Vigo County, Indiana - Chapter 23: Early Law-Making, 1891

INDIANA became a separate and defined Territory in 1800. To organize the machinery of the new Territory and enact a code of laws for its government was neither a small nor an unimportant part of the work for her people to do. A convention of the repre¬ sentative men and then a legislature to enact laws was one of the first requisites. Hence the statute laws governing the entire Terri¬ tory which was all then the three counties that covered what is now Indiana and Illinois, commenced with this century.

The statesmen of that day commenced building from the founda¬ tion, and the story of the growth of our system, the law of the land and the judiciary, is an essential part of the history of the country and of our people. It is as instructive, if not really more so, than any other part of our history. From the law-making and executing department of government is the powerful influence as strong in shaping our civilization as perhaps all other things com¬ bined.

The first law-making body in a Territory in those days was the governor, and the three members of the Supreme Court, all ap¬ pointed. These gentlemen would meet, and in two or three days enact the few measures that in their judgment the people required. They would provide for local officers in designated districts, and also for future elections for certain local authorities. Nothing could be simpler or less complex than were these first steps in the formative days of the new government. It would be when the legislature met in the advance grade of the Territory that the first cumbrous and complex enactment would arise which always fol¬ lowed after the general government in adopting nearly entire the Common Law of England.

You may imagine about how plain and simple the following would be to the average ancient, simple-minded pioneer, who knew more about fighting Indians, hunting deer and catching coons than he did about what Blackstone has called the "garnered wisdom of the fathers." The following was enacted in this as it was in nearly all the new Territories : " Common Law of England and all statutes made in aid thereof, prior to the 4th J ac. 1st except 2 § 6 C. 43. Eliz. 8 C. 13. Eliz. and 9 C. 37 H. 8. - not local, with statutes of Territory, rule of decission, shall be the law of the Territory."

This brief paragraph meant a great deal, and even the children in the wild west were " presumed to understand," not only the above, but all of its tremendous implication, and they had to shape their conduct accordingly, even to the "rule in Shelly's case," as well as the subtle lines running in " a distinction without a differ¬ ence, and a difference without a distinction."

Here are the footprints of those good old times - many cent¬ uries ago in the Old World, when the earth's greatest and wisest met in august councils over such practical and important questions of "which was the eldest, the father or the son," or when long and bloody wars followed the earnest, but vain efforts of the wise to settle the question of "how many angels could sit on the point of a cambric needle." When such natural questions arose among an intensely earnest people that had to be settled in some way, the sword and the faggot Avere the only things that could do it, it seems. Men then were mightily in earnest, and it is fortunate that we of this day did not live then and run the elections, because we have come to be too indifferent on many of those subjects that Avere so effectively argued out some centuries ago by men avIio seemed to understand what they were trying to do.

In 1807 a revised code of the Indiana laws was published by John It. Jones and John Johnson. This revision had already become a necessity, it seems, from the conflict of so many acts referring to the same subject matter. This was adopted by the legislature of 1807, and " all former ones (acts) repealed." But after another eight years the same confusion, it seems, again arose, and General W. Johnston (named for General Washington and not for George) published, from the printing office of Elihu Stout, Vin¬ cennes, "A Compend of The Acts of Indiana ." This is now one of the earliest laAv publications of Indiana extant. It is the laws from 1807 to 1814, inclusive, and is dated at "Vincennes, I. T., October, 1815." Some idea of the work, as Avell as of General W. Johnston, Esq., is to be found in the quaint and explanatory preface, which is addressed to

"Prolix prefaces and vaunting assurances do not at all times give an insight into the Avork, any more than gaudy plumage dis¬ covers the viand of the bird - indeed, we often find SAveet and nour¬ ishing meat under homely feathers; and in many works which have but short prefaces, we found ample matter to instruct us.

"In the Compend I have been as laconic as practicable - and to render my Avork servicable and acceptable I have spared no pains to analize the Territorial Statutes, commencing with the revised code in 1807 and ending with the acts of 1814. And to methodize the matter in the plainest manner has been my aim.

"Tlie complicated state in which the Statutes of our Territory are at present, from the variety of acts upon the same subject, suggested to me the necessity of an analysis. To be of some service to my country, and not pecuniary reward, has been my excitement."

This is the most admirable "preface" ever penned. On opening the curious little old yellowed volume and reading General W. Johnston's " To the Citizens of Indiana," I confess that nothing could restrain me from the most careful perusal of the whole.

On the next page is a certificate signed by Isaac Blackford, Davis Floyd, G. B. C. Sullivan, A. Buckner, H. Hurst, W. Prince and John Johnson, certifying they had examined the manuscript and " we give it as our opinion that the design is well conceived and the subject matter disposed of in considerable order."

" The Acts of a general nature are desected and arranged in alphabetical order, with much integrity and all the ingenity at the control e of the author." * * *

" The malitia law of 1813-14 is the only act of a public nature which has been omitted to be analysed and brought into the Compend. The author's reasons for this omission were, that any attempt to systematize the Act would be confused, and his notes have been too prolix ."

From this " Compend " we learn that the first general court established was called the court of common pleas, but the act making it a general court (all jurisdiction, it is inferred) was repealed in 1807. That year appeals were allowed from "the c. p. to the gen. court." (Frequently the courts are referred to as the c. p. and the g. c. )

Burglary was to "be whipped with thirty-nine lashes, and give security for good conduct for three years;" bigamy " whipped from one to 300 lashes and rendered infamous;" "disobedient children may be punished on application to justice peace." The whip¬ ping post was the handy instrument for the punishment of those smaller crimes. "Three hundred lashes and rendered forever infamous " may not seem like much to read of now, but after all it was pretty severe.

terms a year. No jurisdiction in cases of "life or imprisonment for more than one year." In the States what was then the court of common pleas became the county commissioners, with jurisdiction limited to the business affairs of the county.

"The former C. C. (circuit court), as a branch of the general court, had power to try issues made up at bar, and issue execu¬ tion; fine delinquent jurors, and had exclusive cognizance of divorce cases. But all original jurisdiction is arrested from the general court, and this court as a branch abolished," laws 1814.

The county business was taken from "c. p." and given to the associate judges in 1814; governor to appoint during good behavior three associate judges in each county. By this act the " circuit and associate judges to hold a Court in each county and perform all the duties formerly exercised by c. p., c. c. or chancery."

Some of the Latin words and abbreviations are instructive : The plural of dedimus is "dedimus's;" recog. for recognisance; gov., a little irreverent, but hits the old man nicely; c. c. and c. gen., cir and ass. judges; "the c. p. shall issue sqias to another Co."' and "the judge in vaca;" "'till court in course;" "grant ad quad dam;" "the sh'ff ;" "to lease tliro' trustees;" "fi fa to shff;" "the body shall not be taken in exon;" the character is of frequent use; "a copy of the Admon bond " * * and but one " imparl allowed."

" The above 4 salvo's and cures ' etc. Those of viet armies in three years. Accepting of his appointment and failing to descharge his duties - or the clerk failing in 'his'n ,' that is very clever indeed. He shall make out 2 fair Alphabetical lists."

" Any person above 16 years cursing, damming or swearing by god, Christ or the holy ghost shall be fined from 50 cts. to $2." Such words as alphabet and vagrant he uses capitals as well as when speaking of the 44 Servant's Master " and 44 Bastarday "

44 Judges of the genl court may suppress Taverns." But after this sentence the author puts this in parentheses (Quer: Is not this power arrested from them by the circumcission act of 1814. ) This act of 1814 must have been copied from Moses.

" Causing or promoting Cock fighting by betting, Playing Bul¬ lets for a bet, or in any public road. Playing at Cards or any game of hazard for money or property shall forfeit and pay $3."

I don't know whether the old time way of " Playing with Bul¬ lets " was the same as the modern or not - possibly they " knowed it was loaded."

Murder and treason they punished with death, and manslaughter they branded in the hand " M S." They had no penitentiaries, and so they did not seem to miss these improvements very much. They whipped instead of sending to the penitentiary, and yet there were some cases where they confined culprits in the jail. They enacted that every jailer should provide separate apartments for debtors from the ordinary prisoners. So after all they had some mercy for men who could not pay their debts.

Rioters, $16; burglary, whipped; perjury, $60 and incapacitated; larceny, double amount and whipped; forgery, same; assault and battery, not to exceed $100; swindling, same; hog-stealing, $50 to $100; altering marks and brands, $5 and value of animal; killing wild hogs, $10; mayhem, $50 to $1,000; keeping tavern without license, $1 a day; harboring children or servants, $3; selling over the court rates, $20 ; millers taking extra toll, $5 ; bullet playing, $3 ; challenging to fight with fists, $1 to $5.

These are a few of the long list. They must have been very convenient. When a man felt so frisky that he must commit some crime, he could look over the list and choose his partner for the next dance.

The legislature of 1814 established circuit courts in each county, and divided the territory into three districts as follows: First circuit - the counties of Knox, Gibson, Posey, Warwick and Perry; Second - Washington, Harrison, Clark, Jefferson and Switzerland; Third - Dearborn, Franklin and Wayne; to consist of one circuit judge as president, " who shall be learned in the law, and have practiced in some court three years, be a citizen of the United States, and a resident of the Territory. And two associates who shall reside in the county" [Not compulsory to be anything] ; to have jurisdiction in the several counties over all crimes and causes, and hear and determine the same, etc. So far as the actual law business was concerned these associate judges were purely orna¬ mental. The president judge was appointed during good behavior, and his salary was fixed at $700 a year. The associates were to be paid $2 a day for each day's actual attendance.

The legislature of 1813 fixed the following rate of taxes: "Firstrate land shall pay at the rate of 75 cents per 100 acres; second rate 50 cents, and third rate 25 cents, and every ferry not exceeding $10." The courts of the respective counties were allowed to levy one-half of the above on lands for local purposes.

The sheriff Avas required to pay over taxes collected by the first of April. This explanation will render quite lucid the following: "Failing the A (trea) at the next g. c. may motion against him."

Here is another: " The court shall lay a tax on persons of color from twenty-one to fifty-five of $3, and this tax in Knox county shall be appropriated by the court to some public school."

On the subject of schools these men shoAved a commendable pub¬ lic spirit to carry out the provisions of the Virginia grant, and the acts of congress in reserving one section in each township for school purposes. The legislature provided for leasing these lands, but the lessee was not permitted " to cut or destroy sugar trees nor waste timber," and then a clause provides: "The nete proceeds of leases to be applied by the c to the use of schools."

Every slave servant of color from tAventy-one to fifty-five years, $3; horse, mare, mule or ass, 374 cents; retail store, $20; town lots, 50 cents on the $100; tavern, not exceeding $20; billiard table, $50.

Each sheriff, in 1807, was made by law county treasurer, and once a year he was required to make a statement of all the trans¬ actions of the treasurer, and paste a copy on the court-house door during a term of the court. His fees as county treasurer Avere $6 per annum, and he Avas to be fined $100 if he neglected the duties of treasurer.

These are some of the striking items that appear in General W. Johnston, Esq.'s book, entitled the " Compend," probably the first law book ever published in Indiana. That the author assures us in its publication he only desired "to be of some service to my country, and not pecuniary reward, has been my excitement," and in looking carefully over the quaint old volume one could not but realize in part the warning in his preface that " we often find SAveet and nour¬ ishing meat under homely feathers." never be reprinted, because the trade has not the type for a fac-simile, especially in the curious black-faced capitals that are so oddly used as noted in a paragraph above referring to profanity.

I sincerely hope every reader will heartily join me in the great¬ est respect to the memory of "General W. Johnston, Esq.," for his inestimable little book, the Compend.

Some of the conditions of society in the early day is given in a joint resolution of the general assembly of 1818, on the subject of " persons claimed as fugitives from labor," which recited among other things, that there were sundry persons " destitute of every prin¬ cipal of humanity are in the habit of seizing, carrying off, and selling as slaves, free persons of color who are, or have been for a long time, inhabitants of this State," etc., and then they proceed to say, " therefore most solemnly disavowing all interference between those persons who may be fugitives from service, and those citizens of other States who may have a just claim to such service, whenever such claim is legally established we deem it our just right to demand the proofs of such claim to service according to our laws," etc.

This item refers to two things: The return of fugitive slaves to their owners in free States, in which the State solemnly dis¬ avowed any interference, and a species of man-stealing, more profitable and somewhat less risky than horse-stealing, that was at one time carried on by thieves quite successfully. This was to simply go at night and arrest as a fugitive from labor a negro, carry him across the Ohio river, and then south to New Orleans or some southern market and sell him into slavery. There were, of course, men in the South, as there are to-day everywhere, who would buy such slaves, as some men now buy stolen horses, because they could get them cheaper. Hence one of the first laws of Indiana was launched against man-stealing.