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 uMumunity 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 %qiimed 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 tMiiAJ 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 appoinfcnt as Grcait Jadge, iiMaiiil 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 IWimmit, 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