DeKalb County, Illinois - Chapter 5: The Claim Associations, 1868

Until the spring of the year 1835, the feet of very few white people had trodden the soil of what now constitutes the County of DeKalb. It was the home of the Indian, and the Indian agent at Chicago, backed up by companies of United States troops, was authorized to drive off all whites who should encroach upon their land. But it having been noised about in this spring of 1835, that the Indians were about to remove west of the Mississippi, no further attempt was made to restrain the immigration of the whites, and they poured into the country in great numbers.

In pre-empting and claiming land, delays are dangerous, and each landless immigrant, desiring to have the first choice of lands, and to be sure of a location inferior to none, hurried into the territory, and camping near some favorable grove and stream, began to blaze the trees on a line surrounding as much of the timbered land as he thought he should want, and then ran his plow out on the prairie, making with its furrow, a tract as large as he cared for, of the open prairie.

This, according to the primitive regulations which governed the new settlers at that time, gave him a right to hold the tract thus marked out, until the time when the government should have it surveyed, and the opportunity offered for a better title, by purchase of the United States.

But innumerable disputes arose under this arrangement. Some of the more ambitious of the new-comers claimed several square miles of land, and were preventing the settlement of the country by elbowing out those who would have been glad to make their homes here. It was evident that something must be done to limit and regulate this privilege of the squatter ; and that which was done we cannot better relate than in the quaint language of one of the worthiest of those early settlers, as published in his "Reminiscences of Border Life," in the Republican Sentinel of this County, in 1855. He says :

" ' In those days, there being no king in Israel, every man did that which seemed right in his own eyes.' The size of claims, therefore, varied from two eightys of prairie, and one of timber, to a half section of timber, and a tract of prairie two miles square. Some assumed the right to make and hold claims by proxy, being thereunto duly authorized by some brother, sister, uncle, aunt, cousin or friend. Meanwhile, new settlers poured in apace, astonished and perplexed to find the choice timber and prairie and 'furrowed' into claims, whose ample acres, the claimant with all his children, uncles, aunts and cousins, to the 'third and fourth generations,' would never be able to till or occupy. The new settler, perplexed, baffled, and becoming more and more desperate on finding 'God's green earth' thus monopolized, would approach his more fortunate neighbor with the spirit of Abraham to Lot - 'now I have come a great way to get some of this timber and prairie, and one thing is certain, I am going to have some. There is enough for you and me, and our boys. Now don't let us quarrel ; you turn to the right and I will turn to the left, or, vice versa. Sometimes this good scripture, and, consequently, good common sense logic, fvould win, but in other cases, the grasping spirit of the borderer would stave off all kind of division or compromise, and, laying his hand upon his rifle, he would bluster and threaten in swelling words,'' and drive away the 'stranger from his right.'

" Hereupon arose innumerable disputes and wranglings, concerning the size, tenure and boundaries of claims. The more reflecting among the settlers, saw a dark cloud, big with the elements of strife and social disorder, gathering in the not very distant horizon, whose tornado blasts threatened soon to lay waste all that was of value in the rising community. There was no municipal law reaching these cases ; and if there had been, the settlers probably would have been none the wiser for it, for it is believed at this period, there was neither a Justice nor a statute book north of the Illinois River, and west of Fort Dearborn, unless we except Ottawa and Chicago. Wrongs and outrages for which there was no known legal redress, were being multiplied. Blackened eyes, bloody noses and chewed ears were living realities, while the dirk, pistol, rifle, with something like ' cold lead,' were significantly talked of, as likely to bring about some ''realities' which might not be 'living.'1 What could be done to ensure ' domestic tranquility,' 'promote the general welfare,' and secure to each settler his right? - Evidently but one thing. Happily some had seen something in the New Testament about those who are without law being a 'law unto themselves,' and settlers found themselves in this fix exactly. It was therefore apparent both from scripture and reason, that the settlers must become a 'law unto themselves ;' and, 'where there was a will there was a way. 'A settlers meeting,' at a given time and place, therefore came to be the watch word, from shanty to wagon, until all were alarmed. Pursuant to this proclamation, a 'heap' of law and order-loving American citizens convened on the 5th of September, 1835, at the shanty of Harmon Miller, then standing on the east bank of the Kishwaukie, nearly opposite the present residence of Wm. A. Miller in the toAvn of Kingston.

" Happily the best possible spirit prevailed. The hoosier from the Wabash, the buckeye from Ohio, the hunter from Kentucky, the calculating Yankee, brother Jonathan's 'firstborn,' and the 'beginning of his strength,' impelled by a sense of mutual danger, here sat down to dictate laws to Kishwaukie and 'the region lying round about throughout all the coasts thereof.' Hon. Levi Lee, now chairman of a committee to report on petitions for the 'Maine law' in the Legisla- ture of Wisconsin, was chosen to preside over this august assemblage, where the three great departments of free governments, the executive, the legislative and the judicial, were most happily united ; and ' Capt. Eli Barnes was appointed secretary.' Gently glided the sometimes turbid waters of that ' ancient river," the sonorous Kishwaukie, as speech after speech, setting forth the wants and woes of the settlers, the kind of legislation demanded by the crisis, went the rounds. Even those who were not used to 'talkin' much 'fore folks,' evinced their cordial approbation and readiness to co-operate by doing up an amount of encoreing, which no doubt really did, ' astonish the natives.'' At last, ripe for immediate action, a committee was selected to draft and present to the meeting, a Constitution and By-Laws by which the 'settlers upon the public lands' should be governed. After some little deliberation back of the shanty, around the stump of a big white oak, which served as a writing desk, said committee reported a Preamble, Constitution and By- Laws, which, for simplicity, brevity and adaptation to necessity, it would be hard for any modern legislation to beat. The 'self-evident truths' proclaimed by Jefferson in the 'immortal declaration,' it is believed, were, for the first time, reiterated on the banks of Kishwaukie ; and, had there been a little more time for reflection and preparation, the top of some settler's wagon would have been converted into the ' Star Spangled Banner -' and thrown to the breezes of heaven from the tallest tree-top in the grove. The common-sense, law and logic, as well as patriotism, contained in this Constitution and By-Laws, were instantaneously recognized to be the very things demanded by the crisis, and were adopted with unparalleled enthusiasm, each subscribing his name thereto with his own hand, thereby pledging 'life,' and ' sacred honor,' to carry out the provisions of the code. It is not known that a copy of this singular unique document is now extant, and still there may be. As nearly as can be recollected, its provisions were somewhat as follows : A prudential com.

mittee were to be then and there chosen, whose duty it should be, to ' examine into, hear, and finally determine, all disputes and differences then existing, or which hereafter might arise between settlers in relation to their claims,' and whose decisions, with certain salutary cheeks, were to be binding upon all parties, and to be carried out at all hazards by the three departments of government consolidated in aid of the executive, in what jurists sometimes denominate, the i posse eomitatus.' Each settler was solemnly pledged to protect every other settler in the association, in the peaceful enjoyment of 'his or her reasonable claim as aforesaid, and further, whoever throughout all Kishwaukie, or the suburbs, or coasts thereof, should refuse to recognize the authority of the aforesaid association, and render due obedience to the laws enacted by the same from time to time, 'to promote the general welfare,' should be deemed a heathen, a publican, and an outlaw with whom they were pledged to have no communion or fellowship. Thus was a wall, affording protection to honest settlers, built in troublous times. Hon. Levi Lee, our present worthy County Judge, Hon. Geo. H. Hill, Capt. Eli Barnes, James Green and Jesse C. Kellogg, were chosen to be the settlers' committee, who who, as may well be supposed, had business on hand for some time in order to restore and 'ensure domestic tranquility,' and 'promote the general welfare.' The thing worked like a charm ; and the value of these associations in Northern Illinois, to the infant settlements, has never been over-estimated. Similar associations were formed and maintained in Somonauk and other portions of the County, until the lands came into market. This event took place in Chicago, in 1843, when all DeKalb County, except the north tier of townships, was sold to the highest bidder - that is, so far as ' terra firma ' is concerned. The moral as well as physical power of the ' Settlers' associations ' was so great, that if a speculator presumed to bid on a settler's claim, he was certain to find himself ' knocked down and dragged out,1 and had the land officers shown the least sympathy or favor to the

' rascal,' there can be no doubt but what an indignant and outraged yeomanry would have literally torn the land office to fragments in almost 'less than no time.' '

The duties of these settlers' committees were onerous indeed. Suits were prosecuted against them with all of the persistence that characterizes litigation in the courts at the present time. Day after day was sometimes spent in the examination of witnesses, the arguments of learned counsel, and of course some one was generally disappointed and angry at their award.

The Claim associations were not without opposition also, and some were disposed to dispute their authority. Two welldefined parties sprang up in the Kishwaukie country, as that section was called over which the organization before described claimed authority. The opponents of the Claim Association Averc called claim-jumpers. They held, not that men had no right to the land on which they settled, but that they had no right to make more than one claim, nor to hold another by purchase. Many rough, reckless pioneers came in at this early day with no intention of settling permanently, but merely to make claims on favorite locations and sell them out. They would roll together a few logs, lay them up in a kind of pen, cover it with bark or shakes, to give it the appearance of a dwelling, and then having blazed around a quarter section of timber, and a mile or more of prairie, they would stand and forbid any one from settling on this claim without paying them some hundreds, or perhaps thousands of dollars, for what they called their farm. And settlers paid, even before the Indians left, hundreds, and sometimes thousands of dollars, for such claims. The tract on Avhich now stands most of the village of DeKalb was so claimed in this way by a Mr. Collins, and $2,000 was paid for the claim in 183fi by the company of which Russell Huntley was agent and manager. Mr. Hamlin paid $600 for a claim two or three miles north of that place, and Ephraim and Riley Hall gave $700 for the claim on his present farm in the town of

Sycamore. In addition to which, the purchaser was of course required to pay the government for the land when it was surveyed and offered for sale by the United States authorities. Such sums were small fortunes in those early days : they were equivalent to ten times as much money at this time; and men were naturally disposed to stand up very sturdily in defence of those ill defined rights of property for which they had paid so dearly. Fights and rows innumerable arose, fierce and fiery quarrels whose embers are even yet smouldering in the breasts of some of those first settlers. Meetings of the settlers' association were called, and new regulations adopted as occasion demanded.

But as soon as the Courts were accessible, litigation began. While this was part of Kane County, the Courts at Geneva its County seat, were thronged with litigants, witnesses, attorneys and officers from this distant Kishwaukie country, and the suits were often by change of venue transferred still farther, to Joliet or other neighboring Counties. One well known citizen who had buried a relative on land that was afterward found to be over his line, was promptly sued for trespass, and after long litigation was compelled to remove the body.

One of the most hotly contested of the claim wars, and which may serve as a sample of many others, was between Mr. Marshall Stark on the one side, and Riley Hall with Noble Barron on the other.

Two brothers, James and Samuel Gilbert in 1835, made claims on the west side of the Kishwaukie on what is now the town of Mayfield, and wishing to move away, Mr. Stark purchased them, paying $550 for the claims. But as Stark already had a claim on the east side of the river, Hall and Barron who denied the right of settlers to hold any lands on which they did not reside, "jumped" Stark's west side claims, fenced in a lot, built a house on each, and moved a family in each house to hold them. This was a decided infraction of claim law, ana Stark found no difficulty in raising a company of some thirty friends to reinstate him. They marched up to the houses where they found their opponents with a few of their friends, armed with a rifle or two, and protected by 'arricaded doors. The assaulting party beat down the door with battering rams, seized the rifles from the hands of the inmates, who feared to shoot into so large a party of neighbors, and then gathering rails and firing, they made a bonfire of the whole concern.

The wrath of the claim-jumpers can readily be imagined. They swore great oaths, and threatened the lives of the perpetrators of this wrong. The first blood in the contest was won by Stark, who at an election held soon after at Frederick Love's, gave a sound threshing to two brothers Leckerby, who belonged to the claim-jumpers party. Not long after, happening to go upon the disputed claim, he was waylaid and attacked with clubs by a party of them, and after a running fight of a mile or more, was lucky to escape with his life. Now commenced a long course of litigation lasting for several years. The case tried first before llufus Colton, then Justice of the Peace, was appealed to the Circuit Court at Geneva before Judge Roberts, thence taken on change of venue to Joliet, then to the Supreme Court at Ottawa, and after many years, finally decided more by good luck than by law, in Stark's favor. But the expenses as usual in closely contested suits, were much greater than the value of the property. A year or two later, the State Legislature passed a statute legalizing sales of claims, thus maintaining the law established by the settlers' association. In the winter of 1839, a party of the settlers came down upon one old fellow who was found in the big woods preparing to jump a claim of one of their friends, and being inflamed with Dutch courage derived from a jug of whiskey, they prepared to hang the poor fellow and would have carried their threat into execution, but that their leaders became alarmed and managed to let the scared wretch run away. He was never more seen in these parts.

The cases in which the Claim Association was called upon to take formal action were less numerous than those in which the people of the neighborhood in which some violation of claim law had been perpetrated, were summoned to meet and enforce by the power of numbers what they thought was justice in the case ; and after the lands had come into market the Claim Association assumed no further authority, yet the sacredness of claims was very generally enforced by a popular understanding that no man should be permitted to enter another's claim.

When in 1843 the lands were offered for entry, many of the settlers had exhausted all of their means in making improvements, and were unable to raise the small sum demanded for entering their claims. These lands were now worth ten or fifteen dollars per acre ; and there was no law except this unwritten claim law to deter speculators from making them their own upon paying the government the dollar and a quarter an acre which it demanded. But so sacred were these claims regarded by these settlers, so strong was the prejudice against their being taken up by others, and so dangerous was it made for the person who tried it, that many valuable farms were occupied for two, three, and even five years after, by men who had never been able to raise the money to enter them, and who had no title whatever, to their possession.

In many cases, however, this regulation was violated, and in some instances mobs were raised who forced the offender to deed back the land to the claimant. These mobs, as is the case with mobs everywhere, even when moved by generous intentions, often failed to understand the merits of a case, and unwittingly did great injustice.

In 1843, an old man named McLenathan, a resident of Sycamore, entered a farm which was claimed by Mr. John Mason of Burlington. The claim organization had then become inoperative ; but there was still this strong feeling in favor of protecting settlers in their claims, so that there was no great difficulty in raising a crowd to lynch the old man if he refused to deed back the land. He was living with Mr. David Finley near Ohio Grove, when on one cold morning in March a company of fifty young men mounted on horseback, surrounded Finley's house, and calling him out demanded that he deed over the land to Mason or he should be tarred and feathered. McLenathan said that Mason owed him money, that he did not want his land but merely to get security for his debt, and that if Mason would pay him his money he would deed him the land. This did not suit Mason, nor the crowd of excited followers, so without more ado they seized him, placed him on horseback and started oif for the woods. Here they dismounted, stripped the gray haired old man, poured on the tar and rubbed on a coating of feathers.

McLenathan still sturdily refused, whereupon they dragged him to the pond of water near by, and threw him in, some of them jumping on him and crowding him below the icy waters. Finally, nearly dead from the cold and more than half drowned, he consented to give up the land, and the deed was executed. The party did not then disperse, but adjourned to a school house near by, and there drew up and signed an agreement to protect at the risk of their lives, the right of all settlers in their claims. A week after, the company were summoned together to put their resolve in force,

A Mr. Mann, of Burlington, had entered some land claimed by one of this party, and they were summoned to compel him to deed it back. An hundred of them were o-athered at this time, and armed with shot guns and rifles, they moved upon I he enemies' works. But this was a different undertaking from that of lynching the poor and friendless old McLenathan. The Manns were a numerous family, and had many friends. They had summoned them to their assistance, and when the party approached their residence they found it defended by a lar^e number of determined-looking men well armed with murderous-looking rifles. Not caring to risk their lives in an attack upon a fortress so well defended, they abandoned tins attempt and dispersed to their homes.

Indictments were found in the Court of Kane County against a number of the party who assaulted McLenathan, but the matter had become so public there that a fair trial could not be had, and it was removed to Kendall County. The leading participants in this attack were convicted and heavily fined.