
to take effect accordingly. In testimony whereof, we, William 
Henry Harrison, Thomas Terry Davis, and Henry Vander Burgh, 
have caused the seal of the territory to be thereunto affixed, and 
signed the same with our names. 

WILLIAM HENRY HARRISON, 
THOMAS TERRY DAVIS, 
HENRY VANDER BURGH. 

X 

Indiana territory — A Resolution requesting the governor to 
make application to Congress, for the purposes therein 
mentioned. 

Published at Vincennes, the seventh day of November, 

one thousand eight hundred and three, by William 

(L. S.) Henry Harrison, governor, and Thomas T. Davis, 

and Henry Vander Burgh, judges in and over the 

said territory. 

Whereas in the present circumstances of this territory, the 
revenue is inadequate to the necessary expences thereof. And 
whereas the territory frequently incurs expences by reason of 
prosecutions on behalf 

[85] 

of the United States, to defray which there is no provision by any 
law of the United States. 

Resolved, that the governor be, and is hereby requested to 
make application to Congress for leave to impose a reasonable 
tax, yearly, on all persons trading with the Indian tribes within 
this territory, to and for the use thereof. 

The foregoing is hereby declared to be a law of the territory, 
& to take effect accordingly. In testimony whereof, we, William 
Henry Harrison, Thomas Terry Davis, and Henry Vander Burgh, 
have caused the seal of the territory to be thereunto affixed, and 
signed the same with our names. 

WILLIAM HENRY HARRISON, 
THOMAS TERRY DAVIS, 
HENRY VANDER BURGH. 



RESOLUTIONS, 1803 85 

XI. 

Indiana territory — A Resolution authorising the governor to 

contract for making copies of certain laws. 

Published at Vincennes the seventh day of November 

one thousand eight hundred and three, by William 

L. S. Henry Harrison governor, and Thomas T. Davis 

and Henry Vander Burgh judges in and over the 

said territory. 

Resolved, that the governor be, and he is hereby authorised 
and empowered to contract for copying such number of the law 
adopted the fifth day of this instant, for laying and collecting 
county levies, or other laws, as he may deem necessary, for the use 

[86] 

of the territory, and to order the expence thereof to be paid out 
of the territorial treasury. 

The foregoing is hereby declared to be a law of the territory 
and to take effect accordingly. In testimony whereof, we William 
Henry Harrison, Thomas T. Davis & Henry Vander Burgh, have 
caused the seal of the territory to be thereunto affixed and signed 
the same with our names. 

WILLIAM HENRY HARRISON, 
THOMAS TERRY DAVIS, 
HENRY VANDER BURGH. 

XII. 

INDIANA TERRITORY, 

Resolved by the governor and judges of the Indiana Terri- 
tory duly assembled as a legislature for the said territory, 

That so much of the law entitled a law "establishing courts 
of judicature adopted from the Prensylvania code and published 
at Vincennes the twenty third day of January one thousand eight 
hundred and one, and so much of the law to regulate the practice 
of the general court upon appeals and writs of error and for other 
purposes adopted from the Kentucky code and published at Vin- 
cennes the twentieth day of January one thousand eight hundred 
and one, as directs that the attendance of two judges shall be 
necessary to hold a general court, or court of 



86 ILLINOIS HISTORICAL COLLECTIONS 

[87] 

oyer and terminer and general jail delivery be and the same is 
hereby repealed. 

Resolved, that the spring session of the general court hereto- 
fore held at Vincennes on the first Tuesday in March in every 
year shall hereafter be held on the first Tuesday in April of every 
year, and that all process returnable to the March term is hereby 
made returnable to the said April term. 

INDIANA TERRITORY. 

Resolved that so much of the law entitled a law regulating 
the admission and practice of attornies and counsellors at law 
passed by the general assembly of the North Western Territory 
the twenty ninth day of October one thousand seven hundred and 
ninety nine as requires the applicant to obtain a rule in the gen- 
eral court previous to his examination, and so much of the law as 
requires the presence of two of the judges at the said examina- 
tion and also so much as empowers the governor of the territory 
to grant a licence to attornies be and the same is hereby repealed, 
and that any one of the said judges be and is hereby authorised 
to examine and licence any person apllying to be admitted to 
practice law in the territory either as counsellor or attorney. 

[88] 

XIII. 

INDIANA TERRITORY. 

Resolved, that a circuit court shall be held in the counties of 
Clark, Dearborne and Wayne, and the judges of the general court 
or any one of them are hereby empowered and required to go 
the circuit once in every year if necessary into the counties 
aforesaid when and where they may try all issues in fact in the 
same manner and under the same regulations as is provided by a 
law entitled a law establishing courts of judicature. 

The foregoing is hereby declared to be a law of the territory 
to take effect from and after the twenty second day of September 
one thousand eight hundred and four. In testimony whereof, we, 



APPROPRIATIONS, 1804 87 

William Henry Harrison governor, and Thomas T. Davis, Henry 
Vander Burgh and John Griffin judges in and over said territory 
have hereunto set our hands and affixed the seal of the said terri- 
tory the day and year above written. 

WILLIAM HENRY HARRISON, 
THOMAS TERRY DAVIS, 
HENRY VANDER BURGH, 
JOHN GRIFFIN. 

XIV. 

INDIANA TERRITORY. 

Resolved by the governor and judges of the Indiana territory, 
duly assembled, as a legislature for the said territory, 
Resolved that the governor be, and he is 

[89] 

hereby authorised to draw from time to time upon the Treasury 
of the Territory for all sums of money that may be necessary to 
defray any expence that is or may hereafter be incurred by send- 
ing any express or expresses on public service. 

The foregoing is hereby declared to be a law of the territory ; 
to take effect from and after the twenty-second day of September, 
1804. In testimony whereof, we, William Henry Harrison, Gov- 
ernor, and Thomas T. Davis and Henry Vander Burgh Judges in 
and over said Territory, have hereunto set our hands and affixed 
the seal of the said Territory the day and year above written. 

WILLM. HENRY HARRISON, 
THO : TERRY DAVIS, 
HENRY VANDER BURGH. 



LAWS 



PASSED 

AT THE FIRST SESSION 

OF THE 

General Assembly 

OF THE 

INDIANA TERRITORY, 

BEGUN AND HELD 

AT THE BOROUGH OF VINCEENNES, 

ON MONDAY THE TWENTY-NINTH OF JULY, 

In the Year 1805. 

By Authority. 

VINCENNES, 
PRINTED by ELIHU STOUT. 



SMALL CAUSES, 1805 



91 



Governor 
to issue 
proclama 
tion, 



ACTS 

Passed at the first Session of the Legislature. 

CHAPTER I. 
AN ACT for prohibiting the sale of ardent spirits, or other intoxi- 
cating liquors to Indians. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the 
same, That from the date hereof, it shall and may be lawful for 
the Governor of this territory, and he is hereby authorised and 
empowered during the sitting of any council or holding any public 
treaty or conference with any Indian nation or tribe, to prohibit 
by proclamation, the sale, or other disposition of any ardent spirits 
or other intoxicating liquors, to any Indian or Indians, by any 
person or persons, for any purpose, or under any pretence whatso- 
ever, within thirty miles of the place of holding such council, 
treaty or conference. 

§ 2. Be it enacted, That if any person shall not strictly observe 
whatever restrictions may be imposed under the authority afore- Penalty. 
said, he, she or they so offending, shall, on conviction by indictment 
or presentment, be fined in a sum not exceeding five hundred dol- 
lars, nor less than fifty dollars ; and in case of inability to pay the 
fine with costs, shall be imprisoned not more than six months, nor 
less than three months. 

JESSE B. THOMAS, Speaker of the House 

of Representatives. 
P. MENARD, President pro tempore of the 
Legislative Council. 
Approved 6th August, 1805. 

William Henry Harrison. 

CHAPTER II. 

AN ACT to amend an act entitled an act establishing courts for 
the trial of small causes. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the Justices ju 
same, That from and after the passage of this act the jurisdiction nsdiction. 



92 



ILLINOIS HISTORICAL COLLECTIONS 



Consta- 
bles. 



Stay of ex 

ecution. 



Governor 
to commi 
ssion notar 
ies public 



Duty and 
fees. 



of all and every the Justices of the peace in the territory for the 
trial of small causes, shall be co-extensive with the limits of his or 
their county, any law to the contrary thereof notwithstanding. 

§ 2. And be it further enacted, That the constable of every 
township in the territory to whom any warrant shall be directed 
for service by any Justice of the peace of the proper county, shall 
have power and authority to execute the same in any township in 
the county any law to the contrary notwithstanding. 

§ 3. And be it further enacted, That when any judgment is 
obtained before any Justice of the peace for the sum of twelve 
dollars and under, there shall be a stay of execution for fifteen 
days, and when the judgment may be for a sum above twelve 
dollars, there shall be a stay of execution for thirty days, but in 
both cases the person or persons against whom such judgment 
may be rendered shall be subject to the same laws and regulations 
respecting securities as heretofore, any law or usage to the contrary 
notwithstanding. 

JESSE B THOMAS Speaker of the House 

of Representatives. 
P. MENARD, President pro tempore of the 
Legislative Council. 
Approved August 12th, 1805. 

William Henry Harrison. 

CHAPTER III. 
AN ACT regulating notaries public. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the 
same, That the Governor shall commission so many notaries public 
in this territory as to him shall seem necessary, who shall hold 
their offices during good behavior. 

§ 2. And be it further enacted. That they shall make all attes- 
tations, protestations and other things which are by law directed 
relative to their offices, 

[4] 

and it shall and may be lawful for every notary public to demand 
and receive the following fees to wit. For every attestion, 



CONVE YANCES BY COURT, 1805 93 

protestation, and other instrument of publication under his proper 
seal relative to foreign bills of exchange, one dollar, and for record- 
ing the same in a book to be kept for that purpose if thereunto 
required by the holder of such bill or note 75 cents ; and for every 
attestation, protestation and other instrument of publication under 
his proper seal relative to inland bills of exchange or promissary 
notes the sum of 50 cents, and for recording the same in a book 
to be kept for that purpose if thereunto required by the holder of 
such bill or note twenty five cents. 

§ 3. And be it further enacted, That it shall be the duty of the 
Governor to take bond with sufficient security from each notary To give 
public before he enters on the duties of his office in the sum of 
five hundred dollars, conditioned for the due performance of the 
duties of his office, which bond if forfeited, shall be sued for in 
the name of the territory and for its use. 

JESSE B. THOMAS, Speaker of the House 

of Representatives. 
P. MENARD, President protempore of the 
Council. 
Approved August 15th, 1805. 

William Henry Harrison. 

CHAPTER IV. 
AN ACT authorising the court of common pleas to appoint com- 
missioners for the conveyance of land in certain cases. 

§ 1. Whereas many persons die intestate, having previous to 
their death made sales of land without executing deeds of con- Proviso, 
veyance for transferring the same, or having made a will shall not 
in such will have authorised their executors or some other person 
to make such deeds in performance of their contract, for which 
if suits in law or equity should be instituted by the person or per- 
sons possessing from such contract an equitable claim in such 
lands, it would tend greatly to the injury of the estate of such 
decedent. 

§ 2. Be it enacted, That where any person has died or hereaf- 
ter shall die intestate leaving his or her heirs or any of them infants, 
or having made a will, shall not in said will have authorised his or 



94 



ILLINOIS HISTORICAL COLLECTIONS 



her executors or some fit persons to make deeds of conveyance, and 
having previous to his or her death executed bonds or any instru- 
ment of writing binding him or her to convey any tract of land or 
lot of ground in such case the administrator or executor shall 
apply to the court of common pleas where the land lies to appoint 
three fit persons as commissioners who shall have full power and 
authority to convey any tract of land or lot of ground to the person 
entitled to the same which the decedent bound him or herself and 
his or her heirs by any instrument of writing to convey agreeably 
to the tenor of such instrument, and such conveyance so made shall 
be as valid and obligatory upon the heirs as if made by the ancestor 
in his life time ; Provided however, that nothing in this act shall be 
so construed as to prevent the infant representatives of such deced- 
ent from instituting suits to recover such land or a compensation in 
damages from the person or persons to whom it shall have been 
conveyed if any fraud shall have been practised in obtaining the 
same ; Provided always, that the bond or instrument on which said 
conveyance is prayed shall be filed with the records of the said 
court. This act shall commence and be in force from the passage 
thereof. 

JESSE B. THOMAS, Speaker of the House 

of Representatives. 
P. MENARD, President pro tempore of the 

Council. 
Approved August 15th, 1805. 

William Henry Harrison. 

CHAPTER V. 

AN ACT to authorise aliens to purchase and hold real estates 
within the Territory. 

Be it enacted by the Legislative Council and House of Repre- 
sentatives, and it is hereby enacted by the authority of the same, 
That from and after the passage of this act it shall and may be 
lawful for any foreigner or foreigners, alien or 

[5] 

aliens, not being the legal subject or subjects of any foreign state 
or power, which is or shall be at the time or times of such purchase 



APPRENTICES, 1805 



95 



at war with the United States of America, to purchase lands tene- 
ments and hereditaments within this territory, and to have and to 
hold the same to them, their heirs and assigns forever as fully to 
all intents and purposes as any natural born citizen or citizens may 
or could do 

JESSE B. THOMAS, Speaker of the House 

of Representatives : 
P. MENARD, President pro tempore of the 
Council. 
Approved August 15th, 1805. 

William Henry Harrison. 

CHAPTER VI. 

AN ACT respecting Apprentices. 

§ 1. Be it enacted by the Legislative council and house of 
representatives and it is hereby enacted by the authority of the 
same, That if any white person within the age of twenty one years 
who now is or hereafter shall be bound by indenture, of his or her 
own free will and accord and by and with the consent of his or her 
father or in case of the death of his or her father with the consent 
of his or her mother or guardian to be expressed in such indenture 
and signified by such parent or guardian sealing and signing the 
said indenture and not otherwise to serve as apprentice in any art, 
craft, mystery, service, trade, employment manual occupation or 
labor until he or she arrives, males 'till the age of twenty one and 
females 'till the age of eighteen years (as the case may be) or for 
any shorter time, then the said apprentice so bound as aforesaid 
shall serve accordingly. 

§ 2. And be it further enacted that if any master or mistress 
shall be guilty of any misuage, refusal of necessary provision, 
or cloathing, unreasonable correction, cruelty or other ill treatment, 
so that his or her said apprentice shall have any just cause to 
complain, or if the said apprentice shall absent himself or herself 
from the service of his or her master or mistress, or be guilty of 
any misdemeanor, miscarriage or ill behavior, then the said master 
or mistress, or apprentice being aggrieved and having just cause 
of complaint shall repair to some Justice of the Peace, unconnected 
with either of the parties within the county where the said master 



Bound ap 
prentices 
to serve, 



Master mi 
stress or 
appren 
tice guil 
ty ill trea 
tment the 
ir remedy 



96 ILLINOIS HISTORICAL COLLECTIONS 

or mistress dwells, who having heard the matters in difference shall 
have authority to discharge if he thinks proper, by writing under 
his hand and seal the said apprentice of and from his or her ap- 
prenticeship, and such writing as aforesaid shall be a sufficient 
discharge for the said apprentice against his or her master or mis- 
tress, and his or her executors or administrators, the said indenture 
or any law to the contrary notwithstanding. And if default shall 
be found to be in the said apprentice then the said Justice shall 
cause such due correction to be administered unto him or her as 
he shall deem to be just and reasonable, and if any person shall 
think himself or herself aggrieved by such adjudication of the said 
Justice, he or she may appeal to the next court of common pleas 
in and for the county where such adjudication shall have been 
made, such person giving ten days notice of his or her intention of 
bringing such appeal, and of the cause and matter thereof to the 
adverse party, and entering into a recognizance within five days 
after such notice before some Justice of the peace of the county, 
with sufficient surety, condition to try such appeal at, and abide 
the order or judgment of, and pay such costs as shall be awarded 
by the said court, which said court, at their said sessions, upon due 
proof upon oath or affirmation of such notice being given, and of 
entering into such recognizance as aforesaid, shall be, and are 
hereby empowered and directed to proceed in and hear and deter- 
mine the cause and matter of such appeal, and give and award such 
judgment therein with costs to either party appellant or respondent 
as they in their discretion shall judge proper and reasonable. 

§ 3. And be it enacted, that no writ of certiorari or other 
process shall issue r ,, 

or be issuable to remove into the general court any proceeding had 

in pursuance of this act before any justice of the peace, or before 

any court of common pleas. 

JESSE B. THOMAS, Speaker of the House 

of Representatives. 

P. MENARD, President protempore of the 

Council. 

Approved August 15th, 1805. IIT .„, 

William Henry Harrison. 



INDIANS, 1805 



97 



CHAPTER VII. 
AN ACT to prohibit the giving or selling intoxicating liquors 
to Indians. 

WHEREAS many abuses dangerous to the lives, peace and 
property of the good citizens of this territory, and derogatory to 
the dignity of the United States, have arisen by reason of traders 
and other persons furnishing spirituous and other intoxicating 
liquors to the Indians inhabiting or coming into this territory, for 
remedy whereof, 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the 
same, That if any trader or other person whomsoever residing in, 
coming into, or passing through the said territory or any part 
thereof, shall presume to furnish, vend, sell or give, or shall direct 
or procure to be furnished, vended, sold or given upon any account 
whatever to any Indian or Indians, or nation or tribe of Indians 
being within the territory, or waters adjoining to, or bounding the 
same, any rum, brandy, whiskey or other intoxicating liquor or 
drink, he she or they so offending shall on conviction by present- 
ment or indictment, forfeit and pay for every such offence any sum 
not exceeding one hundred dollars nor less than five dollars to the 
use of the territory Provided, that nothing herein contained 

shall be taken or construed to impair or weaken the powers and 
authority that now are, or at any time hereafter may be vested in 
the Governor or other person as superintendant or agent of Indian 
affairs, or commissioner plenipotentiary for treating with Indians. 
This act shall commence and be in force, when, and as soon as the 
governor of this territory shall be officially notified that the states 
of Kentucky and Ohio, and the territories of Louisiana and Michi- 
gan have passed, or shall pass laws for prohibiting the sale or gift 
of intoxicating liquors to Indians within their respective states 
and territories ; and it shall continue in force so long as the said 
acts made or to be made in the said states and territories shall 
continue in force therein. The governor of the territory is re- 



Proviso. 



No ixtoxi 
eating 11 
quors to 
be sold or 
given to 
Indians. 



When in 
force. 



98 ILLINOIS HISTORICAL COLLECTIONS 

quested to transmit copies of this law to the governors of the 
several above mentioned states and territories. 

JESSE B. THOMAS, Speaker of the House 

of Representatives. 
P. MENARD, President pro tempore of the 
Council. 
Approved August 15th, 1805. 

William Henry Harrison. 

CHAPTER VIII. 
AN ACT making bonds for the payment of money or property 
assignable. 

§ 1. Be it enacted by the Legislative council and House of 
Representatives, and it is hereby enacted by the authority of the 
same, That the assignments of bills, bonds or other writings 
obligatory for the payment of money, or any specific article, shall 
be good and effectual in law, and an assignee of such may 
thereupon maintain an action in his own name, but shall allow all 
just sett offs, discounts and equitable defence, not only against 
himself but against the assignor, before notice of such assignment 
shall have been given to the defendant. 

JESSE B. THOMAS, Speaker of the House 

of Representatives. 
P. MENARD, President pro tempore of the 
Council. 
Approved August 15th, 1805. 

William Henry Harrison. 

[7] 

CHAPTER IX. 

AN ACT reviving and continuing suits in the Court of Common 
Pleas of Knox county, and regulating the teste of writs. 

§ 1. WHEREAS the court of common pleas for the county 
of Knox, which ought to have been held on the first Tuesday of this 
month of August was not held by reason of the non attendance 
of a sufficient number of Justices to form a court, whereby all 
suits and process which were depending therein were discontinued. 



IMPRISONMENT FOR DEBT, 1805 



99 



§ 2. Be it therefore enacted, That the said suits and process 
which were commenced for the said court and returnable thereto, 
and also all suits and process which were depending in the said 
court be, and the same are hereby revived, and the same proceed- 
ings may be had in all the suits and precess aforesaid, as if 
the said court of common pleas had been regularly opened and 
adjourned. 

§ 3. And be it further enacted, That all writs and process 
issuing out of any court of record in this territory shall bear teste 
in the name of the clerks of the respective courts and be dated 
on the days on which they issue, any law, usage or custom to the 
contrary notwithstanding. This act to be in force from and after 
the passage thereof. 

JESSE B. THOMAS, Speaker of the House 

of Representatives. 
P. MENARD, President pro tempore of the 
Legislative Council. 
Approved August 22d, 1805. 

William Henry Harrison. 

CHAPTER x. 

AN ACT for the relief of persons imprisoned for debt. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the 
same, That any person who now is, or hereafter may be in actual 
confinement in any of the gaols of this territory, and is willing to 
deliver up to his or her creditors all his or her estate, both real 
and personal towards the payment of his or her creditor or cred- 
itors shall have leave to present a petition to the court of common 
pleas in and for the county wherein he or she is so imprisoned, 
setting forth the cause or causes of his or her imprisonment to- 
gether also with a list of all his or her creditors with the money 
due and arising to each of them, to the best of his or her 
knowledge. 

§ 2. And be it further enacted, That the court to whom such 
application is made, are required to name the time and place at 
which they will attend to hear what can be alledged for or against 



Suits con 

tinued, 



Teste of 
writs. 



Persons in 
confineme 
nt for debt 
to petion, 



Court shal 
name the 
day for 
hearing. 



100 



ILLINOIS HISTORICAL COLLECTIONS 



Debtor to 
cause noti 
ce to be 
given to 
his credi 
tors, 



To give a 
schedule 
and make 
oath, 



Schedule 
when sign 
ed to be 
returned 
to the 
clerk, 



the liberation of such debtor, of which time and place so appointed 
by the court, the debtor shall cause notice thereof in writing at 
least thirty days previous thereto, to be served or left at the usual 
place of residence of each of his or her creditor or creditors if re- 
siding within this territory, and have the same inserted in one of the 
newspapers of this territory most contiguous to the place of his 
or her confinement, if any such creditor or creditors should not 
reside in the territory. 

§ 3 And be it enacted, That at such time and place as aforesaid 
the debtor so applying to the court as aforesaid shall subscribe and 
deliver a schedule of his or her whole estate, and make oath and 
swear to the effect following, that is to say, "I, A B, in the 
presence of Almighty God, do solemnly swear or affirm [as 
the case may be] that the schedule now delivered and by me 
subscribed doth contain to the best of my knowledge and remem- 
brance a full, true, just and perfect account and discovery of all 
the estate, goods and effects unto me any-wise belonging, and 
such debts as are to me owing or to any persons in trust for me, 
and of all securities and contracts whereby any money may here- 
after become payable, or any benefit or advantage accrue to me, 
or to my use, or to any other person or persons in trust for me, 
and that I or any other person or persons in trust for me have 
not land, money, stock, or any other estate real or personal, in 
possession, reversion or remainder of the value of the debt or 
debts by me due, and that I have not since the commencement of 
the suits for which I am imprisoned, or at any day or time 
directly or indirectly sold, lessened or otherwise dis- 

B 

[8] 

posed of in trust, or concealed all or any part of my lands, money, 
goods, stock, debts, securities, contracts or estate, whereby to 
secure the same, or receive or expect any profit or advantage 
therefrom, or to defraud any creditor or creditors to whom I am 
indebted in anywise howsoever." Which schedule being so sub- 
scribed in open court shall be returned to the clerk of the court 
there to remain for the benefit of the creditors, and after deliv- 
ering in such schedule, and taking such oath, such prisoner shall 



IMPRISONMENT FOR DEBT, 1805 101 

be discharged by warrant from such court, which warrant shall 
be sufficient to indemnify such sheriff or officer against any 
escape or escapes action or actions whatsoever which shall or may 
be brought or prosecuted against him or them by reason thereof ; 
and if any such action should be commenced for performing his 
duty in pursuance of this act, he may plead the general issue and 
give this act in evidence, Provided always: that notwithstanding 
such discharge it shall be lawful for any creditor or creditors by 
judgement at anytime afterwards to sue out a writ of scirefacias 
to have execution against the lands or tenements, goods or 
chattels, which such insolvent person shall thereafter acquire, or 
be possessed of. But no person delivering in such schedule, and 
having taken the oath, and been liberated from prison by the 
provisions of this act, shall be subject to imprisonment on final 
process, for any debts contracted or for damages acrued for 
the breach of any contract entered into prior to such liberation 
unless such liberation be fraudulently obtained. 

§.4. All the estate which shall be contained in such schedule ^.11 the e 
and any other estate which may be discovered shall be vested in state to be 
such person as the court of common pleas of the county where an ass j g 
such prisoner was discharged shall appoint as assignee, and such nee. 
assignee is hereby authorised and empowered and required, within 
sixty days after the taking the said oath, ten days previous notice 
of the time and place of sale being given to sell and convey the 
same to any person whomsoever for the best price that can be got 
for the same, and the money arising by such sale, shall by such 
assignee, within thirty days thereafter be paid to the creditor or 
creditors of such insolvent debtor pro rata according to their 
respective debts, saving however to every such prisoner his or her 
necessary apparel and utensils of trade, and when any debts are 
by such schedule said to be due to such insolvent debtor, the said 
assignee shall sue for and recover the same in his own name as 
assignee of such debtor in any court proper to try the same, and 
such assignee shall be allowed to retain out of the effects of such 
insolvent debtor, before the distribution thereof all reasonable 
expences in recovering such money and disposing of such estate 
as shall be adjudged reasonable by the court. 



102 



ILLINOIS HISTORICAL COLLECTIONS 



Prisoner 
guilty of 
perjury 



Prison bo 

unds, 



Court au 
thorised 
to get 
weights & 
measures 



§ 5. And be it further enacted, That if any such prisoner as 
aforesaid shall be convicted of having sold, leased or otherwise 
conveyed, concealed or otherwise disposed of, or intrusted his or 
her estate, or any part thereof, directly or indirectly, contrary to 
his or her foregoing oath or affirmation, he or she shall not only 
be liable to the pains and penalties of wilful perjury, but shall 
receive no benefit from the said oath or affirmation. And in case 
such prisoner at the time of such intended caption, shall not take 
the said oath or affirmation, or be admitted thereto by the said 
court, he or she shall be remanded back to prison, and shall not be 
entitled to the benefit of this act, unless a new notification be made 
out and served in manner aforesaid. 

§ 6. And be it further enacted, That so much of the law regu- 
lating prison bounds, as requires persons giving security for 
prison bounds to stay within the walls of the prison during the 
night, be, and the same is hereby repealed. This act shall com- 
mence and be in force from the first day of September next. 

JESSE B THOMAS Speaker of the House 

of Representatives, 
B. CHAMBERS, President of the Council. 
Approved August 22d, 1805. 

William Henry Harrison. 

CHAPTER xi. 

AN ACT to regulate weights and measures. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, 

[9] 

and it is hereby enacted by the authority of the same, That the 
several courts of common pleas within this territory, be, and they 
are hereby authorised whenever they may think it necessary to 
procure for their respective counties and at the expence of the 
same, a set of the following measures and weights for the use of 
their county, that is, one measure of one foot or twelve inches 
English measure (so called) also one measure of three feet or 
thirty six inches, English measure as aforesaid, also one half 
bushel measure for dry measure which shall contain one thousand 



BAIL, 1805 103 

seventy five and one fifth solid inches, also one gallon measure 
which shall contain two hundred and thirty one solid inches, 
which measures are to be of wood or any metal the court may 
think proper, also one set of weights commonly called averdu- 
poise weight, and seal with the name or initial letters of the 
county inscribed on it, which weights and measures shall be kept 
by the clerks of each court for the purpose of trying and sealing 
the weights and measures used in their county. 

§ 2. And be it further enacted, That as soon as the court shall shall noti 
have furnished the weights and measures as aforesaid they shall *. when 
cause notice thereof to be given at the court house door for one penalty 

month and any person who shall knowingly buy or sell any com- . r "uy 
modity whatever by measures or weights that shall not correspond ii ng by 
with the county weights and measures shall for every such offence ^ se wel S 
being legally convicted thereof forfeit and pay the sum of twenty g^g 
dollars for the use of the county where such offence shall have May have 
been committed, and also the costs, to be recovered before any g^" 1 "" 
Justice of the peace for said county. Every person desirous of 
having their measures or weights tried by the county standard, 
shall apply to the clerk of the county, and if he find it correspond 
with the county standard, shall seal them with the seal provided 
for that purpose. This act shall commence and be in force from 
the passage thereof, and shall continue in force until Congress 
shall pass a law on the subject of this act. 

JESSE B. THOMAS, Speaker of the House 
of Representatives. 

B. CHAMBERS, President of the Council. 
Approved August 22d, 1805. 

William Henry Harrison. 

CHAPTER xii. 
AN ACT respecting bail in certain cases. 

§ 1. Be it enacted by the Legislative Council and House of Where ap- 
Representatives, and it is hereby enacted by the authority of the Ff^ 3 ? ?, 
same, That in all actions where, by the laws of the territory be taken^ 
appearance bail is not required such bail shall be required where 
an affidavit shall be made and filed by the plaintiff or any person 



104 



ILLINOIS HISTORICAL COLLECTIONS 



Qualifica 
tion of 
bail, 



shall not 
be admit 
ted as bail 



Practice 
in general 
.court, 



in his behalf of an existing debt then due from the defendant 
to the plaintiff, which affidavit shall be made before any judge or 
commissioner authorised to take special bail, or any Justice of 
the peace in this territory, or if the plaintiff be out of the territory 
before any Judge of any court of judicature, or notary public of 
the state, kingdom or nation in which he resides or happens to be, 
and the sum so specified in such affidavit shall be endorsed on the 
writ or process by the clerk or prothonotary, for which sum so 
endorsed the sheriff or other officer to whom such writ or process 
shall be directed, shall take bail and for no more, and if the party 
making such affidavit swear to the best of his knowledge or belief 
the same to be deemed to be sufficient, and when no such affidavit 
shall be filed and endorsement made as above mentioned, it shall 
be the duty of the clerk or prothonotary to endorse on the back 
of the original writ or subsequent process whether appearance 
bail is to be required or not. 

§ 2. And be it enacted, That no person shall be permitted to 
be special bail in any such action unless he be a householder and 
resident within this territory, and of sufficient property, if the 
writ or process issue out of the general court, or if it issue out 
of any of the courts of common pleas unless he be a house holder 
of sufficient property, and resident in the county where such 
court is held. 

§ 3. And be it enacted, That no counsellor or attorney at law, 
sheriff, under sheriff, bailiff or other person concerned in the 
execution of process shall be permitted to be special bail in any 
action. 

[10] 

§ 4. And be it enacted, That so much of the first and second 
sections of a law of the territory entitled, 'A law in addition to a 
law to regulate the practice of the general court upon appeals 
and writs of error and other purposes,' adopted and published the 
twentieth day of September, one thousand eight hundred and 
three, as requires the true species of action to be endorsed on the 
original writ or subsequent process be, and the same is hereby 
repealed. 



BAIL, 1805 105 

§ 5. Provided always and be it enacted, That nothing in this 
act shall prevent any of the said courts or any Judge thereof Special 
from ordering as heretofore the defendant in any action, to be ^ ai ^» 
held to special bail in such sum as the said court or Judge under 
all the circumstances of the case shall think proper to direct, 
which sum shall be endorsed on the process, and the sheriff or 
officer shall take bail for the said sum and no more. 

§ 6. And whereas by the present laws of the territory the 

appearance day to all writs and process issuing out of any court 

of record is declared to be on the rule day after the rising of the Parties 

several courts to which the said writs are returnable which has x P a! ? "~ 

... declarati 

been found to be inconvenient and in several cases injurious to on 

the interest of the suitors, for remedy whereof, Be it further 
enacted, That it shall and may be lawful for the plaintiff or 
plaintiff's in any action or suit, to file his her or their declaration 
.at and in the term to which such writ or writs are returnable, to 
which the defendant or defendants may if he she or they think 
proper appear at the said term and such proceedings may be had 
therein at the same term to final judgment as the parties in the 
suit may mutually agree on. Provided however, that no defend- 
ant or defendants shall by any thing herein contained be com- 
pelable unless he she or they may think proper to enter his her 
or their appearance before the rule day established by the said law 
of the territory. 

§ 7. And be it further enacted, That the sheriffs shall Return 
return all writs to them directed on the first day of the next y 
succeeding term, any law to the contrary notwithstanding, 

§ 8. And be it further enacted, That all writs issued during 
the term of any court may be executed and returned to any day 
of the same term. This act shall commence and be in force 
from and after the first day of November next. 

JESSE B. THOMAS, Speaker of the House 

of Representatives. 
B. CHAMBERS, President of the Council. 
Approved August 22d, 1805. 

William Henry Harrison. 



106 



ILLINOIS HISTORICAL COLLECTIONS 



Guardians 
may sell 
houses & 
lots. 



To take 
bond, 



To accou 
nt forsuch 
sales. 



CHAPTER xm. 
AN ACT to authorise guardians of minors to sell houses and lots 
in towns and villages in certain cases. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the 
same, That whenever it shall appear to the several courts of 
common pleas of any county in this territory on petition of any 
guardian or guardians of any minor or minors, being owner or 
owners, and proprietor or proprietors of any houses and lots in 
any town or village in this territory that the yearly rents, issues 
and profits beyond all reprisals of the same are not sufficient to 
keep them in repair, it shall and may be lawful for such court to 
authorise the said guardian or guardians to sell and dispose of 
the said house and lot or houses and lots by public anction 
to the highest bidder on giving thirty days previous notice of the 
time and place of such sale which shall be on such credit as the 
court shall direct payable with lawful interest. 

§ 2. And be it further enacted, That the said guardian or 
guardians on the said sales being made shall take bond from such 
purchaser or purchasers with sufficient security to be approved 
of by the court for the payment of such consideration money who 
shall thereupon by proper deeds convey to such purchaser or 
purchasers his or her heirs all the estate, right, title and interest 
of such minor or minors of, in and to the said house and lot or 
houses and lots which conveyance so made shall be as valid and 
effectual, as if the same had been made by such minor or minors 
when of full age. 

[11] 

§ 3. And be it further enacted, That the said guardian or 
guardians shall account for the consideration money received for 



DIVORCE, 1805 107 

such house and lot or houses and lots in the same manner as for 
the other estate of such minor or minors. 

JESSE B. THOMAS, Speaker of the House 

of Representatives. 
P. MENARD, President pro tempore of the 
Council. 
Approved August 22d, 1805. 

William Henry Harrison. 

CHAPTER XIV. 

AN ACT to amend and continue in force a law entitled, 'a law 
respecting divorce.' 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the To be re 
same, That so much of the said law as requires advertisements Q 63 * 6 ^ 
to be inserted in some newspaper for the several times therein 
mentioned in case the party libelled shall not reside within the 
county of his or her usual residence, or within this territory, 
shall be, and the same is hereby repealed. 

§ 2. And be it enacted, That where the party libelled shall not 
be within the limits of this territory, then the summons by the Sommons 
said law directed to be served upon him or her shall be published to . * je sery 
at least once a week in some public newspaper in this territory 
nearest to the usual residence of the parties for at least eight 
weeks. 

§ 3. And be it further enacted, That with the foregoing 

amendments the said law, entitled "a law respecting divorce," 

shall be, and the same is hereby revived and continued in force. 

JESSE B. THOMAS, Speaker of the House 

of Representatives: 
P. MENARD, President pro tempore of the 
Council. 
Approved August 22d, 1805. 

William Henry Harrison. 



108 



ILLINOIS HISTORICAL COLLECTIONS 



To work 
on roads. 



Penalty 



To be re 
pealed, 



Penalty 
for neg 
lect or re 
fusal, 



CHAPTER xv. 

AN ACT to amend an act entitled an act for opening and 
repairing Public Roads and Highways. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the 
same, That all persons who by law are bound to work on public 
roads shall be compelled to work on the same for any number of 
days not exceeding twelve in each year whenever the supervisor 
of the district in which he resides shall deem it necessary, under 
the penalty specified in the said law, that it shall be the duty of 
the court of common pleas, at the same time that they appoint 
supervisors to apportion to each one his part of the roads and 
hands to assist in opening and keeping the same in repair. 

§ 2. That so much of the law to which this is an amendment 
as is contained in the fifteenth, sixteenth, seventeenth, eighteenth, 
nineteenth, twentieth, twenty first and twenty ninth sections be 
and the same is hereby repealed. 

§ 3. And be it further enacted, That all and every supervisor 
or supervisors of the public roads and highways of this territory, 
who shall refuse or neglect to do and perform his or their duty 
as directed by this act shall on conviction by presentment or in- 
dictment before any court of record be fined in any sum not more 
than forty nor less than five dollars at the discretion of the court 
and stand committed until payment thereof. This act shall com- 
mence and be in force from and after the passage thereof. 

JESSE B. THOMAS, Speaker of the House 

of Representatives. 
P. MENARD, President pro tempore of the 
Legislative Council. 
Approved August 22d, 1805. 

William Henry Harrison. 
CHAPTER xvi. 
AN ACT for organizing a Court of Chancery. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the 
same, That there shall be a court 



COURT OF CHANCERY, 1805 



109 



[12] 

established in this territory under the name and style of the court 
of chancery which shall be vested with, and is hereby empowered 
and authorised to exercise all the powers and authority usually 
exercised by courts of equity. 

§. 2. And be it further enacted.. That the said court shall con- 
sist of one judge to be appointed and commissioned by the gover- 
nor of the territory, for, and during good behavior, and the said 
judge shall receive such compensation as shall be allowed by law. 

§. 3. And be it further enacted, That the said Judge shall 
hold annually at Vincennes two stated terms commencing the last 
Monday in March, and last Monday in August, and such special 
terms at the same place as the said court shall from time to time 
appoint. 

§ 4. And be it further enacted, That in all suits in the said 
court the rules and methods which regulate the practice of the 
high court of chancery in England so far as shall be deemed by 
the Chancellor applicable to this court, shall be observed except, 
as is herein after excepted. 

§ 5. And be it further enacted, That if the said court shall 
not sit or be opened at any of the said terms whether stated or spe- 
cial the writs and process then returnable, and the bills, suits, 
pleadings and proceedings before the said court shall be continued 
of course 'til the next term and from term to term until the court 
shall sit. 

§ 6th. And be it further enacted, That the said court shall be 
always considered as open so as to grant writs of ne exeat, in- 
junctions, certiorari and other process usually granted by a court 
of Equity in vacation. 

§ 7 . And be it further enacted, Tnat if the complainant re- 
sides out of the territory, he shall before the issuing of process to 
appear, cause a bond to be executed by at least one sufficient per- 
son being a freeholder and resident within the territory to the 
defendant in the penal sum of dollars conditioned to prosecute 
the suit with effect, and to pay costs if he should be intitled there 
unto, and to have the same filed with the clerk, or in default 
thereof that the complainants counsellor or attorney, who shall 



Court of 
Chancery 



To consist 
of one 
Judge, 



Hold two 
sessions, 



Rules, 



Proceed 
ings contin 
ued, 



Always 
open, 



Complai 
nant to 
give bond 



110 



ILLINOIS HISTORICAL COLLECTIONS 



May grant 
a stay, 



Duty of 
Clerk, 



Rule days 



Clerk to 
advertise, 



On failure, 
of defend 
ant, 



file the said bill, and issue the process thereon, shall be responsible 
to pay the defendant such costs as he may be entitled to by the 
order of the court. 

§ 8. And be it further enacted, That any complainant residing 
within the territory shall at the discretion of the court, give 
security in the manner and form as is required in the case of 
nonresidents. 

§ 9. And be it further enacted, That no injunction shall be 
granted to stay any proceedings in any suit at law before verdict 
or judgment, unless the court in term time, or the Judge in vaca- 
tion, be satisfied of the complainants Equity, either by affidavit, 
certified at the foot, or on the back of the bill, that the allegations 
thereof are true, or by other means. 

§ 10. And be it further enacted, That every subpena, process 
of sequestration, writ of execution, or other writ or process shall 
be issued by the clerk at the instance of the party, and the service 
or execution thereof, shall be signed and sealed by the clerk. 

§ 11. And be it further enacted, That rules to plead, answer, 
reply, rejoin, or other proceedings whan necessary, shall be given 
on the first Saturday in the months of January, April, July and 
October, with the clerk in his office, and shall be entered in a 
rule book for the information of all parties, attornies or counsel- 
lors therein concerned. 

§ 12. And be it further enacted, That when any defendant re- 
sides out of the territory, or cannot be found to be served with 
process of subpena, or absconds to avoid being served there- 
with, public notice shall be given by the clerk to the defendant, 
in any newspaper printed in the territory as the court shall direct, 
that unless he appear and file his answer by a day given him by 
the court, the bill shall be taken pro confesso. 

§ 13. And be it further enacted, That if the defendant does 
not file his answer in the time prescribed by the rules of the court, 
having also been served with process of subpena, or notice given 
as prescribed by the preceding section hereof, the plaintiff may 
have a general commission to take depositions, and 

[13] 

proceed on to hearing, as if the answer had been filed and the 



CO URT OF CHANCERY, 1805 1 1 1 

cause was at issue, Provided however that the court for good 
cause shewn may allow the answer to be filed and grant a further 
day for such hearing. 

§. 14. And be it further enacted, That every defendant may defendant 
swear to his answer before any judge of this or of the general 
court or any justice of the peace. 

§. 15. And be it further enacted, That if the defendant re- 
sides out of the territory, he may swear to his answer before any 
justice of the peace of a county, city, or town corporate; the 
common seal of any court of record of such county city or town 
corporate being thereunto annexed. 

§ 16. And be it further enacted, That commissions for taking Q ^^° Sl 
depositions shall be issued, and written notice shall be given of 
the time and place of taking the same, in such manner as the 
court in their discretion shall direct. 

§ 17. And be it further enacted, That the complainant having defendant 

obtained a decree, and the defendant not having complied there- * ailm f *° 

° r comply fi 

with by the time appointed, it shall be lawful for the said court era facias 

to issue a writ of fieri facias against the goods and chattels, lands, or other 
tenements and hereditaments, and real estate of the defendant, issue, 
upon which sufficient property shall be taken and sold, to satisfy 
said demand, with costs, or to issue a capias ad satisfaciendum, 
against the defendant: upon writs of fieri facias, and capias ad 
satisfaciendum, there shall be the same proceedings as at law, or 
to cause by injunction, the possession of effects and estate, de- 
manded by the bill, and whereof the possession, or sale, is decreed 
to be delivered to the complainant or otherwise, according to such 
decree, and as the nature of the case may require. 

§ 18. And be it further enacted, That when a decree of the C q^^ 
court of chancery shall be made for a conveyance, release, or 
acquittance, and the party against whom the decree shall pass, 
shall not comply therewith by the time appointed, then such decree 
shall be taken and considered in all courts of law and equity, to 
have the same operation and effect, and be as available as if the 
conveyance, release, or acquittance, had been executed conform- 
ably to such decree. 



112 



ILLINOIS HISTORICAL COLLECTIONS 



Fiera faci 
as, 



To appoi 
nt a clerk 



Bounda 
ry and 
name, 



§ 19. And be it further enacted, That a decree of the court of 
Chancery, shall from the time of its being signed, have the form, 
opperation and effect of a judgment at law in the General Court 
of this territory, from the time of the actual entry of such 
judgment. 

§ 20 And be it further enacted, That a writ of fieri facias 
shall bind the goods of the person against whom it is issued, from 
the time it was delivered to the sheriff or officer to be executed, as 
at law. 

§ 21. And be it further enacted, That the said court or the 

Judge thereof, shall have power to appoint a clerk, who shall hold 

his office during good behaviour, and be entitled to such fees as 

shall be authorised by law. 

JESSE B THOMAS Speaker of the House 

of Representatives, 

B. CHAMBERS, President of the Council. 

Approved August 22d, 1805. TT t-„- tt tt 

William Henry Harrison. 

CHAPTER xvii. 
AN ACT for incorporating the Borough of Vincennes. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the 
same, That such parts of the township of Vincennes as are con- 
tained within the following limits and boundaries, that is to say: 
beginning on the Wabash on the line that divides the Vincennes 
lotts and the plantation of William Henry Harrison, thence 
along the said line to the outer boundary line of the common, 
thence along the said line to the outer boundary line of the com- 
mon, thence along the said line to the southern extreme of 
the Cathrenette Prairie, thence by a line northwest to the Wabash, 
thence along the said river to the place of beginning, shall be, 
and the same is hereby erected into a Borough, which shall hence- 
forth be distinguished, known and called by the name of the 
Borough of Vincennes. 

§ 2. And be it further enacted, That for the better ordering, 
ruling and governing the said Borough of Vincennes, and the 
inhabitants thereof, there shall 



INCORPORATION, 1805 



113 



[14] 

henceforth be in the said Borough, a Chairman and nine assistants, 
which said chairman and assistants, shall be a body corporate, 
in deed, fact and name, by the name and style of the "Chairman 
and Assistants of the Borough of Vincennes," and by the same 
name shall have perpetual succession, and they and their successors 
at all times hereafter, by the name of "The Chairman and Assist- 
ants of the Borough of Vincennes" shall be persons able and 
capable in law to sue and be sued, implead and be impleaded, in 
any court of justice whatever and to make and use one common 
seal, and the same to alter and change at pleasure. 

§ 3. And be it further enacted, That the said chairman and 
assistants shall on the first day of November annually be chosen 
and elected by such persons as may be possessed of any lotts 
or other lands within the Borough, and being resident therein, 
Provided always, that the said officers before they proceed to 
execute their respective offices, shall take an oath or affirmation 
that they will faithfully discharge and execute such office accord- 
ing to the best of their knowledge and understanding. 

§ 4. And be it further enacted, That the chairman and assis- 
tants or a majority of them, of which the chairman is always to be 
one, shall have full power from time to time, and at all times 
hereafter to hold a common council within the said Borough, as 
the chairman shall appoint, and to make such bye laws, ordinances 
and regulations in writing not inconsistant with the laws of this 
territory or of the United States as to them shall appear necessary 
for the good government of the said Borough and the inhabitants 
thereof, and the same to put in execution, revoke, alter and make 
anew, as to them shall appear necessary and convenient, and to 
appoint such subordinate officers as they may think necessary for 
the police of the said Borough, and for carrying this law in effect. 
And by ordinance to require such sureties from the several officers, 
and to annex such fees to the several officers of the corporation, 
and to impose such fines for a neglect of duty, or misconduct in 
office, as to them shall appear necessary, and to make, limit, 
impose and tax reasonable fines against all, and upon all persons 
who shall offend against the laws, ordinances and regulations of 



Ordering 
ruling & 
govern 
ing the bo 
rough, 



To take 
an oath. 



Their du 
ty. 



114 



ILLINOIS HISTORICAL COLLECTIONS 



Court of 
common 
pleas to 
grant tav- 
ernlicense 



Court to 
impose a 
tax on li 
cense, 



the corporation made as aforesaid, and all and every such fines to 
take, demand, require and levy of the goods and chattels, of such 
defender, to be appropriated to the use and benefit of the inhabi- 
tants thereof. 

§ 5. And be it further enacted, That it shall and may be law- 
ful for the said chairman and assistants to commit every person or 
persons, offender or offenders, who by law they are or shall be 
authorised to commit to jail, or imprison to and in the jail of the 
county of Knox, and the keeper of the said jail is hereby author- 
ised to receive such person so committed and him her or them to 
keep in close and safe custody, until thence discharged by due 
course of law. This act to be in force from and after the passage 
thereof. 

JESSE B THOMAS Speaker of the House 

of Representatives, 
B. CHAMBERS, President of the Council. 
Approved August 24th, 1805. 

William Henry Harrison. 

CHAPTER xvin. 

AN ACT to amend an act respecting Tavern License. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the 
same, That the powers heretofore vested in the court of general 
quarter sessions of the peace, under an act of this territory, en- 
titled 'An act respecting tavern license,' shall be hereafter vested 
in the several courts of common pleas of each county, that per- 
mission granted by said court to any person for keeping a tavern 
shall be sufficient to authorise the same without a license from the 
governor for the term of one year thereafter. 

§ 2. And be it further enacted, That the said court shall at the 
time of granting any license under this act demand of and from 
the person obtaining the same any sum not exceeding twelve dol- 
lars, which they may deem reasonable, taking into consideration the 
stand where such tavern is to be opened, which sum so received, 
shall, by the said court be paid to the county treasurer, for the 



COURTS, 1805 



115 



[15] 

use of the county, and the said court shall also demand of such 
applicant, one dollar for the use of the clerk. 

§ 3. And be it further enacted, That the courts of common 
pleas respectively at the time of granting any license, or permission 
under this act, shall make out a list of rates for the government 
of the tavern keepers applying for the same, and it shall be the 
duty of the clerk of the common pleas at the time of granting 
such license or permission under the direction of the court afore- 
said, to make out a copy of the said rates, and deliver the same 
to the person applying for permission or license to keep a tavern, 
who shall set the same up in the most public room in his or her 
house, and any person who shall presume to sell at any higher 
rates than those made by the court or without having first set up 
his rates as aforesaid, for every such offence, shall forfeit and 
pay twenty dollars for the use of the person suing for the same, 
before any justice within this territory. 

§ 4. And be it further enacted, That all laws and parts of laws 
which come within the purview of this act, be, and the same are 
hereby repealed. 

§ 5. And be it further enacted, That so much of the law 
aforesaid, as prevents the keepers of taverns within this territory 
from keeping accounts with any customer for any other or greater 
sum than three dollars, be, and as to any tavern accounts hereafter 
to be contracted, the same is hereby repealed. This law shall com- 
mence and be in force from and after the passage thereof. 

JESSE B THOMAS Speaker of the House 

of Representatives, 
B. CHAMBERS, President of the Council. 
Approved August 24th, 1805. 

William Henry Harrison. 

CHAPTER xix. 
AN ACT Organizing Inferior Courts. 

§ 1. Be it enacted by the Legislative Council and House of 
Representatives, and it is hereby enacted by the authority of the 



Court to 
make out 
a list of 
rates, 



Penalty, 



Repealed 



Allowing 
tavern ke 
epers to 
keep ac 
counts. 



Powers of 
the sever 
al courts 



116 



ILLINOIS HISTORICAL COLLECTIONS 



vested in a 
court of 
common 
pleas. 



To consist 
of three 
judges. 



Shall hold 
six sessions 
annually. 



At what 
times, 



same, That from and after the first day of January next, all the 
powers vested in and exercised by the courts of common pleas, 
courts of general quarter sessions of the peace, and the orphans 
courts in this territory shall be, and they are hereby invested in a 
court to be established in each county under the name and style 
of the court of common pleas. 

§ 2. And be it further enacted, That the said court shall con- 
sist of three judges, any two of whom shall form a quorum, to be 
appointed and commissioned by the governor, for and during 
good behaviour. 

§ 3. And be it further enacted, That the said court shall hold 
annually six sessions, at three of which business properly belong- 
ing to the common pleas and quarter sessions, only shall be trans- 
acted, but the said court at all the said terms shall be open for 
any other kind of business usually transacted in either of the said 
courts. 

§ 4. And be it further enacted, That the terms of the said 
court for business heretofore cognizable in the court of common 
pleas, and such as has been and is now cognizable in the court of 
general quarter sessions of the peace of a criminal nature, shall 
commence at the following periods, to wit : for the county of Dear- 
born, on the second Mondays in January, May & September ; for 
the county of Clark, on the first Mondays of January, May and 
September ; for the county of Knox, on the last Mondays of 
March, July and November ; for the county of Randolph, on the 
third Mondays in April, August and December ; and for the 
county of St. Clair, on the last Mondays in April, August and 
December, yearly, and every year. 

§ 5. And be it further enacted, That the three other annual 
sessions of the said courts shall be holden for the county of 
Dearborn, on the first Tuesdays in March, August and November ; 
for the county of Clark, on the first Mondays in March, July and 
November ; for the county of Knox on the first Tuesdays in 
February, May and September ; f