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Full text of "Pope's digest, 1815"

ILLINOIS STATE LIBRARY 



Call No. 




Accession No 



EDWARD J. HUGHES 
Secretary of State and State Librarian 
(55469) 



COLLECTIONS 

OF THE 

ILLINOIS STATE HISTORICAL 
LIBRARY 



EDITED BY 

THEODORE CALVIN PEASE 
UNIVERSITY OF ILLINOIS 



VOLUME XXVlll 



ILLINOIS 
STATE HISTORICAL LIBRARY 



BOARD OF TRUSTEES 

Laurence Marcellus Larson, President 

Oliver Rogers Barrett, Vice President 

Paul Steinbrecher,* Secretary 

Lloyd Downs Lewis, Secretary 



Paul McClelland Angle, Librarian 
Theodore Calvin Pease, Editor 



ADVISORY COMMISSION 

EvARTS Boutell Greene 

William Edward Dodd 

James Alton James 

Andrew Cunningham McLaughlin 

Theodore Calvin Pease 



Died January 13, 1937. 



LAW SERIES 

VOLUME III 

POPE'S DIGEST 

1815 

VOL.1 



COLLECTIONS OF THE ILLINOIS STATE HISTORICAL LIBRARY 
VOLUME XXVIII 



LAW SERIES, VOLUME II! 



POPE'S DIGEST 

1815 

VOL. I 



Edited with Introduction by 

FRANCIS S. PHILBRICK 

Professor of Law, University of Pennsylvania 



3 1 129 00204 0863 



Published by the Trustees of the 
ILLINOIS STATE HISTORICAL LIBRARY 

SPRINGFIELD, ILLINOIS 



148040 
ILLINOIS STATE LIBRARY 



Copyright, 1938 

BY 

The Illinois State Historical Library 






! 



PREFACE 

In the introduction to volume 21 of the series in which the present 
volume is issued, the laws of Indiana Territory (1801-1809), and 
to a considerable extent those of the Northwest Territory (1788- 
1800), have already been critically examined. In a later volume of 
the Collections the statutes of Illinois Territory (1809-1818) will 
be considered. The present work, volume two of which will appear 
subsequently, selects for special study one chapter in the statutory 
history of the last named territory. In the later complete study of 
that legislation the matters now discussed will, to a large degree, not 
again be dealt with. On the other hand, a number of important 
matters are now barely referred to, a fuller treatment being post- 
poned for the later volume, where the Digest will merely supply 
illustrations in an account of the entire legislative process of which 
it was but a phase. 

The footnotes in the present introduction contain various refer- 
ences to manuscript sources in county offices. In more than a dozen 
of these an examination has been made of substantially all the 
records which seemed likely to yield data that would be useful in 
understanding the statutory development of Illinois Territory and 
the administration of justice therein. In the later volume full 
acknowledgment will be made for the friendly aid received by me 
in my examination of these local records. As their utilization for 
the present volume has been only casual, no further acknowledgment 
is now made. 

I must, however, here most gratefully repeat the acknowledg- 
ments made in the introduction to my earlier volume to Professor 
Theodore C. Pease, the general editor of these Collections, and to 
Miss Ernestine Jenison and Miss Mildred Eversole of the editorial 
staff of the Library. The latter have again checked every citation 
to printed sources, every statement of fact, every judgment. For 
their extreme accuracy, which has saved me from several most 
egregious blunders and from very many more of a minor nature, I 
am immeasurably indebted. Miss Catherine Gregory, Miss Marybel 



Eversole, Miss Natalia Belting and Miss Olive Lilly have assisted 
in seeing the volume through the press. 

I also owe particular acknowledgments to the University of 
Pennsylvania, whose Research Committee granted one hundred dol- 
lars to aid me in the preparation of the present volume. This money 
was expended in payment for the assistance of Mr. Harry Levin, a 
member of the Pennsylvania bar, and Mr. Herbert Shenkin, a 
student in the University of Pennsylvania Law School ; each of whom 
examined the various revisions of Illinois Statutes from 1815 to 1845, 
with reference to certain topics and certain questions, for the purpose 
of checking my conclusions respecting the relation of the later re- 
visions to that of 1815. I acknowledge with much appreciation their 
cooperation, and the generous assistance of the University. 

In setting up the current volume the general style of the original 
edition has been followed as nearly as possible. Original pages have 
been reproduced line for line, including running heads and page 
numbers. Typographical errors in the copy have also been included. 
For numbering the text as a whole the drop folio has been used. 
Index and bibliography will appear in the second volume. 

Francis S. Philbrick 



CONTENTS 

Introduction ix 

Pope's Digest 1 

Index 325 



POPE'S DIGEST 
1815 

Special Introduction 



SPECIAL INTRODUCTION 

POPE'S DIGEST AND ITS SUCCESSORS 

Nathaniel Pope^ is assured of the enduring gratitude of Illinois 
for the service he rendered in enlarging its boundaries as originally 
set by Congress. Nevertheless, aside from that act, and notwith- 
standing that his name is on the map of the state and cannot be erased 
from any complete story of its past, his historical importance is 
negligible. As a federal judge, also, he is one of the great number 
vi^ho do their work well, yet are individually forgotten, their services 
only collectively important. 

He was born in Louisville, Kentucky, on January 5, 1784 — a 
brother of Senator John Pope of that state (and father of Major 
General John Pope of the Civil War), under whom he studied law 
— and removed to Missouri when barely over twenty years of age. 
It was while a resident of Ste. Genevieve that he practiced in Ran- 
dolph County in the courts of Indiana Territory, and almost cer- 
tainly only after his appointment as secretary of Illinois Territory, 
certainly not long before this,^ that he removed to Kaskaskia.^ From 
the first his outstanding abilities were evident.* March 7, 1809, was 

^See note 90 in biographical appendix to introduction to the statutes 
of Indiana Territory, Illinois Historical Collections, vol. 21. In addition 
to authorities cited below see John Reynolds, Pioneer History of Illinois 
(the edition of 1887 is always the one cited hereafter), 393-395, and My 
Oivn Times (edition 1879, always), 86, 104, 106, 128-129, 134, 154; E. B. 
Washburne, Ednvards Papers (Chicago Historical Society's Collection, vol. 
3), 122-123 n., 245, 249; S. J. Buck, Illinois in i8i8 (Centennial History of 
Illinois, introductory volume), index; Newton Bateman and Paul Selby, 
Historical Encyclopedia of Illinois, 1:428; J. L. McDonough, History of 
Randolph, Monroe and Perry Counties, 40; Louis Houck, History of Mis- 
souri, 3:12-13, 67 n. ; Biographical Directory of the American Congress, 
1 77 4- 1 927, 1422. 

2C. W. Alvord, Illinois Country (Centennial History of Illinois, vol. 1), 
428, says he had been a resident of Illinois about a year. But he had for 
several earlier years resided at Ste. Genevieve, he took the oath of office 
there, and his commission describes him as "of the Louisiana Territory." 

3It seems probable that Kaskaskia remained his home throughout life 
(though necessarily he spent much time in Springfield). His home was 
there in 1825 and in 1841. C. W. Alvord, Governor Edivard Coles 
(I. H. C, 15), 191; U. F. Linder, Reminiscences of the Early Bench and 
Bar of Illinois, 124. The Biographical Directory of the American Con- 
gress, 1774-1927, 1422, says he removed to Sprin^eld. 

*See Philbrick, Laivs of Indiana Territory (I. H. C, 21), cxcui-ir, 
n. 4; cxcvii, n. 4. 



X ILLINOIS HISTORICAL COLLECTIONS 

the date of his appointment as secretary.^ At Kaskaskia he issued 
on April 28, 1809, his proclamation^ declaring the counties of Ran- 
dolph and St, Clair, theretofore of Indiana Territory, to be counties 
of the Illinois Territory, and before the arrival of the governor 
(June 1 1 ) proceeded far in the organization of the territory. 

Some relationship with Michael Jones,' the incorruptible and un- 
relenting land commissioner whose investigations of fraudulent Kas- 
kaskia titles were so fatal to several of the Edgar-Morrison faction,* 
and also marriage with Lucretia Backus, daughter of the other land 
commissioner, Elijah Backus,^ made him necessarily, in those days of 
virulent personal politics, an enemy of that group of local magnates 
who had for years dominated the politics and monopolized the honors 
and profits of office in Randolph County. They knew and respected 
him for his abilities, and many times he had served them in litigation ; 
William Morrison, in particular, had taken him up as soon as his 
initial appearances in the courts attested his superior competence. 
But they feared such abilities in the service of Michael Jones, and 
greatly dreaded his own possible elevation to the governorship. 
Alvord states that Pope had been advanced by Michael Jones as the 
rival of Rice Jones.^ To sustain the remarkable reputation gained 
by the latter (before his murder in December, 1808) no tangible evi- 
dence remains;^ to substantiate Pope's solid powers evidence is 
abundant. Very likely he was inferior to the other in natural bril- 



lU. S. Senate, Executi've Journal, 2:119, 120; N. W. Edwards, History 
of Illinois, from 1778 to 1833; and Life and Times of Ninian Edivards, 28. 
The commission appears in E. J. James, Territorial Records of Illinois 
(Illinois State Historical Library, Publications, no. 3), 3. He took the 
oath of office on April 25, at Ste. Genevieve. Ibid. 

^James, Territorial Records of Illinois, 3-4. 

^Alvord, Illinois Country, 428. I do not know what the relation was. 

*See Philbrick, Lav^s of Indiana Territory (/. H. C, 21), Ixxxiii et seq. 

sRandolph County Clerk, Marriage Record, 1809-1822, 205; Randolph 
Circuit Clerk, Court Record, 1814-1824, 61. The former says he was 
"married to one of the Children and Heirs" of Backus; the latter speaks 
(September 18, 1815) of Pope and Lucretia (named) as "the Heirs." 

^Illinois Country, 428. 

^See Philbrick, Laivs of Indiana Territory (/. H. C, 21), ccliii-iv. 
Details on the murder (ibid., index) and of the political conditions of 
which it was part, will appear in the introduction to another volume of 
the Illinois Historical Collections dealing with the statutes of Illinois Terri- 
tory. 



INTRODUCTION n 

liance, audacity, and magnetism. The fear of Pope harbored by the 
Edgar-Morrison faction appears from a letter written in May, 1809, 
to Matthew Lyon, of Kentucky,^ who had been their friend in pro- 
moting in Congress the separation of the Illinois country from In- 
diana Territory. They besought Lyon to prevent Pope's appointment 
as governor, "an event he is very sanguine of taking place." 

"Pope," they continued, "is a perfect Boy — destitute of stability 
experience or Judgment & from his conduct since his appointment as 
Secretary we are sorry to add (from our respects to his Brother) 
deficient in candor propriety & Justice. He is son-in-law of E Backus 
consequently violently vindictive against all who oppose the destruc- 
tive politics of that man. — United to which is the strong disposition 
he betrays in every act to shield his conduct from the investigation 
it merits — young Pope is a Boy without the talents to assume the 
reins of Government, as the violent partizan of a sinking faction, 
engagd by the ties of consanguinity to its leader and desirous of prop- 
ping its declin'g power — is altogether an unfit Character to become 
our Governor, and we assure you with truth that if a measure of that 
kind is taken by the Genl Government, the evident dislike of the peo- 
ple to any one tinctured with the politics of the murdering faction 
(as they are called) will drive them instantly to arms. . . We re- 
quest you, Sir, to take into consideration the contents of this letter 
and strain every nerve to prevent the appointment of Nathl Pope 
to the Governt of the territory, for which event we understand a 
petition has gone on signed by the secretarys new officers a Pack of 
mercenaries created for that purpose. . . Oppose uniformly all home 
appointments. . . . [Such] appointments will be not only disagree- 
able in a great degree but productive of civil commotion." 

Such freedom of reference to the "murdering faction" was ended 
by Michael Jones's libel suits against Edgar and the two Morrisons. 
Whether Pope was in fact an active candidate for the governorship, 

iMay 12, 1809. There are various copies of this letter at Chester, in 
the Miscellanies Box in the office of the clerk of the Circuit Court. No two 
are identical. They emanated from Judge Backus, to whom Lyon loaned 
the original in Washington. It was an exhibit in the libel suits brought 
by Michael Jones against Edgar and the two Morrisons; see Philbrick, 
taius of Indiana Territory (I. H. C, 21), xciv, n. 2. 



xii ILLINOIS HISTORICAL COLLECTIONS 

or, if so, whether he had any chance whatever of appointment, 
does not appear from available sources of information. 

Though he was not selected, the governor named — Ninian Ed- 
wards of Kentucky — was a protege of his brother. Senator Pope; 
and Daniel P. Cook, soon to be powerful in the state and the son- 
in-law of Governor Edwards, was his nephew.^ Probably politics 
did not seriously affect his professional relations with those who 
had so strongly opposed him — in the effervescent politics of that day 
there was a vast amount of the same emotionalism that characterized 
the contemporaneous poetry of romanticism. It is true that for some 
time in 1809 Pope and William Morrison did not speak,^ and that 
autumn John Rice Jones represented Morrison in the Randolph 
court ;^ but as early as June of the next year Pope again appeared 
as counsel for John Edgar.* His practice was continuous and active 
(mainly in the Randolph courts) despite his secretarial position. 
In 1813 he was reappointed secretary,^ but resigned after his elec- 
tion on September 5, 1816 as delegate of the territory in Congress," 
where he took his seat on December 2. 

Historians have recognized his exceptional services in this office to 
the state. By the argument that extension of its northern boundary 
from a little above the latitude of Lake Michigan's southern tip'^ 
to its present position would attach the future state's commerce 
to Ohio and Indiana and make for the perpetuity of the Union,* 
he secured a great addition to the area of the state. Upon his own 
initiative and responsibility — but, according to Governor Ford, with 
the "unqualified approbation" of the people of Illinois — he also in- 
duced Congress to divert to the schools three-fifths of the amount 

lAlvord, Illinois Country, 429; T. C. Pease, Frontier State (Centennial 
History of Illinois, vol, 2), 93, 

2Pope to Edwards, November 9, 1809. Washburne, Edwards Papers, 40. 

=*Randi;lph County, Circuit Clerk, Court Ricurd iSlo-iSii, 489. 

*Ibid., 494. Usually the names of counsel are not given. 

6June 1 — U. S. Senate, Executive Journal, 2:347, 348. 

^Washburne, Edwards Papers, 126. 

''^About ten miles north. Pope added (Alvord's calculations, Illinois 
Country, 459) about 8,000 square miles, including Chicago. 

^An7uds, 15 Congress, 1 session, 1677; Thomas Ford, History of 
Illinois, 22-24. 



INTRODUCTION xiii 

originally appropriated for roads.^ Under current standards it seems 
indubitable that Illinois needed schools more than roads in 1818; 
yet it seems strange that a circuit-rider of the southern counties should 
have asserted that their roads needed no betterment, being excellent 
by the generosity of nature! Probably Pope, fearing that his fel- 
lows in Congress and the citizens of the state might not appraise with 
the same enlightenment as himself the relative handicaps of mud and 
illiteracy, tactfully pointed his argument with this appeal to local 
pride. 

Appointed late in 1818 as register of the land office at Edwards- 
ville,^ he had occupied that office less than five months when he 
turned it over to Edward Coles. This followed Pope's appointment 
on March 3 as United States district judge for Illinois,^ which posi- 
tion he filled with great credit until his death on January 22, 1850.* 

It required some years for him to rid himself of the political 
ambitions that beset all the judges of his time; ambitions which pre- 
maturely ended the promising judicial careers of some, and which 
marked others — as in the case of Sidney Breese — with an unbecom- 
ing restlessness that embarrasses one in estimating their characters. 
His family connections^ and his prominence would have made it dif- 
ficult — indeed, until the local slavery issue was settled, impossible — 
for him to escape from the personal groupings that dominated politics. 
Though, like many others, not drawn to Governor Coles, he seems 

iThat is, 3/5 of 5 per cent of the proceeds of United States lands 
within its borders. In the case of Ohio and Indiana this road fund of 5 
per cent had been devoted, according to Ford, to the improvement of roads 
leading to those states. See Ford, History of Illinois, 20; Buck, Illinois in 
l8i8, 226; Alvord, Illinois Country, 460. 

^Appointed November 30, 1818. U. S. Senate, Executive Journal, 3:143, 
150. Whereas he was described in 1809 as "of the Louisiana Territory" and 
in 1813 as "of Kentucky" {ante, x, n.l ; xii, n.5), he was now identified as "of 
Illinois." 

3U. S. Senate, Executive Journal, 3:184. 

^Illinois State Journal, January 23, 1850. Five adult children, two sons 
and three daughters, who survived him are named in a petition of Novem- 
ber, 1850, for the sale of realty belonging to his estate — Madison County, 
Probate Clerk, (Land) Record A, 16. He registered three indentured blacks 
in Randolph County in 1810, and two others in 1819 and 1821, at least the 
first three for long terms (seventeen to twenty-three years) — County Clerk, 
Marriage Record, 1S09-1822, 1-25; Register of Negroes: B, 31-32. 

^In addition to those noted ante, xi, xii, he was an uncle of Alexander 
P. Field. Linder, Reminiscences, 215. 



siv ILLISOIS HISTORICAL COLLECTIOSS 

to have been deddcdiy of the andslavcrv party/' In 1S24 and 1828 
he was an unsuccessful aspirant for nominatioa as United States 
senator.* In 1826 be seems to have been desirous of appointment to 
the Supreme Court of the United States, whoi the creatiMi of a new 
dicait was vadcr coosideratioa.' He had probably been on the 
bendi a scwe of jcai» before he dearly withdrcvr from politics.* 

Aside from the turbulent campaign of 1822-1824 over the slavery 
issue, party pniKiples and party divisions were nonexistent in Illinois 
politics until about 1S30. Electioas turned upon cmnbinations of 
the personal following of ooe and another leader, united by family 
coonectioDs or by a community of animosities or ambitions. Lcadcr- 
sfazp rested iqxn persooality, and socoetimK this was remarkable in 
its qualities, good or ill; but demagoguery, low and crude, was its 
hdxtBaL, almost its invariable, manifestatioa in politics. The or^y 
vital force therein revealed is an appetite, seemingly imiversal and 
insadaUc, for oSce. It was an appetite natxiraL indeed inevitable, 
BB a uMumun ity that saw men of meager years, and less experience, 
^aced in some of the most exalted o£Bces. political and judicial, of 
^e new stare, either simply for lack of better men or because no 
Ugher qualificatioa was deemed requisite than the good-fellowship 
dbaracteiistic of. and therefore dear to, the frontier. It is perhaps 
not too Dnjust to infer from the political correspoadence of the day* 
that Pope's politics rose little or not at all above that of the crowd 
in point of imnciple. In success he fell below many men of seemingly 
idi'.'-t: rrs He profited by family coanectioos — s the Edwards 
r* : : ' " jence he passed hoax politics. He could not, however. 
: -?-:nality. In view of his early prominence, one 
--- : irlv safely a^ume that it was not unpleasing.* 

Dut evtr : : " " :-:?Tidly to him convey no impression that he 
was of : T T :i- t ir.i convivial type adapted to frontier politics; 



^A:^ - :- Ei--s'i Ctlej 'I. H. C. IS), S«, 362-3«. 

=Pti ■- - ■ :■--■ ::: ::^i2-. 



as -de- 



rS'TRODUCTIOS xr 

and certainly he had no whit of the charm and oratory that =ia£i 
Daniel P. Cook and John McLean giants for a day.^ 

According to "General" Linder, almost wir sole repository of 
anall talk about the bench and bar, 'Tie was pretty serere npoo the 
lawyers who practiced in his court, and was not tcxt choice as to 
the words he used when he saw fit to reprimand AEm."* We hare 
the same authority for a statement that Stephen T. Logan once 
said that Judge Pope possessed "the finest legal nmid he erer knew.'*^ 
At least there is no doubt, for that b the traditioa of the bar, tkat 
he displayed good sense, dignity, and ability as a judge. His absolute 
probity was never qoestioacd erai by violent political enemies. V-ry 
few of his opinioos survive.* 

Judge Pope kept an executive register, by no means perfect, as 
secretary of the territory.* He also nw^Mlrd tfae fiist digest, (d 
the statutes of Illinois, volume one of wfaidi is n|iiii<i.J at tke pceseat 
work. 

THE REMSED L.\\V5 OF 1815 

The laws of the Northwest Territory were necessarily part of the 
laws of its ofepring by partitioo, Indiana Territory; * and those 
of the latter, so far as not peculiarly local, similarly 
force in Illinots until, and except in so far as, mndrhrd- 
ihc governor and judges of Illinois Territt»y %qiim ed only sn 

^Linder, who says he was, wkea a yn—e ■■■» "* ""^ •* f^ -^ ^- 
jodgc tells only one asecdoce tkat isdkatts aodb qoafidcs: Rrmixiscnces, 
126, 216. 

-Ihid.. 215. 

^''Aiid this i< entitled to tbe mum respect irnm the fact that Jadge Pape 
aevcx showed Logan ranch favor in his covrt.'* IHd^ 217. 

*On June 2. 1903, portraits «rf several fedexal jwiges were tM i iAJ ia 
the reooks td the federal coort in Sprmgfield. In a chancttiiiaciaa af Jn^Be 
Pc^e made oa this occasion by General Alfred Orendw^ he stafees Aoft 
"Judge Drammood. oa his ap poinfcn t as Grcait Jadge, iiMai i i l the caact 
papers covering the time of Jadge ^pe's sorice ta Chkaga, where ^uet 
were all destroyed in the great iir*; a»d Aat he had been aUe «• find 
aaly twa dccfriaas, poblished in Mtieanr's Rep»rts, Details r^ar^bg the 
jntCse's descendants are given by General Oieadortf. See alsa Jadge J. M. 
Scott's (^aracteiizatioa. Sufrrme Cnrt •/ lUi^is, 266^ 

>Accesaibie. in print, ooir in James. TrrritrrzMi Rectrds »f IWi m mit , af 
which one (pp. 3-41) b this ■'Exeeutrre Regiacer. 1S0»-1S1*.' _ 

*See Philbrick, Leer •/ ImJiMMM Terrilmrj (I. H. C, 21). e, cn-m. 
ov-vii, and ether passages there referred tOL 



xvi ILLINOIS HISTORICAL COLLECTIONS 

"opinion" to that effect as their first legislative act.^ It is, indeed, 
generally stated^ that the Indiana statutes were "adopted," by this 
expression of opinion, in 1809. It may appear pedantic to remark 
that, strictly speaking, such laws could not have been "adopted" under 
the terms of the Ordinance of 1787, since that restricted legislative 
power to the selection and adoption of statutes of the original 
thirteen states. However, that restriction had been repeatedly vio- 
lated in both of the older territories and in Michigan^ (and was to 
cause further trouble in Illinois) ; sometimes of absolute necessity, 
sometimes — as in the constant adoption of Kentucky laws — under 
the dictates of good sense. In view of this experience it is clear that, 
had the Indiana legislation not necessarily remained positive law in 
Illinois, it would have been absurd to deny to the latter the priv- 
ilege of adopting statutes originally framed precisely for the inhabi- 
tants of that district while under a different government.* But 
"adoption" was unnecessary: the continued vitality of the Indiana leg- 
islation was not dependent thereon. The first Assembly of the ter- 
ritory, under the second and representative stage of government, had 
of course full power to adopt any foreign statute, or to declare what 
laws were in force without adoption, within the territory, and it 
exercised this power by a law of December 13, 1812. This act, 
again quite unnecessarily, declared to be then in force in Illinois all 
enactments of Indiana Territory, of a general nature, that were 
in force in the latter territory when Illinois Territory came into ex- 
istence, together with legislation for the latter by its governor and 
judges during its first stage of government.^ Not content with this 

ijune 13, 1809 — Alvord, Laivs of the Territory of Illinois, 1809-181 1 
(Illinois State Historical Library, Bulletin, vol. 1, no. 2), 1. In a similar 
case the governor and judges of Indiana Territory had "resolved" to be, 
and then "declared" they were, governed by an enactment of the Northwest 
Territory that had itself been "adopted" in violation of the Ordinance — 
Philbrick, Laius of Indiana Territory (/. H. C, 21), cxxiii, n. 5. 

2So, for example, by Alvord, Laivs of the Territory of Illinois, 1809- 
j8ii, xi; and by myself, Laius of Indiana Territory {I. H. C, 21), cv. 

sSee Pease, Laws of the Northwest Territory (/. H. C, 17), xx-xxii, 
xxiv-xxx; Philbrick, Laws of Indiana Territory (I. H. C, 21), cvi-x. 

^As noted in a similar case in Indiana Territory, work last cited, 
cxxiii, n. 5. 

^Post, 33. Here and elsewhere references are to original page num- 
bers of Pop^s Digest, reproduced page for page in this and a forthcoming 
volume of the Collections. 



INTRODUCTION xvii 

general pronouncement they repeated it with respect to ferries, specif- 
ically, later in the same month. ^ 

Aside from the confusion respecting legal facts that this legisla- 
tion exhibited, it is of course not to be criticized. Imperfect as was 
the adjustment of the earlier legislation to the peculiar situation 
of the Illinois country, it had either worked reasonably well or had 
been ignored f and at any rate it was all the law there was. The 
first Assembly of the state was to show less good sense. 

More exactly, the act of 1812 just cited, declared effective in 
Illinois all laws "passed by the Legislature of the Indiana Territory, 
which were in force" therein on March 1, 1809, and had not been 
repealed by the governor and judges of Illinois Territory. And 
here Pope had much reason to thank his predecessors in codifica- 
tion, John Johnson^ and John Rice Jones,* who prepared the 
revised laws of Indiana Territory of 1807. For when those sound 
lawyers were instructed to "reduce into one code" the laws in force 
in Indiana,^ they went to the Assembly for further powers, pro- 
ceeding under new instructions to "revise and reduce," and "make 
the said laws ... as complete as the nature of the case will admit 
of."® Not alone did inconsistencies and gaps abound in the statutes 
with which they had to deal. Above all there was the perplexing 
fact that among the laws then effective in Indiana were various enact- 
ments of the Northwest Territory — some of them very fundamental 
— that had never been modified, repealed, or reenacted by the Indiana 
legislature, yet were actually operative; and others of apparently 
identical status that were ignored.'^ If they did not solve all of 
the resulting puzzles they did solve most of them ; their work was 
enacted by the Assembly, all laws theretofore of authority were re- 
pealed, and their revisal declared to be of exclusive authority.^ 
Had their labors not intervened, the Illinois act of 1812 would have 

'^Post, 260, act of December 25, 1812. 

^See Philbrick, La-is of Indiana Territory (I. H. C, 21), cxv-vii, cxxvi, 
clxxv-ix, clxxxiv, ccxxiii. 
^Ibid., cxii. 

^Ibid., xvii, ccxxxviii-xlii. 
^Ibid., H3— Ausiiist 26, 1805. 
^Ibid.. 217— December 4, 1806. 
''Ibid., ciii (with passages cited in n. 1), cvi. 
^Ibid., 608— September 19, 1807; post, 35. 



xviii ILLINOIS HISTORICAL COLLECTIONS 

been very insufficient to cover the law effective in Indiana, and 
therefore in Illinois, and Pope would have been confronted with the 
baffling problems that had beset them. 

Altogether the Indiana contribution constitutes well over two- 
thirds of Pope's work. Most of this Indiana matter is from the 
revision of 1807; a little from the legislation of 1807-1809. And 
of course very much of the Indiana contribution goes back to the 
Northwest Territory. 

The Indiana revision, though in the main a mere selection and 
physical rearrangement of matter, deserves much praise,^ even aside 
from the great difficulties of inclusion and exclusion above referred 
to. According to the title-page of Pope's work the laws were therein 
"revised and digested," and of course, to a degree, they were; but 
his revision as compared with that of 1807, is more mechanical, 
harmonizing less, by rearrangement and excisions, original incon- 
sistencies, inadvertencies, and errors. It is regrettable that neither 
he nor the Assembly took note of the difficulties encountered by the 
Indiana revisers and the consequent action of the legislature in con- 
ferring upon them powers adequate to overcome those difficulties. 
Pope might have asked for such, and possibly he did. Had his digest 
been an official work, prepared under adequate powers of revision 
and then enacted by the Assembly, it should have been more satis- 
factory. Under the circumstances he cannot be held responsible 
for most of its defects; and even if he could be, a severe judgment 
of his labors would be unjustified ; for even today we have progressed, 
in the art of statutory compilation, so very little toward the ideals 
of authenticity, clarity, and accessibility that the defects of Pope's 
work are still characteristic of similar compilations in most of our 
states.^ Nothing appears in the acts of the Assembly save a belated 
resolution of December 24, 1814, when the work must have been 
substantially completed, that whereas the laws should be printed for 
public information, and a revision thereof would greatly lessen the 
expense of publication, it was expedient "to procure some person" 

iSee Judge Gross's opinion, quoted in Philbrick, Laivs of Indiana Ter- 
ritory (I. H. C, 21), cxii, n. 5. 

2See the remarks of F. J. Stimson, probably of all men the one best 
qualified to speak on this subject, in his Popular Law-Making, 353 et seq. 



INTRODUCTION xix 

to make such revision, prepare an index, and provide marginal notes. 
A statute of the same date recited that "whereas this Legislature 
have contracted with Nathaniel Pope Esq for revising the laws of 
this Territory making an index to the same, and superintending the 
printing thereof," he should be paid $300 as soon as the work should 
be completed.^ We shall see that Governor Ford followed a similar 
course in procuring a reviser, whose work was nearly done before 
action of the legislature, in 1844. Who actually engaged Pope, with- 
out authority despite the recital of the statute, does not appear. His 
revision was, then, printed by authority and at the expense of the 
Assembly;^ but it was not enacted into law, nor were inconsistent 
statutes repealed. 

Whatever his powers, his problem was to present the law as it 
existed at the date of his compilation. This presented some constitu- 
tional difficulties, which, of course, no powers could have enabled 
him to avoid ; and also involved consideration of a great number of 
cases of legislative inadvertency or ineptness with which, in general, 
he seems to have felt equally unable to deal. Both problems are 
illustrated by comparing the laws of September 17, 1807 and De- 
cember 19, 1812, regulating the courts of Common Pleas, the acts 
of December 19 and 24, 1814, regulating county courts, and the 
federal statute of March 3, 1815, all printed in the revision.^ A 
comparison of the last cited act with the territorial statutes of De- 
cember 13 and 22* preceding, which assumed power in the terri- 
torial legislature to define, and regulate the performance of, the 
duties of the judges appointed for the territory by the United States, 
is still more interesting, since it reveals a constitutional problem that 
caused much feeling and difficulty at the time. This is not, however, 
the place to discuss in detail such matters. This digest of 1815 is 
only a stage in the development of the territory's law from 1809 



^December 24, 1814 — Laivs of 1814 (1921 edition), 86, 99. 

Ht was printed some time before December 18, 1815, for see the act 
of that date in Laivs of 181^-1816, 10. 

^Pope's Digest, 2: 305, 311, 345, 348, compared with 2: xvii, particularly 
§ 14. 

*Pop^s Digest. 2: 333, 343; compare J. M. Palmer, Bench and Bar 
of Illinois. 1:9, 10. 



XX ILLINOIS HISTORICAL COLLECTIONS 

to 1818, and, as such, its relation to what preceded it and followed 
it in the territorial period can best be considered elsewhere.^ 

Sufficiently illustrative of the narrowness with which Pope con- 
strued his duties are the two statutes just cited dealing with the 
county courts; one of December 19 and the other, "supplemental" 
thereto, passed only five days later "to remove all doubts" regarding 
the meaning of the first! Pope simply reprinted them. Of course, 
his work not being enacted by the Assembly, he could not properly 
correct the error in one section of the first act which the supple- 
mental act left uncorrected.^ Such an example of original obscurity, 
hasty after-thought, and final error is not to be imagined unique 
in the legislation of the territory; on the contrary various similar 
instances could be given, some of them of great importance. The 
great majority of defects in the statutes of the territory illustrate 
merely the haste and carelessness of the Assembly's action (or the 
printer's labors). As these are simply reproduced by Pope when 
present in the enactments included in his digest, and many others 
are in laws not so included, this subject, also, seems preferably re- 
served for discussion in its entirety elsewhere. 

On the other hand Pope did not by any means, in all cases, con- 
fine himself to mere reproduction of the laws as they were passed 
by the Assembly. For example he omitted entirely the curious, and 
historically important, preamble to a statute of December 25, 1812, 
relating to ferries,^ properly omitted portions of that act repealed 
by a subsequent act of 1814,* retained its unnecessary declaration 
that ferries established by the legislature of Indiana Territory re- 
mained "established ferries in the Illinois Territory unless repealed," 
but omitted one section of the amending act of 1814 (§2) that seems 
to be an essential part of the law of the territory at the date of his 
compilation. His understanding of his powers therefore remains 
somewhat baffling. If he had the power to deal with enactments 

iJn a later volume of this series, which will deal with the statutes of 
Illinois Territory. 

2In § 2, Pope's Digest, 2: 346, the first Monday of September is set 
for the beginning of term in both Gallatin and Madison counties; for the 
latter it should have been October. 

^Lmvs of i8i2 (1920 edition), 40, and post, 260. 

4Lrtiw of 1814 (1921 edition), 50. 



INTRODUCTION xxi 

as he dealt with the one just cited by way of example, he could and 
should have produced a digest far more nearly perfect than was 
his actual performance. 

The first thing that anjone will notice who opens this volume is 
that Pope began the practice of topical-alphabetical arrangement to 
which the lawyers of Illinois have now been accustomed for more 
than a hundred years. At the time of its appearance the work's 
importance was increased by the fact that it collected, so far as deemed 
consistent and still in force, the laws of 1812, 1813, and 1814. These 
enactments — though presumably all accessible in manuscript, for a 
time, at the county seats/ and many in newspapers- — had not all 
appeared in book form ; nor did they so appear until fifteen years 
ago.2 

lAlvord's complete collection of the laws of 1809-1811, cited anf^^xvi.n. 1, 

was based upon prints in the Louisiana (formerly Missouri) Gazette of 
1810-1811, in which all the laws appeared, and manuscript copies of all save 
five laws that were still preserved (1905) in the office of the circuit clerk 
at Chester. On the difficulties that arose in early years from the absence 
of printing presses, and the methods used to make the statutes known, see 
Philbrick, La-zvs of Indiana Territory (I. H. C, 21), cxiii-xiv. 

21 have not checked these, to determine the completeness and accuracy 
of their publication. 

^All were printed in 1920-1921 by the Boston Book Company and 
Chipman Law Publishing Company of Boston, from original manuscript 
records in Springfield. A law of May 21, 1810 provided for newspaper pub- 
lication of advertisements required by statutes — Alvord, Lazvs of the Ter- 
ritory of Illinois, 1809-181I, 27. No law required similar publication of the 
statutes themselves, though doubtless many did thus appear in print (in- 
cluding all of those of 1809-1811 — ibid., xiii). A law of December 10, 1813 
fixing temporary places for holding courts in certain counties provided that 
members of the legislature should carry home with them copies thereof, to 
insure its knowledge by the judges and others concerned — Laivs of 1813, 48. 
"Distribution" and printing of the statutes of 1812 were provided for by 
law (Laivs of 1812, 55, 56; La^vs of 1813, 62), and they were published in 
Russellville, Kentucky, in 1813. Though printing of the statutes of 1813 was 
provided for {Laws of 1813, 63, 69), in fact they were never separately 
printed until 1920. No provision was made for printing completely the 
statutes of 1814, but only for their inclusion (so far as proper) in Pope's 
work — ante, xix, n. 1 ; and they were first completely printed in 1921. One 
act only, that establishing the supreme court, was published (with accom- 
panying non-statutory documents) in 1814 at Kaskaskia. An act of De- 
cember 18, 1815 {Laws of 1815-1816, 10, cited ante, xix, n. 2) relieved of 
ineligibility for office persons who had violated the unti-dueiini,' ac. uf Apiil 
7, 1810 (Alvord, Laws of the Territory of Illinois, 1809-1811, 25) prior to 
the date of the supplementary act on the ground that, having first been 
published in Pope's revision, many had remained in ignorance of it. It is 
hard to believe this of the dueling law, but easy to believe it of many other 
itatutes. 



xxii ILLINOIS HISTORICAL COLLECTIONS 

Little information is readily accessible relative to the early statu- 
tory revisions. The occasional source citations in the notes to the 
revision of 1874 are restricted to the revised statutes of 1845. It 
may be that some account of still earlier compilations, and a slight 
attempt to indicate their relation to the work of Pope, may in- 
terest those who examine this volume. 

STATUTORY REVISIONS FROM 1815 TO 1845 
The constitution of 1818 made the governor and judges of the 
Supreme Court a council of revision,^ but only to the extent that 
the judges shared the duty of vetoing new^ enactments. The first 
judges elected were, as Governor Reynolds said, "all young men, 
and had not that long practise at the bar that was necessary to give 
standing and character to their decisions"^ — or, still less, reliability 
to their revisal of the statutes of the state. The first Assembly of 
the state, however, was to entrust them with this responsibility. 

Governor Reynolds also says, apparently referring to them, that 
"the material for the bench was not as good as it might be."^ This 
was preeminently true of William P. Foster, who had never studied 
law, never held his court, was a swindler and worse, and disappeared 
after collecting his first year's salary.* It was likewise true of 

^Article III, section 19. 

2My 0^l:n Times, 137. 

^Ibid.. US. 

*Ford, History of Illinois, 28-29. Reynolds' silence on this, op. cit., 137, 
is typical of him and of American politics. All other accounts rest, as re- 
gards his character, on Ford: Palmer, Bench and Bar, 1:20; W. L. King, 
"A Pioneer Court of Last Resort," Illinois Law Review, 20:573, 574, 580. 
He had, when elected, been in Illinois only about two months: Buck, Illinois 
in l8l8, 305. He was elected an associate justice on the first ballot (over, 
among other rivals, William Wilson and Charles R. Matheny) — Senate 
Journal, 1818, pp. 18-19, October 8. According to / Illinois (Breese), xvi, 
he resigned on June 22, 1819; according to 2 Illinois (I Scammon), vii, on 
July 7. The former is correct — E. B. Greene and C. W. Alvord, Governors' 
Letter-Books 1818-1834 (I. H. C, 4), 17-18— the latter date being that of 
Wilson's appointment as his successor. I find in the county records of Craw- 
ford County that on June 12, 1819, he signed the writ for a special Circuit 
Court of July 7, over which, in fact, Thomas C. Browne presided — Circuit 
Clerk, Circuit Court Record, 1817-1818, 7; and a copy of his appointment 
of Jesse B. Browne, on April 19, 1819, as clerk of the Circuit Court is in 
the records of Edwards County — Circuit Clerk, Circuit Court Record, A 
(1815-1827), 52. His registration of a slave in Randolph County on August 
14, 1818 appears in Marriage Record, i8og-i822, 19, and is the evidence by 
which Mr. Buck corrected the earlier belief that he had not been in Illinois 
even that long before his election to the Supreme Court, October 8, 1818. 



INTRODUCTION xxiii 

Thomas C. Browne, though fortunately to a vastly less degree, and 
more as regards professional attainments than personal character; 
though in the latter respect he compared poorly with Reynolds and 
with his later colleagues, Lockwood and Chief Justice Wilson. He 
was generally regarded as knowing so little law that according to 
a tradition of the bar he never wrote an opinion for the court dur- 
ing his thirty years of service. This, however, is incorrect. The 
judgment passed upon him by Palmer is, however, certainly sound: 
"he delivered no opinion upon any important subject and did no 
act worthy of being remembered ... he did nothing for the re- 
form of the law or the improvement of the statutes."^ He had the 

^For a discussion of the tradition referred to, see Scott, Illinois Supreme 
Court, 82. Palmer's judgment is in Bench and Bar, 15. The name is Browne; 
always so signed by him in the records of the circuit courts over which he 
presided. In December, 1826 a committee of the Senate was appointed to 
report upon the work of the Supreme Court since its reorganization in 
January, 1825. They reported 13 cases dismissed, 50 otherwise disposed of 
with opinions. Of these last Lockwood had written the opinion in 23, Smith 
in 10, Wilson in 1, Browne in 1, and 15 were per curiam. Senate Journal, 
1826-1827, pp. 98, 104. The estimates of Judge Browne expressed by Judges 
Caton, Scott, and Cartwright, and by Palmer and Trumbull are collected 
by Mr. King, op. cit., 575. Governor Ford characterized him thus: "Brown 
was a fine, large, affable, and good-looking man, [with] a tolerable share 
of tact and good sense, a complimentary, smiling and laughing address 
to all men, and had been elected and continued in office upon 
the ground that he was believed to be a clever fellow." History of Illinois, 
213. See also, for biographical data, Reynolds, My Oivn Times, 158, and 
Pioneer History, 368 n., 390, 392-393. Governor Reynolds says he had 
studied law in Kentucky, and was one of the first settlers in Shawnee- 
town. He represented Gallatin County in the lower house of the General 
Assembly in 1814, and the upper house from 1816 to 1818; an act granting 
him full pay for the session of 1817-1818, despite his late arrival, being 
passed by the Assembly — Laivs of 1817-1818, 50. 

He first appeared as an attorney in the Common Pleas of Gallatin 
County in June, 1813— Circuit Clerk, Order Book, 1813-1818, 1 et seq., and 
Circuit Clerk, Order Book, 1813, 1 et seq.; and also in the Common Pleas 
of Johnson County in June, 1813 — County Clerk, Commissioners' Record, A : 
3. He was not, however, formally admitted to the bar, in Gallatin at least, 
until later — Circuit Clerk, Order Book, 1813, 1, July 26, 1813. On December 
24, 1814, Governor Edwards appointed him district attorney for the eastern 
circuit of Johnson, Edwards, and Gallatin counties — James, Territorial Rec- 
ords of Illinois, 36 (and reappointed him on January 13, 1817 — ibid., 44). 
He produced his commission to the circuit courts of the three counties in the 
following summer — Johnson County Clerk, Commissioners' Record, A: 163, 
June 26; Gallatin Circuit Clerk, Order Book, 181 3, 150, July 5; Edwards 
Circuit Clerk, Circuit Court Record, A (1815-1827), 1, July 11 ; and in White 
County (created in December, 1815) the next winter — County Clerk, 
County Record, A: 4, February 13, 1816. At the same time, in White, he 
was admitted to practice in all courts — ibid. In May, 1816 we find him 



xxiv ILLINOIS HISTORICAL COLLECTIONS 

"good sense'' which is frequently ascribed, and probably quite justi- 
fiably, to public men of the frontier period whose successes were 



practicing in Pope — Count>- Clerk, County Court Record, A: +; and in 
June he was admitted to the circuit bar of St. Clair — Circuit Clerk, Order 
Book, A (1815-1816), 55, June 9 — though he seems never actually to have 
practiced there, or in anv other of the western counties. He was admitted 
in Crawford February' 26, 1817— Count}- Clerk, Order Book. 1817, 1. 

Some of the counrv- courts, at least, having created the "office of County 
attorney or Council for the Court" — Gallatin Counrv- Clerk, Order Book, A 
(1813-1S20), 34, January 17, 181-1 — we find the County- Court of Johnson in 
June, 1816 allowing him $10 as salary as prosecuting attorney and legal 
adviser for the preceding year "agreeably to law" — Commissioners' Record, 
A: 70; and in Gallatin he evidentlv held a similar office and salarv — 
Count>- Clerk, Order Book, A (1813-1820), 139, November 20, 1816. If he 
had the common sense attributed to him by Re^-nolds and Ford he must 
surely have learned considerable law before his election to the Supreme 
Court in 1818. 

His services, as a member thereof, on the circuit were performed in 
Randolph and in the various eastern counties. 

Just before he began to serve as district (circuit) attorney he was fined 
$7 by the Gallatin County Court for contempt — County Clerk, Order Book, 
A (1813-1820), 79, May 2, 1815; and there is no evidence that it was re- 
mitted (Jephthah Hardin, fined $10 at the same time, did pay at least part 
of hli— ibid., 178). 

In the election of judges of the Supreme Court by the legislature in 
1818 he received four votes for the office of chief justice (out of fort>--one, 
Joseph Philips receiving thirt^-'four ) ; and was elected an associate justice 
on the first ballot by the highest vote given any candidate elected — Senate 
Journal, 1818, pp. 18-19, October 8. In the recon5titution nf the court by the 
Assembly in 1824, he was reelected an associate justice, again by the high- 
est vote received by any candidate — House Journal, 1824-1825, p. 170, De- 
cember 30. 

For some comparisons with John Reynolds on circuit, see post, xxvii, n. 
In Order Book, A (1819-1822) of the Gallatin Circuit Court (Circuit 
Clerk) there are six bills of exception (311, 325, 403, 435, 492, 559) to his 
rulings; in Circuit Court Record, A, of Pope (Circuit Clerk) there are 
others (June, November of 1819). An attentive consideration of these cer- 
tainly does not reveal manifest incompetence, though the docket papers 
(if in existence, difficult of access) were not examined. The records are 
often so inadequate as to suggest questions without supporting even infer- 
ences, as where we find the simple entr}-: "The Judgment rendered on yes- 
terday in this cause is set aside and the cause reinstated" (Pope Circuit 
Clerk, Circuit Court Record, A: 7, April 7, 1818). 

In 1827, when the General Assembly was considering the act regulating 
the Supreme and Circuit courts which was embodied in the code of that 
year, it was moved to strike his name from the circuit assignments ; but this 
was possibly merely politics. One of the three who voted for it (against 
fifteen) was Joseph A. Beaird, John Reynolds' relative, business partner, 
and constant supporter. Senate Journal, 1826-1827, pp. 116-117. An attempt 
to impeach him in 1842-1843 for "want of capacit}-" failed — House Journal 
and Senate Journal, 1842-1843. index s.t. "Thomas C. Browne." He served 
until the provision of the constitution of 1848 making the judges elective by 
popular vote went into effect (December 4, 1848). 



INTRODUCTION xxv 

manifestly far beyond the deserts of their other and more pertinent 
qualifications and low professional standards; though probably no 
lower than those of the bar, generally. Linder, certainly an eminently 
competent judge in such matters, characterizes him as the "Falstaff 
of the bench."^ 

Compared with these colleagues Reynolds himself was good mate- 
rial. He is not to be considered merely as "a presumptuous ignora- 
mus," as Jesse B. Thomas appraised him — far from it ; nor even as 
uniquely — perhaps not even as particularly — illiterate, for his day.^ 
At least in his later years he was a widely read and rather well- 
informed man; though his reading was probably desultory, and his 
information correspondingly superficial.^ He is another of the men 
whose careers must be explained, in large part, by the possession of 

^Reminiscences, 73. When Linder desired to secure admission to the 
bar of a friend (who had been a butcher — and, so far as Linder thought 
•worth mentioning, nothing else), he simply used Browne, a private room, 
and a bottle of whisky to attain that result. Ibid., 74-75. 

-Possibly he was a presumptuous ignoramus in 1S18, when he disputed 
with Thomas eleaion to the Constitutional Convention, or in 1822. when 
he aspired to nomination for the federal Senate, in rivalr}- with Thomas. 
From these incidents doubtless dated the latter's life-long contempt for 
him — J. F. Snyder, Adam Jf. Snyder and his Period in Illinois History 
lBl';-lBi2, 34, 167, 309. The problem of his illiteracy is difficult. Bad gram- 
mar and orthography can, of course, be illustrated by the letters and writ- 
ings of Governor Coles (long private secretary to President Madison^, not 
to mention other contemporaries more eminent. These are accepted by 
even.-one as mere slips. The question is. did Reynolds" speech and writ- 
ings truly represent his attainments in English? His speech, private and 
public, rank with frontier barbarisms and vulgarity, was apparently only 
stage "business," as even unfriendly critics have admitted — Ford. History 
of Illinois, 105; compare Snyder, Adam Jr. Snyder, 313-314; Linder. Remi- 
niscences, 148-149. His letters of the 1820"s and 1830's are studded with 
crudities of frontier vernacular, undigniiied and common ; but they van.- 
sufficiently to suggest that they, also, may have been more or less adjusted 
to recipients and purposes — Washburne. Ed-:ards Papers; Greene and Al- 
vord, Governors' Letter-Books 1818-1834 (I. H. C, \) , passim. It is well- 
nigh incredible that a man of mature years, in his middle and late thirties, 
whose attainments in grammar and orthography were truly indicated by 
these leners, could have written his Pioneer History thirty- years later, as 
John NL Peck assures us that he did, "fast as the author could scratch off 
the sheets, without anv clerical corrections." For Peck, see Alvord. Goi-ernor 
Ed^vard Coles (/. H. C, 15). 326. Snyder. Adam JF. Snyder, 319, also 
says that he "never revised, interlined, erased, or corrected a word or sen- 
tence." His books, though utterly disorderly and undistinguished, are noth- 
ing worse. 

^See Snyder, Adam W. Snyder, 304, 318 (his libran.), 321 (their in- 
timacj-). 



xxvi ILLINOIS HISTORICAL COLLECTIONS 

good sense, judgment, and acute political perceptions.^ But he 
had other good qualities. He was obstinate in efforts to improve, 
as well as to advance, himself; personally strictly honorable; kindly 
and generous in all social relations; ashamed neither of his lowly 
origin nor of his pride in rising above it; and genuinely fond of the 
people. There is no reason whatever to attribute merely to politics 
the fact that in mingling with them he showed "a continual mirth- 
fulness and pleasantry." He did not cultivate them by imitating the 
poverty of frontier dress, but dressed simply though immaculately 
as a gentleman. Nor did he imitate their license or vices, neither 
drinking liquor nor gambling (after early life) in any form.^ In 
his speech, private and public, he did share in full measure the 
crudities (but so far as appears not the illiteracy) of his uncultured 
fellows; and it is possible that he did this intentionally, for political 
ends. Of worse political vices it can at least be said that they did 
not particularly characterize him. He was no more than most of his 
prominent contemporaries a truckler or a cunning schemer in the 
game of factional combinations; and, unlike most, he was never 
sharp or bitter in political attack. Politics was his life's work, and he 
devoted himself to it even during his brief service on the bench — 
because, in his own words, "as to my standing I did not think much 
of it, as it was nothing,"^ and other offices promised more of prestige 
and money. But this was a vice of the time: as much was true of 
his colleagues Browne, Chief Justice Philips, and Chief Justice 
Thomas Reynolds; of Lockwood and Theophilus Smith, who im- 
mediately followed them ; of Pope, Breese, Ford, and many others 
who similarly gave politics preferment over their professional am- 
bitions. 

In all his political offices John Reynolds seems to have acquitted 
himself reasonably well, and competent judges have characterized 



iGovernor Ford, always a strict critic, says: "He was a man of re- 
markably good sense and shrewdness for the sphere in which he chose to 
move." History of Illinois, 106. 

2Snyder, Adam IV. Snyder, 299, 306, 314; Reynolds, My Ovsn Times. 
165. 

'Reynolds to Cook, December 30, 1824, in Edwards Papers, Chicago 
Historical Society MSS., SO: 352. 



INTRODUCTION xxvii 

his performance of judicial duties as in no way discreditable.^ We 
may safely assume that his legal attainments were meager and 
completely undistinguished. Nevertheless, his talents were certainly 
respectable, though perhaps no more. It is poor psychology to say, 
because the recollections in his hastily scribbled books are repetitious 
and amazingly rambling, that his mind was necessarily of the same 
incoherent character. Our recollections of the past are prone to leap 
and veer erratically among facts seemingly disparate and unrelated, 
though in fact united in time or by mental associations — as the 
governor's jumped from Nathaniel Pope to the manufacture of 
molasses, to a pest of green prairie flies, and then to Daniel P. Cook. 
But such a characterization of his mind would nevertheless, in point 
of fact, do it no injustice. The vice lay, not in the disorder of his 
recollections but in his indifference to the necessity of presenting 

^Whether or not a candidate, he received no vote for the office of 
chief justice, and none on the first baMot cast for associate justices. He ap- 
peared on the second, and was elected on the third — Senate Journal, 1818, 
pp. 18-19, October 8. In the Assembly's reconstitution of the court in 18'24 
his vote on the first ballot fell little short of the requirement for election, 
but fell rapidly thereafter — House Journal, 1824-1825, p. 170, December 30. 
See post, xliii-xliv, n., on the cause. See the statements of Judge Scott, who 
knew him well: Supreme Court. 115, 141, 142, 150; Palmer, whose acquaint- 
ance with him extended over thirty years: Bench and Bar, 1:19; Snyder, ^^am 
JV. Snyder, 306, 310, 312; the statements of the last being important as those 
of a fellow-townsman whose father, an able lawyer, was very critical of 
Reynolds in some respects. Their judgments rest, in part on Reynolds' 
printed opinions, and doubtless in part on the tradition of the bar, which 
is of the greatest importance. An examination of the records of the Cir- 
cuit Court in various counties justifies, I think, the following statements. 
The fines imposed by Judge Reynolds upon prisoners found guilty of bat- 
teries (or pleading guilty — and, unlike most judges, he made a sensible 
distinction between the two), and likewise his fines for contempt, were 
decidedly heavier than those imposed in the same counties by Judges Wil- 
son and Browne. He was more punctilious than some colleagues (Judges 
Browne and Smith) In certifying by signature the clerk's dally record of 
proceedings. The record was better kept under him than under Browne In 
the same counties. The business he disposed of was In some cases notably 
greater, and not, as compared with the showing of any colleague, slight. 
No more under him than under others do we find that the court, not being 
fully advised, took time to consider. Motions in arrest of judgment and for 
new trials, and bills of exceptions, do not particularly characterize the terms 
at which he presided, and were certainly less numerous than in the case of 
Judge Browne. No special vacillation is discernible in the face of chancery 
bills and demurrers, for example, one by E. K. Kane — Madison Circuit 
Clerk, Circuit Court Record, B (1816-1819), 394. In short, so far as the 
court records show on their face (as to the docket files see ante, xxlv, n.), 
there is no evidence of special weakness. 



xxviii ILLINOIS HISTORICAL COLLECTIONS 

them in ordered form. His conversation and speeches were of pre- 
cisely the same undigested character.^ All his productions bore the 
imprint of an undisciplined, slovenly, unsystematic mind. No man 
could have been less fitted for the duties of a codifier of the law. 

The chief justice, Joseph Philips, was the only member of the 
first court to whom we can confidently ascribe real ability and legal 
knowledge.^ 

Participation in the vetoing of legislation must inevitably have 
placed the judges, though probably to their entire satisfaction, in 
the very center and eddy of politics.^ Moreover to approve acts as 
a council, and later, possibly, consider their constitutionality as a 
court, involved great dangers of embarrassment.* 

As already indicated, the first General Assembly, very likely 
largely as a result of the urgings of John Reynolds, undertook a com- 
plete revision of the statute-book and its replacement by new enact- 
ments. On January 25, 1819, a joint committee was appointed "to 
examine into the now existing laws, passed by the Legislature of the 
Illinois Territory, and report such as in their opinion may suit our 
condition ; and also to report such amendments and alterations as 

iSnyder, Adam W. Snyder, 304, 313-314. 

2See Reynolds, My O-zvn Times, 158; Ford, History of Illinois, 29; 
Palmer, Bench and Bar, 1:13; Hooper Warren, in Alvord, Governor Ed- 
ivard Coles (/. H. C, 15), 321, 345. The name was always signed by him 
as Philips. (In the records of the circuit courts the judges' signatures regu- 
larly occur at the end of each day's proceedings, to certify the record's 
accuracy.) He was appointed secretary of the territory on December 17, 
1816, to succeed Pope — James, Territorial Records of Illinois, 47. As Pal- 
mer says, all writers agree that he "was an admirable selection" for the 
Supreme Court. Hooper Warren, a man of strong likes and dislikes, ad- 
mired him "for his great talents and the urbanity of his manners." He was 
elected by the General Assembly, as chief justice of the court, on October 
8, 1818 by thirty-four out of forty-one votes cast on the first ballot — Senate 
Journal, 1818, pp. 18-19. He resigned his judgeship July 4, 1822 — / Illinois 
(Breese), xvi, to become a candidate for governor. After his defeat he 
returned, according to Hooper Warren and Governor Ford, to Tennessee. 
In Breese's Reports there are a few cases decided during his term of oflice. 
A captain in the regular army, he had served in the War of 1812. David- 
son and Stuve, History of Illinois, 300. On May 27, 1817 he registered in 
Randolph County a black servant, indentured for forty years — County Clerk, 
Marriage Record, 1809-1822, 19. 

^Mr. King, op. cit., 579 n., quotes one of their messages. Others, of 
1826-1827, are referred to post, Ix, n. 3. 

■^Governor Reynolds simply says that it "was found, on experience, 
to be unwise," and he regarded it as one of two notable imperfections of 
the constitution of 1818 — My Oivn Times, 134. 



INTRODUCTION xxix 

maj' be necessary to give them operation under the state government." 
Within three days eleven important bills had been "examined" and 
recommended for enactment. The House dispensed with second and 
third readings of the lot, passing the bills on first reading. The 
Senate, at first, was a trifle less precipitate. And so the matter pro- 
ceeded during two months. The result was the Laws ("Code" is 
the usual name) of 1819. There could have been no research, no 
critical consideration, no revision, that justified the title of the work, 
or complied with the duties put upon the committee. Doubtless the 
little it did was the best of which it was capable. The members 
were Abraham Prickett, Edward Humphreys, and Risdon Moore 
of the House, and Thomas Roberts and Joseph Kitchell of the 
Senate. Only Moore and Prickett had had even the slight experience 
of serving as county judges. None, so far as appears, had the slight- 
est legal attainments.^ 

Reynolds' account of the undertaking and its accomplishment is 
as follows: "The whole statutory code of laws was revised, re- 
enacted, and printed in a volume. The members worked day and 
night, and procured the assistance of able and learned men to aid 
them in remodeling the old statutes. Mr. Kane . . . rendered valu- 
able services on this important subject. The judges of the supreme 
court [who] by the constitution were required to attend the ses- 
sions of the legislature, being, in fact, a component part of that 
body, were also present,^ and assisted all in their power in this work. 

^House Journal, 1819, pp. 16, 17, 22; Senate Journal, 1819, pp. 13, 
19-20, 21. The first eleven bills, so precipitately reported, dealt with the 
sources of law in Illinois (see post, 33 et seq.), abatements, aliens, appren- 
tices, arbitrations, promissory notes and inland bills of exchange, foreign 
attachments, absconding debtors, attorneys and counsellors at law, authenti- 
cation of the acts and records of federal courts, and the enclosure and 
cultivation of common fields. 

2The "attend" and "present" must be understood as meaning that, in 
order to exercise their veto powers {ante, xxii, n. 1) it was a practical neces- 
sity that the judges be near at hand. But one is safe in assuming that dozens 
of leading citizens came to town every court-week and at every session of 
the Assembly, and equally likely that the judges (who really had little 
to do) were actual listeners to the debates of the legislature. The proof, 
either of the incompetency or of the indifference of the members of the Coun- 
cil, is ascertained by the results and by the absence of veto messages ; com- 
pare those of 1827, post, Iviii et seq. Ninian Edwards, Lockwood, Smith, and 
Wilson were, as a group, far stronger in legal talent than Shadrach Bond, 
Philips, and John Reynolds; and quite as much stronger in appreciation of the 
difficulties of the problem. 



XXX ILLINOIS HISTORICAL COLLECTIONS 

"I had an intimate acquaintance with the statute laws, and found 
them scattered through many years, and in many detached and sepa- 
rate books, so that it was with much difficulty and research that 
any one knew what were the laws in force; they were also often 
contradictory and conflicting. I had become friendly and intimate 
with the members of the General Assembly, and urged on them the 
propriety and necessity of a revision of all the statutes of the Terri- 
tory, and to repeal all laws not found in the revised code. Many good 
men considered the revision too great a task, during the session of 
the legislature — but labor then, to me, was the best amusement. The 
General Assembly agreed to it, and accomplished the work with 
honor and credit to themselves, and benefit and advantage to the 
public."^ 

The end — the preparation of an official digest, and the repeal of 
all other laws — was excellent. But neither in the Assembly nor the 
Supreme Court were there men as competent for the performance 
of such a task as were those who made the revision of 1827-1829. 
We may safely minimize, if not the zeal of Judge Reynolds, at least 
his individual contributions as an author, since, despite the large- 
ness of his intimations, he explicitly claims the authorship of but 
one title — that on juries. His innovations in that, however, were 
highly desirable, and permanent.- We may also confidently believe 
that the judges (Browne and Reynolds are supposed always to have 
done this in performing their judicial duties) procured the assist- 
ance of members of the bar. Whatever was Kane's contribution, 



^My Oivn Times, 136-137. "Many," as applied to the statute-books 
to be consulted, is of course an exaggeration. 

^He wrote of it in 1855: "This act has been revised and improved, 
but the substance of it remains the law to this day. I witnessed, in my prac- 
tice in the courts before this act was passed, that the sheriffs possessed the 
power to summon what jurors they pleased. This gave these officers un- 
bounded power in the administration of the laws, and on many occasions 
good jurors could not be summoned on the spur of the occasion. 

"The act of 1819 required the county court to select from the tax-book 
twenty-four petit jurors to attend the court, and also a grand jury of twenty- 
three good and lawful men. This method enables the county courts to 
select the proper jurors." Ibid., 176. 



INTRODUCTION xxxi 

it cannot add to his reputation as an exceptionally able lawyer/ 
There are no further clues to the authorship of the enactments that 
make up the code. There seems to be no good reason to believe that 
Reynolds' statement of his excessive labors upon it is an exaggeration, 
or to minimize the result of his zeal in bringing about its prepara- 
tion. His claim to an intimate acquaintance vrith the statutes may 
also be safely conceded. All lav^^yers then studied the statute-book, 



^Governor Ford says that "his talents were both solid and brilliant" — 
History of Illinois, 24; Governor Reynolds, that "he was a profound lawyer 
and an agreeable and eloquent speaker" — Pioneer History, 410; Snyder, 
who doubtless gives his father's estimate, that "he was a fluent and able 
writer and eloquent speaker, a profound lawyer of brilliant talents, and a 
courtly gentleman of amiable disposition" — Adam W. Snyder, 69. The last 
two books cited give biographical details; his political career can be traced 
in Pease, Frontier State. He left so few personal records that Mr. Pease 
characterizes him as "the enigma of early Illinois politics" {ibid., 94). 
F. B. Dexter states that he left Yale in his senior year (1812-1813), studied 
law in New York, settled in Nashville, Tennessee, in 181S, and "very 
soon" removed to Kaskaskia — Biographical Sketches of the Graduates of 
Yale College, 1805-1815, 6:578-579, following Oneida Historical Society's 
Transactions, 1881-1884, no. 2, p. 90; and Governor Reynolds gives the 
same course of migration, but 1814 for the date of his arrival in Illinois. 
The dates of both are wrong, and the time for legal study in New York 
or Tennessee was certainly most limited. He was born June 7, 1796, not 
1786, as sometimes stated (the Biographical Directory of the American 
Congress says 1794) ; and GJovernor Ford is therefore correct in remarking 
that he was only twenty-three when the "principal member" of the Con- 
stitutional Convention. 

A few data not to be found in print may be given here. According to the 
clerk's record, he appeared in the Randolph Common Pleas in September, 
1813 — Circuit Clerk, Court Record, 1813-1819, 126; and also on March 2, 
1814, ibid., 90, and June 22, 1814, Court Record, 1814.-1824., 17. In March, 
1814, he was entered on the roll of attorneys in the Johnson Common 
Pleas (County Clerk, Commissioners' Record, A: 119), and on March 28 he 
was admitted to the same court in Gallatin (Circuit Clerk, Order Book, 1813, 
40). From that time onward he appeared occasionally in Union and John- 
son, of the eastern counties, but was particularly active in Randolph and 
all the western counties northward, practicing both in the inferior and higher 
courts. In the letters for administration of his estate (Randolph County 
Clerk, Wills Record, A: 144) his death is stated to have occurred "on 
or about" (the almost invariable official formula) December 11, 1835; 
Dexter, Reynolds, Snyder, and the Biographical Directory of the American 
Congress (1928) all give it as December 12. He left four children, all 
under fourteen years of age when his widow was appointed guardian in 
April, 1837: Charles D., Elizabeth K., John R., and Louis McClane — 
Randolph County Clerk, Probate Record, 1832-184.I, 165. On December 
6, 1816 he registered in Randolph one negro indentured servant, for forty 
years — County Clerk, Marriage Record, 1809-1822, 17. 



xxxii ILLINOIS HISTORICAL COLLECTIONS 

whatever their attainments in the common law or lack of facilities 
to study it; and he had had a year in which to apply it as a judge, 
after several years of practice.^ His capacity to improve the statutes 
in general, might, however, well be doubted ; and is proved by the 
volume so far as we assume his responsibility therefor. Had there 
been time for a thorough revision for which anyone could be deemed 
responsible, certainly some of its characteristics — its defective ar- 



^My own inclination was, at one time, to adopt the general depreciatory 
opinion of him, and to assume that he represented only poor clients who 
could procure no other counsel. In December, 1816 he advertised that he 
would handle such cases gratuitously; and Dr. Snyder alleges that his 
services were "largely" rendered to the poor, or to political friends unable 
and unwilling to pay fees — Snyder, Adam IV. Snyder, 306. But I have 
found him extremely active in the courts, both before and after that date, 
and constantly as counsel for clients certainly not paupers. Suffice, here, 
to specify that in the Monroe Circuit Court of July, 1817 (Circuit Clerk, 
Circuit Court Record, /: 78) he represented William Morrison in a fore- 
closure proceeding; that at the November term he was appointed by Jesse 
B. Thomas to act as prosecuting attorney in the absence of Charles 
R. Matheny {ibid., 86) ; and that in the St. Clair Circuit Court he was 
similarly appointed by Judge Thomas in October, 1815 and October, 1816 — 
Circuit Clerk, Order Book, A (1815-1816), 10, 99. In the Monroe circuit re- 
cords of April, 1818, there is a simple but very acceptable bill for specific 
performance, drawn by "Reynolds" ; probably by John, rather than Thomas, 
who, though admitted to the Madison bar in November, 1817, nowhere 
appears in the Monroe records unless here, whereas John very frequently 
does. Daniel P. Cook decreed performance of the contract. Circuit Clerk, 
Circuit Court Record, I: 88, 104, 105, 106, 108, 109. 

Reynolds says that in 1814 he established a law office in Cahokia ; 
"had a press of business all the time from 1814" onward; and that, by 
being "exceedingly industrious and active" he attained, after "repeated 
efforts and many failures," to "less pain and more success" in practice. 
My Own Times, 109, 110; compare 165. These statements are certainly 
accurate. He appears as an attorney in the St. Clair Common Pleas as 
early as August, 18H — Probate Clerk, Orphans' Court, I (1796-1817), 115; 
though his formal admission was not discovered. Only William Mears was 
more active in the lower courts of that county in 1816-1817 — Museum, 
County Record, I (1798-1817) and County Record, II (1817-1821), passim. 
In Randolph he was admitted to the bar on October 16, 1815 — Circuit 
Clerk, Court Record, 1815-1823, 22. He was rather active in that county 
in the Circuit Court, and in Monroe in all courts; the Madison records 
have been lost by their custodians. 

Though perhaps evident from the text, I may explicitly state that as 
my data for testing the man and his books have grown, so has my respect 
for him. Without desiring to be dogmatic, I am inclined to believe that 
the stories attached to him as an eccentric character, in political campaigns, 
have led historians to do him much less than justice. 



INTRODUCTION xxxiii 

rangement, the gross incompleteness of many of its chapters — might 
seem independent evidence of his predominant influence in its com- 
pilation. But that time was lacking. Such defects must be re- 
garded as the sins of omission of all concerned, though they did 
not lessen Reynolds' satisfaction with the volume. One may safely 
conclude that not only the authorship of Judge Reynolds but also 
the benefits derived from his labors were very limited ; the latter 
opinion being based upon the general character of the product. Any- 
one who compares it with the code of 1827 must appreciate the 
vastly greater merits of the later volume. 

Reynolds' characterization of the confused and contradictory state 
of the laws is justified. But the same might be said of the task that 
alwa3's confronts revisers; and with increasing justice as the bulk 
of the law increases with which they must deal. As Brayman said, 
in 1845, in commenting upon the task that had confronted him: 

"It were to be expected, that the early enactments which proceeded, 
first from the Territorial, then from the State Government, would 
be crude, imperfect and inharmonious. They were not adopted to- 
gether, as a distinct body of statute law, nor with any view to their 
connexion or consistency with each other; but hastily produced . . . 
as they needed them."^ 

But this ignores the successive efforts to introduce such consistency, 
notably those of 1827. Of these efforts, under the state, the code of 
1819 was first. The work- never gave satisfaction, and is of slight 
significance in the evolution of the Illinois statute-book. 

The main facts regarding Illinois legislation are plain enough. 
The line of evolution runs from the enactments of the Northwest 
and Indiana territories through the "Revision" of 1807, Pope's 
"Digest" of 1815, the "Codes" of 1827-1829, the "Revised Laws" 

^Re-vised Statxitrs of 184.5, ix. Governor Ford said much the same 
thing of conditions in 1827 — History of Illinois, 32. I believe he was 
right, rather than his critic in Palmer, Bench and Bar, 1 :23. Of course 
it is always a matter of degree. The problem was more complicated in 
1874 than in 1845, and is still greater today. 

-An excessively rare volume. The original edition (Kaskaskia, 1819) 
contained 388 pages, an index of 58, a list of errata, 2, and the constitu- 
tion of the state, 22. 



xxxiv ILLINOIS HISTORICAL COLLECTIONS 

of 1833, and the "Revised Statutes" of 1845, into the statute-book 
of today. The code of 1819 appears as a collateral and abandoned 
effort, though a close examination might possibly reveal that the 
labors of its compilers were to a slight — but assuredly not to any large 
— extent useful to the compilers of its successors. That the present 
statutes (of course, vi^ith great additions of new subjects, and vast 
expansion of the old titles) derive in large part from the code of 
1827-1829 is generally known. Nevertheless the statements of Judge 
William L. Gross, the most thorough student of the old books, 
respecting the volumes of 1807 and 1815 are strictly accurate. Of 
the former he wrote, in 1869: "Very many sections in this old book 
will be instantly recognized as a part of the law as it is in force 
to-day, and sometimes whole pages appear almost word for word 
as we have them now." And of the work of Judge Pope: 

"The similarity of this book to the present statutes is much more 
striking than the resemblance in Jones' Revision . . . the entire plan 
and arrangement of the statutes of Illinois — taken as a whole — re- 
main at this moment in the shape that Judge Pope impressed upon 
them."^ 

To return, then, to the code of 1819. The main sources of its 
contents, according to Governor Ford, but quite incorrectly,^ were 

^Introduction to Eugene L. Gross and William L. Gross, Index to All 
the Laios of the State of Illinois (Springfield, 1869), v, vi. 

"^History of Illinois, 31. Of course the statement would almost cer- 
tainly be true if taken as a reference to the ultimate sources of the terri- 
torial statutes. Of thirteen of the laws adopted by the governor and judges 
from 1809 to 1811, for example, six were taken from Kentucky and two 
from Virginia, three from Georgia, one from South Carolina, and one from 
Pennsylvania. 

Otherwise it is incorrect. An examination of seventy-four instances, 
chosen haphazardly and occupying half the volume shows that thirty-one 
may be excluded from Ford's category of "general" legislation — namely, 
acts appropriating funds for the year (344), and authorizing a loan (16) ; 
creating counties (113, 267, 268), altering their boundaries (320), or fixing 
their governmental seats (74) ; authorizing a special term of a particular 
court (102) ; granting authority to specific officers in special cases (12, 
266) ; fixing the salaries of certain officials (347) ; declaring certain streams 
navigable (25, 73) ; leasing a saline (7) ; authorizing a specific lottery 
(310), a specific ferry (104), the establishment of certain toll bridges 
(80, 86, 298), the damming of a certain stream (296), the improvement of 
particular roads (297) ; granting corporate franchises (103, 116, 299, 305) ; 
granting immunity or aid to particular individuals, communities, or in- 



INTRODUCTION xxxv 

the legislation of Kentucky and Virginia. Ninian W. Edwards 
states, on the contrary — and on that precise point, with substantial 

stitutions (75, 115, 122, 297, 298, 300). Of the remaining forty-three 
"general" acts, twenty-three are reprints of earlier territorial enactments 
(almost all of these from the Indiana revision of 1807) with few altera- 
tions. These acts declared the basic English common-law of the state (3) ; 
regulated apprentices (4) ; authorized aliens to hold land (6) ; regulated 
abatement of suits (6), licensing of attorneys (9), dower (12); authorized 
affirmations by Quakers (13) ; dealt with frauds and perjuries (14) ; regu- 
lated depositions (17), registration of deeds (18), fencing of lands (23), 
stallions running at large (26), marriages (26), perpetuation of testimony 
(69), arbitration (71), taverns (77), timber trespasses (84), vagrants (88), 
interest on money (106), vice and immorality (123), paupers (127), prac- 
tice in the higher courts (139), and grist mills (264). Only very rarely 
is there an alteration that is notable — as where the recording act omits a 
provision of earlier statutes that declared valid, deeds of Illinois land 
executed outside the state in conformity to local requirements. Of the other 
twenty general acts, eight dealt with subjects of which there was abundant 
local experience, and most of which had been repeatedly dealt with in the 
prior legislation of the territory — discovery and development of salines 
(114), elections (90), appointment of justices of the peace (22), valuation 
of taxable property (313), official fees (321), and salaries (349), duties of 
sheriffs and coroners (109), organization of the militia (270). There was 
no need to borrow such laws in 1819; and they were probably, in fact, 
merely thorough reconsiderations of the local laws, rarely presenting funda- 
mental substantive alterations, though such were present in the first two 
laws named. Foreign legislation may have affected the revisers, but they 
certainly did not borrow the acts, bodily, from the Kentucky or Virginia 
statutory compilations that would most likely have been accessible to them: 
namely, the Acts of the General Assembly of Virginia of a Public and 
Permanent Nature (2 volumes) of 1803-1808, the Virginia Revised Code 
of 1814, or William Littell's Statute Lanv of Kentucky, 1792-1817 (5 vol- 
umes). A second batch of the twenty acts, nine in number, dealt with new 
subjects: the election of presidential electors (101) ; the mode of filling a 
vacancy in the office of governor (74) ; the duties of the secretary of state 
(87) ; provision of official seals (16) ; suppression of counterfeit bank 
notes (81) ; remission of Illinois statutes to the governors of other states 
(105); regulation of school lands (107); grants of authority to clerks of 
courts to administer oaths (348) ; and to county commissioners to license toll 
bridges and turnpikes (300). Upon some of these (the first five, particu- 
larly — local experience was probably an ample source for the others) 
the legislators might well have consulted the enactments of other states; 
but what laws were actually copied, if any — and no such source was found 
in Virginia or Kentucky — seems of little interest, because the statutes were 
probably much alike in all the states. This leaves only three enactments 
of general character, real interest, and widely variable treatment else- 
where, that were not wholly or substantially reproductions of earlier 
Illinois legislation. They dealt with the subjects of the negotiability of 
bills and notes (3), the support of illegitimate children (261), and relief 
of insolvent debtors (301), Of these no literal source was discovered in 
the Virginia and Kentucky compilations above cited. 

It is assumed that the rest of the volume would show substantially 
similar results. 



xxxvi ILLINOIS HISTORICAL COLLECTIONS 

accuracy — that the Assembly, in this revision, "re-adopted, with but 
few exceptions, the acts at that time in force, adapting them to the 
provisions of the State Constitution ; and," — but this last statement 
is quite incorrect — "as a sj'stem, the laws thus modified continued, 
with but few alterations, until" after 1830.^ The statement in 
Palmer's Bench and Bar- is, simply, that "an attempt was made 
in 1819 to revise the laws of the state." This is unexceptionably 
correct. Governor Ford tells us, further, that the attempt (in his 
belief one of substitution, and not revision) was so unsatisfactory 
that: "For many sessions afterwards, in fact until the new revision 
in 1827, all the standard laws were regularly changed and altered 
every two years, to suit the taste and whim of every new legislature. 
... A session of the legislature was like a great fire in the boundless 
prairies of the State; it consumed everything. And again, it was 
like the genial breath of spring, making all things new."^ Though 
great dissatisfaction undoubtedly existed, and though doubtless 
Governor Ford knew this as a memory of the bar, these statements, 
like the other one just quoted, are nevertheless very inaccurate. 

The statutes in the code were printed chronologically; the easiest, 
and by old practice the traditional, method of arrangement. That 
is to say, there was no arrangement except through the index. As 
that was far from perfect,* this must have been one cause of the 
bar's dissatisfaction. Worse than that, the chapters were scrappy 
and inadequate in content. The character of the work, its general 

'^History of Illinois, 168. Ninian W. Edwards was a son of Ninian 
Edwards, sole governor of the territory and third governor of the state; 
himself a lawyer of high standing, once attorney-general of Illinois. 

21:231. 

^History of Illinois, 31-32. 

•*For example, of the first ten laws (they will suffice), one relating 
"making promissory notes, bond's, bills and writings obligatory, negotiable" 
was indexed under "notes," "bonds," and "negotiable"; though in the records 
of the time "writing obligatory" was infinitely commoner than "bond" or 
"sealed obligation"; one authorizing the sale, for taxes, of lands in Randolph 
County owned by nonresidents, was indexed under "Randolph County," 
but not under "taxes" or "revenue" or "nonresidents"; one relieving of 
militia duties Dunkards, Quakers and other religious persons "conscien- 
tiously scrupulous" (this form came down from colonial statutes) of bearing 
arms, was indexed under "Dunkards" and "Quakers," but not under "re- 
ligion," "arms," "militia," or "military service." 



INTRODUCTION xxxvii 

fate, its relation to its several successors up to 1845, can best — 
indeed only — be made clear by concrete examples. It will suffice to 
consider with some care the first thirty-four enactments. 

Three of these (relative to a loan, a toll bridge which presumably 
was never built, and a soon defunct academy)^ may be put aside. 
Of the remaining thirty-one, three were partially repealed prior to 
1827; thus illustrating the exaggeration in Governor Ford's state- 
ments, above quoted, since many of the laws under consideration 
were most certainly "standard laws," as will immediately appear. 
Of these three, one was a bit of liberalism conceding exemption to 
persons "scrupulous of bearing arms." It was repealed by title but 
reenacted in even more liberal form in 1821, reenacted again in 
1823, and once more in 1827.^ Of a second law, relating to divorce, 
repeal was only partial ; being completed, after superseding legisla- 
tion, in 1827.^ A third law, on ejectment, distress, and tenants 
holding over, was affected by legislation of 1823 and 1825, and repeal 
was consummated in 1827."* Eleven other statutes were super- 
seded by new legislation and expressly repealed by the code of 1827^ 
— the question of the relation, otherwise, of the new to the old 
legislation we may for the moment postpone. 

Of the remaining seventeen laws, six*^ dealt with subjects on which 

^CoJe of 1819, 16, 44, 48. 

"^Codc of 1819, 13; Laivs of 1821, 13; Laivs of 1823, 46. Reinstated in 
militia act of Code of 1827, 296; retained in the volume of 1829, p. 107 
(§5), in the La^vs of 1831, 96, etc. 

^Code of 1819, 35; Laixis of 1825, 169; Code of 1827, 183. 

^Code of 1819, S3; Laivs of 1823, 177, and Laijjs of 1825, 160; Code 
of 1827, 280. 

50n promissory notes, etc.. Code of 1819, 3; Code of 1827, 323. 
On aliens, Code of 1819, 6; Code of 1827, 49. On abatements, 
Code of 1819, 6; Code of 1827, 46. On dower, Code of 1819, 12; 
Code of 1827, 187. On depositions, Code of 1819, 17; Code of 1827, 179. 
On justices of the peace. Code of 1819, 22; Code of 1827, 255. On marriages, 
Code of 1819, 26; Code of 1827, 290. On ferries. Code of 1819, 28; Code 
of 1827, 227. On authentication of foreign public acts and records, Code of 
1819, 30; Code of 1827, 200. On dueling, Code of 1819, 32; Code of 1827, 
168. On change of venue, Code of 1819, 46; Code of 1827, 384. 

60n apprentices, Code of 1819, 4; Code of 1827, 59. On saline of 
Gallatin County, Code of 1819, 7; Code of 1827, 360. On sales for taxes, 
Code of 1819, 12; Code of 1827, 325. On frauds and perjuries. Code of 
1819, 14; Code of 1827, 230. On estrays, Code of 1819, s.v. "horses," 26; 
Code of 1827, s.v. "estrays," 192. On foreign attachment. Code of 1819, 
33; Code of 1827, 78. 



xxxviii ILLINOIS HISTORICAL COLLECTIONS 

there were statutes in the code of 1827, of which four contained a 
general clause repealing inconsistent legislation and one specifically 
repealed enumerated enactments.^ There is involved herein a de- 
fect which is not to be forgotten in connection with the later dis- 
cussion of that work's merits and weaknesses. For it is to be noted 
that with respect to all statutes such as the six just referred to 
(eighteen per cent of the volume as tested by our sample), the bar 
remained under the burden of consulting the volume of 1819; and 
not less — perhaps more — when warned that only "inconsistent" 
legislation was repealed. That is to say, the fundamental purpose 
of the code of 1827 (or later revisions retaining the same indefinite- 
ness) was defeated. 

There remained, then, eleven laws of 1819 (a third of all those 
under consideration) wholly outside any possible effect of the code 
of 1827-1829, which was the work of the judges of the Supreme 
Court supplemented by that of the legislature. It is interesting to 
note (prior to considering the traditional statements relative to the 
judges' work) just what were these statutes of 1819 left wholly 
undealt with in 1827. Since all purport to be general, the bar was, 
here again, bound to hold them in remembrance. On notaries the 
code of 1827 was silent; the volume of 1829 introduced an act on 
the subject and repealed the act of 1819.^ The same was true of 
county recorders.^ Four other very important laws of 1819, 
omitted in 1827, were simply reenacted in 1829: one declaring the 
sources of law in Illinois ;* one providing for state seals f one 
regulating enclosures of common fields;® one dealing with the in- 
terests of claimants of lands. '^ Nothing beyond this was done in 
1829; in other words, five of the acts of 1819 were still left un- 
provided for in 1829, and because of them the code of 1819, not 

^General clauses are found in the laws on apprentices, Code of 
lS2y, 54; salines, 360; estrays, 189; foreign attachments, 66. That on sales 
for taxes, p. 325, specifically repealed various acts. 

'^Code of 1819, 31; Code of 1829, 112. 

^Code of 1819, 18; Code of 1829, 116. 

*Code of 1819, 3 ; Code of 1829. 102. This is important because of 
its reference to English law and statutes. 

^Code of 1819, 16; Code of 1829, 155. 

^Code of 18 19, 37; Code of 1829, 69. 

''Code of 1819, 40 ; Code of 1829. 98. 



INTRODUCTION xxxix 

being repealed in toto, was still to be taken account of. Of these 
five acts one declared the Kaskaskia River to be a navigable 
stream;^ for obvious reasons its neglect by the revisers did no harm. 
Another required official reports to be made by state executive of- 
ficers to the General Assembly;^ again the omission was proper and 
harmed nobody. But this was not true of the act regulating attorneys, 
which was first taken up again, and thoroughly revised, in 1833;^ 
nor of the act dealing with boundary and division fences (duty to 
fence, specifications of a sufficient fence, etc.) which was reenacted 
in 1833 and revised in 1845;* nor of that, finally, dealing with the 
removal of fences mistakenly placed, which was reenacted in 1833.^ 

This analysis of the first thirty-four enactments of the code clearly 
shows that neither the code of 1827-1829 (for the two volumes are, 
in reality, only parts of one revision) nor the revised laws of 1833 
completely disposed of the earlier volume, by adoption or by rejec- 
tion. The work on them was too hurriedly performed ; perhaps, also, 
it would be safe to say that there were too many workers, with no 
one competent person overseeing all. 

There remains to be considered — in order further to test the ac- 
curacy of Edwards' statements — the question how far the statutes 
framed by the first Assembly were found sufficient in 1827. The 
answer can, again, best be given by referring to a few of the statutes 
already examined for the purpose of testing the contrary statements 
of Governor Ford. We find that, for the act of 1819 on "promis- 
sory notes, bonds, bills and writings obligatory, negotiable," a mass 
of tangled and dark verbiage, the judges substituted separate acts 
on bills and notes, infinitely clearer. The act on apprentices, limited 
in 1819 to whites, was not so limited in 1827, and was made far 
more complete. The same is true of the subjects of abatement and 



^Code of 1819, 25. 

^Code of 1819, 46. 

^Code of 181Q, 9 ; Revised Statutes of 1833, 99. 

*Code of 18/Q, 23, s.v. "enclosures" — which came from Indiana Ter- 
ritory, act of September 17, 1807, Philbrick, Laivs of Indiana Territory 
(I. H. C, 21), 344; Revised Statutes of 1833, 261, s.v. "inclosures" ; Re- 
vised Statutes of 184.5, 277, s.v. "inclosures and fences." 

^Code of 1819, 44; Revised Statutes of 1833, 419. 



xl ILLINOIS HISTORICAL COLLECTIONS 

dower. Exceedingly great expansion and improvements were made 
in the enactments on depositions and justices of the peace. ^ Trusts 
of land were added to the act on frauds and perjuries. An act relat- 
ing to tax sales of land in Randolph County only was replaced by 
an enactment of general incidence. It would be wearisome to the 
reader to go further. These few examples just mentioned tell the 
story for the entire volume. The effort of the codifiers in 1819 was 
clumsy. Their work was woefully incomplete in substance. But it 
was, largely, a revision of the laws of the territory as existing when 
it became a state." There were some notable revisions and new 
departures (including Judge Reynolds' contribution on juries), but 
they were only exceptions. In arrangement, also, great improvements 
were made in 1827; first, in substituting an alphabetical order of 
topics for a series of statutes in their order of enactment, and second- 



iPor the acts on bills and notes see Code of 1819, 3 ; Code of 1827, 87, 
320. The act of 1819 (p. 17), "regulating the manner of taking Deposi- 
tions," consists of a single section, and that provides merely that it shall be 
lawful for either party, on giving notice and a copy of the questions, to 
obtain a commission, etc. The act of 1827 (p. 174), "regulating the mode 
of taking depositions, and .... the perpetuating of testimony," distinguishes 
between resident and nonresident witnesses, provides for oaths, the mode of 
return, who may be commissioners, their powers, the compensation of wit- 
nesses, informalities in the deposition or in its return, and for the perpetua- 
tion of testimony. Similarly, the act of 1819 (p. 22) on the appointment 
of justices of the peace has three sections, the superseding act of 1827 
(p. 255) has thirteen. Only three sections were devoted in 1819 to the 
"speedy assignment of dower" (p. 12) ; eighteen, in 1827 (p. 183) to that 
topic "and Partition of Real Estate" (but see post, Ixx). By going out- 
side of the first thirty-four enactments various other examples could be 
given, equally striking, of the differences between the two codes. 

2In Palmer's Bench and Bar there is a chapter (xi, pp. 230 et seq.) on 
"Compilations and Revisions." It is extremely superficial, and is frequently 
inaccurate or misleading. For example, the writer says (p. 231) : "in 1827, 
certain chapters" of the code of 1819 "relating to some important subjects, 
were rewritten and improved." This requires, to be accurate and clear, 
the addition: "and the rest was neither approved nor repealed." See, for 
other quotations, similarly misleading, post, Ixv, n. 1. The chapter in Edwards, 
History of Illinois, 155-178, on "Laws of the Territory and State, from 1809 
to 1830," is an almost completely undigested and unreadable mass of statu- 
tory provisions. Judge W. L. Gross's paper on "The History of Municipal 
Law in Illinois" (Illinois State Bar Association, Proceedings, 1881, 57-101) 
is distinctly valuable; but it cites no authorities and contains a few notable 
errors. 



INTRODUCTION xli 

ly, in arranging them topically better than they were indexed in 
1819.1 

Governor Coles (1822-1826) took up the problem of revision with 
vigor. Very likely he had technical advisers in the matter, since he 
was not a lawyer ; but doubtless he drew his general inspiration 
from his political principles, or from association with Presidents 
Madison and Jefferson. He was of the cheerful opinion that the 
digests of some states had made their law so clear "that a plain 
hard working farmer may in a few minutes ascertain the law on 
any common question"; and that anybody could afford to buy such 
a compilation. In his message of 1824 he therefore besought the 
Assembly to undertake a revision that would have these immense 
advantages, "incorporating into it as much of the common law as 
practicable."' Of course he was particularly desirous of securing 
the abolishment of both the strictly legal slavery antedating the or- 
ganization of the territory and the illegal slavery that was hidden 
beneath the cover of statutes on indentures and black servants, as 
well as the extirpation of kidnaping, and importuned the Assembly 
in all three of his messages (1822, 1824, and 1826) to pass laws 
for these purposes. But in all he also urged the erection of a peniten- 
tiary, a notable reform that enlisted the powerful aid of John 
Reynolds, whose bill for this purpose (and abolishing whipping and 
the pillory) became law in 1831 — the latter appropriating too ex- 
clusively to himself the credit therefor f and in his second and 
third messages he adjured the legislature to repeal the stay laws,* 
correct injustice in the taxation of non-resident owners of land, and 
give particular attention to revision of the laws, emphasizing in 
his valedictory (when the code was in large part ready) the special 



^See ante, xxxvi, n. 4. For example, the general act of 1827, referred to 
in the text, which replaced the limited act of 1819 indexed under "Randolph 
County," appears in 1827 under "revenue." 

2Alvord, Governor Edivard Coles (I. H. C.,15), 275-276. 

^Ibid., 271, 281; Snyder, Adam W. Snyder, 78; Reynolds, My Own 
Times. 172-173; Palmer, Bench and Bar, 1:19; Ford, History of Illinois, 
108; Laivs of 1831, act of February 15, 1831, at p. 103. 

^Philbrick, Laws of Indiana Territory (I. H. C, 21), cliii, clxxi, for 
their history. 



xlii ILLINOIS HISTORICAL COLLECTIONS 

importance of the statutes on crime. ^ Perhaps he, therefore, was 
somewhat responsible for the legislative activity that Governor Ford 
deemed so excessive. 

In the session of 1822-1823 a joint committee of the two houses 
of the Assembly reported adversely to revision pending the estab- 
lishment of the Supreme Court on a permanent basis^ — the con- 
stitution having provided that the judges elected in October, 1818 
should hold office only until the end of the first session of the As- 
sembly held after January 1, 1824. Delay was wise, doubly so be- 
cause the state was then in the throes of the struggle over a new 
constitutional convention. The legislature of 1825, however, in- 
structed the judges to digest "all the statutes ... of a general 
nature," to arrange under one head all that related to the same 
subject in an "appropriate order, condensing the matter . . . but 
preserving the sense ; with marginal notes" ; and to report what had 
been repealed, and also report inconsistencies to the Assembly for 
correction, to the end of procuring "a permanent statuary code." 
They were also directed "to ascertain what statutes of England are 
now in force in this state," and to consider the expediency of print- 
ing these with the digest.^ The work was, in part, doubtless 



lAIvord, Governor Edivard Coles (I. H. C, 15), 269-271, 274, 275- 
276, 280-282, 285-286. 

^Senate Journal, 1822-1823, p. 77. The report, of December 23, 1822, 
was presented by Theophilus W. Smith, later so active as one of the re- 
visers in 1826-1827, and it is important to note his early acquaintance with 
the problems involved. The other Senate members were William Kinney 
and Thomas Sloo, Jr. — ibid., 3, 54. The House members were William 
Alexander, Alexander P. Field (also active in 1826-1827), Marmaduke S. 
Davenport, Zadoc Casey, and Abraham Cairns. House Journal, 1822-1823, 
pp. 1, 46. Smith was the only lawyer. The journals reveal nothing of 
special interest regarding the bill's legislative history. The constitutional 
provision relative to the reconstitution of the Supreme Court was article 
IV, section 4. 

^Laivs of 1825, 67, act of January 10, 1825. Zadoc Casey, to perfect 
the work, moved — and the two houses resolved — that the secretary of state 
"prepare a table comprising all the technical terms used in the acts of the 
General Assembly .... and give a definition thereof; which table shall be 
printed and attached to the laws passed at the present session." To these 
instructions George Forquer, the secretary, returned a communication whose 
contents lawyers can surmise. The joint resolution was rescinded in the 
expiring days of the session. Senate Journal, 1826-1827, pp. 181, 212, 317, 
318. 



INTRODUCTION xliii 

promptly undertaken, for at least some of the court must have fully 
comprehended its immense difficulties. 

William Wilson had followed Foster on the bench in 1819 and 
was retained, with Browne, when the court was reconstituted in 
accordance with the constitution in December, 1824; Thomas 
Reynolds^ had succeeded Philips in 1822, but was dropped, to- 
gether with John Reynolds, when the court was reconstituted ; and 
Samuel D. Lockwood and Theophilus W. Smith were elected at that 
time. Of the four members consequently charged with the duty 
of preparing the revision, Browne alone was a mediocrity; though 
Smith, despite ability with which he was generally credited, and a 



lA Kentuckian, born March 12, 1796. Governor Reynolds does not 
state when he came to Illinois. The implication in Palmer, Bench and Bar, 
1:13-14, 18, which gives biographical details, is that it was after (or 
about) 1817. A Thomas Reynolds who, in March, 1809, bought beehives 
at an administrator's sale in Kaskaskia (County Clerk, Probate Record, 
180Q-1822. 12) could not have been (unless his father, Robert, was the real 
purchaser) the governor's youngest brother, with whom the chief justice 
has sometimes been fatally confused — as by Washburne, Ednvards Papers, 
190. No other Thomas has been noted in Randolph records until in a license 
of October 29, 1817 to marry Polly McDonough ; and again in August, 
1822 as administrator of Dr. William L. Reynolds — Marriage Record, 1809- 

1822, 91; Probate Record, 1809-1822, 100, 120, 136-137. I have not found 
him practicing in 1817 in the Randolph courts; and, though the names of 
attorneys are very often omitted, the admission of new attorneys is usually 
noted (but see post, xlvi, n. 2). On August 25, 1817, he was admitted to 
practice in the Circuit Court of Gallatin — Circuit Clerk, Order Book, 1813, 
448; and on November 3, 1817, in the Circuit Court of Madison — Circuit 
Clerk, Circuit Court Record, B (1816-1819), 123. In the latter court, accord- 
ing to the record, he was pleading as an attorney in July, 1817 — ibid., 118. 
Later he is found practicing in various other counties. He was appointed a 
district (or circuit) attorney by Governor Bond, appearing as such in 
Randolph and Union counties in April, 1819 and April, 1820, respectively — 
Randolph, Circuit Clerk, Court Record, 1813-1829, 271, Court Record, 1815- 

1823, 184; Union, Circuit Clerk, Order Book, A (1818-1822), 33. 
The latter county, later, had Reynoldses from an early time (with 
abundant Johns and Thomases), but none so far back. He was chief 
clerk of the House in the assemblies of 1818 and 1820 — Journal, 1 General 
Assembly, 1 session, 3-4, 2 session, 3; 2 General Assembly, 4; the "Thomas 
Reynolds" therein listed was the later judge: Hooper Warren, in Alvord, 
Governor Edivard Coles (I. H. C, 15), 322; Palmer, op.cit., 13 — when 
Governor Bond appointed him to succeed Philips, first as associate justice 
on August 31, 1822, and then as chief justice on January 14, 1823 — 2 
Illinois (l Scammon), vii. Palmer says of his opinions reported by Breese 
that they "exhibit much more finish than those reported before," and that 
according to all accounts "he was a very able and learned lawyer and 



xHv ILLINOIS HISTORICAL COLLECTIONS 

notable acuteness, was in every other way undesirable.^ Of the 

other two Governor Ford justly says: "Wilson and Lockwood were 

iRorn in New York, September 28, 1784, and in youth a sailor, he 
came to Illinois in 1816, and was an enrolled attorney in 1817 — 3 Illinois 
(2 Scammon) , vii. According to Linder, "many" or "most" lawyers "con- 
sidered Smith the great light on the bench, as many more thought Wilson 
the great light" — Reminiscences, 73, 260, 263. Perhaps friendship, for 
Linder and Smith were warm friends, and also politics colored the judg- 
ment. Palmer, Bench and Bar, 1 :24, characterizes him as "a man of talent, 
a good lawyer" ; and Judge Gillespie thought he "would have figured pre- 
eminently if he had kept aloof from politics" — Alvord, Governor Edward 
Coles (I. H. C, 15), 100. No reference to him has been found in the 
legal records of any county preceding his election to the Supreme Court. 
This is a very extraordinary fact. In the election of the associate judges 
by the General Assembly in 1824, he ranked second in strength on the 
first and second ballots, and was elected on the third — House Journal, 
1824-1825, p. 170, December 30. Primarily, he was, as Governor Ford says, 
"a laborious and ingenious schemer in politics": History of Ulinois, 220. 
Judge Gillespie recounts a common story that Smith, while cashier of the 
Edwardsville Bank, filled kegs with old iron covered with coin in order 
to deceive the bank examiners — Gillespie to Ninian Wirt Edwards, March 
28, 1880, in Edwards Papers, Chicago Historical Society MSS., 49: 695. 
Governor Edwards' charges of mismanagement and corruption being di- 
rected particularly against him (Davidson and Stuve, History of Illinois, 
339; Ford, History of Illinois, 65), this was probably the occasion for 
Smith's drawing a pistol on Edwards, who snatched it away and with it 



made a good judge," op.cit., 18; see also Ford, History of Illinois, 85-86. 
In the election of the judges by the Assembly in December, 1824, he re- 
ceived on the first ballot nineteen votes for the chief justiceship against 
thirty-five received by William Wilson, but though he showed greater 
strength in the balloting for associate justices he failed of election — 
House Journal, 1824-1825, p. 170. John Reynolds attributed the unseating 
of both himself and Thomas Reynolds in 1824 to their proslavery politics; 
My Own Times, 160; but Mr. Pease, Frontier State, 125, is of the opinion 
that John Reynolds was probably displaced by the intrigues of Theophilus 
Smith. Both were probably less extreme proslavery leaders than Philips 
and Browne, then, or Smith later: Reynolds, op.cit., 154; Ford, History of 
Illinois, 53, 54; Alvord, Governor Edward Coles (I. H. C, 15), 313 on 
Ford's account; 83, 319, on the disorderly procession in which Judges Philips, 
Smith, and T. Reynolds were all prominent. When Hooper Warren says 
that "he was a talented man, but not over-nice and scrupulous in his 
moral deportment," that his " 'rowdyism' was not endurable, even in Illi- 
nois," and that his defeat for reelection was "very much to the satisfaction 
of the friends of good order and moral reform" — Alvord, Governor Ed- 
ward Coles (I. H. C, 15), 322, 350 — it seems very doubtful that he re- 
ferred solely to his views, or even his conduct, regarding slavery. He re- 
mained a few years in Illinois, being a member and speaker pro tem of 
the Assembly of 1826-1827 (Reynolds, My Own Times, 171, 172) ; but in 
1829 he removed to Missouri, where he served as legislator, judge, and 
governor, committing suicide while occupying the last office and a candidate 
for the United States Senate (February 9, 1844). 



INTRODUCTION xlv 

in every respect amiable and accomplished gentlemen in private life, 
and commanded the esteem and respect of all good men for the purity 



broke Smith's jaw, leaving an ugly scar (Linder, Reminiscences, 260). He 
became a power, apparently, by wily intrigue that made all parties dis- 
trust him: see Pease, Frontier State, 126. His was the acute mind that 
suggested prosecution of Governor Coles for failure to give the bond re- 
quired by law when he emancipated his slaves — Hooper Warren, in Alvord, 
Governor Edivard Coles (I. H. C, 15), 363. His also, according to the 
same observer, the inspiration that precipitated — as he supposed, in the 
interests of the proslavery men — the struggle over a convention in 1823-1824, 
by cunningly praising in a committee report (written by him though he was 
not a member of the committee) Governor Coles's recommendation that the 
"French slaves" (the true, pre-Illinois slaves) be freed, which could only 
be done by a change in the constitution — Alvord, Governor Ediiard Coles 
(I. H. C, 15), 313. This could well be so even though Mr. Pease {Frontier 
State, 76-77) be correct in his view that the governor, believing an ag- 
gressive attitude on the question to be the wisest policy, also wished to force 
the issue (for a man so intelligent as Coles must certainly have realized the 
full implications of his recommendation). He it was who, in the "Galena 
alien case," made up to test the right of aliens to vote, sitting as an appel- 
late judge after a Whig circuit judge had decided adversely to the claim, 
privately pointed out to Democratic counsel a flaw in the record that made 
possible a continuance (in the predominantly Whig Supreme Court) until 
after the presidential election of 1840, which, with aliens voting, the 
Democrats won: Ford, History of Illinois, 220; Snyder, Adam IV. Snyder, 
345-348. He contemplated resignation in 1829 on account of "physical in- 
firmities" — Breese to Edwards, November 10, 1829, in Edwards Papers, 
Chicago Historical Society MSS., 50:532. We are told by Linder that in a 
suit between the United States and one Beaubien (though I cannot find the 
report), Beaubien having presented lots to the children of the judges of the 
Supreme Court, Wilson and Lockwood did not sit, "but Smith and Brown 
had no such scruples" — Reminiscences, 263. In January, 1833, he was im- 
peached for malfeasance in office, but narrowly escaped conviction. Brief 
accounts of the trial (January 9, 1833-February 7, 1833) are given in 
Snyder, Adam W. Snyder, 156-157, and Ford, History of Illinois, 166-167. 
The full proceedings are printed as an appendix to the Senate Journal of 
1832-1833; the full charges, in the House Journal, 292-297. On this oc- 
casion, according to Davidson and Stuve, History of Illinois, 368, "the 
defendant, after each adjournment, had the desks of senators carefully 
searched for scraps of paper containing scribbling concerning their status 
upon the respective charges. Being thus advised, his counsel enjoyed pe- 
culiar advantages in the management of the defense." If true, this reflects 
equally upon his counsel, Judges Breese, Ford, and Richard M. Young. A 
subsequent effort to remove him by address of two-thirds of the legislature 
also failed. He lost the confidence of his party by opposing the bill re- 
forming the judiciary, which was of the same qualities as the alien-vote 
maneuver, was consequently defeated for the United States Senate (Ford, 
History of Illinois, 222), and resigned on December 26, 1842. 4 Illinois (3 
Scammon), iv. He died on May 6, 1846. He was the father-in-law of 
Jesse B. Thomas. 



xlvi ILLINOIS HISTORICAL COLLECTIONS 

of their conduct and their probity in official station."^ Like Lock- 
wood, Wilson^ sometimes aspired to political office, though he had 
less Influence, and probably slighter political qualifications ; not be- 
fore 1830 had either come to hold himself Avholly aloof from 

^History of Illinois, 212. 

2He was born in Virginia in 1795, and there studied law. It is stp.ted 
by a relative (Stuve — Davidson and Stuve, History of Illinois, 329) that 
he came to Illinois in 1817. As he was a candidate before the General 
Assembly in October, 1818 for election as an associate justice of the 
Supreme Court, and on the first ballot received fifteen out of a necessary 
twenty-one votes {Senate Journal, 1818, pp. 18-19, October 8), one would 
suppose he must have been known as a lawyer — did we not know that 
William P. Foster, elected on that ballot, was none. I have found no 
reference to him in the Randolph records as admitted or practicing; and he 
is not among the enrolled attorneys listed in 3 Illinois (2 Scammon), vii. 
A William Wilson was appointed clerk and recorder of Jackson County 
(the records of which, having been largely destroyed by fire in 1843, were 
not searched by me) in March, 1816 — James, Territorial Records of 
Illinois, 40, 41. Mr. Buck states that this was the candidate for the 
Supreme Court in 1818 — Illinois in 1818, 305; which cannot be so if David- 
son and Stuve correctly give the date of his arrival in Illinois. In May, 
1819, a William Wilson appears in the records of White County (Circuit 
Clerk, Circuit Court Record, 1817-1832, A: 55), and in July in those of 
Crawford County (Circuit Clerk, Circuit Court Record, 1817-1828, 8), as 
circuit attorney of the then second circuit. Notwithstanding that his writing, 
as I noted in examining the records, was not much like that of the later 
chief justice when on circuit, it seems safe to assume an identity of 
person. Brink, McDonough, History of Jackson County, 13, indicates that 
William Wilson, later the chief justice, had come from Randolph County 
to serve as first clerk, and this fact leads us to a tentative conclusion that 
clerk and recorder, circuit attorney and judge were all one person. If two 
persons, the clerk and recorder of Jackson County may have been the sur- 
veyor noted in Philbrick, Lanxs of Indiana Territory (I. H. C, 21), cclxxiv. 
The judge seems always to have felt a predilection for the eastern counties, 
choosing them during many years for circuit service while he was chief 
justice. When Foster resigned, he was appointed associate justice in his 
place (July 7, 1819 and February 6, 1821), and later was elected by the 
legislature (December 30, 1824; assuming office January 19, 1825) as chief 
justice — 2 Illinois (l Scammon), vii; receiving thirty-five votes on the 
first ballot against nineteen for Thomas Reynolds — House Journal, 1824- 
1825, p. 170, December 30. This position he occupied until December 4, 
1848. He died on April 29, 1857. His retention on the court in 1824, still 
more his election as chief justice, sufficiently evidence the impression made 
by him in six years of service. According to Davidson and Stuve, History 
of Illinois, 329-330, he was well read and cultured, a man of innocent 
character, devoid of political arts. Governor Ford characterizes Wilson as 
"a Virginian of the old sort, a man of good education, sound judgment, 
and an elegant writer, as his published opinions will show" — History of 



INTRODUCTION xlvii 

politics.^ Among his contemporaries he evidently enjoyed a repute 
equal to his colleague's, but in professional retrospect it is Lockwood 
who appears as one of the great judges of the state.^ 

^See Washburne, Ediuards Papers, Index s.v. "Wilson," "Lockwood" ; 
Pease, Frontier State, index, same titles. 

2He was born in New York, August 2, 1789, began in 1803 to live 
with an uncle who was a lawyer, and in 1811 was licensed to practice. 
Late in 1818 he moved to Illinois, excellently recommended to Governor 
Harrison of Indiana and to Benjamin Stevenson. He was admitted to the 
bar in Randolph County on April 27 (on a license of February 10 from 
judges of the Supreme Court — always required, Philbrick, Lanvs of Indiana 
Territory [I. H. C, 21], 340, §1)— Circuit Clerk, Court Record l8 15-1823, 
183. At a special term of the Pope Circuit Court held in July, 1820 to try 
a murder case, Lockwood appears as deputy of the prosecuting attorney — 
Circuit Clerk, Circuit Court Record, A: 108-110. Appearances were also 
noted (in 1821-1822) in Edwards and White counties. The rarity of these 
appearances, compared with the activity of many others of the leading 
lawyers, is an anomaly almost as singular as that presented by the case of 
Judge Smith {ante, xliv, n. 1). From February 6, 1821 to December 28, 
1822 — / Illinois (Breese), xvi ; but Palmer, Bench and Bar, 1:23, says 
December 22 — he was attorney-general of the state, and by his successful 
prosecution of Bennett for the murder of Stewart in a duel not only 
rendered a great service to the state (Ford, History of Illinois, 48-49) but 
undoubtedly much enhanced his reputation. He resigned when conmiis- 
sioned secretary of state (December 18, 1822), only to resign that office in 
turn, presumably, when appointed receiver of the Edwardsville land office 
(January 28, 1823, U. S. Senate, Executive Journal, 3:325, 328) ; though the 
Blue Book of the State of Illinois (1917-1918, p. 397) indicates that he did 
not resign until April 2, 1823. Meanwhile he had received, in the election 
of a United States senator in January, 1823, the votes of only two uncom- 
promising antislavery men, out of perhaps a score of that party in the 
General Assembly, so much did personal relations still outweigh convic- 
tions on that question — Alvord, Governor Edivard Coles (I. H. C, 15), 
318-319; Washburne, Edwards Papers, 192 et seq.; had aided the anti- 
convention party in the struggle of 1823-1824, editing in 1824 one of the 
antislavery papers, though his name did not appear and he wrote little 



Illinois, 212. Agreement is general as respects his ability. Palmer, 
Bench and Bar, 1 :21 ; Scott, Supreme Court, 39. 

Linder, Reminiscences, 101, says that he had a "Munchausen disposition 
to magnify," almost unparalleled within Linder's observation, which was 
doubtless of ample opportunities. Assuming this statement to be accurate, 
it is of course possible that among the members of a bar in which pro- 
fessional success and political preferment seemed to go largely to men of 
large body, with talents for hard drinking, gross anecdotes, and florid 
argument, a modest and quiet man who presided over them might have been 
tempted to develop some comparable talent, within their comprehension, by 
which to impress them. But it would be a more reasonable assumption 
that the judge was merely accustomed to deflate, by this jocular method, 
the bombast of Linder in particular. 



xlviii ILLINOIS HISTORICAL COLLECTIONS 

In his last message (1826), the report of the Council being 
nearly completed, Governor Coles referred to the "great interest 
felt in the proceedings of the present General Assembly, from the 
circumstance of its having to pass upon the Digest of the Laws, 
which has been prepared by order of the Legislature," adjuring this 
again to provide for a state prison, abolish capital punishment, 
repeal the stay laws, and, in general, give to the revision the atten- 
tion necessary to simplify and render more prompt, efficient, and 
economical, and "as perfect as the people have a right to expect," 
the legal system of the state. ^ It was not until December 7, 1826, 
that the judges made their report under the act of January, 1825. 
They had not found it feasible to carry out the Assembly's sugges- 
tion respecting the English statutes, since there was no set of them 
in Illinois ; and they added the opinions that to attempt to make a 
selection might be undesirable, and that the effects of the laws adopted 
en masse by the code of 1819 "were not, most probably, critically con- 
sidered." To adopt them, even in an attempted selection, would 
be to subject the people "to the operation of Laws, the real character 
of which, neither the citizens, nor the Judges who are to administer 
them, have the means of ascertaining." This view was very likely 
wise, notwithstanding that in various other states such a selection 

iDecember 5, 1826, in Senate Journal, 1826-1827, pp. 18-28; Alvord, 
Governor Edicard Coles [I. H. C, 15), 280-281. 



himself for that or other papers — F. W. Scott, Ne^vspapers of Illinois (I. 
H. C, 6), 340; Alvord, Governor Ed^vard Coles (I. H. C, 15), 314, 315; 
Ford, History of Illinois, 53-54; was again a candidate in November, 
1824, for the United States Senate, but defeated on the tenth ballot by 
Kane, who received twenty-eight votes to his twenty-one — Senate Journal, 
1824-1825, p. 51; House Journal, 1824-1825, pp. 55-56; and on December 
30, 1824, was elected by the Assembly as associate justice of the Supreme 
Court on the sixth ballot, and after the election of both Browne and Smith — 
House Journal, 1824-1825, p. 170. He was commissioned January 19, 1825 
— 2 Illinois (I Scammon), xi — and served until December 4, 1848, preferring 
not to seek election by the people under the new constitution, though he 
was a delegate to, and active in, the convention that framed it. He died 
on April 23, 1874. All authorities concur in their testimony to his excellent 
character, sound judgment, and high attainments as a lawyer. See Ford, 
History of Illinois, 213; Linder, Reminiscences, 264-265; Palmer, Bench 
and Bar, 1:21-23; Scott, Supreme Court, 291; Biographical Encyclopaedia of 
Illinois of the Nineteenth Century (Philadelphia, 1876), 398-399; Pease, 
Frontier State, index. 



INTRODUCTION xlix 

has been made. They also pointed out that a literal compliance 
with the Assembly's act — digesting all laws, even though repealed, 
superseded, or wholly undesirable — was impracticable; and they had 
therefore deemed it best to prepare a collection of laws "to embrace 
such parts of all our present statutes, of a general and public nature 
as were deemed necessary and useful, and to incorporate therewith, 
the substance of such British statutes, as were conformable to the 
genius and spirit of our institutions." In doing this, they assured 
the Assembly, they had rejected or modified the laws only when 
"conclusive reasons" compelled such action. Assuming a perform- 
ance vastly better than the attempt of 1819 — and such it proved 
to be — this was doubtless another wise decision. The judges, how- 
ever, realizing the magnitude of the task assigned them and the 
research and reflection that should precede action, felt a deep sense 
of responsibility, and urged the Assembly to delay action until some- 
thing could be learned of the new Livingston codes of Louisiana, the 
New York revision then several years in progress, and the great 
changes in the criminal laws just begun in England. Specifically, 
they asked the Assembly to express its desires on the revenue and 



execution acts 



The portions of Governor Coles's last message which related to 
the criminal law and to the preparation of a general digest were 
referred by the two houses of the Assembly, immediately following 
the receipt of the judges' report with the drafted enactments by 
them prepared, to two separate (and large joint) committees;^ 
but it was not until these had under consideration for the greater 
part of a month the problem of revision, and after a third joint 
committee had reported favorably upon the feasibility of immediate 

'^House Journal, 1826-1827, pp. 58-65. It is dated Vandalia, December 
6, and signed by Wilson, Smith, Browne, and Lockwood in that order. 

2The subject of a criminal code was referred by the Senate to its 
Judiciary Committee (December 7, 1826, Senate Journal, 13), and, then, upon 
request of the House, to their judiciary committees jointly (December 9, 
1826, Senate Journal, 17). The Senate having referred to its Judiciary 
Committee various other problems of revision, it again, upon request of 
the House, joined in a joint committee of eleven to consider all of the 
judges' work except the criminal code, which committee was consummated 
on December 12 {ibid., 17, 28, 30-31). 



1 ILLINOIS HISTORICAL COLLECTIONS 

revision/ that the enterprise was definitively embarked upon. By 
that time, however, many bills were under way, and some acts had 
even gone to the Council and been returned with its approval. This 
alone would seem to indicate that without the judges' drafts the 
undertaking would have been incapable of realization. Nevertheless, 
the journals show the extraordinary interest of the Assembly, and 
its extreme activity in the performance of the task. Thenceforward 
this was left in the main to a joint committee of six consisting of 
Joseph Duncan and William B. Archer of the Senate and David 
Blackwell, John Reynolds, Alexander P. Field, and Thomas 
Reynolds of the House of Representatives.^ The committee was 
empowered "to employ four persons, learned in the law, to assist 
them." Doubtless they had specific individuals in mind, and one 
may well hazard the assumption that the contributions (specified 
infra) by Samuel McRoberts,^ John York Sawyer,* and Richard 
M. Young^ — all of whom were then circuit judges — were thus 
secured. The committee used the room of the Supreme Court when 
not needed by the court, and received possession of the statutory 
collection gathered by the judges to aid in the preparation of their 

^This joint committee (of fourteen, later of fifteen members) was 
formed on December 19, and reported on January 8 — Senate Journal, 1826- 
1827, pp. 42, 44, 136-137; House Journal, 1826-1827, pp. Ill, 112. 

^Senate Journal, 1826-1827, pp. 138, 140; and (for more complete 
identification of members) Blue Book of the State of Illinois. 

^No reference to him has been found in the court records antedating 
May, 1819, when he was clerk of the Circuit Court in Monroe County — 
Circuit Clerk, Circuit Court Record, I: 122. See Reynolds, Pioneer History, 
301 n., 371-372, and My Oivn Times, 155, 185; Snyder, Adam IV. Snyder, 
217, 294, 366-367; Linder, Reminiscences, 94-98; Edivards Papers and 
Pease, Frontier State, indexes. 

*He was admitted to the bar in Madison County on July 7, 1817 — 
Circuit Clerk, Circuit Court Record, B (1816-1819), 73. See Snyder, Adam 
fV. Snyder, 194-195; Linder, Reminiscences, 152-154; Palmer, Bench and 
Bar, 1094. 

5He was admitted to the bar in Union County on September 13, 1819 
—-Circuit Clerk, Order Book, A (1818-1822), 13. See Snyder, Adam W. 
Snyder. 217 n., 278. 



INTRODUCTION li 

drafts.^ The joint committee on the criminal law, though in fact 
it had little to do, apparently continued to function;^ nor were all 
bills referred exclusively to the joint committee on the digest.^ 
Also, aside from digesting old law, questions of important innova- 
tions arose, and these could not go to the digest committee.* 

The first result of these joint labors of the court and the legisla- 
tors was The Revised Code of Laws of Illinois . . . enacted . . . 
1827 by the fifth General Assembly, a small but exceedingly signifi- 
cant volume.^ Its individual statutes, about seventy of a general 
nature, were approved between December 26 and February 19, 
all going into effect — the criminal code last of all — on or before 
August 1, 1827. 

At the beginning of the sixth Assembly John Reynolds moved a 
joint resolution for a committee to complete the revision of the 
laws. In fact, not all the bills drafted by the judges and debated 
in the fifth Assembly, or initiated by it, had been included in the 
volume of 1827.*^ And the judges had made no provision for va- 
rious enactments which, though not part of a system for the ad- 
ministration of justice, are yet indispensable among the general 
statutes of a state.^ The members of the new committee were 

'^Senate Journal, 1826-1827, pp. 145, 146. Eugene L. Gross informs us, 
in his preface to the Digest of the Criminal Laws of Illinois (1868), that 
Lockwood had no access to any law books when preparing his draft of the 
chapter on criminal jurisprudence, "except a volume of the laws of New 
York passed in 1802, and a volume of the laws of Georgia." This is 
hard to believe. Coffin, who was Lockwood's son-in-law, quotes Gross, 
and there is no other evidence. 

^Since the committee of six is repeatedly referred to as that appointed 
"to digest the remaining statute laws" of the state, as was the original 
committee of eleven to which were referred all drafts except that on the 
criminal code. 

^Thus we find the Senate referring to its own Judiciary Committee 
bills on abatements and mechanics' liens (both being included among the 
judges' drafts, though the second did not get into the volume of 1827) — 
Senate Journal, 1826-1827, pp. 86, 105-106. 

^Such, for example, as a bill from the House for extending the juris- 
diction of justices of the peace, which apparently contained very radical 
changes (with respect to divorce, among other things), and was very 
much debated. Compare last group of cases cited below, n. 6. 

^Vandalia, pp. iv, 406. 

^They are enumerated in the text, post, Ivi, Ivii; and cited post, Ivi, n 2: 
Ivii, n. 1, 2. 

^They are indicated in the text, post, Ixii. 



lii ILLINOIS HISTORICAL COLLECTIONS 

Samuel McRoberts, Samuel Alexander, and Wickliffe Kitchell of 
the Senate, and William L. May, George Churchill, John Turney, 
Gilbert T. Pell, and John Reynolds, as chairman, of the House of 
Representatives.^ It had the same power as the former committee 
to employ outside aid, and, according to Reynolds, did so.^ The 
result of the labors of the committee was The Revised Code of Laws 
of Illinois J — consisting of statutes enacted in 1828-1829 by the sixth 
Assembly and of certain older statutes which were by it ordered 
republished — an even slighter volume than that of 1827.^ 

The title of the second volume was unfortunate. It was not an 
independent code, but a mere supplement to that of 1827, and should 
have been so designated. The two together constitute one code, of 
1827-1829. 

It is evident, then, that in some sense the Assembly is to be 
regarded as sharing in the authorship of the code. But to what ex- 
tent, is a question to which various answers have been given. On 
one hand is the plausible suggestion that the judges, "appreciating 
the magnitude of such a work, fraught with such great interests, to 
the perfection of which great and uninterrupted re-search should be 
brought, . . . had not completed many chapters."* Governor 
Reynolds, naturally, refers to the code as "the result of the joint 
labors of the judges and the General Assembly." He says: 

"I recollect the labor that was expended on the revision of these 
laws. Messrs. David Blackwell, Pugh, Thomas Reynolds, George 
Churchill, myself, and many others of the House of Representatives, 
worked day and night on these laws. If nothing more, this effort 
of the General Assembly leaves a lasting monument of the talents 
and energy of that body. 

"It is due also to truth to record that Judges Lockwood and 
Smith contributed greatly to the result of this excellent revised 

^Senate Journal, 1828-1829, p. 48; House Journal, 1828-1829, p. 60. 
Reynolds in My O^n Times, 180, lists Bell for Pell. 

'^My Oivn Times, 180. 

^Shawneetown, 1829, pp. 278. The title-page describes the contents as 
"passed by the sixth General Assembly. . .; and those enacted previous 
thereto, and ordered .... re-published." For those republished, see the 
text, post, Ixi-lxii. 

^Davidson and Stuve, History of Illinois, 343. 



INTRODUCTION liii 

code. Many private individuals, who were sound lawyers and states- 
men, also added much to the work, but it was at last the General 
Assembly that possessed the sound and discreet judgment to enact 
this code of laws."^ 

This minimizes the contribution of Lockwood and Smith — no- 
body has ever credited Judge Browne or even Chief Justice Wilson 
with any important part in the judges' work. On the other hand, 
lawyers have generally ascribed authorship to them without refer- 
ence to the legislature. Palmer merely declares that "most of the 
labor was done by Judge Lockwood. "- 

Governor Ford is very precise in stating the authorship of the 
code's various chapters.^ Neither he nor Reynolds credits Judge 
Browne with any title. To Lockwood and Smith, Ford credits the 
drafting of thirty titles, though making the statement as one of 
belief, only; namely, in addition to the criminal code, those on jails 
and jailers, sheriffs and coroners, apprentices, bills of exchange, 
promissory notes, conveyances, "right of property" (i. e. the trial of 
such when disputed under an execution), dower, limitations, detinue, 
replevin, forcible entry, chancery, account, ne exeat and injunctions, 
courts, attorneys, practice, evidence, depositions, bail, abatements, 
amendments and jeofails, attachments, oaths and affirmations, man- 
damus, minors and orphans, habeas corpus, and fugitives from jus- 
tice. To Samuel McRoberts he ascribes the act on frauds and 
perjuries; to John York Sawyer that on insolvent debtors; to Richard 

iMj; Oiin Times, 175. 

-Bench and Bar, 1 :23. In their report to the Assembly, ante, xlix, n. 1, 
the judges explained that the necessity of frequent personal consultation, 
and the great distances between their homes, had eventually led them to 
the conclusion that two, "whose places of residence were contiguous to 
each other, should be entrusted with the execution of the work, subject 
to the future examination, revision and approval of the others." And the 
report speaks of the revisers as two. One, moreover, was compelled to be 
long absent from the state, for which reason the code was incomplete. 
William Coffin, Life and Times of Hon. Samuel D. Lock^vood, 49, states 
that the judges turned over most of the work to Lockwood and Smith; but 
that as Smith was absent from the state for several months an undue 
share of the work fell on Lockwood. I have no doubt that Palmer's state- 
ment quoted in the text is correct. Compare ante, xxiii, n., at beginning. 

^History of Illinois, 60. 



liv ILLINOIS HISTORICAL COLLECTIONS 

M. Young that on wills ;^ to Henry Starr that on judgments and 
executions ; these four ascriptions being stated as facts. 

Everybody agrees that Judge Lockwood drafted the long statute 
on the criminal law, which was enacted without alteration, and its 
great merits were not only recognized at the time but fully proved 
by its history.^ Palmer's comment upon it is as follows (1899): 
"Lockwood prepared the criminal code, and, though whipping and 
other cruel punishments were retained, it is apt in its definitions of 
crimes and misdemeanors, and is still in a large measure the law of 
the state. 

"It is a model of clearness and precision, and fully justifies all 
that is claimed for it. Judge Craig said . . . 'Our criminal code, 
with but few amendments, has been in existence since the revision 
of our laws in 1827 . . . We had a constitutional convention in 
1847, and again in 1870 . . . Again since 1870 the legislature has 
revised our statutes, but . . . the criminal code was found to need 
but few amendments, and hence was left substantially as originally 
prepared.' 

"The alteration in the criminal code prepared by Judge Lockwood 
has relation to the methods of punishment rather than to the defini- 
tions of crime, which are still retained in the subsequent revisions of 
the statutes."^ 

Of course the statute was based upon earlier attempts — Judge 
Scott states that "it was copied in a large part from a Kentucky 
statute on the same subject which had itself been taken from the 
criminal codes of Virginia, North Carolina, and Tennessee" ;* but, 
of course, that does not in the least affect the merits emphasized by 
Palmer. 



^Reynolds, My Oivn Times, 180, says the same, and that up to the 
time he wrote (185S) it had remained "without any material alteration 
or amendment." 

^Reynolds gives it the utmost praise. According to him, the Assem- 
bly passed it, so far as he could recollect, "without any alteration or 
amendment whatever" — ibid., 175. In fact, the Senate read it fifty sections 
at a time, after it came from the House, to which it fell in an original 
apportionment of the judges' drafts. 

'-Bench and Bar, 1 :23. 

^Supreme Court, 291. The same could be said of almost all the 
old legislation of the state. 



INTRODUCTION Iv 

On its face, Governor Ford's list seems open to suspicion ; for 
one reason, because there is no enactment on attorneys at law in the 
code of 1827-1829 — though the judges did submit a draft on that 
subject to the Assembly; and, for another, because the statute on 
judgments and executions, credited to Henry Starr, is a reenactment 
of one of 1825.^ It is unfortunate that the report of the judges,^ 
with which — as is evident from the journals of the Assembly — they 
transmitted their drafts, does not state the number of these nor list 
their titles. However, a list — probably partial, possibly complete — 
can be compiled from the legislature's proceedings. This list con- 
tains only fifteen acts, positively stated in the journals of one or 
both houses to have accompanied the judges' report, that are in Gov- 
ernor Ford's list — namely those on the criminal code, jails and jailers, 
apprentices, bills of exchange, promissory notes, conveyances, det- 
inue, account, evidence, bail, abatements, amendments and jeofails, 
oaths and affirmations, (one act) on minors, orphans and guardians, 
and habeas corpus. There are ten others, also positively identifiable, 
but not on Ford's list; namely, acts regulating the publication of 
advertisements, on arbitration, authentication of laws becoming such 
over the Council's veto, attorney-general and circuit attorneys, con- 
stables,^ costs, maintenance of illegitimate children, apprehension 
of offenders, gaming, and quo warranto. It is to be remembered 
that Ford's list purports to be one of acts in the code of 1827 that 
originated with the judges; and the list just given is similarly lim- 
ited. He did enumerate one act as prepared by the judges, that on 
attorneys, which was enacted neither in 1827 nor in 1829, but his 
inclusion of that act was merely an error; such acts — for in fact there 
were several — are not now in question. Beyond these twenty-five 
acts — or more precisely, in view of the peculiar case presented by the 
act on constables, twenty-four and a half — one cannot go with com- 
plete certitude. 

''^Code of j82Q, 85; Laivs of 1825, 151. Henry Starr was admitted 
to the bar in Randolph County on April 27, 1819 — Circuit Clerk, Court 
Record, 1815-J823, 183. His appearance was noted in the Madison records 
of the following month. 

^Ante, xHx, n. 1. 

^Assuming that this was embodied in the act concerning justices of 
the peace and constables {,Code, .2S9), which apparently did not, otherwise, 
originate with the judges. 



Ivi ILLINOIS HISTORICAL COLLECTIONS 

We may, however, feel very sure of some additional ascriptions. In 
their report to the Assembly the judges explicitly referred to but 
three topics — crimes and punishments, and "practice in the courts of 
justice, — particularly in the courts of chancery." Bearing this in 
mind, also that Lockwood had been a master in chancery in New 
York, and that "account" is among the certitudes, it seems wholly 
safe to add to our list three titles: practice, chancery, ne exeat and 
injunctions.^ These three are on Governor Ford's list. 

In addition to the laws in the 1827 volume that were based on 
bills submitted by the judicial revisers there were two others that 
were printed in 1829; namely, those on mechanics (liens) and on 
courts of county commissioners, neither on Ford's list.^ Adding 
these two titles to those of the volume of 1827, we may say very 
definitely that at least thirty enactments (or only twenty-nine and 
a half if, more precisely, the law on constables be credited to the 
revisers as only a half title) originated in bills framed by the 
judges^ — of which eighteen are on the list given by Governor 
Ford. This is less than half of the enactments of a general nature 
(sixty-eight as I judge them) in the 1827 volume alone. Less 

^It is clear that speculation would soon lead us astray; for if we 
were to add to the general act on practice such auxiliary acts as seemed 
particularly likely to have accompanied the main enactment, we should 
certainly include the act on limitations — yet the veto of that act by the 
judges (post, lix, n. 2) indicates clearly that it originated with the As- 
sembly, for it is inconceivable that the Assembly would have stricken 
out the correct provision that the judges' draft would have contained. 

2Mechanics: Senate Journal, 1826-1827, pp. 87, 99; Code of 1829, 
106. Courts of county commissioners: Senate Journal, 102; Code of 1829, 33. 

^Lists of bills explicitly attributed to the judges by the journals are 
found in the Senate Journal, 1826-1827, on pages 29 (8 bills), 81 (3 bills), 
85 (2 bills), 87 (7 bills), 99 (6 duplicates of p. 87), 102 (7 bills), 137 
(1 bill). Five of these are also identified explicitly as drafts of the judicial 
revisers in the House Journal, 1826-1827, p. 75. All of these twenty-eight 
save three (of pp. 29 and 102) are printed in either the volume of 1827 
or that of 1829. Three additional bills submitted by the judges are posi- 
tively identified by the House Journal, 58, 75; of which two only appear 
in one or other volume of the code. One thus reaches the total of twenty- 
seven drafts positively identified by the journals and appearing in the 
code. Three others, so fundamental that the judges explicitly referred 
to them in their report to the Assembly, are identified thereby (see text 
above) ; though, remarkably enough, these cannot be identified through 
the journals. Thus we reach the total of thirty (or twenty-nine and a 
half) given in the text. 



INTRODUCTION Ivii 

definitely, since the language of the journal is not explicit, we may 
add one act of 1829 on county buildings (apparently only in part 
followed), and three acts of 1827 on the incorporation of counties, 
mandamus, and fugitives from justice.^ Of these the last two are 
in Ford's list. The remainder must be attributed to the initiative of 
the legislature. Not only is evidence to the contrary lacking; there 
is much evidence in the journals of the two houses that directly 
supports such an attribution. The great and independent activity 
of the Assembly in preparing the volume of 1827 is manifest. As 
respects the volume of 1829 its authorship is almost exclusive. 

But the bills drafted by the judicial revisers as above identified did 
not constitute their entire contribution. Some of their bills were not 
printed in either 1827 or 1829. Of such there were at least four, 
dealing with proceedings against concealed, absconding, or nonresi- 
dent debtors, providing for proceedings against corporations, re- 
quiring petitioners to the General Assembly to give certain notices 
before such petitions might be finally acted upon, and regulating 
attorneys, solicitors, and counsellors at law.^ The last is on 
Ford's list. 



iThe language of the journals in the case of the twenty-seven acts 
referred to in the preceding note is definite: "reported by the revisors 
of the laws," "part of the report of the Judges," "accompanying the re- 
visors report," bills submitted as "another portion of the report of the 
Judges." In the case of the four bills here in question the language 
(House Journal, 1826-1827, pp. 109, 113, 139) is less clear; the bills are 
reported from a joint committee to which were referred "the revised laws, 
submitted by the Judges," or "to which was referred, the report" — or "a 
portion of the report" — "of the Judges." Unfortunately (cp. ante, xlix, n. 
2) it cannot be stated that to that committee were referred only bills re- 
ceived from the judges. When a select committee received a bill (as 
e. g. that on limitations) it is clearly unjustifiable to assume that the bill 
originated with the judges. 

The act of 1829 (p. 53) on county jails and courthouses deals only with 
their erection. It may be assumed to rest upon the judges' broader bill 
(House Journal, 110) on the erection and repair of county buildings (which 
may possibly, though this is very unlikely, have contemplated buildings other 
than jails and courthouses, such as poorhouses). 

^Debtors: House Journal, 1826-1827, p. 75. Petitions: Senate Journal. 
1826-1827, p. 29. Proceedings against corporations: ibid., 102. Attorneys: 
ibid., 102. 



Iviii ILLINOIS HISTORICAL COLLECTIONS 

The final result would be a list of thirty-eight drafts from the 
judges, published and unpublished, twenty-one of them being in- 
cluded in the list given by Governor Ford. 

Nothing, however, can tell us how much the drafts were altered. 
Governor Ford, as a lawyer, naturally thought it "probable that all 
these laws were more perfect when they came from the hands of 
their authors, than after they were amended, somewhat out of shape 
and system, by the legislature."^ It is clear that the governor 
speaks of the published laws as thus distorted by the legislature. 
One is naturally tempted to accept his assumption, notwithstanding 
that there were several lawyers on the Assembly's committees, who, 
presumably, felt proper respect for the judges.^ But had both been 
lacking, and had the result of legislative revision been even worse 
than the governor intimates — still, he forgot, rather inexcusably, a 
bit of history; namely, that the judges had a last word as the Council 
of Revision. It must be confessed that the Assembly's lawyers do 
not show to advantage in the light thrown upon them by the Council ; 
though their fault lay, doubtless, in neglect of their responsibilities 
rather than in ignorance. The Council found it necessary to correct 

^History of Illinois, 61. 

2Including David Blackwell, Alexander P. Field, Wickiiffe Kitchell, 
Samuel McRoberts, John Reynolds, and Thomas Reynolds. John McLean 
(speaker) and Robert K. McLaughlin were also in the House. David Black- 
well was admitted to the bar in Randolph on April 27, 1819 — Circuit 
Clerk, Court Record, 1815-1823, 183. The next month John Reynolds ap- 
pointed him prosecuting attorney in Washington County — Circuit Clerk, 
Circuit Court Docket, 1818-1837, 12; and in October he appears in the 
same capacity in Madison, vice William Mears — Circuit Clerk, Circuit 
Court Record, C (1819-1820), 1. His appearance was also noted in St. 
Clair. John McLean was admitted in Gallatin County on July 1, 1816 — 
Circuit Clerk, Order Book, 1813, 189; though he is earlier indicated as an 
attorney in the County Court — County Clerk, Order Book, A, 102 (February 
20). A later appearance was noted in Edwards County. Robert K. Mc- 
Laughlin's first appearance noted was in the Common Pleas of Randolph, 
February 20, 1815— Circuit Clerk, Court Record, 181 5-1823, 43, when he 
moved the admission of Daniel P. Cook; and thereafter he appears fre- 
quently in St. Clair and Madison records. No trace of Field and Kitchell 
has been discovered. 



INTRODUCTION lix 

ineptitudes in the acts on depositions,^ limitations,^ landlords 
and tenants,^ frauds and perjuries,* attorney-general and state's 
attorneys.^ In each of these cases the acts were amended to meet 
the objections, repassed, and were then approved by the Council. 



ipor the veto message see Senate Journal, 1826-1827, pp. 219-220. 
The Assembly had provided for taking depositions in chancery quite dif- 
ferently than in the other act, just passed, prescribing the mode of pro- 
ceeding in chancery; and the differences being irreconcilable, both acts 
could not have validity. 

2For the veto message see House Journal, 1826-1827, pp. 351-352. The 
Assembly, forgetting that such acts are always construed as prospective only 
in operation, had made the mistake of wholly repealing the existing 
statute, instead of continuing it in force as to causes of action already 
accrued and upon which, therefore, the old statute had begun to run. 
This was the basis of the veto; but the judges also suggested certain 
additions — no provision had been made for debt on simple contract, none 
for actions on sealed instruments payable in property or for the per- 
formance of covenants; etc. 

3For the veto message see House Journal, 1826-1827, pp. 388-389. The 
Assembly had made "under tenants" liable for the whole rent and for 
past breaches. It seems incredible, but the judges found it necessary to 
explain that a sub-lessee holds only part of the term and may hold only 
part of the premises, and that, "if an under tenant should only rent one 
room of a large house, and for a single month, this section is broad enough 
to make him not only liable for the rent of the whole house, but for a 
series of years before he occupied" the room. The legislature was asked 
to substitute "assignee" for "under tenant," and to limit liability to breaches 
occurring after the assignment. 

*For the veto message see House Journal, 1826-1827, p. 446. From 
the code of 1819 came the absurd language in the statute of frauds, some 
of it obscure verbiage going back to the original of 1677 — the judges tact- 
fully referred to it as due to clerical errors. For "contract or sale" (this 
came from 1677) they substituted "contract for the sale," and various 
other improvements in terminology — essential to meet the purposes of the 
statute — were made. 

^For the veto message see House Journal, 1826-1827, p. 484. They 
had theretofore been appointed by the governor, and were now to be 
elected by the Assembly. The Council objected, first, that no evils had 
been experienced under the prior practice; secondly, it was by tradition 
an executive function; and thirdly, they believed the new act uncon- 
stitutional. On the last point, involving the provision of the constitu- 
tion on one hand and of the schedule thereto on the other, see Pease, 
Frontier State, 278-279, Ford, History of Ulinois, 213-214, for another 
case of great political importance that involved the same problem. 



Ix ILLINOIS HISTORICAL COLLECTIONS 

To the act on wills the Council particularly objected/ and it 
was consequently held over, and only printed in 1829; but the 
Council still had the veto power, and the final act conformed to their 
views.^ It is quite clear that they gave minute attention to all 
legislation. They were abundantly free in vetoing various acts 
where only (or primarily) differences of opinion with respect to 
public policy existed,^ none of these acts having been drafted by 

i"It contains numerous objectionable features, and in some cases 
has made such a total change in some of our existing laws, as to over- 
turn some of the long settled, and as we believe, highly approved prin- 
ciples of the common law. The Council particularly refer to the 21st 
section of the bill ; that section, the Council believe, would be productive 
of highly injurious consequences to the peace and harmony of the married 
state, by introducing separate and conflicting interests between husband 
and wife. The Council also object to the introduction of the 'civil law' 
as any portion of our law, because .... entirely unknown to the people, 
and in general they would not have it in their power to ascertain what 
the law is, which is to govern their conduct, in so important a branch 
of domestic policy, as that which regulates the law of baron and feme 
covert. 

"The Council have, also, objections to the 18th section of the bill. They 
think it ought to be so amended as to give the wife her share of the per- 
sonal property, after the debts of the deceased shall be paid." Senate 
Journal, 1826-1827, p. 328. No doubt section 21 would have taken some 
step toward the reform of the property rights of married women con- 
summated by later legislation. Judge Smith did not join his colleagues 
in this veto. We can be very sure that John Reynolds would have 
gladly introduced some modifications of our law (as respects disinheritance 
of children, the rights of the wife, etc.) in the direction of the rules of 
the civil law; for he later expressed the opinion that Illinois had (in 
1855) "as equitable and just a system of statute-laws as is found in perhaps 
any other of the States, except Louisiana" — My Oivn Times, 180. In this 
view he was ahead of the judges, and of his time. Their use of the 
old black-letter phrase "baron and feme covert" is in itself significant. 
Many of our great judges have been extremely conservative — Chancellor 
Kent, at times, appallingly so. 

^There are no sections in the act of 1829 — Code, 191 — that would 
be subject to the animadversions of the judges. And the journals of the 
Assembly throw no light on the matter. 

^See the vetoes of the bills respecting inns and taverns (Senate), es- 
tablishing certain post roads (Senate), making appropriations for certain 
bridges (House), and for the benefit of William A. Beaird (Senate), in 
the Senate Journal, 1826-1827, pp. 126, 239-240, 253, 256, 260-261. And of the 
House bills "to ascertain and survey the northern boundary of the state," 
to provide for publication "of the revised, and other laws," and relative 
to disbursements by the treasury, in the House Journal, 1826-1827, pp. 
430-431, 493-494, 498. Some of these were repassed over the veto. There 
were legal difficulties involved in the roads and disbursement acts, as 
well as matters of policy; in the other cases, the latter only. The ob- 



INTRODUCTION hd 

them. It is therefore fair to assume that they acted with at least 
equal freedom in protecting their own drafts. We must therefore 
put aside Governor Ford's surmise as merely expressing a lawyer's 
prejudices. 

The volume of 1829 contains some statutes whose subjects were 
fully debated in the preceding Assembly without resulting in an 
enactment; a few that received final form but were vetoed in 1827; 
a few revisions of statutes in the volume of 1827; various enact- 
ments of the territorial period ; and a considerable number of wholly 
new titles. 

In it were reprinted nine statutes of the code of 1819, all of 
them of a general nature and important, including the subjects of 
ejectment, timber trespasses, sureties, the enclosure of common 
fields, the establishment of courts of county commissioners, and a 
declaration of the British sources (statutes antedating 1606) that 
should constitute the basic common law of the state. Fifteen other 
acts of the second, third, and fourth assemblies were likewise re- 
printed, ten of which affected in a general way the administration 
of justice, and treated, among other subjects: slander, persons men- 
tally incompetent, paupers, mechanics' liens (the judges' draft evi- 
dently being abandoned, if different), the non-revival of repealed 



jections in all cases were certainly persuasive; but to illustrate the Coun- 
cil's freedom in opposing the Assembly's will, suffice it to say that Governor 
Edwards and Judges Smith and Browne objected to the bridges act because 
of past waste on other bridges, and strongly attacked the policy of internal 
improvements (Judges Lockwood and Wilson merely finding the act in- 
sufficiently explicit) ; that all save Judge Smith joined in vetoing the 
taverns act because they believed that licenses to sell liquor in quantities 
less than a quart had "a direct tendency to encourage drunkenness and 
immorality" and render the criminal laws "unavailing, to restrain and 
check the vicious propensities of the frequenters of taverns" ; that Lock- 
wood, Browne, and Wilson objected to the boundary act because it was 
left to some future Assembly to provide compensation for the commis- 
sioner, and because, in their opinion it was then too late in the session 
for the Assembly to select a commissioner of competent attainments ; 
and that the publication act was vetoed because it proposed to reprint 
various documents (the Declaration of Independence, etc.) that had been 
printed with the statutes of 1823. 

On the other hand, despite the judges' belief that it was undesirable 
to declare old British statutes (antedating 1606) to be law in Illinois, 
they did not attempt to block the Assembly's will when the act of 1819 
was republished in the code of 1829. 



Ixii ILLINOIS HISTORICAL COLLECTIONS 

statutes upon repeal of a first repealing statute, the power of 
chancery courts to decree conveyances by the personal representa- 
tives of dead vendors, and judgments and executions. Eleven new 
enactments dealt with estrays (under the title "horses"),^ negroes, 
notaries, the establishment of courts of probate, bonds to be given 
by public officers, denial of salaries to defaulting public officers, the 
establishment of a record office in every county — as in the legislation 
of the Indiana Territory period, the code of 1827 providing only 
for one state recorder's office — for the recording of conveyances (and 
elifect of certain words therein), suits by and against the state, the 
creation of the office of county surveyor, insolvent debtors, and 
wills. Less essential to a system of jurisprudence, but of course ab- 
solutely essential to the compiled statutes of a state, were various 
other acts dealing with courthouses (this alone not new), elections, 
the surveying of the northern boundary of the state, etc. So also the 
older enactments that were republished included acts relating to 
state seals, fixing a legal rate of interest, regulating weights and 
measures, requiring clerks to keep their offices at the county seats, 
establishing the boundary between Illinois and Indiana, and pro- 
viding for the recording of town plats. The mere enumeration of 
these titles indicates the importance of the legislative supplement to 
the labor of the judges. 

Included in the volume of 1829 there are, also, various acts that 
are revisions of enactments in the code of 1827. The more important 
titles amended were those dealing with attachments, conveyances, 
practice, courts, justice of the peace and constables. The altera- 
tions in the first — with reference to the lien of the attachment, 
foreign or domestic, and of the judgment rendered thereon (remem- 
bering that the title of judgments and executions appears only 
in the 1829 supplement) — seem proper. The alterations in the 
second were necessitated by the new enactment on county recorders. 



^The code of 1827 contained an elaborate statute on estrays, of all 
varieties; seemingly adequate. The act on horses, added in 1829, went back 
to legislation of Indiana Territory. Inasmuch as there was also included 
in 1829, under the title "estrays," an amendment to the act of 1827 on 
that subject, there resulted two titles dealing with the same subject matter. 



INTRODUCTION Ixiii 

Those made in the third — repealing the authorization of original 
process directed to the sheriff of other counties than that in which 
suit was begun, and forbidding the bringing of suits out of the 
county of defendant's residence except when the debt or other cause 
of action arose in the plaintiff's county or was there specifically 
made performable — harked back to legislation and disputes of the 
Indiana territorial period/ with reference to which, evidently, the 
legislators had formed strong opinions. The alterations in the 
title on justices of the peace were in the nature of simplification of 
a very detailed and artificial statute, and seem desirable. The 
changes in the three acts of 1827 on courts involved important ques- 
tions of policy, particularly with reference to circuit courts, which 
remained vital political issues until after 1841, but the discus- 
sion of this exceedingly interesting chapter in our legal history is 
scarcely pertinent here.^ In addition, there were various minor 
amendments — as, for example, the introduction into the criminal 
code of the old dead-letter laws against sabbath breaking, whose 
inclusion Lockwood, austere churchman though he was but know- 
ing the country and its habits, would have considered hypocritical. 
Possibly, however unduly Reynolds may have magnified the work 
of the Assembly on the codes of 1827 and 1829 at the expense of 
the judges, he was measurably correct as to the labor bestowed by 
the Assembly on the task, and to a lesser extent as to its independent 
contribution. 

It was a great misfortune that the absence of Judge Smith pre- 
vented complete realization of the plans entertained by him and Judge 
Lockwood for a complete revision of the statutes. So far as we 
can discover the judges did not deal fully with property, either per- 
sonal or real, with persons, laws affecting the state, or with practice. 
The criminal law alone received complete and unified development, 
and chancery the next fullest treatment ; both probably by Lockwood. 

^Compare Philbrick, Laics of Indiana Territory (I. H. C, 21), cliii. 

-On this see: message of the governor, 1824, Alvord, Governor 
Edivard Coles (I. H. C, IS), 276-277; Ford, History of Illinois, 56-58, 
212-222; Snyder, Adam IV. Snyder, 178, 348-357, 367-372; Palmer, Bench 
and Bar, 1:31, 33. 



Ixiv ILLINOIS HISTORICAL COLLECTIONS 

It is noteworthy that in their report to the Assembly they stated, 
with regard to the last subject, that they had deliberately refrained 
from stating many traditional rules, considering it preferable that 
such matters should be dealt with by rules of court. ^ It is un- 
doubtedly also regrettable that the incompleteness of their work in- 
vited — indeed, compelled — intervention therein by the legislature. 
But for that intervention there would not have been, for example, 
four statutes on justices of the peace in the volume of 1827. There 
can be little doubt that, given time. Judge Lockwood would have 
insured the production of a code that would have given him greater 
fame than he enjoys. The greatest of all the code's defects was 
that it did not, even after the inclusion in the second volume of 
various enactments from the laws of 1819 and later session laws, 
realize the only proper ideals of revision — inclusiveness of content 
and exclusiveness of authority. The judges had proceeded upon the 
assumption that these were the ideals of the legislature, and had 
asked for time in which to realize them.^ But the Assembly acted 
precipitately, as in 1819 and again in 1833. The mere republication 
in the volume of 1829 of some statutes of earlier years, without 
exhaustive selection, and without repeal of all other enactments, re- 
sulted in merely adding two volumes — predominant as might be their 
utility — to the body of laws with which the bar must be familiar. 
Whatever its defects, the code of 1827-1829, as a digest in the 
only proper sense of that word — involving the working over and 
interadjustment of all statutes for the administration of justice — 
is probably the best piece of statutory revision yet produced in Illi- 
nois, notwithstanding that in one respect, that of arrangement, it was 
considerably improved upon (as will later be seen) by Mason 
Brayman in 1845, In all respects it was an immense step forward 
beyond its predecessors. This praise applies particularly to the 
volume of 1827, in which most of the judges' work is embodied, and 

^Ante, xlix, n. 1. 



INTRODUCTION Ixv 

less to the supplementary volume, indispensable in content as much 
of that volume was.^ 

Of the revised statutes of 1833 little need be said. It was in 
part necessitated by the near exhaustion of copies of the code of 
1827-1829 and succeeding session laws.^ John Reynolds, then 
governor, in his message of December 4, 1832, stated that the adapta- 
tion of the criminal code to the penitentiary system was still exceed- 
ingly imperfect, and recommended that the Assembly consider care- 
fully the reform of the judicial system.^ Within the month various 
members of the two houses gave notice of bills to reform the laws 
on ferries, attachments, executions, interest, fees, jurors, the record- 
ing system, circuit and probate judges, compulsory attendance of 
prosecuting attorneys, exoneration of sureties, compulsory residence 
of the attorney-general at the capital, contempts, enclosures, redemp- 
tion of land sold under execution ; and proposing various alterations 
in the office of justice of the peace (as respects jurisdiction, fees, 
jury trial, etc.)- The Senate committee on the judiciary, acting 
under instructions of inquiry given it at the beginning of the session, 
reported, naturally, that there were "many acts and parts of acts of 
considerable importance" to which amendments were desirable and 
of which compilation was needed, and recommended that the enter- 
prise be extended to include "all the laws of a public nature" which 
should be in force at the termination of the session.* While the 
above manifestations of discontent were multiplying, a joint resolution 
was thereafter moved in the lower house that a joint committee 

Ht is said of the volume of 1829 in Palmer, Bench and Bar, 1:231: 
"This volume contains many titles and gives the date of approval of the 
laws therein published." So did the revision of 1807, the laws of 1819, 
the code of 1827, the revised laws of 1833. It gave the date of original 
enactment of laws merely republished therein; but so did the revised laws 
of 1833. In stating that the volume (which is referred to as an inde- 
pendent code) "has but little claim to be regarded as a revision of the 
statutes" — that is, by itself, a revision of all the statutes — the writer is 
of course quite correct. But nobody could ever have suggested such a 
claim. 

^See report by the secretary of state, December 31, 1832, in Senate 
Journal, 1832-1833, p. 192. When county officers resigned, or were re- 
moved they "never" turned their copies over to their successors. Applica- 
tions to supply county deficiencies already exceeded the available supply- 

^Ibid., 22, 23. 

*Ibid., 29, 99. 



Ixvi ILLINOIS HISTORICAL COLLECTIONS 

"be appointed and instructed to revise all laws in force in this 
stale, including the territorial as well as other laws that are not 
embraced in the three volumes of revised laws of this state"^ — 
that is, of 1819, 1827, and 1829. In the end the undertaking was 
given the broader scope of the Senate committee's recommendation, 
and entrusted to the judiciary committees of the two houses.^ 

Their membership included several lawyers of marked ability,^ 
but the attention given by the Assembly to the work was very per- 
functory. Alexander P. Field was responsible for the form of the 
revised laws, being, as secretary of state, instructed to prepare the 
statutes for publication and cause them to be "arranged under the 
proper heads with marginal notes, &c."* 

Governor Reynolds passes over in silence this product of his ad- 
ministration, while lauding, as has been seen, the earlier code of 
1827-1829. It is possible (as his critics would be prone to say) that 
this contrast was due merely to his own more active participation 
in the preparation of the earlier work. It is also possible, however, 
that it was intended to express his indifference to the results realized 
by the later revision. They were certainly not great ; and the 
same may be said of the efforts of the legislature. We shall see 
that in details of arrangement some improvements were made ; but 
again the fatal defect is present — notwithstanding the ideal expressed 
in the resolution under which the committee acted — of realizing 
neither completeness nor exclusiveness in the compilation ; and that 
was inevitable, such was the haste with which the labor was per- 
formed. In each revision since 1815 the bulk of material that must 
be dealt with had increased, but the task of dealing with it had been 
undertaken in the hurry of part of a single session. 

^House Journal, 1832-1833, p. 194 (December 24, 1832). 

^Senate Journal, 1832-1833, pp. 159, 160, 162, 167; House Journal, 
1832-1833, pp. 207, 213. 

^The House members were Benjamin Mills, John T. Stuart, Wil- 
liam A. Minshaii, Murray McConnell (the only ones indexed in Palmer's 
Bench and Bar), and three others; those of the Senate included Adam 
W. Snyder, George Forquer, James M. Strode, and two others. Inclusion 
in the index of Palmer's work is a test of little significance; it does not, 
for example, include Adam W. Snyder. 

■^Senate Journal, 1832-1833, p. 261, January 11, 1833. Who actually 
performed these important duties does not appear. 



INTRODUCTION Ixvii 

The preparation of the revised statutes of 1845 was marked by 
the innovation of entrusting the work to a single lawyer, unconnected 
with the legislature. Unfortunately, Governor Ford, at whose sug- 
gestion the work was begun, and whose competence to judge it was 
unquestionable, has no word upon it in his History of Illinois. We 
know that he had great confidence in the compiler, Mason Brayman 
— since he entrusted to him not only this work, but delicate duties 
during the Mormon troubles of his administration;^ and that 
Brayman was a man of great and versatile abilities is evidenced not 
only by his work on the statutes but by his entire career.^ He be- 
gan the work as a private enterprise, presumably at the governor's 
suggestion. Thereafter the latter, in his message of December 2, 
1844, pressed the problem upon the attention of the legislature. 

"There has been," he said, "no revision, or republication of the 
general statute laws of the State, since the year 1833. Since that 
time one-third of the State, which was then a wilderness, has been 
populated. This portion of the people has never been supplied with 
the statutes, and in many of the older counties the copies of the re- 
vision of 1833, are becoming scarce, and almost out of print. There 
is, perhaps, nothing more imperatively demanded of the legislature 
than a thorough revision and republication of the statute laws. 
Most of the standard laws, I apprehend, will require but little re- 
vision. They were drawn by the judges of the supreme court, with 
great care, and are as near perfection as they could probably be 
brought during the hurry of a session of the legislature. There 
are, however, occasional laws passed since, which might be amended 

history of Illinois, 416-417. 

2Born in Buffalo, New York, May 23, 1813. After being a farmer 
and a newspaper editor, he was admitted to the bar in 1836, practiced 
law in Michigan and edited a paper in Kentucky until 1842, when he 
opened a law office in Springfield, Illinois. Governor Ford appointed him 
a commissioner to adjust the Mormon difficulties in 1843. After his work 
in revising the statutes (1844-1845) he continued practice; was attorney 
for the Illinois Central, 1851-1855, became a brevet major general in 
the Civil War; engaged in railroad enterprises in Illinois before, and 
in the South after, the war; edited the Illinois State Journal, 1872-1873, 
served as governor of the territory of Idaho, 1876-1880; lived in Wisconsin 
some time before and after that appointment; and died in Kansas City, 
February 27, 1895. Bateman and Selby, Historical Encyclopedia of Illinois, 



Ixviii ILLINOIS HISTORICAL COLLECTIONS 

with advantage; and such amendments would seem to be required 
before a general republication shall be authorized."^ 

It was thereupon resolved that the governor be asked whether a 
revision had already been begun or planned, and whether he judged 
such possible during the session; and that he be asked to express his 
opinion respecting the mode and extent of revision that was needed. 
His reply is unknown; but its general tenor in all respects can be 
surmised. It was resolved that revision was indispensably neces- 
sary; and it appears that the revision was near completion in mid- 
January. Its further supervision was entrusted to the two judiciary 
committees. They were instructed to arrange the statutes alpha- 
betically, make them "full, perfect, and consistent," and the re- 
viser was directed to make such alterations in them as "such com- 
mittee" should suggest.^ It is noteworthy that Stephen T. Logan 
(a member of the Judiciary Committee) and David Davis were 
among those who opposed the main resolution in the lower house, 
and that it was carried in the Senate by the narrow margin of twenty- 
one to seventeen. 

The work of the Assembly was rapid and unquestioning.^ Many 
chapters were passed after one reading. If the journals are ac- 
curate, some were passed more than once, and a few not at all. 
On the other hand, a considerable number of important topics were 
the subject of special discussion, and of bills initiated independently 
in the legislature. That the ultimate result was excellent has always 
been conceded. Palmer says that: 

"The revision did make the law 'plain and intelligible, . . . and 
did prune away excrescences, reconcile contradictions, and arrange 
in convenient order all the statutes as were in force at the time.' 

^House Journal, 1844-1845, pp. 12-13; Senate Journal, 1844-1845, pp. 
12-13. 

^House Journal, 1844-1845, pp. 97, 207, 216; Senate Journal, 1844- 
1845, pp. 194, 199, 201, 202-204, 241. Brayman's draft was required to be 
ready by February 1, 1845. It appears (House Journal, 208) that Gale's 
Illinois Statutes were then competing with the official editions. 

3"The committee appointed a sub-committee of their own number, 
but their work did not fully realize the expectations of the legislature" — 
Palmer, Bench and Bar, 1 :233. I have not discovered the membership 
of the sub-committee. That of the full committee is evidently of no 
significance. 



INTRODUCTION Ixix 

"The older lawyers will remember with satisfaction the publica- 
tion of the 'Braminical Code,' which afforded them reliable and con- 
venient access to the statutes of the state."^ 

Judge Marker reports that Judge Breese, Judge Treat (of the 
United States District Court), and Stephen T. Logan, praised 
highly Brayman and his work, and adds: "It is doubtful whether 
any work of the kind was ever more favorably received by bench and 
bar than was the revision of 1845."^ 

Some revision and improvement of the language of earlier enact- 
ments, some excisions of obsolete provisions, some removal of incon- 
sistencies, there undoubtedly were. Performance, however, fell far 
short, in these respects, of what would have been possible under a lit- 
eral interpretation of the broad powers and instructions above 
quoted. But no doubt such a literal interpretation was not intended. 
What the bar wanted and the enactment contemplated was no 
striving to make the statutes "perfect" by a study of legislation in 
other states, nor even by a reconsideration of past choices already 
made in earlier Illinois revisions, nor by an independent inquiry 
otherwise into the operation of existing laws. These were assumed 
to be, in substance, sufficiently near perfection. What was sought 
was to knit them better together, make them more intelligible and 
more accessible. 

Even with reference to this modest ambition it becomes necessary 
to consider the illogical distribution of matter under different 
statutory titles. With respect to this it is interesting to compare 
with Brayman's work the two preceding revisions. 

The code of 1827 dealt in separate chapters with bills of ex- 
change and promissory notes; with account, chancery, and ne exeat 
and injunction; with abatement, limitations, frauds and perjuries, 
amendments and jeofails, special bail, costs, depositions, evidence, 
habeas corpus, jurors, oaths and affirmations, and practice. These 

^Ibid. 

2"When we compare his work with the two previous revisions, and 
consider the conglomerate matter he had to deal with and the short time 
within which he finished we must be impressed with the thought that 
Brayman was a remarkable man." Illinois Laiv Bulletin, 2:52. He then 
gives some account (52 et seq.) of later revisions, mooted and actual, 
since 1845. Brayman's preface to this volume is interesting. 



Ixx ILLINOIS HISTORICAL COLLECTIONS 

titles suffered little change. In 1845, however, bills and notes were 
united in a chapter on negotiable instruments; and depositions were 
thrown under evidence. The code of 1829 dealt with the subject 
of estrays under that title and under horses; in 1845 they were still 
left apart. To the chancery chapters of 1827 another — originally in 
force in 182-^ — was added in 1829, being placed under the title of 
conveyances; this was left unaltered in 1833; in 1845 its matter 
was incorporated in the chapter on conveyances. In 1829, also, the 
title, shows and jugglers, making the exhibiting of such without 
license a misdemeanor, was added to the title of criminal juris- 
prudence of 1827. In 1845 this title and also gaming were inde- 
pendent. The volume of 1829 dealt separately with the subjects of 
conveyances, recorders and conveyances, and town plats (and the 
code of 1827 had the fourth title of state recorder). The 1827 
volume had a chapter on executors and administrators; the 1829 
supplement put all probate matter into a chapter on wills. This 
remained unchanged in 1833, but in 1845 a chapter was introduced 
on probate courts. The 1827 volume had a chapter on right of prop- 
erty — meaning, as noted above, the trial of disputed title incidentally 
to execution; but the 1829 volume introduced the main title, judg- 
ments and executions. They were left apart in 1833 and 1845. 
Partition had been a separate title in the revision of 1807, and in 
Pope's; but in 1827 it was treated of, no matter who the parties 
nor what the origin of their cotenancy, under dower. The revision 
of 1833 preserved this, but duplicated the subject matter by reproduc- 
ing unaltered — under the single title 'Tartitions, joint rights, and 
obligations," — a statute of 1821 which, as regards the second sub- 
ject, permitted any cotenant to use trespass or trover as though no 
cotenancy existed, abolished survivorship in joint tenancies, and made 
all joint obligations joint and several. In 1845 this particular con- 
fusion was removed. The subject of partition was treated of solely 
under that title, resurrected; and that of joint right and obligations 
preserved merely the three reforms of the act of 1821 — reforms, 
be it noted, that were omitted by the judges in 1827. Again, the 
revision of 1807 and that of Pope had included legislation requiring 
animals to be marked or branded and the marks or brands to be 



INTRODUCTION Ixxi 

recorded, though all these provisions were illogically placed only in 
the title on crimes, which merely provided punishment for misbrand- 
ing or altering brands. Lockwood, quite properly, retained only 
this last in his title on the criminal code, but neither the judges 
in 1827 nor the legislature in 1829 preserved elsewhere the other 
provisions, nor did the revised statutes of 1833. The revised statutes 
of 1845 restored them, under the resurrected title of marks and 
brands. The chapter on enclosures dealt in earlier law with en- 
closure and cultivation of common fields, in accord with a tradition 
of centuries; the code of 1833, which was followed in this respect 
in 1845 (though with a double title), introduced under that title 
general regulations of boundaries and fences. The code of 1829 
dealt, under the general title of land, and under the specific title of 
"occupying claimants of land," with the subject matter of eject- 
ment and also with compensation for bona fide improvements.^ 
The code of 1833 continued this; but also introduced, under the 
title of land, an enactment relative to the removal of fences mis- 
takenly erected on the land of others; another to facilitate recovery 
of damages for breach of contracts for the sale of improvements made 
on public lands; and still another concerning landlord and tenant, 
though this had been a distinct title in the code of 1827. The re- 
vised statutes of 1845 treated separately of all these matters, leaving 
the third alone under lands, throwing the first under ejectment 
(abolishing fictitious parties), the fourth under landlord and tenant, 
and the second (along with common fields) under inclosures and 
fences. On the other hand that revision introduced two new titles 
on warehouses and inspections, though the latter dealt exclusively 
with warehouses. 

These examples sufficiently illustrate the indubitable fact that 
Brayman made many improvements, in details, upon preceding com- 
pilations of the statutes. The merits of his revision were mainly 
mechanical, of rearrangement ; but they were evident and great. 
Nevertheless the revision of 1845 remained, in its general arrange- 
ment, much like its predecessors. 

iTliis went back to a law of 1811 adopted from Kentucky — Alvord, 
Labi's of the Territory of Illinois, 1809-1811, 29; included in Pope's Digest, 
2:485. 



Ixxii ILLINOIS HISTORICAL COLLECTIONS 

Of course all this merely illustrates the fact that Illinois has never 
had either a "logical" (an analytical) statutory classification, or a 
topical-alphabetical arrangement logically consistent ; and the solution 
of that problem is the greatest one confronting those who prepare 
the next revision of the statutes.^ 

And now^, finally, there remains the question how far the statutes 
included in the work of Pope had continued life in the later revi- 
sions down to 1833 or 1845 or later. The answer is, naturally 
enough, that — aside from the addition of new titles, and aside from 
the rewriting of some old titles as a result of a new social spirit 
regarding them — the statutes in Pope's volumes contain a large 
permanent contribution to the legal system of the state. Down 
through 1833, particularly, the changes consist in the main merely 
in elaboration, and alterations in details. No one save a lawyer 
very familiar in practice with the present statutory regulations of 
any given subject could be competent to judge, reading backward 
through the statute-books, the probable desirability or undesirability 
of such alterations at the times they were made, or relate them, 
or their later abandonment or retention, to the peculiar conditions 
of changing times. Yet a mere reading of the revisions must cer- 
tainly convince one — though the conclusion would be assumed by 
any lawyer — that great masses of our law, and many notable features, 
go straight back to the legislation of the territorial periods of Illinois 
and Indiana. And no doubt, too, a lawyer of the special competence 
just indicated would discover in reading the statutes that not a few 
excellent things have been dropped, for lack of liberality and fore- 
sight, by the way.^ 

There are, of course, many other things than arrangement that 
are of interest in these old codes. By 1829 there had entered our 
law for example, — some of them going back to origins antedating the 
separate organization of Illinois — acts for the relief of persons hav- 
ing conscientious scruples against bearing arms, or taking judicial 
oaths in the regular form; an embryonic law recognizing me- 

iSee the remarks of Judge Oliver A. Marker in the Illinois Law 
Bulletin, 2:59. 

2As, for example, the act referred to, ante, Ix, n. 1 ; and — temporarily 
— the reforms of joint tenancy and joint obligations, and of actions by 
any cotenants, referred to, ante, Ixx. 



INTRODUCTION Ixxiii 

chanics' liens; laws on crimes, on wills, and on conveyancing (in- 
cluding the abolition of estates tail) very much as they exist today; 
the abolition of survivorship in joint tenancy, and the conversion of 
all joint into joint and several obligations; an elaborate recording 
system; the equivalence to a seal of "a scrawl by way of seal";^ 
and the power of a court of equity to act in rem by directing the 
conveyance of land for a defendant who refuses to do so^ — in 
truth a long list of notable improvements upon the common law. 
Doubtless the revisions contain many noteworthy matters whose 
significance only an expert in their respective fields would recognize. 
The laws of 1833, for example, contain an act relating to summary 
procedure — disappearing only in 1874, after gradually falling into 
desuetude — upon which Professor Robert W. Millar has recently 
commented as one of the few experiments with summary procedure 
to be found in American law until very recent times.^ 

In some fields legislation that had merely begun was soon greatly 
to increase — as in those of roads and internal improvement. The 
spirit of legislation was later to change radically in certain fields, 
and with it all the details of the laws — as on the subjects of negroes, 
and family relations (in 1845 there appeared new titles on births 
and deaths, bastardy, etc.). Wholly new fields of legislation were 
to open up, — notably in those of labor and public utilities — corpora- 
tions, charitable uses, state library, liens, and drovers being new titles 



^Compare Philbriclc, Laivs of Indiana Territory (I. H. C, 21), 
39, 452— laws of Indiana Territory, 1803, 1807, to the same effect. 

2This goes back to 1805 — Philbrick, Laivs of Indiana Territory (I. H. 
C, 21), 111, 510, through Pope's Digest, 2:327, § 31; the decree itself, 
under these statutes, passing the title. The law appears in its present 
form, authorizing the court to direct a commissioner to pass title, in the 
codes of 1827 (title, chancery, § 30), 1833 (same, § 21), the revised 
statutes of 1845 (same, § 43), and so today (same, § 46, Cahill, 1929). 
See C. A. Huston, Enforcement of Decrees in Equity, particularly 17 
et seg., and compare his appendix of statutes. Judge Lockwood had been 
a master in chancery in New York before coming to Illinois; it is note- 
worthy that he disregarded the narrowness of the New York system. The 
reform began in Maryland with a statute of 1785. 

3"Three American Ventures in Summary Civil Procedure," Yale 
Law Journal, 38: 193, 210. 



Ixxiv ILLINOIS HISTORICAL COLLECTIONS 

of 1845.^ All this was to make later revisions increasingly bulk- 
ier, and in content far more varied than these earlier statutory 
compilations. But down through the revision of 1845 the change 
lies for the most part merely in an elaboration and closer integra- 
tion of ideas and provisions already present in the statute-book. 

^''Warehouses" was a new title, as such, but in fact the subject- 
matter was not new. The code of 1829 contained an elaborate act of 
1825 establishing warehouses for, and regulating the inspection of, to- 
bacco; and the laws of 1816-1817 (p. 25) had contained "an act to estab- 
lish Inspections Within the Territory" which provided for the warehousing 
and inspection of beef, pork, hemp, flour, and tobacco. These tobacco 
(and hemp) acts attracted ironic comment by Governor Ford, History of 
Illinois, 34, who says there never was any of either in the state. Since 
a very large percentage of the immigrants into southern Illinois were 
from Kentucky, there certainly must have been attempts to raise tobacco; 
legislation based upon unfounded hopes of a great development of the 
industry was no more deserving of irony than the old laws on salines, 
canals, and the state bank, or the slightly later laws on saltpetre caves 
and castor beans. One very noticeable gap — from a modern viewpoint — 
in the territorial legislation is the almost complete absence of any legisla- 
tion that has to do with agriculture. The matter is trivia! save as illus- 
trating the occasional undue irony or bitterness, and lack of judgment, 
which weakens Ford's remarkably philosophic and valuable work. The 
title of inspections in the revised statutes of 1845 dealt mainly with to- 
bacco warehouses. 



LAWS 

OF THE 

ILLINOIS TERITORY 

VOLUME I. 



LAWS 

OF THE 

TERRITORY 

OF 

ILLINOIS, 

REVISED AND DIGESTED 
UNDER THE 

AUTHORITY 

OF THE 

LEGISLATURE, 



BY NATHANIEL POPE. 
VOLUME L 



KASKASKIA: 

PRINTED BY 

MATTHEW DUNCAN 

PRINTER TO THE 
Territory. 

June, 2nd, 1815. 



LIST OF THE LAWS 

PUBLISHED 
IN THIS VOLUME. 



1787 — July 13. — An Ordinance for the gov- 
ernment of the territory of the United States 
North-west of the river Ohio. 1 

1789 — August 7. — An act to provide for the 
government of the territory North-west of 
the river Ohio 16 

1792 — May 8. — An act respecting the gov- 
ernment of the territories of the United States 
North-west and South of the river Ohio 18 

1800 — May 7. — An act to divide the territory 
of the United States North-west of the Ohio, 
into two separate governments. 20 

1809— Ff^. 3. — An act for dividing the Indi- 
ana territory into two separate goven- 
ments 24 

1812 — May 20 — An act to extend the right 
of suffrage in the Illinois territory and for 
other purposes 28 



LAWS OF ILLINOIS TERRITORY. 

1812 — Dec. 13. — An act declaring what laws 

are in force in the Illinois territory. 33 



LIST OF LAWS. viii 

\S07— Sept. 17. — An act declaring what 

laws shall be in force. 34 

1807 — Sept. 19. — ^An act declaring that the 
laws of the territory as revised and reported 
to the Legislature, shall, with the several 
additions, amendments and alterations made 
to the original laws, have force in the ter- 
ritory. 35 

1807—5^^/. 17. — An act to authorise Aliens 
to purchase and hold real estates within this 
territory. 39 

" An act respecting Apprentices. 40 

An act authorising and regulating Arbitra- 
tions 43 

An act making promissory notes, bonds and 
inland bills of exchange negotiable. 48 

" An act allowing foreign Attachments. 51 

1807 — Sept. 17. — An act prescribing the 
mode of proceeding against absconding 
debtors 54 

An act regulating the admission and prac- 
tice of attornies and counsellors at law 59 

" An act for rendering authentic as evidence 
in the courts of this territory the public acts, 
records, and judicial proceedings of courts 
in the United States. 66 

An act to regulate the enclosing and culti- 
vating of common Fields. 67 



LIST OF LAWS. ix 

1807 — Sept. 17 — An act providing for the ap- 
pointment of constables. 75 

An act for the appointment of coroners their 
duty and power. 78 

An act respecting crimes and punish- 
ments. 90 

1808 — Oct. 26. — An act to amend an act 
"entitled "an act respecting crimes and 
punishments. 112 

1810 — Jan. 26. — An act concerning fornica- 
tion and adultery, adopted from the Georgia 
code. 113 

1810 — Feb. 27, — An act to repeal part of 
an act of the general assembly of the Indiana 
territory passed the 17 day of September 
A. D. 1807 entitled "an act respecting 
crimes and punishments." 115 

1 807 — Sept. 1 7. — An act respecting di- 
vorce. 117 

An act for the speedy assignment of 
dower. 119 

An act as to proceedings in ejectment, dis- 
tress for rent and tenants at will holding 
over 129 

" A law to regulate elections. 143 

1812 — Dec. 25. — An act regulating elec- 
tions. 152 

B first vol. 1. 
7 



X LIST OF LAWS 

1813 — Dec. 8. — An act supplemental to an 
act entitled "an act regulating elections" 
passed the twenty-fifth day of December 
1812. 154 

Dec. 11. — An act supplemental to an act entitled 

"an act regulating elections." 156 

1814 — Dec. 22. — An act declaring the elegi- 
bility of certain officers to a seat in the le- 
gislature. 157 



1807. — Sept. 17. — An act regulating enclo- 
sures. 



159 



An act to regulate the disposition of water 
crafts of certain discriptions found gone or 
going adrift, and of estray animals. 164 

An act subjecting real estates to execution for 

debt. 178 

An act concerning executions 186 

1808 — Oct. 26. — An act to amend an act en- 
titled "an act concerning executions." 189 

181-1 — Dec. 9. — An act concerning execu- 
tions 192 

1807 — Sept. 17. — An act authorising the 
granting of letters testamentary and letters 
of administration, for the settlement of in- 
testates estates and for other purposes. 195 

1808 — Oct. 24. — An act to amend an act en- 
titled "an act authorising the granting of 
letters testamentary and letters of adminis- 
tration, for the settlement of intestates es- 
tates and for other purposes. 220 

1813 — Dec. 10 — An act supplemental to 



LIST OF LAWS xi 

an act entitled " an act authorising the gran- 
ting of letters testamentary and letters of ad- 
ministration for the settlement of intestate's 
estates and for other purposes. 222 

1807 — Sept. 17. — An act regulating the fees 
of the several officers and persons therein 
named. 227 

181-1 — Dec. 24. — An act regulating the fees 
of justices of the peace, constables and re- 
corders. 238 

1807 — Sept. 14. — An act regulating the fees 

in the general court and for other purposes 248 

1812 — Dec. 26. — ^An act concerning clerks' 
fees in the court of chancery and for other 
purposes 254 

1808 — Oct. 22. — An act to amend an act en- 
titled "an act regulating the fees of the se- 
veral officers and persons therein named 255 

1814 — Dec. 20 — ^An act defining and ex- 
plaining the fees of sheriffs and clerks in 
certain cases. 257 

1807 — Sept. 17. — An act to establish and regu- 
late Ferries. 261 

1812 — Dec. 25. — An act to amend an act 
entitled "an act to establish and regulate 
Ferries. 260 

181-1 — Nov. 28.— An act for the relief of the 
legal representatives of Alexander Wilson 
deceased. 267 



xii LIST OF LAWS 

Dec. 22 — 1814. — An act to amend an act 
entitled "an act to amend an act entitled 
"an act to establish and regulate Fer- 
ries." 



" An act for improving the breed of hor- 
ses. 



269 



1807 — Sept. 17. — An act regulating the firing 

of Woods, Prairies & other lands. 271 

" An act against forcible entry and Detain- 
er. 273 



285 



" An act directing the manner of proceeding 

in cases of impeachment 286 

" An act prohibiting the sale of ardent spirits 
and other intoxicating Liquors to In- 
dians. 287 

1813 — Dec. 8. — An act prohibiting the trading 

with Indians &c. 290 

1814 — Dec. 22. — An act concerning the 

Kaskaskia Indians. 295 

December 24. — An act to promote retaliation 

upon hostile Indians 292 

1807 — Sept. 17. — An act for the relief of per- 
sons imprisoned for debt. 300 

1809 — July 21. — A law to prevent frauds and 
perjuries, adopted from the Kentucky 
Code. 281 

1810 — Feb. 26. — An act regulating the man- 

10 



LIST OF LAWS xii 

ner of talcing depositions, adopted from the 
Georgia Code. 116 

April 7. — An act to suppress duelling, adopted 

from the Virginia Code. 122 

\^U—Dec. 1.— An act for the reh'ef of Dun- 
kards Quakers and other religious persons 
conscienciously scrupulous of bearing 
arms. 127 

" An act concerning fines & forfeitures. 270 

1813 — Dec. 11. — An act establishing the 
boundary line between the counties of Ran- 
dolph & St. Clair. 84 

An act establishing the boundary lines of 
Gallatin county. 85 

181-^ — Nov. 28. — An act for the division of 

Gallatin county. 85 

December 1. — An act concerning the abate- 
ment of suits by the death of the parties 37 

22. — An act concerning Indictments and 
Presentments. 299 



11 



PRINCIPAL MATTERS CONTAINED 
IN THIS VOLUME 

Ordinance. 1 

Acts of Congress. 16 

Declaratory Laws. 33 

A 

Abatement 37 

Aliens 39 

Apprentices 40 

Arbitrations 43 

Assignment 48 

Attachment 51 

Attorneys 58 

Authentication of Records 66 

C 

Common Fields 67 

Constable . . 75 

Coroner 78 

Counties 84 

Crimes 90 

D 

Depositions 116 

Divorce 117 

Dower 119 

Duelling 122 

Dunkards and Quakers 127 

E 

Ejectment & distress for Rent 129 

Elections 143 

Enclosures 159 

Estrays 164 

Executions 178 

Executors & Administrators 195 



13 



xvi PRINCIPAL MATTERS: 

F 

Fees 227 

Ferries 260 

Fines and Forfeitures 270 

Firing of Woods & Prairies 271 

Forcible Entry & Detainer 273 

Frauds and perjuries 281 

H 

Horses 285 

I 

Impeachment 286 

Indians 287 

Indictment 299 

Insolvency 300 



14 



AN ORDINANCE. 

For the Government of the Territory 
of the United States, North-west of 
the River Ohio. 

BE IT ORDAINED, by the United 
States, in Congress assembled, That 
the said territory, for the purposes of 
temporary government, be one district ; 
subject, however, to be divided into 
two districts, as future circumstances 
may, in the opinion of congress, make 
it expedient. 



N. W terri. 
tory to be 1 
district, but 
subject to di- 
vision, 



Be it ordained, by the authority 
aforesaid, That the estates both of 
resident and non-resident proprietors in 
the said territory, dying intestate, shall 
descend to, and be distributed among 
their children, and the descendants of 
of a deceased child in equal parts; 
the descendants of a deceased child or 
grand child, to take the share of their 
deceased parent in equal parts among 
them ; and where there shall be no 
children or descendants, then in equal 
parts to the next of kin, in equal de- 
gree ; and among collaterals, the 
children of a deceased brother or sister 



Hew estates 
of intestates 
sliall descend 



15 



Ordinance 



Dower sa- 
ved. 



Disposition 
of estates by 
will, 



Of real est's 
by 



Wills to be 
proved and 
deeds recor- 
ded. 



Personal es- 
tates, how 
transferred. 



of the intestate, shall have, in equal 
parts among them, their deceased 
parents' share; and there shall, in no 
case, be a distinction between kindred 
of the whole and half blood ; saving in 
all cases to the widow of the intestate 
her third part of the real estate for 
life, and one third part of the personal 
estate; and this law relative to descents 
and dower shall remain in full force 
until altered by the legislature of the 
district. And until the governor and 
judges shall adopt laws, as hereinafter 
mentioned, estates in the said territory 
may be devised or bequeathed by wills 
in writing, signed and sealed by him or 
her, in whom the estate may be (being 
of full age) and attested by three wit- 
nesses; and real estates may be convey- 
ed by lease and release, or bargain and 
sale, signed, sealed and delivered by the 
person, being of full age, in whom the 
estate may be, and attested by two 
witnesses, provided such wills be duly 
proved, and such conveyances be ac- 
knowledged, or the execution thereof 
duly proved, and be recorded within 
one year after proper magistrates, 
courts and registers shall be appointed 
for that purpose; and personal pro- 
perty may be transferred by delivery, 
saving, however, to the French and 
Canadian inhabitans, and other settlers 
of the Kaskaskies, Saint Vincents and the 



16 



Ordinance. 3 

neighboring villages, who have here- 
tofore professed themselves citizens of 
Virginia, their laws and customs now 
in force among them, relative to the 
descent and conveyance of property. 



Be it ordained, by the authority 
aforesaid. That there shall be appointed, 
from time, to time, by congress, a gov- 
ernor, whose commission shall continue 
in force for the term of three years, 
unless sooner revoked by congress; he 
shall reside in the district, and have a 
freehold estate therein, in one thousand 
acres of land, while in the exercise of 
his office. There shall be appointed, 
from time to time, by congress, a sec- 
retary, whose commission shall contin- 
ue in force for four years, unless sooner 
revoked ; he shall reside in the district, 
and have a freehold estate therein in 
five hundred acres of land, while in the 
exercise of his office. It shall be his 
duty to keep and preserve the acts 
and laws passed by the legislature, and 
the public records of the district and 
the proceedings of the governor in his 
executive department, and transmit 
authentic copies of such acts and pro- 
ceedings every six months, to the sec- 
retary of congress. There shall also be 
appointed a court, to consist of three 
judges, any two of whom to form a 
court, who shall have a common law 



Governor 
for what 
term cont'd. 



his qnalifica- 
tions 



Secretary for 
what term 
commission- 
ed. 



his qualifi- 
cation &e. 



3 territorial 
judges to be 
appointed. 



17 



Ordinance. 



Their pow- 
er and quali- 
fication. 



jurisdiction, and reside in the district, 
and have each therein a freehold estate 
in five hundred acres of land, while in 
the exercise of their offices; and their 
commissions shall continue in force 
during good behaviour. 



The gov. & 
judges to a- 
dopt & pub- 
lish the laws 
and report 
them. 



The governor and judges, or a major- 
ity of them, shall adopt and publish in 
the district such laws of the original 
states, criminal and civil, as may be 
necessary, and best suited to the circum- 
stances of the district, and report them 
to congress from time to time, which 
laws shall be in force in the district 
until the organization of the general 
assembly therein, unless disapproved of 
by congress ; but afterwards the legis- 
lature shall have authority to alter 
them as they shall think fit. 



Powers of 
the governor 



The governor for the time being shall 
be commander in chief of the militia, 
appoint and commission all officers in 
the same, below the rank of general 
officers ; all general officers shall be ap- 
pointed and commissioned by congress. 



Further pow 
ers of the 
governor. 



Previous to the organization of the 
general assembly, the governor shall 
appoint such magistrates and other 
civil officers in each county or town- 
ship as he shall find necessary for the 
preservation of the peace and good 
order in the same. After the general 



18 



Ordinance. 



assembly shall be organized, the powers 
and duties of magistrates and other 
civil officers shall be regulated and de- 
fined by the said assembly ; but all 
magistrates and other civil officers, not 
herein otherwise directed, shall during 
the continuance of this temporary gov- 
ernment, be appointed by the gover- 
nor. 



Powers and 
duties of ma- 
gistrates how 
to be regula- 
ted & de- 



For the prevention of crimes and 
injuries, the laws to be adopted or 
made shall have force in all parts of the 
district, and for the execution of pro- 
cess, criminal and civil, the governor 
shall make proper divisions thereof; 
and he shall proceed from time to time, 
as circumstances may require, to lay 
out the parts of the district in which 
the Indian titles shall have been extin- 
guished, into counties and townships, 
subject, however, to such alterations as 
may thereafter be made by the legis- 
lature. 



Laws adopt 
ed or made, 
their force. 



Governor to 
lay out coun- 
ties & town- 
ships where 
Indian titles 
are extinct 



So soon as there shall be five thou- 
sand free male inhabitants, of full age, 
in the district, upon giving proof there- 
of to the governor, they shall receive 
authority, with time and place, to 
elect representatives from their coun- 
ties or townships to represent them in 
the general assembly; Provided, That 
for every five hundred free male inhab- 



Five thousand 
free male 
may elect 
representa- 
tives to a gen 
eral assembi 



In what pro 
portion. 



19 



Ordinance. 



Qualifica- 
tions of rep- 
resentatives. 



Proviso, for 
furtlier qual- 
ifications. 



itants, there shall be one representa- 
tive, and so on progressively with the 
number of free male inhabitants, shall 
the right of representation increase, 
until the number of representatives shall 
amount to twenty-five, after which the 
number and proportion of representa- 
tives shall be regulated by the legisla- 
ture ; Provided, That no person be 
eligible or qualified to act as a repre- 
sentative, unless he shall have been a 
citizen of one of the United States three 
years, and be a resident in the district 
or unless he shall have resided in the 
district three years, and in either case 
shall likewise hold in his own right, in 
fee simple, two hundred acres of land 
within the same ; Provided also. That 
a freehold in fifty acres of land in the 
district, having been a citizen of one of 
the states, and being resident in the 
district, or the like freehold, and two 
years residence in the district, shall be 
necessary to qualify a man as an elector 
of a representative. 



Term of ser- 
vice. 



The representative thus elected shall 
serve for the term of two years; and 
in case of the death of a representative, 
or removal from office, the governor 
shall issue a writ to the county or 
township for which he was a member, 
to elect another in his stead, to serve 
for the residue of the term. 



20 



Ordinance. 



The general assembly, or legislature, 
shall consist of the governor, legislative 
council and a house of representatives. 
The legislative council shall consist of 
five members, to continue in office five 
years, unless sooner removed by con- 
gress; any three of whom to be a 
quorum. And the members of the 
council shall be nominated and appoin- 
ted in the following manner, to wit; 
As soon as representatives shall be 
elected, the governor shall appoint a 
time and place for them to meet 
together, and when met, they shall 
nominate ten persons, residents in the 
district, and each possessed of a freehold 
in five hundred acres of land, and 
return their names to congress; five of 
whom congress shall appoint and com- 
mission to serve as aforesaid ; and 
whenever a vacancy shall happen in the 
council, by death or removal from 
office, the house of representatives shall 
nominate two persons, qualified as 
aforesaid for each vacancy, and return 
their names to congress; one of whom 
congress shall appoint and commission 
for the residue of the term. And every 
five years, four months at least before 
the expiration of the time of service of 
the members of council, the said house 
shall nominate ten persons, qualified as 
aforesaid, and return their names to 
congress; five of whom congress shall 



General as- 
sembly, hew 
composed. 



How con- 
vened. 



A conncil to 
be appointed 
&c. and va- 
cancies sup- 
plied. 



21 



8 



Ordit 



The govern- 
or, legisla- 
tive council 
and house of 
representa- 
tives to make 
laws. 



Governor's 
assent requir- 
ed to all 
laws. 



appoint and commission to serve as 
members of the council five years, 
unless sooner removed. And the gov- 
ernor, legislative council, and house of 
representatives shall have authority to 
make laws, in all cases, for the good 
government of the district, not repug- 
nant to the principles and articles in 
this ordinance established and declared. 
And all bills having passed by a majori- 
ty in the house, and by a majority in 
the council, shall be referred to the 
governor for his assent ; but no bill or 
legislative act whatever shall be of any 
force without his assent. The gover- 
nor shall have power to convene pro- 
rogue and dissolve the general assembly, 
when in his opinion it shall be expe- 
dient. 



Oaths of fi- 
delity to be 
taken by of- 
ficers of go- 
vernment. 



Gouncil and 
house of re- 
presentatives 
to elect a 
delegate to 
congress &e 



The governor, judges, legislative 
council, secretary and such other 
officers as congress shall appoint in the 
district, shall take an oath or affirm- 
ation of fidelity, and of office ; the gov- 
ernor before the president of congress, 
and all other officers before the gover- 
nor. As soon as a legislature shall be 
formed in the district, the council and 
house assembled, in one room, shall 
have authority, by joint ballot, to elect 
a delegate to congress, who shall have 
a seat in congress, with a right of deba- 



22 



Ordinance. 9 

ting, but not of voting during this tem- 
porary government. 



And for extending the fundamental 
principles of civil and religious liberty, 
which form the basis whereon these 
republics, their laws and constitutions 
are erected; to fix and establish those 
principles as the basis of all laws, con- 
stitutions and governments, which for- 
ever hereafter shall be formed in the 
said territory; to provide also for 
the establishment of states, and perma- 
nent government therein, and for their 
admission to a share in the federal 
councils, on an equal footing with the 
original states, at as early periods as may 
be consistent with the general inter- 
est; 



Preamble to 
wards the 
basis of a fu- 
ture govern- 
ment. 



It is hereby ordained and declared 
by the authority aforesaid, That the 
following articles shall be considered as 
articles of compact between the original 
states, and the people and states in the 
said territory, and forever remain un- 
alterable, unless, by common consent, 
to wit. 



Declaratory 
clause. 



ARTICLE I. 



No person demeaning himself in a 
peaceable and orderly manner, shall 
ever be molested on accouut of his 



Religious 
liberty 



B 



23 



10 



Ordir. 



mode of worship or religious sentiments 
in the said territory. 

ARTICLE II. 



Benefit of 
hab. cor. tri- 
al by jury, 
&e. 



Fines to be 
moderate: 
no cruel or 
unusual pun 
ishment &c. 



no expost fac 
to laws to 
be made. 



The inhabitants of the said territory 
shall always be entitled to the benefits 
of the writ of habeas corpus, and of the 
trial by jury; of a proportionate repre- 
sentation of the people in the legisla- 
ture, and of judicial proceedings accor- 
ding to the course of the common law. 
All persons shall be bailable, unless for 
capital offences, where the proof shall 
be evident, or the presumption great. 
All fines shall be moderate ; and no 
cruel or unusual punishments shall be 
inflicted. No man shall be deprived of 
his liberty or property, but by the 
judgement of his peers, or the law of 
the land ; and should the public exigen- 
cies make it necessary, for the common 
preservation, to take any person's 
property, or to demand his particular 
services, full compensation shall be 
made for the same. And in the just 
preservation of rights and property, it 
is understood and declared, that no 
law ought ever to be made, or have 
force in said territory, that shall in any 
manner whatever interfere with, or 
affect private contracts or engagements, 
bona fide, and without fraud previous- 
ly formed. 



24 



Ordinance. 1 1 

ARTICLE III. 



Religion, morality and knowledge, 
being necessary to good government and 
the happiness of mankind, schools and 
the means of education shall for ever be 
encouraged. The utmost good faith 
shall always be observed towards the 
Indians; their lands and property shall 
never be taken from them without 
their consent; and in their property, 
rights and liberty, they never shall be 
invaded or disturbed, unless in just and 
lawful wars, authorized by congress; 
but laws, founded in justice and humani- 
ty, shall, from time to time, be made, 
for preventing wrongs being done to 
them, and for preserving peace and 
friendship with them. 



Ed cafion to 
be encoura- 
ged & good 
faith to the 
Indians ob- 
served. 



ARTICLE IV. 



The said territory, and the states 
which may be formed therein shall for 
ever remain a part of this confederacy 
of the United States of America, sub- 
ject to the articles of confederation, 
and to such alterations therein as shall 
be constitutionally made; and to all the 
acts and ordinances of the United States 
in congress assembled, conformable 
thereto. The inhabitants & settlers in 
the said territory shall be subject to pay 
a part of the federal debts contracted, 



To remain a 
part of the 
union. 



Subject to a 
proportion 
of the fede- 
ral debt. 



25 



Ordinance. 



12 



Not to inter- 
fere with the 
disposal of 
land by the 
U. S. 



U. S. land 
not to be tax 
ed; nor those 
of non-resi- 
dents higher 
than others. 



Waters com 
mon high- 
ways. 



or to be contracted & a proportional part 
of the expenses of government, to be ap- 
portioned on them by congress, according 
to the same common rule and measure by 
which apportionments thereof shall be 
made on the other states ; & the taxes for 
paying their proportion, shall be laid & 
levied by the authority and direction 
of the legislatures of the district or 
districts or new states, as in the original 
states, within the time agreed upon by 
the United States in congress assembled. 
The legislatures of those districts or 
new states, shall never interfere with 
the primary disposal of the soil by the 
United States in congress assembled, 
nor with any regulations congress may 
find necessary for securing the title in 
such soil to the bona fide purchasers. 
No tax shall be imposed on lands the 
property of the United States; and in 
no case shall non-resident proprietors 
be taxed higher than residents. The 
navigable waters leading into the 
Mississippi and St. Lawrence, and the 
carrying places between the same, shall 
be common highways, and forever free, 
as well to the inhabitants of the said 
territory, as to the citizens of the Uni- 
ted States, and those of any other states 
that may be admitted into the confede- 
racy, without any tax, impost, or duty 
therefor. 



26 



Ordh 



13 



ARTICLE V. 



There shall be formed in the said 
territory, not less than three, nor 
more than five states; and the bounda- 
ries of the states, as soon as Virginia 
shall alter her act of cession, and con- 
sent to the same, shall become fixed 
and established as follows, to wit. The 
western state in the said territory shall 
be bounded by the Mississippi, the Oh o 
and Wabash rivers; a direct line drawn 
from the Wabash and Post Vincents due 
north to the territorial line between 
the United States and Canada; and 
by the said territorial line to the lake of 
the Woods & Mississippi. The middle 
state shall be bounded by the said direct 
line, the Wabash from Post Vincents 
to the Ohio; by the Ohio, by a direct 
line drawn due north from the mouth of 
the great Miami, to the said territorial 
line, and by the said territorial line. 
The eastern state shall be bounded by 
the last mentioned direct line, the Ohio, 
Pennsylvania, and the said territorial 
line. Provided however, and it is fur- 
ther understood and declared. That the 
boundaries of these three states shall be 
subject so far to be altered, that if con- 
gress shall hereafter find it expedient, 
they shall have authority to form one 
or two states in that part of the said 
territory which lies north of an east 



Not less 
than 3 nor 
more than 5 
states to be 
formed. 



Their boun- 
daries. 



Reservation 
to congress. 



27 



14 



Ordinance. 



When admit 
ted as a state 



Proviso. 



and west line drawn through the south- 
erly bend or extreme of lake Michigan. 
And whenever any of the said states, 
shall have sixty thousand free inhabi- 
tants therein, such state shall be admit- 
ted, by its delegates, into the congress 
of the United States, on an equal 
footing with the original states, in all 
respects whatever; and shall be at lib- 
erty to form a permanent constitution 
and state government. Provided, The 
constitution and government so to be 
formed, shall be republican, and in con- 
formity to the principles contained in 
these articles; and so far as it can be 
consistent with the general interest of 
the confederacy, such admission shall be 
allowed at an earlier period, and when 
there may be a less number of free in- 
habitants in the state than sixty thou- 
sand. 



ARTICLE VI. 



No slavery. 



Persons esca 
ping from o- 
ther states re 
claimed. 



There shall be neither slavery nor 
involuntary servitude in the said territo- 
ry, otherwise than in punishment of 
crimes, whereof the party shall have 
been duly convicted. Provided always, 
That any person escaping into the same, 
from whom labor or service is lawfully 
claimed in any one of the original states, 
such fugitive may be lawfully reclaim- 
ed, and conveyed to the person claiming 
his or her labor or service aforesaid 



28 



1784 repi'd. 



Ordinance. 15 

Be it ordained by the authority afore- 
said, That the resolutions of the twenty- Resolutions 
third of April one thousand, seven hun- 1784 rmJvA. 
dred and eighty four, relative to the 
subject of this ordinance be, and the 
same are hereby repealed, and declar- 
ed null and void. 

DONE by the United States, in 
congress assembled, the thir- 
teenth day of July, in the year 
of our Lord, one thousand, seven 
hundred and eightyseven, and 
of their sovereignty and indepen- 
dence the twelfth. 

Wm. GRAYSON, Chairman, 

Charles Thompson, Secretary. 



29 



Acts of Congress 16 

AN ACT 

To provide for the Government of the 
Territory North-west of the River 
Ohio. 

Recital. WHEREAS in order that the ordi- 

nance of the United States in Congress 
assembled, for the government of the 
territory north-west of the river Ohio 
may continue to have full effect, it is 
requisite that certain provisions should 
be made, so as to adapt the same to the 
present constitution of the United 
States: 



Governor to 
make com- 
munication 
to president 
of U. States. 



Officers how 
appointed. 



Sec. 1 Be it enacted by the Senate 
and House of Representatives of the 
United States of America in Congress 
assembled. That in all cases in which by 
the said ordinance, any information is 
to be given, or communication made 
by the Governor of the said territory 
to the United States in Congress assem- 
bled, or to any of their officers, it shall 
be the du y of the said governor to give 
such information and to make such 
communication to the President of the 
United States; and the President shall 
nominate, and by and Avith the advice 
and consent of the Senate, shall appoint 
all officers which by the said ordinance 
were to have been appointed by the 
United States in congress assembled, 



30 



Acts of Congress. 



17 



and all officers so appointed, shall be 
commissioned by him: and in all cases 
where the United States in Congress 
assembled, might by the said ordinance, 
revoke any commission or remove from 
any office, the President is hereby de- 
clared to have the same powers of 
revocation and removal. 



Commission- 
ed and remo 



Sec. 2. And be it further enacted, 
That in case of the death, removal, 
resignation, or necessary absence of the 
governor of the said territory, the 
Secretary thereof shall be, and he is 
hereby authorised and required to ex- 
ecute all the powers, and perform all 
the duties of the governor, during the 
vacancy occasioned by the removal, 
resignation or necessary absence of the 
said governor. 



In ease of 
death, remo 
vol &c secre 
tary to exe- 
eate tlie pow 
er of gov. 



FREDERICK A. MUHLENBERG. 

Speaker of the House of Representa- 
tives. 

JOHN ADAMS, Vice-President of 
the United States, and President of the 
Senate. 

Approved, 

August the 7th, 1789: 

GEORGE WASHINGTON. 

President of the United States. 



31 



Acts of Congress 18 

AN ACT 

Respecting the Government of the 
Territories of the United States 
North West and South of the River 
Ohio. 



Laws of N. 
Western ter- 
ritory how 
to be publi- 
shed, distri- 
buted. &c. 



Sec. 1. Be it encted by the Senate 
and House of Representatives of the 
United States of America in Congress 
assembled, That the law^s of the territo- 
ry north-west of the river Ohio, that 
have been or hereafter may be enacted 
by the governor and judges thereof, 
shall be printed under the direction of 
the Secretary of State, and two hun- 
dred copies thereof, together with ten 
sets of the laws of the United States, 
shall be delivered to the said governor 
and judges, to be distributed among the 
inhabitants for their information, and 
that a like number of the laws of the 
United States shall be delivered to the 
governor and judges of the territory 
south-west of the river Ohio. 



Power of 
governor & 
Judges here- 
in. 



Sec. 2. And be it further enacted. 
That the governor and judges of the 
territory north-west of the river Ohio 
shall be, and hereby are authorized to 
repeal their laws by them made, when- 
soever the same may be found to be 
improper. 



32 



Acts of Congress 



19 



Sec. 3. And be it further enacted, 
That the official duties of the secreta- 
ries of the said territories shall be un- 
der the controul of such laws, as are 
or may be in force in the said territo- 
ries. 



Power of 
the secreta- 
ries. 



Sec. 4. And be it further enacted, 
That any one of the supreme or supe- 
rior judges of the said territories, in 
the absence of the other judges, shall be 
and hereby is authorized to hold a 
court. 



One supreme 
fudge may 
bold court. 



And be it further enacted SeaU by 
whom 
vided 



That the Secretary of State provide ^A*"* P"""" 



proper seals for the several and res- 
pective public officers in the said ter- 
ritories. 



JONATHAN TRUMBULL, 

Speaker of the House of Representa- 
tives. 

RICHARD HENRY LEE, 

President pro-tempore of the Senate. 

Approved, 

May eighth, 1792: 

GEORGE WASHINGTON, 

President of the United States. 



33 



20 Acts of Congress 

AN ACT 



boundary 
and name of 
the new ter- 
ritory. 



To divide the territory of the UnitedStates 
northwest of the Ohio jnto two separate 
governments. 

Sec. 1, BE it enacted by the Senate and 
House of Representatives of the United 
States of America, in Congress assembled. 
That from and after the fourth day of 
July next, all that part of the territory 
of the United States northwest of the 
Ohio river, which lies to the westward 
of a line beginning at the Ohio, oppo- 
site to the mouth of Kentucky river, 
and running thence to fort Recovery, 
and thence north until it shall intersect 
the territorial line between the United 
States and Canada, shall, for the pur- 
poses of temporary government, con- 
stitute a separate territory and be 
called the Indiana Territory. 



Form of go- 



and privi- 
leges of the 
Inhabitants. 



Sec. 2. And be it further enacted. That 
there shall be established within the said 
territory a government in all respects 
similar to that provided by the ordinance 
of Congress, passed on the thirteenth day 
of July one thousand seven hundred and 
eighty seven, for the government of the 
territory of the United States northwest 
of the river Oh o, and the inhabitants 
thereof shall be entitled to, & enjoy all 
and singular the rights, privileges and 



34 



Jets of Crngress 



21 



advantages granted and secured to the 
people by the said ordinance 



Sec. 3. And be it further enacted. That 
the officers for the said territory, who 
by virtue of this act shall be appointed 
by the President of the United States, by 
and vv^ith the advice and consent of the 
Senate, shall respectively exercise the 
same powers, perform the same duties, 
and receive for their services the same 
compensations as by the ordinance 
aforesaid and the laws of the United 
States, have been provided and estab- 
lished for similar officers in the territo- 
ry of the United States northwest of 
the river Ohio: And the duties and 
emoluments of Superintendant of Indian 
Affairs shall be united with those of 
governor: Provided, That the Presi- 
dent of the United States shall have full 
power, in the recess of Congress, to 
appoint and commission all officers here- 
in authorized ; and their commissions 
shall continue in force until the end of 
the next session of Congress. 



Powers, 
duties, and 
compensati- 
on of the 
officers. 



Commissions 
may be Issu- 
ed in the re- 
cess. 



Sec 4. And be it further enacted. 
That so much of the ordinance for the 
government of the territory of the 
United States northwest of the Ohio 
river, as relates to the organization of 
a General Assembly therein, and pre- 
scribes the powers thereof, shall be in 



Organizati- 
on of a gen- 
eral assem- 
biy. 



35 



22 



Acts of Congress 



force and operate in the Indiana ter- 
ritory, whenever satisfactory evidence 
shall be given to the governor thereof, 
that such is the wish of a majority of 
the freeholders, notwithstanding there 
may not be therein five thousand free 
male inhabitants of the age of twenty 
one years and upwards : Provided, 
That until there shall be five thousand 
free male inhabitants of twenty-one 
years and upwards in said territory, the 
whole number of representatives to the 
General Assembly shall not be less than 
seven, nor more than nine, to be ap- 
portioned by the governor to the sev- 
eral counties in the said territory, 
agreeably to the number of free males 
of the age of twenty-one years and 
upwards which they may respectively 
contain. 



Construction 
of this act 
with respect 
to the gov- 
ernment of 
the n. w. 
territory. 



Eventual 
change of 
the bounda- 
ry. 



Sec. 5. And be it further enacted. 
That nothing in this act contained shall 
be construed so as in any manner to 
affect the government now in force in 
the territory of the United States 
northwest of the Ohio river, further 
than to prohibit the exercise thereof 
within the Indiana territory, from and 
after the aforesaid fourth day of July 
next: Provided, That whenever that 
part of the territory of the United 
States which lies to the eastward of a 
line beginning at the mouth of the 
Great Miami river, and running thence 



36 



two govern- 
ments. 



Jets of Congress 23 

due north to the territorial line between 
the United States and Canada; shall be 
erected into an independent state, and 
admitted into the Union on an equal 
footing with the original states, thence- 
forth said line shall become and remain 
permanently the boundary line between 
such state and the Indiana territory; 
any thing in this act contained to the 
contrary notwithstanding. 

Sec. 6. And be it further enacted, That 
until it shall be otherwise ordered by 
the legislatures of the said territories 
respectively, Chilicothe on Scioto river. Seats of the 
shall be the seat of the government of 
the territory of the United States 
northwest of the Ohio river; and that 
Saint Vincennes, on the Wabash river, 
shall be the seat of the government for 
the Indiana territory. 

THEODORE SEDGWICK. 
Speaker of the House of Representatives. 

TH, JEFFERSON, Vice Pre- 
sident of the United States and President 
of the Senate. 

Approved, 

May 7th, 1800. 

JOHN ADAMS, 
President of the United States. 
Z7 



24 



Indiana ter- 
ritery dlvi- 
ded, and the 
Illinois for- 



Acts of Congress 
AN ACT 



For dividing the Indiana Territory into 
two separate governments. 

BE it enacted by the Senate and House 
of Representatives of the United States of 
America in Congress assembled, That from 
and after the first day of March next, 
all that part of the Indiana Territory 
which lies west of the Wabash river and 
a direct line drawn from the said Wa- 
bash river and Post Vincennes, due 
north to the territorial line between the 
United States and Canada, shall, for the 
purpose of temporary government, 
constitute a separate territory, and be 
called Illinois. 



A govern* 
ment similar 
to that pro 
vided for 
the N. W. 
territory 
provided. 



Sec, 2. And be it further enacted. 
That there shall be established within 
the said territory a government in all 
respects similar to that provided by the 
ordinance of Congress, passed on the 
thirteenth day of July, one thousand 
seven hundred and eighty-seven, for 
the government of the territory of the 
United States, north-west of the river 
Ohio; and by an act passed on the 
seventh day of August, one thousand 
seven hundred and eighty-nine, inti- 
tled, "An act to provide for the gover- 
nment of the territory north west of 
the river Ohio;" and the inhabitants 



38 



Acts of Congress 



25 



thereof shall be entitled to, and enjoy 
all and singular the rights, privileges 
and advantages, granted and secured to 
the people of the territory of the U. 
States, north west of the river Ohio, 
by the said ordinance. 



Sec. 3. And be it further enacted. 
That the officers for the said territory, 
who, by virtue of this act, shall be ap- 
pointed by the President of the United 
States, by and with the advice and con- 
sent of the Senate, shall respectively ex- 
ercise the same powers, perform the 
same duties, and receive for their ser- 
vices the same compensations, as by the 
ordinance aforesaid, and the laws of the 
United States, have been provided and 
establ shed for similar officers in the In- 
diana territory. And the duties and 
emoluments of superintendant of Indian 
affairs shall be united with those of gov- 
ernor: Provided, That the President of 
the United States shall have full pow- 
er, in the recess of Congress, to appoint 
and commission all officers herein au- 
thorized, and their commissions shall 
continue in force until the end of the 
next session of Congress. 



Officers' du- 
ties, &e. &c. 



Proviso. 



Sac. 4. And be it further enacted. That Ordinance 
so much of the ordinance for the gov- vernmen^%f 
ernment of the territory of the United 



39 



Acts of Congress 



26 



the N. W. 
territory to 
be in force 
in tlie llli- 



States northwest of the Ohio river, as 
relates to the organization of a general 
assembly therein, and prescribes the 
powers thereof, shall be in force and 
operate in the Illinois territory, when 
ever satisfactory evidence shall be giv- 
en to the governor thereof that such is 
the wish of a majority of the freehol- 
ders, notwithstanding there may not be 
therein five thousand free male inhab- 
itants of the age of twenty one years 
and upwards: Provided That until 
there shall be five thousand free male in- 
habitants of twenty one years and up- 
wards in said territory, the whole num- 
ber of representatives to the general 
assembly shall not be less than seven, 
nor more than nine, to be apportioned 
by the governor to the several counties 
in the said territory, agreeably to the 
number of free males of the age of 
twenty one years and upwards, which 
they may respectively contain. 



Government 
of Indiana, 
how afFect- 
ed by this 
act. 



Sec. 5, And be it further enacted. That 
nothing in this act contained shall be 
construed so as in any manner to affect 
the government now in force in the 
Indiana territory, further than to pro- 
hibit the exercise thereof within the 
Illinois territory, from and after the 
aforesaid first day of March next. 



Sec, 6. And be it further enacted, 
That all suits, process and proceedings, 



40 



Acts of Congress 



27 



which, on the first day of March next, 
shall be pending in the court of any 
county which shall be included within 
the said territory of Illinois, and also 
all suits, process and proceedings, which 
on the said first day of March next, 
shall be pending in the genera court of 
the Indiana territory, in consequence of 
any writ of removal, or ord r for trial 
at bar, and which had been removed 
from any of the counties included with- 
in the limits of the territory of Illinois 
aforesaid, shall, in all things concern- 
ing the same, be proceeded on, and 
judgments and decrees rendered there- 
on in the same manner as if the said 
Indiana territory had remained undivi- 
ded. 



Suits, &e. 
&c. how dis- 
posed of. 



Sec. 7. And be it further enacted. That 
nothing in this act contained shall be so 
construed as to prevent the collection 
of taxes which may, on the first day of 
March next, be due to the Indiana ter- 
ritory on lands lying in the said terri- 
tory of Illinois. 



Arrearages 
of taxes on 
land in the 
Illinois ter- 
ritory still 
to be paid. 



Sec. 8. And be it further enacted. That 
until it shall be otherwise ordered by 
the legislature of the said Illinois terri- 
tory, Kaskaskia on the Mississippi 



Kaskaskia to 
be the seat 
of govern* 



41 



28 



Acts of Congress 



river shall be the seat of government for 
the said Illinois territory. 

J. B. VARNUM. 

Speaker of the House of Representatives. 

JOHN MILLEDGE, 

President of the Senate pro tempore, 

February 3, 1809, 
Approved. 

TH: JEFFERSON. 



Persons al- 
lowed to 
vote for 
members of 
the Legisla- 
tive Coun- 
cil & House 
of Represen- 
tatives. 



AN ACT 

To extend the right of suffrage in the Illi- 
nois territory, and for other purposes. 

BE it enacted by the Senate and House 
of Representatives of the United States of 
A m erica in Co ngress asse mbled, That upon 
the admission of the Illinois territory 
into the second grade of territorial 
government, in conformity vrith the 
provisions of the act, entitled "An act 
for dividing Indiana into two separate 
governments," each and every free 
white male person who shall have at- 
tained the age of twenty one years, and 
who shall have paid a county or territo- 



42 



Acts of Crngress 



29 



rial tax, and who shall have resided 
one year in said territory previous to 
any general election, and be at the 
time, of any such election, a resident 
thereof, shall be entitled to vote for 
members of the Legislative Council 
and House of Representatives for the 
said territory. 



Sec. 2. And be it further enacted, That 
so soon as the governor of the said ter- 
ritory shall divide the same into five 
districts, the citizens thereof, entitled 
by this act to vote for representatives to 
the general assembly, shall, in each of 
the said districts, elect one, member of 
the legislative council who shall possess 
the same powers heretofore granted to 
the legislative council by the ordinance 
for the government of the North 
Western territory, and shall hold their 
offices four years and no longer any 
thing in the ordinance to the contrary 
notwithstanding. 



Time of 
electing 
members of 
Legislative 
Council, &c. 



Sec. 3. And be it further enacted. That 
the citizens of the said territory, enti- 
tled to vote for members of the terri- 
torial legislature by this act may, at the 
time of electing their representatives to 
the general assembly thereof also elect 
one deleg te to Congress for the said 
territory, who shall possess the same 
powers heretofore granted to the dele- 



Time of 
electing a de- 
legate to 
Congress, & 
his powers. 



43 



Acts of Congress 



30 



gates from the several territories of the 
United States. 



Duty of 
sherifFs and 
of the gov- 
ernor in 
relation to 
election of 
delegates. 



Sec. 4. And be it further enacted. That 
the sheriffs of the several counties which 
now are, or hereafter may be establish- 
ed in the said territory, respectively 
shall, within forty days next after an 
election for a delegate to Congress 
transmit to the secretary of the said 
territory a certified copy of the returns 
from the several districts or townships of 
their respective counties; and it shall be 
the duty of the governor, for the time 
being, to give to the person having the 
greatest number of votes, a certificate 
of his election. 



Penalty on 
the theritF 
for neglect. 



Sec. 5. And be it further enacted. That 
each and every sheriff, in each and 
every county that now is, or hereafter 
may be established in said territory, who 
shall neglect or refuse to perform the 
duties required by this act, shall forfeit 
one thousand dollars, to be recovered 
by an action of debt, in any court of 
record within the said territory, one 
half to the use of the territory, and the 
other half to the use of the person suing 
for the same. 



Sec. 6. And be it further enacted. That 
the general assembly of the said territo- 
ry shall have power to apportion the 



44 



31 



Acts of Congress 



representatives of the several counties, 
which now are, or hereafter may be 
established therein, according to the 
number of free white male inhabitants 
above the age of twenty-one years, in 
such counties; Provided, That there be 
not more than twelve, nor less than 
seven of the whole number of represen- 
tatives, until there shall be six thousand 
free male white inhabitants, above the 
age of twenty-one years in said territo- 
ry, after which time, the number of 
representatives shall be regulated agree- 
ably to the ordinance for the govern- 
ment of the territory northwest of the 
river Ohio. 



General 
assembly 
empowered 
to apportloi 
representa- 
tives, &c. 



H. CLAY, 

Speaker of the House of Representatives. 

WM. H. CRAWFORD, 

President of the Senate pro-tempore. 

May 20, 1812. 

Approved, 

JAMES. MADISON. 



45 



LAWS 

OF 

ILLINOIS TERRITORY. 



AN ACT 

Declaring what laws are in force in the 
Illinois Territory, 

Passed Dec 13, 1812. 

Sec. 1. Be it enacted by the Legislative 
Counciland House of Representatives, and 
it is hereby enacted by the authority of the 
same. That all the laws passed by the 
Legislature of the Indiana Territory, Laws of In 
which were in force on the first day of 
March, one thousand eight hundred and 
nine in that territory that are of a gen- 
eral nature, and not local to Indiana 
Territory, & which are no repea ed by 
the Governor and Judges of the Illinois 
Territory, are hereby declared to be 



diaiia Ter 
tery in fore* 



47 



34 



DECLARATORY 



in full force and effect in this territory, 
and shall so remain until altered or re- 
pealed by the legislature of this territory. 



Laws of the 
Governor & 
Jadqti In 



Sec. 2. Be it further enacted. That 
all the laws passed by the Governor 
and Judges of the Illinois Territory, 
which remain unrepealed by them, are 
hereby declared to be in full force and 
effect within this and so to remain until 
altered or repealed by the Legislature. 



AN ACT 



Declaring what laws shall be in force. 
Passed Sept. 17 1807. 



Com. Low 
off England. 



Stotatoi In 
aid tktrooff 
prior to 4tli 
lit. 



Eicoptlont. 

Laws off t o 
Territory. 



The common law of England, all 
statutes or acts of the British Parliament 
made in aid of the common law, prior 
to the fourth year of the reign of King 
James the first excepting the second 
section of the sixth Chapter of 43 
Elizabeth, the 8 Chapter 13 Elizabeth 
and 9 Chapter, 37 Henry 8 and which 
are of a general nature and not local 
to that Kingdom; and also the several 
laws in force in this territory, shall be 
the rule of decision and shall be consid- 
ered as of full force, until repealed by 
Legislative Athority. 



48 



LAWS. 35 

AN ACT 

Declaring that the Laws of the Territory 
as Revised and Reported to the Legisla- 
ture, shall, with the several additions, 
amendments, and alterations made to the 
Original laws have force in the Territory 

Passed Sept. 19, 1807. 

WHEREAS The whole body of the 
Laws of this territory, to the beginning 
of this session, have in pursuance of a 
resolution passed at the last session of 
the Legislature entitled "A resolution Preamble. 
for revising the Laws of this territory, 
and for other purposes," been carefully 
compiled and revised, and the said revi- 
sal laid before both houses of this 
Legislature, and approved of. 

And whereas. Both houses of the 
Legislature having taken the origin- 
al Laws, from which the said rivisal 
was made, into consideration, have 
made several alterations, additions and 
amendments thereto. 

Sec. 1. BE it therefore enacted by 
the Legislative council and House of 
Representatives, and it is hereby enact- i-^- 
ed by the authority of the same. That all ed. 
the laws & parts of laws in force in this 
territory, at the beginning of this ses- 



49 



DECLARATORY LAWS. 36 



Laws in 
force. 



sion of the Legislature, shall be, and the 
same are hereby repealed, and that 
the revisal of the said Laws as made by 
John Johnson and John Rice Jones, 
shall, with the several additions, altera- 
tions and amendments made by the pre- 
sent Legislature, have full force & effect 
in the territory; and that those laws so 
revised altered & amended, shall, with 
the Laws passed at this session of the 
Legislature, be the only statute Laws in 
force in this territory. 



Officers re- 
main in of- 
fice. 



Suits &e. 
prosecuted 
under for* 
mer Laws. 



Provided always. That all the officers 
now in commission in the territory, shall 
hold and exercise the duties of their 
several offices under the laws hereto- 
fore in force, in the territory, in the 
same manner a if this law had not been 
made: And provided also. That all 
suits and prosecutions heretofore institu- 
ted, under, or by authority of any of 
the said laws, may be prosecuted to 
judgment and execution thereupon. 



50 



ABATEMENT, 



37 



AN ACT 

Concerning the abatement of suits by the 
death of the parties. 

Passed Dece?nber \st, 1814: 



Sec. 1. Be it enacted by the Legis- 
lative Council and House of Repre- 
sentatives of the Illinois Territory, 
That whenever any vrrit original or 
subsequent process, shall be sued out of 
any of the courts of this territory and 
after the execution thereof the defen- 
dant or defendants shall depart this life 
before final judgment obtained there- 
in such action shall not abate if the same 
were originally maintainable against 
the executors or administrators of such 
defendant but it shall be lawful for the 
plff. or plffs. in any such suit to have, after 
suggesting the death of the defendant on 
the record, a summons to the execu- 
tors or administ a o s of the deceased 
defendant, to come forward and make 
themselves defendants to the said suit, 
and if the said executors or adminis- 
trators shall appear at the court in 
obedience to the summons and enter 
themselves, defendants to the action 
they shall be entitled to a continuance 
until the next term without costs if 
they desire it and the suit shall then 
progress in all respects in the same 



Plaintiff to 
have sum* 
mens to 
Exr's and 
Adms. of 
Defendant. 



Exr's and 
Adm's to 
enter tliem 
selves Deft. 



Have one 

continuance 

arbitrarily. 



51 



ABATEMENT. 



38 



No Execu- 
tion to Issue 
before 1 
year from 
Letters of 
Admr. 



manner as if it had been brought against 
them in the first instance. — If the said 
executors or administrators shall fail to 
appear and enter themselves defendants 
(being served with the summons as 
aforesaid, or any one of them being served 
with the summons) the plaintiff may 
proceed against them as in cases of de- 
fault, Provided that where judgment is 
obtained under this act, no execution 
shall issue until one year from the date 
of the letters of administration. 



Exors. or 
Admrs of 
PtflF. hove 
summons to 
defendant. 



Suit to pro- 
gress as If 

PIfF. had not 
died. 



Sec. 2 Be it further enacted. That if 
the plaintiff or plaintiffs in any suit af- 
ter the execution of the writ therein 
shall depart this life before final judg- 
ment such suit shall not abate, Provided 
the same were originally maintainable 
by the executors or administrators of 
such decedant, but the executors or 
administrators of such decedant may 
have a summons to the defendants 
notifying him her or them that they have 
entered themselves plaintiffs in said suit 
and that they intend to prosecute the 
same; after which summons the suit 
shall progress to final judgment and 
execution in the same manner as if 
the plaintiff were living. 



Sec. 3. Be it further enacted. That if 
there be two or more plaintiffs or de- 
fendants and one or more die and the 



52 



ALIENS. 



39 



cause of action survives to the plaintiff 
or against the def ndat living it shall 
not abate, any law or parts of laws to 
the contrary notwithstanding. — This 
law to be in force from its pass- 
age. 



Joint de- 
mands tur- 
vive to sur 
viving PIff. 
& Agt. tar- 
vivinq D«ff. 



ALIENS. 



AN ACT 

To authorise Aliens to Purchase and hold 
real estates within this Territory. 

Passed September 11 th, 1807. 



From and after the passage of this, 
act, it shall and may be lawful for any 
foreigner, or foreigners, alien or 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 at war with the United States 
of America, to purchase lands tene- 
ments and hereditaments within this 
territory, and to have and hold the 
same, to them, their heirs and assigns 
forever, as fully to all intents and pur- 
poses, as any natural born citizen or 
citizens may or could do. 



Deniien 
friends may 
purchase & 
hold real 
property. 



53 



40 



APPRENTICES. 

AN ACT 



R.especiing Appretitues. 
Passed September, \lth, 1817. 



Apprentices 
when bound 
by father or 
guardian. 



Males 21 
Females 18 



Sec. 1. If any white person within 
the age of twenty-one years, who now 
is or shall hereafter be bound by an 
indenture of his or her own free will 
and accord, and by and with the con- 
sent of his or her father, or in case of 
the death of his father, with the con- 
sent of his or her mother or guardian, 
to be expressed on such indenture, and 
signified by such parent or guardian seal- 
ing and signing the said indenture, and 
not otherwise, to serve as apprentices 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, than 
the said apprentice so bound as afore- 
said, shall serve accordingly. 



Master ill u. 
sing apprent. 



Sec. 2. If any master or mistress shall 
be guilty of any misusage, refusal of 
necessary provision or clothes, unrea- 
sonable correction, cruelty or other ill 
treatment, so that his or her said ap- 
prentice, shall have any just cause to 
complain; or if the said apprentice 



54 



APPRENTICES. 



41 



Shall absent himself or herself from the 
service of his or her master or mistress, 
or be guilty of any misdemeanor, mis- 
carriage or ill behaviour then the said 
master or mistress or apprentice being 
aggrieved and having just cause of com- 
plaint, shall rep ir to some Justice of 
the Peace unconnected with either of 
the parties, within the county where 
the said mast r or mistress dwell, who 
having heard the matters in d ff rence, 
shall have authority to discharge, if he 
thinks proper, by writing under his 
hand & seal the said appren ice, of and 
from his or her apprenticeship ; and 
such writing as afo esaid, shall be a 
sufficient discharge for the said appren- 
tice, against his or her master or mis- 
tress, and his or her executors, or ad- 
ministra ors, the said indentur , or any 
law to the contrary nothsta ding. 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 her- 
self 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 adjudi- 
cation shall have been made, such per- 
son giving ten day notice of his or her 



Apprent ne- 
glect service 



May com* 
plain to Jhs« 
tice net Icin. 



Justice to 
iiear complt. 
& discharge 
apprent. 



Or order pu- 
nishment. 



if aggrieved 
may appeal 
to C. P. 



55 



42 



APPRENTICES. 



Giving no- 
tice of inttn- 
tien te. 



reeegnixonee 
witliin &c. 



Ceart to 
licar and 
eide &c. 



intention of bringing such appeal, & of 
the cause and matter thereof, to the 
adverse party, and entering into a re- 
cognizance, within five days after such 
notice, before some justice of the peace 
of the county, with sufficient surety, 
conditioned 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 term, upon due proof upon oath or 
affirmation, of such notice having been 
given, and of entering into such recog- 
nizance as aforesaid, shall be and are 
hereby empowered and directed to 
proceed in, and hear and determine 
the cause and matter of such appeal, 
and give and award such judgment 
therein with costs, to either party, ap- 
pellant or respondent, as they in their 
discretion shall judge proper and reason- 
able. 



No certiora- 
ri to iitue 
from g. c. 
proceedings. 



Sec. 3. No writ of certiorari or other 
process shall issue, or be issuable to re- 
move into the General Court any pro- 
ceeding had in pursuance of this act, 
before any justice of the peace, or be- 
fore any court of Common Pleas. 



56 



ARBITRATIONS. 

AN ACT 



43 



Authorising and regulating arbitrations. 

Passed Sept. 17 1807. 

Sec. 1. ALL pesons who have any 
controversy or controversies, for 
which there is no other remedy, but by 
personal action, or by suit in equity, & 
who are desirous of settling or termin- 
ating the same; may agree to submit 
the said controversy or controversies, 
to the umpirage or arbitration of any 
persons, to be by them, mutually cho- 
sen for that purpose, and that their 
submission, may be made a rule of any 
court of record within the Territory. 

Sec. 2. When any persons have 
agreed to submit, any matter or mat- 
ters, in controversy between them, to 
umpirage or, arbitration, as aforesaid 
and that the said submission, may be 
made a rule of court; they shall enter 
into arbitration bonds, under their 
hands and seals, duly executed and de- 
livered, with conditions for the faithful 
performance of the award or umpirage, 
which condition shall set forth the name 
or names of the umpire or arbitrators 
and the matter or matters submitted to 
his or their determination; and shall 
also expressly state, their agreement 



Centrever- 
•ies submit- 
fed to um- 
pire or orbl 
trotien. 



Parties to en 
ter into bond, 
&e. 



57 



44 



ARBITRATIONS. 



Umpire &c 
may adjourn. 



that the submission may be made a rule 
of any court, of record within the 
Territory, or that may be made a rule 
of such particular court, as they may 
name or point out in their submission ; 
and when the umpire or arbitrators, is, 
or are appointed, and the arbitration 
bonds are duly executed and delivered, 
as aforesaid, either party may appoint 
a time and place for the umpire to at- 
tend, or the arbitrators to meet, of 
which he shall give written notice to 
the opposite party, and to the umpire or 
arbitrators at least ten days before the 
time appointed for such meeting; and 
when the umpire or arbi rators, shall be 
ready to proceed to the business for 
which he or they, shall have been ap- 
pointed, the parties may proceed to ex- 
hibit their profs, and the umpire or arbi- 
trators, shall have power to adjourn 
from time to time, until he is prepared 
to make his umpirage, or they are 
prepared to make their award ; Provi- 
ded, The same be made up within the 
time stipulated in the submission. 



Subpoena to 
to compel 
attendance 
of witnesses 



Sec. 3. The parties shall have the 
benfit of legal process to compel the at- 
tendance of witness s; wh ch process 
shall be issued by the Clerk of the 
court of Common pleas, or by the 
Clerk of the General court and shall 



58 



ARBITRATIONS. 



45 



be returnable before the umpire or 
arbitrators on a day certain; and any 
person disobeying such process, shall be 
deemed guilty of contempt to the court 
from which such process issued, & shall 
be subject to the same penalties and 
forfeitures, as are provided, for disobey- 
ing writs of Subpoena in other cases; 
and the costs of such witnesses, shall be 
taxed by the umpire or arbitrators, 
according to the provisions contained 
in the law, ascertaining the fees of wit- 
nesses, which costs together with the 
sum hereinafter allowed to the umpire or 
arbitrators, shall be stated in the award 
or umpirage, and shall be made a part 
of the rule of court, and all witnesses 
examined by the umpire or arbitrators, 
shall be under oath, unless otherwise 
agreed to by the parties. 



Penalty of 
witnesses not 
attending. 



Sec. 4. The award or final determin- 
ation of the umpire or arbitrators shall 
be drawn up in writing, and shall be 
signed by him or them, or so many of 
them as agree thereto, and a true copy 
of the s id award or umpirage, shall 
without delay be delivered by the um- 
pire or arbitrators, to each of the par- 
ties, and if either of the parties shall 
refuse or neglect to obey the said award 
or umpirage, the other party may re- 
turn the same, together with the sub- 
mission, or arbitration bond to the court 



Award to be 
on of agen* 
in writing. 



59 



46 



ARBITRATIONS. 



Award hew 
tnferecd. 



Award to be 



Unless for 
misbehavior 
of umpire 
&c. or for 
fraud &e. 



No testimo- 
ny to Invali* 
date award. 



Award shall 
be made a 
rule of court 



named in the submission, or if no court 
be named in the submission, then to the 
court of Common Pleas or to the Gen- 
eral court and the submission and award 
or umpirage so returned shall be enter- 
ed on record, and filed by the Clerk, 
and a rule of court thereupon m de and 
after such rule is made, the party diso- 
beying the same, shall be liable to be 
punished as for a contempt of the court ; 
and the court on motion shall issue pro- 
cess accordingly; which process shall 
not be stayed or impeded, by order of 
any other court of law or equity, or by 
the court from whence it issued, until 
the parties shall in all things obey the 
award or umpirage, unless it shall be 
made to appear on oath that the um- 
pire or arbitrators misbehaved, and that 
such award or umpirage, was obtained 
by fraud, corruption or other undue 
means; and no testimony shall be re- 
ceived to impeach or invalidate the 
said award or umpirage, after the sec- 
ond day of the term, next after the 
term in which the submission was made 
a rule in court : Provided always, That 
before any submission be made a rule of 
court, the party moving for such rule, 
shall produce to the court satisfactory 
proof of the due execution of the sub- 
mission or arbitration bond, and also 
that the party refusing or neglecting to 
obey the award or umpirage, hath 



60 



ARBITRATIONS. 



47 



been furnished with a true copy there- 
of. 



Sec. 5. The umpire or arbitrators 
shall be entitled to receive each the sum 
of one dollar per day, for each and 
every day, which they shall employ in 
performing the duties of their appoint- 
ment. 



Feet to am- 
pire or or- 
bitrater*. 



Sec. 6. In all cases where the plaintiflf 
and defendant have accounts to produce 
one against another, shall, by them- 
selves, or attornies, or agents, consent 
to a rule of court for referring the ad- 
justment thereof, to certain persons mu 
tually chosen by them in open cou t, 
(the award or report of such referees, 
being made according to the submission 
of the parties, approved of by the court, 
and entered upon the record or roll) 
shall have the same effect, and be deem- 
ed and taken to be as available in law, 
as a verdict given by twelve men ; and 
the party to whom any sum or sums of 
money are thereby awarded to be paid, 
shall have judgment, or a scire facias , 
for the recovery thereof, as the case 
may require, as is directed in the seven- 
teenth section of the act entitled an act 
to regulate the practice in the G neral 
court, and court of Common Pleas con- 
cerning sums found and settled by a Ju- 
ry. 



Aeeoants of 
contending 
parties re- 
ferred to ar- 
bitration 



61 



48 ASSIGNMENT. 

AN ACT 

M akin g promissory notes bonds atid inland 
bills of exchange negotiable 

Passed Sept. 17, 1807. 

Sec. 1. All notes in writing that 
shall hereafter be made and signed by 
Notes in wri- any person or persons, body politic, or 
ting for tiie corporate whereby such person or per- 
payment of • , i. • 

money. sons, body politic or corporate promise 

to pay a y sum of money or a knowl- 
edge any sum of money to be due to any 
other person or persons or his, her or 
their order, or unto bearer, shall be 
taken to be due and payable; and the 
sum of money therein mentioned shall 
by virtue thereof be due and payable to 
the person or persons to whom the said 
note is made; and every such note 
made payable to any person or persons, 
his, her or their order, or unto bearer 
shall be assignable by indorsement there- 
on under the hand or hands, of such 
person or persons, and of his, her, or 
their assignee, or assignees, so as ab o- 
lutely to transfer and vest the property 
thereof in each & every assignee or assig- 
nees, successively; and any assignee or 
assignees, to whom such sum of money 
is, by such endorsement, or endorse- 
ments, made payable, may, in his, her 



62 



ASSIGNMENTS. 



49 



or their own name, or names, institute 
or maintain an action for the recovery 
thereof, against the person or persons, 
who made and signed such note, or a- 
gainst him her or them, who endorsed the 
same, (having first used due diligence to 
obtain the money from the drawer or 
maker) & in every such action in which 
judgment is given for the plaintiff or 
plaintiiifs, he, she, or they, shall recover 
his her or their damages and costs of 
suit. 



Is made at* 
tignable by 
indor ement 
ass gnee may 
sue In his 
own name. 



§ 2. If any such note shall be endors- 
ed after the day on which the money 
therein contained becomes du and pa - 
able, and the endorser shall institute an 
action thereon, against the m k r and 
signer of the same, the defendant being 
maker and signer, shall be allowed to 
set up the same defence that he might 
have done, had the said action been 
instituted in the name, and for the use 
of the person or persons to whom the 
said note was originally made due and 
payable. 



When assign- 
ed offer day 
of payment. 



Sec. 3 If any such note shall be en- 
dorsed before the day the money there- 
in contained becomes due and payable, 
and the endorsee shall institute an ac- 
tion thereon, the defendant may give in 
evidence at the trial, any money ac- 



Inland bills 
e exchange 
negotiable. 



63 



50 



ASSIGNMENTS. 



tually paid on the said note, before the 
said note was endorsed or assigned to 
the plaintiff, on proving that the plain- 
tiff had sufficient notice of the said pay- 
ment, before he, or she, accepted or 
received such endorsement. 



■eRdi &e. 
a»tl«aabl«. 



Sec. 4. And all inland bills of ex- 
change shall be negotiable, by en- 
dorsment thereon, in the same manner 
as is above provided in case of promis- 
sory notes. 



Attign** may 
•nc in hit 



Sec. 5. The assignment 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 set 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. 



64 



ATTACHMENT. 
AN ACT 



51 



Allowing Foreign Attachments. 

Passed Sept. 17 1817. 



Sec. 1. THE lands and tenements, 
goods, chattels and effects, rights and 
credits, of every person or persons, 
non-residents in this territory, shall, 
and may be attached, for the payment 
of any just debt, or other demand, by 
a writ or writs, to be issued out of the 
General court, or any Circuit court, or 
court of Common Pleas, and, as early 
as may be, shall and may be proceeded 
against in the same manner as is direc- 
ted against the lands, tenements, here- 
ditaments and estates of absconding 
debtors, except where otherwise here- 
in directed. 



Real & p«r> 
sonal •states 
nen resldtnts 
may b* at- 
tached. 



Sec. 2. Provided, That every per- 
son or persons, applying for such writ 
or writs of attachment, shall, before the 
issuing thereof, make, oath or affirma- 
tion (and which shall be filed in the 
proper clerk's office,) that he she or 
they verily believe, that the person or 
persons, against whose estate or estates, 
the application is made, is or are not, 
at that time resident within the Terri- 
tory, and that such person or persons, 



Party apply- 
ing for writ 
of attacliint. 



65 



52 



ATTACHMENT. 



is, or are, justly indebted unto the said 
plaintiff or plaintiffs, in a certain sum 
or sums of money, as nearly as may 
be, to the amount of the debt, or other 
demand, of such plaintiff or plaintiffs, 
as the case may admit, and as he, she 
or they can lawfully swear or affirm 
to. 



Attachments 
may issue 
against joint 
obligors or 
partners &c. 



No judgment 
entered in 
less than 12 
months. 



Sec. 3. Where two or more persons 
are jointly indebted, either as joint 
obligors, partners, or otherwise, then 
the writ or writs of attachment, shall 
and may be issued against the separate 
and join est of uch joint debtors, or 
any of them, either by their proper 
names, or by, or in the name or style 
of the partnership, or by whatsoever 
other name or names such joint debt- 
ors shall be generally reputed, known, 
or distinguished within this Territory, 
or against the heirs, or executors, or 
administrators of them, or either or 
any of them. And the lands, tene- 
ments, goods, chattels and effects, or 
any of them, shall be liable to be seized 
and taken, for the satisfaction of any 
just debt or other demand, and may be 
sold to satisfy the same. 

Sec. 4. No judgment shall be enter- 
ed in any attachment, hereby directed 
to be issued, until the expiration of 
twelve months, during which term the 



66 



ATTACHMENT. 



53 



party suing out the attachment, shall, 
and he hereby is required, to cause 
notice thereof to be advertised in one of 
the public news-papers of this Territo- 
ry, at least three times, which adver- 
tisement shall set forth, that a foreign 
attachment or attachments, have been 
issued, at whose suit, and against whose 
estate or estates, the same so issued. 
And that unless the debtor or debtors, 
whose estate or estates are so seized, 
shall appear by himself or attorney, to 
give special bail, to answer such suit, 
that then judgment will be entered 
against such debtor or debtors by de- 
fault, and the estate or estates attached, 
be sold for the satisfaction of the plain- 
tiiT; Provided always. That where any 
goods or chattels of a perishable nature 
shall be so seized, it shall and may be 
lawful for the court, from which such 
attachment issued, to order the said 
perishable property, so attached, to be 
sold by the sheriff, by auction, who shall 
detain the proceeds of the sale thereof 
in his hands, subject to the order of the 
court, until final judgment and execu- 
tion. 



Notice given 
in some N. 
Poper. 



Proceeds of 
sale to be de 
tained by 
shfF. until fi- 
nal judgmt. 



Sec. 5. No creditor or creditors en- 
titled to any share of estates, sold un- 
der this law, shall receive the same, 
until he, she, or they, shall enter into 
bond, to the defendant or defendants. 



Creditors to 
give bond. 



67 



54 ATTACHMENT. 

with good and sufficient security, to be 
approved of by the court, and also to be 
filed in the office aforesaid, in double 
the sum to be received, with condition 
thereunder written, that the party so 
receiving, shall appear to any suit or 
suits, that shall or may be brought, by 
such defendant or defendants, within 
the space of twelve months, then next 
ensuing, and shall pay unto such defen- 
dant or defendants, all such sums of 
money, which on trial to be had there- 
on, shall appear to have been received, 
and not justly due and owing to such 
creditor or creditors, together with 
costs of suit. 



AN ACT 

Prescribing the mode of proceeding against 
absconding Debtors, 

Passed September 8th, 1807. 

Sec. 1. BE // enacted by the Legisla- 
tive Council and H ouse of Representatives, 
and it is hereby enacted by the authority of 
Judg* of e. p. the same. That any judge of the court of 
ulu* L«*hm». common pleas, or justice of the peace, 
on complaint upon oath, stating the a- 



68 



Issue atchmt. 



ATTACHMENT. 



55 



mount, or as near as may be, of the 
debt or demand, and that a debtor is 
privately moved out of the county, or 
absconds, so that process cannot be serv- 
ed on him, may grant an attachment 
against such debtor's estate, or to the 
value of the creditor's debt and costs, 
returnable if the demand is above eigh- 
teen dollars, to the next court of com- 
mon pleas having competent jurisdicti- 
on, to be directed personally to the 
Sheriff, under sheriff, or constable, and 
where the sheriff is interested, to the 
Coroner of the county, to be served on 
the goods and chatties, lands and tene- 
ments, of the debtor, or in the hands 
of any person indebted to, or having 
any effects of such debtor in his hands, 
and shall summon such garnishee to ap- 
pear at such next court of Common 
Pleas, to answer on oath what he or 
they are indebted to, and what effects 
of such debtor, they have, or had in 
their hands, at the time of serving 
such attachment, which being returned 
executed, the court may compel such 
garnishee to appear and answer. 



Where 
noble. 



To whom 
directed 



garnishee. 
To answer 
on oath. 



Sec. 2. Such Judge or Justice, be- 
fore granting such attachment, shall 
take bond and security of the party 
praying the same, in double the sum to 
be attached, payable to the defendant 
for paying all costs to be awarded him, 



Jadges or 
iustiees to 
iolie bend. 



69 



56 ATTACHMENT. 

if the plaintiff be cast in the suit, and 
also all damages to be recovered against 
such plaintiff for his suing out such at- 
tachment; which bond such Judge or 
Justice shall return to the said court, on 
Deft, may which the defendant may bring suit, 

bring suit. ^^^ recover agreeably to the tenor 

thereof; and any attachment issued 
without such bond taken and returned, 
shall be dismissed, and held illegal and 
void. 

Sec. 3. All attachments shall be re- 
plevied by giving appearance bail as in 
cases of capias ad respondendum, Siii such 
bail shall be insufficient, the same reme- 
dy shall be had against the Sheriff as if 
taken on a capias ad respondendum. 



nable. 



Sec. 4. If the plaintiff's demand shall 
Where retur not exceed the sum of eighteen dollars, 
the Judge or Justice, granting such at- 
tachment, shall make it returnable be- 
fore himself, directed to the Sheriff of 
the county, or any Constable within 
his township, and shall require bond and 
security in like manner as if above eigh- 
teen dollars. 

Sec. 5 If any attachment returna- 
ble to the court of Common Pleas, or 
before any Judge or Justice of the 
Peace, be returned executed, and the 
effects be not replevied by giving ap- 



70 



ATTACHMENT. 



57 



pearance bail, if the demand exceed 
eighteen dollars, or giving such security 
if under that sum, as would be demand- 
able by a Justice on a capias against the 
defendant, the plaintiff shall be entitled 
to a judgment for his debt, and may 
take execution thereon, and the effects 
attached shall be sold, towards satisfying 
the plaintiff's judgment, as goods taken 
in execution on a fieri facias. But if 
the estate taken under an attachment be 
replevied as aforesaid, the like proceed- 
ings shall be taken thereon to obtain 
judgment, as if the suit had been institu- 
ted by capias ad respondendum. 



Attachment 
exd. and no 
bail &c. be- 
fore justice. 



PitfF. to have 
jdmt. and is- 
sue fi fa. 



Bail entered 



Sec. 6. And where any attachment 
is returned served in the hands of any 
garnishee, on his appearance and exam- 
ination as aforesaid, judgment may be 
given and execution awarded against 
him for all money due from him, or 
property of the defendant in his posses- 
sion or custody, or a sufficiency thereof 
to satisfy the plaintiff's debt and costs. 



Garnishee 
appr'ing &c. 



Sec. 7. The She iff or other officer 
who shall make sale of any p operty ta- 
ken by attachment shall be allowed all 
reasonable charges for keeping the 
same by the court. 



Officers al- 
lowed for 
keeping. 



All law and parts of laws coming 
within the purview of this law, be and 
the same are hereby repealed. elaus*. 



H 



71 



58 ATTORNIES. 

This act shall commence, and be in 
force from and after the first day of 
January next. 



ATTORNIES. 



AN ACT 

Regulating the admission and practice of 
Attornies and Counsellors at Law. 

Passed Sept. 17 1807. 

Sec. 1. No person shall be permitted 
to practise as an Attorney or Cousellor 
Attornies & at Law or to commence, conduct, or 
Ceansellert, defend any action, suit or plaint, in 
how admit* , . , , . i . 

ted. which he is not a party concerned, m 

any Court of Record within this terri- 
tory, either by using or subscribing his 
own name or the name of any other 
person without having previously ob- 
tained a license for that purpose from 
any two of the Judges of the General 
Court, which license shall constitute the 
person receiving the same an Attorney 



72 



ATTORNIES 



59 



and Counsellor at Law, and shall author- 
ise him to appear in all the Courts of 
Record within this territory and there 
to practise as an Attorney and Counsel- 
lor at Law according to the laws and 
customs thereof, for, and during his 
good behaviour in the said practice, and 
to demand and receive all such fees as 
are, or hereafter may be established, 
for any service which he shall, or may 
do, as an attorney, and counsellor at 
law in the said Territory. 



Entitled to 
legal fees. 



Sec. 2. No person shall be entitled to 
receive a license as aforesaid, until he 
hath obtained a certificate from the 
court of some county, of his good mor- 
al character. 



Applicant to 
produce cer> 
tificate of 
character. 



Sec. 3. It shall be the duty of the 
Clerk of the General court, to make 
and keep a roll or record, on parch- 
ment, stating at the head or commence- 
ment thereof, that the persons, whose 
names are thereon written, have been 
regularly licensed, & admitted to practice 
as attornies and counsellors at law with- 
in this Territory, and that they have 
duly taken the oath of allegiance to the 
United States, and also the oath of of- 
fice, as prescribed by law; which shall 
be certified and endorsed on the said 
license. 



Clk. of «. c. 
to keep a 
roll of all 
licensed at«. 



73 



60 



ATTORNIES 



No person 
suffered to 
practise 
whose name 
is not writ- 
ten on the 
roll. 



Judges in 
open court 
may strike 
attorney or 
counsellor's 
name from 
the roll. 



Sec. 4. And no person whose name 
is not subscribed to, or written on, the 
said roll, with the day and year when 
the same was subscribed thereto, or 
written thereon, shall be suffered or ad- 
mitted to practise as an attorney, or 
counsellor at law, within the Territory 
under the penalty hereinafter mention- 
ed any thing in this law contained, to 
the contrary notwithstanding; and the 
Judges of the General court, in open 
court, shall have power at their discre- 
tion, to strike the name of any attor- 
ney or counsellor at law, from the roll, 
for malconduct in his office; Provided 
always, That every attorney before his 
name is struck off the roll, shall recieve 
a written notice from the Clerk of the 
General court, stating distinctly the 
grounds of complaint, or the charges 
exhibited against him ; and he shall af- 
ter such notice, be heard in his defence, 
and be allowed reasonable time, to col- 
lect and prepare testimony for his justi- 
fication. 



Not after- 
wards to 
practice till 
restored. 



And every attorney whose name shall 
be at any time, struck off the roll by 
order of the court, in manner aforesaid, 
shall be considered as though his name 
had never been written thereon, until 
such time as the said judges in open 
court, shall authorise him again to sign 
or subscribe the same. 



74 



ATTORNIES 



61 



Sec. 5. The Judges of the General 
court, and the Judges of the several 
courts of Common Pleas, within the 
Territory, shall have power to punish 
in a summary way, according to the 
rules of law, and the usages of courts, 
any, and every attorney, or counsellor 
at law, who shall be guilty of any con- 
tempt in the execution of his office ; 
and every attorney and counsellor at 
law, receiving money for the use of his 
client and refusing to pay the same when 
demanded, may be proceeded against 
in a summary way on motion. And 
all attornies, counsellors at law, Judges, 
Clerks, and Sheriffs, and all other offi- 
cers of the several courts within the 
Territory, shall be liable to be arrested 
and held to bail, and shall be subject to 
the same legal process and may in all 
respects be prosecuted, and proceeded 
against in the same courts, and in the 
same manner, as other persons are; 
any law, usage, or custom, or privilege 
to the contrary notwithstanding. 



To be pun- 
ished for 
contempt of 
court. 



How to be 
proceeded 
agoinst for 
withholding 
money from 
clients. 



Subfect to 
orrest. 



Sec. 6. No person shall be permit- 
ted to practise as an attorney or coun- 
sellor at law, by instituting, conducting 
or defending, any action, suit plea or 
plaint, in any court within the Territo- 
ry, who holds a commission as a Judge, 
of any General or Supreme court, or 
court of Common Pleas, nor shall any 



What per 
sens prohib- 
ited from 
practice. 



75 



62 ATTORNIES. 

person who holds a commission as a 
Justice of the Peace, Coroner or Sher- 
iff or who acts as a deputy Sheriff, jail- 
or or Constable, within the Territory, 
be permitted to practise as an attorney 
or counsellor at law, in the county in 
which he is commissioned or appointed, 
nor shall any Clerk of the General court. 
Circuit court or court of Common Pleas, 
be permitted to practise as an attor- 
ney or counsellor at law in the court of 
which he is Clerk: Provided neverthe- 
less, That nothing herein contained, 
shall prevent, any such attornies as may 
heretofore have obtained licenses to 
practise within this Territory, from 
continuing to practise as such, notwith- 
standing they may not be residents 
thereof. 

And no person shall be permitted or 
Atternles to suffered to enter his name on the roll or 
take the oath record to be kept, as aforesaid, by the 
of aiieQionce i r i /-> i 

ftc. Clerk of the General court, or do any 

official act appertaining to the office of an 



Note. So much of the 6th Section as 
prohibits non residents from practising, 
is repealed by act of 16th of June 1809, 
and so much as prohibits non-resident 
judges from practising is repealed by act 
of March 13, 1810. 



76 



ATTORNIES. 



63 



attorney or counsellor at law, until he 
hath taken an oath to support the con- 
stitution of the United States, and the 
person administering such oath, shall 
certify the same on the license, which 
certificate shall be a sufficient voucher 
to the Clerk of the General court, to 
enter or insert, or permit to be entered 
or inserted on the roll of attornies and 
counsellors at law, the name of the per- 
son of whom such certificate is made. 



The same to 
be certified 
on the !!• 
eente. 



Sec. 7. The following oath of office 
shall be administered to every attorney 
and counsellor at law, before they sub- 
scribe the respective rolls; to wit, "I 
swear (or affirm) that I will in all things 
faithfully execute the duties of an at- 
torney at law (or counsellor at law, as 
the case may be) acording to the best 
of my understanding and abilities." 



Form of oath 
of office. 



Sec. 8. Any person producing a 
license or other satisfactory voucher, 
proving that he hath been regularly 
admitted an attorney at law in any court 
of record within the United States, 
and that he is of a good moral charac- 
ter, may be admitted to an examination 
for the degree of an attorney and 
counsellor at law; and any attorney or 
counsellor at law, residing in any of the 
United States, who is of a good moral 
character, may at any time, on applica- 



Persont li« 
censed to 
practice law 
in any court 
of record in 
U. S. ad- 
mitted to 
practice. 



n 



64 



ATTORNIES. 



tion be admitted an examination for the 
degree of an attorney and counsellor at 
law within the Territory. 



Penalty for 
attempting 
to practice 
without li- 
cense. 



Sec. 9. If any person or persons, 
not licensed as aforesaid, shall receive 
any money, or any species of property, 
as a fee, or compensation, for services 
rendered, or to be rendered by him, or 
as attorney, or attornies, counsellor, or 
counsellors at law, within the Territory, 
all money so received, shall be consider- 
ed as money received to the use of the 
person paying the same, and may be 
recovered back with costs of suit, by an 
action or act ons for money had, and 
received ; and all property delivered or 
conveyed for the purpose aforesaid, or 
the value thereof may be recovered 
back with costs of suit by the person con- 
veying or delivering the same by action 
of Detinue or Trover and Conversion; 
and the person or persons receiving such 
money or property, shall forfeit three- 
fold the amount or value thereof, to be 
recovered with costs of suit, before any 
magistrate, if within a magist ate juri - 
diction, but if not, in any court of re- 
cord within the Territory, by action of 
debt or qui tam, the one half to the use 
of the person who shall sue for or recov- 
er the same, and the other half to the 
use of the county, in which such suit 
shall be brought. And if any person 



78 



ATTORNIES 



65 



or persons shall sign, or cause to be sign- 
ed, the name of an attorney, or either 
of the Judges of the General court, to 
any certificate or license, provided for 
by this law, with an intent to deceive, 
such person or persons, shall be deemed 
guilty of forgery, and shall be prosecu- 
ted and punished accordingly. 



Fraudulent- 
ly signing 
the name off 
an attorney 
or fudge &e. 
deemed for* 
gery. 



Sec. 10. Plaintiffs shall have the lib- 
erty of prosecuting, and defendants 
shall have the privil g of defending, in 
their proper persons, and nothing here- 
in contained shall be construed to debar 
them therefrom, nor shall any thing 
herein contained, be construed to afiF ct 
any person or persons heretofore 
admitted to the degree of an Attorney, 
or Counsellor at law, according to the 
rules of the General court, so as to 
subj ct them to further examina ion, or 
make i necessary for them to renew 
their licenses. 



parties may 
proseen e ie 
in proper 
person. 



Not to affct. 
atts. hereto- 
fore admit'd 



79 



66 Authentication of Records. 



AUTHENTICATION 

OF 

RECORDS. 



AN ACT. 

For rendering authentic as Evidence in 
the courts of this Territory, the 
public acts, records and Judicial pro- 
ceedings of Courts in the United 
States. 

Passed Sept. 17 1807. 



Legislative 
acts hew au 
thenficated. 



Sec. 1. Every act of the Legislature 
of any one of the United States, having 
the seal of such state affixed thereto, 
shall be deemed authentic, and receive 
full faith and credit when offered in evi- 
dence, in any court of justice within 
this Territory. 



Judicial acts 
how authen- 
ticated. 



Sec. 2. And the records and judicial 
proceedings of the several courts of, or 
within the United ates, shall be proved 
and admitted in the courts of justice in 
this Territory, by the attest tion or cer- 
tificate of the Clerk or Prothonotary, 



COMMON FIELDS 67 

and the seal of the court annexed, to- 
gether with the certificate of the Chief 
Justice, or one, or more of the Judges, 
or of the presiding Magistrate of every 
such court, as the case may be, that 
the person who sign d such attestation 
or certificate was at the time of sub- 
scribing it, the Clerk or Prothonotary When to be 
of such court; and the said records, and 
judicial proceedings, authenticated as 
aforesaid, shall have full faith and cred- 
it given to them in every court within 
this Territory, as by law or usage they 
have in the courts of the United States, 
or of any one of the states, whence the 
said records are, or shall be taken; any 
thing in this or any other act contain- 
ed to the contrary notwithstanding. 



read in evi* 
denee. 



COMMON FIELDS. 



AN ACT. 

Toregulate the enclosing and cultivating of 
Common Fields. 

Passed Sept 17, 1807 

Sec. 1. THOSE who are or shall be 
proprietors or owners of land, in any 



81 



mtet & make 
rules 



68 COMMON FIELDS. 

field that is now occupied, used and de- 
clared, or that shall hereafter be occu- 
Owners to pied, used and declared to be a com- 
mon field, may meet together, by 
themselves or agents, annually, on the 
first Monday in March, or on such 
other days, as they shall appoint, at some 
convenient place by them appointed, 
for the purpose of making such rules 
and regulations as to them shall seem 
meet, for the well ordering of the af- 
fairs of such field with respect to fen- 
cing and cultivation, and all other things 
necessary for the well managing the 
same, for the common interest of such 
proprietors; in which meeting, the 
proprietors of such field, shall have full 
power by their major vote, to be com- 
puted by interest, to order all such af- 
fairs and make such regulations, as they 
shall deem proper and expedient, 
for the purposes aforesaid; Provided 
always. That any person, who is a pro- 
prietor in any common field, may at 
any time hereafter, separate his her or 
their land, from such common field, by 
fencing the same, subject only to ma- 
king and keeping in repair fences in like 
manner as persons having enclosures 
adjoining to the common fields, as by 
this law directed. 

Sec. 2. The better to enable them 
to carry on and manage the affairs of 



82 



COMMON FIELDS, 69 

such fields, they are hereby authorised 
and empowered, to elect a chairman Jo Elect ol- 
clerk and treasurer, who shall be sworn 
to the faithful discharge of their duties, 
respectively; and the clerk shall enter 
and record all the acts, votes, and reso- 
lutions of the said proprietors relating 
to the management of the said common 
fields; and shall continue in his office 
until another shall be chosen and qualified 
to serve in his room, and that the elec- 
tion of chairman, clerk and treasurer, 
shall be annually, or otherwise as shall 
be determined by the said proprietors, 
or a majority of them in their lawful 
meetings assembled. 



mittee. 



Sec. 3. For the better management 
of their common fields, they shall chuse .?)*** **■"' 
a committee of three persons, which 
shall be stiled "the field committee," 
who shall be sworn to a faithful dis- 
charge of their duties; the said com- 
mittee may call a meeting of the pro- 
prietors of such field, when they shall 
judge it needful, by giving warning to 
such of them as live in the town or vill- 
age, verbally, where such fields lie, and 
to the agents, (if any) of non-resident 
proprietors, ten days previous to the 
time of such meeting, or by warning 
such proprietors in such other manner 
as they shall, in their lawful meetings 
agree upon. 



83 



lector. 



70 COMMON FIELDS. 

Sec. 4. The proprietors of common 
fields, are hereby authorized and em- 
powered, at their lawful meetings, to 
grant and levy taxes on themselves, 
when they shall judge it needful, ac- 
cording to their several interests in such 
fields, for the defraying the charges that 
may arise in setting out and designating 
the proportion of, or altering the fence 
of such fields, in making gates and brid- 
ges, or for any other public or corn- 
Appoint at- ^on charge, relating to such fields, and 
?*"*r * **'* ^^ appoint assessors and collectors for 
the making, apportioning, and collecting 
such taxes, which collectors shall have 
the same power and authority in every 
respect, as the collectors of county 
taxes; which taxes, when collected, 
shall be paid into the hands of the Trea- 
surer, and shall be appropriated, by a 
majority of the proprietors for the 
common benefit. 

Sec. 5. The field committee shall 
point out and designate the place where, 
Duty of com and the proportion which, each propri- 
etor shall erect of such common fence, 
and every proprietor in such common 
field shall duly erect and maintain, his, 
her or their proportion of such com- 
mon fence, according to the directions 
of such committee: Provided such com- 
mittee, shall not require any such fence 
to be erected at a greater expence, or 



84 



mitte. 



COMMON FIELDS. 71 

of better materials, than is directed by 
a law of this Territory, entitle "An 
act establishing and regulating enclo- 
sures," and shall attend all orders, and 
comply with all regulations of the ma- 
jor part of the proprietors of such com- 
mon field, for the improvement thereof, 
for the common benefit, under the 
penalties of such fines and forfeitures as 
shall be lawfully annexed to the breach 
or neglect of such orders or regulations. 

Sec. 6. Any person or persons, ha- 
ving his, her or their part or propor- 
tion of common fence, designated by the 
said field committee, shall have liberty, 
in order to make or repair the same, Respecting 

of passing over any person's lot or land f^j^g, 
whatsoever, whenever it shall be neces- 
sary, for the purpose aforesaid; and 
when it shall so happen that the line of 
fence, ordered as aforesaid, for the 
enclosing, or securing any common 
field, shall run in upon, or intersect the 
fence of any person making a particular 
enclosure, adjoini g the common field, 
the one half of the dividing fence be- 
tween such particular enclosure, and 
the common field, as aforesaid, shall be 
made and maintained by the proprie- 
tors of such common field, and the other 
half by the owner of such particular 
enclosure; and if any person, or persons, 
whose land shall adjoin any such com- 
mon field, shall neglect to keep in 



85 



72 



COMMON FIELD. 



repair, and maintain his, her, or their 
part of such fence, after being reques- 
ted thereto by the field committee, in 
writing, under their hands, for the 
space of ten days, it shall be lawful for 
the said committee to repair the said 
fence, at the proper charges of the de- 
linquent ; which expense, after being est- 
timated by two reputable freeholde s 
of the town or village, wherein such 
fields are situated, may be recovered 
by action of debt, before any court ha- 
ving competent jurisdiction, together 
with costs. 



Penalty for 

opening 

fence. 



Sec. 7. If any person or persons 
whose lands shall adjoin such common 
field, shall lay open the same, without 
giving two months notice thereof in wri- 
ting, lodged with the Clerk of such com- 
mon field ; such person or pesons shall 
be liable to pay all damages that may 
accrue to the proprietors or to any of 
them, of such common fields, to be 
recovered in any action of damages, 
before any court having competent ju- 
risdiction. 



Acpts. for 
services iiew 
paid. 



Sec. 8. All accounts for any servi- 
ces rendered any person acting under 
the appointment of, or by the direction 
of the major part of the proprietors of 
common fields, shall be paid out of the 
common treasury of such proprietors. 



86 



COMMON FIELD. 



73 



after being audited by the field commit- 
tee; except the accounts of such field 
committee; which last mentioned ac- 
counts, shall be audited by a special 
committee; and that all orders on the 
Treasurer, shall be signed by the chair- 
man, and a tested by the Cle k ; and the 
Collectors, shall, for all, or any monies 
by them paid to the Treasurer, dem- 
and duplicate receipts, one of which shall 
be held by the said Collectors, and the 
other lodged with the Clerk: the Trea- 
surer shall also demand duplicate re- 
ceipts for all monies paid by him, on 
orders, on the Treasurer, one of which 
receipts shall be holden by the Trea- 
surer, and the other lodged with the 
Clerk. 



Sec. 9. The proprietors of com- 
mon fields, shall have power, by their 
major votes, in lawful meetings assem- 
bled, to order all such fines and for- 
feitures, on either, or any of them- 
selves, as to them shall seem reasona- 
ble, for carrying into effect, any of 
their rules and regulations, for the com- 
mon benefit of the said proprietors: 
Provided nevertheless. The penalty 
does not exceed the sum of five dollars, 
and that the person or persons thinking 
himself or themselves to be unreasona- 
bly or oppressively fined, shall have the 



Fines and 
forfeitures. 



Proviso. 



87 



74 



COMMON FIELDS. 



right to appeal from the judgment of 
said proprietors, to the next court of 
Common Pleas, holden for said county: 
Provided, That notice of such appeal, 
shall be given within ten days after the 
judgment be given by the said proprie- 
tors. 



To be enclo- 
sed with a 
good fence. 



Sec. 10. The said common field shall 
be enclosed with a good and sufficient 
fence, according to law, on or before 
the first day of May in each and every 
year, or such other day as the said pro- 
prietors may appoint, and no cattle, 
horses or other animals shall be suffer- 
ed to be put into such fields, for the 
purpose of depasturing therein, between 
the first day of May and the fif eenth 
day of November in each and every 
year, or on such day o her & time a the 
proprietors may agree upon, under the 
penalty of paying such fines, as shall be 
ordered by the said proprietors, in law- 
ful meeting assembled. 



CONSTABLE. 75 

AN ACT 

Providing for the appointment of Constables. 

Passed Sept. 17, 1807. 

Sec. 1. It shall be the duty of the 
court of Common Pleas at their term 
next after the first of March annually, in Court of C. 
each and every county, to appoint one ^' *** appoint 
or more respectable confidential per- 
sons, in each and every township, with- 
in their respective counties, to serve as 
Constable; and the Constables so ap- Term of $er- 
pointed shall continue in office by vir- vice. 
tue of such appointment, for the term 
of one year, and so long thereafter as 
may be sufficient for their successors in 
office to have notice of their appoint- 
ments, take the oath, and enter on the 
duties of their offices: Provided, That 
nothing herein contained shall oblige 
them to serve as Constables for a longer 
time than three months af er the expi- 
ration of the term of one year as afore- 
said. 

Sec. 2. Every Constable before he 
enters upon the duties of his office, shall 
take the following oath or affirmation; 

"I do swear, or affirm (as the case ^g" 
may be) that I will faithfully discharge 



89 



76 CONSTABLE 

the duties of my office as Constable 
within the county of ac- 

cording to the best of my understand- 
ing and abilities." 

Which oath or affirmation shall be 
taken before the court of common 
Pleas, or before any Justice of the 
Peace of the said court : and the Justice 
administering such oath, if out of court, 
shall make a certificate thereof and 
cause the same to be filed with the clerk 
of said court, by which such Constable 
shall have been appointed ; and it shall 
Hi* powers be the duty of every Constable as far 

and duties. ^^ j^^ j^j^^ jj^g^ ^^ apprehend, and bring 

to justice, all felons, and disturbers of 
the peace, to suppress all riots and un- 
lawful assemblies, and to keep the peace 
within the county to which he shall 
have been appointed, and also to serve 
and execute all warrants, writs, pre- 
cepts, and other process to him lawfully 
directed, and generally to do and per- 
form all things appertaining to the of- 
fice of Constable within the Territory; 
Provided always. That nothing herein 
contained shall be construed to require 
any Constable not qualified as is provi- 
ded in the act entitled, "An act estab- 
lishing courts for t e trial of small cau- 
ses," to serve or execute any process 
that may issue by virtue of the provi- 
sions in that act contained. 



90 



CONSTABLE. 



77 



Sec. 3. Every person who shall be 
appointed to the office of Constable in 
manner aforesaid, and who shall not 
within eight days after notice of such 
appointment, take the oath herein pre- 
scribed, and every Constable who hav- 
ing taken the oath aforesaid, shall ne- 
glect, or refuse to perform any of the 
duties appertaining in the office shall 
forfeit & pay for every such neglect or 
refusal, the sum of twenty dollars, to be 
recovered with costs of suit, before any 
court of record within the county in 
which such Constable resides, in the 
name of any person who will sue for 
the same, the one half to the use of the 
person so suing, and the other half to the 
use of the county; Provided always. 
That no person shall be liable to the 
penalty herein specified, for not accept- 
ing the appointment of a Constable in 
the same county, more than once in the 
term of ten years. 



Failing to 
talie eatii or 
perform du- 
ty. 



Proviso. 



Sec. 4. When any Constable in any 
township within this Territory, appoin- 
ted as aforesaid, shall die or remove 
out of the township, or shall be other- 
wise disqualified from holding such of- 
fice, it shall be the duty of any Justice 
of the Peace in the township in which 
such death, removal, or disqualification 
shall happen, to appoint a Constable to 
fill such vacancies, and return his name 



Vacancy liow 
supplied. 



Certified to 
C. P. 



91 



78 



CONSTABLE. 



Magistrate 
may appoint 
special con- 
stable. 



to the next court of Common Pleas held 
for the county; who shall confirm the 
said appointment, or appoint another; 
and the Constable so appointed shall 
take the same oath, and be subject to 
the same forfeitures, for neglect of du- 
ty, as those appointed by the court: 
Provided nevertheless. That nothing in 
this act shall be construed so as to pre- 
vent any Magistrate in the Territory 
from appointing any suitable person to 
act as Constable in a criminal case, or in 
case of attachments where there is a 
probability that the criminal will escape, 
or where goods and chattels are about 
to be removed, if delay is made for the 
purpose of applying to the Constable of 
the township. 



CORONERS. 

AN ACT 

For theappoitment of Coroners, their duty 
and power. 



Passed Sept. 17, 1807. 



Coroners to ^^^- ^- ^ coroner shall be appointed 

be appointed in each county in this Territory. 



92 



CORONERS. 



79 



Sec. 2. Every coroner within the 
county for which he is appointed shall 
serve all writs and precepts when the 
Sheriff or any of his Deputies shall be 
a party to the same, & shall return jurors 
in all causes where the Sheriff shall be 
interested, or related to either party. 
The Coroners, or in case of their ab- 
sence, any Justice of the Peace of the 
respective counties, shall take inquests 
of violent deaths, and casual deaths 
happening within their respective coun- 
ties, and shall before they enter upon 
the duties of their respective offices, be 
severally sworn or affirmed, to the 
faithful discharge thereof and give secu- 
rity in the same manner as sheriffs are 
obliged to do. 



Their duty 
and powers 



To take 
oath & give 
security. 



Sec. 3. Every Coroner shall, as 
soon as he shall be certified of the dead 
body of any person supposed to have 
come to his or her death by violence, 
or casualty, found o ly ng within his 
county, make out his warant, directed 
to the constable of the Township, where 
the dead body is found, or lying, requi- 
ring him forthwith to summon a jury of 
good and lawful men, of the same 
Township, not less than eighteen in all 
(so that twelve may be present) to ap- 
pear before such Coroner, at the time 
and place in his warrant expressed, and 
to enquire upon a view of the body of 



To issue 
warrant for 
|ury of in 
quest. 



To whom 
directed. 



Number of 
iury. 



93 



80 



CORONERS. 



Duty of 
Centtablet. 



(name here the person deceased, if 
known) there lying dead, how, in what 
manner, and by whom, he or she, came 
by his or her death ; and every consta- 
ble, to whom such warrant, shall be di- 
rected and delivered, shall forthwith 
execute the same, and shall repair to the 
place where the dead body is, at the time 
mentioned, and make return of the war- 
rant with the proceedings thereon, un- 
to the Coroner who granted the same. 



Fine en 
Constable for 
failure. 



How reco- 
verable. 



Every Constable, failing unnecessari- 
ly, of executing such warrant, or of 
returning the same, as aforesaid, shall 
forfeit and pay the sum of eight dollars ; 
and every person summoned as a Juror, 
as aforesaid, that shall fail of appearance, 
without having a reasonable excuse, 
shall forfeit five dollars: which fines 
shall be recovered by action of debt, 
before any jurisdicton that can take 
cognizance of the same, and be applied 
to the use of the county. 



Jurors to be 
sworn &e. 



Sec. 4. The Coroner or Justice shall 
administer an oath, or affirmation, to 
twelve of the Jurors, that shall appear, 
to the foremen first; in the following 



"You do solemnly swear, (or so- 
lemnly, sincerely, and truly declare and 
affirm as the case is) that you will dili- 



94 



oath. 



CORONERS. 81 

gently enquire, and true presentment 

make, how, in what manner, and by Foreman'* 

whom, A B, who he e lies dead, came 

to his death, and you shall deliver to me 

the coroner of this county a true inquest 

thereof, according to such evidence as 

shall be laid before you, and according 

to your knowledge, so help you God." 

Sec. 5. The other jurors shall swear 
or affirm, as the case may be, in the 
following form: 



"Such oath or, affirmation, as your 
foreman hath taken, you, and each and Ofhor Ja- 
every of you, shall well and truly ob- 
serve and keep so help you God." 



rors oath. 



Sec 6. The Jurors being sworn, the 
Coroner, or Justice sh 11 give them a 
charge upon their oaths to declare of Charge to 
the death of the person; whether he, *'^' 
or she died of felony, or mischance, or 
accident; and if of felony, who were 
principals and who were accessaries, 
with what instrument, he or she was 
struck or wounded; and so of all pre- 
vailing circumstances which may come 
by presumption, and if by mischance or 
accident, whether by the act of man, 
and whether by hurt, fall, stroke, drow- 
ning or otherwise; also, to enquire of 
the person who (if any) were present, 
the finders of the body, his, or her re- 
L 



95 



82 



CORONERS. 



lations and neighbors; whether he or 
she was killed in the same place where 
the body was found; and if elsewhere, 
by whom, and how the body was 
brought thence, and of all other circum- 
stances relating to the said death : and if 
he or she died of his or her own felony, 
then to enquire of the manner, means 
or instrument, and of all circumstances 
concerning it. 



Preelamo- 
tien for ev- 
idence. 



Sec. 7. The Jury being charged shall 
stand together, and proclamation shall 
be made for any persons who can give 
evidence, to draw near, and they shall 
be heard. 



Cor. to issue 
warrants for 
witnesses. 



Sec. 8. Coroner or Justice, is fur- 
ther impowered to send out his war- 
rant for witnesses, commanding them 
to come before him to be examined, & 
to declare their knowledge concerning 
the matter in question. He shall admin- 
ister an oath, or affirmation, to them 
in the following form: 



Form of 
oatli. 



"You do solemnly swear, (or solemn- 
ly, sincerely, and truly declare and af- 
firm, ) that the evidence you shall give to 
this inquest concerning the death of A 
B, here lying dead, shall be the truth, 
the whole truth and nothing but the 
truth, so help you God." 



96 



CORONERS. 



83 



Sec. 9. The evidence of such wit- 
nesses shall be in writing, subscribed by 
them; and if it relate to the trial of 
any person concerned in the death, then 
shall the Coroner or Justice bind such 
witness, by recognizance in a reasona- 
ble suna, for their personal appearance 
at the next General or Circuit court, to 
be holden within the same county, 
there to give evidence accordingly ; 
and commit to the common jail of the 
county, any witness or witnesses, re- 
fusing to enter into such recognizance; 
and shall return to the same court, the 
inquisition, written evidence, and re- 
cognizance by him taken ; and the ju- 
ry having viewed the body, heard the 
evidence, and made all the enquiry 
within their power, shall draw up and 
deliver into the Coroner, their verdict 
upon the death under consideration, in 
writing, under their hands and seals. 



Evidence 
subscribed. 



Witnesses 
bound in 
recognizance 



Verdict un- 
der hands 
ond seals. 



Sec. 10. Upon an inquisition found 
before any Coroner, of the death of 
any person, by the felony or misfortune 
of another, he shall speedily inform one 
or more of the Justices of the same 
county thereof, to the intent, that the 
person killed, or being in any way instru- 
mental to the death, may be apprehen- 
ded, examined, and secured, in order 
for trial. 



Coroner to 
give infer- 
motion to 
Justices. 



97 



84 COUNTIES. 



COUNTIES. 

AN ACT. 

establishing the boundary line between the 
counties of Randolph and St. Clair. 

Passed Dec. 11, 1813 

Be it enacted by the Legislative Council 
and house of Representatives of the Illinois 
Territory and it is hereby enacted by the au- 
thority of the same. That the Boundary 
line between St. Clair Randolph and 
Gallatin Counties shall begin at the 
Mississippi river on the line between 
Township 3. and 4. South of the base 
line (which is near Cahokia) thence 
running east along said line between 
townships 3. and 4. aforesaid to the 
meridian line which runs north from the 
mouth of the Ohio River, Thence along 
said meridian line until it intersects the 
lower (or southern Boundary of the 
county of Madison) This act to be in 
force from and after the passage there- 
of. 



COUNTIES. 85 

AN ACT. 

establishing the boundary lines of Gallatin 
County. 

Passed Dec. 11, 1813. 

Be it enacted by the Legslative council and 
House of Representatives of the Illinois Ter- 
ritory and it is hereby enacted by the author- 
ity of the same. That the line of Gallatin 
county do begin at the mouth of lusk's 
creek on the Ohio river running up 
with said creek to Miles's old trace, Thence 
along said trace to the meridian line 
which runs north from the mouth of 
the Ohio river. Thence north with said 
line to the lower line of Madison Coun- 
ty, Thence with said line to the divi- 
ding line between Illinois and Indiana 
Territories; & thence with said line to 
the mouth of the Wabash, and thence 
down the Ohio to the begining. This 
act to commence and be in foce from 
and after the passage thereof. 



AN ACT 

For the division of Gallatin County. 

Passed Nov. 28, 1814. 

Sec. 1. Be // enacted by the Legisla- 
tive Council and House of Representatives of 

99 



86 



COUNTIES. 



County of 

Edwards, 

ereeied. 



Palmyra seat 
of justice. 



Public 
buildings. 



the Illinois Territory and it is hereby enacted 
by the authority of the same. That all that 
tract of country within the following 
boundaries (to wit) beginnign at the 
mouth of Bompast creek on the big 
Wabash, and running thence due west 
to the meridian line, which runs north 
from the mouth of the Ohio River. 
Thence with said meridian line and due 
north till it strikes the line of Upper 
Canada, thence with the line of Upper 
Canada to the line that separates this 
territory from the Indiana Territory 
and thence with the said dividing line to 
the beginning, shall constitute a separate 
county to be called Edwards: and the 
seat of justice for said county shall be 
at the town now called Palmyra on the 
Wabash ; provided the proprietor, or 
proprietors of said land shall give to the 
said county, for the purpose of erecting 
the public buildings a quantity of land 
at said place not less than twenty acres 
to be laid oi? into lots and sold for the 
above purpose. But should said pro- 
prietor or proprietors refuse or neglect 
to make the donation aforesaid then and 
in that case it shall be the duty of the 
court of Common Pleas who shall be ap- 
pointed for said county to fix upon 
some other place for the seat of justice 
as convenient as may be to the different 
settlements in said county 



100 



COUNTIES. 



87 



2nd Section superceded by late acts. 



Sec. 3. Be it further enacted that it 
shall and may be lawful for the Gover- 
nor of this territory immediately to 
constitute the militia within the county 
thus laid off into one battalion, the com- 
manding officer of which shall have 
the same power to order out the militia 
as is now possessed by the Lieut. Colo- 
nels of the respective regiments. 



BaHolien to 
be organised 
by Gov. 



Sec. 4. And be it further enacted 
that the said County of Edwards is 
hereby allowed one Representative in 
the House of Representatives of this 
territory who shall be elected agreeably 
to law and be entitled to all the im- 
munities, powers and privileges pre- 
scribed by law to members of the house 
of representatives. And whereas the 
next general election for Representatives 
to the Legislature will not take place 
before the month of September in the 
year 1816 and in consequence thereof 
the said county will be unrepresented 
in the house of representatives until that 
time, for remedy whereof, an election 
is hereby directed to be held at the 
seat of justice for said county on the 
first Thursday in March next and con- 
tinue open three days and to be con- 
ducted in all other respects, by the per- 
sons and in the manner prescribed by 



Allowed one 

Represent- 

ative. 



101 



88 



COUNTIES. 



law; at which said election the persons 
entitled to vote may elect a representa- 
tive to the house of Representatives 
who shall continue in office until the 10th 
day of October 1816 and shall during 
his continuance in office be bound to 
perform the same duties and entitled to 
the same privileges and immunities that 
are prescribed by law to a member of 
the House of Representatives. 



To vote for 
o member 
of the coun- 
cil with Gal- 
latin County. 



Polls com- 
pared at 
Gallatin 
C. H. 



Sec. 5. Be it further enacted that 
whereas the counties of Gallatin and 
Edwards compose one district for the 
purpose of electing a member of the 
Legislative Council ; The citizens of 
said county entitled to vote may at any 
election for a member of the Legislative 
Council to represent said district proceed 
to vote for such member, and it shall 
moreover be the duty of the Sheriff of 
the said county of Edwards within ten 
days after the close of said election to 
attend at the Court House of the coun- 
ty of Gallatin with a statement of the 
votes given in said county of Edwards 
to compare the poles of the respective 
counties, and it shall be the duty of the 
Sheriff of Gallatin county to attend at 
such time and place with a statement of 
the votes of Gallatin county and upon 
counting the votes of the respective 
counties, it shall be the duty of the said 
Sheriff of Gallatin and Edwards coun- 



102 



COUNTIES. 



89 



ties to make out and deliver to the 
person duly elected a certificate 
thereof, if the said Sheriff or either of 
them shall refuse or fail to perform the 
duty required by this section, such de- 
linquent shall forfeit and pay the sum of 
two hundred dollars to be recovered by 
action of debt or indictment one half 
to the use of the territory and the other 
half to the person suing for the same. 



SherifF to 
give eertifi- 
cote of elec- 
tion. 



Sec. 6. Be it further enacted that the 
citizens of said county of Edwards are 
hereby declared to be entitled in all res- 
pects to the same right and p ivileges 
in the election of a delegate to Con- 
gress as well as of a member to the 
house of representatives of the territory 
that are allowed by law to the other 
counties of this territory and all elec- 
tions are to be conducted at the same 
times and in the same manner, except 
as is excepted by this law as is provided 
for other counties — This act shall com- 
mence and be in force from and after 
the passage thereof. 



To vote for 
delegate to 
Congress. 



M 



103 



90 CRIMES 



CRIMES. 

AN ACT 

Respecting Crimes and Punishments. 

Passed Sept. Mth. 1807. 

TREASON. 

Sec. 1. If any person residing in, 
belonging to, or protected by the laws 
of this Territory, shall levy war against 
What oflen the United States, or against this Ter- 

deemed'trea- ^'tory, or shall knowingly or wilfully 
enable. aid or assist any enemies at war against 

the U States or this Territory, by join- 
ing the armies or fleets of such enemies, 
or by inlisting, persuading or procur- 
ing others to join said fleets or armies, 
or by furnishing such enemies with 
arms, ammunition, or provisions, or a- 
ny other article for their aid or com- 
fort, or by carrying on a treasonable or 
treacherous correspondence with them, 
or shall form, or be any way concern- 
ed in forming any combination, plot or 
conspiracy, for betraying the U. S. or 
this Territory into the hands or power 
of any foreign enemy, or shall give, 



104 



CRIMES 



91 



or attempt to give or send any intelli- 
gence to any such enemy, for said pur- 
pose, the person or persons so offending, 
shall be deemed guilty of treason, and 
upon conviction thereof shall suffer the 
pains of death. 



How punish- 
ed. 



MURDER. 



Sec. 2. If any person or persons 
shall with malice aforethought, kill or 
slay another person, he, she, or they, 
so offending shall be deemed guilty of 
murder, and upon conviction thereof, 
shall suffer the pains of death. 



Murder how 
punished. 



MAN-SLAUGHTER. 



Sec. 3. If any person or persons shall 
wilfully kill or slay another person, 
without malice aforethought, he, she, or 
they, so offending shall be deemed guil- 
ty of man-slaughter, and upon convic- 
tion thereof shall be punished as the 
common law hath heretofore been used 
and accustomed ; Provided nevertheless. 
That if any person in the just and ne- 
cessary defence of his own life, or the 
life of any other person, shall kill or 
slay another person, attempting to rob 
or murder in the field or highway, or 
to break into a dwelling house, if he 
cannot with safety to himself otherwise 
take the felon, or assailant, or bring 



Manslaught- 
er hew pun- 
ished. 



Previse. 



105 



92 



CRIMES 



him to justice, he shall be holden guilt- 
less. 

Sections 4 and 5 repealed by act of 27th 
February 1810. 

RIOTS and UNLAWFUL ASS EM. 
BLIES. 



Ffnci en hii« 
lawful asaem* 
blics. 



Sec. 6. If three or more persons shall 
assemble together with intention to do 
any unlawful act with force and vio- 
len e, ag inst the person or property of 
another, or to do any other unlawful 
act against the pe ce and to the terror 
of the people, or being lawfully assem- 
bled, shall agree with each other to do 
any unlawful act as aforesaid, and shall 
make any movements and preparati- 
on therefor, the persons so offending, 
and upon conviction thereof shall pay 
as a fine, each, to this Territory, the 
sum of sixteen dollars, and find surety 
for their good behaviour, respectively, 
for the space of six months, and stand 
committed until sentence be perform- 
ed. 



Dyty of Jud- 
fei tic. en 
vnlawful os« 
ttmbllcf. 



Whenever three or more persons shall 
be assembled, as aforesaid, & proceed- 
ing to commit any of the offences as 
aforesaid, it shall be the duty of all 
Judges, Justices of the Peace and She- 
riffs, and all ministerial officers imme- 
diately upon actual view, or as son 
as may be, upon information, to 



106 



CRIMES. 



93 



make proclamation in the hearing of 
such offenders, if silence can be obtain- 
ed, commanding them in the name of 
the United States immediately to dis 
perse, and depart to their several homes 
or lawful employments, and if upon 
such proclamation, or when silence can- 
not be obtained, such persons so assem- 
bled, shall not disperse, and depart as 
aforesaid, it shall then be the duty of 
such Judges, Justices of the Peace She- 
riffs and other ministerial officers res- 
pectively, to call upon all persons near, 
and of abilities, and throughout the 
county if necessary, to be aiding and 
assisting in dispersing and taking into 
custody all persons assembled as afore- 
said, and all military officers, and oth- 
ers called upon as aforesaid, are hereby 
ordered and directted to render instant 
and full obedience in this behalf, upon 
the penalty of ten dollars, each, for 
every neglect or refusal herein, and 
commitment in case of non-payment. 



If rioters do 
not disperse 
liow punisii- 
ed. 



If any of the persons so unlawfully 
assembled, shall be killed, maimed, or 
otherwise injured, in consequence of re- 
sisting the Judges, or others in dispersing 
and apprehending, or in attempting to 
disperse and apprehend them, the said 
Judges, Justices of the Peace and sheriffs, 
and other ministerial officers, and 
others, acting by their authority, or 



Rioters &e. 

killed 

guiltless. 



107 



94 CRIMES 

the authority of any of them, shall be 
holden guiltless. 

If any person or persons shall forci- 
bly obstruct, any of the authority, a- 

Fine on ob- foresaid, or, if any three, or more per- 
ftructing au- u n • ^ r 

thority &e. ^^^^ ^^^^^ contmue together, after proc- 

lamation, as aforesaid, made or attemp- 
ted to be made, and prevented by 
such rioters, or in case of no proclama- 
tion, and three or more perso s being 
assembled, as aforesaid, shall commit a- 
ny unlawful act, as aforesaid, every of- 
fender upon conviction thereof, shall be 

*!?^ '*""'*''' ^"^*^ '" ^ ^""^ "°^ exceeding three hun- 
dred dollars, or to be whipped not ex- 
ceeding thirty-nine stripes, and find 
surety for good behaviour, for a time 
not more than one year, at the discre- 
tion of the court, before whom the 
conviction may be had; and upon a 
second conviction, each, and every of- 
fender, shall be whipped and fined as 
aforesaid, and find surety for good be- 
haviour, and the peace, for a time not 
exceeding ten years; and may be com- 
mitted to any jail in the Territory, 'till 
sentence be fully performed. 

Section 7 repealed by Act of 21th 
February. 1810. 

LARCENY. 

Sec, 8. If any person or persons shall 



108 



CRIMES. 95 

steal or purloin from another person or Larceny 

J what deem- 

persons, any money, goods, wares or ,j_ 

merchandize, or any other personal pro- 
perty, or thing whatever; he, she, or 
they, so offending, shall be deemed guil- 
ty of larceny, and upon conviction 
thereof, shall for the first offence, res- 
tore to the owner the thing stolen, and 
pay to him the value thereof, or two- How pun- 
fold the value thereof, if the thing sto- 
len be not restored, and shall be fined in 
a sum not exceeding two fold the value 
of the thing or goods stolen, or shall be 
whipped not exceeding thirty-one 
stripes, at the discretion of the court. 
Upon a second conviction, restitution, 
and payment shall be made to the own- 
er as aforesaid, and a fine shall be set, 
and paid to the Territory, not exceed- 
ing four fold the value, as aforesaid ; 
and the offender shall be whipped not 
exceeding thirty-nine stripes, and in 
like manner upon every succeeding con- 
viction; and in case such convict shall 
not have property real or personal 
wherewith to discharge and satisfy the 
sentence of the court, it shall be lawful 
for the sheriff by direction of the court, 
to bind such person to labor, for any 
term not exceeding seven years, to any 
suitable person, who will discharge such 
sentence. 

IF any person or persons shall re- 



109 



96 



CRIMES. 



Receiving 
stolen goods 
&e. hew 
punished. 



ceive any goods, or other things, as 
aforesaid, knowing the same to be sto- 
len, he, she, or they, so offending, shall 
be deemed principly guilty, and upon 
conviction thereof, shall be punished 
accordingly. 



Compound- 
ing felony 
how fined. 



Proviso. 



And if any person or persons shall 
agree to compound, or take satisfaction 
for any stealing, or goods stolen, such 
person or persons upon conviction there- 
of, shall forfeit twice the value of the 
sums or things agreed for, or taken; 
but no person shall be debared from 
taking his goods again, Provid d he pro- 
secute the thief; Provided al o, That 
nothing herein shall be construed so as 
to oblige a parent to prosecute a child, 
being an infant, or in a state of minori- 
ty. 



FORGERY, 



Forgery what 
eases deemed 



Sec. 9. Whoever shall forge, deface 
corrupt, or embezzle any characters, 
gifts, grants, bonds, bills, conveyances, 
wills, testaments, or written contracts of 
any nature or kind, or shall deface, or 
falsify any enrollment or registry, or 
record, or matter or instrument recor- 
ded, or shall counterfeit the seal or 
hand writing of another, with intent to 
defraud ; every person so offending 
shall upon conviction thereof, be fined 



110 



CRIMES 



97 



in double the sum he shall thereby have 
defrauded or attempted to defraud 
another, one half thereof to the party 
injured, or intended to be injured, and 
shall moreover forever after be ren- 
dered incapable of giving testimony, be- 
ing a juror, or sustaining any office of 
trust, and be set in the pillory not ex- 
ceeding the space of three hou s, and all 
persons vrilfully aiding and assisting in 
the commission of these crimes, or who 
shall cause, or procure the same, or any 
of them to be perpetrated, shall be 
deemed principals. 



Persons end- 
ing and as- 
sist ng iiew 
pnnisiied. 



USURPATION. 



Sec. 10. No person shall take upon 
himself, or exercise or officiate in any 
office, or place of authority in this ter- 
ri ory, without being lawfully authorised 
thereto: and if any person shall pre- 
sume so to do, he shall, upon conviction 
thereof, be fined in a sum not exceeding 
one hundred dollars. 



Usarpatie 
wli t decm- 



Hew fined 



ASSAULT AND BATTERY. 



Sec. 11. If any person shall unlaw- 
fully assault or threaten another, in any 
menacing manner, or shall strike or 
wound another, he shall, upon convic- 
tion thereof, be fined in a sum not 



Assault and 
battery wliat 
deemed. 



N 



111 



98 



CRIMES 



How fined 
and punish- 
ed. 



exceeding one hundred dollars, and the 
court before whom such conviction 
shall be had, may in their discretion 
cause the offender to enter into recog- 
nizance with surety, for the peace and 
good behavior, for a term not exced- 
ing one year. 



FRAUDULENT DEEDS 



Fraudulent 
deeds &c. 



Sec. 12. All bonds, bills, deeds of 
sale, gifts grants or other conveyances 
or obligations whatever, made with in- 
tent to deceive and defraud others, or 
to defeat creditors of their just debts or 
demands, shall be null and void, and the 
person or persons so offending, shall, 
upon conviction thereof, be fined in a 
sum not exceeding three hundred dol- 
lars, and pay double damages to the 
party or parties injured. 



DISOBEDIENCE OF CHILDREN 
AND SERVANTS. 



Powers of 
justice in 
cases of 
disobedient 
Children &c 



Sec. 13. If any children or servants 
shall contrary to the ohedience due to 
their parents or masters, resist, or refuse 
to obey their lawful commands, upon 
complaint thereof to any Justice of the 
Peace, it shall be lawful for such Jus- 
tice, to send him or them so offending 
to the jail, or house of correction, there 
to remain until he or they shall hum- 



112 



CRIMES 



99 



ble themselves to the said parent's or 
master's satisfaction, & if any child or 
servant, shall, contrary to his bounded 
duty, presume to assault or strike his 
parent or master, upon complaint and 
conviction thereof, before two or more 
Justices of the Peace, the offender shall 
be whipped not exceeding ten stripes. 



How pun- 
ished. 



OBTAINING GOODS BY FRAUDU- 
LENT PRETENCES. 



Sec. 14. If any person or persons, 
shall knowingly and designedly by any 
false pretence or pretences, obtain from 
any other person or persons, any mo- 
nies, goods or merchandize, or other 
effect whatever, with intent to cheat 
or defraud such person or persons of 
the same, he, she, or they so offending 
shall, on conviction thereof, by verdict 
or confession, on judgment, suffer such 
punishment as in case of larceny is pro- 
vided to be inflicted. 



Obtaining 
goods by 
fraudulent 
pretences. 



How punish- 
ed. 



ARSON. 



Sec. 15. If any person or persons 
shall wilfully and maliciously burn or 
cause to be burned, or shall willingly 
or knowingly aid or assist in burning, or 
causing to be burned, any dwelling 
house store-house, barn, stable, or 
other building adjoining thereto, or if 



Arson what 
deemed. 



113 



100 



CRIMES 



Hew Punish* 
ed. 



any person or persons shall wilfully at- 
tempt to burn, by setting fire to any 
dwelling-house, store house, barn, sta- 
ble, or other building adjoining there- 
to, every person or persons so offen- 
ding, shall, on conviction thereof, suf- 
fer death. 



Sec. 16. Repealed by act 26 October 
1808. 

HOG STEALING. 



Hog stealing 
what deem- 
ed. 



How punish- 
ed. 



Proviso. 



Sec. 17. Any person or persons who 
shall steal any hog, shoat or pig, or 
mark, or alter the mark of any hog, 
shoat or pig, with an intention of steal- 
ing the same, for every such offence, 
upon being thereof lawfully convicted, 
shall be fined in any sum not exceeding 
one hundred dollars, nor less than fifty 
dollars, and moreover receive on his or 
her bare back, any number of lashes not 
exceeding thirty nine, nor less than 
twenty five ; Provided nevertheless. That 
nothing herein contained shall be so con- 
strued as to prevent any person from 
marking or killing his own unmarked 
hogs, which may be running at large, 
with others in his own mark. 



Altering 
defacing &c. 



Sec. 18. A law to prevent altering 
and def cing marks and brands, and 
mismarking, and misbranding, horses, 



114 



CRIMES 



101 



cattle and hogs, unmarked 
ded. 



md unbran- 



If any person or persons, shall alter 
or deface the mark or brand, of any 
other person or person's, horse, neat 
cattle, or hog, such person being there- 
of lawfully convicted by indictment or 
presentment, shall for every horse, 
mare, colt, neat cattle, or hog, whose 
mark or brand, he or she shall alter or 
deface, forfeit and pay the sum of five 
dollars, over and above the value of 
such horse, mare, colt, neat cattle, or 
hog, to the person whose mark or 
marks, brand or brands, shall be so al- 
tered or defaced : Provided, He prose- 
cute for the same within six months af- 
ter discovery of the fact committed ; 
and the offender shall over and above 
the said fine receive forty lashes, on his 
or her bare back, well laid on; and for 
the second offence, shall pay the fine a- 
foresaid, stand in the pillory two hours, 
and be branded in the left hand, with a 
red hot iron, with the letter T, and if 
any person or persons, shall mismark, 
or misbrand, any unmarked or unbran- 
ded horse, mare or colt, neat cattle, or 
hog, not properly his or their own, he, 
or they, shall forfeit a d pay the sum of 
five dollars over and above the value 
thereof, for every such horse, mare, 
colt, neat cattle or hog, so mismarked 



Hog steal- 
ing what 
deemed. 



How punish< 



How to be 
prosecuted. 



Further 
ishment. 



115 



102 



CRIMES 



or misbranded, which fines shall be re- 
covered by indictment or action of 
debt in any court of record within this 
Territory. 



Persons seing 
said crimes 
commited & 
not discover- 
ing how 
punished. 



And to prevent the concealing of 
such offences, if any person or persons, 
shall see any person or persons commit- 
ting any of the crimes aforesaid, and 
shall not discover the same, in ten days, 
to some magistrate, then, and in such 
case, such person or persons, for not 
discovering the said crimes, or any of 
them committed, shall forfeit and pay 
the sum of ten dollars, to the use of the 
county; to be recovered by any person 
or persons who will sue for the same by 
action of debt, or by indictment or in- 
formation in any court of record in this 
Territory. 



Evidence 
what suffici- 
ent. 



And because it is difficult to convict 
any person who has seen such crime 
committed, if he will deny the same, 
it shall be sufficient evidence to convict 
any person that he has seen such crime 
committed, if it be proven that he has 
told any other person that he did see the 
said crimes or any of them committed : 
Jnd whereas J the common custom in 
this Territory, of killing of cattle and 
hogs in the woods, gives great oppor- 
tunities to steali g the cattle and hogs 
of other people : Be it therefore enacted. 



116 



CRIMES. 



103 



That if any person or persons, shall kill 
any one or more neat cattle, or hogs in 
the woods, he shall within three days 
shew the head and ears of such hog or 
hogs, and the hide with the ears on, of 
such neat beast or cattle to the next 
magistrate, or two substantial freehold- 
ers, under the penalty of ten dollars, to 
be recovered by any person who will 
sue for the same, by action of debt, in- 
formation, or indictment in any court 
of record in this Territory. 



Persons kil- 
ling cattle & 
hogs in the 
woods how 
to proceed. 



Neglect how 
Punished. 



Every person in this territory who 
hath horses, cattle or hogs, shall have 
an ear mark or brand different from 
the ear mark or brand of all his neigh- 
bors, which ear mark and brand, he 
shall record vdth the clerk of the county 
where his horses cattle or hogs are ; 
for recording of which ear mark, and 
brand, the clerk shall be entitled to 
demand and receive the sum of twelve 
and a half cents, and every person shall 
brand horses with the said brand from 
eighteen months old, and, upwards, 
and ear mark all his hogs from six 
months old, and upwards, with the 
said ear mark, and ear mark or brand 
all his cattle from twelve months old 
and upwards with said ear mark or 
brand; and if any dispute should arise 
about any ear mark or brand, the same 
shall be decided by the book of the clerk 



Record 
brands with 
Clerk. 



Clerks fee 



At what age 
to brand &c. 



117 



104 



CRIMES 



of the county where such cattle horses 
or hogs are. 



Purchasers 
how to pro- 
ceed. 



Where any person shall buy any neai 
cattle from any other person, or come 
to the same by gift, will, or any other 
lawful means, then, and in such case, 
the person who has gained the same by 
any of the ways aforesaid, shall within 
eight months, brand the said neat cat- 
tle, with his own proper brand in the 
presence of two credible witnesses, a 
certificate of which shall be signed by 
the said witnesses. 



Selling hogs 
without ear. 



Proviso. 



If any person shall cause to be 
brought to his own house, or any o her 
house, or on board any vessel, any hog 
shoat or pig, without ears, he or she so 
offending, shall be adjudged a hog steal- 
er : Provided nevertheless. That any per- 
son may bring or cause to be brought 
to his or her own, or any other house 
or on board any boat or boats, or other 
vessel, his or her own swine, though 
without ears, he or she proving the 
same to be his or her property. 



MAIMING OR DISFIGURING. 



Maiming or 
disfiguring. 



Sec. 19. Whoever on purpose, and 
malice aforethought, by lying in wait, 
shall unlawfully cut out or disable the 
tongue, put out an eye, slit or bite the 



118 



ed. 



CRIMES. 105 

nose, ear, or lip, or cut off or disable 
any limb, or member, with intention 
in so doing, to maim or disfigure such 
person or shall voluntarily, maliciously, 
and of purpose, pull or put out an eye, 
while fighting or otherwise, every 
such offender, his or her aiders, abet- 
tors and councellors shall be sentenced 
to undergo a confinement in the jail of 
the county in which the offence was How punish- 
committed, for any time not less than 
one month, nor more than six months; 
and shall also pay a fine, not less than 
fifty dollars and not exceeding one 
thousand dollars, one fourth of which, 
shall be to the use of the Territory, 
and three fourths thereof to the use of 
the party grieved, and for the want of 
the means of payment, the offender 
shall be sold to service by the court, 
before which he is convicted, for any 
time not exceeding five years, the 
purchaser finding him food and raiment 
during the time. 



ANNULLING DISTINCTION between 
PETIT TREASON and MUR- 
DER. 

Sec 20 In all cases wherein hereto- 
fore any person would have been deem- 



119 



106 



CRIMES 



Petit treason 
deemed 
murder and 
punished ac- 
cordingly. 



ed and taken to have committed the 
crime of petit treason such person shall 
be deemed and taken to have commit- 
ted the crime of murder only, and be 
indicted, and prosecuted to final judg- 
ment accordingly, and the same punish- 
ment only shall be inflicted as in the 
case of murder. 



RAPE. 



Rape what 
deemed. 



How pun- 
ished. 



Sec. 21. Any person or persons who 
shall have carnal knowledge of a wo- 
man forcibly & against her will, or who 
shall aid and abet, counsel, hire, or 
cause or procure any person or pesons 
to commit the said offence, being of 
the age of fourteen years, shall unlaw- 
fully and carnally know and abuse any 
woman child, under the age of ten 
years, with, or without her consent, 
shall on conviction suffer death. 



Evidence in 
case of rape. 



Sec. 22. So much of the law regula- 
ting the evidence in case of a rape, as 
makes emission necessary, is hereby re- 
pealed ; Provided nevertheless. That the 
court before whom any offender may 
be brought for trial, for said offence, 
shall have other satisfactory proof or 
evidence of violence on the person of 
the woman reported to have been 
ravished. 



120 



CRIMES 



107 



SODOMY. 



Sec. 23. Any person committing 
sodomy, or the infamous crime against 
nature, with mankind or beast, shall on 
conviction thereof, be fined not exceed- 
ing five hundred dollars, nor less than 
fifty dollars, be imprisoned for any term 
not less than one year, nor more than 
five years, and be whipped not less 
than one hundred nor more than five 
hundred stripes, well laid on, on his or 
her bare back, and shall moreover be 
rendered infamous, and incapable of 
giving testimony, ; or holding any civil 
or military commission in this territory. 



Sodomy 
what deem- 
ed. 



How punish- 
ed. 



BIGAMY AND FORCIBLE AND 
STOLEN MARRIAGES. 



Sec. 24. If any person or persons 
within this Territory, being married, 
or who shall hereafter marry, do at any 
time marry any person or persons, the 
former husband or wife, being alive, 
upon conviction thereof, shall be whip- 
ped on his or her bare back, not less 
than one hundred, nor more than three 
hundred stripes, well laid on, be fined 
in not less than one hundred, nor more 
than five hundred dollars, to, and for 
the use of the party injured, and im- 
prisoned not less than six, nor more 
than twelve months, and hereafter be 



Bigamy 
what deemed. 



How punish- 
ed. 



121 



108 



CRIMES 



Where tried. 



Proviso in 
case of ab- 
sence for 
seven years. 



In case of 
divorce. 



rendered infamous, be incapable of giv- 
ing testimony, or holding any commis- 
sion civil or military, in this Territory. 
And the party and parties so offending, 
shall receive such 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 herein contained shall extend 
to any person or persons, whose hus- 
band or wife shall be continually re- 
maining beyound the seas, for the space 
of seven years together, or whose hus- 
band or wife, shall absent him or her- 
self, the one from the other, for the 
space of seven years together, in any 
part within the United States of Ame- 
rica, or elsewhere, the one of them not 
knowing the other to be living within 
that time : Provided also, That nothing 
herein contained shall extend to any per- 
son or persons, that are, or shall be at 
the time of such marriage, divorced by 
lawful authority, or to any person or 
persons where the former marriage 
hath been, or hereafter shall be by law- 
ful authority declared to be void, and 
of no effect, nor to any person or per- 
sons, for or by reason of any marriage 
had or made, or hereafter to be had or 
made within the age of consent: And 
provided also. That no attainder for the 
offence made felony, by this law, shall 



122 



CRIMES 



109 



make, or work any corruption of blood 
or forfeiture of estate whatsoever. 



Sec. 25. Atid whereas, Women, as 
well maidens as widows and wives, ha- 
ving substance, some in goods moveable, 
and some in land and tenements, and 
some being heirs apparent to their an- 
cestors, for the lucre of such substances 
have been often times taken by misdo- 
ers, contrary to their will, and after- 
wards married to such misdoers, or to 
others by their consent, or defiled : Be 
it further enacted, That whatsoever per- 
son 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 abetting to the same, 
and also receiving willingly the same 
woman so taken, against her will, shall 
be felony, and that such misdoers, tak- 
ers and procurers to the same, and re- 
ceivers, knowing 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 
claiming her as his ward or bond woman. 



forcible and 
stolen mar- 
riages. 



How punish- 
ed. 



Proviso. 



Sec. 26. If any person above the 
age of fourteen years, shall unlawfully 
take and carry away, or shall cause to 
be unlawfully taken and conveyed 
away, any maiden, or woman child, 



Stealing wo- 
men under 
14 years of 
age. 



123 



110 



CRIMES 



How punish- 
ed. 



unmarried, being within the age of 
sixteen years, out of or from the pos- 
session, and against the will of such per- 
son or persons, as then shall happen to 
have, by any lawful ways or means, the 
order, keeping, education, or govern- 
ance of any such maiden, or woman 
child, and being thereof duly convicted, 
shall suffer imprisonment, without bail 
or mainprize, for any time not exceed- 
ing two years, as shall be adjudged a- 
gainst him. 



Stealing and 

marrying 

tiiem. 



How punish 
ed. 



Sec. 27. If any person or persons, 
shall so take away, or cause to be taken 
away, as is 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 
maiden child, if the father be in life, or 
against the will and knowledge of the 
mother of any such maiden, 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, for the space of five years, 
without bail or mainprize. 



Sec. 28. No person or persons shall 
be prosecuted, tried or punished, for 



124 



CRIMES 



111 



treason or other offence, punishable 
with death, (murder excepted) unless 
the indictment for the same, shall be 
found by a grand Jury, within three 
j^ears, next, after the treason, or other 
offence, punishable with death, shall be 
done or committed, nor shall any person 
be prosecuted or punished for any off- 
ence not punishable with death, unless 
the indictment for the same shall be 
found within two years from the time 
of committing the offence, or incurring 
the fine or forfeiture aforesaid,* Pro- 
vided ^ That nothing herein contained, 
shall extend to any person or persons 
fleeing from justice. 



Limitation 
of prosecu- 
tions for 
crimes. 



Sec. 29. The manner of inflicting 
the punishment of death shall be by Deatli how 
hanging the person convicted, by the 
neck, until dead. 



punishment 
of inflicted. 



Sec. 30. When any person or per- 
sons shall on conviction of any crime or 
breach of any penal law, be sentenced 
to pay a fine or fines, with or without 
the costs of prosecution, it shall & may 
be lawful for the court before whom 
such conviction shall be had to order the 
sheriff to sell or hire the person or per- 
sons so convicted, to service, to any 
person or persons who will pay the said 



Persons con- 
victed of 
crimes to be 
sold 



See act passed Feb. 27, 1810. 



125 



112 



CRIMES 



fine and costs for such term of time, as 
the said court shall judge reasonable. 



Punishment 
in case of 
absenting 
from service 



And if such person or persons, so sen- 
tenced and hired or sold, shall abscond 
from the service of his or her master or 
mistress, before the term of such servi- 
tude shall be expired, he or she so ab- 
sconding, shall on conviction before a 
justice of the Peace, be whipped with 
thirty-nine stripes, and shall moreover 
serve two days for every one so lost. 



Courts to 
give tliis act 
in charge to 
grand juries 



Sec. 31. The Judges of the several 
courts of record in this Territory, shall 
give this act in charge to the Grand 
Jury, at -each and every court, in which 
a Grand Jury shall be sworn. 



AN ACT 

To amend an act, entitled "An Act respect- 
ing Crimes and Punishments." 

Passed October 26th, 1808. 

Sec. 1. Be it enacted by the Legislative 
Council and House of Representatives, and it 
is hereby enacted by the authority of the 
saine. That if any person or persons, 



126 



ing death. 



CRIMES 113 

shall steal or purloin from any other 
person or persons, any horse, mare, Hop»e steal- 
gelding, mule, or ass, he, she, or they, 
so offending, shall upon conviction there- 
of, suffer the pains of death: and if any 
person or persons shall receive any such 
horse, mare, gelding, mule or ass, 
knowing the same to be stolen, he, she. To receivers 
or they, shall be deemed principally 
guiltj^ and upon conviction thereof, 
shall suffer the pains of death. 

This act shall take effect from its 
passage. 



death. 



AN ACT 

Concerning fornication and adultery — adop- 
ted from the Georgia Code. 

Passed January 26, 1810. 

Be it enacted by the Governor and 
Judges of the Illinois Territory, and it 
is hereby enacted by the authority of 
the same. 



127 



14 



CRIMES 



Preamble. 



Justice to ap- 
prehend. 



How punish- 



2nd offence. 



3rd ofFence. 



Whereas it is highly injurious in civil- 
ized society, that men & women should 
live in adultery or fornication together. 
Be it enacted that from and after the passing 
of this act. That any man & woman, 
who shall live together in like manner, 
it shall be the duty of any of the neigh- 
bouring justice if within their knowl- 
edge or upon information to them on 
oath that such man and woman do live 
in adultery or fornication he shall there- 
upon cause the said man and woman, 
to be brought before them, or either of 
them, whose duty it shall be, to bind 
them over to appear at the next superi- 
or court, and the attorney or Solicitor 
General shall then and there prefer a 
bill of indictment against both the man 
and woman and on conviction thereof 
they shall pay for the first offence a sum 
not exceeding forty eight dollars and 
for the second offence a sum not ex- 
ceeding one hundred and twenty dollars 
and for the third offence a sum not ex- 
ceding three hundred and sixty dollars 
and they stand committed to Jail 
until all and every of the several sums 
imposed as aforesaid shall be paid or 
continue therein not exceeding twelve 
months. 



The foregoing is hereby declared to 
be a law of this territory and to take 
effect from the date hereof. 



128 



CRIMES 115 

AN ACT 

To repeal part of an act of the General As- 
sembly of the Indiana Territory^ passed 
the seventeenth day of September^ in the 
year one thousand eiffht hundred and seven, 
entitled an Act respecting Crimes and 
Punishments, 

Passed February 27th, 1810. 

Be it enacted by the Governor & Judges 
of the Illinois Territory, and it is hereby 
enacted by the authority of the same. That 
from and after the first day of May 
next, so much of the before recited act 
as prescribes any limitation of the time 
in which prosecutions for forgery, per- 
jury, or any felony, shall be commen- 
ced: Shall be, and the same is hereby 
repealed. 



129 



116 



DEPOSITIONS 



Partiet to 
file interrega 
tions. 



AN ACT 

Regulating the manner of taking depositions, 
Adopted from the Georgia Code'. 



give a copy 
to the other 
party ten 
days. 



May take 
a dedimus to 
commission- 
er!. 



Passed February 26th, 1810. 

Be it enacted by the Governor & Judges 
of the Illinois Territory, and it is hereby en- 
acted by the authority of the same. That 
where any witness resides out of the 
territory, or out of any county in which 
his testimony may be required in any 
cause, it shall be lawful for either par- 
ty, on giving at least ten days notice 
to the adverse party, or his, her, or 
their attorney, accompanied with a co- 
py of the interrogatories intended to be 
exhibited, to obtain a commission from 
the clerk of the court in which the 
same may be required, directed to cer- 
tain commissioners to examine all and 
every such witness or witnesses on such 
interrogatories as the parties may ex- 
hibit ; and such exhibitions shall be 
read at the trial, on motion of either 
party. 



The foregoing is hereby declared to 
be a law of this territory and to take ef- 
fect from the first day of May next. 



130 



DIVORCE 

AN ACT 



117 



Respecting Divorce. 

Passed Sept. 17, 1807. 

Sec. 1. Divorces from the banns of 
Matrimony shall be decreed where 
either of the parties had a former wife 
or husband alive, at the time of solem- 
nising the second Marriage, or for im- 
potency, or adultery in either of the 
parties. 



Causes for 
divorce. 



Sec. 2. Divorce from bed and board from bed & 
shall be granted for the cause of extreme 
cruelty in either of the parties. 



Sec. 3. Whenever a divorce shall be 
decreed, on cause or aggression from the 
husband, the woman, if no issue of the 
Marriage be living at the time of the 
divorce shall be restored to all her 
lands, tenements and hereditaments, and 
be allowed out of the man's personal 
estate, such alimony as the court may 
think reasonable, having regard to the 
personal property that came to him by 
the Marrige, and his ability; but if 
there be issue living at the time of the 
divorce, then the court, in regard to 
ordering restoration, or granting alimo- 
ny, may do as circumstancss may seem 
to require, and, on application from ei- 



Wifes alir 



131 



118 



DIVORCE 



ther party, may, from time to time, 
make, at their discretion, such alterati- 
ons therein as may be necessary 



In case of 
aggression of 
wife. 



distribution 
of cliildren 



Sec. 4 If the divorce arise from the 
cause of aggression of the wife, wheth- 
er there be living issue or not, of the 
Marriage, the court may order to her 
the restoration of the whole, or part, or 
no part of her lands, tenements, & her- 
editaments, and may assign such alimo- 
ny, as shall be thought proper and may 
also make such distribution between 
the parties of their children (if any) 
as the court shall think proper. 



wliat courts 
have recog- 
nizance 



Oatli of lius- 
band. 



Sec 5. The General court, and the 
Circuit courts, shall have the sole cog- 
nizance of all divorces applied for, or 
made, and the Judges thereof may use 
such kind of process to carry their judg- 
ment into effect, as to them shall seem 
expedient. Whenever they may think 
it proper, they may compel the husband 
to disclose on oath, what personal estate 
he hath received in right of his wife, 
how the same hath been disposed of, 
and what proportion of it remained in 
his hands at the time of the divorce. 



Sec. 6. No cause of divorce, or ali- 
Proceedings mony, shall be brought before the same 
in case of courts, unless the party suing, or com- 

plaining, shall file his or her libel in the 



132 



DOWER 119 



proper Clerk's office, speciallj^ setting 

forth therein, the cause of his or her 

complaint, and shall cause the other further pow 
., . , . ,-r> • 1 1 er» of court. 

party, if in this 1 erntory, to be served 

with an attested copy thereof, and with 
a summons commanding him or her to 
appear at the court where the cause is 
to be heard, fourteen days at the least 
before the sitting of the said court, 
otherwise in such manner as the court 
shall direct. And where the party libel- 
led shall not be within the limits of this 
Territory, then such summons shall be 
published 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. The 
said courts shall have all the powers ne- 
cessary to the conducting and finally de- 
termining such causes, according to the 
true intent of this law. 



DOWER. 

AN ACT 

For the speedy assignment of Doiuer: 

Passed September \7th, 1807. 

Sec. 1. When the heir, or other per- 
son having the next immediate estate 

133 



120 



DOWER. 



Terre tenant 
to set out 
dower in one 
month 



How suit 
to be 
brought 



of freehold or inheritance, shall not, 
within one month, next after demand 
made, assign and set over, to the widow 
of the deceased, her dower, or just third 
part of, and in all lands, tenements and 
hereditaments, whereof, by law, she is, 
or may be, dowable, to her satisfaction, 
according to the true intendment of 
law, then such widow may sue for, and 
recover the same, by writ of dower, to 
be brought against the tenant in pos- 
session, or such persons as have or claim 
right or inheritance, in the same estate, 
in manner and form as the law pre- 
scribes. 



On judgment 
how to pro- 
ceed 



Sec. 2. Upon rendering judgment 
for any woman, to recover her dower 
in any lands tenements or heredita- 
ments, reasonable damages shall also 
be awarded to her, from the time of the 
demand, and refusal to assign to her, 
her reasonable dower; and a writ of 
seizin, shall be directed to the Sheriff of 
the county, or Coroner; and the Sher- 
iff, or Coroner, to whom such writ is 
directed, shall cause her dower in such 
estate to be set forth unto her, by three 
disinterested freholders of the same 
county, under oath or affirmation, to be 
administered by any Justice of the 
Peace, to set forth the same, equally & 
impartially, without favour or affection, 
as conveniently as may be. 



134 



DOWER 



121 



Sec. 3. Where estates, of which a 
woman is dowable, are entire, and 
where no division can be made, by 
metes and bounds, dower thereof shall be 
assigned in a special manner, as of a 
third part of the rents, issues, and pro- 
fits, to be computed and ascertained, in 
manner as aforesaid. And no woman 
that shall be endowed of any lands, ten- 
ements and hereditaments as aforesaid, 
shall, wantonly, or designedly, commit 
or suffer any waste thereon, on penalty 
of forfeiting that part of the estate 
whereupon such waste shall be made, to 
him, or them that have the immediate 
estate of freehold, or inheritance, in re- 
mainder or reversion, (and in case of 
negligent and inadvertant waste, by 
her done, or sufiFered, the damages that 
may be assessed for such waste) to be re- 
covered by action of waste. And all 
tenants in dower, shall maintain the 
houses, and tenements, with the fences, 
and appurtenances whereof they may 
be endowed in as good repair as the 
same have been delivered to them, du- 
ring the term ; and the same shall so 
leave, at the expiration thereof. 



Widow not 
to commit 
wilful 

WOStft 



Tenants to 
keep premi 
ses in good 
repair 



Q 



135 



DUELLING 



122 



DUELLING. 



AN ACT 

To suppress duelling. Adopted from the 
Virffinia Code. 

Passed April 7, 1810, 

Whereas experience has evinced, 
That the existing remedy for the sup- 
Preamble, pression of the barbarous custom of 
duelling is inadequate to the purpose, 
and the progress and consequences of 
the evil have become so destructive as 
to require an effort on the part of 
the Legislature to arrest a vice, the 
result of ignorance and barbarism, jus- 
tified neither by the precepts of morali- 
ty, nor by the dictates of reason. For 
remedy whereof: 



Killing ad- 
versary in a 
duel deemed 
murder. 



Beitenactedby the acting Governor and 
Judges of the Illinois Territory and it is 
hereby enacted by the authority of the same. 
That any person who shall hereafter 
wilfully and maliciously, or by agree- 
ment fight a duel or single combat 
with any engine instrument or weapon, 



136 



DUELLING 



123 



the probable consequence of which 
might be the death of either party, 
and in so doing shall kill his antagonist 
or any other person or persons, or 
inflict such wound as that the person 
injured shall die thereof within three 
months thereafter, such offender, his 
aiders, abettors and councellors being 
thereof duly convicted shall be guilty 
of murder and suffer death by being 
hanged by the neck any law custom 
or usage of this territory to the contra- 
ry notwithstanding. 



Aiders abet- 
ters &c. 



And be it further enacted. That if any 
person whosoever, shall challenge 
another to fight a duel with any wea- 
pon or in any manner whatsoever, the 
probable issue of which may or might 
result in the death of the challenger or 
challenged, or if any person shall ac- 
cept a challenge or fight a duel with 
any weapon or in any way, whatso- 
ever, the probable issue of which may 
or might terminate in the death of the 
challenger or challenged, such person 
shall be incapable of holding or being 
elected to any post of profit, trust or 
emolument, civil or military under the 
government of this territory. 



Ineligable to 
office for 
challenging. 



And be it enacted. That from and af- 
ter the passing of this act, every per- 
son who shall be appointed to any 



137 



124 



DUELLING 



Persons ap- 
pointed to 
take oath. 



Form of oath 



office or place, civil or military in this 
territory, shall in addition to the oath 
now prescribed by law, take the fol- 
lowing oath. I do solemnly swear or 
affirm (as the case may be) that I 
have not been engaged in a duel by 
sending or accepting a challenge to fight 
a duel, or by fighting a duel, or in any 
other manner in violation of the act, 
entitled an act to suppress duelling, 
(since the passage of this act) nor will 
I be so concerned directly or indirectly 
in such duel, during my continuance in 
office, so help me God. 



And be it further enacted. That it shall 
be the duty of the presiding Judge of 
the General Court at each session of the 
court to give in charge expressly to the 
Jury this law, also to charge the jury 
to present all persons concerned in car- 
rying sending or accepting a challenge. 



Judge or 
Justice to 
apprehend. 



And be it further enacted. That when 
any judge or magistrate of this territo- 
ry has good cause to suspect any person 
or person are about to be engaged in a 
duel, he may issue his warrant to bring 
the parties before him, and if he shall 
think proper to take of them a recog- 
nizance to keep the peace, he shall iii- 
sert in the condition, that the party or 
parties shall not during the time for 
which they were bound, directly or in- 



138 



DUELLING 



125 



directly be concerned in a duel, either 
with the person suspected or any other 
person, within the time limited by the 
recognizance. 



And be it further enacted, That if any 
person or persons, shall for the pur- 
pose of eluding the operation of the 
provisions of this law, leave the terri- 
tory the person or persons so offending 
shall be deemed as guilty, and be sub- 
ject to the like penalties as if the offence 
had been committed within this terri- 
tory, if any person shall leave this ter- 
ritory with the intention of giving or 
receiving a challenge to fight a duel or 
of aiding or abetting in giving or re- 
ceiving such challenge and a duel shall 
actually be fought, whereby the death 
of any person shall happen, and the 
person so leaving the territory shall re- 
main thereout, so as to prevent his ap- 
prehension for the purpose of a trial, or 
if any person shall fight a duel in this 
territory or aid or abet therein, where- 
by any person shall be killed, and then 
flee into another state or territory to 
avoid his trial, in either case it shall be 
the duty of the executive and they are 
hereby directed to adopt and pnrsue 
all legal steps to cause any such offen- 
der to be apprehended and brought to 
trial in the county where the offence 
was committed, when the duel shall 



Persons leav- 
ing the terri- 
tory to elude 
this law, 
how punish- 
ed and be 
proceeded 
against. 



139 



126 



DUELLING. 



have been fought within the territory, 
and when it shall have been fought 
without the territory then in that coun- 
ty where, in the opinion of the execu- 
tive, the evidence against the offender 
can be best obtained and produced upon 
his trial. 



Duty of at- 
torney genl. 



Oath of his 
deputy. 



And be it further enactedJThat it shall 
be the duty of the attorney general of 
the territory to give information to the 
executive whenever a case shall arise 
which will render the interposition of 
ihe executive authority under this act 
necessary, and the deputies of the At- 
torney General at the first court which 
shall be held in which they are to act as 
prosecuting attornies, after they have 
accepted their appointments, shall take 
the following oath. — I do solemnly 
swear or affirm, (as the case may be) 
that I will to the best of my Judgment 
execute the duty imposed on me by the 
act for suppressing duelling, so help me 
God. 



Words of in- 
sult leading 
to violence 
and breach 
of peace ac- 
tionable 



And be it further enacted. That all 
words which from their usual construc- 
tion, and common acception are con- 
sidered as insults, and lead to violence 
and breach of the peace, shall hereafter 
be actionable and no plea, exception or 
demurrer shall be sustained in any court 



140 



DUNKARDS & QUAKERS. 127 

within this territory to preclude a jury 
from passing thereon, who are hereby 
declared to be the sole judges of the 
damage sustained, Provided that nothing 
herein contained shall be construed to 
deprive the several courts of this terri- 
tory from granting new trials as here- 
tofore. 

The foregoing is hereby declared to 
be a law of the Territory & to take ef- 
fect accordingly from the date thereof. 



DUNKARDS & QUAKERS. 



AN ACT 

For the relief of Dunkards quakers and 
other religious persons conscienciously 
scrupulous of bearing Arms. 

Passed Dec. 1, 1813. 

Whereas it has been represented to 
the general Assembly that there are 



141 



128 DUNKARDS & QUAKERS. 

certain religious denominations of per- 
Preamble. sons called Quakers and Dunkards or 

Tunkers whose religious tenets or per- 
suasions are averse to the principle of 
bearing arms and of mustering as militia 
men or being engaged in military ope- 
rations, therefore. 



Exempted 
from ordin- 
ary militia 
duty upon 
paying 3 
dollars to 
sherifFs. 



To produce 
sherifFs rect. 
annually. 



sheriff to pay 
it into the 
county levy. 



Sec. 1. Be it enacted by the legislative 
Council and House of Representatives of the 
Illinois Territory and it is hereby enacted by 
the authority of the same. That where 
any person now is or hereafter may be 
enrolled by any captain or commanding 
officer of any militia company in this 
Territory and whose religious tenets or 
persuations are averse to the principle 
of bearing arms or being engaged in 
military operations, it shall and may be 
lawful for the captain or commanding 
officer aforesaid on the application of 
any such militia man, to exempt him 
from attendance at any company, 
battallion or regimental muster upon 
the said militia man producing annually 
to such commanding officer a receipt 
from the sheriff of the county for the 
sum of three dollars which said receipt 
the sherifif is hereby authorised to give 
to any such militia man on his paying 
the sum aforesaid, which money so re- 
ceived by any sheriff shall be accounted 
for by him and paid into the county 
treasury at the time of making his 



142 



Ejectment & Distress for Rent 129 

settlement with the court for the county 
taxes and shall be appropriated to the 
use of the county: Provided nevertheless, 
That nothing in this act contained shall 
be so construed as to exempt any such 
militiaman from being compelled to 
perform his tour of duty as other mili- 
tiamen, when there shall be any de- 
tachment required from the militia of 
this territory: But that all such militia- 
men shall perform such tour by himself 
or substitute as is now provided by law. 

This act shall commence and be in 
force from and after the passage there- 
of. 



EJECTMENT & DISTRESS 
FOR RENT. 



Proviso. 



AN ACT 

Js to proceedings in Ejectment, Distress for 
R.ent, and Tenants at will holding over. 

Passed Sept. 17 1817 

Sec 1. WHERE any goods or chat- 
tels shall be distrained for any rent 



143 



130 



Ejectment and 



Distress for 
rent how 
made. 



Owner of 
goods dis- 
train'd when 
replevy. 



Otherwise 
the distress 
to be apprai- 
sed. 



Appraisors 
fees. 



reserved and due, upon any demise, 
lease, or contract whatsoever, and the 
tenant, or owner of the goods so dis- 
trained, shall not (within five days, 
next after such distress taken, and notice 
thereof, with the cause of such taking, 
left at the dwelling house, or other 
most notorious place on the premises, 
charged with the rent distrained for) 
replevy the same, with sufficient secu- 
rity, to be given to the Sheriff accor- 
ding to law, that then, and in such case, 
after such distress and notice, as afore- 
said, and expiration of the said five 
days, the person distraining, or his 
agent duly authorised, shall, and may, 
with the sheriff, under sheriff, or any 
constable in the county, where such dis- 
tress shall be taken (who are hereby re- 
quired to be aiding and assisting there- 
in) cause the goods and chattels so dis- 
trained, to be appraised by two repu- 
table freeholders, who shall have and 
receive for their trouble the sum of fif- 
ty cents per diem each, and in the pro- 
portion for a longer, or shorter time, 
and shall first take the following oath or 
affirmation ; 



"I, A B, will well and truly, accor- 

Oath. ding to the best of my understanding, 

appraise the goods and chattels of C 

D, distrained on for rent, by E F," 



144 



Distress for Rent 



131 



Which oath or affirmation, such she- 
riff, under sheriff, or constable, is here- 
by empowered and required to admin- 
ister; and after such appraisment, shall, 
and may, after six days public notice, 
lawfully sell the goods and chattels so 
distrained, for the best price that can be 
gotten for the same, for, and towards 
satisfaction of the rent for which the 
said goods and chattels shall be distrain- 
ed, and of the charges of such distress, 
appraisement and sale, leaving the over- 
plus, if any, in the hand of the said she- 
riff, under sheriff, or constable, for the 
owner's use. 



When dist. 
ress may b 

sold. 



Sec. 2. Upon any pound breach, or 
rescous of goods or chattels distrained 
for rent, the person or persons grieved 
thereby, shall in a special action upon 
the case, for the wrong thereby sustain- 
ed, recover his, her, or their, treble 
damages, and costs of suit, against the 
offender or offenders, in such rescous, 
or pound breach, any, or either of them, 
or against the owner or owners of the 
goods distrained, in case the same be 
afterwards found to have come to his 
or their use, or possession. 



Penalty on 
retcout of 
goods 
distrained. 



And how re- 
coverable. 



Sec. 3. Provided, That in case any Distraining 

distress and sale shall be made by virtue when there 

of this act, for rent pretended to be in •• none. 
arrear, and due, when in truth no rent 



145 



132 



Ejectment and 



shall appear to be in arrear, or due, to 
the person or persons distaining, or to 
him, or them, or in whose name or 
names, or right, such distress shall be 
taken as aforesaid, then the owner of 
such goods and chattels, distrained and 
sold, as aforesaid, his executors or ad- 
ministrators shall, and may, by action 
of trespass, or upon the case, to be 
brought against the person or persons so 
distraining, any, or either of them, his, 
or their executors, or administrators, 
recover double the value of the goods 
or chattels, so distrained and sold, toge- 
ther with full costs of suit. 



Rent due to 
be first paid 
out of goods 
distrained. 



SherifF to pay 
it over to 
landlord. 



Sec. 4. The goods and chattels, ly- 
ing or being in or upon any mes- 
sage, lands or tenements, which 
are, or shall be leased, for life or 
lives, term of years, or otherwise, ta- 
ken by virtue of any execution, shall 
be liable to the payment of all such 
sum or sums of money, as are, or shall 
be due for rent for the premises, at the 
time of taking such goods and chattels 
by virtue of such execution, and the 
said Sheriffs shall, after sale of the said 
goods and chattels, pay to the landlord, 
or other person empowered to receive 
the same, such rent so due, if so much 
shall be in his hands, and if not, so much 
as shall be in his hands, and apply the 
overplus, thereof, if any, towards sat- 



146 



Distr ss for Rent 



133 



isfying the debt and costs, in such exe- 
cution mentioned ; Provided always. 
That the said rent so to be paid to 
the landlord, shall not exceed one years 
rent. 



But not ex- 
ceeding one 
years rent. 



Sec. 5. In case any lessee, or tenant 
for life, or lives, term of years, at will, 
or otherwise, of any messuage, lands or 
tenements, upon the demise whereof 
any rents, are or shall be reserved or 
made payable, shall fraudulently or 
clandestinely convey, or carry off from 
such demised premises, his goods or 
chattels, with intent to prevent the 
landlord or lessor from distraining the 
same, for arrears of such rent, so re- 
served as aforesaid, it shall and may be 
lawful to, and for such lessor, or land- 
lord, or any other person or persons, 
by him for that purpose, lawfully em- 
powered, within the space of thirty 
days, next ensuing such conveying 
away, or carrying off such goods or 
chattels, as aforesaid, to take and seize 
such goods and chattels wherever the 
same may be found, as a distress for the 
said arrears of such rent, and the same to 
sell, or otherwise dispose of, in such 
manner as if the said goods and chattels 
had actually been distrained by such 
lessor, or landlord, in or upon such de- 
mised premises, for such arrears of rent 
any law, custom, or usage, to the con- 
trary notwithstanding. 



Tenant clan- 
destinely 
removing 
his goods. 



147 



134 



Ejectment and 



Goods not 
bona fide 
sold to ano- 
ther 



Sec. 6. Provided nevertheless That 
nothing herein contained, shall extend, 
or be deemed or construed to extend to 
empower such lessor, or landlord, to 
take or seize any such goods or chat- 
tels, as a distress for arrears of rent, 
which shall be bona fide, and for a valua- 
ble consideration, sold before such seiz- 
ure made, to any person or persons not 
privy to such fraud as aforesaid, any 
thing herein to the contrary notwith- 
standing. 



Landlord to 
distrain stock 
&e. 



Sec. 7. It shall and may be lawful, 
to, and for every lessor, or landlord, 
lessors, or landlords, or her, or their 
bailiffs, receivers, or other person or 
persons empowered, by him, her, or 
them, to take and seize, as a distress for 
arrears of rent, any cattle, or stock of 
their respective tenant, or tenants, fee- 
ding or pasturing upon all or any part 
of the premises, demised or holden, and 
also to take and seize all sorts of corn, 
and grass, hops, roots, fruits, pulse, or 
other product whotsoever, which shall 
be growing on any part of the estate, or 
estates, so demised or holden, as a 
distress for arrears of rent ; and to ap- 
praise, sell, or otherwise dispose of the 
same, towards satisfaction of the rent 
for which such distress shall have been 
taken, and of the charges of such dis- 
tress, appraisement and sale, in the 



148 



Distress for Rent 



135 



same manner as other goods and chat- 
tels, may be seized, distrained and dis- 
posed of; and the purchaser of any 
such corn, grass, hops, roots, fruits, 
pulse, or other product, shall have free 
ingress, egress, and regress, to, and 
from the same, where growing, to 
repair the fences from time to time, 
and when ripe, to cut, gather, make, 
cure, and lay up, and thrash, and after 
to carry the same away, in the same 
manner as the tenant might legally have 
done, had such distress never been 
made. 



With liberty 
of ingress 
egress 
regress, &c. 



Sec. 8. Whereas great inconveni- 
encies may frequently happen to land 
lords by their tenants secreting decla- 
rations in ejectments, which may be 
delivered to them, or by refusing to 
appear to such ejectment, or to suffer 
their landlords to take upon them the 
defence thereof, every tenant therefore 
to whom any declaration in ejectment 
shall be delivered for any lands, tene- 
ments, or hereditaments within the 
territory, shall forthwith give notice 
thereof to his or her landlord, or land- 
lords, or his or their bailifiFs, receivers, 
agent, or attorney, under penalty of 
forfeiting the value of two years rent, 
of the premises so demised or holden in 
possession of such tenant, to the person 
of whom he or she holds, to be recov- 



Tenant con- 
cealing decla. 
in ejectment 
to forfeit two 
years rent. 



149 



136 



Ejectment and 



ered by action of debt, to be brought in 
any court where the same may be cog- 
nizable, wherein no essoin, protection, 
or wager of law shall be allowed, nor 
any more than one imparlance. 



Landlord to 
become de- 
fendant in 
ejectment. 



Wereupon 
stay of exe- 
cutions &c. 



Sec. 9. It shall and may be lawful for 
the court where such ejectment shall be 
brought to suffer the landlord or land- 
lords to make him, her or themselves de- 
fendant, or defendants, by joining with 
the tenant or tenants, to whom such 
declaration in ejectment shall be deliv- 
ered, in case he, or they shall appear, 
but in case such tenant, or tenants, shall 
refuse or neglect to appear, judgment 
shall be signed against the casual ejector, 
for want of such appearance; but if 
the landlord, or landlords of any part 
of the lands, tenements, or heredita- 
ments, for which such ejectment was 
brought, shall desire to appear by him- 
self, or themselves, and consent to en- 
ter into the like rule, that by the course 
of the court, the tenant in possession, in 
case he, or she, had appeared, ought to 
have done, then the court, where such 
ejectment shall be brought, shall and 
may permit such landlords so to do, and 
order a stay of execution upon such 
judgment against the casual ejector, 
until they shall make further order 
therein. 



150 



Distreess for Rent 



137 



Sec. 10. Whereas great difficulties 
often arise in making avowries or con 
uzance upon distress for rent, it shall 
and may be lawful for all defendants, in 
replevin, to avow or make conuzance 
generally, that the plaintiff in replevin, 
or other tenant of the lands and tene- 
ments, whereon such distress was made, 
enjoj'ed the same under a grant or 
demise, at such a certain rent or ser- 
vice, during the time wherein the rent 
or service distrained for incurred, which 
rent or service, was then, and still re- 
mains due, without further setting forth 
the grant, tenure, demise or title of 
such landlord or landlords, lessor or les- 
sors, any law or usage to the contrary, 
notwithstanding, and if the plaintiff or 
plaintiffs, in such action shall become 
nonsuit, discontinue his, her or their 
action, or have a judgment given 
against him, her or them, the defendant 
or defendants, in such replevin, shall re- 
cover double costs of suit. 



Defendants 
in replevin 
may avow & 
make con- 
uzance gen- 
erally. 



If plaintiff be 
nonsuit, he 
forfeits dou- 
ble costs. 



Sec. 1 1 And to prevent vexatious 
replevins, or distresses taken for rent, 
all Sheriffs, and other officers, having 
authority to serve replevins, may, and 
shall, in every replevin of a distress for 
rent take in their own names, from the 
plaintiff, and one reasonable person as 
surety, a bond in double the value of 



Sheriff &c. 
serving reple- 
vins, to take 
pitffs. bond. 



151 



138 



Ejectment and 



Sheriff may 
assign bond, 
and iiow. 



Avowant 
may sue in 
his own 



the goods distrained, such value to be 
ascertained by the oath or affirmation, of 
one or more credible person or persons, 
not interested in the goods or distress; 
& which oath or affirmation, the person 
serving such replevin, is hereby author- 
ised and required to administer, and 
conditioned for prosecuting the suit 
with effect, and without delay, and for 
duly returning the goods and chattels 
distrained, in case a return shall be 
awarded, before any deliverance be 
made of the distress: & such Sheriff, or 
other officer, as aforesaid, taking any 
such bond, shall, at the request and costs 
of the avowant, or person making con- 
uzance, assign such bond to the avow- 
ant, or person aforesaid, by endorsing 
the same, and attesting it under his 
hand and seal, in the presence of two 
credible witnesses. And if the bond 
so taken and assigned, be forfeited, the 
avowant or person making conuzance, 
may bring an action and recover there- 
upon in his own name, and the court 
where such action shall be brought, may 
by a rule of the same court give such 
relief to the parties upon such bond, as 
may be agreeable to justice and reason, 
and such rules shall have the nature and 
effect of a defeazance to such bond. 



Sec. 12. Where any person or per- 
sons have leased or demised any lands 



152 



Distress for Rent 



139 



or tenements to any person or per- 
sons, for a term of one, or more years 
or at will paying certain rents, & he or 
they, or his or their assigns, shall be 
desirous, upon the determination of the 
lease, to have again, and repossess, his, 
or their estate, so demised, and for that 
purpose shall demand and require, his 
or their lessee, or tenant, to remove 
from, and leave the same, if the lessee 
or tenant, shall refuse to comply there- 
with, in three months after such request 
to him made, it shall and may be law- 
ful to, and for such lessor, or lessors, 
his or their heirs and assigns, to com- 
plain thereof, to any two Justices of the 
Peace, in the county where the demi- 
sed premises are situate, and upon due 
proof made before the said justices, that 
the said lessor or lessors, had been qui- 
etly and peaceably possessed of the lands 
or tenements, so demanded to be deliv- 
ered up, that he or they demised the 
same under certain rents, to the tenant 
in possession, or some person or persons 
under whom such tenant claims, or 
came in possession, and that the term 
for which the same was demised, is 
fully ended, then and in such case it 
shall and may be lawful for the said two 
justices, to whom complaint shall be 
made as aforesaid, and they are hereby 
enjoined and required, forthwith to 
issue their warrant directed to the Sher- 



Proceedings 
against ten- 
ants refusing 
to quit at the 
end of their 
term. 



Two justices 
of the peace 
to have cog- 
nizance in 
such cases & 
how 



153 



140 



Ejectment and 



Their power 
& duty and 
warrant to 
sherifF to 
summon 12 
freeholders. 



Also lessee 
or tenant to 
appear and 
shew cause. 



Further pro- 
ceedings be- 
fore the jus- 
tices and jury 



iff of the county, thereby commanding 
the Sherift to summon twelve freehol- 
ders to appear before the said justice 
within four days, next after issuing such 
warrant, and also to summon the lessee 
or tenant, or other person claiming or 
coming into possession under the said 
lessee or tenant, at the same time to ap- 
pear before them the said justices, and 
free holders to shew cause if any he has, 
why restitution of the possession of the 
demised premises should not be forthwith 
made to such lessor or lessors, his or 
their heirs or assigns; and if upon hear- 
ing the parties, or in case the tenant 
or other person claiming, or coming into 
possession under the said lessee or tenant, 
neglect to appear, after being summoned 
as aforesaid, it shall appear to the said 
justices and freeholders, that the lessor 
or lessors, had been possessed of the lands 
or tenements, in question, that he or 
they had demised the same for a term 
of years, or at will to the person in 
possession, or some other under whom he 
or she claims, or came into possession at 
a certain yearly, or other rent, and that 
the term is fully ended : that demand 
had been made of the lessee, or other 
person, in possession, as aforesaid, to 
leave the premises three months before 
such application to the said justices, then 
and in every such case, it shall and may 
be lawful, for the said two justices to 



154 



Distress for Rent 



141 



make a record of such finding, by them 
the said justices and freeholders, and 
the said freeholders, shall assess such 
damages as they think right, 
against the tenant or other person 
in possession as aforesaid, for the 
unjust detention of the demised premises 
for which damages and reasonable costs, 
judgment shall be entered by the said 
justices, and shall be final and conclusive 
to the parties, and upon which the said 
justices shall, and they are hereby en- 
joined and required to issue their war- 
rants under their hands & seals, direc- 
ted to the Sheriff of the county, com- 
manding him forthwith to deliver to the 
lessor or lessors, his or their heirs or 
assigns, full possession of the demised 
premises, aforesaid, and to levy the 
costs taxed by the justices, and damages, 
so by the freeholders aforesaid, assessed, 
of the goods and chattels of the lessee or 
tenant, or other persons in possession, 
as aforesaid ; any law, custom or usage 
to the contrary, notwithstanding. 



Justices to 
make record 



Jury to assess 
damages. 



Judgment 
thereupon 
for damages 
and costs. 



Sec. 13. Provided nevertheless. That 
if the tenant shall alledge, that the title 
to the lands and tenements in question, 
is disputed and claimed by some other 
person or persons, whom he shall name 
in virtue of a right or title, accrued or 
happening since the commencement of 
the lease, so as aforesaid made to him, 



When title 
set up by 
lessee or te 
ant. 



155 



142 



Ejectment and 



Proceedings 
thereupon. 



laimant to 
ive bond to 
rosecute his 
iaim at the 
ext court of 
. P. 



by descent, deed, or from, or under the 
last will of the lessor, and if thereupon 
the person so claiming, shall forthwith 
or upon summons, immediately to be 
issued by the said Justices, returnable 
before them in six days next following 
appear, & on oath or affirmation, to be 
by the said Justices administered, declare 
that he verily believes that he is enti- 
tled to the premises in dispute, and 
shall with one or more sufficient sure- 
ties, become bound by recognizance, 
in the sum of two hundred dollars, to 
the lessor or lessors, his or their heirs 
or assigns, to prosecute his claim at the 
next court of Common Pleas, to be 
held for the county where the said 
lands and tenements shall be, then, and 
in such case, and not otherwise, the 
said Justices shall forbear to give the 
said judgment. 



if the 

m be not 

rosecuted 

d to be 

eited. 



Sec. 14 Provided also. That if the 
said claims shall not be prosecuted ac- 
cording to the true intent and meaning 
of the said recognizance, it shall be 
forfeited to the use of the lessor or land- 
lord, and the Justices aforesaid shall 
proceed to give judgment, and cause 
the lands and tenements aforesaid, to 
be delivered to him, in the manner 
herein before enjoined and directed. 



Sec, 15. It shall and may be lawful 



156 



Distress for Rent. 



143 



for any person or persons, having any 
rent in arrear, or due upon lease, for 
life, or lives, or for one or more years, 
or at will, ended or determined, to 
distrain for such arrears after the de- 
termination of the said respective leas- 
es, in the same manner as they might 
have done, if such lease or leases had 
not been ended or determined : Provi- 
ded, That such distress be made during 
the continuance of such lessor's title or 
interest 



Landlords 
may distrain 
for rent af- 
ter lease en- 
ded. 



ELECTIONS. 

A LAW. 
To regulate Elections. 

Passed Sept. 17, 1807. 



Sec. 1. ALL general elections for 
Representatives to serve in the Gene- 
ral Assembly, shall invariably be begun 
on the first Monday in April, biennial- 



Elections 
field bienni- 
ally. 



157 



144 



ELECTIONS. 



When final- 
ly closed. 



Judges to 
proclaim 
persons elec- 
ted. 



ly, and be held at the court house, or 
place of holding courts, in the several 
counties; the poll of the election shall 
be opened between the hours of ten 
and eleven of the clock, in the fore- 
noon, and shall be kept open vv^ithout 
interruption or adjournment, until five 
of the clock of the afternoon of the 
same first day of the election, when it 
shall be adjourned until ten of the clock 
of the next morning, when the poll shall 
again be opened, and carried on with- 
out adjournment until five of the clock 
of the afternoon of the same 
second day when the poll shall be fi- 
nally closed, unless the Judges of the 
election deem it advisable to continue 
the election, or some candidate requires 
them to continue the same ; and if the 
election is to be continued, it shall be 
adjourned until ten of the clock of the 
next morning, when the polls shall 
again be opened, and continue open 
without adjournment until three of the 
clock of the afternoon of the said third 
day, and no longer, when the election 
shall close, and the Judges of the said 
election, shall then proclaim the person 
or persons (if more than one a e to be 
elected) highest in number of votes du- 
ly elected. 



Provided always. That when through 
any casualty, the governor's writ of 



158 



ELECTIONS 



145 



election does not reach the Sheriff of 
any county, previous to the hour of 
opening the poll of the election, then the 
electors thereof shall have the right to 
elect the same number of representatives 
which they were entitled to agreeably to 
their last return transmitted to the gov- 
ernor. 



Sec. 2. The Sheriffs of the several 
counties, shall and they are hereby au- 
thorised and required, each to take to 
his assistance two of the Judges of the 
court of common Pleas for their respec- 
tive counties, ten days before the com- 
mencement of any general election, and 
two days before any occasional election 
which two Judges together with the 
sheriff, shall be Judges of all elections 
for representatives to serve for their 
respective counties in the general assem- 
bly; and if any Sheriff shall be absent 
by reason of sickness or other disability 
when the poll is to be opened, his depu- 
ty by him specially appointed shall act 
in his stead; and if the aforesaid judges 
or either of them are absent, whether 
wilfully, or by reason of sickness, or 
other disability, when the poll is to be 
opened, the sheriff shall supply his or 
their place; by chusing from among the 
freeholders present, one o more, who 
shall supply the place of such absent 



Who Shff to 
take as asit- 
tantt. 



Judges of e- 
lection. 



In case of 
the absence 
of SherifF. 



159 



146 



ELECTIONS 



Absence of 
judges hew 
supplied. 



Neglect or 
refusal to 



Judge or Judges; and if any shall re- 
fuse or neglect to discharge the duties 
by this act of him required ; whereby 
any county may be deprived of its full 
representation in the legislature of this 
territory ; for every such offence, he 
shall forfeit and pay the sum of five 
hundred dollars, to the use of the coun- 
ty, to be recovered by indictment, in 
any court to be held in such county, 
wherein the same may be cognizable. 



The first part of Section 3 is repealed 
by the 3d, Section of act December 8th 
1813 and the residue is repealed by the 
act of Congress extending the right of 
suiifrage in the Illinois Territory passed 
May 20th 1812. 



Each elector 
one vote 



vivo. voce. 



Sec. 4. Every elector shall vote 
once, and no more, in any election for 
representatives ; and the manner of 
voting shall be by the elector at any time 
while the poll of the election is open, 
to approach the bar in the election room 
and addressing the Judges of such elec- 
tion in his proper person, in an audible 
voice, to be heard by the Judges of the 
election, and poll keepers thereof, to 
mention by name the person or persons, 
to the number of representatives to 
which such county may be entitled ; 
& the poll keepers, shall enter his vote 



•160 



judge to take 
oath. 



ELECTIONS 147 

accordingly; and then he shall with- 
draw. 

Sec. 5. At the time and place of 
holding elections, and before the poll 
begun, the She ifif shall affix at the outer Sheriff to 
door of the house in which the election "^*' P'"** 
shall be held, a notice in writing, ex- 
pressing the number of representatives to 
be elected at the ensuing election, and 
the names of the persons whom he hath 
selected as assistant Judges, thereof ; 
and previous to any votes being receiv- AttUtant 
ed, the assistant Judges shall severally 
take an oath (or affirmation) before 
some person qualified to administer 
oaths. The oath or affirmation of an 
assistant shall be, 

"I, A B, do solemnly swear (or af- 
firm, that I will duly attend the ensuing Form. 
election, throughout the continuance of 
the same, and that I will truly assist the 
other judges thereof, to the best of my 
ability, according to law, and that I 
will endeavour to prevent all fraud, 
deceit, and abuse in carrying on the 
same." 

It shall be the duty of the Judges of 
the election to preserve order and reg- 
ularity in conducting the said election, 
to receive the votes of all persons who 
to them may appear to be duly quali- 



161 



148 



ELECTIONS 



Administer 
oath. 



Inspect votes 



fied electors, and where they entertain 
doubts, they may interrogate such per- 
son on oath, touching his qualifications 
as an elector; and it shall be their fur- 
ther duty to observe that the poll is fair- 
ly kept, and at the close of the election 
to proclaim the person or persons (if 
more than one are to be elected) highest 
in votes, duly elected. 



Section 6 superceded by 3 Section of act 
25th, of December 1812. 



Sheriff and 
judges to 
give certifi- 
cates. 



Sec. 7. The Sheriff and other Jud- 
ges of the election, shall deliver to eve- 
ry person proclaimed duly elected, a 
certificate of his election, signed vv^ith 
their names, and attested by the poll 
keepers; and the Sheriff shall cause a 
fair copy of the poll certified by the poll 
keepers, and the w^rit, (w^hen it has 
come to his hand in due time) certified 
by himself, otherwise a certificate of 
the proceedings for want of such writ, 
to be forthwith transmitted to the of- 
fice of the Secretary of the territory; 
and shall within twenty days from the 
close of the election, deliver duplicates 
of the poll, and writ, or other certificate 
to the Clerk of the court of Common 
Pleas, of the proper county, who shall 
carefully preserve the same. 



Sec. 8. If any candidate, or elector 



162 



ELECTIONS 



149 



of the proper county, who choose to 
contest the validity of any election, or 
the right of any person proclaimed 
duly elected in any county, to his seat 
in the Legislature; such person shall 
give notice in v^^riting to the person 
whose election he means to contest, or 
leave a written notice thereof, at the 
house where such person last resided, 
within ten days after such election, ex- 
pressing the points on which the same 
shall be contested, and shall within the 
same time give notice to the coroner 
of the county, who shall thereupon 
summons two Judges of the court of 
Common Pleas of the same county, 
other than those who were Judges of 
the election, who shall be severally 
obliged to attend under the penalty of 
fifty dollars. The said Coroner shall 
appoint a place and time for the said two 
judges of the pleas as aforesaid, to meet 
within the said county, which shall be 
within twenty days after the election; 
the said two Judges and every of them, 
shall have power to issue subpoenas, and 
compel the attendance of all persons 
required to give evidence, under the 
penalty of fifty dollars, to be levied on 
each and every delinquent, who hath 
been duly served with process; and the 
said two judges so met, shall hear and 
certify under seal all testimony relative 
to the said contested election, to the 



Notice to be 
given of a 
contested el- 
ection, and 
further pro- 
ceedings. 



163 



150 



ELECTIONS 



house of representatives at their next 
session. 



Centesten to 
be electors 
in the coHn- 

♦y 

What testi- 
mony reeie- 
ved 



No person shall contest any election 
unless he is an elector of that county in 
which the election is held, nor shall a- 
ny testimony be received, which does 
not relate to the point specified in the 
notice: Copies attested by the person 
who delivers or leaves said notices, shall 
be delivered to the said Judges of the 
pleas. 



Legislature 
to attend the 
Govs. call. 



Penalty on 
neglect. 



Sec. 9. All persons elected, or ap- 
pointed to serve in either branch of the 
Legislature, and consenting thereto, 
shall be obliged to give due attendance 
at such time and place as may be di- 
rected by the governor, having receiv- 
ed previous and timely notice of their 
respective elections or appointments, 
under the penal sum of one hundred 
and fifty dollars, to the use of the ter- 
ritory: unless for good cause shewn, the 
house to which he is elected or appoin- 
ted a member, shall remit the same or 
any part thereof. 



Member may 
be expelled. 



Sec. 10. Each house or branch of 
the legislature, shall have the right of 
expelling its own members, for disor- 
derly behaviour or transgressing the 
rules : Provided, That no member shall 
be expelled without the concurrence of 



164 



ELECTIONS 



151 



two thirds of the members present ; 
and no member shall be questioned a 
second time for the same offence. 



Sec. 11. No candidate or other per- 
son for him shall attempt to obtain votes 
by bribery or treating, with meat or 
drink; and any person so offending, 
shall be incapable of holding a seat in 
either branch of the legislature for the 
space of two years, next thereafter ; or 
if any person in order to obtain votes, 
either for himself or any favorite candi- 
date, shall make any sham conveyance 
of land, title or lease of land to any 
person with an intent of enabling him to 
vote; every person so offending, by 
making such sham conveyance, title, 
bond or lease, shall on conviction there- 
of, forfeit for every such offence, the 
land so pretended to be conveyed, sold 
or leased, to the Territory ; and every 
person so ofifending, by receiving any 
such sham conveyance, title, bond or 
lease, shall on conviction, forfeit the 
value of the land so pretended to be 
held, by such pretended conveyance, 
title bond or lease to the use of the 
Territory. 



Treating or 
bribing how 
punished. 



Sham con- 
veyances to 
be forfeited. 



Penalty for 

recieveing 

them. 



Sec. 12. For all services done in pur- 
suance of this act, in conducting the e- 
lections and making return thereof by 
the clerk of the court of Common Pleas, 



165 



152 



ELECTIONS 



Poll Iteepers 
to recieve 
compensati- 
on. 



Sheriff, assistant Judges of elections 
respectively in any county, a reasonable 
compensation shall be allowed by the 
court of Common Pleas of such county 
respectively, who are hereby directed at 
any time to make such reasonable al- 
lowance, as the said court deem proper, 
to be paid out of the county funds. 



persons not 
eligible. 



Sec. 13. No Sheriff, under Sheriff, 
Clerk of any court, or person holding 
a commission during pleasure, directly 
under the United States or this Territo- 
ry, except Justices of the Peace, and 
militia officers, shall be elig ble to a 
seat in either branch of the legisla- 
ture. 



Sections 14 and 15 were limited to 
one year and no longer, they have 
therefore expired. 



AN ACT 

Regulating Elections. 

Passed Deer. 25th, 1812. 

Sec. 1. Be it enacted by the Legisla- 
tive Council and House of Representa- 



166 



ELECTIONS 153 

tives and it is hereby enacted by the au- 
tority of the same. That the next gen- 
eral election for representatives, to 
serve in the general assembly shall com- 
mence on the first thurs ay in Septem- Time of hol- 
ber one thousand eight hundred and ti'ons.*'**^" 
fourteen to be held biennially thereafter, 
and that the election for members to 
serve in the legislative council shall 
commence on the first thursday of 
September one thousand eight hundred 
and sixteen and be held quadrennially 
thereafter at which respective times all 
qualified voters shall have a right to 
vote for representatives to serve in the 
general assembly and members of the 
legislative council consistently herewith. 

Proviso repealed by act December Sth, 
1813. — Sec 2. Repealed by same act. 

Sec 3. When any writ of any oc- Writ of e- 
casional election shall be issued by the i,V„*dtd *to "^^ 
governor in case of the death or remo- tlie Sliff. 
val from ofEce of any representative or 
member of the legislative council or 
delegate for congress the same shall be 
directed to the Sheriff of such county 
respectively for which such representa- 
tive or member of the legislative coun- 
cil or delegate for congress shall have 
been elected who is dead or removed 
from office shall have been elected and 



u 



167 



154 



ELECTIONS 



Sheriff to 
give notice 
ten days. 



the Sheriff on receiving the writ shall 
forthwith give due and public notice 
throughout the county ten days before 
holding such election and the same shall 
be holden within twenty days after the 
writ of election is received by the sher- 
iff and conducted in like manner afore- 
said. 



Former law 
refered to. 



Sec. 4. Be it further enacted, by the 
authority of the same. That in all oth- 
er respects all elections shall be govern- 
ed by the law of the Indiana territory 
entitled "A law regulating elections 
approved the seventeenth day of Sep. 
tember one thousand eight hundred and 
seven. 



AN ACT 

Supplemental to an act entitled "an act re- 
flulnting elections passed the twenty fifth 
day of December 1812. 

Passed December Sth, 1813. 

Whereas voters have hitherto been 

obliged to vote by ballot, and the ig- 

Preamble. iiorant as well as those in embarrassed 

circumstances are thereby subject to be 

imposed upon by electioneering zealots 



168 



ELECTIONS 



155 



— And whereas it is inconstistent with 
the spirit of a representative republican 
government since the opening for bri- 
bery and corruption is so manifest, 
which should ever be opposed and sup- 
pressed in such a government, for reme- 
dy whereof. 



Sec. 1. Be it enacted by the Legis- 
lative Council and House of Represen- 
tatives and it is hereby enacted by the 
authority of the same, That at all elec- 
tions for a delegate or delegates to 
congress, & for members of the general 
assembly of this territory, all votes shall 
be given viva voce in presence of the 
Judges of the Election and all such 
candidates as may be present. 



Votes given 
viva-voce. 



Sec. 2. Be it further enacted that it 
shall be the duty of the sheriff of each 
county in which such election may be 
holden to attend and when the voter 
shall say for whom he votes, it shall be 
the duty of such sheriff to cry the name 
of the voter & also the person or persons 
for whom he votes distinctlv. 



Sheriff to cry 
voters 
and for 
whom he 
voted. 



Sec. 3. It shall be the duty of the 
Clerks of the Courts of Common Pleas 
to attend (in their respective counties) 
all such elections as aforesaid, and keep 
the poll thereof in the manner herein- 
after provided (that is to say) he shall 



Clerk of 

Co 

Pie 

ke 

Pe 



169 



156 



ELECTIONS 



His allow- 
ance. 



enter the names of the candidates in a 
book for that purpose to be kept, and 
shall also enter the name of each voter 
on the same book, and shall designate 
for whom he votes by making a mark 
under the person or persons name or 
names for whom he votes directly op- 
posite to such voters name for which 
service such clerk shall be allowed the 
sum of two dollars for each day they 
may be required to attend such elec- 
tion any laws or parts of laws to the 
contrary notwithstanding. This act to 
commence and be in force from and 
after the passage thereof. 



AN ACT 

Supplemental to an act entitled "anactregu- 
giilating Elections. 

Passed December Uth. 1813. 



Persons elec- 
ted at a 
general elec- 
tion to com- 
mence their 
term of ser- 
vice 10 of 
Oct. next 
after their 
elections. 



Be it enacted by the Legislative 
Council and House of Representatives 
of the Illinois Territory. That when- 
ever hereafter any person shall at any 
general assembly be elected a member 
of the House of Representatives, of the 
Legislative Council or a Delegate to 
Congress the term of his service shall 
commence on the tenth day of October 



170 



157 ELECTIONS 

next ensuing his election and such per- 
sons so elected to the House of Repre- 
sentatives, to the Legislative Council 
and a Delegate to Cogress shall con- 
tinue in office from the said tenth day of 
October next ensuing his election for 
their respective terms as fixed by 
law. 



AN ACT. 

Declaring the elegibility of certain officers to 
a seat in the Legislature. 

Passed Dec, 22. 1814. 

Whereas the free people of this Ter- 
ritory are as competent as their public 
servants to decide on whom it is their 
interest to elect to represent them in Preamble 
the General Assembly: and are too 
enlightened and independent to re- 
cognize the odious and aristocratical 
doctrine that they are their own worst 
enemies or to admit that it is the du- 
ty of their Representatives to save the 
people from themselves. 

And whereas this Legislature being 



171 



ELECTIONS 



158 



composed of the servants, not the mas- 
ters of the people ; cannot without an 
arbitrary assumption of power impose 
restrictions upon the latter as to the 
choice of their representatives, which 
are not warranted by the express words 
or necesary implications of the ordi- 
nace from which the Legislature derives 
its powers. 

And whereas the duties of the Judg- 
es of the county court established by 
law are such as have heretofore been 
performed in this Territory by justices 
of the Peace by whom they are also 
usually performed in many of the 
states and there being nothing in the 
ordinance, nor any reason to exclude 
from a seat in the Legislature those 
Judges of the county courts or county 
surveyors or prosecuting attornies, that 
do not apply with equal force to mili- 
tia officers and Justices of the Peace 
and the duties of the former being no 
more incompatible with a seat in the 
Legislature than those of the latter 
Therefore. 



Judges of 
the county 
court county 
surveyors & 
Prosecuting 
attorneys 
eligible to 
the Legisla- 
ture 



Sec. 1. Be it enacted by the Legisla- 
tive council and house of Representa- 
tives and it is hereby enacted by the 
authority of the same. That all laws or 
parts of laws creating any distinction as 
to elegibility to a seat in the Legislature 
between judges of the county court, 



172 



159 



ENCLOSURES 



county surveyors and prosecuting at- 
tornies or district attornies under the 
United States, on the one hand and 
Justices of the Peace on the other, shall 
be and the same are hereby abolished, 
and that hereafter if the free and quali- 
fied voters of this Territory shall choose 
to elect any Judge of a county court, 
county surveyor or any prosecuting at- 
torney they shall have the same right 
to do so as they have hitherto had to 
elect justices of the peace or militia 
officers. 

Approved, Dec. 22 1814. 



ENCLOSURES. 



AN ACT 



Regulating Knelosures. 

Passed Sep. 17, 1807. 



Sec. 1. ALL fields and grounds kept 
for enclosures, shall be well inclosed 
with a fence composed of sufficient posts 
and rails, posts and pailings, palisadoes, 
or rails alone, laid up in the manner 
which is commonly called a worm 



Fences of 
wood how 
to be made, 
& of what 
height to be 
sufficient in 
law. 



173 



160 



ENCLOSURES. 



Apertures be 
tween the 
rails. 



Length of 
worm. 



fence ; which posts shall be deep set and 
strongly fastened in the earth; and all 
fences composed of posts and rails, posts 
and pailings, or palisadoes, shall be at 
least five feet in height; and all fences 
composed of rails, in manner which is 
commonly denominated a worm fence, 
shall be at least five feet six inches in 
height, the uppermost rail of each and 
every pannel thereof supported by 
strong stakes, strongly set and fastened 
in the earth, so as to compose what is 
commonly called staking and ridering, 
otherwise the uppermost rail of every 
pannel of such worm fence, shall be 
braced with two strong raijs, poles or 
stakes, locking each corner or angle 
thereof; and in all cases wherein any 
fence is composed of any of the forego- 
ing materials, the apertures between 
any of the rails pailings or palisadoes, 
within two feet of the surface of the 
earth, shall not be more than four inch- 
es; and from the distance of two feet 
from the earth, until the height of three 
feet six inches from the surface thereof, 
the apertures between such rails, pail- 
ings or palisadoes, shall not be more 
than six inches; and that in all worm 
fences, the worm of the same shall be 
at least one third of the le gth of the 
rails, which compose the respective 
pannels thereof. 



174 



ENCLOSURES 



161 



Sec. 2. If any horse, gelding, mare, 
colt, mule, or ass, sheep, lamb, goat, 
kid, or cattle, shall break into any per- 
son's enclosure, the fence being of the 
aforesaid height and strength or if any 
hog, shoat or pig, shall break into any 
person's enclosure, the fence being of 
the aforesaid height and sufficiency, 
and by the view of two persons for that 
purpose, appointed by the court of 
Common Pleas, found and approved to 
be such, then the owner of such creature 
or creatures, shall be liable to make 
good all damages, to the owner of the 
enclosure; for the first offence single 
damages only, ever afterwards double 
the damages sustained. 



animals brea 
king lawful 
fences. 



Sec. 3. For the better ascertaining 
and regulating of partition fences, it is 
hereby directed, that when any neigh- 
bors shall improve lands adjacent to 
each other, or when any person shall 
enclose any land adjoining to another's 
land already fenced, so that any part of 
the first person's fence becomes the 
partition fence between them, in both 
these cases, the charge of such division 
fence, (so far as enclosed on both sides) 
shall be equally borne and maintained 
by both parties, to which, and other 
ends in this law mentioned, each court 



Partition fen 
ces. 



175 



162 



ENCLOSURES 



C. p. to op 
point fence 
viewers &e. 



Duty of fence 
viewers. 



Judges of 
tlie sufficien- 
cy of fences 
&c. 



Owners re- 
fusing to 
make or re- 
pair partition 
fences. 



Penalty on 
neglect. 



of common pleas, yearly and every 
year, in the term next after the month 
of January, shall nominate, and is here- 
by required to nominate and appoint 
three honest able men, for each town- 
ship respectively; who, being duly 
sworn to the faithful discharge of the 
duties of their appointment, shall pro- 
ceed at the request of any person or 
persons feeling him, or themselves ag- 
grieved, to view all such fence and 
fences, about which any difference may 
happen or arise; and the aforesaid per- 
sons, or any two of them in each town- 
ship, respectively, shall be the sole jud- 
ges of the charge to be borne by the 
delinquent, or by both, or either party, 
and of the sufficiency of all fences, 
whether partition fences, or others; and 
when they shall judge any fence to be 
insufficient, they shall give notice there- 
of to the owners or possessors; and if 
any one of the owners or possessors, upon 
request of the other, and due notice 
given, by the said viewers, shall refuse, 
or neglect, to make, or repair the said 
fence or fences, or to pay the moiety 
of the charges of any fence before made 
being the division or common fence, 
within twenty days after notice given, 
then, upon proof thereof, before two 
justices of the peace, of the respective 
county, it shall be lawful for the said 
justices, to order the person aggrieved 



176 



ENCLOSURES 163 

and suffering thereby, to make or re- 
pair the said fence or fences, who shall 
be reimbursed his costs and charges, 
from the person so refusing or neglec- 
ting to make or repair the partition 
fence or fences aforesaid, or to order 
the delinquent to pay the moiety of the 
charge of the fence before made, being 
a division, or a common fence, as the 
case may be; and if the delinquent 
shall neglect or refuse to pay to the par- 
ty injured, the moiety of the charge of 
any fence before made, or to reimburse 
the costs and charges of making or re- 
pairing the said fence or fences, under 
the order aforesaid, then the same shall 
be levied upon the delinquents goods 
and chattels under warrant from a jus- 
tice of the peace, by distress and sale 
thereof, the overplus, if any be, to be 
returned to the said delinquent : Provided 
That nothing herein contained, shall be ProvUo. 
intended to prevent, or debar any per- 
son or persons from enclosing his or their 
grounds, in any manner they please, 
with sufficient walls, or fences of tim- 
ber, other than those heretofore men- 
tioned, or by dykes, hedges and ditch- 
es; all such walls and fences to be in 
height at least five feet from the 
ground ; and all dykes to be at least 
three feet in height from the bottom 
of the ditch, and planted and set with 
thorn and other quickset, so that such 



177 



164 



ESTRAYS 



Subjected to 
the inspect- 
ors. &c. 



enclosures shall fully answer and secure 
the several purposes meant to be an- 
swered and secured by this law: Provi- 
ded alsoj That such walls, or fences of 
timber, other than those heretofore 
mentioned, and dykes, hedges, and 
ditches, shall be subject to all provisions 
inspections, and restrictions respectively 
to which by this law, any other enclo- 
sure or fence is made liable, according 
to the true intent and meaning here- 
of. 



AN ACT 

To regulate the disposition of Water Crafts, 
of certain descriptions found gone or going 
adrift, and of estray animals. 



Passed September 17 1807. 



Persons ta- 
king up boots 
&c. 



Sec. 1. If any person shall take up 
any boat, flat, periague, canoe or other 
small vessel gone or going adrift, he or 
she, shall within five days cause the 
same to be viewed by some householder 
of the county where the same shall be 
taken up, and shall forthwith go with 



178 



ESTRAYS 165 

such householder, before a justice of the 
peace of the same county and make Duty of Jus- 
oath when and where the same was 
taken up, and that the marks thereof 
have not been altered or defaced by 
him, or by any other person to his 
knowledge since the taking up, and the 
justice shall take from such householder, 
upon oath, an exact description of such 
boat, flat, periague, canoe, or other 
small vessel, and shall enter the same in 
his estray book, to be by him kept for 
that purpose, and shall transmit a cer- 
tified copy thereof to the clerk of the 
court of common pleas of the county 
to be by him recorded in his estray book 
to be kept for that purpose within fifteen 
days thereafter if the said justice does 
not reside at a greater distance than 
fifteen miles from the clerk's office; 
but if the said justice resides at a great- 
er distance than fifteen miles from the 
said office, he shall transmit the said 
certificate, within the space of thirty Duty of the 
days, and the clerk shall cause a copy of ^^'^^ ** C. 
such certificate to be set up at his court 
house door, during the two succeeding 
terms to be held for said county, for 
which service, he shall be entitled to 
take and receive twenty-five cents, for 
every such boat, flat, periague, canoe, 
or other small vessel to be deposited by 
the taker up in the hands of said justice 
and by him transmitted to the said clerk 



179 



166 



ESTRAYS 



Allowance to 
justice and 
clerk. 



with the certified copy of such descrip- 
tion, and the justice for administering 
the oath, making the entry and gran- 
ting the certificate as aforesaid, shall be 
entitled to twenty five cents for his ser- 
vices, which sum shall be paid by the 
taker up. 



Taking up 
horses &c. 



Duty of jus- 
Hee. 



Sec. 2. Every person who shall take 
up a stray horse, gelding, mare, colt, 
mule or ass, shall within five days adver- 
tise the same in three different places in 
the neighbourhood or township, and 
shall also within ten days thereafter, 
unless it shall have been previously clai- 
med and proved by the proper owner 
and a tender made of the compensation 
herein after provided, take the same 
before some justice of the peace of the 
county where such stray shall be taken 
up, and make oath before such justice 
that the same was taken up at his or her 
plantation or place of residence, in said 
county or otherwise, (as the case may 
be) and that the marks or brands have 
not been altered by him or any other 
person or persons, to his knowledge, 
before or since the taking up ; the Jus- 
tice shall then issue his warrant to three 
disinterested householders in the neigh- 
borhood, unless they can be otherwise 
had, causing them to come before him 
to appraise said stray, and after they, 
or any two of them, are sworn to ap- 



180 



ESTRAYS 167 

praise such stray, without partiality fa- 
vor or affection, they shall forthwith 
proceed to appraise the same, & imme- 
diately make return thereof, in writing, 
together with the description of the 
marks, natural and accidental, brand, 
stature, color, and age of said horse, 
gelding, mare, colt, mule or ass, to said 
Justice, who shall enter the same in his 
estray book, and transmit a certified co- 
py thereof, under his hand together 
with the original return of the apprais- 
ers, under their hands to the Clerk of 
the court of Common Pleas of said coun- 
ty within the time as limited in the first 
section of this act, who shall enter the 
same in his estray book, and file the ^j^^V «»' ♦•"• 
aforesaid transcript, and certificate of 
the appraisers in his office: and the ta- 
ker up shall pay unto the said justice 
fifty cents, and further deposit in the feet to jus* 
hands of said Justice ntty cents, to be 
paid unto the Clerk aforesaid, which 
sum of fifty cents shall be transmitted 
at the same time with the aforesaid cer- 
tificate of entry and appraisement, and 
the said clerk shall cause a copy of such 
valuation and description to be publicly 
affixed at the court house door of his 
county during three succeeding terms. 

Sec. 3. Any person who shall take 
up any head of neat cattle, sheep, hog 



181 



168 



ESTRAYS 



persons tak- 
ing up neat 
cattle, sheep 
&c. 



How to pro- 
ceed. 



Duty of Jus- 
tice. 



Duty of the 
cleric. 



or goat, shall within five days after, 
cause the same to be advertised in three 
different places in the neighborhood or 
township, and shall also within ten days 
thereafter, unless it shall have been pre- 
viously claimed and proved, by the 
proper owner, and a tender made of 
the compensation herein after provided, 
cause the same to be viewed by some 
householder of the county, where the 
same shall be taken up, and immediate- 
ly go with such householder before a 
Justice of said county, and make oath 
before him, as is required in taking up a 
stray horse, gelding, mare colt mule or 
ass, and then such Justice, shall take 
from such householder, upon oath, a 
particular description of the marks, 
brands, colour and age of every such 
neat cattle, sheep, hog, or goat ; and 
such Justice shall cause the said stray to 
stra s to be appraised in like manner as 
is required to be done in case of stray 
horse, gelding, mare, colt, mule or ass, 
which description and valuation shall be 
entered by such Justice, in his estray 
book, and by such Justice transmitted 
to the Clerk of the court of common 
Pleas of said county, and to be by him 
recorded in his estray book, and he shall 
cause a copy to be publicly affixed at 
the court house door of his county as 
before directed in taking up stray horse, 
gelding, mare, colt, mule or ass, and 



182 



ESTRAYS 



169 



the taker up shall pay the Justice twen- 
ty five cents for his services, and deposit 
with such Justice, twenty five cents, to 
be transmitted at the same time with 
the certified copy to the Clerk as afore- 
said, for his services: Provided, That 
if two or more strays of the same spe- 
cies, are taken up by the same person, 
at the same time, they shall be included 
in one entry and one advertisement, and 
in such case the said Justice and Clerk 
shall receive no more than for one such 
species: Provided also, that no person 
shall be allowed hereafter, to 
take up and post any head of neat 
cattle, sheep, hog, or goat, between the 
first day of April and the first day of 
November, following, unless the same 
may be found within the lawful enclo- 
sure of the taker up, &c. having broken 
in the same. 



Fees of the 
Justice and 
clerk. 



Proviso, 



Where two 
or more 
strays of 
same species 
taken up. 



Not to take 
up or post 
any neat 
cattle &c. 
between 1st 
of april & 
november. 



Sec. 4. As a reward for taking up, 
there shall be paid by the owner to the 
taker up, or such other person as may 
be authorised by this act to receive the 
same; For every boat or flat, one dol- 
lar for every periague, canoe, or 
other small vessel, fifty cents, every 
horse, gelding mare, colt, mule, or ass 
one dollar, for every head of neat cat- 
tle, fifty cents, for every sheep or goat, 



Reward for 
taking up 
&c. 



With charg- 
es for keep- 
ing &c. 



W 



183 



170 



ESTRAYS 



In default of 
payment es- 
trays to be 
sold & how. 



twenty-five cents, and for every hog 
above six months old ten cents, togeth- 
er with the fees paid by the taker up, 
to the Justice and Clerk aforesaid, and 
reasonable charges for keeping said 
estray or estrays to be assessed by two 
disinterested householders appointed by 
some one Justice in the manner and 
form as other appraisers are to be ap- 
pointed under this act, who shall in the 
same manner, and under the same re- 
strictions proceed to make appraise- 
ment, and return to the said justice, as 
by this act in other cases is required, 
and on failure of the claimant to satisfy 
such fees and charges, the estray or es- 
trays, shall be by the Sheriff, after giv- 
ing two days notice, sold to the highest 
bidder to satisfy such costs and charges 
for keeping, and the said SherifiE after 
paying such costs and charges, and de- 
ducting one dollar for his fees of sale, 
shall pay the remainder to the claim- 
ant. 



When no 
owner ap- 
pears in one 
year. 



Sec. 5. If no owner shall appear to 
prove his or her property, within one 
year after such publication, and when 
the valuation does not exceed five dol- 
lars, the property shall be vested in the 
taker up, but when the valuation shall 
exceed five dollars, and no owner ap- 
pears within the time aforesaid, the pro- 
perty shall be vested in the Sheriff of the 



184 



ESTRAYS 



171 



county to be sold to the best bidder, and 
the money arising from the sale thereof, 
after paying the fees that have accrued 
and reasonable expences for keeping 
the same, shall be put into the county 
treasury, which expences shall be as- 
certained in manner and form as be- 
fore directed by this act, saving never- 
theless, The right in the taker up, at 
the expiration of one year, to pay into 
the county treasury, the appraisement 
value of such estray, and in that case the 
property of said estray shall be vested in 
the taker up: Nevertheless, The former 
owner may and shall at any time there- 
after, by proving his or her property in 
the court of common pleas of the coun- 
ty, where such estray was taken up, 
and obtaining a certificate from the 
clerk, receive an order from the court 
of common pleas, to the Sherilif, for 
the nett proceeds, after paying costs 
and charges, and if any person shall 
trade, sell, or take away any such stray, 
or water craft, out of the territory, 
before he is vested with the right of 
property, agreeable to this act, for 
any purpose whatsoever, he or she, so 
offending, shall forfeit and pay double 
the value thereof, to be recovered by 
any person suing for the same, in any 
court of record within this territory, 
having cognizance thereof, the one half 
to the informer, and the other half to 



Valuation 
under 5 dol- 
lars, 



Penalties on 
persons sell- 
ing or tak- 
ing away es- 
trays, 



185 



172 



ESTRAYS 



What persons 
to take up 
estrays, 



the county; and it shall not be lawful 
for any person to take up any stray, 
except as shall hereafter be excepted, 
unless he shall have a freehold, be a 
tenant for three years, have bond for 
the land on which he resides, or be in 
possession of the tenement on which such 
estray was found trespassing. 



Horses &c. 
found runn- 
ing at large 
without the 
settlements 



Taker up 
not qualified 



When no 
owner ap 
pears in one 
year. 



Sec. 6 Any person finding any stray 
horse, gelding, mare, colt, mule or ass, 
running at large, without the settle- 
ment of this Territory, may take up the 
same, and shall immediately carry such 
stray or strays, before the nearest Justice 
of the Peace, and make oath, as before 
directed in this act, after which it may 
be lawful for him, if qualified as afore- 
said, to post such stray, or strays in 
the manner and form as herein before 
directed, as if the same had been ta- 
ken up on his plantation or place of 
residence, and when the taker up shall 
not be qualified as aforesaid, he shall 
take the oath before required, and 
deliver up such stray to the said Justice, 
who shall cause the same to be dealt 
with as before directed by this act, and 
if no owner appears to prove his or 
her property within one year, such 
Justice shall deliver such stray or strays, 
unto the Sheriff of the county, to be 
disposed of in manner before directed, 
and after paying the taker up all rea- 



186 



ESTRAYS 



173 



sonable charges, and deducting the ex- 
pences for keeping, which shall be as- 
certained as aforesaid such Sheriff shall, 
within three months pay the ballance in- 
to the county treasury; Nevertheless, 
The former owner at any time after, 
by proving his, or her property before 
the court of common pleas, in the coun- 
ty where the said stray was taken up, 
shall receive a certificate from the 
Clerk of the said court to the Sheriff as 
treasurer, who shall pay the ballance 
aforesaid: Provided always. That noth- 
ng in this act contained shall be con- 
strued to authorise any person or persons 
to take up any horse, gelding, mare, colt, 
mule or ass, running at large, between 
the first day of April and the first day of 
November, so as to entitle him or them 
to receive the reward or compensation 
herein provided, unless the same be 
found within the lawful enclosure of the 
taker up, having broken the same. 



Sec. 7. If any stray or water craft 
taken up as aforesaid shall die or get 
away before the owner shall claim his, 
or her right, the taker up shall not be 
answerable for the same unless it be 
proven that such stray or water craft 
died or got away through the neglect 
or inattention of the taker up, and if 
any person shall take up any stray at 
any other place within the inhabitants, 



When strays 
die or water 
crafts get 
away. 



187 



174 



ESTRAYS 



than his or her place of residence, or 
without being qualified as required by 
this act, such person shall forfeit and 
pay ten dollars, with costs before any 
Justice in the county where the offence 
shall have been committed, or not hav- 
ing property sufficient to pay such fine, 
he shall be liable to be confined one 
month in the Jail of the county where 
he may be found, by warrant under the 
hand and seal of any justice of the 
peace, directed to the proper officer 
who shall confine such offending persons, 
accordingly, and the prison fees of such 
delinquent shall be paid by the county: 
Nevertheless, Such delinquent shall be 
liable to repay such fees to the county, 
should he thereafter have property 
sufficient; and any person taking up a 
stray out of the limits of the settlements 
of this Territory and failing to comply 
with the requisitions of this act shall be 
subject to the same penalties. 



Taking up 
estrayt with- 
out the lim- 
its of a set- 
tlement. 



Sec. 8. When any water craft or 
animal taken up in pursuance of this 
act, the appraised value whereof shall 
exceed the sum of five dollars, may be 
restored to the proper owner, or when 
the same may be lost, it shall be the 
duty of the taker up, within one month 
afterwards to certify in writing, under 
the signature of the taker up, to the 
Clerk of the court of Common Pleas 



188 



ESTRAYS 



i75 



of the proper county; such restoration 
where the same may be restored, with 
the name and place of residence of the 
person claiming the same, or such loss, 
(where the same may be lost) together 
with the time when, and the manner 
whereof, and if the taker up of any 
such water craft, or animal taken up in 
pursuance of this act, shall neglect to 
make the certificate aforesaid within the 
time limited by this act, or shall make 
a false statement of facts, in any such 
certificate, every person so offending, 
for every such ofifence, shall forfeit and 
pay the value of such water craft, or 
the appraised value of such stray ani- 
mal respectively, to be recovered by 
action of debt, qui tam or indictment, 
in any court where the same may be 
cognizable, one half thereof to the 
county respectively, and the other half 
to whoever will sue for the same. 



Penalty en 
neglect. 



How recov- 
erable & ap- 
plied. 



Sec. 9. The Judges of the court of 
Common Pleas within each county of 
this Territory, shall cause a pound to be 
made, at or near the several court hou- 
ses; and in all new counties that may 
be formed in this territory, within 
three months after the place of erecting 
the public buildings is fixed upon, with 
a good sufficient fence, gate, lock and 
key, where all stray horses, geldings, 
mares, colts, mules or asses, above two 



Court of C. 
P to cause 
pounds to be 
erected, 



189 



176 



ESTRAYS 



When estrays 
&c. are re- 
stored or 
lost. 



What strays 
shall be put 
in the pouud 



Persons liv- 
ing 20 miles 
from the 
pound. 



years old, taken up within twenty 
miles of the court house, shall be kept 
on the first day of every court of Com- 
mon Pleas in said county for three suc- 
ceeding terms after the same is taken 
up, from twelve until four o'clock on 
each day, that the owner may have an 
opportunity of claiming his or her pro- 
perty; and any person taking up any 
stray horse, gelding, mare, colt, mule 
or ass, not exceeding two years old, 
shall not be compelled to exhibit, such 
stray or strays at the court house, but 
shall be dealt with in other respects, as 
is directed in this act, and when any 
person taking up any stray horse, gel- 
ding, mare, mule or ass, more than two 
years old resides twenty miles and up- 
wards from the court house, he shall 
not be compelled to exhibit such stray 
or strays more than once in the pound, 
which shall be on the first day of the 
second term after taking up: Provided 
always. That such taker up, cause a 
particular description of such stray or 
strays to be advertised at the door of 
the court house at and before the term, 
at which the same is put in the pound, 
by the clerk of the court of Common 
Pleas of said county, in manner and 
form as before directed by this act, and 
the Judges of the court of Common 
Pleas for the said county, failing to 
have such pound erected, shall forfeit 



190 



ESTRAYS 



177 



and pay a sum of twenty dollars for 
every court thereafter, until the same 
be erected: and until such pound is er- 
ected, no person taking up any stray 
horse, gelding, mare, colt, mule, or 
ass, shall be liable for any penalty for 
not exhibiting the same, and the Judg- 
es of the court of Common Pleas shall 
appoint some person to take care of the 
said pound, & keep the same in repair; 
whose duty it shall be to attend at the 
said pound on the several court days 
during the time such strays are directed 
to continue therein, with the key of the 
same, and the said Judges shall make 
such reasonable allowances for the ex- 
pence of erecting and keeping of the 
said pound, as to them shall seem pro- 
per, to be paid out of the treasury, in 
like manner and form, that other coun- 
ty charges are liquidated and paid, and 
any person being appointed, and under- 
taking to take care of said pound, and 
failing to discharge his duty agreeable 
to the directions of this act, shall for- 
feit and pay to the informer the sum of 
eight dollars for every such offence, with 
costs, recoverable before any Justice of 
the county, where such offence shall be 
committed. 



Court to ap- 
point pound 
keeper. 



His 



Pound keep- 
er falling in 
duty forfeit- 
ure on. 



How recov- 
ered 



Sec. 10. If any person shall act con- 
trary to the duties enjoined by this act, 



191 



178 



EXECUTIONS 



Penalty en 
persons act- 
ing contrary 
to this act. 



for which no penalty is herein before 
particularly pointed out, the person so 
offending shall on conviction thereof, 
forfeit and pay for every such offence, 
not more than one hundred dollars, nor 
less than five dollars, with costs, to the 
use of the proper county, to be prosecu- 
ted for, & recovered in like manner, as 
other fines and forfeitures are under this 
act, and moreover be liable to the ac- 
tion of the party injured, for such ne- 
glect. 



EXECUTIONS 



AN ACT 

Subjecting Real Estates to Execution for 
Debt. 

Passed Sept. 17, 1807. 



Real estate 
liable to be 
seized & sold 



Sec. 1. To the end, that no credi- 
tors may be defrauded of debts justly 
due to them, from persons who have 
sufficient real, if not personal estates to 
satisfy the same; all lands, tenements 
and heriditaments, whatsoever, where 



192 



EXECUTIONS 



179 



no sufficient personal estate can be 
found, shall be liable to be seized and 
sold, upon judgment and execution ob- 
cost. 



Sec. 2. In case the lands, tenements 
and hereditaments, seized and taken in 
execution, shall not on a sale thereof, 
produce the amount of the debt, dama- 
ges and costs due thereon, it shall and 
may be lawful for the Sheriff, or other 
officer, by another writ, to seize and 
take, any other lands, tenements, and 
hereditaments, in execution, and there- 
upon, with all convenient speed, with, 
or without anywrit oivenditioni exponas, 
to make public sale thereof, for the most 
they will yield, and pay the price or 
value of the same, to the party towards 
satisfaction of his debt, damages and 
tained. 



If lands •cii- 
ed do net sell 
for amount. 



But before any such sale be made, 
the Sheriff or other officer, shall cause 
so many writings to be made upon 
parchment, or good paper, as the debt- 
or or defendant shall reasonably desire or 
request, or so many without such request 
as may be sufficient to signify and give 
notice of such sales or vendues and of 
the day and hour when, and the place 
where the same will be, and what lands 
or tenements, are to be sold, and where 
they lie; which notice shall be given 



Sheriffs duty 
before sale. 



193 



180 



EXECUTIONS 



Sheriff to 
give the buy- 
er a deed, 



In cose lands 
do not sell. 



Levari facias 



to the defendant, and the parchments 
or papers, fixed by the Sheriff or other 
officer, in the most public places of the 
county, at least ten days before sale; 
and upon such sale the Sheriff, or other 
officer, shall make return thereof, en- 
dorsed or annexed to the said writ of 
execution, and give the buyer a deed 
duly executed, and acknowledged in 
court for what is sold ; but in case the 
said lands and hereditaments, so to be 
exposed cannot be sold, then the officer 
shall make return upon the writ, that 
he exposed such lands or tenements to 
sale, and the same remained in his hands 
unsold for want of buyers, which re- 
turn shall not make the officer liable 
to answer the debt or damages con- 
tained in such writ, but the writ oi levari 
facias shall forthwith be awarded, and 
directed to the proper officer, comman- 
ding him to deliver to the party, such 
part or parts of those lands, tenements 
and hereditaments, as shall satisfy his 
debt, damages and interest, from the 
time of the judgment given, with costs 
of suit, according to the valuation of 
twelve men ; to hold to him, as his 
free tenement, in satisfaction of the 
debt, damages and costs, or so much 
thereof, as those lands by the 
valuation thereof, as aforesaid shall 
amount unto, and if it shall fall short, 
the party may aterwards have execution 



194 



EXECUTIONS 



181 



for the residue, against the defendant's 
body, lands or goods, as the laws of 
this Territory shall direct and appoint, 
from time to time, concerning other 
execution; all of which said lands, tene- 
ments, hereditaments and premises, so 
as aforesaid to be sold or delivered, by 
the sheriff, or officer aforesaid, with all 
their appurtenances, shall or may be 
quietly or peaceably held, and enjoyed 
by the person or persons, or bodies poli- 
tic, to whom the same shall be sold or 
delivered, and by his and their heirs, 
successors and assigns, as fully and am- 
ply, and for such estate or estates, and 
under such rents and services, as he or 
they, for whose debt or duty, the same 
shall be sold or delivered, might, could 
or ought to do, at or before the taking 
thereof in execution. 



Purchasers to 
hold for such 
estate &c. as 
debtors had 
at the time 
of taking in 
execution. 



Sec. 3. Provided always. That the 
messuage, or lands or tenements, upon 
which the defendant is chiefly seated, 
shall be the last taken and sold on exe- 
cution, before the expiration of one 
whole year after judgment is given, to 
the intent, that the defendant, or any 
other for him, may redeem the same. 



Proviso as to 
deffs. chief 
seat. 



Sec. 4. Where default or defaults 
have been, or shall be made or suffered. Proceedings 
by any mortgagor or mortgagors of 
land, tenements, or other hereditaments 



on mortga- 
ges. 



195 



182 



EXECUTIONS 



See act 1814 



Mortgagee in 
12 months 
after default, 
of payment, 
may Issue si. 
fa. 



within this territory, or by his, her or 
their heirs, executors, administrators 
and assigns, of, or in payment of the 
mortgage money, or performance of 
the condition or conditions, which they 
or any of them, should have paid or per- 
formed, or ought to pay or perfom, in 
such manner and form, and according 
to the purport, tenor and effect of the 
respective provisoes, conditions or cov- 
enants, comprised in their deeds of 
mortgage or defeasance, and at the days 
times and places in the same deeds res- 
pectively mentioned and contained, in 
every such case, it shall and may be 
lawful, to, and for the mortgagee or 
mortgagees, and him, her or them, that 
grant the said deed of defeasance, and 
his, her or their heirs executors, admin- 
istrators or assigns, any time after the 
expiration of twelve months, next en- 
suing, the last day whereon the said 
mortgage money ought to be paid, or 
other conditions performed as aforesaid : 
to sue forth a writ or writs of scire 
facias, which the Clerk of the court of 
Common Pleas for the county where the 
said mortgaged lands or heredi- 
taments lie, is hereby empowered 
and required to make out and dispatch, 
directed to the proper officer; requir- 
ing him by honest and lawful men of 
the neighborhood, to make known to 
the mortgagor or mortgagors, his, her 



196 



EXECUTIONS 



183 



or their heirs, executors or administra- 
tors, that he, or they, be and appear 
before the Judges or Justices of the said 
court or courts, to shew if any thing he 
or they have to say, wherefore the said 
mortgaged premises ought not to be 
seized and taken in execution for pay- 
ment of the said mortgage money with 
interest, or to satisfy the damages 
which such plaintiff in such scire facias 
shall upon the record suggest, for the 
breach, or non performance of the said 
conditions. And if the defendant in 
such scire facias appear, he or she may 
plead satisfaction or payment of part, 
or all the mortgage money, or any such 
other lawful plea, in avoidance of the 
deed or debt, as the case may require, 
but if the defendant in such scire facias, 
will not appear on the day whereon the 
writ shall be made returnable, then if 
the case be such, damages only, are to 
be recovered, an inquest shall be forth- 
with charged to enquire thereof; and 
the definitive judgment therein, as 
well as all other judgments to be given 
upon such scire facias, shall be entered, 
that the plaintiff in the scire facias shall 
have execution by levari facias, directed 
to the proper officer; by virtue whereof 
the said mortgaged premises shall be 
taken in execution, & exposed to sale in 
manner aforesaid, and, upon sale, con- 
veyed to the buyer or buyers thereof, & 



Defdt. may 
appear and 
plead. 



On judg- 
ment vi. 
mortgage 
&e. 



197 



184 



EXECUTIONS 



Sheriffs duty 
before sale. 



the money or price of the same rendered 
to the mortgagee or creditor, but for 
want of buyers, to be delivered to the 
mortgagee, or creditor, in manner and 
form, as is herein above directed, con- 
cerning other lands and hereditaments 
to be sold, and delivered upon executi- 
ons, for other debts or damages. And 
vehen the said lands and hereditaments 
shall be sold, or delivered as aforesaid, 
the person or persons to whom they 
shall be sold or delivered, shall and 
may hold and enjoy the same, with their 
appurtenances, for such estate or estates 
as they were sold or delivered, clearly 
discharged and freed from all equity & 
benefit of redemption, and all other in- 
cumbrances made or suffered by the 
mortgagers, their heirs or assigns; and 
such sales shall be available in law; and 
the respective vendees, mortgagees, or 
creditors, their heirs and assigns, shall 
hold and enjoy the same, freed and 
discharged, as aforesaid. But before 
such sales be made, notice shall be giv- 
en in writing, in manner and form as 
is herein above directed, concerning 
the sales of lands upon executions, any 
law or usage to the contrary notwith- 
standing. 



Overplus of 
sales If any. 



Sec. 5. Provided also, That when any 
of the said lands, tenements or heredi- 
taments, which, by the direction and 



198 



EXECUTIONS 185 

authority of this law, are to be sold for 
the payment of debts and damages, in 
manner aforesaid, shall be sold for more 
than will satisfy the same debts, or dam- 
ages, and reasonable costs; then the 
sheriff or other officer who shall make 
the sale, must render the everplus to 
the debtor or defendant ; and then, and 
not before, the said officer shall be dis- 
charged thereof, upon record, in the 
same court where he shall make return 
of his proceedings concerning the said 
sales. 

Sec. 6. Provided also. That no sale 
or delivery which shall be made, by 
virtue of this law, shall be extended 
to create any further term or estate, 
to the vendees, mortgagees, or credit- 
ors, than the lands or hereditaments, 
so sold, or delivered, shall appear to be 
mortgaged for, by the said respective 
mortgagees, or defeazible deeds. 

Sec. 7 Provided also. That if any of 
the said judgements which do or shall 
warrant the awarding of the said writ In case judg 
of execution, whereupon any lands, "J"* •"«*«"• 
tenements or hereditaments, have been, 
or shall be sold, shall, at any time here- 
after be reversed for any error or er- 
rors; then, and in every such case, none 
of the said lands, tenements or heredita- 



ed. 



199 



186 



EXECUTIONS 



merits, so as aforesaid taken, or sold or 
to be taken or sold upon executions, 
nor any part thereof shall be restored, 
nor the sheriff's sale or delivery there- 
of avoided ; but restitution in such cases 
shall be made only of the money or 
price for which such lands were or shall 
be sold. 



AN ACT 



Concerning Executions. 



Passed Sept. 17, 1807. 



Fifa levied 
on property. 



Deft, may 
replevy. 



Sec. 1. When any writ of fieri facias 
issuing out of the General court, or any 
court of Common Pleas within this ter- 
ritory, shall be levied on any real or 
personal estate of the defendant or 
defendants, it shall and may be lawful 
for such defendant or defen- 
dants, to release the same by ten- 
dering to the sheriff or other officer, a 
bond with sufficient security to pay the 
amount of such execution, including all 
costs, with lawful interest thereon, from 
the date of said bond, within five 



200 



EXECUTIONS 



187 



months, and on such bond being given, 
the said sheriff or other officer, shall re- 
store to the defendant or defendants, 
such personal or real estate ; and where 
no bond shall be tendered by such de- 
fendant or defendants, or any person 
for him or them, the sheriff or other 
officer shall proceed to sell the said estate 
for whatever it will bring in cash, ten 
days previous notice having been given 
of such sale. 



Officer fe 
restore prep* 
erty. 



Officer to 
sell. 



Sec. 2 Any defendant or defen- 
dants, on any writ of capias ad satis- 
faciendum, may in like manner, release 
his, her or their body or bodies, from 
execution, by tendering bond and secu- 
rity, as required in the foregoing sec- 
tion. 



Bd. to have 
validity. 



Sec. 3. All and every bond so taken 
in pursuance of this act, shall have the 
force of judgments, and such sheriff or 
other officer taking such bonds shall re- 
turn the same to the office from 
which execution issued, within twenty 
days thereafter. 



Sliff. to re- 
tHrn bond. 



Sec. 4 If the amount of the said 
bond shall not be paid agreeably to the 
condition thereof, it shall and may be 
lawful, for the creditor or creditors, 
his, her, or their executors or adminis- 
trators, at any time thereafter, to sue 



201 



188 



EXECUTIONS 



out of the clerk's office of said court, his 
execution against the real and personal 
estate of the said defendant or obligors 
in said bond, their executors or admin- 
istrators; and the clerk issuing such ex- 
ecution, shall endorse on the back there- 
of that no security of any kind is to be 
taken. 



Bond insuffi- 
cient shflF. li- 
able. 



Sec. 5. If any replevy bond be quash- 
ed, or the security adjudged insufficient 
at the time of receiving the bond, the 
sheriff taking the same, and his securi- 
ties shall at all times be liable to the 
party injured, or his representatives. 



Section 6. repealed. 



Time of ser- 
vants may 
be sold. 



Sec. 7. And whereas, doubts have 
arisen whether the time of service of ne- 
groes and mulattoes bound to service in 
this Territory, may be sold under exe- 
cution ; Be it therefore enacted. That the 
time of service of such negroes or mu- 
lattoe , may be sold on execution against 
the master in the same manner as per- 
sonal estate immediately from which sale, 
the said negroes or mulattoes shall serve 
the purchaser or purchasers for the resi- 
due of their time or service; and the 
said purchasers, and negroes and mulat- 
toes shall have the same remedies 
against each other, as by the laws of the 
territory are mutually given them in the 
several cases therein mentioned, and 



202 



EXECUTIONS 



189 



the purchasers shall be obliged to fulfil 
to the said servants, the contracts they 
made with the master as expressed in 
the indenture or agreement, of servi- 
tude, and shall for want of such con- 
tract be obliged to give him or them 
their freedom dues at the end of the 
time of service, as expressed in the se- 
cond section of a law^ of the territory 
entitled, "A Law concerning Ser- 
vants. 



Give free- 
dom dues. 



AN ACT 

To amend an Act, entitled "An Act con- 
cerning Executions," 

Passed October 26th, 1808. 



Sec. 1. Be it enacted by the Legislative 
Council and House of Representatives, of 
the Indiana Territory, and it is hereby en- 
acted by the authority of the same. That 
where any writ of execution shall here- 
after issue out of any court of record 
within this Territory, against the estate 
of any defendant or defendants,, the 
Sheriff or officer shall take in execution, 
all, or such part or parts of the real or 
personal estate or estates of such defen- 



Optional 
with deft, 
wliat proper- 
ty to give up 



203 



190 EXECUTIONS. 

dant or defendants as such defendant or 
defendants, designate or shew to such 
Sheriff, or other officer, and as will, in 
the opinion of such Sheriff or other offi- 
cer, be sufficient to satisfy the amount 
of the said execution, and costs; and in 
case the said real and personal estate, or 
If net suffi- estates, so designated or shewn, will not, 
***"*• in the opinion of such Sheriff or other 

officer, be sufficient to satisfy the said 
execution and costs, then such Sheriff or 
other officer shall in such case only, levy 
on, and seize so much only of the de- 
fendant or defendants other real or per- 
sonal estate, as will, in the opinion of 
such sheriff or other officer, be suffici- 
ent to satisfy the remainder of the said 
If deft, fall* execution and costs; but in case such 
peiiv*^ '*''"■ defendant or defendants, shall not shew 
or designate to such Sheriff or other 
officer, real or personal property to him 
belonging as will be sufficient to satisfy 
the said execution and costs, then such 
Sheriff or other officer, shall seize and 
levy on the whole or any part of the 
real or personal estate of such defen- 
dant or defendants, as he can find in his 
bailiwick, and as will be sufficient to sa- 
tisfy such execution and costs. 

Sec. 2. Be it further enacted. That 

Shff. in tel- when any Sheriff or other officer shall 

ling property proceed to sell or dispose of any real or 

personal estate, by virtue of any writ 



204 



EXECUTIONS. 191 

of execution, he shall be obliged to sell 
and dispose (at the choice of the defen- 
dant or defendants,) either of the real 
or personal estate of such defendant or 
defendants, or such part or parts there- 
of, as he or they shall direct him so to 
dispose of, until the amount of the said 
execution and costs shall be made; and 
if any Sheriff or other officer, shall 
either take, or sell and dispose of 
the real or personal estate of any 
defendant, or defendants, in any 
other manner than is directed by this 
law, such Sheriff or other officer, shall «hff. failing 
forfeit and pay to the defendant or de- '" ^*^' 
fendants, whose property shall be so 
taken and sold, the full value of such 
real or personal estate, so taken and 
sold, to be recovered by bill, plaint, or 
information, in any court of record pro- 
per to try the same. 

Sec. 3. Be it further enacted. That 

when it appears on the face of any 

writ of Fiere Facias, that any one or 

more of the defendant or defendants, a- Property of 
, ..... , principal to 

gamst whom such writ is issued, are only i,, f^^^^ ,old. 

security or securities, for any one or more 
of the other defendant or defendants 
in such writ named, the Sheriff or other 
officer, shall in such case, sell and dis- 
pose of all, or so much of the real or 
personal estate, of such principal defen- 
dant or defendants, as such SheriiiF or 



205 



192 



EXECUTIONS. 



other officer, shall be able to find in his 
bailiwick, as will satisfy the said execu- 
tion and costs, before he shall set up or 
dispose of any part of the real or per- 
sonal estate of such surety, or sureties, 
unless the said Sheriff or other officer, 
shall be otherwise directed by such sure- 
ty or sureties. 

Sec. 4. This act shall commence and 
be in force from and after the first day 
of January next. 



AN ACT 
Concerning Executions. 

Passed Dec. 9th, 1814. 



Execution re 
turnable in 
thirty days 
from its date 
if to the 
same county. 



Sec. 1. Be it enacted by the Legisla- 
tive Council and House of Representatives 
of the Illinois Territory and it is hereby en- 
acted by the authority of the same. That 
all writs of execution that may be here- 
after issued from the Clerks of the 
General Court or any court of Com- 
mon Pleas shall be made returnable 
within thirty days from the date thereof 



206 



EXECUTIONS 



193 



if directed to the Sheriff of the county 
in which the execution issued but if di- 
rected to a different county from that in 
which the execution issued then and in 
that case it shall be made returnable in 
forty days from the date thereof. 



If to 
forty days. 



Sec. 2. Be it further enacted that it 
shall be the duty of all sheriffs of the 
respective counties within this territory 
when he shall receive an execution to 
endorse on the back thereof the day 
and hour when he received it and it 
shall bind the personal estate of the de- 
fendant or defendants which may then 
be in the county to which the execu 
tion is directed from the date of the 
indorsement thereon as aforesaid 
made. 



Sheriffs to 
indorse the 
day & hour 
of receiving 
execution. 
The execu- 
tion binds 
personal 
property 
from the in- 
dorsement 
of the Sheriff 



Sec. 3. Be it further enacted, That 
any sheriff who shall fail to comply with 
the duty imposed on him by the second 
section of this act shall forfeit and pay 
the sum of one hundred dollars, for 
every such neglect of his duty, by an 
action of debt, indictment or present- 
ment, one half to the informer and the 
other half to the territory and he shall 
moreover be liable to the party injured 
for such damages as he may sustain 
thereby. 



Penalty for 
failing to en- 
dorse the 
execution. 



207 



194 



EXECUTIONS 



PlaintifF may 
issue execu- 
tion to any 
county after 
one is retur- 
ned not sat- 
isfied. 



Sec. 4. Be it further enacted, That 
if it appears from the return of a fieri 
facias, that the defendant or defen- 
dants have not goods or chattels or ten- 
ements sufficient to satisfy said execu- 
tion in the county in which the judg- 
ment was rendered the plaintiff may 
immediately sue out another execution 
on said judgment, and have it directed 
to any county in the territory he may 
think proper. 



if mortga- 
ged proper- 
ty does not 
satisfy tlie 
debt PIfF. 
may issue 
otiier execu- 
tions. 



Sec. 5. Be it further enacted, that 
on all judgments now entered or here- 
after to be entered on any mortgage in 
this territory and the mortgaged premi- 
ses sold on a writ of levari facias shall 
not bring the sum for which judgment 
and costs were entered, it shall and 
may then be lawful for the plaintiff after 
the return of said levari facias and the 
sale of the said mortgaged property to 
issue the executions against the person 
or estate of said defendant, for the 
recovery of the sum remaining due on 
said judgment as in other cases. This 
act shall commence and be in force from 
and after the first day of January next. 



208 



Executors and Administrators. 195 



EXECUTORS AND ADMINISTRA- 
TORS. 



AN ACT 



Authorising the granting of letters Testamen- 
tary and letters of Administration, for 
the settlement of intestate's estates, and 
for other purposes. 

Passed Sept. 17, 1807. 



Sec. 1. The Clerks of the courts of 
Common Pleas, of each county in this 
Territory, shall take proofs of last wills 
and testaments, and grant letters of tes- 
tamentary, and letters of administra- 
tion: Provided however. That the said 
letters testamentary, and letters of ad- 
ministration, granted by such Clerk in 
the vacation, may be repealed by sen- 
tence of the court of Common Pleas for 
the county at their term, next after the 
granting of such letters, and other let- 
ters may, by the same court, be granted 
to any person applying therefor, and 
having legal right thereto, in which 
cases, all acts and proceedings, done and 



The duty of 
clerks res- 
pecting wills 
&c. and 
power of 
court. 



209 



196 Executors ^Administrations. 

made, by the former executor or ad- 
ministrator, shall be legal and valid, 
and such further proceedings may be 
had and made, in the name or names 
of the succeeding executor or adminis- 
trator, as though the original suits, or 
proofs had been commenced in his, her 
or their name or names. 



Clerk to re- 
cord and put 
on file all 
papers &c. 



Sec. 2. The said clerks shall record 
last wills and testaments, and make en- 
tries of the granting of letters testamen- 
tary and letters of administration, and 
shall receive, put on file, and carefully 
preserve all bonds, inventories, accounts 
and other documents necessary to be 
perpetuated in their office. 



To whom 
bonds made 
payable. 



Courts pow- 
er to award 
process &c. 



Sec, 3. All bonds that under, or by 
authority of this law, are directed to be 
taken, shall be made to the Judges of 
the respective courts of Common Pleas. 

Sec. 4. The courts of Common 
Pleas of each county of this Territory, 
shall have full power to award process, 
and cause to come before them, all, 
and every such person & persons, who, 
as guardians, trustees, tutors, executors, 
administrators, or otherwise, are, or 
shall be intrusted with, or in any wise 
accountable for any lands, tenements, 
goods chatties or estates, belonging, or 
which shall belong, to any orphan, or 



210 



Executors & Administrators. 197 

person under age, and cause them to 
make and exhibit, within a reasonable 
time, true and perfect inventories and 
accounts of the said estates. 



Sec. 5. When any complaint is made 
to the said court, that an executrix, 
having minors of her own, or being 
concerned for others, is married, or 
likely to be espoused to another hus- 
band, without securing the minors por- 
tions, or estates, or that an executor, 
or other person, having the care and 
trust of minors estateS; is likely to prove 
insolvent, or shall refuse, or neglect to 
exhibit, true and perfect inventories, 
or give full and just accounts of the 
said estates, come to their hands or 
knowledge, then, & in every such case, 
the said court is hereby required to call 
all, and every such executors and trus- 
tees, and also such guardians or tutors 
of orphans or minors, as have been for- 
merly appointed, or shall at any time 
hereafter be appointed, to give security 
to the orphans or minors, by mortgage 
or bond, in such sums, and with such 
securities, as the said court shall think 
reasonable, conditioned for the perform- 
ance of their respective trusts, and for 
the true payment and delivery, to, and 
for the use and behoof of such orphans 
as they are concerned for, or such as 
shall legally represent them, the lega- 



How minors 
estates are to 
be secHred on 
complaint of 
an executrix 
married or 
likely to 
marry where 
executor is 
likely to be- 
come insol' 
vent. 



211 



198 Executors & Administrators 

cies, portions, shares and dividends of 
estates, real and personal, belonging to 
such orphans or minors, so far as they 
have assets; as also for their mainten- 
ance and education, as the said court 
shall think fit to order, for the benefit 
and best advantage of such orphans, as 
is usual in such cases. 



Executor &e 
by leave of 
court pla- 
cing minors 
money at in- 
terest not to 
be account- 
able in case 
of loss, but 
otherwise 
while in their 
own hands. 



Sec. 6. Any of the said executors, 
administrators, guardians, or trustees, 
may, by the leave, and direction of the 
said court, put out their minors money 
to interest, upon such security as the 
court shall allow of; and if such securi- 
ty so taken, bona fide, and without fraud, 
shall happen to prove insufficient, it 
shall be the minor's loss. But if no 
person who may be willing to take the 
said money at interest, with such security, 
as can be found by the person, so as 
aforesaid, concerned for the minors, nor 
by any others, then the said executors, 
administrators, guardians or trustees, 
shall in such cases be responsible for the 
principal money only, until it can be 
put out at interest, as aforesaid. 



Term of 
payment of 
minors mon- 
ey so lent 
not to exceed 
12 months. 



Sec. 7. Provided always. That the 
day of payment of the money, so to be 
put out to interest, at any one time, shall 
not exceed twelve months, from the 
date of the obligation, or other security 
taken for the same, and so toties quoties. 



212 



Executors & Administrators. 199 

when and so often as the said money 
shall be paid in, or come to the hands of 
the said executors, guardians or trus- 
tees. 



Sec. 8. Provided also, , That no ex- 
ecutors, administrators or guardians, 
shall be liable to pay interest, for the sur- 
plusage of the decedent's estate, re- 
maining in their hands or power, and 
belonging to the minors, when the ac- 
counts of their administration are, or 
ought to be settled, and adjusted before 
the said courts. 



Executors 
&c. how li- 
able to In- 
tere . 



Sec. 9. The said courts shall have 
full power and authority, to admit 
orphans or minors, when, and as often 
as there may be occasion, to make 
choice of guardians, or tutors, and to 
appoint guardians, next friends, or tu- 
tors, over such as the said court shall 
judge too young, or incapable, accor- 
ding to the rules of the common law 
to make choice themselves, and at the 
instance and request of the said execu- 
tors administrators, guardians or tutors, 
to order and direct the binding, or put- 
ting out of minors, apprentices to 
trades, husbandry, or other employ- 
ments, as shall be thought fit. And all 
guardians and prochein amies, who shall 
be appointed, by any of the said courts, 
shall be allowed and received, without 



Court to ad- 
mit minors 
to moke 
choice of 
guardians &c 
&c. and to 
appoint 
gnardians 
&c. to such 
as are too 
young to 
choose for 
themselves 
and order 
the binding 
of minors to 
trades &c. 
guardians so 
appointed to 
prosecute 
and defend 
their minors 



213 



200 Executors & Administrators. 

further admittance, to prosecute and 
defend all actions and suits, relating to 
the orphans or minors, as the case may 
require, in any court or courts of this 
territory. 



power of 
the court in 
case of con- 
tempts etc. 



Sec 10. In any person or persons, 
being duly summoned to appear in any 
of the said courts of common pleas, re- 
lating to any matter or thing, by this 
law made cognizable in the said court, 
ten days before the time appointed for 
their appearance, shall make default, 
the said courts may send their attach- 
ment, for contempts, and force obedi- 
ence to their warrants, sentences and 
orders, concerning any matters or things 
cognizable in the same courts, by im- 
prisonment of body, or sequestration of 
lands or goods. 



Appeal to 
the general 
and circuit 
courts. 



Sec. 11. Provided always, Th?Lt\{2inY 
person or persons, shall be aggrieved, by 
any definitive sentence, or judgment of 
the said court, it shall be lawful for 
them to appeal from the same, to the 
General, or Circuit courts, which ap- 
peal, upon security given, as is usual in 
such cases shall be granted according- 



Sec. 12. If any of the said executors 
administrators, guardians, or trustees, 
did, or shall receive and give discharges 



214 



Executors & Administrators. 201 



for any sums of money, debts, rents, or 
duties, belonging to any orphan or mi- 
nor, for whom they are, or were in- 
terested, it is hereby declared, that all 
such discharges, or receipts, shall be 
binding, to, and upon the orphan or 
minor, when he, or, she, attains to full 
age, and shall be effectual in law, to 
discharge the person or persons that 
take the same. 



Dischanges or 
receipts giv* 
en by execu- 
tor and ahall 
bind minors 
or orplians. 



Sec. 13. When any of the said mi- 
nors attain to the full age, and the per- 
son or persons, so, as aforesaid, intrusted 
or concerned for them, having render- 
ed their accounts to the court of Com 
mon Pleas, according to law, and paid 
the minors their full due, then such mi- 
nors shall acknowledge satisfaction in 
the said court; but in case any of them 
refuse so to do, then the said court shall 
certify how the said persons concerned 
have accounted and paid, which shall be 
a sufficient discharge to the guardians or 
tutors, and to the trustees, executors or 
administrators, who shall so account and 
pay, and thereupon all bonds entered 
into, for payment of such orphans por- 
tions, shall be delivered up and cancel- 
led. 



Minors at 
taining full 
age liow tliey 
shall act on 
refusal how 
the court shall 
act. 



Sec. 14. Provided always. That none 
of the said courts of Common Pleas, 

A A 



215 



202 Executors & Administrators. 



No minor or 
orphan to be 
put under 
the control of 
those of dif 
ferent reli 
gion. 



shall have any power to order or com- 
mit the tuition or guardianship of any 
orphans or minors, or bind them ap- 
prentices, to any person or persons, 
whose religious persuasion shall be dif- 
ferent from what the parents of such 
orphan or minor professed, at the time 
of their decease; or against the minors 
own mind, or inclination, so far as he 
or she has discretion and capacity to 
express or signify the same; or to per- 
sons that are not of good repute, where 
others of good credit, and of the same 
persuasion may, or can be found. 



The courts 
to have due 
regard to the 
direction of 
all last wills 



Sec. 15. Provided also. That the said 
courts of common pleas, and all others 
concerned in the execution of this law, 
shall have due regard to the direction 
of all last wills, and to the true intent 
and meaning of the testators, in all mat- 
ters and things that shall be brought 
before them concerning the same. 



All Bonds 
given rela 
ting to mi 
nors or de 
cedents 
estates, how 
to whom 
liable. 



Sec. 16. All such bonds or obliga- 
tions, as are by this, or any other law 
of the territory, directed, or required 
to be given to the said courts, relating 
to minors, or decedents estates, and all 
such bonds as by any law are directed to 
be given by any judge or other officers 
or persons in office, for the due execu- 
tion of his or their respective offices or 
employments, are hereby declared to 



216 



Executors and Administrators. 203 

be to, and for the use of, and in trust 
for, the person or persons concerned ; 
and the benefit thereof shall be extended 
from time to time, for the relief and 
advantage of the party grieved, by the 
misfeazance, or nonfeazance of the 
officers that did, or shall give the same. 



Sec. 17. And when any of the said 
bonds shall be put in suit, and judgment 
thereupon obtained, the judgment shall 
remain in the same nature the bonds 
were; and no execution shall issue 
thereupon, before the party grieved 
shall, by writ of scire facias, summon the 
person or persons against whom the said 
judgment is obtained, to appear and 
shew cause, why execution shall not 
issue upon the said judgment. And if 
the party grieved shall prove what dam- 
ages he sustained, and thereupon a ver- 
dict be found for him, the court where 
such suit is, shall award execution for so 
much as the jury shall then find, with 
costs, and no more — and the former 
judgment is hereby declared still to re- 
main cautionary, for the satisfaction of 
such others as shall legally prove them- 
selves damnified, and recover their da- 
mages in manner aforesaid. 



When such 
bonds are 
sued and 
judgment 
had, no extn 
to issue be 
fore a scire 
facias sent 
out — dama 
ges and costs 
how to be a 
warded on 
verdict, for 
mer judge 
ment to stand 
cautionary. 



Sec. 18. The clerks of the said courts 
of common pleas, and all others, in 
whose hands the said bonds shall be de- 



217 



204 Executors & Administrators. 



Clerk* to 
give copies 
on demand of 
sucli bonds. 
Fee tliereon. 



To produce 
tlie original 
in court if re 
quired, clerk 
refusing or 
delaying to 
give such 
copies or pro 
duce the ori 
ginal in court 
to pay treble 
damages. 



posited or lodged, are hereby required 
to give any person injured and reques- 
ting the same, a true copy of any of the 
said bonds, he paying thirty seven and a 
half cents, for the same, and to pro- 
duce the original in court, upon any 
trial that shall be had for the breach of 
any of them, if required by the court. 
And if the person in whose hands the 
said bonds shall be lodged, or come to, 
shall refuse or delay to give copies there- 
of, and produce the original in court, as 
aforesaid, he or they, shall forfeit and 
pay to the party grieved, treble dama- 
ges; to be recovered against the officer 
who gave such bonds and his sureties, by 
action of debt, bill, plaint, or informa- 
tion, in any court in the ter- 
ritory, where no essoin, protection or 
wager of law, or any more than one 
imparlance shall be allowed. 



Administra 
tors to give 
bond with 
two or more 
sureties &c. 



Sec 19. The Clerks of the courts of 
Common Pleas, shall, upon granting 
letters of administration of the goods 
and chattels of persons dying intestate 
within this Territory, take sufficient 
bonds, with two or more able sureties, 
(respect being had to the value of the 
estate) in the name of the Judges of the 
said court, with the conditions in man- 
ner and form following, mutatis mutan- 
dis, viz. 



218 



Executors & Administrators. 205 



Sec. 20 the condition of this obliga- 
tion is such, that if the within bounden 
A B, administrator of all and singular, 
the goods, chattels, and credits of C D, 
deceased, do make, or cause to be made, 
a true and perfect inventory, of all and 
singular, the goods, chattels and credits 
of the said deceased, which have, or 
shall come to the hands, possession, or 
knowledge of him the said A B, or into 
the hands and possession of any other 
person or persons for him and the same 
so made, do exhibit, or cause to be ex- 
hibited in the court of Common Pleas 
of the county of at or be- 

fore the day of next ensu- 

ing and the same goods, chattels and 
credits, and all other the goods, chat- 
tels and credits, of the said deceased, 
at the time of his death, which at any 
time hereafter, shall come to the hands, 
or possession of the said A B or into the 
hands and possession of any other per- 
son or persons for him, do well and tru- 
administer according to law, and further 
do make, or cause to be made, a true 
and just account of his said administra- 
tion, at or before the day of 
and all the rest and residue of 
the said goods, chattels and credits, 
which shall be found remaining upon 
the said administrator's account ( the 
same being first examined and allowed 
of by the court of Common Pleas, of 



Condition 
tiiereof. 
Sucli bonds 
valid and 
pleadable in 
any court. 



219 



206 Executors & Administrators. 

the county where the said administra- 
tion is granted) shall deliver and pay 
unto such person or persons, respective- 
ly, as the said court of Common Pleas 
(in the respective county) by their de- 
cree or sentence, pursuant to the true 
intent and meaning of lavv^, shall limit 
and appoint. — And if it shall hereafter 
appear, that any last will and testa- 
ment was made by the said deceased, 
and the executor or executors therein 
named, do exhibit the same, into the 
said court of Common Pleas, making 
request to have it allowed and approved 
accordingly, if the said A B, within 
bound, being thereunto required, do 
render and deliver the said letters of 
administration, approbation of such tes- 
tament being first had and made, in the 
said court of Common Pleas, then this 
obligation to be void, and of none ef- 
fect, or else to remain in full force and 
virtue. 



Courts may 
oblige admin 
istrators to 
account, 
furtlier pow 
er and duty 
of the court. 



Sec. 21. Which bonds are hereby de- 
clared, to be good to all intents and 
purposes, and pleadable in any court of 
Justice, and also the said courts of Com- 
mon Pleas, in the respective counties, 
shall, and may, and are hereby ena- 
bled, to proceed and call such adminis- 
trators to account for, and touching 
the goods of any person dying intestate, 
and upon hearing, and due consideration 



220 



Executors & Administrators. 207 

thereof, to order and make just and 
equal distribution of what remaineth 
clear, after all debts, funeral, and just 
expences of every sort, first allowed & 
deducted, according to the ordinance 
of Congress for the government of the 
Territory, and to the rules and limitati- 
ons hereafter set down, and the same 
distributions to declare and settle, and 
to compel such administrators to ob- 
serve and pay the same, by the due 
course of the laws of this Territory, 
saving to every one supposing him, or 
themselves aggrieved, their right of ap- 
peal, to the General or Circuit courts. 

Sec. 22 Provided always. That in 

case any child who shall have any es- Children of 

tate by settlement, from the intestate, '"testcite to 

snare The est 

or shall be advanced by the said intestate ate, equally. 

in his life time, by portion, not equal to 
the share which will be due to the other 
children by such distribution as afore- 
said, then, so much of the surplusage 
of the said estate of such intestate, to 
be distributed to such child, or children, 
as shall have any land by settlement 
from the intestate, or were advanced 
in the life time of the intestate, as shall 
make the estate of all the said children 
to be equal, as nearly as can be estima- 
ted. And in case there be no children, 
or any legal representatives of them, 
then one moiety of the said estate, to be 



221 



208 Executors & Administrators. 



Where no 
representa- 
tives, wife 
to have one 
half the oth 
er to the next 
of kindred. 
Concerning 

collateral 
branches. 

When no 
wife children 
to take the 
whole, when 
no wife nor 
child how 
distribution 
to be made. 



alloted to the wife of the intestate, and 
the residue of the said estate to be dis- 
tributed, equally, to every of the next 
kindred of the intestate, who are in 
equal degree, and those who legally re- 
present them : Provided, That there be 
no representatives admitted among col- 
laterals, after brother's and sister's chil- 
dren; and in case there be no wife, 
then all the said estate to be distributed 
equally to, and among the children: 
and in case there be no child, then to 
the next of kin, in equal degree, of, or 
unto the intestate, and their legal re- 
presentatives, as aforesaid, and in no 
other manner whatsoever. 



Distribution 
of personal 
estate not to 
be made with 
in the year. 



Party share 
ing estate to 
give bond to 
refund and 
in the court 
of common 
pleas. 



Sec. 23. Provided also, and to the end. 
That a due regard be had to creditors, 
that no such distribution of the goods of 
any person dying intestate be made, till 
after one year be fully expired, after 
the intestate's death ; and that such, & 
every one, to whom any distribution 
and share shall be allotted, shall give 
bond, with sufficient sureties, in the said 
court of Common Pleas, that if any 
debt or debts, truly owing by the intes- 
tate, shall be afterwards sued for, and 
recovered, or otherwise duly made to 
appear, that then, and in every such 
case, he or she, shall respectively refund 
and pay back to the administrator, his 
or her ratable part of that debt or debts, 
and of the costs of suit, and charges of 



222 



Executors & Administrators. 209 

the administrator, by reason of such 
debts, out of the part and share, so, as 
aforesaid, allotted to him or her ; there- 
by to enable the said administrator to 
pay and satisfy the said debt or debts, so 
discovered, after the distribution made 
as aforesaid. 



Sec. 24. Provided always. That in all 
cases whereby law, administration with 
the will annexed, ought to be granted, 
the said Clerk, or the court of Com- 
mon Pleas, shall grant administration 
accordingly, as before directed. 



Administra- 
tion with the 
will annexed, 
how qranto' 



Sec. 25. Where any letters of ad- 
ministration shall be granted, and no 
bond with sureties given, as the law in 
that case requires, such letters of ad- 
ministration shall be, and are hereby 
declared to be void, and of none effect, 
and the Clerk, or Judges of the court 
that grant the same, shall be ipso facto, 
liable to pay all such damages as shall ac- 
crue to any person or persons, by occa- 
sion of granting such administration. 
And the party to whom the same shall 
be so granted, may be sued as executor 
in his own wrong, and shall be so taken 
and deemed, in any suit to be brought 
against him, for, or by reason of his said 
administration ; or if upon such examin- 



Letters ad- 
ministration 
granted with 
out sureties 
to be void. 



The officers 
so granting 
them, to be 
liable to the 
damages ar- 
rising there- 
from, and 
the party un 
der them 
deemed exe- 
cutor in his 
own wrong. 



B B 



223 



210 Executors & Administrators. 



Power of the 
court where 
insufficient 
security is ta 
Icen, also in 
case of waste 
or embezzle- 
ment, when 
other letters 
shall be gran* 
ted and bond 
taken, form- 
er adminis- 
trator liable 
to suit. 



ation it appears that the said court have 
not taken sufficient sureties, where the 
administrators may not be of ability, to 
answer or make good the value of 
what the decedent's estate doth, or shall 
amount unto, then the said court of 
Common Pleas, are hereby required 
and empowered to cause all such admin- 
istrators to give better security to the said 
court by bonds; in manner and form 
as the law prescribes, and under such 
penalties, and with such sureties as the 
said court shall approve of, after they 
have heard the objections of creditors, 
or persons concerned, if any such be 
made, during the sitting of the court. — 
And if it appear that any of the said ad- 
ministrators have embezzled, wasted, 
or misapplied, or suffered so to be, any 
part of the decedent's estates, or shall 
neglect, or refuse to give bonds, with 
sureties, as aforesaid, then, and in every 
such case, the said court shall forthwith, 
by their sentence, revoke, or repeal the 
letters of administration granted by 
them, and thereupon, where such occa- 
sion happens, they are hereby required 
to grant letters of administration to 
such person or persons, having right 
thereunto, as will give bonds in man- 
ner and form, aforesaid, who may have 
their actions of trover or detinue, for 
such goods or chattels, as came to the 
possession of the former administrators; 



224 



Executors & Administrators. 211 

and shall be detained, wasted, embez- 
zled, or misapplied, by any of them, 
and no satisfaction made for the same. 



Sec. 26. If any person or persons, 
shall die intestate, being owner of lands 
or tenements within this Territory, at 
the time of their death, and leave lawful 
issue to survive them, but not a suffici- 
ent personal estate to pay their just 
debts, and maintain their children, in 
such case it shall be lawful for the ad- 
ministrator or administrators of such 
deceased, to sell and convey such part 
or parts of their said lands or tene- 
ments for paying their just debts, main- 
tenance of their children, and for put- 
ting them apprentices, and teaching 
them to read and write, and for im- 
provement of the residue of the estate, 
if any be, to their advantage, as the 
court of Common Pleas of the county, 
where such estate lies, shall think fit to 
allow, order and direct from time to 
time. 



Where per- 
sonal estate is 
insufficient, 
tlie common 
pleas may or 
der the real 
to be sold for 
the payment 
of debts, edu 
cation and 
maintenance 
of the chil- 
dren. 



Sec. 27. Provided alwaySj That no 
lands or tenements, contained in any 
marriage settlement, shall, by vir- 
tue of this law, be sold or dispo- 
sed of, contrary to the form and ef- 
fect of such settlement, nor shall any 
court of Common Pleas, allow, or or- 
der any intestates lands or tene- 



Exeept under 

marriage 

settlement. 



225 



212 Executors & Administrators. 



Inventory to 
be first exhibi 
ted and oth 
er proceedings 
had. 



Mansion 
house and 
most profita 
ble part of 
the estate to 
be reserved 
to the last. 

Advertise 
ments to be 
put up of 
time & place 
of sale. 



ments to be sold, before the administra- 
tor requesting the same, doth exhibit a 
true and perfect inventory, and con- 
scionable appraisement of all the intes- 
tate's personal estate whatsoever, as 
also a just and true account, upon his 
or her solemn oath or affirmation, of 
all the intestate's debts which shall be 
then come to his or her knowledge. 
And if thereupon it shall appear to the 
court that the intestate's personal estate 
will not be sufficient to pay the debts, 
and maintain the children, until the 
oldest of them attains the age of twen- 
ty-one years, or to put them out to be 
apprentices, and teach them to read 
and write, then, and in every such case, 
and not otherwise, the court shall allow 
such administrator to make public sale 
of so much of the said lands belonging 
to any minor, as the court, upon the 
best computation they can make of the 
value thereof, shall judge necessary for 
the purposes aforesaid, reserving the 
mansion house, and most profitable part 
of the estate till the last. But before 
any such sale be made, the court shall 
order so many writings to be made by 
the Clerk, upon parchment, or good 
paper, as the court shall think fit, to 
signify and give notice of such sales, and 
of the day and hour when, and the 
place where the same will be, and what 
lands are to be sold, and where they lie; 



226 



Executors ^ Administrators. 213 



which notice shall be delivered to the 
Sheriff or Constables, in order to be fix- 
ed in the most public places of the 
county, or city or town, at least twen- 
ty days before sale: and the Sheriffs or 
Constables are hereby required to make 
publication accordingly; and the admin- 
istrator that makes such sale, shall bring 
his or her proceedings therein, to the 
next court of Common Pleas, after the 
sale made. And if it shall happen that 
any lands be sold by virtue of this law, 
for more than the courts computation 
of the value thereof, then the adminis- 
trator shall be accountable for the same 
as by this law is required for intestate's 
personal estates. 



Ad mini sf ro- 
tors to report 
proceedings 
to next court 
When lands 
sell higher 
than valued, 
the adminis- 
trator must 
account for 



Sec. 28. Where any person has died, 
or hereafter 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 her executors 
or some fit persons to make deeds of 
conveyance, and having previous to his 
or her death, executed bonds or any 
other instrument of writing, binding 
him or her to convey any tract of land, 
or lot of ground, in such case, the admin- 
istrator, 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 pow- 
er and authority to convey any tract of 



Court to ap- 
point 3 com- 
missioners on 
application 
or exrs. or 
adminsts. to 
convey real 
estate accord- 
ing to dece- 
dants bond. 



227 



214 Executors t^ Administrators. 



Fraudulent 
conveyance 
not binding 
on decedants 
heirs. 

Bonds to be 
filed with the 
records of 
court. 

If the rents of 
houses and 
lots belong- 
ing to minors 
are not suffi- 
cient, the 
court may 
authorise the 
guardian to 
sell the same 



land, or lot of ground, to the person 
entitled to the same, which the dece- 
dent bound him or herself, & 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 ances- 
tor in his life time: Provided however. 
That nothing in this act shall be so con- 
strued, as to prevent the infant repre- 
sentatives of such decedent, from institu- 
ting suits to recover such land, or a 
compensation in damages from the per- 
son 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 in- 
strument on which said conveyance is 
prayed, shall be filed with the records 
of the said court. 



Sec. 29. Whenever it shall appear to 
the several courts of common pleas, of 
any county in this territory, on peti- 
tion 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 year- 
ly 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 



228 



Executors and Administrators. 215 

said guardian or guardians to sell and 
dispose of the said house and lot, or 
houses and lots, by public auction, 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 w^ith lawful interest. 



Sec. 30. The said guardian or guar- 
dians, on the said sale's being made, shall 
take bond from such purchaser or pur- 
chasers, with sufficient security, to be 
approved of by the court, for the pay 
ment of such consideration money, who 
shall thereupon by proper deeds, con- 
vey 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 mi- 
nor or minors, when of full age. 



Guardian en 
such sale to 
take approv 
ed security, 
and malce 
conveyance 
to purctiaser. 



Sec. 31. The said guardian or guar- 
dians, shall account for the considera- 
tion money received for such house and 
lot, or houses and lots, in the same man- 
ner as for the other estate of such minor 



Guardians to 
account for 
the consider 
ation money 



Sec. 32. All wills in writing, where- 
in, or whereby, any lands, tenements or 
hereditaments, have been, are, or shall 



229 



216 Executors & Administrators. 



Written wills 
declared 
good convey 
ances 

Proof of 
wills liow 
made 



Probates of 
wills decia 
red matter of 
record and 
may be giv 
en in evidence 



be devised (being proved by two or 
more credible witnesses, upon their so- 
lemn oath or affirmation, or by other 
legal proof, in this Territory, or being 
proved before such as have, or shall have 
power in any of the United Sates, or 
elsewhere, to take probates of wills, & 
grant letters of administration, and a 
copy of such will, with the probate 
thereof annexed, or endorsed, being 
transmitted hither under the public or 
common seal of the courts, or offices 
where the same have been, or shall be 
taken or granted, & recorded or enter- 
ed in the office of the Clerk of the 
court of Common Pleas in this Terri- 
tory) shall be good and available in law, 
for the granting, conveying and assur- 
ing of the lands or hereditaments, there- 
by given or devised, as well as of the 
goods and chattels thereby bequeathed; 
and the copies of all wills and pro- 
bates, under the public seals of the 
courts, or offices, where the same have 
been, or shall be taken or granted, res- 
pectively, other than copies, or pro- 
bates of such wills as shall appear to be 
annulled, disapproved or revoked, shall 
be judged and deemed, and are hereby 
declared to be matter of record, and 
shall be good evidence to prove the gift 
or devise thereby made And all such 
probates, as well as all letters of ad- 
ministration, granted out of this Terri- 



230 



Executors & Administrators. 217 

tory, being produced here, under the 
seals of the courts, or offices, granting 
the same, shall be as sufficient to enable 
the executors or administrators, by 
themselves or attornies, to bring their 
actions in any court within this Terri- 
tory, as if the same probates, or letters 
testamentary, or administrations were 
granted here, and produced under the 
seal of the court of common pleas, in any 
county of this territory. 



Sec. 33. Provided always. That if 
any of the wills whereof copies or pro- 
bates, shall be so as aforesaid, produced 
and given in evidence, shall within 
seven years after the testators death, 
appear to be disproved, or annulled, 
before any Judge or officer having 
cognizance thereof, or shall appear 
to be revoked or altered, by the testa- 
tor, either by a latter will, or codicil in 
writing, duly proved as aforesaid, then, 
and in every such case, it shall and may 
be lawful for the party aggrieved, or his 
or their heirs, executors or assigns, to 
have their action for what shall be ta- 
ken, or detained from them, by occa- 
sion of such wills, or have their writ or 
writs of error, for reversing the judi- 
cial proceedings thereon, (as the case 
shall require) any thing herein contain- 
ed, to the contrary notwithstanding. 



Should a will 
be disproved 
within 7 
years reme< 
dy given to 
the party ag- 
grieved. 



C C 



231 



218 Executors & Administrators. 



Nuncupa- 
tive will be- 
queathing 
more than 
80 dollars 
value decla- 
red void, un- 
less proved 
and hew. 



Further re- 
quisites to 
make such 
will valid. 



Sec. 34. No nuncupative will shall be 
good, where the estate thereby be- 
queathed shall exceed the value of eigh- 
ty dollars, that is not proved by two or 
more witnesses, who were present at the 
m king thereof, nor unless it be proved, 
that the testator at the time of pro- 
nouncing the same, did bid the per- 
sons present, or some of them, bear wit- 
ness that such was his will, or to that 
effect ; nor unless such nuncupative 
will, be made in the time of the last 
sickness of the deceased, and in the house 
of his or their habitation, or dwelling, 
or where he or they have, or hath been 
resident, for the space of ten days or 
more next before the making of such 
will ; except where such person was 
surprised, or taken sick, being from his 
own house, and died before he return- 
ed to the place of his or her dwelling. 



Limitation 
of proofs as 
to such nun- 
cupative 
wills, 



Sec. 35 When six months have passed 
after speaking of the pretended testa- 
mentary words, no testimony shall be 
received to prove any will nuncipative, 
except the said testimony, or the sub- 
stance thereof was committed to writing 
within six days after the making of the 
said will. 



Sec. 36. No letters testamentary, 
or probate of any nuncupative will, shall 
pass the seal of the court of common 



232 



Executors and Administrators. 219 



pleas in the respective coun ies, till four- 
teen days at least after the death of 
the testator, be fully expired, nor shall 
any nuncupative will, be at any time re- 
ceived to be proved, unless process have 
first issued out, to call in the vt^idow, or 
next of kindred to the deceased, to the 
end, that they may contest the same, if 
they please. 



No probate 
of wills nun 
cupatlve to 
issue, till 14 
days after 
the death, 
nor till the 
widow or 
next of kin. 
be summon- 
ed to contest 
the same. 



Sec. 37. Notwithstanding this law, 
any mariner or person being at sea, or 



This law no 



ij. I . ^ 1 •!• ** effect mar 

soldier bemg m actual military service, jners & sol 

may dispose of his moveables, wages d'ers. 
and personal estate, as he might have 
done before the making hereof. 



233 



220 Executors & Administrators. 



EXECUTORS AND ADMINISTRA- 
TORS. 



AN ACT. 

To amend an act entitled "An Act author- 
ising the granting of Letters Testamen- 
tary, and Letters of Administration, for 
the settlement of Intestates estates, and for 
other purposes. 

Passed Oct. 24. 1808. 



Sec. 1. Be it enacted by the legisla- 
tive Council and House of representa- 
tives, and it is hereby enacted by the 
authority of the same, That all the 
moveable property of any person or 
Exers. or persons dying, testate or intestate, in 

admers un* the territory, shall, unless otherwise 

ed by will or directed by the will of such testator, or 
by a rule or order of the court of Com- 
mon Pleas of the county, be sold by his, 
her or their executors or administra- 
tors, by public vendue, to the highest 
bidder, on a credit of at least three 
months, the purchaser or purchasers 



order of 
court to sell 
property on 
credit. 



234 



Executors & Administrators. 221 



giving bond with security, to be appro- 
ved of by the executor or administra- 
tor, for the payment of their purchase 
money at the time mentioned in the 
conditions of sale, either vi'ith, or with- 
out interest, as expressed in such condi- 
tions: Provided, That executors or 
administrators may make it a part of 
the conditions of such sale, that purcha- 
ses under three dollars, shall be paid 
down. 



Certain sums 
to be paid 
down. 



Sec. 2. Be it further enacted. That ad- 
ministrators in settling the accounts of 
their administrations, shall be charged 
with, and accountable for the nett pro- 
ceeds of such sales, notwithstanding 
the same may amount to more, or less, 
than the appraised value. 



Accountable 
for tlie am 
ount of sale. 



Sec. 3. Be it further enacted, That no 
action, or suit, shall hereafter be main- 
tainable against any ex£CUtor or exec- 
utors, administrator or administrators, for 
debts due by the testator, or intestate, at 
the time of his death, before the expi- 
ration of twelve months after the gran- 
ting of the first letters of administration, 
or letters testamentary ; and if any such 
action, or suit, shall be brought, contra- 
ry to the provisions of this act, the same 
shall be dismissed by the court with full 
costs. 



No suit shall 
be sustained 
against them 
until expira- 
tion of 12 
months. 



235 



222 Executors & Administrators. 

This act shall take effect, and be in 
force from and after the first day of 
January next. 



EXECUTORS AND ADMINISTRA- 
TORS. 



AN ACT 



Supplemental to an act entitled "an act au- 
thorising the granting oj letters Testamen- 
tary and letters of Administration, for 
the Settlement of Intestates Estates and 
for other purposes. 

Passed Dec. 10, 1813. 

Whereas it appears that there is no 
Preamble. law provided to authorise the Judges of 

the Courts of Common Pleas to issue 
any compulsory process against the Ex- 
ecutors or Administrators in vacation of 
the courts setting and a considerable 
length of time between terms — which 
sometimes subjects estates to considera- 
ble loss. For remedy thereof. 



236 



Executors & Administrators. 223 



Sec 1. Be it enacted by the Legisla- 
tive Council and House of Representa- 
tives of the Illinois Territory and it is 
hereby enacted by the authority of the 
same. That on complaint made to any 
judge of the court of common pleas be- 
tween term times of said court that any 
estate is likely to be embezzled or wasted 
in any manner whatever by any exe- 
cutor or administrator, guardian or 
others, the said judge is hereby em- 
powered and authorised to issue such 
necessary process against any such exe- 
cutor or administrator in the same man- 
ner as might or could be done if sitting 
in a regular session at the times prescri- 
bed by law, and on hearing such case 
if the said judge should be of opinion 
that such complaint is well founded he is 
hereby authorised to summon one other 
judge to his assistance and hold a special 
session in which they are hereby em- 
powered to hear and finally do all such 
matters & things thereon as might or could 
be done at any regular session of said court 
of common pleas at their terms appoin- 
ted by the act to which this is a sup- 
plement. 



Judges of 
C P to call 
special session 
of the C. P. 



The power 



Sec. 2. Be it further enacted, That 
the debts due by any person or persons 
at the time of his or her decease by any 
instrument in writing with or without 
seal shall be considered and taken as 



All debts due 
by instument 
of writing of 
equal dignity 



237 



224 Executors & Administrators. 



Exr. to re 
turn list of 
appraisement 
& sale in 90 
days 



Shall settle in 
6 months 
thereafter 



If exr pays 
more to a 
credr. than 
his share li- 
able out of 
his own 
property 



Even if he 
does not 
know the 
estate to be 
insolvent 



debts of equal degree and by his or her 
executors or administrators accordingly 
paid as such out of the decedent's estate 
and all executors and administrators af- 
ter receiving the letters of administra- 
tion, shall in ninety days thereafter 
make return of the appraisment and 
sale of such estate as he or they, may 
administer upon to the clerk of the court 
of common pleas and at the end of nine 
months thereafter they shall render to 
the court, their whole proceedings had 
thereon or so far as to make known to 
the court, whether the estate is sufficient 
or insolvent that he administered, or the 
next term after the expiration of the 
said nine months — and if any executor 
or administrator shall pay to any credi- 
tor, of said estate any more than his 
proportionable part or share of said es- 
tate, the said executor or administrator 
shall be liable out of his own estate to 
pay the creditors of said deceased the 
amount, thus improperly paid — though 
the executor or administrator might not 
have known of the insolvency of said 
estate, nor shall he at his peril, knowing- 
ly pay to any creditor more than his 
proportionable part or share of said es- 
tate after the expiration of one year 
next succeeding the date of his letters of 
administration or testamentary, no exe- 
cutor or administrator, shall confess a 
judgment to any creditor of said estate 



238 



Executors & Administrators. 225 



unless, upon oath so as to entitle the 
party to whom he confesses judgment 
to any more than his just proportion of 
said estate, nor that no executor nor ad- 
ministrator shall be entitled to retain of 
said estate for his own debt any more 
than a just proportion, with the other 
creditors. 



Not to con- 
fess judge- 
ment unless 
on oath. 



Sec. 3. And be it further enacted, 
That where the estate of which any one 
may be executor or administrator shall 
amount to no more than two hundred 
dollars, it shall be his duty to set up 
five advertisements in the most public 
places in the county in which the said 
deceased died, notifying the creditors 
of said estate, that at the next court of 
Common Pleas, he will settle with the 
court and require the creditors to bring 
in their claims properly authenticated, 
but should the estate amount to more 
than two hundred dollars, the executor 
or administrator shall insert the notice 
of such intended settlement in some 
public 'newspaper for eight successive 
weeks, and set up advertisements for 
the purpose aforesaid. 



When the 
estate amts. 
to 200 dolls, 
what 



When more 
what. 



Sec. 4. Be it further enacted. That 
where the estate of any deceased per- 
son does not amount to any more than 

Dd 



239 



226 Executors & Administrators. 



Exrs. allow- 
ance. 



C. Plaes 
may reduce 
It. 



Funeral ex- 
pences first 
paid. 



two hundred dollars, the executor or 
administrator, who administers on said 
estate shall not be entitled to any more 
fees than ten per cent for his trouble 
and all above two hundred dollars five 
per cent, and when the estate amounts 
to no more than five hundred dollars, 
the administrator shall not be entitled 
to any more fees than seven per cent 
for his trouble as administrator of said 
estate — and all above five hundred dol- 
lars to one thousand dollars three per 
cent, and when any estate does not 
amount to any more than one thousand 
dollars the administrator shall not be 
entitled to any more fees for his trou- 
ble than five per cent, all above one 
thousand dollars to two thousand dol- 
lars three per cent. And where any 
estate does not amount to any more 
than two thousand dollars the adminis- 
trator shall not be entitled to any more 
fees for his trouble than four per cent 
— on all sums above two thousand dol- 
lars two and a half per cent. And in 
any case where the Judges of the court 
of Common Pleas, should be of opinion 
that the percent allowed by this law 
for the trouble of settling estates should 
be too much, the said Judges may 
make any reasonable deduction as they 
may think just and reasonable. And 
where estates have become insolvent it 
is always to be understood that all fu- 



240 



FEES. 227 



neral expences shall be first paid. That Not to have 
nothing in this act contained shall be so admins* & 
construed so as in any wise to affect any exrs. now In 



administration granted before the pas- 
sage of this act. 

This act to be in force from and af- 
ter the passage thereof. 



office. 



FEES 



AN ACT 

Regulating the Fees of the several Officers 
and Persons therein named. 

Passed Sept. 17th, 1807. 

Sec. 1. No officer shall at any time 
exact or demand for services hereafter Fees to be 
to be performed any larger or other *<•*•"• 
fee, to be taxed in a bill of costs, than is 
hereinafter provided. 



241 



Clerk C. P. 



228 FEES. 



CLERKS FEES IN THE COMMON 
PLEAS. 



D. C. M. 



Every writ of capias and seal, 


50 


Entering action, 


6 


Filing writ, 


6 


A bond given by the plaintiff 




when he is not a freeholder 




and resident of the Territo- 




ry. 


37 


Filing declaration 


6 


Copy of declaration or other 




pleading per sheet if requir- 




ed each sheet containing se- 




venty-two words 


12 


Discontinuance or retraxit 


d& 


Altering a declaration in eject- 




ment, and admitting defen- 




dant 


25 


Entering every motion and rule 




thereon 


12 


Copy of every rule when required 


do. 


Bringing a particular record into 




court 


25 


Entering satisfaction of record 


12 


Receiving and entering verdict 


do. 


Entering judgment 


15 


Reading and allowing every writ 




of habeas corpus, writ of error 




or certiorari and the return 


25 


An execution 


50 



242 



FEES. 229 

D. C. M. 

Transcript of the record in error, 
and returning it with the writ e- 
very sheet of seventy tv/o words 12 5 

Entering defendants appearance 6 

Drawing and filing special bail in 

or out of court 18 

Every writ of enquiry per sheet 12 5 

Entering on docket do. 

Filing every plea, replication or 

joinder or other pleading 6 

Receiving and entering the panel 

and swearing the jury 18 

A habeas corpora juratorum 50 

Subpoena for four witnesses or un- 
der do 

Swearing each witness 6 

Swearing constable 6 

Making up & entering a complete 
record after judgment per sheet 
of seventy two words 18 

Copy of a record of a judgment, 
when required per sheet of seven- 
ty two words 12 5 

Searching the record within one 

year do 

Every year back 6 

Copy of a record per sheet of seven 

ty two words 12 5 

Entering report of referrees per 

sheet of seventy two words do. 

On confession of judgment, default, 

joinder or demurrer 25 



243 



230 FEES. 

D. C. M. 

Entering rule of court on appoint- 
ing referrees 15 
Continuing each cause 20 
On surrendering the principal in 

court by sureties 15 

On entering every principal motion 10 

Every issue joined 25 

On every trial do. 

On drawing special list of jury, at- 
tending &striking& makingicopies 
of jury list, for plaintiff & defendant 

50 
Issuing commission to take deposi 

tions do 

For recording certificate of mar- 
riage 12 5 

CLERKS FEES IN CRIMINAL PRO- 
CEEDINGS 

Taking a recognizance and drawing 

it up in form, to be paid to the 

clerk or other person who does the 

CIrk. C. P in service 37 5 

For engrossing every indictment & 

filing and reading the same 56 

Subpoena for four witnesses or under 50 

A venire or other writ do. 

Entering defendants appearance 6 

An execution 50 

Making up record per sheet of se- 
venty-two words 18 
Copy of same if required 12 5 



244 



criminal cases 



FEES. 231 

D. C. M. 

Every order or rule of court 9 

Entering noli prosequi, or ccsset 

processus 18 

A venire for jurors to inquire of 
riots forcible entries and detain- 
ers, &c. 50 

Drawing and engrossing inquisition 

and returning the same 6 

Filing record 12 5 

Entering the panel and swearing 

the jury 25 

Swearing each witness or constable 6 

Reading each evidence or petition 

in court 6 

Taking and entering verdict 12 5 

Entering judgment and the fine 15 

Entering defendants confession do 

Copies of indictment and pleadings 
if required per sheet of seventy 
two words 12 5 

Discharging a recognizance 10 

For examining every account in 

court do 

On entering appeal, allowing ha- 
beas corpus and writ of certiora- 
ri, when presented from the 
Judges of the General court 12 5 

Every trial 25 

Continuing cause 20 

Entering a noli prosequi 12 5 

Certificate and seal 75 



245 



232 FEES. 



D. C M. 



Receiving, reading and filing eve- 
ry order brought to be allowed 
at the court of Common Pleas, 
and entering the confirmation 
and recording the same as in o- 
ther cases per sheet of seventy 
two words 12 5 

Making cost bill 37 5 

Copy thereof 25 

To the Clerk in lieu of fees hereaf- 
ter chargeable to the county the 
annual sum of 30 

To the Clerk of the General court 
the same sum to be paid by the 
Territory 



PROBATE FEES. 

For all copies each folio of seventy 

two words 12 

For administering an oath 6 

Probate. For filing 18 

For a citation 50 

For a letter of administration 2 50 

Taking and filing a renunciation 
and taking proof of a renuncia- 
tion, and which proof the Clerks 
of the court of Common Pleas 
are heredy authorised and re- 
quired to take 50 

246 



FEES. 233 

D. C. M. 

For proving a will, endorsing a 
certificate thereon, recording 
the same and filing it 2 50 

For qualifying administrator tak- 
ing bond, and writing certi- 
ficate 1 50 

For filing caveat 18 

For proving codicil, if proved sepa- 
rately, endorsing certificate, record- 
ing the same and filing it 1 50 

For examining and proving an in- 
ventory or account 1 

For granting the administration 

with the will annexed 2 50 

For settlement of accounts of exe- 
cutor or administrator 50 

Every copy of said account not ex- 
ceeding one hundred items, with 
certificate and seal of office 1 50 

Reading and filing petition, to sell 
land, and swearing administrator 
to the truth of the statement 
made and entering the necessary 
order thereon 67 

Giving notice by order of court for 
sale of land, for every advertise- 
ment not exceeding three 25 
Ee 



247 



234 



FEES. 



JUSTICES FEES IN THE COURT 

OF COMMON PLEAS FOR THE 

USE OF THE COUNTY. 



Judges of C. 
P. use of 
county. 



For each action in court 

Signing every judgment 

Taking bail 

Acknowledging satisfaction on re- 
cord 

Taxing and signing bill of costs 

Proof or acknowledgment of a 
deed 

For every issue joined 

For every trial 

Allowing writ of error, habeas cor- 
pus or certiorari, when presented 
from the judges of the General 
court 

Granting reference 

Approving the report of referees 

On surrender of principal in court 

Hearing petition and making order 
thereon 



c. 


M, 


37 


5 


12 


5 


25 




9 




25 




37 


5 


50 





50 
25 
30 
20 

25 



Sheriff's Fees. 




For serving a writ and taking into 




custody 


50 


For every mile fixed by law 


6 


Every bail bond & copy of same 


50 


Returning writ 


9 


Summoning jury 


75 



248 



-^ FEES 235 

. M. 

Attending a view per day 

Going & returning 

Serving & returning a scire facias 

Serving a writ of possession with the 
aid of the posse commitatus 

Every mile from the place of hold- 
ing Court 

Serving such writ without the aid 
of the posse commitatus 

For calling a jury on each cause 

Every person committed to the 
common jail 

Calling every witness 

Discharging every person out of the 
common jail 

Calling every action 

Executing a writ of enquiry, draw- 
ing inquisition and returning the 
same 1 50 

Discharging every person by proc- 
lamation 9 

Serving a summons 37 

For attending a prisoner before a 
judge when surrendered 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 

For dieting a prisoner per day 25 

For proceeding to sell on any exe- 
cution, if the property be ac- 



249 



D. 


C. 


1 




1 






37 


2 


50 




6 


1 


25 




12 




37 




6 




37 




9 



236 FEES . 

D. C. M. 

tually sold, 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 
commissions when the money is 
paid to the sheriff without seizure, 
or when the lands or goods seiz- 
ed or taken shall not be sold, and 
no other fee or reward shall be 
allowed upon any execution, ex- 
cept for the expence of receiving 
and keeping the property 

For making a deed on sale of real 

estate on execution 2 

To the sheriff in lieu of all fees that 
may hereafter be chargeable to 
the county, the annual sum of 50 



JURORS FEES IN THE COMMON 
PLEAS AND GENERAL COURT. 

Jurors, Every juror sworn in each action 25 

Every juror attending a view 50 



WITNESSES FEES IN THE COURT 
OF COMMON PLEAS AND GEN- 
ERAL COURT. 

Every witness attending in his 

own county on trial per day 37 5 



250 



FEES. 237 

D. C. M. 

Attending from a foreign county 
and coming and returning per 
day 56 

Each witness subpoenaed in the 
county and detained from a for- 
eign county per day 56 

To a witness on a duces tecum com- 
ing from a foreign county at- 
tending and returning per day 56 

Except a clerk of a court, attend- 
ing from a foreign county with 
wills, records, and other eviden- 
ces, on Subpoena per day 1 65 

CORONERS FEES. 

For the view of each body 3 

Each juryman that sits on the body 12 5 Coroners. 

For witnesses the same allowance 
as in the court of Common Pleas 

Serving writs in all cases, the same 
as is before allowed to the she- 
riff for like services; the fees of 
the coroners inquest shall be cer- 
tified by the coroner, and paid 
by the treasurer of the county. 

SECRETARYS FEES. 

For copies or exemplification of 
records per sheet of seventy-two 
words 12 5 



251 



238 FEES. 

D. C. M. 

And seal and certificate thereto 

when required 75 

For affixing the seal to any patent 75 

For recording an extract of every 
patent for land when 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 eve- 
ry seventy two words 12 5 

SURVEYORS FEES. 

For going to and returning from a 
view per day, and thirty miles 
per day 1 25 

Surveyors His actual service per day, on the 

view per day 1 50 

For going to, attending the court 

per trial & returning per day 1 25 



AN ACT 

Regulating the fees of Justices of the Peace, 
Constables and Recorders, 

Passed December 24th 1814. 

Be it enacted by the Legislative 

252 



FEES. 



239 



Council and House of Representatives, 
and it is hereby enacted by the authori- 
ty of the same, That the following shall 
be the standing fees to govern the justi- 
ces of the Peace, Constables and Recor- 
ders of this territory: 

For every summons or warrant 

Each Suboena 

Each continuance 

Swearing each witness on trial 

Every deposition in full length 

Entering up judgment 

For every execution 

Entering security when required 

Scire facias to be served on secu- 
rity when execution is returned 
"nothing to be found" 

Each notification, when the cause 
is to be left to referees 

Entering award and final judg- 
ment thereon 

Taking deposition of each witness 
on dedimus from another terri- 
tory or county 

Returning dedimus certificate & 
sealing and directing same 

Entering appeal from judgment 
of justices 

Bond on appeal 

Copy of the proceedings on justi- 
ces judgment 

For taking acknowledgement 



D. 



M. 
1-2 

1 2 



C. 
12 
12 

6 

6 

25 
25 
25 
12 

25 

62 1-2 

37 1-2 



1-2 



25 



37 1-2 



1-2 



Justices fees 



253 



240 FEES. 



Constables Fees. 
For serving and returning each 
254 



D. C. M. 



on a deed or other instrument 
of writing or proving the same 
for each person named therein 25 

On attachment for taking deposi- 
tion 18 3-4 

Granting attachment, taking bond 

and security 75 

Entering up judgment on the 

same 37 1-2 

Putting the same on docket 12 1-2 

On forcible entry and detainer 

for each precept 37 1-2 

Administering each oath thereon 12 1 2 

To each justice of the peace on 

trial per day 2 50 

Copy of proceedings & making 

out the same 2 50 

In Criminal Cases. 



Taking each deposition at full 






length 


25 




Each warrant 


25 




Each recognizance 


37 


1-2 


Each mittimus 


37 


1-2 


Order for those who misbehave 






to be whipped 


37 


1-2 


Order to remove a pauper 


50 




Order to relieve a pauper 


37 


1-2 



FEES. 



241 









D. C. 


M. 


warrant 






37 


1-2 


Serving summons & 


returning 






the same 






37 


14 


erving execution and 


returning 






the same 






37 


1-2 


Advertising property 


taken 


in 






execution for sale 






12 


1-2 


Commission on sales 


under 


six 






dollars 






25 




Commission on sales 


above 


six 






dollars 






six per cent. 


Attending on each trial 






12 


1-2 


Milage from the justice's dwel- 






ling, 5 cents per mil 


le. 








For each day's attendance on 


the 






General court or 


court 


of 






common pleals 






1 





IN CRIMINAL CASES. 

For serving a warrant on each 

person therein named 50 

Attending on examination 25 

For serving subpoena on each 

person therein named 25 

For returning each precept 6 

Taking each person to jail 25 

Milage from the place of com- 
mitment per mile 5 
Milage from the Justices of the 

Peace, on all criminal cases 5 

F F 



255 



242 FEES. 



D. C. M. 



Whipping each person for a 

misdemeanor by order of 

any court or justices of the 

peace 50 



RECORDERS FEES. &c. 

Recording deeds, mortgages and 
all other instruments of wri- 
ting per 100 words. 16 

For all copies of records per 100 

words 12 12 

For every search for each year 

back 6 1-4 

For certificate of any writing 

recorded 50 

Every seal when required 25 

Be it further enacted, That all laws 

and parts of laws that come within the 

pervieu of this act, shall be, and the 

same are hereby repealed. 

This law shall be in force from and 
after the first day of May next. 

Here follows the residue of the Act of 
\7th September 1807, entitled "An act 
regulating the fees of the several officers & 
persons therein named" 

If any constable shall ask, demand or 
receive any more or greater fees than 
is above mentioned, he or they so of- 



256 



FEES. 



243 



fending, shall forfeit and pay any sum, 
not exceeding eighteen dollars, for eve- 
such offence, to be recovered before 
any court having jurisdiction, the one 
half to the person suing for the same, 
the other half to the use of the proper 
county. 



Constable ta< 
king greater 
fees fined. 



And to the end, all persons charga- 
ble with any of the fees aforesaid, due 
to the several above officers (except 
constables) may certainly know^ for 
what the same are charged, none of the 
fees herein before mentioned, shall be 
payable to any person whatsoever, un- 
til there shall be presented unto the per- 
son owing or chargeable with the same, 
a bill or amount 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; on 
which said bill or account shall be ex- 
pressed in words at full 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 deman- 
ded. 



Officers to 
make and 
sign bilis. 



The Clerks of the General and Cir- 
cuit courts, and Clerks of the courts 
of Common Pleas, in this Territory, 
shall cause to be set up in some public 
place in their offices and there constant- 



Clk. to set 
up tabie of 
fees. 



257 



244 FEES. 

ly keept, a fair table of their fees here- 
in before mentioned on pain of forfeit- 
ing 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 acti- 
on of debt or information. 

Sec. 27 If any officer hereafter shall 

Officer tak- claim, charge, demand, exact or take 
ing other or ^ j. . 

greater fee. ^"y more or greater fees for any wri- 
ting, 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 charge- 
able shall not have been actually done 
and performed (to be proved by the fee 
book of such officer on his corporeal 
oath) such officer for every such of- 
fence shall forfeit and pay to the party 

How punUh injured, besides such fee or fees six dol- 
lars to every particular article or fee 
so unjustly charged or demanded or 
taken, o be recovered with costs in any 
court of record in this territory, by 
action of debt or information provided 
the same be sued for within twelve 



258 



FEES. 



245 



months after the offence shall be com- 
mitted. 



Limitafion. 



Sec. 28. And for the better collec- 
tion of the said fees, the Clerks 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 account 
of fees due from any person or persons 
residing therein, which shall be signed 
by the clerks respectively. 



Clk. to de- 
liver fee bill 
to sheriff. 



Sec. 29. 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 chargea- 
ble therewith; and if such person or 
persons, after the said fees shall be de- 
manded, 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 and chattels of the party so 
refusing or delaying payment, either in 
that county where such person inhab- 
its, or where the same ees 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, 



Slieriff to 
collect. 



if payment 
delayed. 



SlifT. to dis- 
train. 



259 



246 



FEES. 



As also for 
own & eth- 
er sheriflFs, 



No wart for 
fees except 
as property 



Or fee book 
lost. 



ShfF. pid. gl. 
issue. 



either to themselves or the sheriffs of 
another county which shall be put into 
hi hands to collect, as aforesaid, is here- 
by authorised and empowered to make 
distress and sale of the goods and chat- 
tels of the party refusing or delaying 
payment in the same manner as for 
other fees due to any of the officers 
therein before mentioned, but no ac- 
tion, suit or warrant from a justice, shall 
be had or maintained, for Clerk's fees 
unless the Sheriff shall return that the 
person owing or chargeable with such 
fees, hath not sufficient within his baili- 
wick, whereon to make distress, except 
when the clerk as aforesaid shall have 
lost his fee book by fire or other misfor- 
tune, so that he be hindered from put- 
ting his fees into the sheriffs hands to 
collect ; and in that case, any suit or 
warrant may be had and maintained for 
the recovery thereof. And if any Sher- 
iff 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. 



Shff. to ac- 
count &c. 



Sec. 30. Every Sheriff of every 
county shall on or before the last day of 
May in every year, account with the 
Clerks respectively, for all fees put into 
his hands, pursuant to this law, and pay 
the same, abating ten per centum for 
collecting. And if any Sheriff shall 



260 



FEES. 



247 



refuse to account or pay the whole 
amount of fees, put into his hands, af- 
ter the deductions aforesaid made, to 
gether 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, 
their executors or administrators, upon 
a motion made in the next succeeding 
General court Circuit court or 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 re- 
quired to give judgment accordingly, 
and to award execution thereupon ; 
Provided, The sheriff have ten days pre- 
vious notice of such motion. 



Deduction. 



Clk. may 
motion ogst. 
SlifF. 



To give no- 
tice 



Sec. 31. The executors or adminis- 
trators of any such sheriff, or und r 
sheriff, shall be liable to a judgment as 
aforesaid, for fees received to be col- 
lected by their testator or intestate, and 
not 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. 

Sec. 32. Sheriff's poundage, and all 
other legal fees in a suit, from final 
judgment to execution, shall, by the 



Exrs. & ad- 
mrs. liable 



Reept. evi- 
dence unless 
denied on 
oath. 



261 



248 FEES. 

sheriff, be levied out of the estate and 
effects of the persons against whom such 
execution shall be issued. 

See act 25 October 1808 page 27. 



AN ACT 

Rrgulating the Fees in the General Court, 
and for other purposes. 

Passed Sept. Hth, 1807. 

Sec. 1. Be it enacted by the Legislative 
Council and House of Representatives, and 
it is hereby enacted by the authority of the 
same, hat from and after the passage 

Clki of G. hereof, the Clerk of the General court, 

and Circuit courts of this Territory, 
P. shall not have, take, ask or demand any 

other, or greater fee or reward for ser- 
vices hereafter rendered in suits 
or proceedings, now depending, or here- 
after to be brought in the General or 
Circuit courts, than is, or shall by law 
be allowed to the respective Clerks of 
the courts of Common Pleas, of any 
county in this territory, except as now 

Except &e. excepted, that they shall respectively 

have and receive fifty cents, for any 
manner, or kind of writ, except spe- 
cial writs, for which he shall be allowed 



262 



C tame fees 
as elks of 



FEES 249 

such additional fee, as the court in their dis- 
cretion shall think reasonable, regard being had 
to the length thereof, which may be severally 
issued by them ; and the Clerk of the General 
court especially shall be allowed, ask, demand, 
and take for taking bond, on issuing writ of 
error, or supersedeas, seventy-five cents. 

The better to preserve the records and pro- 
ceedings of the several courts within this ter- elk. to mak* 
ritory, it shall be the duty of the clerk of the ff||7/ir'th " 
general court, and the clerks of the respective 
courts of Common pleas, on the final deter- 
mination of any suit to enter on record, in a 
book which they shall keep for that purpose 
all the proceedings and papers filed therein, 
proceeding had, and also the judgment therein 
at full length, for which services the clerk of 
the General court shall receive the same fee as 
is allowed to the Clerks of the courts of Com- 
mon pleas. 



Gg 



263 



250 



FEES. 



coroners fees 
the same in 
ail courts. 



Sec. 2. Be it further enacted, That the 
respective Sheriffs and Coroners of the several 
counties in this territory, shall not in like man- 
ner, receive or take, ask, or demand, any other 
or greater fee for services rendered by them 
respectively, in the general or circuit court, 
than is, or may be allowed by law for similar 
services in the courts of Common pleas. 



counsellors 
or attons. fees 



Sec. 3. Be it further enacted. That no 
attorney or counsellor at law, shall exact or 
demand any further or greater fees for services 
rendered either in the General court or court of 
Common Pleas, than the following viz. 



In all civil actions where the titles 
of land do not come in question 



2 50 



In all civil actions where the titles 

of lands do come in question 5 

For every verbal advice where suit 

is not depending 1 25 

For every written advice where 

suit is not depending 2 50 



264 



FEES 



251 



Sec. 4. Be it further enacted, That the 
clerk of the general court, if otherwise duly 
qualified and admitted according to law, shall 
be allowed and permitted to practise as attor- 
ney at law in the several courts of Common 
pleas of this territory. 



elk. of e.c. 
practice in 
inferior ert, 



Sec. 5. Be it further enacted, That the 
attorney general, or attorney prosecuting the 
pleas in the dtfferent counties shall not in like 
manner tax up, or charge any other or greater 
fee than hereafter immediately stated, to wit: 
Drawing up and attending to an indictment or 
presentment, five dollars; which fee may be 
received by the said attorney general, or at- 
torney prosecuting the pleas of the United 
States, in no other cases than where the defen- 
dant shall be lawfully convicted, when it shall 
be taxed in the bill of costs. 



Atte gen. 
or otto, pre 
secuting pleas 



Fees taxed 
on deft, if 
c nvlcted 



Sec. 6. Be it further enacted. That the 
Clerks of the several courts of Common pleas elks, of c.p. 
in their respective counties shall hereafter act "^Ci^* 
as clerks of the circuit courts, which may be 



265 



clout* 



252 FEES. 

holden therein, who shall receive such fees for 
their services as may, or shall be allowed by 
law. 

Sec. 7. And be it further enacted, That 
Rtpeoling all laws and parts of laws coming within the 

purview of this act, be, and the same are hereby 
repealed. 



AN ACT 

Concerning Clerks fees in the Court of Chan- 
cery and for other purposes. 

Passed Dec. 26, 1812. 

Be it enacted by the Legislative Council 
and House of Representatives, and it is hereby 
enacted by the authority of the same, That it 
shall be the duty of the clerk of the court of 



266 



FEES. 



253 



chancery to make up complete records of cases 
decided in the court of Chancery in the same 
manner as the clerks of the courts of common 
pleas and clerk of the general court, are now 
by law directed to do, and the clerk of the 
said court of chancery shall be entitled to charge 
demand and receive the same fees as in similar 
cases is allowed by law to the Clerk of the 
general court, and where the business shall be 
different from that contained in the bill of fees 
allowed to the clerk of the general court, the 
said court of chancery shall regulate the same 
and make a record thereof and the said clerk 
of the court of chancery shall put his fee bills 
into the hands of the Sheriffs of the several 
counties at the same time as other clerks are 
now by law required to do, which said bills 
shall be collected in the same manner as other 
officer's fees. 



clerk, of 
chancery to 
make up 
complete 
record 



To have same 
fees as elk. 
of gen court 



Fees how 
collected 



267 



254 



FEES. 

AN ACT 



To amend an act, entitled "An act regulating 
the Fees of the several Officers and persons 
therein named. 

Passed October 22, 1808. 



clerk to make 
fee bill with 
execution 



Sec. 1. 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 ter- 
ritory; and likewise that they are compellable 
by execution, to pay large sums of money for 
fees without for knowing what services they do 
pay: for remedy whereof; 

Be it enacted by the Legislative Council 
and House of Representatives, and it is hereby 
enacted by the authority of the same, That in 
all cases, or judgments upon which execution 
may, or shall hereafter be issued from any 
court of record in this territory, the clerk of 
the court from whence the same may so issue 



268 



FEES. 255 

shall, at the time of issuing thereof, make out 
under his signature, and deliver to the Sheriff 
or Coroner, as the case may be, with the exe- 
cution, a detailed bill of the costs in the said 
suit from its commencement to its termination 
in order that the party paying the same, may 
certainly know, with, & for what, he is charge- 
able; which said bill, the said officer, to whose Officer to re- 
hands the execution may so come, shall deliver ' ^ 
to the party against whom the execution may 
be, so soon, and upon his replevying for or 
paying the same, together with his certificate 
thereon, that the same was so replevied for, or 
paid by the said person. 

Sec. 2. And be it further enacted. That 
should any officer concerned in the issuing or 
executing any execution hereafter to be issued clerk or of- 
as aforesaid, fail in the duty enjoined upon u^*j q^j"o 
him, in the preceeding section hereof, they whose use 
shall severally, and respectively, forfeit and pay 
to the party, or person injured the sum of 
fifty dollars with costs, to be recovered 



269 



Compared with original 
act, & act as here given 
is complete. 

Nov. 16, 1889. 
W. L. Gross* 



iThere is no page 256, but in the edition belonging to the Illinois State 
Historical Library there is a blank page with the above note on it in pencil. 



270 



FEES. 257 

in any court of record in this territory, 
by indictment or information; and no 
imparlance or delay shall be allowed 
therein, any law usage or custom to the 
contrary thereof, in any wise notwith- 
standing. 

This act shall take effect, and be in 
force from and after the first day of 
November next. 



AN ACT 



Defining and explaining the fees of sheriffs 
and Clerks in certain cases. 

Passed December 20th 1814. 

Whereas unreasonable doubts have 
arisen relative to the amount of the 
sum which the sheriffs and clerks of the Preamble. 
General court or Supreme court are or 
hereafter may be legally entitled to re- 
ceive out of the county Treasury for 
their respective services in the public 
prosecutions of those persons who are 
either or may be acquitted of the charge 
or charges exhibited against them or 
discharged, or unable to pay the fees, 
and for the removal of all such doubts. 

H H 



271 



258 



FEES. 



Sheriffs & 
clerki shall 
receive buf 
50 Dells. 



Which is in 
lieu of fees 
chargeable 
to the Terrl- 
tery or coun- 

♦y. 



Sec. 1. Be it enacted by the Legisla- 
tive Council and House of Representatives, 
and it is hereby enacted by the authority of 
the same. That the sheriffs and clerks 
of the Supreme or General courts of 
the respective counties, shall not be en- 
titled to receive any compensation out 
of the said treasuries for any services 
they or either of them may render in 
any prosecutions in which the territory 
is party, but in lieu thereof each sheriff 
shall receive out of his own county trea- 
sury, the sum of fifty dollars annually. 
And each clerk of the General or Su- 
preme court, shall receive annually out 
of their respective county treasuries the 
sum of thirty dollars in full for all servi- 
ces of every description wherein the res- 
pective counties or territory may be 
chargeable to any of said officers. 



Witnesses, 
Jurors & 
Constables 
fees taxed in 
bill of costs. 



Sec. 2. Be it further enacted. That in 
all criminal cases, the witnesses and ju- 
rors and constables' fees shall be taxed 
in all bills of costs as in civil causes which 
shall be paid according to law. 



For replevy 
Bond what. 



Sec. 3. Be it further enacted. That up- 
on executing a writ of execution and 
taking a replevy bond thereupon the 
sheriff or coroner executing the same 
shall charge six cents per mile from the 
court house of his county to the place of 
actual service and also fifty cents for the 



272 



FEES. 



259 



replevy bond, but no more. And if 
any sheriff or coroner shall charge, de- 
mand, or receive any more or greater 
or other fees, he shall forfeit and pay to 
the party injured or attempted to be 
injured thereby, six dollars for every 
item so unjustly charged, demanded or 
taken by action of debt, before any 
court having jurisdiction thereof. 



Sec. 4. If there be more persons 
than one named in any writ or subpoe- 
na, the travel shall be computed from 
the court-house of the county of said 
sheriff to the place of service vi^hich 
shall be the most remote, adding thereto 
the extra travel, w^hich shall be necess- 
ary to serve it on the other or others; 
Provided always. That, that extra travel 
shall not exceed the distance between 
the place of service and the court House 
of said Sheriffs county, and it shall be 
the duty of said Sheriff or coroner to 
endorse on each writ or subpoena he 
may execute the distance he has travel- 
ed to execute the same regulating the 
calculation of the mileage thereof accor- 
ding to the provisions of this section, 
and it shall be the duty of the sheriffs to 
charge mileage to the place he actually 
executes any writ or subpoena and for 
no more, and if the sheriff or coroner 
shall charge, demand or receive more 
or greater or other fees than are hereby 



SheriflFa mil* 
ag*. 



Sheriff to In- 
dorse distance 
traveled. 



273 



260 FERRIES. 

allowed or if he shall not make his re- 
Penalty, turn as above directed, he shall fo feit 
and pay to the party injured or attemp- 
ted to be injured or who may by the 
event and termination of the suit be 
injured thereby for every item thus ille- 
gally charged or demanded or received, 
the sum of six dollars, to be recovered 
by action of debt by any person injured 
or attempted to be injured thereby, in 
any court having jurisdiction thereof. 
And if any sheriff or coroner shall ne- 
glect or refuse to make his return as 
above directed, on all writs and subpoe- 
nas, he shall forfeit and pay to the party 
injured thereby, who will sue for the 
same the sum of fifty dollars. 



FERRIES. 



AN ACT. 



To amend an act entitled "An actio estab- 
lish and regulate Ferries." 

Passed Dec 25, 1812. 

Sec. 1. Be it enacted by the Legisla- 



274 



FERRIES. 



261 



tive council and house of representatives 
and it is hereby enacted by the authori- 
ty of the same. That, all ferries es- 
tablished by the laws of Indiana are 
hereby declared established ferries in 
the Illinois Territory unless repealed. 

Sec. 2. And be it further enacted, 
That so much of the act to which this 
is a supplement as comes within the 
pervieu of this act shall be and the same 
is hereby repealed. 



AN ACT 



To establish and regulate Ferries. 

Passed Sept. 17 1807. 



Sec. 1. Whenever it shall be found 
necessary to establish a public ferry, 
over any river or creek within the 
Territory the court of common pleas 
of the respective counties, on due ap- 
plication to them made by the proprie- 
tor of land, on either side, may estab- 
lish and confirm the same by a special 
order for that purpose : Provided always. 
That no application shall avail the pro- 
prietor, unless his or her intentions re- 
lative thereto have been published in the 
public papers of the county, and if 
there be no public press in the county, 



Ferries to be 
established by 
tlie court of 
C. P. 



How to make 
application 
for a ferry. 



275 



262 



FERRIES 



then at least three of the most public 
places of the township, in which such 
ferry is proposed to be established, three 
months previous to the making of such 
application; and shall moreover have 
published his or her intention by adver- 
tisement, on the door of the court house 
of the proper county, for three days 
successively during the sitting of the 
court, within the time, above mention- 
ed. 



Courfs to fix 
the rate* of 
ferriage In 
their respec- 
tive counties 



Owner of a 
ferry to give 
bond. 



Sec. 2. The court of common pleas, 
in every county, shall be, and they are 
hereby empowered, authorised, and 
required, to fix from time to time, the 
rates, which each ferry keeper shall 
hereafter demand, for the transporta- 
tion of passengers, waggons or carria- 
ges, horses, cattle, &c. at any ferry, 
now or hereafter to be established in their 
respective counties within this territory, 
having due regard to the distance, 
which the ferry boats have to travel, the 
dangers or difficulties incident to the 
same, and the state and condition at the 
river or creek, over which such ferry 
is established, and the owner or owners 
of any such ferry or ferries ; shall within 
three months from the establishment 
of such ferry execute and deliver a 
bond, with one or more sufficient secu- 
rities, to the said court, in the penalty 
of one hundred dollars, payable to the 



276 



FERRIES. 



263 



Sheriff, as treasurer of the county or 
his successor in office, with a condition 
that he or she will keep such ferry, or 
cause the same to be kept according to 
law; and that he or she will give pass- 
age to all public messengers and ex- 
presses when required, from time to 
time without any fee or reward for the 
same; and if the condition of the said 
bond, shall at any time be broken, the 
penalty therein contained, shall be re- 
coverable with costs of suit, for the use 
of the county; and in case any such 
person shall neglect or refuse 
to give such bond, he or she shall for- 
feit and pay the sum of fifty dollars 
for every month's refusal or neglect, 
one half to the use of the person pro- 
secuting for the same, the other half to 
the use of the county. All expresses 
sent on public service, by a commander 
in chief, colonel, lieutenant colonel, 
major or commandant of any military 
post, to the governor, or commanding 
officer of the militia, shall be accounted 
public messengers and expresses, and 
shall pass ferry free, within the condi- 
tion and meaning of the bond afore- 
said, in case the dispatch carried by 
such express, be endorsed on "Public 
Service," and signed by the person sen- 
ding the same. 



The condi- 
tion. 



Penaity of 
foiiuro to 
give bend. 



Express &e. 
to pass ferry 
free. 



Ferry Iceeper 
to set up rote 
of ferriage 



Sec. 3. Every ferry keeper shall set 



277 



264 



FERRIES. 



Penalty for 
demanding 
higher rates. 



How recov- 
erable. 



Si, keep up, upon the margin of the riv- 
er or creek, opposite to the ferry place 
of every public ferry, a post or board, 
on which shall be written the rates of 
ferriage, of such ferry by law allowed ; 
and if any ferry keeper shall demand 
from any person a greater sum for the 
ferriage, than is or shall be allowed by 
the court of Common Pleas to such fer- 
ry keeper, such oflEender shall forfeit to 
the person so overcharged, the feriage 
demanded and received, and also two 
dollars with costs of suit, for every such 
offence, recoverable before any justice 
of the peace, within the township where- 
in the offence has been committed. 



To keep 
good and suf 
ficlent boats 
&c. 



Feries to be 
kept from 
day light till 
dark. 



When in the 
night. 



Sec. 4. Each and every ferry keeper 
shall keep a good and sufficient boat, or 
boats, if more than one be necessary, 
with a sufficient number of good and 
skilful men to navigate the same, and 
to give due attendance to the said ferry 
or ferries, and the transportation of all 
persons who shall apply for the same 
during the day time, that is to say, 
from day light in the morning until dark 
in the evening, that no unnecessary de- 
lay may happen to persons having oc- 
casion to use the same : Provided always. 
That all ferry keepers shall be obliged 
at any hour of the night, if required, 
except in case of evident danger, to 
give passage to all public expresses a- 



278 



FERRIES. 



265 



bove recited, and to all other persons 
requiring the same on their tendering 
and paying double the rate of ferriage 
allowed to be taken during the day 



Sec. 5. And for encouraging ferry 
keepers, and in consideration of setting 
over public messengers and the persons 
exempted by this act. Be it enacted. That 
all men necessarily attending on ferries 
in this Territory, shall be free from mil- 
itia duty, impressments, opening and re- 
pairing highways, so far as personal ser- 
vice is required, and from serving on 
juries, and if any person or persons oth- 
er than ferry keepers, licensed as afore- 
said, shall for reward set any person over 
any river or creek, where public ferries 
are appointed or established, at any 
place within five miles, of any such pub- 
lic ferry, he she or they so offending, 
shall forfeit and pay a sum not exceed- 
ing twenty nor less than five dollars, for 
every such offence; one moiety to the 
person prosecuting for the same, and 
the other moiety to the use of the coun- 
ty wherein the offence shall have been 
committed 



Ferry man 
exempt from 
militia duty. 



Penalty en 
keeping fer- 
riet withent 
license. 



Sec. 6. If any ferry or ferries, which When court 
now are, or may hereafter be establish- JIj^J, ferriet 



279 



266 



FERRIES. 



ed, shall not be furnished with necessa- 
ry boat or boats, and ferrymen, within 
the space of six months after the est - 
blishment thereof, or shall at any time 
hereafter, be wholly disused or unfre- 
quented for the space of one year, it 
shall and may be lawful for the court 
of Common Pleas for the county in 
which such ferry or ferries shall be, on 
complaint to them made, to summon 
the proprietor or proprietors of the 
same, to shew cause, why it should not 
be discontinued, and to decide according 
to the testimony adduced, which deci- 
sion shall be valid in law. 



Ferries kept 
under licen- 
se from tlie 
governor 
continued 
&c. 



Sec. 7. It shall and may be lawful 
for any ferry keeper, to take into his 
or her boat or boats, any passenger or 
passengers, carriages, waggons, horses, 
or cattle, of any kind whatsoever, to 
convey them over, and to receive the 
ferriages for the same agreeably to the 
rates established by the courts of Com- 
mon Pleas: Provided nevertheless, That 
all ferries now kept by license from the 
Governor, shall be, and are hereby de- 
clared to be established ferries : Provided, 
The owner or owners of such ferries, 
have the license recorded in the recor- 
ders office in each county, wherein the 
ferry or ferries are, within three 
months after the taking effect of this act, 
subject to the same rules, regulations. 



280 



FERRIES. 267 

and restrictions, as are herein contain- 
ed. 

See acts 1812 and 1814. 



AN ACT. 



For thereleif of the legal Representatives 
of Alexander Wilson deceased. 

Passed Nov. 28, 1814. 

Whereas it appears to this Legisla- 
ture that William H. Harrison Esquire 
during the time he acted as Governor 
in and over the Indiana Territory and 
as superintendent of the United States 
Saline w^ithin the same while this Terri- 
tory was an integral part of that, did Preamble. 
grant a permission to a certain individu- 
al to occupy and keep a public ferry at 
the place now called Shawanoetown 
which said permission being unrevoked 
after the erection of this Territory 
into a separate Government was with 
all the previleges, & subject to all the 
conditions appertaining thereto, purcha- 
sed by Alexander Wilson deceased for 
a large sum of money which was paid 
and satisfied by said Wilson, who also 
before the establishment of Gallatin 
County obtained an order of from the 



281 



268 



FERRIES 



Court of Randolph County establishing 
and granting said ferry to himself which 
he continued to hold, occupy and use 
as such until his death, and which has 
since been so held occupied and used by 
his legal Representatives. And where- 
as d ubts have arisen as to the legality 
of t e establishment of said ferry or the 
right of the legal Representatives to 
hold the same in consequence of the 
margin of the Ohio River at Shawanoe- 
town where said ferry was established 
being according to the plan of said 
town public ground and unappropriated 
to any individual. For remedy where- 
of and to settle all disputes relative 
thereto. 



Ferry at 
Shawnoetown 
granted. 



Rules and 
regulations 
of it. 



Sec. 1. Be it enacted by the Legis- 
lative Council and House of Represen- 
tatives and it is hereby enacted by the 
authority of the same that the aforesaid 
ferry on the Ohio River at Shawanoe- 
town shall be and hereby is confirmed 
to the legal representatives of said Alex- 
ander Wilson deceased with all the 
emoluments advantages and previleges 
that can be granted to any individual 
under the existing law relative to ferries 
but nevertheless it shall be subject in 
the hands of said representatives to all 
the rules regulations and penalties to 
which ferries legally established by 
courts are subject. This act shall take 



282 



FERRIES. 



269 



effect and continue in force from and 
after the passage thereof. 



AN ACT 



To amend an act entitled "an act to amend 
an act entitled an act to establish and re- 
gulate ferries," 

Passed December 22, 1814. 



Sec. 1. Be it enacted by the Legis- 
lative council and House of Represen- 
tatives, and it is hereby enacted by the 
authority of the same, That so much 
of the act entitled "an act to amend an 
act, entitled an act to establish and re- 
gulate ferries" as declares that no fer- 
ry shall be established by the court of 
Common Pleas in any county in this 
Territory, across the Ohio and Missis- 
sippi rivers within less than tw^o miles 
of an established ferry, shall be and the 
same is hereby repealed. 



Repeals for- 
mer law, 



Sec. 2. That in all future cases the 



County 



county courts may grant any ferry ac- '*^'K|j''|f^ 
cording to law, that the respective ries. 
county courts in their several counties 
may deem necessary. 



283 



270 FINES & FORFEITURES. 



FINES & FORFEITURES. 



AN ACT 

Concerning fines and forfeitures. 

Passed Dec. \st 1813. 

Be it enacted by the Legislative coun- 
cil and House of Representatives, and 
it is hereby enacted by the authority of 
the same, That all fines and forfeitures 
FInet &c. to that may hereafter be recovered in the 
go to county, respective courts of Common Pleas shall 
be appropriated in behalf of the county 
levy in each county in which such fine 
and forfeiture shall be recovered, any 
law to the contrary notwithstanding. 
This act to commence and be in force 
from and after the passage thereof. 



284 



Firing of Woods and Prairies. 27 1 



Firing of Woods and Prairies. 



AN ACT 



&e. fined 
and in what 
sum. 



Regulating the firing of Woods, Prairies 
and other lands, 

Passed Sept. 17, 1807. 

Sec. 1. Whosoever shall at any time, 
except as is herein after excepted, wil- firing woods 
fully or negligently set on fire or cause 
to be set on fire, any woods, prairies or 
other grounds, whatsoever within this 
Territory, and being thereof legally 
convicted by the oath or affirmation of 
one or more credible witnesses, in any 
court having cognizance of the same, 
shall pay a fine not exceeding one hun- 
dred dollars, nor less than five dollars; 
the one half of which to be paid to the 
person prosecuting for the same and the Hew paid. 
other half to the use of the county 
wherein the offence shall have been 
committed. 

Sec. 2. When any person or persons jo mako 

so offending, shall thereby occasion any 9006 ali do 
loss, damage or injury to any other per- 



285 



272 Firing of Woods & Prairies. 

son or persons, every person so offend- 
ing, shall be, and is hereby declared lia- 
ble to make good all damages to the 
person or persons injured, with costs of 
suit, in any court having cognizance of 
the same. 



Servant hew 
punished. 



When any servant or servants shall 
offend against the tenor of this law, & 
being duly convicted of the same, ex- 
cept his, her or their master or mistress 
shall pay the fine herein above pro- 
vided, with damages and costs for said 
offence, then such servant or servants, 
so offending, shall be whipped not ex- 
ceeding thirty nine stripes, at the discre- 
tion of the court having cognizance 
thereof. 



Proviso. 



What time 
to fire prai- 
ries. 



Sec. 4. Nothing in this act shall be 
so construed as to prevent any person 
or persons from setting on fire any rub- 
bish, leaves or brush, on his, her or their 
farms or plantations as often as occasion 
may require, if the same be done with- 
out damage to the property of any other 
person or persons: Provided also, That 
nothing in this act shall be so construed, 
as to prevent any person or persons 
from setting on fire prairies or cleared 
land, between the first day of Decem- 
ber and the tenth day of March, if the 
same be done without damage, as a- 
foresaid. 



286 



Forcible Entry & Detainer. 273 



FORCIBLE ENTRY AND DE- 
TAINER. 



AN ACT. 

Against forcible entry and detainer. 

Passed Sept. 17, 1807 

Sec. 1. TWO Justices of the peace 
shall have authority to enquire by jury, 
as is hereinafter directed, as well against 
those who make unlawful and forcible 
entry, into lands or tenements, and with 
a strong hand detain the same, as against 
those who having lawful and peaceable 
entry into lands or tenements, unlaw- 
fully and by force hold the same; and 
if it be found upon such enquiry that 
an unlawful and forcible entry hath 
been made, and that the same lands or 
tenements are held and detained with 
force and strong hands, or that the same 
after a lawful entry are held unlawfully 
and with force and strong hand, then 

K K 



Two justices 
may enquire 
by fury and 
order restitu- 
tion of lands 
&e. uniaw« 
fully with- 
held. 



287 



274 Forcible Entry & Detainer. 

such justices shall cause the party com- 
plaining to have restitution there- 
of. 



Juttiees on a 
written com- 
plaint of un- 
lawful detai- 
ner of lands, 
&e how to 
proceed. 



Warrant to 
impannel a 
|nry of free- 
holders. 



Sec. 2. When complaint shall be 
formally made in writing to any two 
justices of the peace of any unlawful and 
forcible entry into any lands or tene- 
ments and detainer as aforesaid, or if 
any unlawful and forcible detainer of 
the same after a peaceable entry, they 
shall make out their warrant under 
their hands and seals, directed to the 
Sheriff (or as the case may be) the 
Coroner of the same county, comman- 
ding him to cause to come before them, 
twelve good and lawful men of the 
same county, each one of whom having 
freehold lands or tenements, and they 
shall be impannelled to enquire into the 
entry, or forcible detainer complained 
of, which warrant shall be in the form 
following, mutatis mutandis. 



H. 



Sc. 



Form of the 
warrant. 



AB, and CD, esquires two of the jus- 
tices assigned to keep the peace within 
and for the said county, to the 
of H. greeting whereas complaint 
is made to us by E F, of in the 

county aforesaid that G H, of 
yeoman upon the day of 

at aforesaid with force 



288 



Forcible Entry & Detainer. 275 

and arms, and with a strong hand, did 
unlawfully and forcibly enter into and 
upon a tract of land of him, the said E 
F, in aforesaid containing 

acres, bounded as follows, viz (or into 
the messuage and tenement of him, the 
said E F, as the case may be) and him 
the said E F, with force and a strong 
hand, as aforesaid, did expel and un- 
lawfully put out of the possession of the 
same (for if it is a forcible detainer only 
then the entry shall be described, and 
the detainer inserted as follows) and 
the said E F, does unlawfully, unjustly, 
and with a strong hand deforce and still 
keep out of the possession of the same; 
you are therefore commanded on behalf 
of the United States, to cause to come 
before us upon the day of 

at the in the said coun- 

ty, twelve good and lawful men of 
your county, each one of whom being 
a freeholder, to be impannelled and 
sworn to enquire into the forcible entry, 
and detaier, (or for the detainer only) 
before described ; given under our 
hands and seals the day of 

in the year 

A B. ) Justices of the 
C D. 5 Peace. 

Sec. 3. And the said justices shall 
make out their summons to the party 



289 



276 Forcible Entry & Detainer. 

complained against, in the form follow- 
ing: 



L. S. ) 
L. S. \ 



Sc. 



Form of the 
summons to 
the party 
complained 
of. 



A B and C D, two of the justices 
assigned to keep the peace, within and 
for said coun y of to the 

of greeting: Summons G H, of 

to appear before us at in 
the said county at o'clock in the 

noon then and there to answer 
to and defend, against the com- 

plaint of E F, to us exhibited, wherein 
he complains that (here the complaint 
shall be recited) and you are to make 
to us a return of this summons with 
your proceedings therein, on or before 
the said day. Witness our hands and 
seals the day of in the year 

of 



A B, 
C D, 



Justices. 



Summonses 
how to be 
served. 



Which summons shall be served upon 
the party complained against, or a copy 
thereof left at his usual place of abode, 
seven days exclusively, before the day 
appointed by the justices for the t ial; 
and if after the service of such sum- 
mons, the party do not appear to de- 



290 



Forcible Entry ^ Detainer. 277 

fend, the justices shall proceed to the 
enquiry in the same manner as if he 
were present, and when the jury shall 
appear, the Justices shall lay before the 
jury the exhibited complaint, and shall 
administer the following oath to them, 



foreman's oath 



You as foreman of this jury do so- 
lemnly swear (or affirm) that you will 
well and truly try whether the com- 
plaint of E. F. now laid before you is 
true, according to your evidence, so 
help you God, [if swearing.] 



Jurors oath. 



THE OTHER JURORS' 

OATH, viz. 

The same oath or (affirmation) that 
your foreman hath taken on his part, 
you, and every of you shall well and 
truly observe, and keep, so help you 
God. And if the jury shall find the 
same true then they shall return their 
verdict in form following — 



At a court of enquiry held before A 
B, and C D, esquires, two Justices as- 
signed to keep the peace, within and 
for the county of H at 

in the said county of H 
upon the day of 



Form of the 
verdict. 



291 



278 Forcible Entry & Detainer. 

in the year the jury upon 

their oath or affirmation, as aforesaid, hat 
tenements in aforesaid, boun- 

ded or described as follows 
(as in the complaint) upon the day 

of in the year 

were in the lawful and rightful posses- 
sion of the said E. F, and that the said 
G H, did upon the same day, unlawful- 
ly with force and arms, & with a strong 
hand, enter forcibly upon the same; or 
being lawfully upon the same, did un- 
lawfully with force and strong hands, 
expel and drive out the said E F, and 
that he doth still continue wrongfully 
to detain the possession from him, the 
said E F, wherefore the jury find upon 
their oath or affirmation, as aforesaid, hat 
the said E F, ought to have restitution 
thereof without delay. 



Where pan- 
nel is incom- 
plefe, then to 
be filled by a 
tales. 

All jurors to 
sign verdict 
for complai- 
nant, ether- 
wise costs to 
defendant. 

On verdict 
for complai- 
nant judg- 
ment to be 
entered up & 
a writ of res- 
titution. 



If by accident or challenge, there 
shall happen not to be a full jury, the she- 
riff shall fill the pannel by tales, as in 
other cases; and if the jury after a full 
hearing of the cause, shall find the com- 
plaint laid before them supported by 
evidence, they shall all sign their ver- 
dict in form aforesaid, otherwise the 
defendant shall be allowed his legal 
costs, and have his execution thereof. 

If the jury shall return their verdict 
signed by the whole pannel, that the 
complaint is supported, the justices shall 



292 



Forcible Entry & Detainer. 279 

enter up judgment for the complainant 
to have restitution of the premises; and 
shall award their writ of restitution ac- 
cordingly, and no appeal shall be al- 
lowed from the judgment of the justi- 



Sec. 4. Provided nevertheless, That the 
proceeding may be removed by Certiora- 
ri into General court or Circuit court, 
holden in such county, and be there 
quashed for irregularity, if any such 
there may be, nor shall such judgment 
be a bar to any after action brought by 
either party; which writ of restitution 
shall be in form following: 



No appeal 
from iusticei 
judgment. 



H 



Sc. 



L S. 



L. S. 



A B and C D, two of the justices as- 
signed to keep the Peace in, and for the Appeal to 
said county, to the of H 

greeting: 



Certiorari. 



Whereas at a court of enquiry, of 
forcible entry and detainer, held before 
us at in the said county of 

upon the day of in the 

year the jurors empannel- 

led and sworn according to law did re- 
turn their verdict in writing signed by 
each of them, that E F, was upon the 



293 



280 Forcible Entry ^ Detainer. 

day of in 

the rightful possession of a certain mes- 
suage or tract of land, (as in the ver- 
dict returned) and that &c. (as in the 
verdict) whereupon it was considered 
by us, that the said E F should have 
restitution of the same: We therefore 
require you that taking with you the 
force of the county, if necessary; you 
cause the said G H, to be forthwith 
removed from the premises, and the 
said E F, to have the peaceable restitu- 
tion of the same, and also that you levy 
of the goods, chattels, or lands of the 
said G H, the sum of being costs taxed 

against him on the trial aforesaid, to- 
gether with more for this writ, 
and your own fees, and for want of 
such goods, chattels or lands, of the 
said G H, by you found, you are com- 
manded to take the body of the said 
G H, and him commit to the common 
jail of the said county, there to remain 
until he shall pay the sum aforesaid, to- 
gether with all fees arising on the ser- 
vice of this writ, or until he be deliver- 
ed by due course of law, and make re- 
turn of this writ with your proceedings: 
Witness our hands and seals at 
aforesaid the day of in the 
year 



A B 
C D, 



Justices. 



294 



FRAUDS & PERJURIES. 281 



Provided nevertheless. That this law 
shall not extend unto any person who 
hath had the occupation, or been in the 
quiet possession of any lands or tene- 
ments by the space of three whole 
years together, next before, and whose 
estate therein is not ended or deter- 
mined. 



Proviso. 



As to three 
years quiet 
possession. 



FRAUDS & PERJURIES. 



A LAW 



To prevent Frauds and Perjuries, adopted 
from the Kentucky Code. 

Passed July. 21, 1809. 

Sec. 1. Be it enacted by the Gover- 
nor and Judges of the Illinois Territo- 
ry and it is hereby enacted by the au- 
thority of the same. That no action 
shall be brought whereby to charge any 
executor or administrator upon any 

Ll 



295 



282 FRAUDS & PERJURIES. 



Certain con- 
tracts void 
unless in wri- 
ting. 



special promise to answer any debt or 
damages, out of his own estate or 
whereby to charge the defendant upon 
any special promise to answer for the 
debt, default or miscarriage of another 
person, or to charge any person upon 
any agreement made upon consideration 
of marriage, or upon any contract for 
the sale of lands, tenements or heredita- 
ments, or the making any lease thereof 
for a longer term than one year, or 
upon any agreement which is not to be 
performed within the space of one year 
from the making thereof unless the 
promise or agreement, upon which such 
action shall be brought, or some memo- 
randum or note thereof shall be in 
writing and signed by the party char- 
ged therewith, or some other person by 
him thereunto lawfully authorised. 



Ail eenvey- 
onees sales 
and gifts 



fraud credit- 
ors void as to 
creditors. 



Sec. 2 Every gift, grant, or convey- 
ance of lands, tenements, heredita- 
ments, goods or chatties or of any 
rent, common or profit of the same, by 
writing or otherwise, and every bond 
suit, judgment or execution had, and 
made or contrived of malice, fraud, 
covin, collusion or guile to the intent 
or purpose to delay hinder or defraud 
creditors of their just and lawful actions, 
suits, debts, accounts, damages, penal- 
ties or forfeitures, or to defraud or 
deceive those who shall purchase the 



296 



FRAUDS & PERJURIES. 283 



same lands, tenements, or heredita- 
ments or any rent, profit or commo- 
dity out of them shall be from thence- 
forth deemed & taken (only as against 
the person or persons his, her, or their 
heirs, successors, executors, administra- 
tors or assigns and every of them, whose 
debts, suits, demands, estates and inter- 
est by such guileful and convinous de- 
vises and practices as aforesaid, shall or 
might be in any wise desturbed, hindered, 
delayed or defrauded) to be clearly and 
utterly void ; any pretence, color, 
feigned consideration, expressing of use 
or any other matter or thing to the 
contrary notwithstanding, and more- 
over if a coveyance be of goods and 
chattels and be not on consideration 
deemed valuable in law; it shall be 
taken to be fraudulent within this act, 
unless the same be by will duly proved, 
and recorded, or by deed in writing 
acknowledged or proved, if the same 
deed includes lands also, in such man- 
ner as conveyances of land are by law 
directed to be acknowledged, or pro- 
ved, or if it be goods and chattels only, 
then acknowledged or proved by two 
witnesses in any court of record in the 
county, wherein one of the parties lives 
within eight months after the execution 
thereof, or unless possession shall really 
and bona fide remain with the donee, 
and in like manner where any loan of 



Good and 
valid against 
the donor or 
vendor. 



Wliat Is re- 
quired to 
malce tlie 
conveyance 
good. 



297 



284 FRAUDS & PERJURIES. 

goods and chattels shall be pretended to 
have been made to any person with 
whom, or those claiming under him, 
possession shall have remained by the 
space of five years, without demand 
made and pursued by due process at 
law, on the part of the pretended len- 
der, or where any reservation or limita- 
tion shall be pretended to have been 
made of an use or property by way of 
condition, reversion, remainder or other- 
wise in goods and chattels, the possession 
whereof shall have remained in another 
as aforesaid, the same shall be taken as 
to the creditors and purchasers of the 
persons aforesaid so remaining in poss- 
ession to be fraudulent within this act, 
and that the absolute property is with 
the possession, unless such loan, reserva- 
tion or limitation of use or property 
were declared by will or deed in writing 
proved and recorded as aforesaid. 

Sec. 3. This act shall not extend to 
any estate or interest in any lands, goods 
Restriction. or chattels or any rents, common or 
profit out of the same, which shall be 
upon good consideration and bona fide 
lawfully conveyed or assured to any 
person or persons, bodies politic or cor- 
porate. 



298 



HORSES. 
AN ACT 



285 



For improving the breed of Horses. 

Passed Sept. 17, 1807. 



Sec. 1. It shall and may be lawful 
for any person or persons, to take up, 
and cut or geld, at the risk of the own 
er, any stone horse of the age of twelve 
months and upwards, that may be 
found running at large, out of the en- 
closed ground of the owner or keeper, 
& if the said horse should happen to die 
he shall have no recourse against the 
person or persons who shall have so taken 
up or gelded the said horse ; & the own- 
er of the said horse shall moreover pay 
to the person who has so taken up and 
cut or gelded the said horse or caused it 
to be done, the sum of three dollars, to 
be recovered before any Justice of the 
Peace of the county. 



Stone horses 
above a year 
old, running 
at large to 
be taken up 
& cut or gel- 
ded. 



Horse dying 
loss of own- 



Wlio shall 
pay for cut- 
ting 3 dolls. 

How recover 
able. 



Sec. 2. It shall not be lawful for any 
person to cut, or geld any horse above 
fourteen and one half hands high, that 
is known to be kept for covering mares ; 
but if any owner or keeper of a cover- 
ing horse, shall wilfully or negligently 
suffer said horse to run at large, out of 
the enclosed lands of the owner or keep- 
er, any person may take up said horse 
and carry him to his owner or keeper, 



Provision in 
favor of stud 
horses above 
14 1 2 hands 
high running 
at large, and 
proceedings 
in such cases. 



299 



286 IMPEACHMENT. 

for which he shall receive two dollars, 
recoverable before any justice of the 
peace of the county ; for a second of- 
fence double the sum, and for a third 
offence the said horse may be taken and 
cut or gelded, as is provided in the 
first section hereof. 



IMPEACHMENT. 



AN ACT 

Directing the manner of proceeding in cases 
of Impeachment. 

Passed Sept. 17 1807. 

Sec. 1. All civil officers holding any 

commission under the authority of this 

H. R. to territory shall be impeachable by the 

procure \m- House of Representatives, either for 
peachments , , . . . . . , . 

4c. . rnal admmistration or corruption m his 

office, such impeachment shall be pros- 
ecuted by the Attorney General, or 
such other person or persons as the 
house may appoint. 



300 



INDIANS. 



287 



Sec. 2. The Legislative Council shall 
have the sole power to try all impeach- 
ments, when sitting for that purpose, 
they shall be on oath or affirmation, 
and no person shall be convicted with- 
out the concurrence of two thirds of 
the members present. 



L. C to try 
impeachtf. 
be en oath. 



Sec. 3. Judgment in case of im- 
peachment, shall not extend further 
than to removal from office, and to 
disqualification to hold and enjoy any 
office of honor, trust or profit under 
this territory, but the party convicted, 
shall nevertheless be liable and subject 
to indictment, trial, judgment, and pun- 
ishment according to law. 



Judgt. to ex* 
tend to re- 
moval &c. 



INDIANS. 



AN ACT 



Prohibiting the sale of Ardent Spirits, and 
other Intoxicating Liquors to Indians, 

Passed Sept. Mth, 1807. 



Sec, 1. It shall and may be lawful 
for the Governor of this Territory, and 
he is hereby authorised and empowered. 



Governor to 
issue his pro- 
clamation. 



301 



288 



INDIANS. 



during the sitting of any council, or 
holding any public treaty or confer- 
ence, with any Indian nation or tribe, 
to prohibit, by proclamation, the sale 
or other disposition of any ardent spir- 
its, or other intoxicating liquors, to 
any Indian or Indians, by any person or 
persons, for any purpose, or under any 
pretence whatsoever, within thirty miles 
of the place of holding such council, 
treaty, or conference. 



OfFenders to 
be fined &c. 



Sec. 2. If any person shall not strict- 
ly observe whatever restrictions may be 
imposed under the authority aforesaid, 
he, she or they so offending, shall, on 
conviction, by indictment, or prosecu- 
tion, be fined in a sum not exceeding 
five hundred dollars, 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. 



Mediately or 
immediately 
selling or giv 
ing to Indi- 
ans be fined. 



Sec. 3. If any trader or other per- 
son whosoever, residing in, coming into, 
or passing through the said Territory, 
or any part thereof shall presume to 
furnish, vend, sell or give, or shall pro- 
cure 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 Ter- 
ritory, or waters adjoining to, or boun- 



302 



INDIANS. 



289 



ding the same, any Rum, Brandy, 
Whiskey, or other intoxicating liquor, 
or drink, he, she or they so offending, 
shall, on conviction, by presentment or 
indictment, forfeit and pay, for every 
such offence, any sum not exceeding 
one hundred 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 Su- 
perintendent, or Agent of Indian af- 
fairs, or commissioner plenipotentiary 
for treating with Indians. 



Net to im. 
pair or wea- 
ken author- 
ity vested in 
agt. of Ind- 
ian affairs. 



The third section of this act shall com 
mence and be in force, when, and as 
soon as the Governor of this territory 
shall be officially notified, that the states 
of Ken ucky and Ohio, and the territo- 
ries of Louisiana, and Michigan, have 
passed, or shall pass laws prohibiting the 
sale or gifts of intoxicating liquors to 
Indians, within their respective states & 
territories: and it shall continue in 
force so long as the said acts made or to 
be made in the said states or territories, 
shall continue in force therein. 



Wlien 3rd 
see to be In 
force. 



Continue in 

force 

time. 



See acts 1813 and 1814. 



M M 



303 



290 



INDIANS. 



AN ACT 
Prohibiting the trading with Indians, &c. 
Passed December 8, 1813. 



Preamble. 



No person to 
sell whiskey 
to Indians. 



Whereas it has been represented by 
the Executive of this Territory, and the 
Chief of the tribe of the Kaskaskia In- 
dians, that the vending of ardent spirits, 
and other intoxicating liquors, to the 
Indians of the said tribe is productive of 
great evils to the community and of se- 
rious injury to the said tribe, and that 
to tolerate the purchase of arm , cloth- 
ing, horses, and other articles necessary 
for their use, and comfort, would tend 
to encourage intemperance & wretch- 
edness to which these unfortunate be- 
ings are hastening, for remedy whereof: 

Sec. 1. Be it enacted by the Legis- 
lative council and House of Represen- 
tatives, and it is hereby enacted by the 
authority of the same, That if any tra- 
der or other person whosoever residing 
or coming into, or passing through the 
said territory, shall presume to furnish, 
vend, or sell, or shall procure to be 
vended or sold upon any account what- 
ever to any Indian or Indians being 
within this territory or waters adjoin- 
ing to the same, any brandy, rum, whis- 
key or other intoxicating liquor, he, 



304 



INDIANS. 



291 



she or they so offending shall on con- 
viction of the same, by presentment or 
indictment, forfeit and pay for every 
such offence, any sum not exceeding 
twenty dollars, nor less than five; one 
half to the use of the territory, and the 
other half to the informer. 



Sec. 2. Be it further enacted. That 
if any person or persons, shall purchase 
or receive of any Indian in the way of 
barter, or trade a gun or other article 
commonly used in hunting, or any in- 
strument of husbandry or cooking uten- 
sil, or clothing or horse, shall forfeit 
and pay any sum not exceeding fifty 
dollars nor less than ten, to the use of 
the territory, to be recovered as is di- 
rected in the former section, one half to 
the use of the territory and the other 
to the use of the informer — Provided, 
that nothing herein contained shall be 
so construed as to restrain any person 
from trading with Lewis Decoigne, the 
chief of the Kaskaskia Indians, for any 
article that he may deem necessary in 
behalf of said tribe, nor so as to impair or 
weaken the powers and authority that 
now, or at any time hereafter may be 
vested in the governor, or other person, 
as superintendent or agent of Indian af- 
fairs, or commissioner plenipotentiary 
for treating with Indians, within this 
territory. 



No person to 
purchase gun 
or other ar- 
ticle of Indi- 
ans. 



Penalty. 



Proviso. 



This act to be in full force from and 
after the first day of January next. 



305 



292 



INDIANS. 



AN ACT 



To promote retaliation upon hostile Indians. 



Passed Dec. 24, 1814. 



Preamble. 



Whereas the hostile incursions of the 
savages and their indiscriminate slaugh- 
ters of men women and children, have 
been often repeated under circumstan- 
ces aggravating the horror of such san- 
guinary scenes and producing great af- 
fliction and distress among the inhabi- 
tants of this territory. 



And whereas nothing is so well cal- 
culated to check the progress or pre- 
vent the repetition of those attacks on 
the part of those blood thirsty monsters 
as successful pursuit and retaliation upon 
them; to effect which it becomes expe- 
dient to offer sufficient encouragement 
to the bravery and enterprize of our 
fellow-citizens, and those other persons 
now engaged or that hereafter may be 
engaged in the defence of our frontier 
Therefore. 



Persons who 
may pHrsue 
Indians and 
kill any hew 
rewarded. 



Sec. 1. Be it enacted by the Legisla- 
tive Council and house of Representatives 
and it is hereby enacted by the authority 
of the same, That if any Indian or 
Indians shall hereafter make an incur- 
sion into our settlements with hostile 



306 



INDIANS. 



293 



intentions and shall commit any mur- 
der or depredation, and any citizen or 
citizens or rangers or other persons en- 
gaged in the defence of our frontier 
shall pursue and overtake and take pris- 
oner or prisoners or kill any indian or 
indians that may have so offended such 
person or persons shall if they be citizens 
merely receive a revrard for 
each indian so taken or killed the sum 
of fifty dollars and if they be rangers or 
other persons actually at that time en- 
gaged in the defence of our frontier, 
such person or persons shall be entitled 
to a reward of twenty five dollars. 



If rangers 
how rewar- 
ded 



Sec. 2 Be it further enacted that if 
any party of citizens having first ob- 
tained permission of the commanding 
officer on our frontier to go into the 
territory of any hostile indians shall 
perform any such tour and shall kill any 
Indian Warrior, or take prisoner any 
Squaw or child in the country of said 
hostile indians such person shall be en- 
titled to a reward of one hundred dol- 
lars for each indian warrior killed and 
each squaw or child taken prisoner. 



Citiient ma- 
king incur- 
sions into the 
Indian coun 
try and kil- 
ling men or 
taking wo- 
men & 
children pri 
soners how 
rewarded. 



Sec. 3 Be it further enacted that if 
any party of Rangers or other persons 
now engaged or that may hereafter be 
engaged in the defence of our frontier, 
not exceeding fifteen in number shall 



307 



INDIANS. 



294 



with the leave of the officer make a vol- 
untary incursion into the country of 
any hostile indians and shall kill any 
indian warrior or warriors, or take and 
bring away any squaw or squaws child 
or children, in and from the country of 
said indians such persons as aforesaid 
shall be entitled to a reward of fifty 
dollars for each indian warrior killed as 
aforesaid, and each squaw or child so 
taken prisoner. 



Proofs to be 
made to the 
Judges of 
county court 



Auditor to 
draw on 
treasurer. 



Sec. 4. Be it further enacted that proof 
of any of the before mentioned facts to 
entitle any person or persons to the re- 
ward given by this law shall be made 
before the judges of any county court, 
or any two of said judges who upon full 
proof being made before them, shall 
certify the same to the auditor of pub- 
lic accounts who shall audit the amount 
due to such person or persons and give 
to him or them a warrant on the Trea- 
surer for the amount thereof which 
shall be paid out of any money in the 
public treasury. This act shall com- 
mence and be in force from and after 
the passage thereof. 



308 



INDIANS. 



295 



AN ACT 
Concerning the Kaskaskia Indians, 

Passed December 22, 1814. 



Whereas a former law of this Legis Preamble. 
lature has been found insufficient to pre- 
vent evil disposed persons from selling 
and giving intoxicating drinks to the 
Kaskaskia Indians, or from cheating and 
defrauding the said Indians, out of their 
property by pretended or real purchas- 
es, and whereas the former practice is 
productive of disorder, and other per- 
nicious consequences, and the latter a 
violation of moral justice and good po- 
licy — for remedy thereof: 

Sec. 1. Be it enacted by the Legis- 
lative Council and House of Represen- 
tatives, and it is hereby enacted by the 
authority of the same. That if any white 
person or free person of colour either 
male or female shall hereafter without 
license from the Governor as superin- 
tendent of Indian affairs within this ter- 
ritory or from some sub-agent appoin- 
ted by him, either sell or give to any 
Kaskaskia Indian or any other Indian, re- 
siding with them any quantity of whiskey, 
gin, brandy, rum, cider or any other in- 
toxicating drink, such person so offending 
shall forfeit and pay twenty dollars to 
be recovered upon warrant before any Penalty wh 
Justice of the peace, who shall upon con- 



Persons pre 
hibited from 
giving wbis 
key to the 
Indians. 



309 



296 



INDIANS. 



Hew recover 
ed. 



viction of such offence, issue execution 
returnable in thirty days against either 
the body or goods of such offender as 
may be required of the said justice of 
the peace, and upon such execution 
there shall be no security whatever ta- 
ken. 



Slave so of- 
fending. 



Hew puniih 



Owner or 
other person 
may pay the 
money for 
them. 



Sec. 2. If either of the offences sta- 
ted in the above section, shall be com- 
mitted by any negro or mulatto being 
the slave or servant of any person what- 
ever, it shall be the duty of a justice of 
the peace upon application to him 
made according to law to issue his war- 
rant against such negro or mulatto and 
upon proof of the offences above mention- 
ed or either of them having been commit- 
ted by said negro or mulatto, the justice 
of the peace before whom such proof 
may be made shall order him or her so 
offending to receive on his or her bear 
back if for the first offence fifteen lashes 
and for every subsequent offence of like 
kind, double that number. Provided, how, 
ever. That the said corporal punishment 
shall not be inflicted if the owner or 
any other person will in behalf of said 
negro or mulatto, pay the sum of twenty 
dollars for each offence respectively. 



Sec. 3. That it shall not be lawful 
for any person whatever without license 
from the Governor or some sub-agent 
appointed by him to purchase or receive 



310 



INDIANS. 



297 



by gift or other wise of any of the before 
mentioned Indians, any horse mare, gun 
tomahawk, knife, blanket, shrouding, 
cah'co, saddle, bridle, or any goods wares 
or merchandize whatever, that all 
such sales and purchases or gifts shall be 
considered as fraudulent on the part of 
the buyer or receiver and that any 
white person or free person of coulour 
whatever so buying or receiving any 
such articles of any one of those Indians 
shall be liable to pay a fine of twenty 
dollars to be recovered before a justice 
of the peace, who shall upon conviction 
of any such offender, issue execution in 
like manner as is directed in the first 
section of this act, and the said offender 
shall restore the article or articles so 
bought or received and shall moreover 
be liable to a suit in the supreme court 
for the fraud of buying or receiving any 
such article aforesaid whatever the 
amount of value thereof may be and in 
all cases of judgment against him or 
her, he or she shall pay the costs. 



Persons for 
bidden to 
purchase 
arms ftc. 
other proper* 
ty from them 



The sale void 



Fine for so 
doing. 



How recov- 
ered. 



Sec. 4 If either of the offences sta- 
ted in the last preceding section of this 
act shall be committed by any negro, or 
mulatto being the slave or servant of 
any other person the said negro or mu- 
latto so ollFending shall be subject to the 



Slaves so of 
fending. 



N N 



311 



298 



INDIANS. 



Hew punish* 



Owner to 
compel res- 
toration or 
be liable to 
pay for them 



same proceedings and punishment un- 
der the same conditions as are prescrib- 
ed in the second section of this act, and 
the owner shall either cause said negro 
or muUatto, restore any article or arti- 
cles so purchased or received by him or 
or her or said owner shall be liable in 
default thereof to the same proceedings 
as if such owner had actually himself or 
herself bought or received the said arti- 
cle or articles contrary to the intention 
of this law. 



Governor or 
subagent 
may prose 
cute for said 
Indians. 



Sec. 5. In all the above cases and 
in all other cases of injuries done to the 
said Indians it shall be lawful for the 
Governor of the territory or any sub- 
agent appointed by him, to sue or war- 
rant as the case may require in behalf 
of any such injured Indian. 



Fines how 
applied. 



Sec. 6. All fines imposed by this 
law after deducting thereout all necess- 
ary expenses shall be paid by the gov- 
ernor or a sub-agent to the injured In- 
dian or Indians. 



Justices, 
Sheriffs. & 
Constables to 
execute this 
law. 



Sec. 7. It shall be the duty of all Justi- 
ces of the peace, sheriffs and constables, 
to aid and assist in the execution of this 
law according to their respective offi- 
ces. 



312 



INDICTMENT. 299 

AN ACT 
Concerning Indictments and Presentments. 
Passed December 22, 1814. 



Indictment 
for trespass 
or misdeme- 
anor agst. 
several, no 
more costs 
than if but 



Sec. 1. Be it enacted by the Legislative 
Council and House of Representatives 
and it is hereby enacted by the authori- 
ty of the same, That where tw^o or 
more persons shall be indicted for the 
same tresspass or misdemeanor no more *"«• 
costs shall be allowed than if it were 
against one only. 

Sec. 2. Be it further enacted that in No prosecu 
all cases of treason murder or felony no mu^der'^or***" 
prosecutor shall hereafter be requi- felony re- 
red. *«"'''***• 



Sec. 3. That in all cases of indict- 
ments or presentments for tresspass or 
misdemeanor where the presentment 
or indictment shall be made from the 
knowledge of two of the grand jury, 
or upon information of a conservator of 
the peace in the necessary discharge of 
his duty, it shall be so stated at the foot 
of the indictment or present, and no 
prosecutor shall be required, but in all 
other cases there shall be a prosecutor. 

This act shall take effect from and 
after the passage thereof. 



Indictment 
found upon 
information 
of a grand 
Juror or con- 
servator of 
the peace no 
prosecutor 
reqd, 



313 



300 



INSOLVENCY. 



AN ACT 



For the relief of persons imprisoned for Debt. 



Passed Sept. 17 1807. 



Prlient may 
giv up pro- 
perty. 



Petition C. 
P. 



Sec. 1. Any person who now is or 
hereafter may be in actual confinement 
in any of the jails cf 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 creditors, 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 
fourth the cause or causes of his or her 
imprisonment, together also, with a list 
of all his or her creditors, with the mo- 
ney due and arising to each of them, to 
the best of his or her knowledge. 



Court to set 
time. 



Give notice 
or adv. &c. 



Sec. 2. The court to whom such ap- 
plication is made, are required to name 
the time and place, at which they will 
attend to hear what can be alled- 
ged for or against 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 residing within this territory, and 



314 



INSOLVENCY. 301 

have the same inserted in one of the 
newspapers of this Territory the most 
contigous to the place of his or her con- 
finement, if any such creditor or cred- 
itors should not reside in the Territo- 
ry. 

Sec. 3 At such time & place as afore- 
said the debtor so applying to the court To make & 
as aforesaid, shall subscribe and deliver of'*Jroperfy * 
a schedule of his or her whole estate, & take oafh. 
and make oath, and swear to the effect 
following, that is to say: 

"I, A B in the presence of Almigh- 
ty God do solemnly swear or affirm (as Form 
the case may be) the schedule now 
delivered, and by me subscribed doth 
contain to the best of my knowledge and 
remembrance a full, true, just and per- 
fect account, and discovery of all the 
estate, goods and effects unto me in any 
wise belonging, and such debts as are to 
me owing, or to any person in trust for 
me, and of all securities and contracts 
wherby any money may become payable, 
or any benefit or advantage accruing to 
me or to my use, or to 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 re- 
mainder or the value of the debt or 
debts by me due, and that I have not 
since the commencement of the suits for 



315 



302 



INSOLVENCY. 



which I am now imprisoned, or at any day 
or time, directly or indirectly, sold less- 
oned or otherwise disposed of in trust, or 
concealed all, or any part of any lands, 
money, goods stock, debts, securities, 
contracts, or estate, whereby to secure 
the same, or recieve or expect any pro- 
fit or advantage therefrom or to de- 
fraud any creditor or creditors, to 
whom I am indebted in any wise how- 
soever. 



Schedule to 
remain with 
clerk 



Prisoner to 
be ditchargd. 



Which schedule being subscribed in o- 
pen court, shall be returned to the clerk 
of the court, there to remain for the 
benefit of the creditors, and after deli- 
vering in such schedule, and taking such 
oath, such prisoner shall 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 pro- 
secuted 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 evi- 
dence : Provided always^ That notwith- 
standing such discharge, it shall be law- 
ful for any creditor or creditors, by 
judgment at any time afterwards, to 
sue out a writ of scire facias to have ex- 
ecution against the lands or tene- 



316 



INSOLVENCY. 



303 



ments, goods or chattels, which such in- 
solent persons shall hereafter acquire, 
or be possessed of, but no person deliv- 
ering in such schedule, and having taken 
the oath and been liberated from prison, 
by the provisions of this act, shall be sub- 
ject to imprisonment on final process, 
for any debts contracted or for dam- 
ages accrued for the breach of any con- 
tract entered into prior to such liberation 
unless such liberation be fraudulently 
obtained. 



Creditor may 
issue exon. 
& take prop 

♦y. 



Net again 
eomtd. 



Sec. 4. All the estate which shall be 
contained in such schedule, and any 
other estate which may be discovered, 
shall be vested in such person as the 
court of Common Pleas of the county, 
where such prisoner was discharged, 
shall appoint as assignee; and such as- 
signee is hereby authorized and impow- 
ered 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 rati, according to their respective 
debts, saving however to every such 
prisoner, his or her necessary apparel, 



Estate vested 
in assignees 
appointed by 
C. P. 



Tlieir duty 
and power 



317 



304 



INSOLVENCY. 



Recover 
debts 



Retain for 
trouble etc, 



and utencils of trade, & when any debts 
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 debt- 
or before the distribution thereof, all 
reasonable expences in recovering such 
money, and disposing of such estate as 
shall be adjudged reasonable by the 
court. 



Prisoner for 
false swear- 
ing punished 
for perjury 



Sec. 5 If any prisoner as aforesaid 
shall be convicted of having sold leased or 
otherwise conveyed, concealed or other- 
wise disposed of, or intrusted his or her 
estate or any part therof, directly or 
indirectly contrary to his or her forego- 
ing oath or affirmation, he or she shall 
not only be liable to the pains and pen- 
alties of wilful perjury, but shall receive 
no benefit from the said oath or affir- 
mation, and in case such prisoner at the 
time of such intended caption shall not 
take the said oath or affirmation, or shall 
not 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 notifica- 
tion be made out and served in manner 
aforesaid. 



318 



A list of the principal heads containedin the 

Index to \st. Vol 

A 
Abatement. 

Absconding debtors, see attachment. 
Accessary, see penal law. 
Account. 
Action. 

Acts of Congress, see Ordinance. 
Acts repealed. 

Adjutant general, see militia. 
Administration. 

Administrators, see executors &c. 
Aliens. 
Alimony. 
Appeals. 
Apprentices. 
Arbitration. 
Arson, see penal law. 
Assault & Battery. 
Assignment. 
Attachment. 
Attorney General. 
Atto. & Counsellors at law. 
Authentication of records, see records. 

B 

Bigamy see penal law. 

Bills of exchange. 

Boats, see estrays. 

Brands & marks, see penal law. 

C 

Certiorari. 

Chancery court of, see fees. 

Children. 

319 



iv Principal heads contained in Index. 

Clerks. 

Common Fields. 

Common Pleas, see Judiciary. 

Contracts. 

Coroners. 

Council Legislative, see ordinance. Elections. 

Counties. 

Court, see Judiciary. 

D 

Damages. 

Debtors. 

Declaration. 

Deeds. 

Depositions. 

Descent. 

Detinue. 

Devise, see mills. 

Distress. 

Distribution. 

Divorce. 

Dower. 

Duelling. 

Dunkards & Quakers, see Quakers &c. 

E 

Edwards county, see counties. 

Ejectment. 

Elections. 

Enclosures. 

Estrays. 

Estray Pen. 

Evidence. 

Executions. 

Executors and Administrators. 

F 

Fees. 

Felony. 

Ferries. 

Fines & forfeitures. 

Firing of woods &c. see prairies. 



320 



Principal heads contained in Index. y 

Forcible entry & detainer. 

Forgery. 

Frauds & perjuries, see contracts. 

G 

Gallatin county. 

General assembly, see Ordinance. 

Governor. 

Grand Jury, 

Guardians. 

H 
Hanging, see penal law. 
Hog stealing, see penal law. 
Horse stealing, see penal law. 
Horses. 

I 
Illinois territory, see ordinance. 
Impeachment. 
Indians. 

Indiana territory, see ordinance. 
Indictment. 
Infants. 
Insolvency. 

Judge advocate, see militia. 
Judges, see ordinance. 
Judiciary. 

Jury, see coroner, forcible entry & detainer, fees. 
Justices of the peace. 

K 
Kaskaskia, see ordinance. 

L 

Larceny. 
Legislature. 
Limitation of actions. 

M 

Manslaughter. 

Marks & brands, see brands and marks. 

Marriages forcible & stolen, see penal law. 

Master. 

Mayhem. 



321 



vi Principal heads contained in Index. 

Militia. 

Mortgage. 

Murder. 

N 
North W. territory, see ordinance. 

O 

Oath. 

Officers. 

Ordinance. 

P 
Parents. 
Penal Law. 
Prairies and woods. 

Q 

Quakers and Dunkards. 

R 

Rape, see penal law. 

Recorders. 

Records. 

Rent. 

Replevin. 

Replevin bond. 

Representatives. 

Riots and unlawful assemblies. 

S 
Scire facias. 
Seal, see ordinance. 
Secretary. 
Servants. 
Sheriff. 

Sodomy, see penal law. 
Suffrage, see ordinance. 
Surveyor. 
Swindling, see penal law, also see page 99. 

T 

Territory, see ordinance. 
Treason. 

U 
Usurpation of office. 



322 



Principal heads contained in Index, vii 

W 

Wills and testaments. 

Witnesses. 

Women stealing of — see penal law. 

Words. 



Verdict. 



323 



INDEX 



ABATEMENT. 

Suit does not abate by death of deft, if the 

action survives 37 

Plaintiff may have summons to exor. or admr. 

of deft. ibid. 

Suit does not abate by death of plaintiff, if the 

action survives 38 

Exor. or admr. may prosecute the suit & notify 

deft, thereof ibid. 

When one plaintiff or defendant dies suit 

survives 39 

Absconding debtors — see attachment. 

Accessary — see penal law. 

ACCOUNT. 

The parties may submit their accounts in court 

to referrees 47 

ACTION. 

Maintainable for words of insult tending to a 

breach of the peace. 126 

B2. VI. 
325 



INDEX. 

Maintainable for pound breach or rescous 131 
Commenced by two or more plaintiffs, does 

not abate by death of one of them 39 

When commenced against two or more defen- 
dants, does not abate by the death of one 
of them ibid. 

Acts of congress — see ordinance. 

ACTS REPEALED. 

See page 62, 87, 92, 94, 100, 115, 254, 261, 269 

Adjutant general — see militia, 

ADMINISTRATION. 

By whom granted 195 

With will annexed how granted 209 

Void unless security be given ibid. 

May be revoked by the court of Com. pleas 210 
See executors and administrators. 

ADMINISTRATORS. 

See executors and administrators. 

ALIENS. 
Alien friends may acquire and hold lands 39 

ALIMONY. 

In what cases allowed 118-119 

See Divorce. 

APPEALS. 

May be had from justices decision, between 

master and apprentice, 41 



326 



INDEX. xi 

How brought in such case, 42 

May be had from Com Fcild proprietor 74 

APPRENTICES. 

May be bound with consent of parent or guar- 
dian. 40 
How long they shall serve. ibid. 
How released from service. 41 
How punished for misbehavior. ibid. 

ARBITRATION. 

Certain controversies may be submitted to 

arbitration. 43 

The submission may be made a rule of any 

court. 43, 44, 45, 

Parties to execute arbitration bond. 43 

Time & place of meeting to be contained in 

the bond 44 

Witnessess how summoned to appear before 

arbitrators. 44 

Award to be in writing and delivered to the 

parties. 45 

Parties how compelled to perform the 

award 46 

Award in certain cases is considered as binding 

as a verdict. 47 

Arson — see penal law, 

ASSAULT & BATTERY. 
How punished. 97-8 

ASSIGNMENT. 
Notes made assignable by endorsement. 48 

327 



xii INDEX. 

Assignee may sue in his own name. ibid. 

Liable to the same defence as before assign- 
ment. 49, 50 
Inland bills of exchange are assignable. 50 
Writings under seal are assignable. ibid. 

ATTACHMENT. 

Non residents real & personal estate may be 

attached to pay debts. 51 

Foreign attachment to be issued out of 

court. ibid. 

Person applying therefor to make oath. ibid. 

May be issued against the joint or several es- 
tate of joint debtors. 52 
Judgment shall not be entered up in less than 

12 months. ibid. 

Party suing out attachment to give public 

notice thereof. 53 

The property attached if perishable may be 

sold. ibid. 

Creditors to give bond to restore, or they will 

have no share of property. ibid. 

Attachment may be issued against real & per- 
sonal estate of absconding debtors by judge 
or justice of the peace. 54 

To whom directed. 55 

Property attached may be replevied by giving 

bail. 56 

Attachment where returnable. ibid. 

Judgment may be entered against garnishee 57 

ATTORNEY GENERAL. 

To prosecute for adultery & fornication. 114 

His duty in cases of duelling. 126 

His fees. 251 



328 



INDEX. xiii 

ATTORNEY & COUSELLOR AT LAW, 

How to be admitted to practice. 58 
Entitled to legal fees. 59 
To produce certificate of good character. ibid. 
Not to practise unless enrolled. 60 
May be stricken from the roll for mal con- 
duct, ibid. 
How to be tried for mal conduct. ibid. 
How to be restored after being stricken from 

the roll. ibid. 
May be punished for contempt to the 

court. 61 

May be arrested and held to bail. ibid. 
How proceeded against for withholding his 

clients money. ibid. 

To take oath of allegiance. 62 

Form of the oath of office. 63 
Attornies licensed in other states admitted 

here. ibid. 
Penalty for attempting to practise without 

license. 64 

Fees of attornies. 250 
Clerk to inform the attorney of the complaint 

against him. 60 

Clerk nor Judges to practise law. 61-2 
Clerk of gen. court may practise law in the 

common pleas. 250 

Authentication of records — see records. 
Bigamy — see penal law. 

BILLS OF EXCHANGE. 
May be assigned. 50 

Boats — see estrays. 

329 



xiv INDEX. 

BRANDS AND MARKS. 

Shall be recorded by clerk of com. pleas. 103 

His fees therefor. ibid. 

Who are to have brands & marks. ibid. 

At what age must the animals be marked ibid. 
See penal laws. 

CERTIORARI. 

Shall not remove proceedings between master 

and apprentice. 42 

Chancery court of — see fees. 

CHILDREN. 

Disobedience of, how punished. 93 

CLERKS. 

Clerk of the general court shall keep roll of 

attornies. 59 

Clerk of gen. court, may practise law in com- 
mon pleas. 251 

Shall make up complete record. 249 

His fees. 248 

S^^ fees — Judiciary. 

COMMON FIELDS. 

Proprietors to make regulations for the 

same. 68 

May elect officers. 69 

May elect field committee. ibid. 

330 



INDEX. XV 

The committee may call a meeting of the 

proprietors. ibid. 

Proprietors may lay a tax on themselves. 70 

Committee may apportion the fencing. ibid. 

Fencing how repaired. 71 

Penalty for opening field fence. 72 

Services how paid. ibid. 

Proprietors may impose fines & forfeitures. 73 
Persons fined may appeal to the next court of 

common pleas. ibid. 
Common field must be enclosed with a good 

fence. 74 
Not to be depastured between 1st, of May and 

15th, of November. ibid. 

Common pleas — see Judiciary. 

CONTRACTS. 

When void, if not reduced to writing. 282 

CORONERS. 

Not to practise law in their counties. 62 

Their duty and powers. 79 

To take oath and give security. ibid. 

To hold inquests of death. ibid. 

To swear the jury. 80 

To charge the jury. 81 

May issue his warrant for witnesses. 82 

Shall recognise witnesses in case of death. 83 
To give notice to justices upon inquisition 

found. ibid. 

Fees of Coroners. 237 

Their fees in the general court. 249 
Their fees, where estate is released by replevy 

bond. 258 



331 



xvi INDEX. 

COSTS. 

How awarded agt, a feigned Atto. in a suit 

for property paid him. 64 

How allowed where several are indicted for 

the same trespass or misdemeanor. 299 

See fees. 

Council legislative — see ordinance^ Elec- 
tions. 

COUNTIES. 

Lines of Gallatin county. 85 
Line dividing, Randolph & St. Clair coun- 
ties. 84 
Edwards county where situate. 85 
Its seat of justice Palmyra. 86 
Allowed a Representative in the House of 

Representatives. 87 
To vote with Gallatin for a member of the 

Legislative Council. 88 

Entitled to vote for a delegate to Congress. 89 

Courts — see judiciary. 

DAMAGES. 

May be recovered for pound breach or res- 

cous. 131 

For breach of one's lawful enclosure. 161 

For firing woods and prairies. 273 

DEBTORS. 

Insolvent debtors how discharged from im- 
prisonment. 300, 1-2 

See Insolvency. 

332 



INDEX. xvii 

DECLARATION. 

In ejectment must be delivered by tenant to 

Landlord. 135 

DEEDS. 

Made to deceive or defraud others void. 98-282 

See frauds — penal law. 

Delegate to congress — see ordinance. 

DEPOSITIONS. 

How taken, ' 116 

May be read on the trial. ibid. 

DESCENT. 

How estates shall descend. 207 

DETINUE. 

Will lie to recover property paid to a feigned 

atto. 64 

Devise — see wills. 

DISTRESS. 

For rent arrear, how made. 130 

How disposed of 130-1 

May be replevied. 130 

When made without rent being in arrear 

how punished. 131 

C2. VI. 
333 



xviii INDEX. 

May be made off the premises in certain 

cases. 133 

Cannot be made of goods bona fide sold. 134 

May be made by landlord or bailiff of any cat- 
tle or produce on the demised premises, ibid. 

Produce growing on the premises how dispo- 
sed of. 135 

DISTRIBUTION. 

How to be made of intestate's estate. 208 

Shall not be made until 12 months after intes- 
tates death. ibid. 

See executors and administrators. 

DIVORCE. 

For what causes decreed. 117 

In what cases the wife shall have alimony. 117-8 

Petition for divorce where triable. 118 

Proceeding in divorce and alimony. 118-9 

DOWER. 

Allowed by the ordinance. 1-2 
Must be assigned by the heir in one month 

after demand. 119 
When to be sued for. 120 
Both dower and damages may be recover- 
ed, ibid. 
How to proceed on judgment. 120-1 
Tenant in dower not to commit waste. 121 
To keep tenements in repair. ibid. 

DUELLING. 

Principal and accessary if death insue guilty of 

Murder. 122 

Ineligible to office. 123 

Persons suspected may be arrested and bound 

to keep the peace. 124 



334 



INDEX. xix 

Persons leaving the territory to fight a duel 

punishable. 125 

See penal law. 

DuNKARDS AND QUAKERS — See Quaker & 

Dunkards. 

Edwards county — see counties. 

EJECTMENT. 

Declaration must be delivered by tenant to 

landlord. 135 

Landlord how made a defendant. 136 

If tenant fail to appear, judgment may be en- 
tered vs. casual ejector. ibid. 

Landlord may be admitted defendant after 

judgment & execution shall be stopped. ibid. 

How to proceed, vs. tenant refusing to quit 

the demised premises. 139-140-1-2 

ELECTIONS. 

When to be held in Edwards county. 87 

For representatives to be held biennially. 143 

To be held at the court house of each coun- 
ty. 144 
to continue open three days. ibid. 
Judges of election to proclaim persons elec- 
ted, ibid. 
Elections how conducted. 145 
Penalty on judges for failing to hold elec- 
tions. 146 
Votes to be given viva voce. ibid. 
Time and place for holding election to be ad- 
vertised by sheriff. 147-153 
Duty of judges during election. 147-8 
Persons elected to procure certificate thereof. 

148 



335 



XX INDEX. 

Copy of the poll to be sent by sheriff to the 

Secretary. ibid. 

When contested how to proceed. 149 

Candidates not to treat or bribe for votes. 151 

Who is eligible to the Legislature. 152-158 

Occasional elections how held. 153 

By what rules conducted. 154 

Poll how to be kept and by whom. 155 

See Ordinance. 

ENCLOSURES. 

How made & what height to be lawful. 160-1-3 

Their sufficiency & lawfulness how deter- 
mined. 161 

Persons damaged by breach of enclosure to 

recover damages. 161-2 

Viewers of enclosures how appointed and their 

duty. 162 

Disputes between joint owners of partition 

fence how settled. 162-3 

ESTRAYS. 

Persons taking up boats adrift how to pro- 
ceed. 164-5 

Horses, Mules &c. when taken up, how dis- 
posed of 166-7 

Cattle, hogs, sheep, goats &c. how disposed 

of. 167-8 

Cattle, hogs, sheep & goats, must not be taken 
up between 1st of April and 1st of Novem- 
ber. 169 

Reward to the taker up of estrays. 169-70 

The owner to pay charges or the estray shall 

be sold therefor. 170 

When the property shall vest in the taker 

up. ibid. 



336 



INDEX. xxi 

When it shall be sold by the sheriff. 170-1 

The surplus money to be paid to the owner. 171 

The estray not to be moved from the ter- 
ritory, ibid. 

Who may take up est rays. 172 

Estrays found without the settlements how 

disposed of. ibid. 

Not to be taken up between 1st, of April and 

1st, of November. 173 

Taker up to pay for estray if it be lost by his 

neglect. ibid. 

Estray must be taken up at the taker's resi- 

sidence. ibid. 

When the craft or animal taken up exceeds 

the value of 5 dollars, how to proceed. 174 

What description to be put into stray-pens. 175-6 

See Juciciary. 

ESTRAY PEN. 

To be made by order of the court of Common 

Pleas. 175 

How to be kept in repair and by whom. 177 

How to be paid for. ibid. 

The duty of keepers of stray pens. ibid. 

See Judiciary. ' 

EVIDENCE. 

Legislative acts & judicial proceedings of the 

states, good evidence. 66-7 

On coroners inquest to be taken in writing &c. 

83 

What is good evidence of the concealment of 

hog stealing, defacing marks &c. 102 



337 



xxii INDEX. 

EXECUTION. 

Real estate subject to execution. 178 

Where the land does not sell, what. 180 

where to issue vs. body of deft. &c. 180-1 
Purchasers under execution to have the same 

estate the debtor had. 181 

Mansion house must be sold last. ibid. 

Defendant may give replevin bond. 186 

When to issue on replevin bond. 187 

May be levied on servants. 188 
Must first be levied on the property shown by 

deft. 189 

When returnable. 192 
Shall bind personal property from the time it 

goes into the sheriffs hands. 193 

An alias may issue to any county. 194 
If the property mortgaged does not satisfy 

debt, what. 194 

EXECUTORS & ADMINISTRATORS. 

When they may prosecute suits initiated by 

the deceased. 38 

When they may defend suits brought against 

the deceased. 37 

May prove last wills and testaments. 195 

Shall give security to secure estates of mi- 
nors. 197 

Shall with consent of the court put infants 

money at interest. 198 

The time of payment shall not exceed 12 

months. 198 

May be attached for contempt. 200 

May appeal when aggrieved by judgt. of 

inferior court. ibid 

How they may be discharged after administra- 
tion completed. 201 



338 



INDEX. xxiii 

Their bonds are for the benefit of all persons, 

who may be injured. 202 

How to be sued on. 203 

Copies of their bonds must be given by the 

clerk. 204 

Administrators to give bond & security in a 

certain form. 204-5 

Courts may call admr. to account. 206 

How to distribute estate of intestate &c. 208 

Administration void unless security be given 209 
May sell the real estate for payment of debts 

(in a certain event.) 211 

Shall first exhibit the inventory of the personal 

estate, ibid. 

May sell part of the real estate to support and 

educate infants. 212 

Make report of their proceedings to the next 

court. 213 

Commissioners may be appointed to execute 

deeds &c. ibid. 

Admr. unless otherwise directed shall sell 

personal estate. 220 

Shall account for the nett proceeds of the 

sale. 221 

Must not be sued in less than 12 months from 

decendants death. ibid. 

May be called before the court in vacation 

upon suspicion of wasting &c. 223 

Shall give no preference to bonds over notes 

in paying debts. ibid. 

Shall return list of appraisement and sale in 90 

days. 224 

Shall settle in six months thereafter. ibid. 

Shall pay creditors pro rata. ibid. 

Shall have no preference over other creditors 

for his debt. 225 

His allowance, (but subject to reduction by the 

court.) 226 



339 



xxiv INDEX. 

Shall pay funeral expenses before any other 

debts. ibid. 

Exors. or Admrs. of sheriff liable for fees 

collected by him. 247 

FEES. 



How to be taxed. 




227 


Of clerks of com. pleas in civil cases. 




228 


do. in crimininal cases. 




230 


do. of probate. 




232 


do. for the use of the county. 




234 


Of Sheriffs. 




ibid. 


Of jurors. 




236 


Of witnesses. 




ibid. 


Of coroners. 




237 


Of secretary. 




ibid. 


Of surveyors. 




238 


Of justices of the peace. 




239 


Of constables. 




240 


Of recorders. 




242 


Fee bills to be made out before demanded. 


243 


To be delivered to the party charged 


in all 




cases. 




256 


When demandable. 




244 


May be distrained for. 




245 


Fees due by persons in different counties how 




collected. 




246 


Fees not to be sued for except in some 


cases. 


ibid. 


When to be accounted for by sheriff. 




ibid. 


Fees in the court of chancery. 


253-254 


Fees how to be collected. 




246 


Of attornies and counsellors. 




250 



Of attorney general. 250-1 

The exors. or admrs. of sheriff liable for fees 

collected by sheriff. 247 

Clerks to deliver fee bills annually to sheriffs. 245 



340 



INDEX. XXV 

May proceed agt. sheriff for not accounting for 

the fees. 247 

Shall give fee bills to the sheriff with the exe- 
cution. 256 

Penalty for failing to do it. ibid. 

Fees of the clerk of the general court. 248 

FELONY. 

Compounding of how punished. 96 

FERRIES. 

Ferries established under the Indiana territory, 

established by law in Illinois territory. 261 
May be established by court of Common 

pleas. 261-9 
How application therefor shall be made. 261 
Owners to give bond &c. 262 
Shall cross expresses on public service gratis. 263 
Shall set up rates of ferriage. ibid. 
Penalty for overcharging. ibid. 
Shall keep ferry boats and hands. 264 
Shall cross public expresses in the night. ibid. 
Ferries may be discontinued for certain rea- 
sons. 265 
Immunities of ferryman. ibid. 
Established by govr. 266 
Ferry at Shawneytown granted to the heirs of 

Alex. Wilson. 267 

FINES & FORFEITURES. 

Appropriated in the respective counties in aid 

of the county levy. 270 

D 2. V 1. 

341 



xxvi INDEX. 

Against Indian laws how appropriated. 298 

Firing of woods & prairies — see prairies. 

FORCIBLE ENTRY & DETAINER. 

How to be tried. 273-4-5 

What shall be the judgment. 276 

FORGERY. 

How punished. 97 

Frauds and perjuries — see contracts. 

Gallatin county — see county. 

General assembly — see ordinance. 

GOVERNOR. 

How to be appointed. 3-16 

To organise the militia of Edwards county. 87 

To have absconding duellists apprehended. 125 

To convene the Legislature. 150 
To issue writs of election to fill vacancies in the 

Legislature. 153 
To forbid thesellingof ardentspirits tolndians 

pending a treaty. 287 
To prosecute for fraud practised on the Kas- 

kaskia Indians. 298 

See ordinance. 

GRAND JURY. 
With what laws to be charged. 112-124 

342 



INDEX. xxvii 

GUARDIANS. 

Shall exhibit inventory of the estate of their 

wards when required. 196 
May put out orphans money to interest by 

leave of the court. 197 
May be chosen by orphan or appointed by the 

court. 199 

May prosecute suits for their wards. ibid. 

May be attached for contempt. 200 

May appeal to the Genl. court. ibid. 
May get discharges when their trust is fully 

executed. 201 
May under certain circumstances sell the estate 

of their wards. 214 

How such sale must be effected. 215 

Must account for the consideration money ibid. 

Hanging — see penal law. 

Hog stealing — see penal law. 

Horse-stealing — see penal law. 

HORSES. 

Stud horses above one year old going at large 

may be taken up & cut. 285 

The owner shall pay for cutting. ibid. 

If they die the owner shall sustain the loss. ibid. 

Kept for covering, if found going at large how 

to be treated. ibid. 

ILLINOIS TERRITORY — see ordinance. 

IMPEACHMENT. 
Who shall be subject to impeachment. 286 

343 



xxviii INDEX. 

Impeachment by whom made. ibid. 

By whom tried. 287 

Judgment thereupon. ibid. 

INDIANS. 

Must not be furnished with ardent spirits. 287-8 

Offender how punished. 288 

No person to purchase goods from them. 291 
Persons selling them liquors or trading with 

them must obtain license. 295 

Slaves offending how punished. 296 
Purchases made of the Kaskaskia Indians when 

void. 297 
Slaves offending therein how punished. ibid. 
Fines for breach of those laws how appro- 
priated. 298 

Indiana territory — see ordinance. 

INDICTMENT. 

Against several for the same trespass how costs 

are allowed. 299 

Where a prosecutor is not necessary to be 

endorsed. ibid. 

INFANTS. 

How protected against guardians, executors 

&c. 196-7 

May choose their own guardians. 199 

Are bound by the acts of their guardians &c. 200 
At full age to give discharges to their guardians 

in certain cases. 201 

May by order of court be bound out to learn 

trades. 199 



344 



INDEX. xxix 

Must be bound to persons of the same religion 

of their parents. 201 

How to be supported. 212 

INSOLVENCY. 

Persons taking advantage of insolvency. 300-1-2 

How to be discharged from prison. 302 

The effect of such discharge. ibid. 
Property acquired afterwards liable for the 

debt. ibid. 

The estate of the debtor how disposed of. 303 
What part the debtor may retain 303-4 

Debtor for false swearing how punished. 304 

Judge advocate — See militia. 

Judges — see ordinance. 

JUDICIARY. 

Court of com. pleas may punish attos. for 

contempt. 61 
Judges thereof shall not practise law. ibid. 
Clerk shall not practise law in his county. 62 
Shall appoint constables. 75 
Shall suppress unlawful assemeblies. 92 
Clerk to record Brands and marks. 103 
Shall appoint 3 fence viewers in each town- 
ship. 162 
Clerk to keep a stray book, 167 
His duty relative to estrays. 168 
His fees in such cases. 169 
Court of com. pleas shall cause stray pens to 

be made. 175 

Penalty of 20 dollars each term for failing. 176 

Shall appoint a person to keep the stray pen. 177 



345 



bid. 

202 



XXX INDEX. 

Clerk to take proof of wills and testaments and 

grant administration. 195 

Court may repeal them at next term. ibid. 

Clerk to record & preserve all papers &c. 196 

Court to take bond from exors. & admrs. ibid. 

May compel exrs. admrs. & guardians to ac- 
count, ibid. 

May admit orphans to choose guardians. 199 

May appoint guardians for orphans. ibid. 

May punish admrs. exors. and guardians for 

contempt by attachment. 200 

May grant certificate and discharge guardians 

exors. &c. when orphans refuse at full age. 201 

And to cancel the bonds they may have giv- 
en. 

To have due regard to last wills and testa 
ments. 

Clerk to give copies of exors. &c. bonds when 

requested. 204 

Penalty on him for refusing (treble damages.) ibid. 

Court shall oblige admrs. to account for 

intestates goods. 206 

May make order of distribution after debts are 

paid. 207 

Subject to damages for taking insufficient 

security of exors. &c. 209 

May compel exor. &c. to give additional 

security. ibid. 

May order sale of real estate to pay debts. 211 

For support & education of the children. 212 

Must order notice of such sale to be given, ibid. 

Must appoint 3 persons to execute deeds of 
conveyance where the decedantwas bound 
to convey. 213 

May call exors. &c. before them in vacation. 223 



346 



INDEX. xxxi 

May reduce allowance to exors. & admrs. 226 
May establish ferries and fix the rates thereof. 

261-2 
Their power relative to negligent ferry keep- 
ers. 266 

Jury, see coroner — forcible entry & detainer 
Fees. 

JUSTICES OF THE PEACE. 

May hear complaint between master and ap- 
prentice. 41-98 
May grant attachments. 55-56 
Must take bond & security from plff. 55 
May give judgment and when. 57 
May give judgment vs. garnishee. ibid. 
Cannot practise law in his county. 62 
May appoint a special constable. 77 
May take inquests of death in the absence of 

the coroner. 79 

Must disperse unlawful assemblies. 92 

May call on byestanders to assist in suppressing 

riots. 93 

How to proceed between parent & child, 

master and servant. 98 

May recognize persons guilty of fornication 

and adultery. 114 

May proceed on complaint of landlord agt. his 

tenant. 139 

May take cognizance of dispute between joint 

owners of partition fence. 162-3 

Shall keep stray books. 165 

Their duty relative to estrays & their fees. 

165-6-7-8-9 
How to proceed with horses found without the 

settlements. 172 



347 



xxxii INDEX. 

Two may try forcible entry and detainer. 



273-4-5-7-8 



Kaskaskia — See ordinance. 

LARCENY. 
How punished. 95 

LJPFS. 

Of Indiana territory declared to be in force. 33 

Of the governor and judges — same. 34 
The common law of England and all genl. sta- 
tutes prior to the 4th year of James 1st (with 

exceptions) adopted. ibid. 

The revised laws of Indiana. 35 

LEGISLATURE 

Convened by the governor. 150 

Its members how expelled. ibid. 

Persons ineligible to a seat in the Legislature. 

152-8 
Members of, when their term of service com- 
mences. 156 

See elections — ordinance. 

LIMITATION OF ACTION. 

What length of time will bar a public prose- 
cution. 101-111-115 

MANSLAUGHTER. 
The punishment thereof 91 

Marks and brands — see brands ^ marks. 



348 



INDEX. 

Marriages forcible and stolen — see 
penal law. 

MASTERS. 

May complain of servants to justice of the 



98 



peace. 

MAYHEM. 

The punishment thereof. 104-5 

Militia — see governor. 

MORTGAGE. 

Mortgagee may foreclose the mortgage, 181-2 

Sale of the mortgaged premises shall pass the 

interest mortaged. 185 

Where the judgt. is reversed the money only 

to be restored. ibid. 

Where the mortaged property does not pay the 

debt, execution may go for the residue. 194 

MURDER. 

What deemed and how punished. 91 

North-western territory — see ordi- 
nance. 

OATH. 

Form of oath to suppress duelling. 124 

To be taken by appraisers of distress. 130 

E 2. V 1. 
349 



xxxiv INDEX. 

OFFICERS. 

To take the oath against duelling. 123 

For taking more than legal fees how punished. 244 

ORDINANCE. 

For the government of the territory N. West 

of the Ohio. 1 to 15 
How estates may be passed. 1-2 
Widow's dower. 2 
Customs of the ancient inhabitants recogni- 
sed. 2-3 
Governor to be appointed. 3 
Secretary to be appointed & his duty. 3-19 
Three judges to be appointed with com. law 

jurisdiction. 3-4 
Govr. & judges to adopt laws. 4 
Power of the governor. 4-5 
General assembly how organised. 5-6 
How composed. 7 
Members of the council how appointed. ibid. 
Govrs. assent to laws necessary. 8 
Genl. assembly to elect a delegate to Con- 
gress, ibid. 
Articles of compact unalterable unless by 

common consent. 9 to 14 
President of U. States shall appoint the govr. 

&c. 16-17 
Secretary in certain cases to discharge the 

duties of govr. 17 

Certain laws to be printed by the U. States. 18 

Governor & judges may repeal their laws. ibid. 
One supreme judge competent to hold a 

court. 19 

Seals to be provided by secy, of state. ibid. 
Indiana territory formed. 20-1-2-3 

Powers and duties of its officers defined. 21 



350 



INDEX. XXXV 

Illinois territory formed. 24 

Its boundaries. ibid. 

Form of government. 24-25 

Powers and duties of its officers. 25 
Part of the ordinance repealed relative to the 

organization of the genl. assembly. 26 

Kaskaskia the seat of government. 27 
Right of suffrage extended to the people of 

Illinois territory. 28 
Members of the Legis. Council elected by the 

people quadrennially. 29 
Delegate to Congress elected biennially by the 

people. 29 
Duty of sheriffs &governor in relation thereto. 30 
General assembly may apportion representa- 
tives. 31 

PARENTS. 

Not bound to prosecute their infant children. 96 
May complain to justices for disobedience of 

children and have them punished. 98 

PENJL LAW. 

Treason and its punishment. 90-1 

Murder punished capitally. 91 

Manslaughter & its punishment. ibid. 
Riots & unlawful assemblies how punished and 

dispersed. 92-3 

For refusing to disperse punished. 93-4 

Larceny, & its punishment. 95 

Accessaries in larceny how punished. 96 

Compounding felony how punished. ibid. 

Forgery and its punishment. ibid. 

Accessaries in forgery how punished. 97 

Usurpation and its punishment. ibid. 



351 



xxxvi INDEX, 

Assault & battery & its punishment. 97-8 
Makers of fraudulent deeds how punished. 98 
Disobedience of children & servants how re- 
dressed, ibid. 
Obtaining goods by fraudulent pretences how 

punished. 99 

Arson and its punishment. ibid. 
Hog stealing & how punished. 100-4 

Defacing marks & brands. 101 
Persons killing hogs in the woods how to 

proceed. 103 
Maiming & disfiguring how punished. 104 
Rape and its punishment. 106 
Sodomy and its punishment, 107 
Bigamy and its punishment. ibid. 
Forcible & stolen marriages, how punished. 109 
Stealing women under 14 years of age. ibid. 
For marrying the same. 110 
Limitations for prosecutions for offences. 111-115 
Punishment of death to be inflicted by hang- 
ing. 1 1 1 
Persons convicted of crimes may be sold. ibid. 
Horse stealing punished with death. 112 
Fornication and adultery how punished. 1 14 
Killing in a duel deemed murder. 122 

PRAIRIES & WOODS. 

When they may be set on fire. 272 

QUAKERS & DUNKARDS. 
Exempt from militia duty and the conditions 

thereof. 128 
Must serve their tours of duty or procure 

substitutes. 129 
Rape — see penal law. 

RECORDERS. 

Fees of recorders. 242 



352 



INDEX. xxxvii 

See fees. 

RECORDS. 

How authenticated. 66 

Records of wills good evidence, 215 

How to be kept by clerks. 249 

RENT. 

One years rent to be paid in preference to ex- 
ecution. 1 32 

Rent arrear may be distrained for. 163 

REPLEVIN. 

Defendant may make avowry and conusance 

generally. 137 

PaintifT if cast shall pay double costs. ibid. 

Duty of the officer making replevin. ibid. 

Replevin Bond to be assigned to avowant. 138 

May be sued on. ibid. 

Writ of replevin may be granted by court. 139 

REPLEVIN BOND. 

In what cases allowed. 186-7 

Has the force of judgment and execution may 

issue thereon. 187 

When quashed, the consequences thereof. 188 

REPRESENTATIVES. 

Elected biennially. 143 

Must convene when called together by the 

governor. 150 

Penalty for refusing to attend. ibid. 

May be expelled and in what manner. ibid. 

RIOTS AND UNLAWFUL ASSEM- 
BLIES. 

How punished and dispersed. 92-3 

SCIRE FACIAS. 

May be sued out to foreclose a mortgage. 182-3 

May be sued out to enforce award of arbitra- 
tors. 47 

Seal — see ordinance. 



353 



xxxvui IJNDEA. 




SECRETARY. 




How to be appointed. 
His fees. 


3-16 
237 


SERVANTS 





May be punished by Justice of the Peace up- 
on master's complaint, 98 

Subject to sale under execution. 188 

May be punished for firing woods and prai- 
ries agt. law. 273 

See penal law. 

SHERIFF. 

Shall execute writ of attachment. 56 
Allowed fees for keeping property attached. 57 
When to sell property attached. 53 
May be arrested and held to bail. 61 
Shall not practise law. 62 
Sheriffs of Edwards & Gallatin to certify elec- 
tion of mem. of Council. 88 
Shall disperse riots & unlawful assemblies. 92 
Shall give receipts to dunkards and quakers. 128 
How proceed in cases of distress & replevin. 130-1 
Shall superintend elections. 145 
Shall sell estrays &c. 170 
Shall sell lands on execution &c. 179 
Shall give purchaser a deed for the land sold. 180 
How to make return where land does not sell. ibid. 
Shall take replevin bond & release property 

taken in execution. 186 
Shall release deft, taken on Ca. Sa. when 

replevin bond is tendered. 187 
Shall return replevin bond to the office whence 

the exon. issued. 187 
Liable if he takes insufficient security in reple- 
vin bond. 188 



354 



INDEX. xxxix 

Shall first levy on property shown by defen- 
dant. 189 
Shall first sell such property as the defendant 

directs. 190 

Shall sell first the property of the principal and 

then of the security. 192 

When to return executions. 192 

Shall endorse on exon. the day & hour it come 

to his hands. 193 

Shall give notice of the sale of any real estate 
belonging to deceased persons or to minors, 
v^^hen ordered to be sold by the court. 213 
Sheriffs Fees in general. 234 

Shall collect clerks fees, & distrain for them. 

245-256 
May put his fee bills into the hands of other 

sheriffs. 245 

When he shall account for fees collected. 246 
Shall be allowed ten per cent for collecting 

fees. ibid. 

How proceeded against for refusing to account 247 
His fees for poundage &c. how collected. 248 

His fees in the general court. 249 

His duty relative to fee bills. 256 

Shall receive 50 dolls, annually in lieu of fees 

due him by county. 258 

His fees for levying exon. & taking replevin 

bond. 258 

His fees for mileage. 259 

He shall endorse the mileage in his return. 259 
Shall summon jury to try forcible entry and 

detainer. 274-6 

Sodomy — see penal law. 
Suffrage — see ordinance. 

SURVEYOR. 
His fees. 238 



355 



xl INDEX. 

Swindling — see penal law see also page. 99 
Territory — see ordinance. 

TREASON. 
How punished. 90-1 

USURPATION OF OFFICE. 

What and how punished. 97 

WILLS & TESTAMENTS. 

Where to be proven and how to be proven. 195-216 
By whom recorded. 196 

Shall be duly regarded by those who have the 

execution of them. 202 

If reduced to writing are good conveyances 216 
Probate of is matter of record & may be given 

in evidence. ibid. 

If disproved in 7 years, the remedy of the 

party aggrieved. 217 

Nuncupative wills how made &c. 218 

Probate thereof when to be granted. 218-9 

WITNESSES. 

Their fees in the respective courts. 236 

In criminal cases how collected. 258 

Women stealing of — see penal law. 

WORDS. 

Of what nature will support an action. 126 

VERDICT. 

How to be given on coroners inquest. 83 

How to be given in forcible entry & detainer 277 



356