•'^T'^^ f - \0 \ 1 ' ;A?i ^::i^f^^^sr?,'<*s.^^ -v^. .^^r::^_ m< -"iC^---^ ■^1^35^:^■ V'7,-. ■^-.Bt^* --f^^-^'.. :ii^;. 3v^ u vs. ^" V '. ' f^ .w '^^ . - Vv ^^^V'h/*^ r:^.. /'I -y - \V^^ risoner named Quigley had escaped from the penitentiary, and had taken five other prisoners with him, and they were never heard of afterward from the prison authorities; but I did learn from another source, somehow, that when he had got his friends out with him he dare not leave them to them- selves, but took charge of them till he landed them in the middle of Kentucky, where he left them. They traveled only nights, sustaining themselves on millv from the farmers' coAvs on the way, and hiding in the bottoms duriug the day- time. CIRCUIT SCENES. 45 Now, it scoiiis to me I ^Ya.s riglit in my conclusion that there Avas a strong prejudice existing against tliat ckiss of citizens, not only on the part of jurors in Chicago, but on the part of the courts up to the highest in the State, by reason of which they could not feel assured that they would have the law fairly administered to them, and when that is the case there must always be great liability that innocent persons will be convicted of crime. Hence it was that I procured a change of venue to ~\Yill county, in Fox's case, and to try him, the first jury ever called m the Circuit Court of Will County was impaneled. There was present in court Cj'rus Walker, a very distin- guished lawyer from Schuyler county, who had come up to make acquaintances and attend court in the northern part of the State. I invited him to take a seat with me, and assist in the trial of Fox's case, and thus introduce himself there. He did so, and took a leading part in the trial. I told him we had a pretty bad case, and so the evidence on the part of the people proved it to be. Mr. King identi- fied the red overcoat, which had been stolen, and also a large black overcoat, which had been found on him. The state's attorney proved that Avhen the prisoner was arrested on the street he had on the red overcoat and over it the black one, Avhich did not quite cover the red coat at the ends of the sleeves, and by this carelessness on his part he was detected, and at the time he had explained he had bought the over- coat of somebody else; in short, this was the State's case. To meet this we produced witnesses who proved that it was frequently so cold in Chicago in July (the time when the arrest was made), that it was necessary to wear two over- coats to be comfortable, and this was the only defense we could present. AVe argued the case to the jury at considerable length, and AYalker especially declaimed upon the climate of Chicago, and commented upon the prudence of the prisoner in having bought two overcoats to protect liimself, and warmly com- mended his example, which should be strictly imitated by every one who had a regard for his health or comfort. 46 EARLY BENCH AND BAR OF ILLINOIS. Xow, this argument to a jiiiy of Chicagoaus would have been sure to have sent our man to the penitentiary at once for a long term of years, but a country jury, who felt no obligation in defending the reputation of the place as a desirable summer resort, some of whom had perhaps ex- perienced the chilling effects of a gale sweeping down from the north, accepted the explanation as satisfactory, and so acquitted the prisoner. ISTow, the only thing which my client had to pay me for my fee was a very fine two-year old colt, which was at Brown's country tavern, which was about half way between Joliet and Chicago, and, as we all returned to Chicago in the stage, when we stopped for dinner at Brown's, Fox turned over the colt to me. I left it there for a few days until I could send for it, and when I did send for it a week later, Mr. Brown said that the thief had come back and claimed the colt, and was about to take it away, stating that he had settled my fee in some other way; but Mr. Brown refused to let him take it, and so I got the colt at last. When I heard this, I confess that my confidence in his statement that he had purchased the coat to keep him com- fortable in Chicago in July, was rudely shaken. It happened also that I tried the case which was submit- ted to the first petit jury ever impaneled in Kane county. It was Wilson v. Wilson. One day while at work in my office a man and his wife, way-worn and dusty, entered, and sought my professional services for the redress of a grievance which they had suf- fered. Both were rather undersized, under thirty jenTs of age, very poorly clad, and were what may be justly termed simple people, without force of will or energy. Their story was that they had come from Buffalo on a schooner, which a week before had been wrecked about two miles south of this city; they and the crew had been all landed safely, after a hard night's experience on the wreck, but they had lost everj^thing except what was on their persons. The woman was evidently enciente, and pretty far advanced. CIRCUIT SCENES. 47 After a day or two's stay in the town, they had started on foot for the country, and when in the prairie about two miles beyond Laughton's Crossing-, where Riverside now is, they had met a drove of horses from Schuyler county in this State, belonging to one AYilson, who was in charge, Avith several men with him. Wilson pretended to be a sheriff, and to have a warrant for their arrest, and did arrest them and detained them about half an hour in the prairie, but finall}^ left them, nearly frightened to death. After they had somewhat recovered from their fright, they turned back, and stopped at Laughton's house at the ford, and told their pitiable story. Laughton had been a client of mine, and they were stren- uously advised to come back to Chicago and state their case to me, with the confident assurance that I would see that justice was done for the outrage. This they did, and hence their appearance in my office as above stated. I immedi- ately took means in a quiet way to obtain the name of the owner of the horses, and leader of the gang, who was yet in town, and before night he was under bail to appear at the next term of the Circuit Court to answer to an action of trespass and false imprisonment. My client's names were Wilson, and that was the name of the defendant. Mr. Scammon was retained for the defense. He succeeded in getting the case continued for one or two terms, and then took a change of venue to Kane county, on an affidavit showing that the people of Cook county were prejudiced iigainst his client so that he could not have a fair trial here. Xo doubt there Avas considerable prejudice against him in the town of Chicago, for 1 had taken an interest in my clients more than professional, and had taken pains to enable them to get a support which they so much needed. Dr. Brainerd and 1 had been students in Rome, ]S". Y., at the same time, and one day in the fall of 1835 he rode up to my office in Chicago on an Indian pony, and stated that he had come here for the purpose of jiracticing his profession. He was about as impecunious as I had been on my first 4S EARLY BENCH AND BAR OF ILLINOIS. arrival hero, and I at once offered him desk-room in my office, and assnred him that I woukl do all I could to intro- duce him where it would do the most good. He went out aud sold his pony, put up a sign alongside of mine, and this was the commencement of the career of one of the most distinguished surgeons and physicians who have cast lustre on the medical profession of Chicago, and the founder of Eush Medical College. He was in the office at the time Wilson first called upon me for advice, and as it was evident that a doctor woukl soon be wanted as well as a lawyer, I introduced him to them, and he took an immediate interest in the case. Indeed, it was an opportunity not to be neglected. I had already introduced the doctor to Mrs. John H. Kinzie, and several other of the leading families on the North Side, and he in- terested himself among the ladies, whose acquaintance ho had made, telling the sad story of the poor ca-staways, and it was not long before he had his patient comfortably housed in a log cabin, and induced a number of lady acquaintances to call upon her to see Vfhat they could do for her comfort, and when the time arrived she had been well provided with a bed, and an abundance of comfortable clothing, and many of the ladies seemed to vie with each other in calling, and brin'^ing provisions and delicacies, to an extent which wealth could hardly have purchased in Chicago at that time. At the proper time Dr. Brainerd attended to the case with a skill and assiduity which at once established him in a respectable prac- tice, and no one knew better than he how to cultivate it in a proper and jn-ofessional way. It may be well appreciated that in the little town of Chicago, as it was, say fifty -five years ago. a case in which so many ladies had felt an interest would be pretty well understood by a large proportion of the peo- ple, and if the jurv' were to be called from the village alone, I think it v^ould have been difficult to have got one clear of prejudice, and indeed, Scammon might have been well justified in taking the change of venue. John Pearson had been elected judge of this circuit at the session of the Legislature (1830-37), and he opened his first CIRCUIT SCENES. 49 court at Geneva, on June 19, 1837, and the first case on the ilocket was that of Wilson v. Wilson, change of venue from Cook county. I had found a witness, who from a distance of half a mile or more had seen the plaintiffs walking on the road in tlie prairie, when they were met by the defendant Avith a drove of horses; that the defendant with several other men stopped and dismounted from their horses and seemed to surround the plaintiffs, and that after half an hour had elapsed they remounted their horses, gathered up the drove, and proceeded with them toward Chicago, and that after the ex]>iration of another half hour the plaint- iffs had returned along the road to Laughton's house, when they appeared to be in a much demoralized and frightened condition. At that time the parties to a suit, or those who had even a remote interest in the result, could not be allowed, or forced to testify, so that what actually took place at the time of the stoppage in the prairie could not be explained to the jury, but I had an undoubted right to draw the most unfavorable inferences against the defend- ants, which could be justified from the facts proved, and I made the most of this right. It is easy to imagine the pic- ture which I drew of the outrage and suffering of these \)ooY people, out there in the lonely prairie, at the hands of these beastly and lecherous ruffians, who were as destitute of sympathy and compassion as they were of decency and morality. I also took out with me Drs. Brainerd and Goodhue, and proved by them the dangar to the woman incurred b}'' such outrages as that complained of. ]^o witnesses were introduced for the defendants. My intention was to make a short opening of the case a^nd to make my great effort in my closing speech, but as I arose I cast my eye toward ]\fr. Scammon and saw at once that he had made up his mind that if I only made a formal opening he intended to submit the case without further argument, so I instantly changed my ])urpose, and went at it in earnest, going over the whole ground, and insisted upon a verdict 50 EARLY BENCH AND BAR OF ILLINOIS. ■which would not only compensate them for the injury done them as far as that could be done with money, but would also teach other evil-doers to avoid this part of the State at least, when they proposed to commit such crimes. This forced Scammon to address the jury in the interest of his clients. He could make but little headway in his attempt to maintain that I had not proved a technical arrest and trespass, but loudly and earnestly insisted that the inferences which I drew as to the extent of the outrage com- mitted were entirel}^ gratuitous and not true in fact. He hardly asked for an acquittal, but his great effort was for a nominal, or at least, a small verdict. The jury was out but a little while, when they returned with a verdict of " guilty," and assessing the plaintiff's dam- ages at $4,166.66, which amount at that time was considered simply enormous, at lea"st in this part of the State, for a tres- pass to the person. Scammon made a motion for a new trial, which was promptly overruled, and judgment entered for that amount. So it was that I tried the first jury cases ever tried in the Counties of Cook, AVill and Kane. II. PKACTICE IX EAKLY DAYS FOLLOWIXG THE CIRCUIT ITINER- ANCY INCIDENTS. In the olden time in Illinois, say prior to 1850, the circuit system of practice was in vogue in legal life, and ])resented incidents and peculiarities which are entirely wanting since the country has become more populous. With the growth of the cities and towns, resident lawyers of ability and learn- ing are found in every county seat at least, who recpiire no assistance in the conduct of the most important cases. It was not so in the early days. Then the few local lawj^ers who had settled in the county towns were generally new comers, without experience and self-confidence, and both they and their clients depended largely on the assistance CIRCUIT SCENES. 51 from abroad, especially at the trials of causes. This state of things necessitated a class of itinerant lawyers whose ability and experience had secured to them reputations co- extensive with their judicial circuits, and, in many cases, throughout the State. These were few at hrst, but with the increase of po])ulation and business their numbers increased, Avhile their theaters of action became more circumscribed. At first they, with the judge, traveled on horseback in a cavalcade across the prairies from one county seat to another, over stretches from tifty to one hundred miles, swimming the streams when necessary. At night they would put up at log cabins in the borders of the groves, where thev fre- quently made a jolly night of it. This was a perfect school for story telling, m which Mr. Lincoln Ijecame so proficient. It was, indeed, a jolly life on the border, the tendency of which was to soften the asperities and to quicken the sensi- bility of human nature. Here was unselfishness cultivated, and kindliness promoted, as in no other school of which I liave knowledge. This circuit practice required a quickness of thought and a rapidity of action nowhere else requisite in professional practice. The lawyer would, perhaps, scarcely alight from his horse when he would be surrounded by two or three clients requiring his services. Each would state his case in turn. One would require a bill in chancery to be drawn. Another an. answer to be prepared. A third a string of special pleas, and for a fourth a demurrer must be interposed, and so on, and all of this must be done bgfore the opening of the court the next morning. Then perhaps he would be called on to assist in or to conduct a trial of which he had never heard before, just as the jury was about to be called, when he must learn his case as the trial i)rogressed. This requires one to think cpiickly and to make no mistakes, and to act promptly to take advantage of the mistakes of the adversary, who was probably similarly situated. It is sur- prising how rapidly such practice qualifies one to meet such emerirencies. 52 EARLY BENCH AND BAR OF ILLINOIS. Those early settlers had not much money to pa}'" lawyers' fees, but they would generally pay something and give notes for the balance, or, perhaps, turn out a horse or a colt in payment. These would probably serve to pay tavern bills, and a horse or two might be led home or sold on the way. Fee notes formed a sort of currency at a county seat about court time and could frequently be sold* to a merchant or the landlord at a moderate discount. A town lot or an eighty of land would sometimes be taken for a fee, espe- cially when it had been a part of the subject-matter of the litigation. The southern part of this State was first settled, and so leg-al tribunals were there first established. The first set- tiers were mostly immigrants from Kentucky and Tennes- see, with some from Virginia and the Carolinas, though many were from the Eastern States. The lawyers from the Southern States were in the majority, while the Eastern States furnished many able lawyers as well. Among the former I may mention S. T. Logan, Judge Young, Arche AVilliams, O. H. Browning, Thomas Ford, J. T. Stewart, J. J. Harding, Col. Snyder, and many others; while among those from the East I may name Lockwood, Breese, Baker, Mills, Kane and others. All of these men would have ranked high at any bar, and were thoroughly read in the fun- damental principles of the law. Later came Lincoln, Davis, Treat, Douglas and Trumbull, all able men. It may be remembered that all were young men then and fond of amusements and pastimes and practical jokes, and after the pressure of the first few days of the court was over, they spent their evenings, and I may say nights, in hilarity, which was at times, no doubt, boisterous. For instance, Benedict, who had a fog-horn of a voice, which he used most recklessly when excited, and who had been roaring to a jury at an evening session, was met when he came to the tavern, by the sheriff, with a bench warrant, on an indict- ment " for making loud and unusual noises in the night time," and soon a court was organized and he was put upon CIRCUIT SCENES. 53 liis trial, and before inidiiight he was convicted and sen- tenced to repeat the offense in arguing a motion for a new trial, or to ]iay a heavy line, upon the ground that two affirmatives would make a negative, or that the hair of the same dog Avould cure the bite. It was said that he fairly outdid himself in that effort, so that he aroused the whole town from their slumbers, and he came near being fined for overdoing it. Judge Young was a good performer on the fiddle and thus contributed much to the hilarity of circuit life. As the settlements extended into the northern ])art of the State, this circuit system of practice came with them, and for a time prevailed in all of its pristine beauty, except in Chicago alone, where the visits from foreign lawyers were only made upon special retainers and in important cases. I saw Mr. Lincoln here several times engaged in important cases. Under the old circuit system, when the State was divided into five circuits, and a circuit judge was elected for each, John York Sawyer was judge of the Vandalia circuit. He was not a tall, nor a very stout man, but carried in front about the largest bay window for his size I ever saw. He presided in a very suave way, but with a fixed determina- tion to do ample justice and without a very scrupulous regard to forms, es])ecially if those forms did not suit him at the time. It was related to me that on one occasion Hubbard, who had a considerable practice, argued some question before him at great length and with great confi- dence, and concluded Avith an air of assurance which de- clared that he knew he could not be beaten this time. The judge in his decision praised Hubbard's argument and fol- lowed it all the way through, especially emphasizing the weakest ])arts of it, as if he was greatly impressed with them, and then decided against him without stating a single reason for the decision. This enraged Hubbard terribly, and he could hardly wait till court adjourned and the judge had retired before he gave vent to his indignation to the members of the bar and other by-standers, in terms forcible 54 EARLY BENCH AND BAR OF ILLINOIS. if not elegant, and in conclusion he said : " I tell 3^ou, gen- tlemen, what I am going to do about it, and so you may prepare yourselves with smelling bottles or cover these streets with quick lime; I am going right now to hunt up that offensive mass of bloated humanity, and I will relieve his corpus of a peck of tadpoles the first slash." But he did not do it, and I was told that the facetious judge, when told of it, laughed heartily at Hubbard's rage, regarding it as an excellent joke. Another circuit scene, in which we may see how Judge Sawyer administered the law, may be given as it was told to me by Judge Ford, soon after I made his acquaint- ance, in 1834. At the time of which he spoke, horse thieves were pun- ished at the whipping post, and Ford always insisted that it was the most deferent punishment ever inflicted for the punishment of crime. He said he had often seen criminals receive a sentence of ten years or more in the penitentiary with apparent indifference, but he had never seen a man sentenced to be whipped who did not perceptibly wince, and that the most hardened would turn pale and shudder. A man who had been indicted for horse stealing, had re- tained General Turney to defend him. The general struggled hard for his client, but the proof was so clear that the task was hopeless, and the jury, after a short absence, returned a verdict of guilty. The general immediately entered a motion for a new trial and was about to proceed to argue it, when the dinner bell at the tavern hard by, where they all boarded, Avas heard loudly calling all to dinner. Judge Sawyer, as I have said, was a man with a verj^ ]irotrudent stomach, and he especially prized his dinner. The judge interrupted the counsel, saying : " General Turney, I hear the dinner bell now ring, so the court will adjourn till one o'clock, when I shall take pleasure to hear you on your motion for a new trial." So the court was adjourned till one o'clock, but before the judge left the bench he motioned the sheriff up to him, and in a determined whisper, said : CIRCUIT SCENES. 55 " AVliile I am gone to dinner take that rascal out behind the court house and give him forty lashes, and mind you lay them on well, and tell him if he is ever caught in this county again you will give him twice as much." After the Avhipping the culprit was turned loose and was taken charge of by some of his friends, who washed him off and bathed his lacerated back with wliiskey, and dressed him, and when he had taken some dinner he hobbled dowm the street, and as he passed the court house he heard the general's loud voice and crossed over, and soon discovered he was earnestly pleading for a new trial in his case. This horrified him, and he rushed into the house and cried out, " For God's sake don't get a new trial. If they try me again they will convict me again, and then they will whip me to cleath." The general stood aghast for a moment and said, " What does all this mean 'i " With the utmost composure the judge replied: " Well, General Turney, I thought we would make sure of what we had got, so I ordered the sheriff to whip that rascal while we were at dinner, and I trust he has done so. But go on, general, with your argument, for I am in- clined to be with yoii. I think another whipping would do him good." III. TRIAL OF A MURDEREE. In tlie year 1S32 there lived in the bottoms of the San- gamon river a middle-aged, rough and savage man, whose disposition was quarrelsome, whose habits were intern j^erate, and whose means of livelihood were suspicious. In fact, his re])utation was bad. He lived in a small log cabin with a truck patch near by, which was grown up to weeds more than to vegetables, and he had a small field of corn sur- rounded by a slash fence, which was badl}'^ cultivated by his wife and children^of whom there were several — about as rough as himself. The children grew up wild and un- 56 EARLY BENCH AND BAR OF ILLINOIS. kempt. He had an old vragon, a plow, one co\v and sereral young cattle growing up, and a small drove of hogs which ran in the bottoms and lived on mast. A few chickens scratched around the old log stable and a couple of hounds completed the inventory of the effects owned by the settler, if we add to it the inevitable long barreled rifle, by means of which most of the meat was supplied. This hopeful voter when in his cups in Springfield, picked a quarrel with a peaceable citizen and killed his man. He was indicted for the murder, and employed Gen. Adams, an old lawyer, who had not professedly quit practice, though most of his prac- tice had quit him. But he was still smart enough to look out for the main chance, so he drew up a bill of sale cover- ing every possible thing about the prisoner's place, except the wife and chddren, which was duly executed, and a few days before the trial he sent some men up, who brought away every movable thing which they could find — except the old bed and table, which were not worth bringing— the cow and the calves, the horse, the wagon and the plow, the hogs and the chicks. As the poor woman stood in the cabin door with her little brood of children gathered around her and saw everything driven away but the hounds, it is said that she actually shed tears; accustomed as she was to hardship and privation she now felt a desolation which she had never known before, and perhaps for the first time, a sigh of grief escaped her. Well, the trial came off and his counsel did the very best he could for his client. He pictured in eloquent terms to the jury, the wife and children mournfully bowed down in prayer for the deliverance of the husband and father, whose destinies were now placed in their hands. It was for them to say whether he should return a free man to gladden his humble home Avith his presence once more, or whether it should ever remain as one of desolation, without support, and without hope. The general's eloquence was of no avail; perhaps the jury had heard of the manner in which the genei'al had collected CIRCUIT SCENES. 07 hir, fee, which must have tended to pluck the feathers from the sympathetic expressions poured forth in the counsel's eiJfort. The jury found the prisoner guilty and he was sentenced to be hanged. About that time the papers Vv'ere full of accounts of the marvelous pro})erties of electricity. It was said to l)e capable of actually resuscitating dead persons, and the doc- tors of Springfield determined to experiment on this suljject, and made arrangements with the sheriff to give them the body as soon as it should be cut down, that they might test the elRcacy of electricity in an attempt to restore the dead to life. The sheriff determi ned, however, that the test should be real and no humbug, so he kept the subject hanging for a ffood half hour. So soon as it was cut down it was hurried away to a doctor's office, Avhere the culprit's counsel, with several other lawyers, were invited to be present to witness the experiment. The subject was quickly stretched on a table, and the poles of a powerful galvanic battery were applied to various parts of the body. The eyelids were made to wink, arms and legs were made to strike and kick, though feebly, but the luno^s and heart obstinatelv refused to act, and finally the doctors had to admit that their efforts were as futile to restore the man's life as had been those of the lawyer to save it. The sheriff had done his job too well. It was then proposed to examine and see what had been the effect of the fatal noose upon the neck, so they went to work and removed the skin from the neck. During all of these operations Gen." Adams had been leaning on his cane looking upon this scene with a long and sorrowful face, for he was not accustomed to the scenes of the dissecting room, and near him stood Ben. Mills, one of the most eloquent and witt}' lawyers who ever ])racticed in Illinois. At length Adams turnetl to Mills, and said: '• Brother Mills, it is, indeed, a sad sight 16 see a fellow 58 EARLY BENCH AND BAR OF ILLINOIS. mortal, who is made in the image of God, tlms miitihated and cut up as if lie were a brute beast." " Yes, yes," said Mills, " It does look pretty bad, no doubt, but for your consolation, brother Adams, I may say that it is ver}^ seldom that a lawyer has the pleasure of see- ing his client twice skinned." The old man gave a sudden twitch as if he had felt a bodkin stuck into him, and then slowly turned around, his eyes rolling as if in pain, and said: '' Brother Mills, if it is just the same to you, I would rather you would not say that any more." I tell the tale as it was told to me. IV. CIRCUIT COURT HELD BY THREE JUSTICES OF THE PEACE THE LEAD MINERS STORIES OF BENCH AND BAR. There is a small chapter of judicial history of Illinois, which it may be well to record in these later days lest it be entirely forgotten, and that is that a Circuit Court was once held by three justices of the peace. On the 27th of February, 1827, an act was passed organizing the county of Jo Daviess, and placing it in the first judicial circuit. In section 4 of that act this provision was made : '' In case the judge of the Circuit Court of said county can not attend at any regular term of said court, it shall be his duty to notify the clerk of said court of the same, who shall immediately, on receiving such information, notify all the justices of the peace of said county; and it shall be the duty of the justices of the peace, or any three of them on receiving such notice, to attend and hold said Circuit Court -;f -K- * (provided that when sitting they shall have the same jurisdiction as Circuit Courts, except capital cases). " The isolated condition of this county more than sixt}^ years ago, separated from the settled portions of the State by great distances, and the necessity for legal tribunals for settling disputes involving large pecuniary interests grow- CIRCUIT SCENES. 59 ing- oiit of the lead mines which had been discovered and Avere then kxrgely wor]i;ed, no doubt suggested this necessity for some extraordinary provision to insure the holding of the Circuit Court, in case the judge of the first circuit should be unable to attend; and no doubt, though the emer- gency which gave rise to that provision of law ceased to exist, and went out of mind and was cpiite forgotten, so far as I have been able to discover, it has never been repealed; and if that be so, it is still the law, and the judge of that circuit might give the necessary notice of his inability to attend, and that court might still be held by three or more justices of the peace of that county. Placing the county in another circuit, and providing for a judge to hold the courts in that new circuit, could not have the effect to repeal this portion of the statute, any more than another portion which created the county of Jo Daviess. In pursuance of this law the first Circuit Court in Jo Daviess county was held by three justices of the peace. In order that I might be sure that my information on this point was correct I wrote to J. C. CXeill, Esq., clerk of the Circuit Court of that county, for information on the subject, and received from him the following reply: " Our records show that the first term of the Circuit Court in this county was begun and held on Monday, the second day of June, A. D. 1S2S. The judge of the circuit not appearing, and the justices having been notified, the following justices ])resided: John Conley, Hugh R. Colter and Abner Field. The attorney-general not attending nor deputing any per- son to prosecute for him, the court appointed Jonathan H. Pugh to prosecute for him. At this term Thos. Bennett was foreman of the grand jury. The first judge who ap- pears to have presided here was Richard M. Young, at a term begun and held on Thursday, the eleventh day of May, 1S29." When the tract of country north of the Illinois river, and especially the militar}^ tract, became settled up to a con- siderable extent, the necessities for legal tribunals made it 60 EARLY BENCH AND BxVR OF ILLINOIS. imperativ^e that more judicial force should be brought into requisition than the four justices of the Supreme Court could afford, so, on the eighth of Januar}^, 1829, a law was passed providing for the election of a circuit judge, who should preside in the circuit to which he might be ap- pointed north of the Illinois river, and fixing his salary ac $750 a year. No law was ever passed expressly creating the fifth circuit, but it was inferentially created by the law, and was passed the 19th of January, 1829, which named tlie counties which would constitute the fifth circuit, of which Jo Daviess was one, and providing that Kichard M. Young should hold the courts in that circuit. Most of the lead seekers who constituted the population of Jo Daviess, went up the Mississippi river from the southern part of the State. Their practice was to go np in the spring and work at lead mining during the summer, and to go down the river in the fall and spend the winter in a warmer climate. This annual migration up and down the river, corresponded exactly with the habits of a fish found in the Mississippi, well known as sucker, and hence that appellation was a])plied to those migratory miners, and was soon thereafter a]iplied as a general name to the inhab- itants of the State. I am aware tliat some ])arties have sought to change the orthography of the word to " succor " as being more complimentary at least, but this is the origin of the word as given me when I first came to the State, fifty- five years ago, and I have no doubt of its truth. These justices of the peace, as well as the constables and" sheriff, were elected from among the miners. Many of these were Irishmen, whose enterprise pushed them where- ever hard work was to be done, and a reasonable reward for it was to be obtained. Even then, they were not averse to holding office, and so the sheriff and justices of the peace were all of that nationality, and were said to as well enjoy keeping the peace by breaking it, as in any other way. Disputes about mineral claims soon aro33, many of them involving large pecuniary amounts. These had to be set- CIRCUIT SCENES, 61 tied bv legal tribunals as soon as they were establish c.l there, and so invited the presence of able lawyers. Among those practicing there when I came to the State I may men- tion Ben Mills, and James M. Strode, who was in command of the militia at Galena, in 1S^>'2, when martial law was there declare 1. As the time for holding the court ap])roached, it being understood that Judge Young would not be present to open the court, the justices of the peace who were to perform that duty, applied to Mr. Mills for information as to how they should proceed. This facetious gentleman gave them all necessary information as to the mode of ];roceeding, and especially he enjoined upon them to maintain the dignity of the court at all hazards, and especially to allow no one to address the court without special permission, or when called upon. This part of their duties was particularly dwelt upon, and above all others was treasured up in their memories. Among the other members of the bar present when the court was opened, was an Irish lawyer named Nagle. Being ambitious to be first to place his name upon the records of the court, so soon as that august tribunal was pro- claimed by the sheriff to be open, Nagle jumped to his feet and made some motion. The presiding justice at once ordered him to take his seat, and not to open his mouth again until his betters had spoken; that he must learn to respect the dignity of the court, and not to speak again until he was called upon. Xagle felt himself greatly outraged at Ijeing thus summarily sup])ressed, and with great animation declared : "It seems to me that your honor is damnal)]y impregnated with dignity this mornin'." The court was now more shocked than ever at this new affront to its dignity, and at once ordered the unlucky attorney to be hastened to jail, and there to remain until he learned respect to his betters, and subject to the further order of the court. The burly sheriff at once seized the unluck}" offender, and in spite of his uproarious protests hustled him off to the log jail, where he was told he would have to live on bread and water for an G2 EARLY BENCH AND BAR OF ILLINOIS. indefinite time, and a constable was ]")]aced in charge of tlie prisoner to see that he did not pull the jail down or crawl through some of the cracks. After this the business of the court went on with ^reat regularity. Mr. Mills, as the oldest member of the bar pres- ent, was first called upon to make himself heard, and then the other members of the bar according to their seniority. Mills appreciated that his crammings had been but too Avell relished, and he at once interested himself to get poor Xagle out of his scrape, which he found no easy task. In his name and on his behalf he made most abject apologies, and ex- pressed the greatest contrition, which JN'agle himself would, no doubt, have repudiated had he known of them at the time. He, however, did get him released after a day or two's confinement, and it was never heard after that, that the court had ever cause to complain of any disrespect to its dignity, when held by those justices of the peace. This was the relation as given me by Judge Young himself, as he heard it in Galena, when he held his first court there. He further said that after he had opened the court the lawyers got up one after the other and made their mo- tions, and the business proceeded in the usual quiet way. After he adjourned court for noon, while he was walking up to the tavern for his dinner, he Avas accosted by one of those same justices of the peace. Avho said : '' Well, Judge, I see those laAvvers are having dorad foine times here Avitli you." " Oh, yes," replied the judge, " we are getting along very finely, I think." " Yes, yes," said the justice, " but ' doni 'em, when v>'e held court we made 'em squat." V. PKAGTICE IN ANOTHER COUNTY— DEFENSE OF ONE ACCUSED OF THEFT. In the spring of 1S35, 1 determined to extend my practice to Putnam county, which was a large county tlien, and the oldest settled in the northeast part of the State. I started on CIRCUIT SCENES. 63 horseback from Chicago, and on my way from Ottawa to Hennepin I fell in with Thomas Ilartzel and George B. Willis, both of whom I had met in the first political conven- tion ever held in Illinois. It met at Ottawa, on the 4th of March, 1834. Dr. David Walker, of Ottawa, was president, and I was secretary. We nominated one senator and one representative for the district, embracing all of the north part of the State, including Peoria. I was glad to meet them again. They both were old residents of Hennepin. I ex- plained to them that I was going to attend their court, and inquired as to the amount and character of the business in the court and of the lawyers Avho usually attended. They said there was right smart of business there, and there was talk of more, and some of it pretty important, and that there were some criminal cases on the docket; that there was but one lawyer in Hennepin, a young man just come in, named Thomas Atwater, who had never been in court yet. They would be glad to help me all they could. There Avas a man in jail for larceny, and if I could get him off it would make me famous. " Probably," said I, " the man is guilty and the proof clear;" if, so the condition to success which they suggested was rather hard. They said it did appear to be a pretty bad case, as one witness swore that he saw the prisoner steal the goods, and that he had confessed before the magistrate that he did steal them. But he had friends in the town that still had their doubts about his guilt, and there was quite a general feeling that there was a sort of mystery about it that needed explanation, which might be possible with shrewd management. But he was not my client, and I saw no likelihood that he ever would be. True, he was poor and unable to fee a lawyer, else those from abroad, Avho had been in the habit of practicing there, would surely be employed. If the court should have to assign him counsel I might stand some chance, as the young lawyers are most likely to be selected 64 EARLY BENCH AND BAR OF ILLINOIS. who have no other business in court. But Judge Breese was to hold the court, and I had never met him, and he might not think it safe to intrust the case even ]]artially in my hands. I stopped at the tavern kept by my friend Willis, and in which the larceny had been committed. I was industrious making the acquaintance of everybody 1 could meet. The judge and several lawyers put in an appearance in the afternoon of the day after my arrival, and I soon made their acquaintance; I tried to be unassuming, but not restrained. At first I thought Judge Breese was a little reserved, but when, on comparing notes, we discovered that we both came from Utica, N. Y., his bearing seemed more cordial. He had left there sixteen years before, I had come from there but two years before, and he had many things to inquire about relative to his old home, and of course, I could tell him much that was interesting to him. He opened court the next morning in an unfinished frame building and organized the grand jury, Avho, in the course of an hour, brought in a true bill against Pierce for grand larceny. The state's attorney at that time was James Grant, of Chicago, now Judge Grant, of Davenport, Iowa. Pierce was soon brought into court, when the judge asked him if he had counsel, and lie replied that he had not, and had nothing with which to pay a lawyer, and in answer to an inquiry . of the court he expressed a wish that counsel might be assigned him. The judge then asked me if I would undertake the pris- oner's defense, assisted by Mr. Atwater, if he would consent to assist in representing the prisoner. . We both consented and were allowed to take our client out of doors and confer with him in the shade of a tree. I then told Pierce that the first thing for him to do was to tell us the exact truth, for if he was guilty we could make a much better defense for him if we knew it, and all of the attendant circumstances, and that if he were innocent, it was all important that we should knovf" it, certainly. t^lDNKV r.HEESE. CIRCUIT SCENES. 65 He then asserted in the most solemn manner that ho was entirely innocent of the larceny, and his explanation of his confession of guilt was, that after the larceny had Ijoen dis- covered, and the goods had been fonnd in a trunk which belonged to him or his wife, she had come to him and told him that Thompson had persuaded her to join him, in steal- ing the goods, and that they together had taken them from the box and jmt them in the trunk; that under this pres- sure, and in order to give his wife a chance to escape to Cincinnati, where her mother lived, he had confessed he stole the goods. That after he had made the confession, Thom])3on had come up and swore that he saw him steal them. That Thompson was a bully and a ruffian, and everybodv was afraid of him. The story was told in such a way as to convince us both of its entire truth. Pierce was evidently a simple-minded, rather a weak-minded man, who could be persuaded to do anything by an artful, and, probably, a bad woman. But how were Ave to prove the truth ? The conviction that he was innocent made us anxious to prove it if tlie proof existed. We had but little time to prej^are the defense — to rake up every thread and every circumstance which carefully woven together might tend to prove his innocence, for the trial was set for the next morniup-. Whatever was to be done, must be done in a fcAv hours. The first ray of light we got was from Pierce himself who said he was sick on the night of the theft — so sick indeed that he could not have loft his bed. Following this clew we got the name of the doctor who attended liini and of an old woman who had nursed him that night. AVe now felt that we had made some progress and separated till after dinner. In the meantime Atwater Avas to find the doctor and the nurse and get their stories. I walked down the street alone toward my hotel, medi- tating. My attention was presently attracted by a subdued voice, and, as I looked up, I saw a man coming toward me QQ EARLY BENCH AND BAR OF ILLINOIS. Avith a quick step. When he came up he asked me if I wns to defend Pierce. I told him that I was. "Well," said he, " he is innocent; and if you will go a mile and a half on the other side of the river you will come to a loghouse, in which live a couple named Fitzgerald, They know some- thing to help you. Good day, sir," and he turned quickly and walked away, looking about him as if ho was afraid of being seen. I ate m}^ dinner hastily, took my saddle-horse, and soon crossed the river on the ferry-flat and galloped awa}^ across the river bottom till I reached the blulf, where I found the log cabin. When I entered the house I inquired of the good woman who met me if her name was Fitzgerald. She said it was. I told her that I was appointed by the court to defend Pierce on a charge of larceny; that I was convinced of his innocence, and understood that she and her husband knew something about it. She was evidently not pleased with ray visit, and at first denied knowing anything about it, and said people got along best who minded their own business, I represented to her the enormity of the crime of letting an innocent man go to the penitentiary on the testimony of a perjured scoundrel like Thompson, who was himself the thief, and that she could never sleep well, if she refused to tell what she knew that would save an innocent man and shield the guilty one; that if she did this the ghosts of in- nocence would haunt her all her life, and that I would see that Thompson left the country quick or went to the peni-- tentiary so that he could harm no one. She began to weaken at last and finally went out and called her husband. He showed the same reluctance, and I had to go over with my reasonings and persuasions again with both. At length they fairly gave in and the old lady said she would tell me all about it; let what would come, she woukl not have innocent blood on her hands. She said that the night of the larceny she and her hus- ancuiT SCENES. 67 band slept in a bed at the bead of the stairs; that during the nioJit thev heard a noise in a room below: that thev l)oth got up and carefully crept down the stairs, and there they saw through the cracks in the lathing not yet plastered, this man Thom])son and Mrs. Pierce take the goods out of the box and put them in the trunk where they were found, and that Pierce was not tliere at all. They both promised to come to the court the next morning and tell all they knew if the devil stood at the door, I was now happy and made ver}'' fast time l)ack to town and was quick in sending the sheriff over with a subpoena f^r both to make sure work of it. I now felt sure that we would acquit our man. Of course, not a word was lisped, even to Pierce, of the witnesses I liad found ; my absence had been unaccountable to Atwater, till told of the result, when we met after my return. Then I learned that he had found the doctor and the nurse, and that they would both be on hand and testify that Pierce was too sick that night to have left his bed and committed the larceny. I did not sleep very soundly that night, for I was too busy thinking up the speech I would make to the jury. It was manifest that the more I should abuse Thompson, the better it would take with everybody, for he was both hated and feared, and the man w^ho dared to abuse him roundly would do a ]5opular thing, and then when I should have proved his perjury and larceny, all would admit that he would deserve all I could give him. I piled up all of the bitterest epithets I could think of, whicli I would hurl at him in such a deluge as would even make him hate him- self. I had no fear of personal violence from him, bully as he professed to be. I was young (twenty-three years old), and weighed 190 pounds, was active and of exceptional strength, and felt perfect confidence in my ability to take care of my- self. He seemed about fifty years of age, and to weigh about 175 pounds. 6S EAIiLY BENCH AND BAR OF ILLINOIS. 4 We were promptly on hand at the opening of the court the next morning, and soon after liatl the satisfaction of seeing the nurse and doctor appear and take back seats, and shortly after Mr. and Mrs. Fitzgerald came in and mingled with the crowd of spectators who now began to iill the little court room, Avhile many more were seen on the outside, as if a considerable interest was felt in the ])roceeding, for it was generally understood that Pierce's trial was to be the first real business transacted. We had been strictly silent as to the evidence we had discovered, but somehow there seemed to be a general ex]iectation that souie imjiortant de- velopments might be made. I was especially gratified to observe that Thom])son was there. He took a front seat, with an air of confidence, if not of defiance, befitting that of a bold thief and a bully who was ready to commit perjury to cover up his crime. Pierce had been brought in and was seated beside us at the bar, which consisted of a plain deal table about six feet long and three feet wide. He was pale and nervous and fairly shivered from weakness resulting from his recent sick- ness and confinement in the little log jail. He felt that though innocent he was already condemned. He could see no way of esca])e, for we had felt it our duty to conceal our discoveries from him as well as all others, for Thompson must on no account get the least inkling of them, i encouraged our client with the positive assurance that lie would be acquitted, and finally that we had found evidence which would clearly show his innocence. Tliis helped him some, but it coukl not entirely dispel his despair. I did not regret this, for his woe-begone appearance was a powerful appeal to all for sympathy and pity, which of itself would liave been of great service in a doubtful case. As yet the jurors were dispersed among the crowd and must, to a cer- tain extent, partake of their feelings. When the case was called we announced our readiness for trial, a jury was soon impaneled, and the state's attorney made a short opening. He stated that the trial was a CIRCUIT SCENES. GO mere form, wliicli the lavr required before the prisoner could be sent to the ])enitentiary. That he wouhl ])r^ that he did not care a but- ton for him. I next called the nurse, and she testified that she had been with the prisoner almost the entire night referred to. She shoAved him to have been fully as sick as the doctor had done. That he had suffered very much and was so Aveak that he could not turn in l)ed without help. That she was positively certain that he did not leave the room that night, and that he could not have done so had his life depended on it. She further stated that ]\Irs. Pierce did not come near her husband during all of that terrible night, and had not been seen in his room since some time in the afternoon be- fore. It was evident that the state's attorney now began to appreciate that there might be something real in this defense and that it was not impossible that he was relying upon perjured testimony to convict an innocent man. His cross-examination of the nurse was sliort and formal. I now called Mrs. Fitzgerald, who came forward with a firm stej3 and firm look which manifestly said she was no longer afraid of Thompson. She told how she and her hus- band were sleeping in the chamber near the head of the stairs, when about midnight they were awakened by a noise in the room below, when they both got up and crept softly down the stairs, on which they seated themselves, and plainly saw through the crack "in the lathing, this man Thompson, whom she pointed out, and Mrs. Pierce, take the goods from the dry -goods box, carry them across the room and place them in the trunk. AYhen the trunk seemed full they closed and locked it and Mrs. Pierce put the key in her pocket; then both took the trunk and carried it to a corner of the CIRCUIT SCENES. 73 room and left it; that there wa,s one candle in the room; Avhen the trunk was set down they hastened back to theii- bed without waiting to see when or where Thompson and Mrs. Pierce went. In this case there was a cross-examination on the matter of identity, but it only served to convince every one that the woman knew what she was talkino; al)out, and that it was certainh" Thompson and Mrs. Pierce that she saw steal the goods. I next called Mr. Fitzgerald, and, as I have often observed in other cases, " the gray mare proved the better horse;" still, he corroborated his wife, which was all I wanted of him, though not with the decision and firmness which she had manifested. But I cared nothing for that; I kneAv that Ave already had enough testimony in to convince every rational mind that Pierce was an innocent man and that Thompson was a very wicked liar. With this witness Ave closed our case. Mr. Grant proposed to submit it to the jury Avithout argument. But Ave could not think of throwing away such an o]3por- tunity and merely said that Ave had a duty to i)erform to the prisoner, Avhich Ave could not omit, and must present our vicAvs of the case to the jury. The state's attornev then oi)ened the case IjrieflA', thoufli he did as AA^ell as any man could have done. It Avas mani- fest he felt that the defendant Avas innocent, and that he Avas asking the jury to convict him upon perjured testi- mony. Atwater followed Avitli his maiden speech, which AA'as a very good one. He grouped the testimony together very systematically, and shoAved how each part supported every other, all pointing to the absolute innocence of the accused. My turn to address the jury noAv came. As I arose I felt as if every friend 1 had in the world Avas whispering to me that I must noAv make a supreme effort, not so much for mv client, for he Avas noAv safe, but for myself. In fact, I Avas fairly saturated Avith my subject, and the danger Avas that I 74 EARLY BENCH AND BAR OF ILLINOIS. should slop over and say too much or not at the right time, or in the right way, rather than I should omit anything. I began in a very quiet and moderate way, stating that Mr. Atwater had so well and so fully presented the case that, in truth, he had left little for me to do. I presented the testimony, however, in my own way, first considering our own testimony, showing Pierce's absolute innocence, and then took up the testimony relied upon for the people, explaining the reasons for the confession as before stated, and referring to the circumstances which showed that that explanation was true, dwelling upon Pierce's enfeebled condition from recent sickness and his poverty, from wliich he was unable to employ counsel to defend him or buy him a supper after they should, by their verdict, set him free. I then took up the testimony of Thompson, when I began to warm up to my work in earnest. It was evident that the public temper demanded all of the liard things that could be said of him. I showed that when Pierce lay sick unto death, when he required and had a right to claim the most constant and devoted care of the wife who had sworn before God at his sacred altar to cleave only unto him, this black-hearted villain had seduced her from her allegiance to him, in the hope that he might die from her neglect, and then, in order to place her the more completely in his lustful power, as well as for gain, had persuaded her to join him in the perj^etration of this crime, and when, in spite of her neglect, he had refused to die and became con- valescent, and the larceny had been discovered and the law was searchino- for the thief, he had concocted that diabolical plot and sent the weeping and apparently penitent woman to her enfeebled husband to persuade him to confess the crime. This plot was but too successful, and when the sick man had given his every cent of money to enable her to escape, which she, no doubt, divided with her paramour, and was sent to the jail, then it was that this fiend in human form fairly made the devils blush, by boldly standing up and swearincj tliat he saw Pierce steal the goods ! If he could CIRCUIT SCENES. 75 swear Pierce into the penitentiary for a term of years, the lielpless Avonian would be completely in his power and he could enjoy her society at his will without the interference of her enfeebled husband. While I was in the midst of this tirade, I turned partly around to catch an expression of the audience, and discovered behind me, and not more than two feet from me, this man Thompson, with a heavy bludgeon in his hand, the perspira- tion pourino^ from his face, his eye glaring fiercch^ at me with a terribly fiendish expression on his countenance. I at once concluded that he had crept up there in order to make a deadly assault upon me, when my back was to him. To say that this made me terribly angry is to put it mildly. That was one of the few times in my life when I have been really mad. I felt instantly inspired with a superhuman strength, which would enable me to crush any living man to the earth in a moment. I glared upon the supreme scoundrel, a look of scorn and detestation and defiance, which I was told later seemed fit to wither a statue. I pointed my finger in his very face, and called upon the court and jury to look at the cowardly assassin, who had not the courage to attack a child in the face, but must skulk up be- hind so he could strike unseen. I then proceeded to pour upon him denunciations and epithets which rushed upon me faster than I could utter them. Terrible words of execration seemed to coin themselves, and I poured them out with the rapidity of a tornado, constantly emphasizing them by tierce gesticulations right into his face, which was now red and now pale like the changing flashes of a boreal light. Some of these anathemas have been ringing in mv ears ever since. Their bare memory makes me shudder. AVhat, then, must have been their effect when poured out under such excite- ment ? The culprit stood this for a little while with a bold defiant expression, as if looking for a good time to strike, but soon he began to weaken and show doubt and hesi- tancy. This expression grew upon him more and more for 76 EARLY BENCH AND BAR OF ILLINOIS. several minutes, when he backed toward the door through the dense crowd, who shrunk from his touch as if he hiul been a slimy snake. I called upon the state's attorney to prosecute the perjured thief, now that he knew for a cer- tainty who was the guilty party. I called upon the sheriff to arrest the scoundrel before he should reach the woods and hide his guilty head in the bushes. I called on all good citizens to scorn and spit upon so loathsome a wretch. I advised all decent women, whenever they saw him, to bar their doors and Avindows as against a leper, whose very breath was contamination, and I kept shouting after him in this unseemly way, till he was fairly out of sight. I then paused, and turned around and was silent for a few minutes, and then every man in the court room, except the judge, was on his feet and seemed half bewildered. I at length apologized to the court for the unseeml}^ exhibition which I made in a presence where dignity and moderation should always reign, but I hoped he would find in the scene which had provoked me some apology for the breach of decorum of which I was conscious I had been guilty. After a moment's pause Judge Breese remarked, " You can proceed, Mr. Caton." I then turned to the jury and apol- ogized to them for having for a moment forgotten myself and the presence in which I was, under a provocation which miffht have excited an older man. I then said the evidence lia,d made the prisoner's innocence so manifest that I did not think that his interest required that I should longer detain them. The state's attorney then closed the case with a short speech, which virtually gave it up and left it for the jury to say which of the witnesses they would believe and which they would disbelieve. The jury retired without any charge from the judge and in a few minutes returned Avith a verdict of not guilty. The verdict was received with a manifestation of approval which was sternly checked by the court, when it was entered, the prisoner discharged and the court adjourned at once. CIRCUIT SCENES. 77 Then followed a scene of hand shaking very unusual at that time in a western assemblage. Pierce was congratuhited and we were congratulated, not only by the jury but by every one else who could get near us. At length the room began to clear and we were able to move toward the door. I was immediately surrounded by clients anxious to secure my services, and before I reached my hotel I was retained in nearly every case pending in the court, and in several important ones to be com- menced. Two of these were chancery suits, which proved in the end to be of more real benefit to me than any other cases I ever was employed in. AVhen I left that town I took away with me about one hundred and fifty dollars in money and about the same amount in o-ood notes, which in those davs of small fees was considered as doing extraordinarily well for a Ijeginning, in a court which lasted less than a week. ]\Iore than that, I had been very fortunate in getting on the right side and so had won nearly every case, which gave me a reputation which was of more value than all of the rest. When I inquired for Thompson he had disappeared and no one could tell Vv'here he had gone and I could never learn that he was ever seen or heard of in that town afterward. After the court adjourned the term, we all — that is, tlie judge and several lawyers, made our way to Ottawa on liorse-back, where the next court was to be held. At that time western hostclries had not attained to that state of refinement which places ablution furniture into sleeping- rooms, but all had to go down stairs and wash in a tin basin placed on a bench outside the house. AVhen I came down from my room the morning after our arrival, I had my coat and vest on my arm, that I might be ready for the toilet process, which was to be performed outside. When I reached the bar room, or office as it would now be called, the first man I saw, Avas that same villain Thompson Avith that same alpine stick in his hand. " You old villain," said I, " Avhat are you here for ? Has not the sheriff got you under lock and key yet 'i " 78 EARLY BENCH AND BAR OF ILLINOIS. " I have come up here to give you a thrashing," said he: '' you insulted me tlie other day and I have come to settle it.'" I dropped my coat and vest onto a chair and stepped up close to him and said that now was the time to begin. That I had no fears of one so steeped in crime. That so black a villain must necessarily be a coward, and I again over- whelmed him with e])ithets. I knew if he was going to strike at all he would have done it on the instant. A mo- ment's hesitation was fatal to his purpose. I spoke in a pretty loud voice, and directly a crowd gathered around, to whom I related his villainy, and who soon manifested signs of hostility. On perceiving this, he turned and made directly for the door, and made quick tracks out of the town, and I have never seen or heard of him since. VI. CHANCERY SUITS SUIT AGAINST COL. STEAWN EARLY DAYS ON THE BENCH. In my last I spoke of two retainers which I received at Hennepin upon my first attendance upon the Circuit Court there. As the conduct of these cases resulted in the great- est professional benefits to me, it may be well to speak of them more particularly. These benefits did not consist so much in the amount of compensation which I received as in the amount of learning which I obtained in their manage- ment. Both were suits in chancery, which were filed to enforce resulting trusts. Up to that time I had not paid particular attention to cl]ancery laAV, and had had but little experience in that branch of the profession. The first was Babb V. Strawn. In this case a bill had been filed b}'" Mr. Peters, of Peoria, to compel Col. Strawn to convey to the complainant the town site of Lacon, then in Putnam county, upon the ground that the land had been entered with the complainanfs money, and to account for moneys received on the sale of town lots. CIRCUIT SCENES. 79 Althoiig-h no answer had been filed as yet, Col. Strawn had taken a great mass of depositions to prove the value of liis services rendered in laying out the town, selling of lots, and otherwise benefiting the trust property. In this con- dition of the suit I was retained. I procured an order from the court ordering the depositions to be opened, a careful examination of which qualified me better to draw an answer, than I could have done from my client's statement of the facts without them. By agreement with Mr. Peters, the venue was changed to La Salle county, to which the records were at once transmitted, a copy of which I ordered for my own use. The other was a case of TTauhub v. Wauhub. This was a cas3 where a family of that namo, consisting of a father and mother and several children, had squatted upon a quar- ter section of land adjoining the town of Lacon, had l)uilt a house in which they lived, and had made other valuable improvements on the land. Some time before the land came into market, when it would be possible to prove u]:> a pre- emption, the father died, leaving the wife and children upon the premises. The mother was an invalid and had been confined to her bed for the previous twelve years. Under her direction, however, and general supervision, the farming business had been carried on b}^ the children, all living- together upon the premises, deriving their support from the products of the farm, keeping no accounts among them- selves, and claiming no separate interest in any part of the propert}^ William Wauhul) was the oldest son and so took the gen- eral management of affairs. When the land came into market he proved up a pre-emption in his own name and took the title to himself and paid for it with money derived from the sale of the products of the farm, as the others claimed, Avhile he insisted that he obtained the money from other sources, and this was the most important question of fact litigated in the case. Soon after the entry was made, William claimed to own 80 EARLY BENCH AND BAR OF ILLINOIS. the land in his own right, when the next oklest brother came up to the court at Hennepin to seek legal advice, and being satisfied with the manner in which I had conducted Pierce's defense he retained me; having no money with which he could pay me a retainer, but declaring himself able to pay the court expenses, he proposed to give me one- half of the land if I should win the case, but to pay me nothing if I should lose it. He brought to me several neighbors who confirmed his statement of the facts, as above stated, from which I was satisfied that a resulting trust could be established. I took full notes of the facts from which I could draw the bill, commenced the suit, so as to establish a lis jjcndens^ making all the other members of the family complainants and William Wauhub defendant. I obtained leave to file the answer in one case, and the bill in the other at the next term of the court. As before stated, I had never before paid much atten- tion to chancery law, and I now determined to make it a special study. Not only that which related to resulting trusts, but to all other branches of that depiirtment of my profession, including the practice, pleadings and general principles upon which courts of chancery administer relief, and I applied m^^solf to that study with untiring industry. Kent and Story, Hoffman and Daniels, and many other text books were read and re-read from beginning to end, and compared one with another, noting particularly wherever they disagreed, in which cases I examined the references, that I might form my own conclusions as to which was right, both on authority and on reason or principle. Of course, during these researches, everything relating to resulting trusts was specially noted and treasured up in the memory; not only this, I read case by case all of Johnson's Chancery Iweports, and all of the chancery cases found in the Kentucky Reports, as well as in the reports of other States to which I then had access. To this task I devoted all my leisure time for two years at least, and l)ecame so familiar with the subject that I rarely CIRCUIT SCENES. 81 heard a question raised in court, either of pleading, practic3 or principle, that it was not almost as familiar to me as my alphabet, and I was astonished to see other law3^ers and the courts hesitate upon questions, where, it seemed to me, there should be no doubt at all. xsow, it was the accident of my having been retained in these two cases that prompted me to this thorough course of study of chancery laAV, which laid the foundation for any merit I may have acquired as a chancery lawyer, and when I went on the Supreme Bench, at thirty years of age, I found I was vastly more familiar with chancery law than any of the other judges, and hence it was, that nearly all of the chancer}^ records were assigned to me for a num.ber of years in that court, as will be seen by any one who will examine the Reports, commencing with the third of Scam- raon and following up to the twelfth or fifteenth of Illinois. I had been upon the bench about a month, and Chief Jus- tice Wilson had distributed the records to other members of the court, till I thought he considered me so much of a boy that he deemed it not wise to give me any record on which I should write an opinion. Finally, the case of Frisby v. Balance having been argued, was taken up in the conference room. The Chief Justice called for opinions from each one, but no one was prepared to express an opinion without fur- ther consideration, and I did the same, although I had pretty distinct views about the case. The Chief Justice then offered the record for more careful examination to each member of the court in succession, but each made some excuse for not taking it, till he came to me, when he laid it on m}^ desk and said : " Here, Caton, this is a good case for you to break in on.'' The record was a large one, and the rules then required neither abstract nor brief, but only the record as it came from the Circuit Court was filed. I took the record without demurrer or remark. When I got to ray room I pitched into it as a hungry man would into a Christ- mas dinner. I first read it all through carefully, and then made a full abstract of it. 6 82 EAELY BENCH AND BAR OF ILLINOIS. I then fully digested it, and carefully set down the several points which it pres3nted, both of law and fact. I then re- examined the facts and set down my conclusions upon each one. I then took the points of \a.w which arose in the case, upon which I thought I knew what the law was, hut to be sure, I went to the library, and made up a brief. I then stated my conclusions, with the authorities in support of them. I then wrote out the opinion as it now appears in the report, but before I presented it in conference, I asked Governor Ford to my room and read it to him, and asked his criticism upoii it. Although he had decided it in the court below and my opinion reversed his decision, he approved the opinion and highh^ complimented it. The only ]5oint' upon which I reversed the decree below, was that he had granted affinnative relief to the defendant without a cross- bill, the error of which he readily appreciated. All of this took me at least a week. When I read the opinion in the conference room, all readily agreed to it except u})on the very point on which I reversed it, on which point all at first disagreed with me, really because all had been in the habit of granting such relief without a cross-bill, on their circuits. Judge Breese was particularly strenuous, and cited a clause in the statute which authorized the defendant to put interrogatories for the complainant to answer, at the close of his answer to the bill. I fought it out right on that line, brought in the books, and showed the reasons which governed the use of every part of chancery pleadmgs, and finally obtained the approval of all the members of the court, and I have no doubt that this rule has ever since prevailed in this State, and probably there are very few now living that have any suspicion that any other rule ever prevailed here, even on the circuit. After that I had never cause to complain that a fair pro- portion of the records were not given me, for, with rare exceptions, I received all of the chancery records, and as all the evidence was then required to be presented in deposi- CIRCUIT SCENES. 83 tions, tliey usually involved the most labor, and I very rarely met with opposition to my conclusions. This state of things impressed upon me the idea of a great responsibility. The jurisprudence of the State was then in its infancy. We were then laving down rules which were to be followed by those who should come after us, and it w^as of the greatest importance, not only to ourselves, per- sonally, but to the profession generally, that these rules should be such as to bear the test of time and of the closest scrutiny, and I intended to spare no labor or pains to accom- ])lish this result. 1 have thought it might be profitable to some young members of the bar to learn how it was that I became a pretty good chancery lawyer while 3'et a very 3^oung man. What I learned so earl}^ and so well, it seems to me, I re- member pretty well yet, although I have learned a great deal more since. Having thus explained how it was that these two cases indirectl}^ redounded so much to my advantage, it may bo proper that I briefly follow each one up to the end. The case of Babb v. Strawn I aro^ued before Judo^e Pier- son, in Ottawa, at the fall term, 1S37. The only real ques- tion considered was, as to the amount of compensation my client was entitled to. Colonel Strawn was not satisfied with the amount given him by the decree, and so, by his direction, I appealed it to the Supreme Court, and argued it in that court at Yandalia, at the Decembar term in ISoS. That was the first case I ever argued in that court. That court then consisted of only four judges — Wilson, Smith, Lockwood and Brown. They affirmed the decision by an equal division of the court, and I was so ungenerous at the time as to believe that they thought that was the easiest way to dispose of a very large record. In the fall of 1S38, 1 had the misfortune to have two farms entirely burned over by prairie fires with everything upon them. On one was grain enough in the stack to have paid all my debts, and more. On the other was hay enough 84 EARLY BENCH AND BAR OF ILLINOIS. to have wintered a hundred head of cattle. In October I went doAvn to Sangamon county where I purchased about seventy-five head of cattle, and Avas driving them up to the latter farm, when early one morning, about fifteen miles below Ottawa, I met a man who inquired my name and then informed me that my Plainfield farm had been burned over, even to the ox yokes and other farming utensils, and then after giving me a few minutes time to digest that, ho told me that my Du Page farm had been burned over and all the grain upon it consuined. I iramediateh" employed a man to herd my cattle on the prairie, where they were, and pushed on for Chicago, where my family was, where I arrived the next forenoon. After remainino- one dav to arranoe affairs here, I mounted my horse to look after n\y stock, which I found where I had le.'t them, all right. I then pushed on about twenty miles further to Col. Strawn's, to make arrangements with him to winter my cattle, knowing that on his large farm he had abundant fodder in his corn fields Avith which to do so. During my solitar}'' ride across the prairies I pictured to myself the pleasure he would experience in offering to winter my cattle at a very low figure, and the happiness it would give me to assure him that I should charge no other fee in his suit Avith Babb, excepting my simple expenses to Van- dalia to argue his case at the ensuing term. I was much disappointed when I stated my case to him, to observe that he was determined to drive as hard a bargain with me as possible. Winter Avas fast approaching, and the arrange- ment for the care of my stock must be made immediately, and he alone had the means at hand for caring for them. As I was in his power I made the best terms I could, but was careful to say notliing about my fee in his case, consol- ing myself with the reflection that I was now absolved from any obligation to treat him A'ery leniently, Avhen the ques- tion of fees should come to be considered. Some time after the case had been decided I sent him a bill for one thousand dollars, for my services in that case. CIRCUIT SCENES. 85 He paid no attention to it for some months, when finally lie came up to see me about it, and protested that my charge was exorbitant, and that he could prove that when at his house I had agreed to attend to the case for fifty dollars. I then told him that I had no doubt that he could prove that or anything else he wanted to prove; that I knew him too well to doubt that, but that I would catch him at it as sure as he lived. I then commenced suit against him at Lacon, and to prove the value of my services I took the deposition of Mr. Peters, when we were attending court in Kane county. Petei-s testified that he had been counsel on the other side in the case, and that the case had been very ably tried on both sides, and that he thought a thousand dollars a very reasonable fee for the services which I had rendered in the case. In the meantime I had received notice and a copy of inter- rogatories to take the deposition of some man in Iowa, whom I had no recollection of ever having seen. From the interrogatories it was manifest that he intended to prove by this witness that he had heard me agree with Col. Strawn to take that case through from beginning to end, for fifty dollars. In my cross-interrogatories, I simph^ asked him if he had had any communication with Ool. Strawn about his deposition about to be taken, either oral or in writing, and, if the former, to state what was said as nearly as possible, and if in writing, to attach the original communication to his deposition. When I sent my cross-interrogatories to the clerk I requested him to let no one know what they were. When the next term of the court was opened at Lacon, Mr. Purple and Mr. Dickey volunteered their services to try my cause for me, and Mr. Peters Avas engaged for the other side. The practice then required a special order of the court to open depositions, which was at once obtaiiied. When the defendant's deposition was opened, the first thing to attract 86 EARLY BENCH AND BAR OF ILLINOIS. our attention was an original letter in Col. Strav;n's hand" writing, from the defendant to the deponent, in which he offered him live dollars if he Avould swear to the statements following. Then followed about a page of matter written in the first person, to which the witness was to swear for the five dollars, stating that he had heard a contract made between Col. Strawn and myself, by which I agreed to con- duct his case through from beginning to end, and to pay my own expenses, for fifty dollars, stating many collateral circumstances to increase the probability of his story. Then, turning to the deposition, we found that he had sworn to the exact words of the letter without addition or diminution. Upon the trial, Mr. Peters' deposition was read for my side by Mr. Purple, who emphasized, in a very pungent manner, the statement that the case " was ver}^ ably tried on both sides." For the defense, the foreign deposition was read, and a witness was called to the stand, who swore that he was present when tlie bargain was made as stated in that deposition, following the same phraseology, scarcely varying it by a single word. On cross-examination he positively denied ever having conversed in any way with Col. Strawn about what he was to swear to. The cross-examination was what might have been expected under the circumstances, but the most valuable result obtained was that he obsti- nately refused to vary his statements from the formula set forth in the letter of instructions to the foreign witness. I should have stated that the deposition was not read in evi- dence till after the oral testimony had been given, and probably Peters would not have read it at all had he not felt sure that we would have done so by the leave of the court. The summing up on my side was what might have been expected from two such aljle lawyers as Dickey and Purple, the latter being especially caustic in some portions of his address. Peters, on his side, of course, could not deny that the services were worth the thousand dollars, as stated in his deposition, but based his defense solely upon the special CIRCUIT SCENES. 87 contract claimed to have been proven. The trial had occu- pied the wliole day, and Judge Ford adjourned the court until evening to receive the verdict. "When at the evening session the jury was brought in, Col. Strawn was seated close to the jury box near the upper end. When the fore- man announced a verdict of seven hundred and fifty dollars for the plaintiff, the colonel jumped to his feet and strode out in front of the jury, remarking as he went, " Thank you, gentlemen, a very small fee, indeed; only about a half bushel of dollars." After harvest I was told that he hauled in his wheat with a four-horse team, which he drove himself, and whenever he met a neighbor, and especially if he hai> pened to be one of the jury, in a sarcastic tone he would exclaim, '' That load of wheat you see is part of lawyer Caton's fee." Had he kindly assisted me and shown some sympath}'^ in my distress, no charge would have ever been made him for those services. There is a moral in this story, but whether he ever prof- ited by it or appreciated it I do not know. The Wauhub case may be soon disposed of. I went to Lacon and took the deposition of the neighbors, who knew the facts of the case. It was then that I first met the old lady, who was lying in the bed she had occupied for so many years. She was an inveterate smoker, and during my visit she was constantly employed in that soothing occupation. She died some years later in that same bed, and, as I was informed, with the pipe in her mouth, which was still lighted, so that it might bs truly said she smoked with her last breath. When the case was ready for hearing I applied to the court for an order for a feigned issue to try the prin- cipal fact involved in the case, which was granted. As was my duty, I prepared the pleadings according to the old English i^ractice, which was a declaration in the case of John Doe V. Richard Roe, that a wager had been made between the parties, wherein John Doe had affirmed that the land, 88 EARLY BENCH AND BAR OF ILLINOIS. describing it, had been purchased by AYm. Wauhub, of the United States, with money belonging to the said comphiin- ants and defendant, naming them, in equal proportions, and the said defendant, Richard Eoe, averred that the said land was purchased with money belonging to the said Wm. Wau- hub, exclusively, and in his own right, Avhereupon the said parties had made a wager, whereby the said plaintiff had agreed to pa}'^ the said defendant a certain sum of money, naming some sum, in case the said purchase money did not belong to the comjilainants and defendant, naming them, in equal proportions, but that the said purchase money belonged exclusively and in his ovv^n right to the said William Wau- hub, and the said defendant, Eichard Eoe, then and there promised and agreed to pay the said plaintiff a like sum of money, if the said purchase money did not belong to the said AVm. Wauhub exclusively, and in his own right, but did belong to the parties in the chancery suit, naming them, in equal proportions. The declaration then averred that the facts were as the plaintiff had declared them to be, and were not as the defendant had declared them to be, whereby the said defendant had become indebted to the said plaintiff in the said sum of money, naming it, which he had often been requested to pay, but that he had neglected and refused to do so, whereby an action had accrued, etc. I also prepared a plea, admitting the fact of the wager as stated, but denying the facts as stated in the declaration, which would entitle the plaintiff to the money claimed in the declaration and added the similiter. The next morning I presented these pleadings to Mr. Peters, and asked him to sign the plea as attorney for the defendant, which he at first declined to do, stating that this \vas a proceeding which he did not quite understand, and that he did not propose to assume any such responsibility. Judge Ford, however, ad- vised him to sign the plea, as it was a mere matter of form, to get the issue presented by the pleadings before the jury, and likened it to the fictitious pleadings in an action of eject- ment, whore the lease, entry and ouster had to be averred CIRCUIT SCENES. 89 p.nd admitted in order to present the real issue in the ease, although such facts had never really existed. Mr. Peters then signed the plea, and the jury was called, who found a verdict in favor of the plaintiff, whereupon the court entered a decree in my favor for the execution of the resulting trust. As William Wauhub was shown to be b83^ond the juris- diction of the court, I had Jesse C. Smith appointed a com- missioner to execute the deed in his name, and, as I had ail the papers prepared beforehand, this was done directly, promptly acknowledged and filed with the recorder, which vras reported to the court, and the report approved. Hitherto the practice had been, in such cases, to treat the decree as an absolute conveyance. This was more com- monly the case in suits for partitions of lands, where the confirmation of the report of the commissioners was deemed sufficient conveyance to the several parties, of the parts assigned them. In this way, Mrs. Judge Breese held title to her share of the large estate of her father, of which she had conveyed many tracts with warranty deeds, about which no question had ever been raised, until a few years ago, when Judge Snyder, of the Belleville Circuit, decided that the fee had not passed to her by the confirmation of the report of the commissioners, thus leaving her liable upon all of the warranties she had made. This decision very much disturbed the judge, and he wrote me for my opinion as to its correctness. I answered him that in my opinion it was the law, but possibly a remedy might be found, yet, and at his request I met him in Mount Yernon, where the Supreme Court was in session. The partition had taken place about forty years before; and he could hardly believe that such dis- tinguished lawyers as David J. Baker and Colonel Snyder, who were two of the commissioners who made the partition, could have omitted anything to make their work complete. I advised him that the matter was still in fieri, and now pending before the court, and prepared a petition to be pre- sented to that court to have the suit redocketed, and a com- 90 EARLY BENCH AND BAR OF ILLINOIS. missioner appointed to execute the necessary conversances. This, he informed me, was afterward done, and thus was he relieved of a great embarrassment. I have thought that tliis sketch of our judicial history might be worth the space it occupies. VII. EE-FOEMATIOK OF THE SUPEEME COUET— ELECTION OF NEW JUDGE ELECTED AS JUDGE OF SUPEEME COUET. After Gov. Carlin was inaugurated he made an order removing the secretary of state, and appointing another in his stead. His right to do this Avas denied by the incum- bent, and he refused to deliver up the office. A proper case was made, and the question was presented to the Supreme Court for its decision. The court then consisted of Wilson, Lockwood and Brown, whigs, and Smith, a democrat. The court, by the three lirst named justices, decided that the governor had no power to make the change, to which Smith, justice, dissented. When the Legislature assembled in December, 1839, it was found to contain a large majority in each house of democrats, when this decision assumed a political aspect. As the judges of that court were elected for life or during good behavior, there was no mode of re-forming that court, as it was called, but by increasing its members; so a bill was passed adding five more members to the court, who were to be elected by joint ballot of the General Assembl}^ To fill these places Breese, Douglas, Ford, Scates and Treat were elected. A bill was also passed requiring the judges of the Supreme Court to hold the Circuit Courts in the nine circuits into which the State was divided, and assigning a particular circuit to each. This measure was strenuously opposed by the old judges, who did not relish the idea of being again required to do circuit dutv. SAMUEL H. TREAT, CIRCUIT SCENES. 91 Ford was assigneil to the ninth circuit, in several counties of which I had kept up my practice during my residence on my Plainfield farm. Having recovered my health, in the spring of ISiS I re- moved into Kendall county, preparatory to returning to Chicago to resume my practice here, after the close of the spring courts in the ninth circuit. "While attending the court at Geneva, which was the last court of the spring circuit, Judo:e Ford received a communication from the Democratic State Committee that they had nominated him a candidate for governor at the ensuing August election in place of Col. Snyder, who had been previously nominated by the State Convention and had lately died. Before we separated Judge ■ Ford privately told me not to return to Chicago, as I had contemplated, but to remain in Kendall county; that he should be elected governor, and that the governor would appoint me his successor, and that he thought me the best qualified of any member of the bar in the circuit, I conse- quently remained there till after the August election, at which Governor Ford Avas elected by a large majority. That very night I started for Quincy, where Governor Carlin re- sided, when I presented myself before the governor as a candidate for the vacant judgeship. He received me very cordially, but as he had not yet received the resignation of Judge Ford, there was no vacancy to be filled; he said he should be happy to see me again, after he had received Ford's resignation. He gave me no other assurance than this that my application should be favorably considered, but I accepted this invitation as a favorable omen and returned to Lisbon, where my famih^ then was. Probably a week later I again presented myself before Governor Carlin, who again received me very cordially, and at once informed me that he had concluded to appoint me to the vacancy created l)y Ford's resignation, and wrote out the appointment, with a direction to the secretary of state to issue my commission, he having blanks in his office signed by the governor, With these documents I returned through Springfield and received 92 EAELY BENCH AND BAR OF ILLINOIS. my commission from Mr. Trumbull, who was then secretary of state, when I went across the hall and was sworn into office by Judge Treat. This commission could only extend to the close of the session of the next General Assembly, which would by joint ballot elect a successor to Judge Ford. When the election occurred John M. Kobinson, late the United States Senator from this State, was elected, and at the end of the term I returned home supposing that my judicial career was at an end. Although Eobinson had been an active politician, he was a fairly good la wj^er, and possessed a good deal of what he him- self called horse sense. Pie held his first court at Lacon, then went up to Hennepin where he held the circuit, and thence to Ottawa, where he opened the court a week later. He was a man considerably advanced in years, with a constitution somewhat impaired, and on the second day of the term complained of illness, and a few days later took to his bed, where he died two or three weeks later. So soon as Governor Ford was informed of his death, he wrote out a commission entire with his own hand, which he sent me. This was my second commission as judge of the Supreme Court of Illinois. I now had two years to serve upon: the bench before the Legislature would be called upon to elect a successor to Judge Robinson. Before that oc- curred I had an opportunity of getting well acquainted throughout the circuit, and, as my friends thought, demon- ^strated my fitness for the high office which I then filled, notwithstanding my lack of 3"ears, and was nominated unanimously by the party to which I belonged, which was largely in the ascendency in the General Assembly. ThC' opposite party nominated David Davis, who subse- quently became eminent as a jurist, when a member of the Supreme Court of the United States. His nomination, however, was well understood to be merely complimentary, by reason of the numerical strength of my party friends. When I was elected I received my third commission as a justice of the Supreme Court. This was for life or during DAVID DAVIS, CIRCUIT SCENES. 93 good behavior, according to the provisions of the constitu- tion then in force. AA^'hen the Constitution of 184:8 was adopted, it abolished the Supreme Court of nine judges, and created a new Supreme Court of three judges, with only appellate jurisdic- tion, except in a few specified cases, and provided they should be respsctively elected by the people in each of the three grand divisions into which the State was divided. For this court. Treat, Trumbull and myself were elected, and then I received my fourth commission as judge of the Supreme Court. We organized the new court at Mount Yernon, in December, 18-i8. The constitution provided that we should cast lots at that term, as to which should hold the office for nine years, which for six years, and which for three years. This we did very quietl}^ and by ourselves in our own room. Treat drew the longest straAv, and so became chief justice of the court; I drew the second and Trumbull the third. Before Trumbull's term expired he was elected a senator to Congress, and Scates was elected to fill his vacancy. Before my term of six years expired Treat was appointed United States District Judge for the Southern District of Illinois, Avhen I became chief justice for nearly six months, or from Januar37^ to June, inclusive. During the last six months, when I held office under that fourth commission^ it was by a rather doubtful tenure. The constitution provided that our terms should commence on the first Monday of December, 1848, and should continue for three, six and nine years respectively, and provided that the elections for our successors should respectively be held in the June following, and made no provision for the inter- vening six months, j'o meet this emergency, the General Assembly passed a law providing that we should continue in office till our successors were elected and qualified. Whatever might be said of the constitutionality of this act, it was thought to give color of office sufficient to make us officers dejacto, so as to make our acts as legal and binding as acts of officers de jure would be. 91 EAELY BENCH AND BAR OF ILLINOIS. At the expiration of my term thus extended, I was elected to succeed myself for the nine years term, in June, 1S55. At the same time, Judge Skinner was elected to fill the vacancy caused by the resignation of Judge Treat, who was appointed United States District Judge, when Scates, who had beeu elected in the Third Grand Division to succeed Judge Trumbull, became chief justice by virtue of his hold- ing the oldest commission. As before stated, at the June election in 1855, both Skinner and myself Avere elected, and on this I received my fifth commission as judge of the Supreme Court of Illinois. As the constitution provided that the judge holding the oldest commission should be chief justice, the governor, per- ceiving that embarrassment might arise from the omission of the constitution to determine who should become chief justice when two of the judges should hold commissions bearing the same date, iskied my commission one day earlier than that to Skinner. "When we met at Mount Vernon for the November term, 1857, of the court. Skinner claimed that the governor had no right thus to determine who should be chief justice, and that a fair way to settle^ the question was by casting lots for it. Of course the decision of this question fell upon Judge Breese, who had been elected to succeed Judge Scates in June, 1857. Judge Breese decided that as I actually held the oldest commission, the constitution declared that I should be th.e chief justice, and then I took my seat as presiding officer of tliat court for the second time, and held that office until I resigned, in 1864. This short historical sketch shows how two embarrassing questions were disposed of during the time embraced in it.' I thought it proper to recall them here. The first was, how the hiatus was bridged over between the expiration of iny six years commission, which occurred in December, 1854, and the election of m}' successor in June, 1855; and the other was as to how I became chief justice, after the resignation of Chief Justice Scates, when both Skinner and myself were LYMAN TRUMBULL. CIRCUIT SCENES. 95 elected at the same time in 1S57. It also shows how I be- came Circuit Judge for the Ninth Circuit, from August, 1842, to December, 1848, with the exception of about two months. Durino- that time some interesting circuit scenes occurred which I may give hereafter. VIII. LYNCH LAW PUNISHMENT OF THE OFFENDERS. Two years before I came to the Supreme Bench, I had been called to Ogle count}", which was in the ninth circuit, to prosecute an action on a note of hand, which had been given to a particular friend of mine, for an improvement and claim on the public lands. As the lands in that part of the State had not yet been brought into market, claim titles were the only ones known in that region, and the courts and lawyers had, by a sort of universal consent, adopted and ad- hered to rules adapted to that class of titles, and we acted upon them with as much assurance as if they had been adopted by the Legislature, or were to be found in the books of the common law. Well, in this case a defense was set uj) that the payee of the note had not a good title to the claim for which it was given, and as my client had left the county after he had sold his claim, the witnesses managed to throw sufficient doul)t over his right to induce a jury of the neigh- borhood to find a verdict for the defendant; but I made a stubborn fight in an np-hill case, and was soon engaged in several other cases then pending, and in some which were to be tried at the next term of the court, so I was fairlv engaged in practice in that county, although when I went there first I only expected to try the particular case which called me there. A year later I was retained in the most imjiortant case, nominally at least, in which I was ever engaged. That was to defend one hundred and twelve men charged with the crime of murder. For some years before, there was a sort 96 EARLY BENCH AND BAR OF ILLINOIS. of an organized band of criminals, principally engaged in horse stealing and counterfeiting, but who on occasions did not hesitate to commit murder. They became bold and defi- ant. They were well known throughout the community, and had many sympathizers, who, in order to turn suspicion from themselves, roundly denounced them w^hen in certain circles; indeed, they were so well organized and bold, and had so many s^nnpathizers, who did not profess to be of them, that it was impossible to punish them even upon the clearest proof of guilt. The jail was broken open and burned to liberate some of the gang who were confined in it, and some of their sympathizers would always manage to get on the jury, so that a conviction became impossible. But the evil-doers consisted of but a small percentage of the population of the county, a great majority of whom were as excellent men as could be found in any other com- munity. The}^ seeing that the arm of the law was too short to afford them protection for either life or property, formed themselves into a sort of association or club, the declared object of which was to rid the community of the criminal class; one Campbell was elected captain of this club, which also elected several subordinate officers. This was done on Saturday, and, as its proceedings w^ere open and public, they were known immediately throughout the county. The des- peradoes saw at once tha,t they must strike such a terror throughout the community as to disintegrate the members of this club oy the force of fear, or they must go themselves. They saw it was an issue of blood, and did not hesitate to accept it at once. By arrangement three of the gang were to commence operations by assassinating, in the most public manner, Campbell, the leader of the association, and accord- ingly, on Sunday, rode up to his cabin in broad daylight, called him to the door and riddled him with bullets. The news of this terrible tragedy was known throughout the county by Monday morning, and without call or notice, the members of the club assembled at their appointed rendez- vous, and details were sent out to arrest and bring in the CIRCUIT SCENES. 97 murderers. This was finally accomplished, and they were brought before the assembled club in a grove a few miles south of the county seat. There a court was organized, con- sisting of a judge and jury, all of whom were sworn by a justice of the peace, to impartially try the case and a true verdict to render. Witnesses were sworn before this tribu- nal, who saw the murder committed, and who positively identified the prisoners as the murderers. Lawyers had been appointed to prosecute and defend the prisoners and every formality was observed which was characteristic of a regu- larly constituted court of justice established by law. A verdict of guilty was returned, and a sentence passed that all should be shot on the spot. A company was detailed to carry the sentence into execution, which was done at the word of their commanding officer. This prompt proceeding struck such a terror into the crim- inal class, that the most notorious of them fled at once, with- out standing on the order of their going, and their sympa- thizers were dumb with terror. As every member of the club who was present, was in the eye of the law guilty of murder, I was at once consulted as to the wisest course to pursue. I unhesitatingly advised that an indictment should be procured against all who were present at tlie execution, feeling perfectly assured that they could, be acquitted then, while a change of condition, of pop- ulation, and of public sentiment might, without a judgment of acquittal standing upon the record, give them trouble at some future time. Accordingly an indictment was pre- sented against one hundred and twelve who were present at the trial and execution of the culprits. Of course, my consultations had been with only a few of the leaders, but now it was necessary to have them all together, and accord- ingly we marched out onto a little isolated peak in the prairie, and I had them formed in a circle around me, while I called over a list of the defendants, when all answered to their names except four, who were unavoidablv absent. Even the sheriff, in whose nominal custodv thev 7 98 EARLY BENCH AND BAR OF ILLINOIS. were, was convenient!}^ absent, and no one but the prisoners and myself were within two hundred yards of us. I was assured that no one of them had boasted of the transaction, or in any way admitted that he was present at the time, and I saw no difficulty in the way, except as to the four defendants that were notpresent, in whose favor a judgment of acquittal was as necessary as to the others; but this was got over by selecting four of the party, each of whom was to answer for one of the absentees when his name should be called in court to plead to the indictment. "When all of the mauy details wei'e arranged for the conduct of the case, we marched back to the court house, which was cleared of all others, as supposed, and when my numerous clients filed in they filled the little courtroom quite up to the table around which the lawyers sat. While the court was waiting for our appearance it had been occupied with some unimpor- tant business, so that all was ready to proceed with the case when we arrived. The case was at once called, and the clerk proceeded to call the prisoners, who promptly answered to their names. I confess I felt a little anxiety whenever the name of an absentee was called, but the proxies all answered promptly and without another word, until the last answer was made, when some one near the door hallooed out in a rather tremulous voice, " That ain't him." This caused a flutter of excitement for a moment, and the judge directed that name to be called again, Avhenthe proxy, who was standing away back in the crowd, again responded , for his principal, and no one could tell who had interrupted the proceedings in the manner stated. The clerk proceeded with the call of his prisoners, and all were declared to be present, and I entered a plea of not guilty for the whole lot, when the jury was called. Of course, with the number of challenges which we had, I could select a jur}^ to suit myself, but I had occasion to use very few challenges. The entire panel was of exceptionally good men, and we accepted the most prominent of these, while the state's attorney made very few challenges. He then proceeded with his testimony CIRCUIT SCENES. 99 but utterly failed to prove that any person had been killed, much less that any of the prisoners had taken any part in killing anybody. The truth was, that no one was present at the trial and execution but the defendants, and no one could be found who had heard any one of them say a word about it. All the witnesses had heard rumors, with which the whole atmosphere was filled and had been ever since the event happened, but of course, these widely differed from each other, and some of them were wildly extrava- gant, but this was not legal testimony. I did not object to them, because I wished to demonstrate by their contradict- ory character how unreliable mere rumors are. I called no witnesses, no argument was made to the jury on either side, and I asked the court to instruct the jury that mere rumors were not evidence, which, of course, he did, and explained the law in his own way as to what evidence was necessary to authorize a conviction. The jury were absent but a short time, when they returned with a verdict of acquittal, upon which judgment was entered, and thus ended that celebrated case. There were in the town at the time quite a number who sympathized with the prosecution, every one of whom were Avell known, and some were allowed to manifest their feel- ings, but this was done more by looks and shrugs than by words, and very few remained in the county long after these events transpired. Many of my then clients have filled honorable public positions, in which they have acquitted themselves in the most useful and honorable way, and all, so far as I have ever learned, have deserved and have received the respect of their fellow-men. IX IXCIDEXTS OF TEIALS. "WTien I came to the bench of the Circuit Court of the Ninth Circuit crime was scarcely more frequent in Ogle 100 EARLY BENCH AND BAR OF ILLINOIS. county than in the other counties, where less stringent measures have been necessary to check its perpetration. Indeed, no trouble existed in the enforcement of the law in the proper and legal way. Undoubtedly there were many still left to sympathize with those who had departed, and some were still left who were more than sympathizers, but all were known and watched. However, as time w^ent on, some assumed a bolder tone than others, and occasionally a horse w^as spirited away. Mr. Fridley had been elected state's attorney for the ninth circuit at the session of 1842-3. He found affairs in Ogle county rather quiet and orderly, with jurors care- fully selected from among the best citizens, and no unusual number of criminal prosecutions. At one term he found a man by the name of Bridges in the jail on a charge of horse stealing. Now, Bridges had an unsavory reputation, and had for a long time been believed to be more than a sympathizer with the criminal class. If he had fled from the county after the execution of the murderers of Campbell, he had returned with his family, and was ostensibly engaged in farming. Fridley had, with his usual industry and perseverance, gathered up all the evi- dence attainable, and made a case before the grand jury which would insure a conviction on the trial, and this be- came so well understood that his counsel, Mr. Peters, advised him to plead guilty, preferring to trust the court to determine the measure of the punishment, rather than to leave that to an Ogle county jury. I sentenced him to seven years in the penitentiary, which was more severe than Mr. Peters had expected, and which many of his outside friends characterized as outrageous, and even threats were floating about against us; but we paid little attention to these, feeling confident that the lesson of only two or three years before was still fresh in the memo- ries of the evil-doers, and that they would not again commit an outrage which might raise a greater storm of indigna- BURTON C. COOK. CIRCUIT SCENES. 101 tion than even the first had done, and which miHit more o materially decrease tlie population of the county. At the session of 1844-5, Mr. B. C. Cook had been elected to succeed Mr. Fridley as state's attorney, and proved himself as persevering and efficient in the prosecution of criminals of all grades as the former had been. Indeed, he became as obnoxious to the criminal class by the energetic manner in which he discharged his duties, as I had by the sentence of Bridges and by my other official acts in the discouragement of crime, and threats against us both be- came more pronounced; Mr. Cook received some anonymous letters of a threatening character, but we heeded them little, feeling assured that if the criminal classes really meant injury they would not put us on our guard by letting us know it, and also feeling assured that a former lesson had not been forgotten. When the term closed Mr. Cook and nwself started in my buggy for Ottawa, our home. The road led through Hickory Grove, where there were two settlers, Mr. Bartholemew and Mr. Flag. The former entertained travelers in his log cabin, and we often stopped there both before and after. We arrived there all right in time for supper, had our horse stabled and fed, and prepared to spend the night; but when the nearly full moon came up, which rendered everv- thing almost as light as day, we concluded to hitch up and cross the sixteen-mile prairie to Paw Paw Grove. There was not a single settlement in the whole distance, but the trail was fairly beaten and the road good. We jogged along leisurely talking frequently of the threats we had heard, but entertaining no fear of their execution, till we reached Plum Thicket, six miles on our way. This was a little patch of but a few acres of wild plum trees and very few thick under- brush, and containing a few trees of considerable size, and is situated directly on the north bank of Kite Creek. This dense thicket had been mentioned as a favorite rendezvous for horse thieves, where the}' were in the habit of conceal- ing their stolen property, and one of us had suggested that ] 02 EARLY BENCH AND BAR OF ILLINOIS. it was a likely place for them to make an attack upon us if they so intended, but for the reasons before stated we had no apprehension of this. The trail ran along on the north side of the grove and as close as possible to the hazel thicket, which bordered it. Into this thicket we could not see a yard, and all was dark in the somber gloom beyond it. Just as we got opposite the middle of the groYe, one vrithin it, and pretty close to us. hallooed out : '' Who goes there ? " And Mr. Cook thinks he saw a man in his shirt sleeves with a rifle in his hand, but I did not observe him. At this I con- fess my heart jumped pretty well up in my throat, and I will venture the opinion that it was much the same way with Mr. Cook; but I doubt if it occurred to him, that as I sat upon the right side and next the grove I might possibly serve as a shield to him, nor did that, then, occur to me. ISTeither of us spoke a word when we heard this salutation; but I gave Snap a check of the reins, which he well under- stood, and went on at a slashing trot, and in two minutes passed through the ford of the creek with a great splash, and up the steep bank on the other side, without losing a single step in his long swinging trot. Not a single word ])assed between us, until we had got a mile from the ford, Avhen I inquired if his shotgun, which lay by his side, was loaded, but he Avas not sure whether it was or not. "We passed over the twelve miles, of course, to Paw Paw Grove, canvassing the situation as we went along, and soon con- cluded that there were no horse thieves or -their sympa- thizers in Plum Thicket, but that probably some innocent travelers had camped there for the night, who, to amuse themselves, had hailed us in the manner stated, and this is as near as I ever came to suffering the performance of the many threats which I have received for the performance of official duties. Several other incidents happened when I held the circuit in Ogle county, which, if not instructive, may be a little amusing. At one tarni on the first day a jury was sent out in an unimportant case, which I thought was a very CIRCUIT SCENES. 103 plain one, and expected a verdict after a short deliberation, and was surprised to see them come into court after three hours and ask to be discharged, bacause they could not agree. I sent them back with the intimation that I very rarely recognized the imjiossibility of an agreement, especially in such a case, and certainly not without the most ample o])portunity for deliberation. They came in with the same report, and were sent back every day in the week, till Satur- day morning, when they brought in a verdict, as I thought it should be. So soon as the verdict was announced Mr. Peters, of counsel with the losing party, jumped to his feet, and moved to set the verdict aside, and in support of his motion, read an affidavit of his client, stating that one of the jurors, naming him, had, during one of the nights of the deliberation, left the jury room, and separated from his fellow jurors, not being in charge of any officer of the court, and had gone to the tavern, where he had slept all night in bed with another man. So soon as this affidavit was read an old farmer uamed Kellogg, from Buffalo Grove, one of the jurors, a hard-fisted and hard-headed settler, who claimed to be and thought he was an oracle in his neighborhood, jum]ied to his feet, and said: "Kow, Judge, I never would have agreed to that verdict in the world, but I knew you would have to set it aside," and then sat down with an air of great satisfaction. Immediately the counsel on the other side arose and read an affidavit of the juror named, which stated it was true; that having been worn out and made sick by the constant wrangling and disputations of one of the jurors with the other eleven for several days and nights, he had separated from the other jurors and gone to the tavern, Avhere he had slept in a bed with Mr. Peters that night, but that not a word had passed between them or between him and any other person in relation to the case under consideration, and that he had immediately returned to the jury room, and there continued until a verdict had been agreed upon. As Mr. Peters had nothing further to say, and as I was 104 EARLY BENCH AND BAR OF ILLINOIS. Avell satisfied that no improper influence had been exercised upon the juror, I stretched the point a little, and overruled the motion, at which Mr. Kellogg seemed thoroughly disap- pointed and disgusted. I confess to a little surprise at the celerity with which these affidavits must have been prepared, but as I have before stated the circuit practice often required rapid thinking and rapid work, and as it might be that the facts were obtained by intuition only, and as neither party raised any questions about it, I did not think it my duty to do so. I may remark, however, that the jury had been author- ized to seal their verdict and then separate if they should have agreed upon a verdict before the (.>pening of the court, which they did; an investigation might have ex])lained how the facts were obtained, and the affidavits so promptly pre- pared. There was practicing at that bar an old bachelor named Fuller, who was a very good lawyer, but had his peculiari- ties, as old bachelors are frequently supposed to have. One of these peculiarities was that he was constantly in fear of taking cold, to avoid which calamity, except in very pleas- ant weather, he wore over his dress coat a surtout coat with the skirts cut off at the hips. On the opposite side of the river resided an English fam- ily of the name of Henshaw, who had associated in good society in the old country, and here entertained their friends with great hospitality. Some young lady friends were vis- iting them from Chicago, who much admired Mrs. Ilen- shaw's mode of cooking game, which was then very abun- dant there. One of them inquired of Mrs, Henshaw how she managed to have such tender, delicious venison, and she promptly replied that she hung it up by the tail till it dropped off. A few days later the young ladies crossed the river to do some shopping in town, and Avhcn they returned she inquired of them whom they had seen, when one of them replied, that among others they had met Mr. Fuller in the store where they were trading, when Mrs. Henshav/ CIRCUIT SCENES. 105 inquired how they liked Mr. Fuller. The reply was that he was a very pleasant gentleman, but he appeared to have been treated as she treated her venison, and so he must be ripe, if not tender or delicious. Let me say to the credit of Mr. Fuller that he subsequently got married. Mr. Fridley had preceded Mr. Cook as before stated, as prosecuting- attorney in the ninth circuit, and during his administration a case of mavhem was sent down to Oole countv bv a chans^e of venue from Jo Daviess countv. When the jirosecutor was put upon the stand he showed u]) as a well built, powerful man, while the prisoner was rather a small man, and appeared as if he would be no match for the prosecutor in a fight; but there was one eye half forced from its socket, with a repulsive white appearanc?, which showed that he had got much the worse in the dis- pute. A brother of the complainant, and another jiersoii were present at the mill. The prosecutor and his brother both swore that the prisoner was the aggressor, while the indifferent b\^stander testified that the complainant had commenced the fight. All of the witnesses were examined in great detail from the beginning to the end, showing the progress and the end of the scrimmage. There were great discrepancies in the statements made by the brothers and the third witness, and as the science of jurisprudence had not so far progressed as to offer a high premium for perjury by allowing the prisoner to swear in his OAvn excul- pation, the evidence closed with two witnesses against one. Mr. Dickey, who was defending the prisoner, to overcome this advantage, in summing up to the jury pointed out many inconsistencies in the statements of the witnesses for the people, and insisted that the story told by his witness was the most probable and natural for the occurrences of such a fight, and said that if Scott or Bulwer or Cooper, or any other great novelist, were going to describe such a fight in a novel they would describe it just as his witness had testified to this one, simply because it was most probable lOG EARLY BENCH AND BAR OF ILLINOIS. and natural — most consistent with human action under such conditions. In reply to this Fridley in his closing speech said that Mr. Dickey had told them that if a novelist Avas going to ])ut in his novel an account of such a fight as this was, he would ])ut it down just as his witness had stated it here. " Well," said Mr. Fridley, " I agree with Mr. Dickey in this. Now what does a novelist do, when he's going to write a novel? He just sits down and invents the infernalest lie he can think of. Then he tells the story in his book, and that's just the way with Mr. Dickey's witness, ile just invented this big lie, and then came here and told it to you, but lie didn't expect you to believe it any more than you would a novel. Mr. Dickey was right in what he said and he don't believe it either." This was a shot fatal to an otherwise promising case. The prisoner was convicted and sent to the penitentiary. X. STORIES AND INCIDENTS OF TKIALS. I have had occasion to mention Mr, Fridley as prosecuting attorney and as an actor in some of the circuit scenes in Ogle county, and as I shall probably have occasion to men- tion his name hereafter, I may be pardoned a few lines descriptive of him as a lawyer. Benjamin F. Fridley Avas certainly a man of some remark- able characteristics. His mind was clear and ]3enetrating, his observations exceptionally acute; his study of mankind was much more profound than his study of the law. He was witty without knowing it, and his sense of the ludi- crous was really brilliant without his appearing to a])]3re- ciate it. I scarcely ever knew him to laugh, while his quaint suggestions would sometimes ]:>rovoke laughter in others, though generally these were made in so solemn and matter- of-fact a way as not to provoke boisterous laughter, but rather a quiet internal satisfaction. BENJAMLN F. FRIDLEY. CIRCUIT SCENES. 107 He readily perceived the vital points of a case, though Avheu his interest could be subserved therel^y he could a])pear t(j be as stolid as a block about them. His primary educa- tion Avas very limited, and his orthography Avas nearly as remarkable as that of Chief Justice Wilson, who always assumed that the proper way to s])ell any word was to use as many letters as could possibly be appro]iriated for the ])urpose. I observed once, when sitting beside him on the bench, and Stephen T. Logan was arguing a case and quoted f r<;>m Dana's rejiorts, that in making a note of it he Avrote it down Dahioj; and yet any one who will read over his opin- ions will observe that he was really a fine scholar, and a clear and perspicuous writer. His opinions will compare favorably with those of any other judge to be found in our reports. With this example before us we are not at liberty to condemn Mr. Fridley for his bad spelling. He, too, was a very poor reader, but by pauses, repetitions and em])hasis, he could cover this up most ingeniously, and would manage to give what he read a meaning to suit himself. I never saw evidence that he had ever read a literary work in his life and 1 doubt if he ever read a lavr book through, but he knew a great deal of law, and what he did know^ he was able to turn to the very best account. He learned his law from his observations in courts or in conversations with other law^yers. When he heard a proposition of law stated for the first time he could tell intuitively whether it was good law, by determining in his own mind if it ought to be law. When it suited his jHirpose he would pretend to be ignorant of a principle which he well understood, and would pretend to be unaljle to understand a ruling which he perfectly comprehended. He was the originator of many aphorisms, which I often hear repeated, the author of which is not generally known; for instance : Fridley and I were appointed by Judge Ford at the DeKalb Circuit Court to defend an impecunious horse-thief. AVhen Ave Avere congratulating ourselves tliat the eA'idence was quite insufficient to convict him, as a last 108 EARLY BENCH AND BAR OF ILLINOIS. resort, the officer wlio arrested him was put upon the stand, who testified that the prisoner had confessed to him that he had stolen the horse. At this point the court adjourned for dinner. When walking up to the hotel together, 1 re- marked to Fridley that a very good case had been badly spoiled by that last witness. " Yes," answered he, " in this country, if a man is amind to be a darn fool, there is no law agin it." After our man was sent to the penitentiary I repeated this to the judge and lawyers present, who seemed to think it a very forcible and novel way of stating a plain propo- sition, and I have often heard it repeated since to illustrate a great variety of conditions to which it was applicable. Fridley was state's attorney for two years during my ad- ministration on the circuit bench, and he was certainly a most efficient prosecutor; in the main he was just and fair, but when fully convinced that the prisoner was guilty, he was sure to convict him in one way or another. When the emergency required it, he exceeded all men I ever knew to worm in illegal testimony, and he would contrive to make it tell, when it was ruled out, but he would do it in such a way as to avoid censure, and yet to make the very ruling out of the evidence tell against his opponent, sometimes by an af- fectation of illiteracy. The first time he went round the circuit as prosecutor, many of the lawyers evidently thought they would have a fine time, and sought to expose his want of education in various wa3^s, and particidarly by moving to quash his indictments for bad spelling and bad grammar, which they would parade to the amusement of tlie audience; but these were generally overruled, as they expected they would be, but this was invariably followed by a successful prosecution, whether the prisoner was guilty or innocent, so that it was not long before this amusement was found to be too expensive to be indulged in, unless the defense was deemed so clear that conviction was thought to be impos- sible. When I was holding the Kane Circuit, the grand jury CIRCUIT SCENES. 109 came into court, and com])lained that they had found an indictment against a man for larceny, but that the state's attorney refused to draw the indictment; whereupon Mr. Fridley stated that he had heard all the evidence before the grand jury, and was certain that no conviction could be had: tliat the man complained of had found an old ])lowshare in the weeds by the side of the road, and supposing that it had been lost or thrown away, had thrown it into his wagon and taken it home, without any felonious intent; and that he did not deem it his duty to put the county to the expense of a useless trial. I told him that he had better draw the indict- ment, and when it should be returned into court he could do with it as he thought best. The defendant was a German, a middle-aged, well-to-do farmer, and not having well understood what had taken place in court, was greatly alarmed upon learning that he had been indicted for stealing the old plowshare, and in hot haste employed Mr. Peters to defend him. Mr. Peters feeling that he was in conscience bound to do something to earn the fat fee which he intended to charge the wealth v old German, and in order to anticipate a nolle j>ros. by Fridley, hastened to make a motion to quash the indictment in a rather ostentatious way, raising the most trivial objec- tions which he argued in a way to give the impression that the state's attorney did not understand his business, although in conclusion he tried to smooth it over, as if he feared to wound Mr. Fridley's susceptibilities. When he closed I promptly overruled the motion to quash witliout hearing from Mr. Fridle}^, when Mr. Peters turned to the state's attorney with a rather consequential air, and asked him Avhat he proposed to do with the case, expecting no doubt a nolle pros, at once, but Fridley was fairly aroused by this motion to quash, and Avith the greatest coolness rose and replied that he proposed to try it and to convict the prisoner, too; that upon a partial understanding of the case before the grand jury he had believed that the prisoner had found the plowshare, and picked it up innocently, 110 EARLY BENCH AND BAR OF ILLINOIS. l3ut on a more thorough examination of the evidence, and the discovery of new facts, which showed that the prisoner had concealed it among some old iron in a loft, he was con- vinced it was a most flagrant case of deliberate larceny, which it was his duty to prosecute to the utmost; that he was now convinced that the grand jury was right, and that he had been wrong, and that he Avould show the court and jury how wrong he had at first been, and concluded by say- ing, " Let a jury come." There was a snap in his dark, keen eye, shining out of a solemn, stoical countenance, which showed that he was much in earnest. Mr. Peters now appreciated his peril and the indiscretion he had committed. The effect of Mr. Fridley's statement in court was already parried. He had no knowledge of the facts of the case in detail, and he feared there might be something which might be successfully urged against him. It was a hot day in June, and the percpiration burst out in great beads, covering his naked pate and fat face, and run- ning down his cheeks in a torrent. A jury was called and the trial began — and it was a trial. During the prosecution there was a combination of mild- ness of manner and ferocity of effect which I have scarcely seen equaled. The trial lasted until nearly dark, when the jury was sent out, and I adjourned court for supper. When the court met after tea the jury brought in a ver- dict of '^ guilty." The poor German almost fainted when he was informed of the verdict, and the perspiration rolled from Mr. Peters in more copious streams than ever before, while Fridley sat as calm and immovable as a statue. A motion was immediately made for a new trial, and as it was in tlie evening of the last day of the term, I told Mr. Peters that I would hear from the state's attorney, who simply said as it was late he vrould leave it to the court. I then summed up the evidence, briefly showing that, in my opinion, the plowshare had been picked up without any felonious intent, and concluded by ordering a new trial. CIRCUIT SCENES. Ill Mr. Peters then arose, as mild a mannered man as one often sees, turned to Mr. Fridley, said in a rather soothing voice : '' After hearing the views of the court on the subject, I appeal to yo^^ if 3^ou consider it your duty to prosecute this case further ? " Fridley arose, and in a very calm voice said, " Oh, Mr. Peters, if j^ou cease to occupy a hostile atti- tude, I will dismiss the case." Mark Fletcher was clerk of the Circuit Court of Kane County, and a most excellent clerk he was, too. He had a vein of quiet humor about him in which he frequently in- dulo^cd. He had taken an American silver dollar and placed it on the outside of his Bible, on which he adminis- tered official oaths. He then ])laced it in his press and made a deep and distinct impression of the coin on the cover of the book, on the opposite cover of which there was a cross. "When asked Avhy he had the impression of the dol- lar on the book, he replied that vrhen he swore a Catholic he presented that side on which the cross was shown, but when he swore a Yankee, ho jiresented that side of the book on which the dollar was shown. At one term of the court a case of divorce was tried in Avhich a Presbyterian minister from Elgin was the com- plainant. He ]^roved a pretty strong case of the miscon- duct of the defendant by several witnesses brought from Quincy, Illinois, but not being entirely satisfied, I held the case over for further consideration. A day or two after I called the case up, reviewing the evidence, and expressing my doubts about its sufficiency and the hope that some fur- ther evidence might be produced which would remove my doubts. Some bystander from Elgin, having misunder- stood what I had said, rushed away in hot haste and in- formed the clergyman that I had granted his divorce. Whereupon, the same evening he was married to a sister of his flock, but after two days of wedded bliss he learned, to his consternation, that I had not decided the case at all. He immediately started for Geneva, and rushed into the court in breathless haste just as I was about to adjourn it for 112 EARLY BENCH AND BAR OF ILLINOIS. the term, and made known the pli,o-ht in which he found himself. His despair was unmistakable. I allowed him to ba sworn. His testimony rGmoved all doubt and I granted the decree. I was told that he hastened back to Elo^in with as much speed as he had shown in his way down, and was married over again as quickly as some one could be found to perform the ceremony. At another term of the same court three men were indicted for the burglary of a log cabin in the country in which lived a Scotch family. The man of the house was away at the time; only the wife and several small children were in the cabin and necessarily she was the only v\-itness. All of the burglars were masked, but she recognized them all bv their voices, for thev lived in the neiorhborhood and she knew them all. The manner in which she gave her tes- timony was very convincing; indeed, I have rarely seen a witness whose testimony more favorably impressed me. On the ci'oss-examination by their counsel, she was required to detail with great particularity every act which each one of the defendants did while ransacking the house for plunder. During the examination she had stated that one of the defendants had done some act which I do not now remem- ber. Instantly that defendant whispered something to his counsel, who nodded his head and Avent on with the examination on the line which he was then pursuing; after a while he came back to the same point and led her over the same ground as before, but when she came to this particular point she stated it differently from her former statement. Counsel then asked her if she had not formerly stated it was so and so; she stated that she had not, or if she had it was a slip of the tongue. This was most convincing proof to me that her statements were certainly true, for if the defendant had not been present he could not have known that she made a mistake in relating the transaction, and there could be no doubt that his whispered communication to his counsel told him of that mistake. However, the state's attornev had not seen the CIRCUIT SCENES. 113 transaction as I observed it, nor did I tell him of it until afterward. Indeed, I was convinced that the jury would convict them, and so were they, for they disapjieared that night, being out on bail. I kept the jury together till the sheriff brought the defendants back. He found them stowed away in the hold of a vessel in the Chicago harbor which was about to sail for the lower lakes. It was late in the evening of the last day of the court when he returned with his prisoners, and I received the verdict, and sentence was passed. The severity of the punishment inflicted induced the suspicion that the jury had probably changed that part of their verdict during the two days they had been kept to- gether waiting for the return of the prisoners. XI. LIFE ON THE CIRCUIT. I ol)serve in the daily press that some one has introduced into the Legislature a bill authorizing the judges of courts to charge the juries in cases tried before them as they may think the merits of the case require, without being strictly confined to written instructions. Such was the law during the early years of my judicial service, and in important cases I frequently adopted that mode, deeming it possible in that way to assist the jury in arriving at correct conclusions. In New York, where I had studied my profession, such was the universal practice of the courts. My observation there had taught me that the greatest care was necessary for the judge not to seem to take sides with either party — not to express any opinion or bias as to which party should succeed — but simplv to review the evidence, if necessary, with exact fair- ness, and to clearly state the principles of law applicable to it. There I had observed that whenever a judge assumed the role of an advocate, his opinions at once ceased to have a preponderating influence, and were not treated with any more consideration than were those of the lawver advocat- 114 EARLY BENCH AND BAR OF ILLINOIS. ing the same side; whereas the judge who showed perfect impartiality was listened to with the greatest deference and confidence. By these observations I profited in my mode of charging juries, and I now believe that I could do more in that way to assist juries in arriving at correct conclusions than I could have done by adhering strictly to the written instructions asked. At the next term of the court in Kendall county after the present law requiring written instructions to be adhered to by the courts, Mr. Butterfield, who had practiced for many years in the New York courts, was in attendance. Mr. Dickey, who was much pleased with the passage of the new law, spoke to several members of the bar of it, and among others addressed Mr. Butterfield, and asked him if he did not think it an excellent law. " Oh, yes," said Mr. Butterfield, " it is a most excellent law. Tie up the hands of the court, and turn loose the pettifoggers, and undoubted justice will always be done." I thought then, and I still think, that this Avas a forcible way of stating an undoubted truth. If a judge is worthy of the seat he occupies, he is entitled to confidence and respect, and should be entrusted with the impartial administration of justice in his court. Courts are instituted to administer impartial justice accord- ing to law to all suitors before them, and not to sit Iw and see justice perverted because one lawyer happens to be smarter than the other, and should not be compelled to act as mere stakeholders between the advocates. Mr. Butterfield was undoubtedly a very able lawyer, and would often illustrate an idea by comparison, with great force, which, however, was frequently more apt than con- vincing. AYhen the case of the Shawneetown Bank was before the Supreme Court he represented the bank. That bank had been created and was doing business before the second constitutional amendment had been adopted. That constitution prevented the creation of any new banks. "When the charter of the old bank was about to expire by limitation, a law was passed extending its charter, and the CIRCUIT SCENES. 115 question was, whether this was the creation of a new l)ank, which was prohibited by the constitution. In arguing the case before the Supreme Court Mr. Buttertiekl said: '' May it please the court, Avhen God lengthened out the days of old Hezekiah, was he the same old Hezekiah as before or a new Hezekiah ? " In the olden time judges, lawyers, jurors and witnesses all had to be accommodated at some little hostelry at the county seat, where it would take two or three tablefuls to feed all the guests; then when the bell rang for a meal there would be a rush for the dining room, when none stood upon the order of their going. A table was usually placed near the door, upon which the guests as they passed in threw their hats or wraps in a promiscuous pile. Mr. Helm, a resi- dent lawyer of Yorkville, a man of full habit and pretty large proportions, in going out had some difficulty in find- ing his own hat, and in his efforts tried on several which Avould not fit him; all were too small, for his hat was nearly as big as a bee-hive. He had just laid down a small hat, which would barely sit upon the top of his head, and picked up his own, when Mr, Butterfield came along, and claimed the little one which he was about to lay dovrn, when Mr. Helm remarked : '" Brother Butterfield, it seems to me you have a very small head. My hat Avould cover your face as well as your head." " Yes, yes, Brother Helm," said Butter- field, "3''ou have a very thick head but mine is a good deal the longest." His wit was generally of an unfortunate kind, for it usually partook of caustic sarcasm, "which left a rankling fester in the feelings of its object, and to indulge in this vicious habit he sometimes could not resist the temptation to even endanger a cause. I recollect once when he was arguing a case before the Supreme Court, Stephen T. Logan, who was from Kentucky and was a laudable admirer of the judiciary of that State, had quoted a very pertinent case from Pertle's Digest. When Butterfield came to answer him, instead of trying to explain away the case he 116 EAELY BENCH AND BAR OF ILLINOIS. fell to abusing and ridiculing the Kentucky courts in such a way as to be offensive to the admirers of the eminent judges who had adorned the benches of that State, and especially did he ridicule Pertle's Digest. " Why,'' said he, " this Pertle's Digest may be good law south of the Ohio river, but whenever it gets north of that stream it should be taken up and impounded as an estray, but no man except a Kentuckian would ever come and claim the property and pay charges." In arguing a case once he was met squarely in the face by a statute passed by our Legislature, and he had nothing to do but to abuse the law and the lawmakers who passed it. It was an old statute and was evidently a surprise to him. In his tirade against the Legislature that passed the law, he drew pictures of the members of the General Assembly, and among other things said : " Their only means of sup- port is to hunt coons and go to the Legislater." (lie always pronounced this and similar words in that way.) Judge Lockwood, who had been getting mad for some time at this vicious tirade, broke in and told Mr. Butterheld that he would not sit there and hear a co-ordinate branch of the government so unjustly vilified. But let me come back to the Circuit Courts. At a term of the Circuit Court of Peoria County which was held by Judge Koerner, with whom I had exchanged circuits for the time during Fridlcy's administration as state's attorney, he had indicted a man in that court for stealing a five dollar bank note, of the value of five dollars, which at that time was a penitentiary offense. When the note was produced on the trial it proved to be from some eastern bank, and as the larceny was clearly proved, his counsel directed their attention exclusively to reduce the value of the bill to less than five dollars, and so save their client from the penitentiary. They produced some of the bank officers by whom they proved that that money Avas at a discount of two or three per cent. To rebut this, Fridley called one of the jurors, Mr. (lUSTAVUS K( )K1{NER. CIRCUIT SCENES. 117 Stephen Voris, who was a prominent merchant of the phice- Mr. Yoris testified that most of the currency in circuhition there, consisted of eastern, bank notes, most of which, in- cluding this bill, passed at par in ordinar}^ business transac- tions; that he received it at par at his store in payment for goods sold, and also in payment for accounts and notes due him. He introduced sev^eral of the merchants of the place Avho testified to the same thing, and that it was only when they had to buy eastern exchange, or when they wanted to get specie for a legal tender or the like, that they had to pay a premium when using this kind of money. The defend- ant's counsel insisted strenuously that the statute meant gold and silver, Avhich was the only legal tender at the time when the limit was fixed which fixed the value of the things stolen, which determined whether the offense should be punished in the penitentiary or not. But Fridley was equal to the emergency. In summing up to the jury he pointed out to them, that it -\ras their province to de- termine the value of the goods taken. "And," said he, "you, Mr. Yoris, and these other merchants here, would take this bill at par, in payment for goods sold at your store, or for debts due you, without thinking to shave your cus- tomer two or three cents on the dollar, but this infernal rascal here ain't willing to steal it at par ! Such monstrous audacity should be punished by a year or two extra in the penitentiary." This settled the prisoner's case, but the jury only gave him a year of punishment. Once when trying a case in the Peoria Circuit Court I was provoked to laughter to such a degree that I was un- able to control it. The case was tried by Wm, L. May on one side, and by Knolton on the other. May had received a fair education, but that was all. He was a politician by profession, and was a fairly good lawyer as well. Knolton was a collegiate graduate, but was verv uncouth in his man- ners and exceedingly slovenly in his habits. The case in- volved the construction or rei)air of a house, and in the course of the trial some technical architectural terms were 118 EARLY BENCH AND BAR OF ILLINOIS. used, one of whicli was written out in the pleadings, which May had frequent occasion to use in the course of his cross- examination. This term was not pronounced as it was properly spelled in the pleadings. Whenever he had oc- casion to use this term he pronounced it as it was spelled. Whenever he did this Knolton would correct him in the ])ronunciation in a low voice, but so everj^body could hear liim. This was very offensive to May, and every time the correction was repeated he got madder and madder. He had a very fair complexion and sandy hair. Finally his face grew livid and his red hair seemed to stand on end. Knolton did not observe this, but kept on repeating the cor- rection as often as opportunity occurred. At length the explosion came, when May jumped to his feet, his powerful frame fairly trembling with emotion; he leaned across the table right over Knolton, and brandishing his fists he ex- claimed : " Perhaps you know, you say you do ! Perhaps you are right, you say you are ! Perhaps you are a learned man, you say you are ! Perhaps you have been through college, you say you have ! But I never saw your diploma, and I wouldn't judge you had by the way you talk." Knol- ton, who had not observed the rising storm, turned partly around, and looking into May's face seemed struck dumb by the fearful expression on his countenance and his wild gesticulation, and fairly crouched down as if to avoid an attack which he was in nowise prepared to resist. Now, this does not seem very funny or laughable when described in words, so it must have been the accompanying incidents which made it seem so supremely ludicrous to me. The sort of climax which May poured out upon his crouch- ing victim before him was uttered very rapidly and distinctly with all the force and vehemence which his rage could inspire. At least I was so overcome Avith laughter that I had to get down beneath the bench as if to pick up some- thing until I could decently compose myself. At the proper season of the year we usually passed up the river on a steamer from Peoria to Lacon— the next court — CIRCUIT SCENES. 119 and as tlie river steamers had no regular times of passing Peoria, we sometimes had to prepare quickly for the jour- ney. At one time, when it was announced before the court had adjourned that a steamer bound up had arrived, I closed up the business as soon as possible and adjourned the court and hastened at once to the landing. Mr. Peters, who had been engaged until the last moment, started down with the rest of us, but some one reminded him that he was in his slippers, which sent him into a shoe store which we passed, where he got a pair of boots, which were tied together at the straps, and he came trotting after us at the best speed so fat a man could make. We all arrived in time, and when we went into the cal)in the temperature of Mr. Peters was so high that he concluded to continue in his slippers, and not put on his boots until we should arrive at Lacon. In due time we were all assigned to state-rooms and went to bed. Some time in the course of the night the watchman came through the cabin crying fire. At this, of course, every one jumped up. I opened my state-room door to see what I could. At that instant Peters burst out of an adjoin- ing room and rushed down the cabin to the companion"vvay, which was a good way off, in his drawers, and one of his new boots on a foot, while the other was dragging after him, hanging by the string in the strap. The hair on the back of his head seemed to stand out as if charged with electricity, and on his countenance was an expression of anxiety, not to sa}'" terror. The scene was so ludicrous that I believe if the boat had been on fire from stem to stern, I should have laughed till I cried. By the time he reached the companionway, or head of the stairs which descended to the lower deck, word came that the fire was out, when Peters quietly hobbled back to his room in the midst of a crowd of passengers, who by this time got from their state-rooms into the cabin, mostly in very light habiliments. Then others laughed as well as I. The fright was over and all were more or less en dishahiUe, 120 EARLY BENCH AND BAR OF ILLINOIS, when the ludicrous features of the scene could be well ob- served and appreciated. Quite different feelings were once excited during the trial of a case in the Marshall Circuit Court. That case involved a collision between the Prairie Bird, which plied between Peoria and Peru, and a descending steamer, which Avas tow- ing along her side a barge loaded with gunpowder. As is very common in such cases, there was great discrepancy in the testimony between those on the different boats, as to their respective positions at the time of the collision. Several sportsmen were going up the river on the Prairie Bird on a duck shooting excursion. Some of them testified that when they heard the shock of the collision, they opened the Avindows of their state-rooms on the port side, and saw that the boat was lying in the water grass near the shore, Avhile the pilot and several others on the descending boat, testified that she was in the middle of the river, Avhich Avas her place; that the Prairie Bird was ascending as if to pass her on the left hand side, but that she suddenly changed her course, as if to cross the river, and pass her on the right hand side, Avhich brought her right in front of the boAvs of the descending boat, so that to avoid the collision Avas impossible. The pilot said that before the boat struck, he saAv that the barge, loaded Avith powder, the boAv of Avhich projected some distance beyond that of the steamer, must inevitably strike the Prairie Bird right at the mouth of her furnaces, the doors of Avhich Avere open and lightened up everything around them; and he expected that the ])owder Avould become ignited, Avhen both boats and everybody on them must bo instantly bloAvn to atoms, and that nothing saved them but the fact that the lines Avhich held the barge to the boat gaA'e Avay, when the barge rebounded and floated off in the cur- rent, and then his boat crashed into the other in such a Avay as to force the Prairie Bird so far onto his boAvs as to hold her there, and until he backed his boat clear across the river and stopped on the other shore. The pilot's description of the situation, and especially at the time Avhen he realized CIRCUIT SCENES. 121 that the barge must crash into the furnaces of the other boat, when destruction would be certain to all, was so vivid and realistic, that I confess a shiver ran through my whole frame, and I think that many others experienced a similar sensation. It must indeed have been an awful moment when he felt certain that that was to be the last, not only for himself but for so manv others, and then to think what a revulsion of feeling must have occurred when he saw the lines part and the barge float innocently away. When he came to this part of his testimony, I confess I felt a relief, at least somewhat akin to that which he ex- perienced when the incident occurred. XII. TRIAL OF ME. LOVEJOT. In my last article I gave an account of a trial which took place in Peoria county, of a man who wanted to steal cur- rency at a discount, which took place before Judge Koer- ner, with whom, as before stated, I had exchanged circuits temporarily. I had also made a similar exchange at another time with Judge Young, and as all the incidents given in these papers are written (vicariously) from memory alone, I frequently slide over events, which I find to be a very convenient mode of avoiding misstatements when my recollection is indistinct. I can not resist this opportunity to state that the kind- ness and courtesy which I received at the hands of the bar of Judge Koerner's circuit and of his personal friends, while I was tilling his place there, were very gratifying at the time and are still green in my memory after the lapse of forty-five years; nor can I resist the inclination to state the fact that of the seventeen judges with whom I sat on the supreme bench of this State, Judge Koerner and Judge Trumbull alone remain, both of whom possess the vigor and 12i2 EARLY BENCH AND BAR OF ILLINOIS. elasticity, both mental and pli3"sical, of middle-aged men, and that two of us have been enabled, a considerable time since, to celebrate our golden weddings, and that we are still going on toward another period of those happy events. While both of these gentlemen are still actively engaged in the practice of the profession, I must enjoy the luxury of mental employment in other ways, and hence it is that I have troubled the editor and readers of this journal with these papers about the bench and the bar of the olden times. I will now proceed with other events according to my best recollections. At a term of the Circuit Court which I held in Bureau county, the grand jury returned an indictment against Owen Lovejoy, for assisting a runaway slave to escape. That was before the organization of the republican party by the amalgamation or co-operation of the whigs with the abo- litionists. Previous to that time the latter had been equally held in disestesm by both political parties, for the simple reason that to have done otherwise would have amounted to political suicide. The abolitionists held and maintained their opinions from the deepest conscientious convictions, well appreciating that their doctrines must subject them to the charge of disloyalty to the constitution and laws of the o-eneral o-overnment, which forbade them to assist in the escape of runaway slaves from the slave States, and these Federal laws were supplemented by State laws, in most, if not all of the free States, and our black laws, as they were called, manifested the greatest zeal in this direction. Indeed, I had been in Chicago but a short time, when some overzealous person entered a complaint under our statute against all the negroes in town (some six or eight in number) for being in the State without free papers, which was an offense against the statutes as they then stood; this created consternation among these men, all of whom had come in from the I*^orthern States, where such papers were unknoAvn, and were astonished to find that thev were liable CIRCUIT SCENES. 123' to be convicted and sold into a sort of slavery for the want (^f the evidence which the statute required of their freedom. The laws here made no provision for such cases, for the reason, probably, that it had never occurred to the law- makers that a negro could ever come from any but a slave State. The County Commissioners' Court was then in session here. I sent each one of my clients to bring up witnesses to prove that he was a free man and came here from a free State, and ap])lied to the court for free papers, not basing my application upon any statute, but upon the very necessity of the case. By this time a large majorit\^ of the town and county were from the free States, while most of those from the Southern States had no sympathy with a prosecution which was so unjust and wicked as the one noAv ])ending before the magistrate outside. After a long and hard struggle before the court it made an order granting my motion, and I was authorized to prepare the certificates of freedom for each of my clients, which Col. Hamilton tlrew up in the most elaborate form and had duly exe- cuted, and the seal of the County Commissioners' Court was attached; to this was added the signature of the clerk and of all the members of the court. With these certificates I hastened to the maoistrate's office, where the case was pending, and offered them in evidence in defense. It was objected that they were not obtained in a manner conformable to the statute, but the justice held that they were good enough certificates for him, and discharged my clients, each of whom walked proudly out of court with the certificate in his pocket. See act of 1829, § 2, in Field's Eev. Stat., p. -101:. I may say here that it was very rare to find an immigrant from a slave State, who was not quite as earnest to protect a free negro in all his rights as he was to have a runaway slave returned to his master. As I have said, both political parties were anxious to avoid the charge of being called abolitionists, and manifested an equal zeal for the conviction 124 EARLY BENCH AND BAR OF ILLINOIS. of Lovejoy. He was tlie most prominent abolitionist in the northern part of the State, able and courageous to the last degree. He was a pastor of a church in Princeton with the largest congregation of any in the county, all of whom were pronounced abolitionists, and there were many others there who did not belong to his church or congregation, but who w^ere scarcely less abolitionists than he, and as bold and outspoken on the subject. As is usually the case, this defiant and outspoken sentiment engendered an equally zealous opposition to it, and this state of public feeling in the county had extended to all the northern jwirt of the State, more pronounced in the adjoining counties than further away, but still active enough to make the approaching trial a subject of extensive interest and comment. Arrangements were made long beforehand, and money subscribed to bring Alvin Stewart, a famous abolition lawj^er, from Utica, 'N. Y., as leading counsel in the defense, and it was well known that James H. Collins, of Chicago, my former law partner, and an equally ardent abolitionist, would take part in the defense of Mr. Lovejoy. I had known Mr. Stewart when I was a law student in Utica, and had often been present in court when he was trying causes. In one respect, at least; he was the most ex- traordinary man I ever saw. His face was anything but beautiful, and there was a mobility about its muscles which enabled him fairly to gesticulate with his countenance. The distortions of his face, Vv^hile supremely ludicrous, were alwa3^s suggestive, and even brilliant at times, and never approached in the remotest degree the appearance of imbe- cility. His language was well chosen, but very odd. His similes and illustrations were incongruous and yet very ex- pressive. His tone and accent were of the most solemn character. Not a smile was ever known to rest upon his face, and yet I will undertake to say that no man ever listened to him for ten minutes without being absolutely convulsed with uncontrollable laughter, no matter how solemn or interesting his subject. After a few sentences the CIRCUIT SCENES. 1 25 laughter would begin, when judge, jury, lawyers and the audience would all yield themselves u]j to laughter, which they, at first, could not restrain, and finally did not want to. I once heard him argue a very common-])lace, matter-of-fact case before the Supreme Court of Xew York, when all the judges u])on the bench were fairly in convulsions with laughter. He never said a sill}^ thing, but always odd be- yond comparison; it was his tone and facial expressions which provoked to laughter quite as much as what he said. It may not be surprising, then, that knowing Mr. Stewart as I did, I was pleased to hear that he was to take part in the defense of Lovejoy, for I knev/ it would afford him oc- casion for a supreme eft'ort to display his sarcasm, his vituperation, his denunciation, in language, tone and ex- pression so different from that ever heard before, and especially so laugh-provoking, that I was very anxious to hear him again, and be again shaken up with laughter as I had not been for many years. But Stewart did not come and the defense fell upon Mr. Collins alone. The subject-matter of the trial was sufficient to crowd the house every moment, evincing the deep interest felt throughout the community. The witnesses sworn were all on one side. The prosecution proved that a large fat negro woman was domiciled in Mr. Lovejoy's house for several days, and they offered to prove by several ^vitnesses that she said she was a slave, belonging to a man in Missouri, whose name and residence she gave, and that she had run, or been assisted, away, and was on her way to Canada and freedom, and that Massa Lovejoy was a mighty good man, and helping her along; but all of this testimou}' I of course ruled out, holding that it was only hearsay evidence, and especially that of a person Avhom the law would not credit when under oath (for then the sworn testimony of a negro could not be admitted against a white man), much less could her unsworn statements be received. A number of witnesses were ofl'ered who had conversed with Mr. Lovejoy, to all of whom he had stated that she 126 EARLY BENCH AND BAR OF ILLINOIS. was a woman, needy and in distress, and that he was going to help her to where she could help herself. A public meeting had been held to raise funds to help her along, to which Mr. Lovejoy had made a speech, detailing her sufferings and necessities, and at which others had spoken, detailing her account of her slaver}'', her sufferings and escape, but of course all this had to be ruled out as in- competent evidence against Mr. Lovejoy ; indeed, not one word was proved from beginning to end, showing that Mr. Lovejoy had ever admitted or intimated that the woman was, or ever had been, a slave. Evety expression proved as coming from him Avas carefully guarded, so as not in any way to incriminate him as connected with this woman. lie denounced slavery and slaveholders in general terms, pic- tured the sufferings of the slave, and declared in livid lan- guage that it was the duty of every man who deserved happiness in this world and beatitude in the next, to con- secrete the means which God had given him to the escape of slaves from their cruel bondage to a place of freedom ; but for this Mr. Lovejoy was not indicted, and so I ruled it out as incompetent, although it was impossible to keep it out in the first instance, for counsel had a right to prove what he said in his speeches to find if something criminat- ing could not be found in them. Able counsel was employed to assist the state's attorney in this trial, and the case was summed up most elaborately, but, no doubt, more for the benefit of the audience than for the jury. While ])robably no j^erson in the court room had the least doubt that Mr. Lovejoy well knew that the woman was a slave, and as such was helping her escape from her master, that he was in fact president of the underground railroad^ as it was called, by which slaves were assisted to escape, and its chief manager, there lacked the legal evi- dence that this woman was a slave. Mr. Collins argued the case with his usual ability, pointing out the entire insuffi- ciency of the evidence to justify a conviction. In that case I charged the jury fully upon the evidence CIRCUIT SCENES. 127 and the law, admonishing them that the excitement and prejudice which might pervade the whole community, and the moral conviction, if they entertained such conviction, of the defendant's guilt, should have not the least influence upon their verdict, if they did not find legal evidence to justify a conviction; that a storm of excitement and preju- dice might be raging around them, but they must stand up against it, like an adamantine rock, against which the waves of the sea dash without making the least impression; that unless there was legal evidence sufficient to show, beyond a reasonable doubt, that this woman was a slave, they musl, acquit the defendant; and they did acquit him, greatly to the chagrin of the anti-abolitionists, and as greathT" to the joy of Mr. Lovejoy and his partisans. The rejoicing of the latter was undoubtedly the most heartfelt and sincere, for they acted from a deep and conscientious conviction of duty, while the feelings of the others were more political than moral. XIII. AXTI-SLAVERT TIMES IX ILLINOIS. But the abolition spirit was by no means confined to Bureau county; it was equally earnest and zealous in por- tions of Putnam countv, of which Bureau had formerly formed a part. Laraoil settlement was situated about six miles from Hennepin on the edge of Grand Prairie. Within the last ten 3^ears this had become a large and prosperous settlement, with its schools and churches; with hardly an exception the inhabitants of this neighborhood were aboli- tionists of a very pronounced type. When I opened a term of the court at Hennepin the grand jury was called, and when the name of one of the citizens of Lamoil was reached he stepped forward and said : "Judge, I must decline to be sworn on this grand jury, for ray con- science will not allow me to swear that I will execute all 12S EARLY BENCH AND BAR OF ILLINOIS. the laws of this State. I know that my refusal to do this will subject me to fine and imprisonment, but these I shall cheerfully submit to rather than violate my conscience." I at once saw that I had a martyr to deal with, who was ambitious to suffer for conscience'' sake, so without another word I told him to take his seat and we would see to his case later. The panel was completed, the jurors sworn and sent out, and I went on with the other business of the court without any further reference to the case of the martyr. When court opened the next morning the conscientious juror "was promptly on hand, and called up his case himself, and inquired of me what punishment I proposed to inflict upon him for refusing to be sworn on the grand jury. I answered him that I had not time to consider his case yet, and should not be able to do so for a day or two, and told him that I would let him know when I wanted him. He took his seat with evident disappointment, and there he sat all clay with a steadfastness which was now becoming interesting. The next morning he again called up his case and expressed an anxiety to know what his fate was to be, that he might be suffering the punishment and have it over. I again told him that I had not time to consider the matter, but that when I wanted him I would manage to let him know. He indus- triously devoted another day to holding down a wooden seat in the court room, and this proceeding was repeated every morning in the week until Saturday, when he again applied for sentence, and I told him he might go home, that I did not think that the State had been a sufferer to an appreciable amount by the loss of his services, and so I should not inflict any punishment at all u})on him. He cer- tainly looked more mortified and chagrined at not being punished than most persons do when they are punished. Mr. Dickey's father was a Presbyterian clergjnnan, and was in charge of a church situated at Mount Palatine, and Avas fully in sympathy with his people on the subject of slavery. One day during the term Mr. Dickey drove out to visit his father, and in the course of conversation his father CIRCUIT SCENES. 129 expressed bis abhorrence at the imprisonment ^Ybic•b bis neighbor and parishioner was suffering in the jail at Henne- pin for conscience' sake, and expressed the opinion that such barbarities in a Cliristian community woukl do more to spread the lights of freedom than all the words which could be uttered, be they ever so eloquent. The old gentleman seemed much astonished and chagrined when told that his good neighbor had not been imprisoned at all or fined, nor yet had received a word of reproof from the court for refus- ing to be sworn, but had all the week hung about the court, begging daily to be punished, a prayer which was constantly refused him. The reverend gentleman's disappointment at this termination of the affair was evidently not a whit less than was that of the intended martyr himself, and he was even loath to believe that what his son told him was true. He said that it was reported and generally believed through- out the community, and such re])orts had been sent abroad, that the poor man had been hurried off to jail, and was there languishing on bread and water, for how^ long a period no one could tell, and that meetings had been held and prayers had been offered that he might be given strength and forti- tude to valiantly suffer for righteousness' sake. Mr. Fridley had three indictments found by a Peoria grand jury against one Bennett, a farmer, who lived back in the country; one was for stealing a horse, another for stealing a wagon, and a third for stealing some other article Avhich I do not now remember. Powell, Bryan and Knol- ton were engaged to defend him, and as he had a very unsavory reputation in Peoria county, they applied for a change of venue, and by agreement the case was trans- ferred to Putnam county, which, by the clipping off of Bureau and Marshall counties, had so reduced its size and population as to leave sufficient time to dispose of an occa- sional case from other counties in the circuit. In the course of the trial Fridley introduced a nephcAv of the defendant, who, upon the death of his father and mother, had gone to live with his uncle, who from the very first 9 130 EARLY BENCH AND BAR OF ILLINOIS. had initiated him into tlie profession of thieves, and the boy had become so expert that hy his hands he committed most of his larcenies. "With great particularity and candor, the boy detailed with minuteness the manner in which his uncle conducted his criminal business, and the manner in which he had conducted the boy's education in the same line. There was great abundance of corroborating as well as direct evidence, tending to support the charges made against Bennett. In his summing up, Fridley drew a graphic picture of the man who would take his own brother's son, who was left without father or mother or friends to care for him, and compel him to turn thief under his own diabolical instruc- tions. After summing up the case in a very forcible, not to say brilliant manner, Fridley concluded as follows : " But, gentlemen, what do I do ? You are going to send this man to the penitentiary for ten years for stealing a horse. I shall next try him for stealing that wagon, and he will go up ten years for that, and then there is the third indictment against him, which I shall next try, and he is sure of ten years'for that, which is the worst case of all of them. This makes thirty years of hard work, which he owes to the people of the State of Illinois, and as I judge he is now about fort}^ years of age, and as but seventy years are allotted to man, he can only have time to work out what he owes the State, so that every minute I detain you here I am defrauding the people of this State out of the services which he owes them." Neither party asked any instruc- tions, and the jury was sent out immediately. The next case was called up at once, and Bennett's coun- sel made an effort to have it continued or postponed, but as no good reason could be shown, I overruled the motion, and directed a jury to be called. Just at this moment the first jury came in with a verdict of guilty and ten years in the penitentiary. CIRCUIT SCENES. 131 At this point his counsel all withdrew from the case, stat- ing that thej could be of no further service to him, where the law was so swiftly administered. I then asked the prisoner if he wished to employ counsel. He answered no, as he proposed to try his own cases thereafter. He did so and he tried his case fairly well, and made a pretty little speech to the jury, rather pleading for mercy than denying his guilt. Fridley did not press him hard, and the jury brought in a verdict of guilt}', fixing the punishment at five years in the penitentiary, and Bennett manifested a satis- faction in the fact that he had been more successful in his own defense than his counsel had been for him in the other trial. Now, I forget whether Fridle}" tried the third case imme- diately thereafter or had it continued and stricken from the docket with leave to reinstate, but I do remember that in passing the sentence I directed the last five years to com- mence on the expiration of the first ten years. When it is remembered that I had twelve counties in my circuit, in each of which I had to hold two courts a year, besides my Supreme Court duties, and that three of these were large counties, Peoria, La Salle and Kane, requiring about two weeks each at a term, and that I was determined to clear every docket at each term, it will be readily appre- ciated that quick work had to be done, and no time unnec- essarily lost. In Peoria county, especially, which was the largest county in the circuit, we had to be very industrious; there I usually opened 'court at eight o'clock in the morn- ing, and with an hour's intermission, held on until dark, and frequently until late at night. I recollect at one time that I tried seven jury cases and received seven verdicts in one forenoon. Though all of these cases were contested, none of them were of any great importance. As a general rule, questions of the admissibility of evidence were not allowed to be argued, but were decided as soon as raised, and so of all motions which arose during the trial. Probably the questions which arise at the present day in 132 EAELY BENCH AND BAR OF ILLINOIS. our courts of justice may be much more difficult than those which were then presented, but then I never could afford the time to hear argument in support of a position about which I entertained no doubt in niy own mind, nor even against it for any great length of time, unless I thought counsel were talking sense or to the purpose. Let it be remembered, again, that the circuit system prevailed at that time, which compelled everybody to think quickly and to act promptly. When I first began to practice in Putnam county, as stated in one of the earlier numbers of this series, there was already a pretty large settlement in the Ox-bow Prairie, of members of the Society of Friends, with many of whom I soon became acquainted, and when they learned that I was born and brought up in that denomination, and still had a o-reat reverence for the tenets of mv father and mother, they directly claimed me as one of their own, and seemed to feel rather proud of me, and treated me with the greatest kindness and affection, and sent me in apples and other delicacies, when I attended court in that county. Now, fifty years ago, the men of this denomination held it to be a matter of conscience to wear their broad-brimmed hats on all occasions, whether in court, in church or in the drawing room, and it was not deemed improper, if one could endure the discouifort, to wear his hat at the table; and there Avas manifestl}^ great rejoicing throughout that community, when they learned that I was appointed to preside in their court, and for the first time they then obeyed summonses to sit upon the juries; it was quite interesting to see, when I first opened court there, what a considerable proportion of the audience consisted of my brethren, all studiously covered with their broad-brimmed hats, not one of which was re- moved when the court was opened. They now felt at full liberty without molestation to thus bear their testimony against the vanities and ceremonies of the world, which the}'" conscientiously felt they were doing by neglecting to uncover the head in the presence of any mortal, however exalted CIRCUIT SCENES. 133 might be his position. In this they were following the example of their great prototypes, Barkley, Fox and Fenn, Avho refused to be uncovered, even in the presence of the king. Of course I allowed them to indulge in this peculiarity to their heart's content; even to the extent of martyrdom, which they sometimes seemed to suffer in very hot daj's by wearing their hats without even remo^'ing them to wipe off the perspiration from their sweltering brows. It was almost ludicrous to see two or three jurors in the box thus covered, and to see them take the affirmation which they did in place of the oath, still wearing the uncomfortable broad-brimmed hat. If they were a peculiar people, and indulged a feeling of pride without appreciating it by thus adhering to a mere form, the}" were still a conscientious people of the strictest integrity in all their transactions with their fellow-men. They, too, were abolitionists of the strictest kind, and jn'ided themselves upon the fact that the founders of their religious denomination more than two hundred years ago were the first among Christian peoples to bear their testimony against human slavery, and to this they had always adhered with the tenacity of a religious tenet. They greatly rejoiced to see others, even at this late day, rising up to join them in this great work. If they were an obstinate and a stiff-necked people, ready to sacrifice everything for their beliefs and principles, they were equally tenacious in maintaining and upholding the highest measure of personal integrit}^. Temperance, too, was made a part of their religion, which they carried further than the most pronounced prohibition- ist would be required to practice at the present day. It was a religious offense to knowingly sell even a bushel of corn or of rye to be distilled into whisk}^, to do which must be followed by repentance or expulsion, and that, too, when for the want of transportation there were scarcely any other markets for those cereals but the distilleries. But for their tenacity to non-essentials, such as in dress, in language, in 134 EARLY BENCH AND BAR OF ILLINOIS. forms, and in amusements, and the like, I believe they would be, to-day, the most numerous Christian denomination in the land. IBut for their tenacious adherence to such utterly unimportant and nonsensical actions, by which they repel from their communion their own rising generation, who refuse to submit to and be bound by their unyielding and unaccommodating notions, which they call principles, they Avould have continued to grow and prosper and gather into their fold from the outside world large reinforcements at- tracted to their fellowship by the excellence of what maybe strictly considered their religious and moral teachings. Fa- naticism may assume various guises, and be fanaticism still, and usually expresses the most sincere beliefs of the human heart. They refused to limit their discipline to matters of relig- ion and morals, but so insisted in enforcing a yoke upon the necks of all those who desired to walk with them in matters purely religious and moral, that an ever increas- ing number, of their younger members especially, walked out from among them, till now they are so diminished in number that a large percentage of the people know nothing of them. I am still a birth-right member of that denomi- nation of Christians, for all who are born within the fold are members in full fellowship, until " read out " for some breach of discipline unatoned for by expressions of penitence or regret, and since ni}^ marriage out of the church, for which offense, without acknowledgment of contrition, I should have been lopped off as a branch from the true vine, I was never Avithin the jurisdiction of a meeting authorized to call me to account, and as they could not act without jurisdiction of the person and giving me an opportunity to repent, which I am very sure I never should have done, I am still a member in full standing, and nominally, at least, as ffood a member as the best of them. My friends in the Ox-bow never raised any question or troubled themselves about this matter, but seemed ever pleased to extend to me their gracious regards, and the neat CIRCmT SCENES. 135 and plain dress of both men and women, with which I was so familiar in the days of my boyhood, reminded me so forcibly of that maternal love which was ever glowing in my memory, that they always looked beautiful to me, and they still awaken memories so fond that I trust they Avill ever continue. XIV. TEIAL OF PHILLIPS FOR MURDER. In the fall of 1842 one Phillips, a farmer, living on Indian Creek, at the north end of La Salle county, had a difficulty with his neighbor of the adjoining farm about cattle or fences or something of the kind, and in the course of the controversy Phillips shot and killed his neighbor. I do not remember at what term he was indicted for murder, but I am quite sure that the trial took place at the fall term of 1843. During the session of 1842-3 the Legislature passed an act increasing the punishment of manslaughter, and repeal- ing so much of the old law as defined the punishment for that crime. The previous punishment for that offense could not exceed three years in the penitentiary and a fine of one thousand dollars, and I had heard it said that at the same term of court one man had been sent to the penitentiary for one year for killing another man, while another culprit had been sent to the penitentiary for five years for stealing a horse. But, be this as it may, the Legislature did pass a law repealing that part of the statute which had fixed the maximum punishment of manslaughter at three years im- prisonment in the penitentiary, and inflicting another pun- ishment with a higher maximum. As both Phillips and the deceased were well-to-do farmers, and were well known through all that part of the country, the occurrence created much excitement, which was by no means confined to the immediate neighborhood. 2 36 EARLY BENCH AND BAR OF ILLINOIS. While Phillips Avas not -without his friends, they were, however, largely in the minorit3^ When the trial came off the large concourse of citizens who filled the town testified to the deep interest that was felt in the matter. I had changed circuits with Judge Young for a part of the spring term, and while he was sitting for me in La Salle county he had bailed out the prisoner, Avhich had the effect of increasing the clamor against Phillips. Fridley was prosecuting attorney at that time. Whether the friends of the deceased had employed counsel to assist him in the prosecution I do not remember, but my impres- sion is that he was alone in the prosecution. Purple and Dickey were employed for the defense. A jury was obtained without difficult}^, mostly from the southern part of the county. The homicide was clearly ])roved, so there was no serious question on that point, and the defense relied upon was that the killing was accidental. At least two witnesses saAV the transaction. The evidence showed Phillips' cattle were in the field of the deceased, who was pursuing them with his dog, and setting him onto the cattle with great vehemence. When the defendant saw this he seized his rifle and rushed out to the fence which divided the two fields belonging to the respective parties, and fired the fatal shot. The defense insisted that the shot was fired at the dog, and that the man was accidentally hit. There was considemble discrepancy as to the relative positions of the man and the dog, so there were plenty of grounds for one party to insist that the man might have been hit by a shot intended for the dog, while the other insisted that they were so far apart that the shot which killed the man must have been intended for him. Fridley tried the case upon the theory that it was mur- der, pure and simple, while Dickey and Purple bent all their efforts to show that at most it was but manslaughter, and AN'THONV THORNTON. Er-Juilye of the Sx/irfnii' Cuiii-I inion. One of the opin- ions which appears to h.ave been written by him in the reports, Judge Breese testified before the Legislature in a ])roceeding depending in that body, that he wrote the opin- ion for Judge Brown. In the conference room I never heard him attempt to argue any question, for he did not seem to be able to express his views in a sustained or logical form, and yet he vv^as a man of very considerable ability, and had very distinct views of his own on questions that came before him for decision. He had been listening to arguments before the court for more than twenty years; and I may say here that it is the best school that any man can attend to learn the law. The lecture of a learned professor to a class in a law school, however important to a student in the beginning, can bear no comparison to the arguments before an appellate court, where every argument is a lecture upon some ]:)articular question or questions, generally ])repare(l by an able man, who exhausts the subject to a greater or less extent; and if the arguments are one-sided arguments, and so might mis- lead the student, the misleading arguments are sure to be met by the counsel on the other side, so that the judge or the student hears the reasoning and authorities which may be produced on Ixjth sides, and he is enabled, if he is capable of doing so, to understand what the law is in the particular case. 1 74 EARLY BENCH AND BAR OF ILLINOIS. There were very able law^^ers who practiced before that court in its earliest days, as well as since, and no one conld have listened to their legal discussions for twenty years without hearing and learning a great deal of law if he was only capable of comprehending it. Xow, Judge Brown did not lack this capacity, but he did lack the capacity of clearly expressing, either in writing or orally, his thoughts in a clear and perspicuous manner. He could express him- self in conversation so as to be well understood, but never in the form of a sustained discussion. He expressed himself in epigrams, or short and pungent sentences which showed that he was a good thinker, and had clear and distinct views of his OAvn. He was a profound student of nature, and could judge with great accuracy, not only of individual character, but of what would influence the minds of men. He listened attentively to the discussions in the conference room, and would never express his opinion, especially in an important case, until he had heard all that could be said on either side by other members of the court, for he appre- ciated that he could not well maintain his views by argu- ment; but he Avould often throAV in pungent expressions, which of themselves would contain a pretty extended argu- ment. At the session of the General Assembly in 1844-5, when Shields and myself were holding commissions by ap- pointment, and so our terms would expire with the adjourn- ment of the Legislature, a fearful spasm of economy seemed to sweep over it, and a bill was introduced fixing the salary of the supreme judges at one thousand dollars per annum. x\s this could only take effect upon Shields and myself, should we be elected, a committee was appointed to wait upon the other judges, whose salaries were protected by the Constitution, and get their written consent to this reduction of their salaries. Of course those judges, who felt as inde- ])endent of the Legislature as they were of the judges, politely declined to agree to any such proposition. These visits were not made to the judges in the conference room, but they were made to them severally or individually. THE CONFERENCE ROOM. 175 When Manning, an able lawyer, and a member from Peoria, approached Brown with a proposition, he replied : " Per- jur}', perjury, sir; you ask me to commit perjury. The Constitution says that our salaries shall not be reduced during- our continuance in office, and now you ask us to participate in a reduction, which is a clear violation of the Constitution which I have sworn to support. I never did and I never will knowingly commit perjury.'' But they had Shields and myself tight; for all that we did not decline the election on that account, but were elected and held our offices two years at the reduced salary. Let it be remembered that we had to go around our circuits twice each year and attend the Supreme Court in the Avinter, pay all our own expenses, and even our own postage on official business, without any perquisites, unless we might occasionally make a dollar by performing a marriage cer- emony, or a quarter for taking an acknowledgment of a deed or swearing somebody to an affidavit, which, altogether, never amounted to ten dollars a year. At the next session of the General Assembly a law was passed raising our salaries to the same amount received by the other judges, but they never made up the thousand dol- lars which we received less than the others during the two years. I recollect that once, in the conference room, he and I differed from all the other judges upon a case which went up from his circuit, involving questions growing out of what was called squatter, or claim titles to ])ublic lands, a tenure by which a very large portion of the land in our cir- cuits was held, and was scarcely known in other parts of the State. Our predecessors on the circuit bench had, with the sanction of the bar, established a sort of common law for the government of this sort of titles, which was recog- nized and acted upon by all, without a thought that these rules could ever be disturbed or questioned; but some new lawyer had lately come in, who could not find anything in Blackstone or in our slatujte to support these rules, and took 176 EATiLY BENCH AND BAR OF ILLINOIS. his case to the Supreme Court, and we were astonished to see that the other members of the court were inclined to overturn our local law, as it had been administered with- out question for so many years, which would disturb a great many titles in our circuits that were regarded as well settled, and were bought and sold every day without ques- tion. Without coming to a final decision, however, I was permitted to take the record and write out our views and present them at a subsequent conference. Brown's room Avas opposite to mine in the hall at the hotel, and at a con- ference between us we ai^Teed that the whole case was re- solved into two principal questions, and that if thcv would agree with us on the first question, we thought that we could see that they Avould bo compelled [to concur with us on the second. So I took the record to my room and wrote out our views upon the first question involved, which I took across to his room and read to him, and he expressed him- self much pleased with the manner in which I treated it. I then gathered up the papers and said I would go and write out the second part. " No, no," said he, "• don't write an- other word now. Let them take their medicine in broken doses. If they will take the first and keep it down they Avill take the balance without making a wry face." I readily perceived the force of his suggestion, at least so far as pre- senting it in broken doses was concerned, although I think I wrote the balance of the opinion the same night, but did not attach them together. At the next conference I read the first part. When I had done the chief justice inquired where was the balance of the opinion. I told him that unless what I had written was approved, it was no use to write any more, so I had presented this for their consideration, and if it was adopted I would then see what 1 could do with the balance of the case. It was considered and approved unanimously, and at a subsequent conference I read the balance of the opinion, and the final result was that tliey took the last part of the dose more complacently than the first, so that v^c finally THE CONFERENCE ROOM. 177 obtained the sanction of the Supreme Court for our local common law governing claim titles. I often heard a story, not long after I went upon the bench, in which it was stated that Chief Justice Wilson asked his associates severally for their opinions on the case which was under consideration, and that when he came to Brown he was answered that he was not quite prepared to give his opinion yet, he wanted to consider the case further; and that Wilson replied, "Oh, nonsense. Brown, you may just as well guess- on the case now as any time." But that never occurred while I was in the conference room, and I am sure I never heard it related by any one of the judges as having occurred; and I have no doubt the story was made up by some one who supposed it to be characteristic. I never saw Judge Brown upon the circuit bench, but always understood that he got along very pleasantly with the bar and administered justice as satisfactorily as any of the other judges holding Circuit Courts. He evidently ap- preciated that while he could plainly see how a question should be decided he might not readily be able to assign the best reason for that decision, and so he prudently declined to assign any reasons. Probably all of us would have got along better at times had we adopted the same wise course. Mr. B. C. Cook relates a story, that he tried a cause before Judge Brown at Dixon, in Lee county, and that after he had obtained a verdict to which he thought he was fairly entitled, a motion for a new trial was made, which he thought was so plainly unnecessary that he declined to argue. The judge, after looking solemn and wise for a few minutes, said, " Well, Mr. Cook, let us give him a new trial. Maybe he will be better satisfied next time." Perhaps I have said enough to give a fair idea of my opin- ion of the peculiarities and abilities of Judire Thomas C. Brown, and will conclude by saying that I thinlc he was a man of very considerable ability and a much better judge than he usually has the credit of beinff. I have been looking over some of the earlier volumes of 13 ] 78 EARLY BENCH AND BAR OF ILLINOIS. our reports, and am thereby reminded of events which occurred from forty-five to twenty-five years ago. Thi.s has afforded me great satisfaction. It called to mind inci- dents long since forgotten, which occurred in early life as connected with the duties and res])onsibilities which then devolved upon me, and of associations, both personal and official, many of which, but for such reminder, might never have again been thought of. I will repeat that my personal and official associations were of the most pleasing and har- monious character; still a sense of sadness creeps over me, when I remember what a large proportion of those with whom I then associated in official and professional life, have gone before me. I Avill particularize some of those events which are called to mind by those old reports. I have in a former number of this series referred to the case of BallancQ v. Underbill, 3 Scam. 453, as the first record which was assigned to me to prepare the opinion of the court; but I had before that, without the asking, in the case of Camden v. McCoy, 3 Scam. 447, delivered a dissenting opinion. Douglass had prepared an opinion in that case, to which all the jndges agreed except myself. ISTot supposing that it would be read the next morning from his place on the bench, and desiring to present my views with consider- able care, I had not prepared my dissenting opinion, as the opinions were always recorded as soon as possible after their delivery, and the record read by the clerlv from the record book the next morning. So soon as Douglass had closed read- ing the opinion of the court, I declared my dissent from it, and proceeded to state, orally, the reasons for my disagreement with the other members of tlie court. So soon as the court adjourned for noon I was surrounded by a considerable num- ber of the bar, who urged me in the strongest terms to write out my dissenting opinion and place it upon the records, for they thought that I was certainly right and would some time be sustained by the court and my opinion be made a rule of the commercial law of this State. I did write out ni}^ dissenting opinion that night, and handed it to the clerk THE CONFERENCE ROOM. 179 in the morning, who had left a blank in his record following the principal opinion, in which the dissenting opinion was recorded. I do not remember whether the same c^uestion again arose while I was on the bench, or if it has arisen since; I can not say what has been the course of decision upon it. 1 now see that in my dissenting opinion I held that if a note of hand is presented by the payee, without indorsement by him, with the name of another written on the back, without any evidence to show when that name was written, or for what purpose, that the presumption of law is that it was written there at the time of tlie execution of the note, and that his obligation was not that of an indorser, but that he became a guarantor, and was in fact a joint maker of the note, and might be sued as such jointly Avith the j)arty whose name was written on the face of the note; that the consideration for which the note was given was a sufficient consideration for the guarantee; that all the acts done at that time constituted but one transaction; that the obliga- tions were simultaneous, alike and joint, and that they might be enforced in one action against both, and that the creditor need not bring a multiplicity of actions to enforce his rights. Then, for the first time, was my voice heard from that bench. It was next heard when I read the opinion of the court in the case of Ballance v. Underhill, in which it was held that a defendant in a suit in chancery could not be decreed affirm- ative relief upon statements made in his answer, but that he must file a cross-bill to entitle him to such relief; and I had a pretty hard struggle to get that decision adopted. Indeed, I confess that I then thought that I was looked upon as too much of a boy to entitle my opinions of tlie law to be of much weight or influence. At the same term of the court in the case of Updike v. Armstrong, I wrote the opinion of the court reversing a judgment which I had rendered in the Circuit Court. As I was defeated in the election by the General Assembly, which took phice during my first term of the court, my commission would expire at the close of that session. I 180 EAKLY BENCH AND BAR OF ILLINOIS. supposed that I should then retire from the bench forever. Before the close of the term the case of Dovle v. Teas, 4th Scam. 202, had been argued and submitted and considered in conference at several sessions, in which I took a pretty active part, but no final agreement had been arrived at. I Avas requested by the chief justice, with the approval of all the other membars of the court, to take the record and write an opinion during the vacation, which, if agreed to, should be read by some member of the court at the next term. I confess that this request was gratifying to me, as it convinced me that my views were entitled, at least, to respectful consideration, and especially on questions of chancery law, which was further evidenced by the fact that most of the chancery records had been given to me after the case of Ballance v. TJnderhilL Of course I took the record under the peculiar circumstances with great satisfaction, and resolved to do my very best in preparing what I sup- posed to be my last judicial opinion, and I did expend a great deal of labor upon that opinion, and especially upon the question as to what notice shall affect a subsequent pur- chaser of real estate. By a careful investigation and com- parisons, I discovered what I had never noticed before, that Ijoth Kent and Story alike, had laid down radically different rules to govern this question of notice, under precisely the same circumstances, and after reviewing a large number of decisions, both in England and America, I found it impos- sible to deduce any satisfactory rule from them, and the rule which I did finally formulate maybe as difficult in its appli- cation to particular cases as those which had been laid down by others; however, I sought to so frame it that it might be applied to all cases^ though the facts proved might be ever so variant. THE CONFERENCE ROOM. 181 IV. SALARIES OF JUDGES HISTORY OF THE COURT FROil THE BEGIX- NIXG HARDSHIPS OF TRAVEL IIST ATTENDING COURT. The next case to which I am iKclined to refer is that of Sceley v. Peters, 5 Gihii. 130. The only question arising in that case was whether the common law of Eno-land, which required that the owner of domestic animals should restrain them from going on uninclosed premises of another, was in force in this State or not. The case was tried before me at the Peoria Circuit in 1S17. I had previously bestowed great labor and care in examining the question and thouglit I understood it thoroughly, and upon the trial I instructed the jury that the common law of England prevailed here, and that the owners of stock were liable for damao-es if permitted to stray on the uninclosed lands of another. After the case had been argued and submitted, and we retired to the conference room with the record, we all ex- pressed our opinions of the case. No assignment of the record was made to any one to write the opinion, nor was an}'^ vote taken as to what the decision should be, but I at least supposed that it would be considered at a future con- ference, when each member of the court would have an opportunity of assigning his reasons for the conclusion at which he arrived; and so the case was passed, and the con- ference proceeded to consider other cases. For several days this case was not again referred to. Finally an opinion was read reversing the judgment, Avhich was approved by a majority of the court, holding that the common law had been repealed by the first section of the law of 1819, and also that it was not applicable to our condition in life, as existing here, and that our people had always supposed that the law required every man to inclose his own premises to keep off the stock of others roaming at large. To say that I felt chagrined and mortified at being thus 182 EARLY BENCH AND BAR OF ILLINOIS. ignored by the otlier members of the court, expresses my feelings mildly. The caSe had been considered by them outside the conference, and it was manifest that they had studiously avoided any intercourse with me on the subject. I was a meml:)er of the court with as many rights and du- ties in connection with it as either of the other members, and to practically expel me from it bespoke some cogent reason, which they did not care to explain to me. To assume that I Avould unduly endeavor to secure a decision affirming my ruling on the circuit, as might naturally be im- plied from being thus excluded from the conference on the case, I felt sure v/as not justified by my past action as a member of the court. They certainly knew that I had never shown any sensitiveness at having my own decisions reversed, but had always shown an ardent desire to obtain correct decisions, whether they might affirm or reverse my circuit rulings. The case of Kimball v. Cook, 1 Giim. 423, had been heard before the nine judges, and while I had heard the argument I declined to vote upon it, because I was in great doubt whether my decision upon the circuit was right or not, and I saw it would require a most labori- ous examination of the statute to satisfy myself on that ])ointT; but when the vote was taken it was found that four members of the court voted for affirming and four for revers- ing. While that would affirm my judgment by an equal division of the court, I was by no means satisfied that the decision would be right, and so consented to take the record and write out an opinion which would decide the case, whichever way I might conclude the law to be. I did so, and after a very careful examination of the statute I was entirely satisfied that I had committed an error in the court below, and so wrote out an opinion reversing my own judgment, and when I read it in conference three of the four who had voted for affirmance appeared to be convinced with me that the judgment should be reversed, and so it was done, and my opinion was adopted as the opinion of THE CONFERENCE EOOM. 183 the court, excepting Judge Young, who wrote a dissenting opinion. Indeed, I thought ni}^ associates should have appreciated that my only desire was to have cases decided according to the law, without the least regard as to whether I, or some other judge, had made the decision in the lower court, which was under review at the time. I know I was just as anxious to reverse mj'" own decisions, when satisfied of the error, as if the}^ had been made by another judge. My only desire, and my araliition, was to lay down the law in the Supreme Court so that it would stand the test of time and scrutiny, rather than to perpetuate an error upon the records of the court from a false pride of opinion, which would afterward be found to be erroneous. I felt that lasting fame could only be secured by right decisions at the last, and that by affirming an error I could only weaken what reputation I might otherwise acquire. It is no reflection upon the capacity or integrity of a judge that his decisions at nisi i^rius should be reversed on appeal. There he must decide cases upon first impression, without that thorough examination which would enable him to form a matured judgment. Chancellor Wahvorth was taken from the cir- cuit bench and made chancellor of the State of Xew York, and yet, whoever will have the curiosity to examine, will see that proportionally more of his decisions as circuit judge were reversed, than were those of an}'- other judge who ever sat upon, a circuit bench of that State; still his great repu- tation as a jurist was never impaired by that circumstance. If I know myself, I know that I never had the least sensi- bility about having my judgments rendered on the circuit reversed in the Supreme Court, and I never admitted the idea that it was for that reason that I was excluded from the conference in the consideration of this case. Perhaps it was because the other judges did not care to bear the inflic- tion of hearing me argue the question in conference, which had been so well argued at the bar, and upon which their minds were conclusively made up; but for all that I did feel 1(S4 EARLY BENCH AND BAR OF ILLINOIS. it keenly, and at once resolved to write a dissenting opinion, in which I thought I could demonstrate that the decision had not been the law before, although it must become the law afterward, at least for a time, and I did my best to do so. I certainly shovred that the first section of the act of lbl9, which was strongly relied upon, had been repealed and never afterward re-enacted; that many decisions of as respectable courts as any in the Union, and exactly in point, sustained a ruling of the court beloAV, and that whether it was contrary to the genius of our institutions, and of the habits and notions of our people, were questions for the Legislature, and not for the court to determine. I under- stand that the Legislature has since that time enacted several laws modif3^ing or changing the rule laid down by the court in that case, but I have not taken the trouble to examine them. In looking over the report of that case after the lapse of so many j^ears, I see that my dissenting opinion was unpar- donably long, and that some of its expressions were more pungent than I wish they had been, but I am still satisfied that I was right in my conclusions as to what the law was. It is evident that when I wrote that opinion, I could not but feel the sting which had been provoked by what seemed to me to be a discourtesy; in this I am now satisfied that I was wrong, for I am entirely convinced that no discourtesy was intended. I am happy now to remember that the event never produced a shadow of coolness or ill-feeling between us; the same harmony and personal friendship always after- ward existed as it had done before. V. ANECDOTES OF LINCOLN AND OTHERS — STOUIES OF CELEBEATED TRIALS. When Judge Breese took his seat upon the bench of the Supreme Court for the second time, the court consisted of Breese, Skinner and myself. In the course of conversation OMAS C. SKINNER. THE CONFERENCE ROO:.I. 1S5 Ave discovered that we all three came from Oneida county, X. Y., and this remarkable incident soon became known to the bar, and was tlie subject of comment among them. The conference room at Springfield adjoined that of the library, where the lawyers usually assembled in the evenings, exam- ining their cases and making up their In-iefs, while we were in conference in the adjoining room. Generally Mr. Lincoln was present in the library with the other members of the bar at work upon his cases. AYith rare exceptions not a Avord could be heard from the lil^rary room till about nine o'clock in the evening, when a boisterous laughter would frequently break out there, which put an end to their Avork for tliat eA'ening, and had a strong tendency to suspend work in the conference room. We kncAv at once that Mr. Lincoln Avas telling some neAA' story, for which he Avas so celebrated, and the temptation, to me at least, was A^ery strong to go out and hear it. This occurred very early in the first term, Avhich v.'e held in Springfield, after Breese had joined us at Mount Yernon. When I passed into the library room Mr. Lincoln, AA'ho was seated on one of the tables, his feet hang- ing doAvn nearly to the floor, said : '*' Judge Caton, I want to know if it is true, as has been stated, that all three of you judges came from Oneida county, Xew York?" I told him I belie A'ed it AA^as so, AA'hatever that might indicate. " 0?ili/ t/ris,''^ he said, " I could never understand before ichy this vx(s a One-i-dea courty Of course this produced a laugh so loud and universal that the other judges had to come out and see what was the matter, and Avhen it AA'^as explained they joined in the merriment as cordially as the rest of us. I must say here that I was usuall}' glad to learn in that way that Lincoln was in the librar}" room, thus diverting the attention of the other members of the bar from the drudgery of the work in which they had been engaged by telling some amusing story; both before and after that time, and in the conference room, we were not loath to have our attention diverted by the same means, at least for a time. 1S6 EARLY BENCH AND BAR OF ILLINOIS. Beyond comparison, the most dilTiciilt task I ever assumed at the request of my associates Avas to write an opinion reversing the judgment in the case of The People v. Thur- ber, 13 111. 554, but it just had to be done. It would have been a very easy task to write an opinion affirming the judgment, but that would have entailed a public calamity, which could not be thought of for a moment. Tliat was one of those cases where consequences had to be taken into consideration and given an absolutely controlling influence, and my duty was to hunt up shreds and scraps of statutes to sustain the decision, and relying as little as possible upon the consequences of an affirmance, which, after all, consti- tuted really the controlling consideration. To have affirmed that judgment would have been to sus- pend the operations of all our election laws and held them suspended until a statute could have been passed to cure an omission in an existing statute. In obedience to the Constitution of 1S48 the first General Assembly which assembled under that constitution, passed a law abolishing the Court of County Commissioners and the office of clerk of that court, and creating a County Court with a clerk, and conferring upon it judicial powers which had never been exercised by the County Commission- ers' Court, as well as the powers which had previously existed in the County Commissioners' Court, and of course, it followed that the clerk of the new court would exercise the powers devolving upon him in relation to the jurisdic- tion conferred upon the court ; but the previous laws had required the clerk of the County Commissioners' Court to perform many ex officio duties in the execution of many other general laws which had no connection whatever with the jurisdiction of that court ; and without the performance of these duties by some one authorized by law to perform them, their operation must be absolutely suspended, and yet the Legislature had omitted to pass any statute devolving these duties upon the clerk of the new County Court, or u]ion any other person or officer, and my task was to find THE CONFERENCE ROOM. 187 some authority for holding that these ex ojjicio duties liad been kiwfully exercised by the clerk of the new County Court. I repeat that this had to be done or else the wlieels of government, to a vital extent at least, must be sus- pended. I ransacked the statutes thorouo^hlv, and found in dif- ferent acts many provisions and expressions which showed clearly that the Legislature supposed and believed that ex- isting laws authorized the clerk of the new court to perform all of these ex officio duties which had been imposed upon the clerk of tlie old court, but that was all. From these expressions I inferred that it was the will of the Legislature that these duties should be performed by the clerk of the new court; that although that will was not expressed in any separate and affirmative statute, it was clearly manifest from the language which the Legislature had used in several different acts, and that the will of the Legislature clearly expressed in several acts, when taken together, con- stituted the law of the case as much as if that will had been expressed in one distinct statute. Xow, this was the best I could do in support of a decision which had to be made, and as my associates could suggest nothing better it was made to pass, and the government went on quieth^ as before. Strange to say, nine years later we found ourselves con- fronted with a similar difficulty in the case of AVood v. Blanchard, 19 111. 38, and it is a little singular that two such hard questions as these should be presented to us for decision, v.diile, I venture to say, nothing analogous to them had ever been presented to any other court for adjudication. In this case it appeared that the old constitution created the office of coroner, the mode of whose election and duties were subsequently prescribed by acts of the Legislature. By the adoption of the Constitution of IS-IS, the old con- stitution was superseded, and, in fact, repealed, and so was the office of coroner abolished, and not re-created in the new constitution, nor had any subsequent act of the 188 EAELY BENCH AND BAR OF ILLINOIS. Legislature created that office; and yet, for nine years, peo- ple had been electing coronei's who had been discharging the duties of that office; and the only question presented was whether there was such an office, and could be such an officer, in this State. To have decided otherwise would have created incalculable mischief. Many titles depended upon the validity of their actions, especially when acting as sheriffs, and the necessity for affirming the decision in the case w^as scarcely less imperative than was that of reversing the decision in the other; certainly no affirmative law had been passed for the purpose of creating such an office, but it was equally certain that several laws had been passed, showing that the law-making power assumed that there was such an office and had legislated upon that assumption. Indeed, the convention which had abolished the office had prescribed in its schedule certain duties, which should be performed by the coroner after its adoption. By a law duly enacted after the adoption of the new constitution a provision was made for the election of a coroner whenever a vacancy should occur. iS^ow, Avhile it Avas admitted that no law had been passed expressly creating the office of coroner; this law had been passed providing for his election and prescribing his duties, in some cases at least. This, we held, clearly showed that it was the intention of the laAv- making power that there should be such an officer as a coroner, and consequently it must have been equall}^ the in- tention of the laAv-giver that there should be such an office, which might be filled and held by such an officer. The rule established by these anomalous cases ma}^ be thus formulated : the Avill of the law-maker is tlie law, Avhen expressed in a constitutional Avay, and we may look through all its statutes to find a legitimate expression of that will, and Avhen found it is the duty of the courts to enforce it. I say this is the rule fairl}^ deducible from the decisions of these tAvo cases, and I still think it is in perfect harmony Avith the long and Avell settled rules for the construction of statutes, and that it fairly justified those decisions, though I THE CONFERENCE ROOM. 189 confess that in writing that opinion I felt as if acting under a sort of constraint imposed by an absolute necessity, Avhich I hav^e never felt when deciding any other case. I do not think it probable that any other court Avill have occasion to use them as precedents for the want of cases parallel to these. The dissentient might formulate another rule, perhaps scarcely less consistent with the general rules of the law for the construction of statutes, which may be stated thus : if the law-maker actually believes or supposes the law to be so and so, and expresses that belief in a constitutional way, that does not make it the law, for he does not thereby affirma- tively declare that it shall be the law. Or he might state it thus : if the law-maker misapprehends the law, no matter in what form that misa]3preheusion may be expressed, that does not change the law. In this respect the misappreliension of the legislative department as to what the law is, has a different effect from the mistakes of the judicial department; for if the Supreme Court mistakes the law, its decision made under such mis- apprehension actually changes the law, at least for the time being. The case of Baxter v. The People, 3 Gil. 368, presented some very important questions arising under our Criminal Code, in which the duty was assigned to me to write the opinion of the court, the first of which was, whether a de- cision of the Circuit Court overruling a motion for a contin- uance could be assigned for error, and I was instructed to hold that a decision of such a motion in a criminal case rests in the sound discretion of the court, and could not be as- signed for error; that the statute of the 21st of July, 1837, allowing error to be assigned on decisions denying motions for a continuance, only ap])lied to civil cases. In Yickers v. Hill, 1 Scam. 308, the court had decided that the Practice Act of 1827, Avhich confessedly only applied to civil cases, provided that decisions of motions for continuances could not be assigned for error, and we held that the amendment 190 EARLY BENCH AND BAR OF ILLINOIS. to that act passed in 1837 was only intended to apply to those cases provided for in the act to which it was an amend- ment. I see that by Sec. 63 of the Practice Act in the Statutes of 187-1 overruling motions for continuance in crim- inal cases may be assigned for error, but I have not traced the statutes back to see when this innovation was first intro- duced by the Legislature. For the first time in this case we were called upon to give a construction to the statute which declares that accessories to crimes " shall be deemed and considered as principals and punished accordingly." The indictment against Baxter was for the murder of Col. Davenport, as principal. The evidence showed that he was accessory before the fact, and the question was whether he should have been indicted as accessory, and concluded with the avowment that he thereby became principal, or whether the indictment against him as principal was sustained by the proof that he was accessory. After much consideration a majority of the court determined that he was properly in- dicted and convicted as principal upon proof that he was accessory before the fact, and I understand that that rule has been folio Aved ever since in this State without question, and that the anarchists were lately convicted and executed by the application of this rule, without even asking the court to consider it; but it was not originally adopted with- out doubts and misgivings; and Mr. Justice Koerner, after all, dissented, and maintained his dissent in a very strong opinion, holding that the indictment should have stated the facts of the case as they really existed, so that the pris- oner would have been fully advised of what he was to meet and controvert on the trial. Another very important question was decided in this case. The trial was commenced on Friday and the case submitted to the jury on Saturday, who brought in a verdict on Sun- day, which was received and recorded and sentence of death was passed on that day. This was assigned for error upon the ground that Sunday is dies 7ion juridicus, and that the PINKNEY H. WALKER. THE CONFERENCE ROOM. 191 court had no jurisdiction to do a judicial act on that day. This position was sustained so far as the sentence was con- cerned, and so the judgment was reversed, but we also held that the receiving of the verdict was not a judicial act, and hence it was properly received on that day. Then the question arose whether the reversal of the judg- ment carried with it a reversal of all the anterior ])roceed- ings. Undoubtedl}^ the weight of authority in the English courts supported that proposition, and that the prisoner should have been discharged forever for the crime of which he had been guilty; but we thought we found an abundance of authority for holding that the reversal of the judgment only reversed that which was erroneous, or, in fact, void, for we held that the sentence of death which was pronounced on Sunday was absolutel}^ void for the want of jurisdiction to do any judicial act on that day, and so we remanded the case to the Circuit Court with instructions at its next terni to pass the sentence of the law upon the verdict which had already been properh^^ received and recorded, which was held to be a ministerial act only. VI. APPOINTMENT OF PINCKNEY H. WALKEK AS JUDGE SKETCH OF HIS LIFE, During the December term of the court, 1856, Judge Skin- ner asked me if I was well acquainted with G-ov. Bissell. I answered him that I was pretty well acquainted with the governor. He then told me that he was about to resign his seat upon the bench, but would only do so upon the con- dition that Pinckney H. Walker would be appointed to suc- ceed him, and that as the governor was a republican and Judge Walker a democrat, he might not be inclined to make such an appointment, and requested me to see the governor and ascertain if he would appoint Walker in case of such a vacancy. I accordingly called upon the governor and frankl}^ stated Judge Skinner's proposition to him, and also 192 EARLY BENCH AND BAR OF ILLINOIS. told him that while I did not know Judge Walker person- ally, I was entirely satisfied that he was especially qualified for a place on the supreme bench, and that he would dis- charge his duties there honorably to the governor who should appoint him, and be useful to the public service. He replied that he would take the matter into considera- tion, and would consult his confidential friends on the sub- ject, especially those who knew Judge "Walker personally, and that he would let me know later. Perhaps a week after this interview I received a note from the governor stating that he was very favorably im- pressed with Judge Walker from what he had heard con- cerning him, but that he would prefer to have a personal interview with the judge before coming to a final decision on the subject. I assured him that I would arrange for such an interview as soon as practicable, and immediately telegraphed Judge AValker to come to Springfield at once, but did not explain the reason for the request. Within a day or two afterward Judge Walker put in an appearance, when I was introduced to him for the first time, and the reason of my message was explained to him; he expressed a willingness to accept the office should it be offered him, although, at the June election following, he would have to submit his claims to a vote of the people in a division which was largely republican politically. At that time politics cut very little figure in judicial elec- tions in any part of the State. But a year or two before I had been elected by a two-thirds vote of the people while two-thirds of the voters of my district were opposed to the political party with which I affiliated; but in fact, this affiliation was more nominal than otherwise. During all the time I was on the bench, I never made a political cpeech or attended a political meeting, or in any way discussed political questions in public, or even in private to an}^ con- siderable extent, and, indeed, I rarely voted except on special occasions. I never would vote for any candidate simply because he THE CONFERENCE ROOM. 193 "was the nominee of my part}'", or unless I believed him to be as meritorious in ever}^ respect as his opponent of the op- posite party. I always believed, and still believe, that politics should find no place on the judicial bench, and that, I ahvays feared, would be the great danger of making the judiciary elective; and I still fear that danger may come of it, but I have been happy to observe that the people gen- erally seem to appreciate that danger, if the professional politicians do not. I am pleased to say now, that Judge Walker's eminent qualifications for the bench were duly appreciated by the people of his division, and that he was successively elected ever after, so long as he lived, and that he died, still wearing the ermine untarnished. During all the fifteen years that I sat upon the bench of three judges, all belonged to the same political party, and I do not believe that any man living ever even suspected that party politics had the least influence upon our judicial de- cisions. During that time five or six cases came before us, of which suspicious persons might think that they had a polit- ical bearing, but it so happened that in all of these cases we decided against what some might suppose would be favorable to our political party. Pardon this digression. That evening I went with Judge Walker to visit the governor, and our visit was certainly a very pleasant one. Gov. Bissell was that sort of a man with whom any gentle- man could pass an hour most delightfully. He was a gentleman himself in the highest sense of the term. He was a man of very marked ability. He was an excellent lawyer of the most spotless integrity. He had Avon a high reputation as a soldier in the Mexican war, and was as sensitive for his honor as for the apple of his eye. The next day the Secretary of State intimated to me that Judge Walker's commission was made out and would be de- livered so soon as Judge Skinner's resignation should be received. I then took Judge Skinner's resignation into the 194 EARLY BENCH AND BAR OF ILLINOIS. secretary's office and delivered it to the Secretary of State, and received Judge Walker's commission. Later on, in 1864, wiien I felt that an imperative domestic duty compelled me to resign the high place which I then occupied on the Supreme Be!l%h, I called upon Governor Yates, and informed him that I had some thoughts of re- signing, and asked him if he would allow me to suggest for his consideration the name of my successor; he said he would be most happy if I would do so, and I suggested the name of Judge Beck with; after a few ^ays' consid- eration he informed me that he had considered my sug- gestion, and conferred with his confidential friends on the subject, and that he had made up his mind that should I determine to resign, he would appoint Judge Beck with to fill tlie vacancy; and so it was done. In the case of The People ex rel. v. Governor Bissell, 21 111. 229, an application was made to the Supreme Court for a writ of mandamus to be directed to the governor, com- manding him to issue certain State bonds to the relator, which, as Avas claimed, an act of the Legislature required him to do; and thus was presented the question when, and how far, one of the three departments of the government possessed the power to control another, and the record was assigned to 'me to write the opinion of the court. In that opinion I endeavored to point out, as best I could, to what extent and in what way, under the constitution, one depart- ment could control or influence the action of another. While necessarily, in many cases, one department may con- trol or influence the action of another department, that is usually, if not universally, done indirectl}^; as where the courts may decide a law to be unconstitutional, which had been passed by the legislative department; while thei Legis- lature may restrict or extend the jurisdiction of the courts, or the governor may pardon a criminal who has been con- demned by the judiciary. Such powers are usually, if not always, of a restraining character rather than compulsory. Without this we expressly disclaimed an}" authority on the CORYDON I5ECKVV1TH. THE CONFERENCE ROOM. 195 part of the judiciary to control or direct tlie governor as to how he should discharge his duties as prescribed by the constitution, or the law, or whether he should discharge them at all; though he may neglect or refuse to perform an act required of him to be performed, he is as much beyond the reach of the courts to compel its performance as is the Legislature. We had no more power to compel him to call an election which the law required him to do, than we had to compel the Legislature to enact a law which the constitution re- quired it to enact. The judiciary may undoubtedly exercise a restraining power indirectly over the acts of the governor, should he do an act not authorized by the constitution or the laws, by declaring such act void, and so nullify it and thus destroy its effect , as we would an act of the Legisla- ture, which we might declare unconstitutional, but we could not act directly upon him by forbidding him to perform the act. We recognized the right of the governor to call upon the judiciary for its judgment of the law in relation to the per- formance of duties imposed upon him, by submitting an agreed case, for instance, presenting the question, in which case he submits himself to the jurisdiction of the court, when the court will hear arguments and decide it as in other cases; but even in that case, should he refuse to conform his action to the decision of the court, I do not conceive that it woukl have the power to compel him to submit as it could ordinary suitors. I know of no case in which that question has been presented. It may be said that his having once submitted to the jurisdiction of the court — that the court having acquired jurisdiction of the case and of the person in a mode recognized by the law, it may exercise that juris- diction to the end, according to the general principles of tlie law governing all other cases; but this, I apprehend, Avould be an exception; for even that rule must have its exceptions; for instance, the legislative power may pass a law depriving 196 EAELY BENCH AND BAE OF ILLINOIS. the court of jurisdiction in a case jyendcnte lite, after it has acquired complete jurisdiction of it. Thus we see that there are a great variety of ways in which one department of the government may exercise con- trol over another, but generally indirectly, as before stated. This precise question was attempted to be raised, and it was argued in the case of Webster v. French, 11 111. 254, but it was evaded rather than decided in that case. That bill was filed for a specific performance of a contract for the sale of the Quincy House, which belonged to the State. An act of the Legislature had directed the governor to adver- tise the Quincy House for sale and to receive sealed pro- posals for it up to the first day of July then next, and to accept the bid of the highest responsible bidder, and as governor to execute a deed to the purchaser. Bids were re- ceived and the governor had accepted the bid of Ash & Diller and executed a conve3^ance to them, thus vesting the legal title, and that bill was filed, claiming that the bid of Ash & Diller was an illegal bid and that the complainants' bid was the highest and best legal bid, and that the governor had decided that they were responsible bidders. The bill made the governor and Ash & Diller and several other bidders, parties defendant. It was demurred to and the demurrer was sustained in the court below, and upon this decision the case was brought to the Supreme Court. The governor raised no question in the pleadings as to the jurisdiction of the court, though the question was raised by defendants' counsel in the argument of the case. We held, that excepting as to the execution of the deed, which had already been accomplished, all of the duties re- quired of the governor were merely ministerial and not executive, and might have been authorized to be done by any other person; and that the only question in the case was that of property rights between the complainants and the governor's grantees, in whom the legal title was now vested; we proceeded to adjudicate the case as between those parties, and evaded the question as to what we could have THE CONFERENCE ROO.M. 197 done to enforce a decree requiring the governor to act in his executive capacit}', so that question remained undecided and unconsidered until the case of the People ex reL v. Gov. Bissell, before referred to. But there were several other very important questions presented in this Quincy House case for which we could find no precedents directly in point to aid us in our deliberation, especially as to the first; and that was, by what rules of law, biddings by sealed proposals should be governed; that was the more remarkable since vast interests have in later times been involved in that class of bidding by which public and private contracts are made for the execution of public and private works, and the ]3urchase and sale of properties, both public and private. I say that we thought it remarkable that no question should ever have been raised in the courts as to what rules shall govern this class of transactions, and what was necessary to constitute a legal bid by sealed proposals, while the books are full of rules governing sales b}^ open bidding at public auctions. In this case the complainants bid $21,100, Root & Co. $500 more than any bid made for the property, while Ash & Diller bid $G01 over and above the highest bid for the property. The governor tacked Eoot & Co.'s $500 bid upon the specific bid of the complainants, and then upon that he tacked the bid of Ash & Diller of $001, making a total of $22,201, and for that sum awarded the purchase to Ash& Diller, to whom he executed the deed, and I was instructed to write an opinion holding that the specific bid of the com- plainants was the highest legal bid made for the property, and that the other two bids were illegal and void. Xo cases were found bearing at all upon the question, except that of Williams v. StcAvart, 3d Merrivale, 471, when Lord Eldon in a mere dictum said, that bids something like these were accepted in the north of England, where they are called candlestick bidding, I suppose because the written proposals were placed under candlesticks standing on the 1 98 EARLY BENCH AND BAR OF ILLINOIS. table before the commissioners receiving them, until all were in. As this was the only case found which had the least re- semblance to the one before us, I was required to discuss it and decide it on general principles, which I did as well as I could. We held, that sales by sealed proposals were but another mode of sales by auction, and that the same mode of fair dealing and justice is required to govern their con- duct as is required in the conduct of auction sales where the bids are open and public; and to secure this, the rules for receiving the bids in the latter must be exactly reversed in the former. Where open bids are received, every bidder has a right to know what other bids are made against him, so that he may govern his bid, if he chooses, by the judg- ments of the other bidders; and for the seller to receive a secret bid, or one not known to the other bidders, is a fraud upon them, for which the law will afford an adequate remedy; whereas at auctions by sealed proposals the policy is that each bidder shall act upon his own judgment, or at least independently of the judgments of any other bidder, and if the seller should, before the bidding is closed, make known the bid of one bidder to another, that would be a fraud upon the bidder whose offer was disclosed. Upon these principles the bids of Eoot & Co., and of Ash & Diller, which were based upon the judgments of specific bidders, were a fraud in law upon the specific bidders and void; and that as the complainants were the highest specific, responsible bidders, they were entitled to the property at their bid, and that Ash & Diller, who had been invested with the legal title, might be compelled to convey it to them upon their performance of the conditions of their bid. I understand that since that time the practice has grown up and become quite general that notices for secret bids have reserved the right to accept or reject any bids. It seems to me that the reservation of this right in inviting- bids may present questions which the judiciary will be called upon to decide. How far this is consistent with that THE CONFERENCE ROOM. 199 rule of fairness and integrity which shoiihl govern all auc- tion sales, may open a field for discussion which will admit of a pretty broad range, and may at some time invite serious consideration, where statutes do not intervene to sanction it. It seems to me that it hardly comports with that fairness reciprocal rights and obligations would seem to require, if the parallel which is laid down in this case between open and secret auctions is to be maintained. If in open auctions the right were claimed to accept or reject all bids made, it would be an anomaly, at least; and how far it would be sanctioned by the courts, is still, I apprehend, undecided. It seems to me it would be but a mocker}'^ of fairness and equality of rights, and why is it less so in case of secret auctions ? In open auctions the seller has an undoubted right to fix an upset price, below which bids will not be received; but he can not reserve the right to reject any bids above that price, and the same right should undoubtedly be allowed the seller in secret auctions; but why he should be allowed to reserve other rights not allowed in cases of open auctions I do not clearly comprehend. In either case unlawful com- binations may be formed to defeat that fair competition be- tween the bidders which justice requires; but these combi- nations are unlawful and will be relieved against by the courts. One other important question was decided in this case, which has already been referred to in a former number of this series. In the cases of Doyle v. Teas, 4 Scam. 457, De Wolf V. Long, 6 Gilm. 679, and Wright v. McNeely, 11 111. 241, in all of which cases I wrote the opinions, it was stated that where a bill is filed for the specific performance of a contract, the purchase money must be tendered, and the tender kept good by bringing the money into court and depositing it with the clerk, and held subject to the order of the court. In neither of these cases was a decision of that point necessary in determining the case, although in each the question was presented and argued; but its decision not 1^00 EARLY BENCH AND BAR OF ILLINOIS. being absolutely necessary for the determination of the case, what was said upon the subject was not maturely considered. In this case, however, it was squarely presented and must be met; we were asked to reconsider the subject, and we did so, and all the cases at hand bearing upon it were care- fully examined. Many cases were found in which language was used as strong as I had used in the cases referred to, holding that a tender must be made and kept good by bring- ing the money into court, yet in not one of them was that rule enforced, and in some of them decrees were entered directly in violation of it; in not one of the cases exam- ined was a contrary rule laid down in words, and yet, in a great many, decrees were entered where tenders had not been brought into court, and in several of them where no tender at all had been made; in some of them further time had been given after the hearing for the pajnient of the purchase mone}''. The case of Washburn v. Dewey, lY Ver. 92, was the only case found where the question of bringing the money which had been tendered, into court, was squarely decided in terms, and there it was held that a sufficient excuse was shown for not having done so. Upon what we conceived to be abundant authority, I cheerfully took back what I had said in the previous cases, and held that in this case it was not necessary to have brought the tender into court. The rule undoubtedly is, that all of this question of ten- der, and of keeping the tender good by bringing the money into court, is a matter of discretion with the chancellor. Let it be remembered that matters of discretion are always subject to review in the court of chancer}^ The only other case to which I shall refer is that of Shackleford and wife v. Hall, 21 111. 212.* In this a ques- tion was presented which had never before been considered in this country, and very rarely in England. *A bad mistake was made by the reporter iii this case; the position occupied by the aeveral j^arties is inisi^laced. THE CONFERENCE ROOM. 201 " The facts of the case show that all of the devisees of the estate in remainder, now in controversy, were the heirs at law of the testator, and as such heirs at law had an expecta- tion of the estate. In the absence of the will each would liave been entitled to his or her respective portions of it ac- cording to our statute of descent." The testator having de- vised the estate in his will precisely as the statute would have cast it in the absence of a will, imposed the subsequent condition that if either of his children should marry before attaining the age of twenty-one years, he or she should for- feit the estate thus bequeathed. Mrs. Shackleford did not choose to wait until she was twenty-one years old, and so was married before that time. Her brother, Henry H. Hall, then filed a bill to declare the forfeiture, which, upon hearing in the Circuit Court, was dismissed, and thence was brought to the Supreme Court. Upon the arguments for the complainant, the plaintiff in error, the violation of the condition subsequent was relied upon, and really that was aljout all he had to say in the opening. For the defense it was claimed that the condition was in restraint of marriao-e, and therefore void; but to this a conclusive answer was given that a reasonable restraint was not only proper but commendable, and that a restraint to the age of twenty-one years, or even a greater age, was not unreasonable, and upon this the case was submitted. So soon as we reached the conference room with the record, Breese broke out and said : " That brother is a mean fellow; yes, he's a great rascal, and we must beat him if possible, l^ow, Caton, how can it be done ? " I replied that the law referred to on the argument was certainly all in his favor, and I didn't re- member any law to controvert that, and Judge Walker was equally at a loss to find any way to get around it. I then stated that during the argument there seemed to be, as if it were floating in the atmosphere, some intangible, undefined idea that I had seen something somewhere, some idea, derived from something I had read some time, probably when I was a student, when reading some text book, that :202 EARLY BENCH AND BAR OF ILLINOIS. iiiiolit have some bearing on the case, but what it was I could not say. It was but a vague, indefinite impression, and seemed rather like a fleeting dream than a tangible idea; that I felt confident that I had never seen a case from which that thought had arisen, and that I felt no assurance that there was any principle laid down in the books, in any way qualif3'ing the decisions which seemed to be so directly in point, holding that this condition subsequent was valid. Breese then picked up the record from my desk, placed it in my hands and said : " You take this record and hang on to the tail of that idea till you follow it up to its head, until you find some law to beat this unnatural rascal, Avho would cheat his sister out of her inheritance just be- cause she wanted to get married a few months before the time fixed b}^ the old man." 1 took the record home with me, and after I had finished writing opinions in all my other cases I took up this. I ex- amined careful!}^ all the Digests in the library, and went through the English reports. I sought thoroughly, without finding a single word bearing in any way upon the case, still believing that there was something somewhere that would throw some light upon it on one side or the other. I took down Jarman on Wills, and went home determined to read every text book in the library on that subject before I would give up the search, and commenced reading at the very beginning, and then proceeded very deliberately page by page until I had got, perhaps, two-thirds of the way through the book, when I read a short paragraph which did not at first attract my attention particularly, and I passed on; but before I had finished the next paragraph the previous one began to impress itself upon me, and I looked back and read it again, and the more I studied it the more I thought it contained something to the purpose. It referred to several old En- glish cases, the reference to which I took down, and made my way to the library as soon as possible, impatient to see what these references would develop. In less than an hour I found the law to be as well settled as anv other well rec- THE CONFERENCE ROOM. 203 ognized principle of law, that where a testator devises an estate to his heir accompanied with a condition of forfeit- ure, a breach of that condition shall not work the forfeit- ure, unless its existence is brought home to the knowledge of the heir, and this rule applies as well to conveyances by deed as by device. I still think it a little remarkable that these cases, although few and most of them very old, are not found referred to in any of the Digests which I have consulted, and that no such case appears ever to have arisen in any of the courts of the United States, or in later times in England, and it is probable that to-day this case stands alone in the American reports. When I read my opinion at the next conference Judge Breese especially manifested great satisfaction at the result of my investigations, and walked across the room and patted me on the back, saying, " Well done, my good boy," and seemed not less pleased at the strictures I had ex- pressed in the latter part of the opinion upon the conduct of the hard-hearted brother, as he termed him, and in this expression we all concurred. IX. REPORTERS OF THE SUPREME COURT. SALARIES LABORS PERSONAL MENTION. I should not close these sketches of the bench and bar of Illinois without referring to the reporters by whose labors the decisions of the Supreme Court of this State have been put in proper form and laid before the profession, not only in our own State, but throughout the Union. To their ability and their industry we are all deeply indebted for the fidelity with which they have performed their tasks, and they certainly deserve a recognition from those whose labors they have recorded as well as from those who have profited by their industry. When I first cast my lot with the profession in this State, Breese's Reports alone had been placed before the public. It was a small volume and contained the decisions from the organization of the Supreme Court in 1819, up to the close of the December term of that court in 1831. Necessarily the relations existing between the reporters and the bench were of the most intimate and confidential character. They occupied desks in the conference room and were present at the deliberations there conducted, and sometimes assisted the judges in reading arguments, abstracts or briefs. The propriety, and sometimes even the necessity, of this is manifest when we appreciate they were thus enabled to understand more full}^ the scope of the arguments adduced by the different judges in their delibera- tions upon each case, by which they were led to the decisions (204) JONATHAN YOUNG SCAMMON, REPORTERS OF THE SUPREME COURT. 205 aiinounced in the formal opinions which they had to report, and they were bound by the same obligations of secrecy which rested upon the judges. Sydney Breese was a young man then, but he Avas a good lawyer and had already attained a high position at the bar. His subsequent career as jurist, while he occupied a seat on the supreme bench of his adopted State for twenty-two years, having served six years of the meantime in the United States Senate, well maintained the reputation which he had so early acquired. This reputation grew with his A^ears of experience and industry, until he finally closed his career by death in 1878, while he was still a member of that court, of which he had been one of the brightest ornaments. His fame will be perpetuated so long as integrity, ability and industry shall be appreciated. After Breese's reports were closed, the decisions of our Supreme Court remained quietly in their archives until 1839. when Jonathan Young Scammon was appointed to that court, and he continued as official reporter until after I came upon the bench. The first volume of Scammon's Reports was published in 1843, and the third and fourth volumes brought the decisions up to the close of the De- cember term, 1843. Scammon was an able lawyer with a well disciplined mind, who clearly comprehended and plainly and succinctly stated the points decided in the case. The syllabi of his cases are models of perspicuity and brevity. Upon the resignation of Mr. Scammon, Chas. Gilman was appointed reporter to the court. He continued to hold that office until the time of his death, in July, 1849. He published five volumes of reports, entitled Gilman's Reports, the first four of which contained the decisions of the court of nine judges from Scammon's time up to the time when that court was legislated out of office by the Constitution of 1848. His fifth volume contains the decisions of the new court of three judges during the first year of their term of office, that is to say, from the December term, 1848, to the June term, 1849, both inclusive. Mr. Gilman was an excellent 206 EARLY BENCH AND BAR OF ILLINOIS. lawyer, a man of great industry, and conscientious in the discharge of the duties of his office. He, like his prede- cessors, did the work himself of preparing the opinions for the press, reading the proofs, and superintending the publi- cation of his work. This work upon the fifth volume was not completed at the time of his death. It contains the first year's work of the three judges, consisting of 608 pages, and contains the decisions of ninet3^-eight cases. Upon the death of Mr. Oilman, Ebenezer Peck was ap- pointed reporter, at the December term, 1849, and he held that office and discharged his duties for a period of fourteen 3^ears or till the January term in 18C3, when he resigned the office of reporter, to accept the office of judge of the Court of Claims, at Washington, to which he had been appointed by Mr. Lincoln. During these years Judge Peck issued eightr een volumes of the reports. He abandoned the practice, which had , hitherto been observed, of calling the reports after the names of the reporters, and so entitled his first volume, Illinois Eeports, Volume XI, ten volumes of the Supreme Court of Illinois having been previously issued; Judge Peck's last volume being SOth 111. These volumes testify to the capacity, industry and fidelity of the reporter. For several winters the reporter and myself occupied the same room and did our work at night side by side, and thus I was enabled to observe his mode of preparing the cases for the printer, the systematic order in which his Avork was done, and the industry and zeal which he devoted to the discharge of his official duties. All of this is manifest to any one who will carefully ex- amine these reports. After the resignation of Judge Peck, Norman L. Freeman was appointed reporter at the April term, 1863, and he has filled that office with great accei)tability up to the present time, and it may be earnestly hoped that he will be able to do so for many years to come. My first decisions are to be found in the third volume of Scammon, and my last in the 33d of the Illinois Eeports, so EBENK/KK I'KCK. NORMAN L. FKEKMAN. REPORTERS OF THE SUPREME COURT. 207 it will be seen that I helped to make up the decisions con- tained in thirt}^ volumes during the twenty-two years I was on the supreme bench, and it is with great satisfaction that I can say that all of the reporters, excepting Breese, have held office and discharged their duties during the time when I was on the bench. Mr. Freeman had practiced before our court for a num- ber of years before he was appointed its reporter, and we were all familiar Avith his eminent fitness as a lawyer for that place, but his other qualifications remained to be proved; and in these he has far surpassed the most san- guine expectations of the court, the profession, and his per- sonal friends. The experience which he has had has year by year shown an improvement in his work. He has not been content to keep up the standard of the work which existed at the time of his acceptance of office, but the im- provement which is manifested in almost every succeeding volume, shows that his ambition to excel has not dimin- ished; that his cajmcity to improve has grown with his opportunities; that his ability for labor, and his untiring zeal for improvement have never diminished from the very beginning. He has lately issued the one hundred and seventh volume of his own reports, and this implies an amount of labor which few men living could have performed and per- formed it well. We may know that from the amount of work accomplished, he must have employed many assist- ants, and from the character of the work done, that these assistants must have been able men; yet the whole bears the impress of his personal supervision, not alone of one department, but of all departments alike. Probably no reporter living has had the experience or performed the labor involved in the production of these hundred volumes, and I hesitate not to say that he stands at the very head of the legal reportorial profession. X. THE FRAILTY OF HUMAN MEMORY. PEKSONAL INCIDENT. I have often been impressed, not to say alarmed, with my observations demonstrating the frailty of human mem- ory. When we remember how much of our rights, our liberties and our lives depend upon human testimony, founded upon human memory, we may well feel alarmed when we see how frail our memories are. Laying aside the want of integrity and intentional falsehood, which, of them- selves, may well cause us to fear that the truth may be per- verted or denied, much more danger is to be apprehended from misrecollection or erroneous observation of occurring events, as they transpire. In the ascertainment of truth, much more is to be feared from the honest witness than from the corrupt perjurer. The falsehood of the latter is much more easily detected than the mistakes of the former. I might write a volume giving my observations on this sub- ject, and yet leave much untold; still I should repeat much that might be paralleled by the observations of others. Let me relate one instance of many, in my own experience, showing how unreliable is our recollection of past events. In the spring of 1835 three of us, then young men, planned a horseback excursion with three young ladies of Chicago. The late C. B. Dodson with Miss Sherman, now Mrs. Thomas Church ; Horace Chamberlin, who not long after lost his life in the Texas revolution, and Miss Eose liatheway, many years since deceased, who was a sister of (208) THE FRAILTY OF HUIMAN IHE^IORY. 209 the late Mrs. John Calhoun, of Chicago, and myself with Miss Agnes Spence, constituted the party. All were good riders, and all the horses selected were spirited and liv^ely. The trip laid out Avas to go down to the Calumet river, twelve miles distant, where we would take lunch, and then return to the city. The way led us along the road south four miles to the oak woods, thence throuofh timber all the way to Hale's tavern, situated on the banks of the Calumet, at the crossing of that stream. The road was considerably traveled, but through the timber was confined to a single wagon track, which wound along through the trees, some- times close to the shore of the lake, at others a short distance from it, according as the nature of the forest or the ground permitted. The first four miles were over the usual race course, where those who had fast horses were in the fre- quent habit of trying conclusions, and as soon as we strack this race course Miss Spence's horse showed that it was familiar ground to him, and he plunged ahead in a way that showed that he thought it his duty to win another race there. I soon caught his rein and brought him down, while the lady protested I should leave it all to her, that she could manage him, and would give him as long a run as he wanted; but to this I would not consent. Her widowed mother had allowed her to come with me very reluctantly, fearing that some accident might befall her, and it was only upon my repeated assurance that I would take the greatest possible care of her and would be absolutely responsible for her safety, that she had consented. This incident no doubt prompted me to greater caution than I might otherwise have exercised, so I took a check rein, attached to the bit of her horse, and carried it in my hand all the way. She chafed at this almost as much as the horse did, and she soon convinced me that she was a superior rider, and could man- age the horse with skill; but I knew if he should take it into his head to run away in the forest, which we were approach- ing, she would be powerless to manage him, so I persist- 14 210 EARLY BENCH AND BAR OF ILLINOIS. ently held the check rein. We had our little dashes all the same, and each exhilarating run served to elevate our spirits and made us forget our prudent resolutions. Finally Dodson proposed a race between our ladies, which Avas promptly acce])ted upon the condition that he should ride abreast with his lady, while the check-rein compelled me to do the same with mine. The roadway was narrow, but for half a mile ahead was straight and the timber open, and so we all dashed ahead at top speed, and the half mile of straight road was quickh^ covered. We then took a turn to the left, so that we could not see the road before us until we reached the turn. I was on the extreme right w4th Miss Spence on. my left, and next to her was Miss Sherman, with Dodson on the extreme left. This gave the ladies the mid- dle of the track, while we were on the outer sides. When we turned a bend in the road at full speed I was appalled. A larg'e oak tree stood on the left hand side near the road, from which a large limb projected out over the road. l!^ear the trunk it was high enough to allow a horseman to pass under it, but further on it bent down, so that I saw it must inevitably sweep my ladv from the saddle, ^vhile I, by chang- ing my position a little, could escape it. I pulled up both of our horses with such force as to throw theiri on their haunches, and told her to throw herself back intending to catch her on my left arm, but when I extended m}" arm for this purpose I found that it was restrained by my riding whip wdiich I held in my hand looped around the left arm. The consequence was tliat she fell backward to the ground right between the horses, at the ver}^ instant that 1 threw them upon their haunches, by pulling them up with all ray might. Ko one can imagine my feelings at that moment, when it seemed certain she must be trampled to death, and the picture came up before me of carrying her mangled corpse back to her widowed mother whom w^e had left so short a time before. As soon as possible I turned around to see the result, and was astonished to see that she had already regained her feet and was shaking the dust from her riding habit THE FRAILTY OF HUJtIAN MEMORY. 211 Of course I dismounted as soon as possible, and ran up to her, but was so paralyzed that I could hardly ask her where she was hurt, and led her to a log near by, where she sat down, saying she believed she was not hurt at all. By this time the rest of the party had come up and an examination was instituted. It was found that a curl or lock of hair near her forehead had been cut off by a cork of one of the liorse-shoes, which had stepped upon it, as it dropped upon a stone in the road. Still the severed hairs were hano-in^ in- tertwined with the others. The only scratch found was upon one of the ankles, where a cork had cut a hole in the stocking, but hardly discoloring the skin, and she insisted that the jar of the fall had not hurt her in the least. Chamberlin and Miss Hatheway had followed along so as to keep near us, and the}' described the scene as fairly appalling when they saw her fall head first between the horses at the very instant they were so violently drawn back. That was an escape which may not be often paralleled, and I am sure that I felt the shock longer than the lady did, for in a very short time she was as lively as ever. We soon mounted and pursued our journey to Hale's tav- ern, where we got our lunch and spent an hour or two with about as much joyous jollity as six young people knew how to raise. We then returned to the city without incident. There was no more running of horses that day. Many years later, when I was holding the Circuit Court at Geneva, Kane count}^ during a social chat with Mr. Dodson, I incidentally mentioned that it occurred when Ave were going out. " No," said he, " It took place when we were return- ing." I insisted that it occurred while we were going out, and referred to the fact that I had observed the lake on our left during the race, whereas if it had occurred on our return the lake would have been on our right. 'Now, there are few events in my past life which are as deeply im})ressed on ray memory as this, and I feel absolutely certain that I am right in my recollection. Indeed, I well remember that the whole matter was discussed when we stopped for lunch; but 212 EARLY BENCH AND BAR OF ILLINOIS. all the incidents to wliicli I could refer in confirmation (if my recollection, could not have the least influence in the belief of Mr. Dodson, and his conviction was so fixed that I have not the least doubt he would have sworn to it witli- out hesitation, if he knew that his own life depended on the truth of his statement; and my belief in the correctness of my recollection of the event, and that it occurred while we were going out, is equally strong, though my observa- tions have taught me to distrust my own memory as well as that of others, and so even in this I may have been wrong; but I must say that I do not believe it is so. We finally agreed to leave it to the ladies, two of whoin were still in Chicago, and he promised to call upon them the first time he went to the city, and get their recollection of the matter. AVhen I met him again some time later, I asked him if he had seen the ladies and what they said about it. " Yes," said he, " I have seen them, but I very soon saw that you had all conspired together to get up a lie and make a fool of me, but it won't work. I know that it occurred when we were returning." Still when I remember the many instances when I, my- self, as well as others, who have entertained as strong con- victions as I had, and still have, that the accident happened when we were going out, have been mistaken, and it has been conclusively proved that we were in error, I am con- strained to admit that Mr. Dodson may have been right in his recollection of the occurrence. I have in a paper, when giving an account of the trial of Rider for murder, shown how Mr. Havenhill, a witness for the State, had been mistaken in his previous testimony, when he had sworn that he had seen the prisoner through a cer- tain window in the house, and nothing short of his own observation of the fact that there was no window on that side of the house, could have convinced him of his error. That he was honest in his previous testimony, he has dem- onstrated from the fact that he hastened with all speed to THE FRAILTY OF HUSIAN MEMORY. 213 appear in court and acknowledge his error before the trial closed. It is but a part of human nature, that those who have had the least opportunity of observing the occurrence of such niisrecollections bv men of the highest integrity, are the most persistent in their conclusions that they are certainly right, and are loath to admit that others, with equal oppor- tunities, can not honestly disagree with them, I must again repeat that I am appalled, when I remem- ber that all our rights may depend u^^on human recollec- tion, which I know is so liable to error, and when I also a})preciate that it is impossible to devise other means for the ascertainment of truth. At best, we can ascertain all the surrounding circumstances, and adopt those conclusions which seem most probable from our observations of human ev^ents, and these observations are so variant in different men, and we may so often adopt different conclusions from the same circumstances, that here, too, may be great liabili- ties to error. A special training for the ascertainment of truth from given circumstances is of the greatest value, and our pro- fession affords the greatest facilities for this training; though we may soon be obliged to admit that the modern detective system affords a still better school, for the reason that the mind is not diverted from that single study b}" other im- portant matters. APPENDIX. RECOLLECTIONS OF THE EARLY BENCH AND BAR. ADDRESS DELIVERED BEFORE THE ILLINOIS STATE BAR ASSO- CIATIOlf, AT SPRINGFIELD, JANUARY 2i, 1893, BY JOHN DEAN CATON. iJ//'. Presiflent and Gentlemen of the Illinois State Bar Association: I appear before you as the representative of those who once filled the places which you now occupy. It is a source of extreme satisfaction to be assured, by your kind invita- tion, that amid the cares, the duties and the responsibilities of an arduous profession, I am not forgotten by those who have come up in later years to fill the places and bear the burdens, which were once filled and once borne by those who, with rare exceptions, have been called to appear be- fore a higher bar, where no errors are committed and no rehearings can be asked for. Sixty years is a long time for any individual to have acted upon the stage of life, and the changes which have taken place during that time, in almost every branch of human thought, are very great, and in them our profession has largely participated. Within the last fifty years the dif- ferent modes of doing business and the means of accom- plishing desired ends, have been more marked than in any previous thousand years, and so have been compelled alter- ations in the laws and in the modes of administering them. (215) 2] G EARLY BENCH AND BAR OF ILLINOIS. Many of these apparent changes were possible by the courts, under the flexibility of the common law, siinply because the principles of that law were founded upon the reason of things and the results of human experience. Old rules, which had been adopted by the courts to meet conditions which had previously existed, had to be changed, or even abrogated, as new emergencies demanded, as reason and experience dictated. As all the changes in the law, which altered conditions seem to require, could not be made by the courts under the plea of construction, legislative en- actments w^ere in some cases demanded, and the Legislatures of the various States early addressed themselves to the task of passing statutes which they supposed were required by the altered modes of conducting human affairs. Many of these were wise and necessary, Avhile in others it would have been better had the subjects of them been left to the courts, which were better qualified to deal with them. From long experience and observation, I am compelled to say that legislative bodies more frequently legislate too much than too little. This is by no means a new evil. Even the Komans, during the Imperial period, indulged their mania for legislation to such an extent, that finally it was admitted that no man knew what the law was. And hence, under the reign of Justinian the Great, Tri- bonian, with his associates, prepared the Justinian Code, which, by the Imperial fiat, was made the law of the land, and the precedents, or decisions of the courts were carefully digested in what is called the Pandects, to aid in the inter- pretation of the Code, and from these grew up the civil law of the continent of Europe, to which even the common law is indebted for those great principles of right and WTong which the consciousness of wise and enlightened men rec- ognizes as just. And this, in its broadest sense, should be the basis of all law for the protection of individual rights and the rights of organized communities. The courts, compelled by emergencies, have, under the plea of construction, introduced apparent changes of the laAV JUDGE CATON'S ADDRESS. 2 1 7 to meet the demands in the chano-es of the mvodcs of doino- business, and in general, I may say, tliese changes have been quite as salutary as those made by the Legislatures. These rules of law have been made by able men, deeply learned in the science of government, with no special inter- est to subserve after receiving the advice of the gentlemen of the bar, who present to their considerations the fruits of deep study and the observations of experience. They act under a sense of responsibility to the whole com- munity and to civilization, knowing that their decisions will be scrutinized and criticised by the ablest men who shall come after them, and who must pass a final judgment upon what they do. Many more safeguards are thrown around the judicial tribunals, to secure wise and impartial action, than can surround Legislatures. The former have no constituency whose special interest they feel called upon to subserve, while the latter have varied constituencies, who may have conflicting interests to protect or promote, for which representatives may feel called upon to exert themselves. But legislative bodies can not be dis- pensed with in free governments. They are the very bul- wark of liberty, and whatever conflicting interests they may represent, as affecting their immediate constituents, when- ever great interests of State become involved, thev rise above the petty considerations of local interest, and answer to the demands of patriotism which will uphold and insure the paramount welfare of the State. Precedents, or previous decisions, involving the same principles, have, among the ancients as well as moderns, constituted the great body of the laws in all civilized coun- tries, and so they will continue to do, so long as the advance- ment of civiliiation shall continue. "When the exigencies of society shall require important changes in principles, they must be brought about by legislation; but the infirmities of human language, in which these changes must be expressed, are such that the courts of law, whose dut}^ it is to enforce them, must give them construction, and so declare their 218 EARLY BENCH AND BAR OF ILLINOIS. meaning, and give them practical application to the affairs of men. Wise legislation is of little value without wise con- struction and administration, and in this, an able bar is of not less importance than an able bench. The members of the bar are the legitimate advisers of the courts, and I can say from personal experience that such advice is anxiously listened to and most attentively considered. It is a staff upon which the courts lean, while traveling the path which they are pursuing when seeking the ends of justice and equity. Every member of the bar should appreciate, that while his duty requires that he should defend and protect the interest of his client, he also owes a duty to the courts, to aid them to arrive at proper results. This does not imply that the lawyers engaged on opposite sides of a case should always maintain the same positions, or defend the same principles, for that would be misleading to the bench. To arrive at sound conclusions, it is important that controverted questions should be presented in various aspects, for that is indispensable to enable a court properly to balance the reasons which may be urged on eitlier side, and which are necessary to arrive at correct decisions. Seventy-five years have elapsed since the organization of our State government. But fifteen of these years had passed when I came to the State and identified my interests with its people. A great many of those who had lived here during this time, and in the territory previously, and had helped to make the history of this State thus far, were upon the active stage of life, still comparatively young, and in the full vigor of manhood. If they did not write history as they made it, they could tell it most charmingly and impress- ively. Many of these have helped form the constitution of the State, and as the population was small, nearly all the prom- inent men knew each other, and knew what each had done that was worthy to be remembered. As is usual and might be expected, members of our own profession were among the most prominent and most widely JUDGE CATON'S ADDRESS. 219 known throughout the State, and among these I formed my first acquaintances and my first friendships. I was the junior of them all, and so was largely dependent upon their kindness and friendship to help me in the difficulties which must always beset a 3'oung lawyer commencing the practice of his profession, where the habits of the people and the mode of proceeding differ widely from those in tlie State whence he came; and I now wish to bear my testimony to the large-hearted generosity and kindness of those who then constituted the bar of the State. Instead of throwing obstacles in the way of the new comer, they extended to him a fraternal hand, and took a genuine pleasure in help- ing him along over the rough places. At that time, what maybe called the circuit practice nec- essarily prevailed, and in each circuit in the State there was a class of lawyers who attended most of the courts in their own circuits, and very frequently attended the courts in other circuits, mostly to try important causes, where their special reputations had caused them to be retained. This circuit practice was a special school, unequaled in its way, and in it these circuit lawyers acquired qualifications which could be learned in no other school. They had but few books to study, but these the}' studied to a purpose. Blackstone and Coke upon Littleton, were their favorite books, and from them they learned the funda- mental principles of the law, and the reasons why the law was so; and I may be permitted to say here, that one may learn to state the rules of law as they are laid down in the books till he can re])eat them like the alphabet, yet he is not a lawyer unless he fully comprehends why they are the law; what are the reasons which have made them the law. This and this alone will enable him to apply the law in every emergency, and to new states of facts as they must constantly arise. As in traveling the circuit few books could be carried, and but rarely were books to be found at the county seats, excepting the statutes, this sort of legal (j^ualification was indispensable for both judges and lawyers, 220 EAELY BENCH AND BAR OF ILLINOIS. and the character of their work was such as to train them to think quickly and accurately, and to change the thoughts rapidly from one subject to another. In passing from one county seat to another, the judges and law3'ers always rode on horseback, with saddlebags, very frequently traversing uninhabited prairies of from ten to twenty miles or more across. Indeed, at that early time all the settlers lived in cabins along the skirts of the timber, with inclosures in the adjoining prairies in which were cul- tivated fields, their stock ranging in the groves or grazing on the prairies. Nearly every cabin entertained travelers, who stopped for meals or to stay over night. Ham and eggs, fried chicken and warm biscuit, with good coffee, con- stituted the menu at nearly every cabin. If the position was such that the approach of the traveler could be seen some distance away, and it was about meal time, it did not require very attentive listening for him to distinguish the outcry of the chickens from the hen-coop as one or more were baing immolated, which he knew was to satisfy the cravings of his inner man. If a boy was about to take his horse, he might go into the house at once; if not, he would have to stable and feed his own horse, which many preferred to do, to make sure that they were well cared for. If he went into the house soon, he might see the good lady pull from under the bed a bread-tray, which was kept constantly su])plied with dough, and in a trice the biscuits would be molded and placed in the bake-pan; chickens were placed in the frying pan; the coffee-pot was set to brewing; the table was set; and in an incredibly short time he was seated at the table with a meal before him as inviting as was ever set before a guest in the most fashionable hotel, with the most modern conveniences. The food was plain but substantial, and was always cooked to a turn. It was not smothered up in rich condiments, but its flavor was most appetizing. Even now, I fondly remem- ber the feasts which I have enjoyed in those log cabins. In. riding from one county seat to another, the judges JUDGE CATON'S ADDRESS. 2L'l and lawyers generally traveled in a band together, altliougli not always in a compact body. Ilsualh^ the gait Avas a fast walk or a slow trot, and frequently the band would be sep- arated into little squads of from two to four, when the monoton}^ of the ride was relieved by conversation and the relation of anecdotes or story-telling, as it was called, though ordinaril}^ these last were reserved for the evening, when the whole party would be assembled. Then it was that the delights of circuit riding were most ap]ireciated. All were good story-tellers, and with rare exceptions each one added somewhat to his store since the last meeting, either from having heard a good story from somebody else or invented one; and a new story, if it were only a good one, was always received in the way that showed that it was fully appreciated. Frequently a quite ordinary inci- dent would be dressed up and so embellished as to be ex- ceedingly ludicrous and amusing. The early circuit riders, for the purpose of illustrating certain characteristics of the human mind, used to tell a stor}'^ of Judge Harlan (a name suggestive of the ermine) when he was circuit judge. They stated that when he had closed his court at a little town in the southern part of the State, and nearly all were ready to mount their horses and proceed to the next county, and just as he was putting his foot in the stirrup, a lawyer rushed up with a paper in his hand, and asked him to sign a bill of exceptions. "With evi- dent marks of impatience, he dropped the reins of his bridle, and hastened back into the log tavern and called for pen and ink, which were shown him on the little counter in the bar-room. Goose quills, then, only were used for pens. He seized one and jammed it into the inkstand with such force as to spoil it. He only appreciated this when he attempted to sign his name. And this crushing process he repeated several times before he succeeded in writing his name, and then it was hardly legible, Avhen he threw down the pen and paper, evidently in bad humor, and bolted from the house, mounted his horse, applied the whip, and took the 222 EARLY BENCH AND BAR OF ILLINOIS. lead upon the trail which led across a ten-mile prairie to a cabin in a grove of timber. The rest followed as best they could; but none could suc- ceed in eliciting from him even a word of recognition dur- ing the ride. When he reached the cabin, he accosted a woman who stood at the front of the house, and asked her for a drink of water. This she brought him in a gourd, from the well, of which he drank heartily, and when he returned the gourd to the good lady, he remarked, " That is good water and I tell you, madam, they do keep the infernallest pens back in this little onery town that we just left, that you ever saw," and he again took the lead, appar- ently still brooding over those pens. Euchre parties were frequently formed, and so was time pleasantly passed ; and sometimes a dance was gotten up, when an old fiddle could be found, and some one was capa- ble of using it. Judge Young himself was deemed the best fiddler on the circuit, and so contributed much t(^ the hilar- ity of such occasions. Sometimes a mock trial was instituted, when an indict- ment was presented against some member of the bar, accus- ing him of most ridiculous crimes, embellished with laugh- able incidents. On such occasions, the judge, the lawyers and the witnesses fairly overflowed with wit ; and boister- ous laughter was not considered a breach of decorum in that court, and the verdict of the jury partook of the character of the previous doings. A verdict of " guilty " was almost a foregone conclusion, and the penalties inflicted were fre- quentl}^ the most ludicrous and amusing of all the proceed- ings. If the wit was keen, it was frequently deeply pene- trating, but the subject of it must bear it good naturedly and console his irritated feelings with the reflection that he would get his revenge on some future occasion. To show irritation at hard rubs was the worst thing a man could do, but to turn them off in some witty way enhanced his popu- larity for the time. But the first few days of the term could not be given up JUDGE CATON'S ADDRESS. 223 to .amusement; all thoughts must be bent on business. Be- fore the cavalcade of judges and lawyers had arrived, suitors and their friends, witnesses and sightseers, had already ap- peared, and were awaiting this important arrival; and scarcely had the advocates dismounted, generally covered with dust or mud, when they were surrounded by clients, eagerly seeking to engage their favorite counsel, and as soon as their leggings and dusters or overcoats could be dis- carded, they gave ear to those who sought their services, and listened to brief accounts of the cases in which their services were sought. One man wanted a suit defended; another wanted a case tried; another a suit commenced, and soon everything was bustle and excitement. Special pleas must be ])repared in one case; in another, a demurrer must be filed; in a third, a bill in chancery must be drawn, or an answer pre- pared; and in another, preparations for a trial which might come off immediately; and finally, some poor fellow was in jail for horse-stealing, or counterfeiting, or perhaps for mur- der, who Avanted a lawyer to defend him ; and all this heteroge- neous mass of business was rushed in upon them in a man- ner which would have confused any mind not well trained to that mode of practicing law. Not infrequently, men were called in to take part in a trial when the jury was already being called, and they must learn the case during the trial itself, and it was astonishing to see how rapidly they could see the salient ])oints of the case, and methodically arrange and present them. In the spring of 1835, for the first time I attended the Circuit Court at Hennepin, in Putnam County, which was held by Judge Breese, and there I first met him. Every- body was talking of the case of one Pierce; he was in jail on the charge of larceny, and it was said that he had not only confessed that he stole the goods, but that a witness named Thompson had sworn before the committing magis- trate that he saw him steal them. As I was entirely un- known I took little interest in the matter, only I was struck with the frequent expressions of sympathy for the 1>24 EARLY BENCH AND BAH CF ILLINOIS. prisoner, which I heard, and some even expressed doubts of his o'uilt after all. Judge Breese opened the court the next morning, organized the grand jury, who, in the course of an hour, brought in an indictment against Pierce, who w^as directly brought into court. "When he w^as asked if he had counsel, he replied he had not, and had nothing with which to pay counsel, and, in answer to a question by the court, expressed a desire that counsel might be appointed to defend him. The judge then asked me if I would undertake his defense, assisted by Mr. Atwater, a young man just admit- ted to the bar, and very lately settled in the towm — the first lawyer there. We accepted the appointment, of course. It was not unusual, at that time, when a new lawyer appeared at the opening of the circuit for the judge, as a mode of in- troducing him to the people, to ask him to defend a crim- inal, or to charge the grand jury, or the like, and w^e ap- preciated this appointment as an act of kindness on the part of the judge. We took our client out, and sat down on the grass in the corner of a rail fence to learn from him what w^e could of the case, still supposing it w^as one of those desperate cases where no defense is possible. We requested Pierce to tell us the exact truth, for, if he were guilty, Ave could make a better defense by knowing all the circum- stances of the case, than to go into the trial ignorant of the real facts. He said he w^as perfectly innocent; that Thomp- son and his own wife had stolen the goods, and he had con- fessed he stole them in order to let her escape; and that he w^as so sick on the night of the larceny that he could not leave his bed, and was attended by a nurse and a doctor. After a searching investigation, w^e w^ere convinced of his innocence. Pierce also stated that Thompson was a ruffian and a terror to the w^hole people, and that everybody w\as afraid to say a word against him. The court gave us till next morning to prepare for trial. As I was going to my dinner, a man crossed the street quickly and spoke to me in a low voice, saying that Mr. and Mrs. Fitzgerald, who lived two miles across the river in a I02: cabin, knew some- JUDGE CATON'S ADDRESS. 225 thing that would help Pierce, if they could be got to tell it, and disa})]ieared as if in alarm. I scarcely waited for dinner, when I mounted my horse and was on the way to the Fitzgerald cabin. After I had exhausted every effort to allay their manifest fear of Thompson, they finally consented to tell me what they knew of the case, which was, that they had slept in the house on the night of the larceny, and had seen Thompson and Pierce's wife take the goods from a box, about mid- night, and put them in Pierce's trunk; and they promised to appear in court the next morning and testify to what they knew. I galloped back, even faster than I had come, and found that Atwater had seen the nurse and doctor, who had corroborated Pierce's statement about his sickness. Of course we kept all this a profound secret, even from Pierce, On the trial, the next morning, Thompson swore that he saw Pierce steal the goods, and in my cross-examination I directed my efforts to make him swear to this in the strong- est way possible, and thus apparently injure my case. In the defense, we first brought the doctor and the nurse, and then Mr. and Mrs. Fitzgerald, who seemed to have lost all terror of Thompson, and told the whole story. Here was a great chance for a speech before a new audience — not for Pierce, for he needed none, but for myself — in which I j)ictured Thompson as a ruffian, thief, perjurer and as a lecherous scoundrel generally, in words which I had been all the night before recalling ; and before I was done he slunk away out of the room and made for the bush. After a verdict of acquittal, the court adjourned, and before I had reached my hotel I was retained in every cause then pend- ing in that court, and in some very important causes to be commenced, and never after did I Avant for clients, so long as I attended that court. It was at the Putnam Circuit Court that I first met Judge David Davis, and it is with great satisfaction that I state that we were ever after warm personal friends. When John York Sawyer was circuit judge, it was said 15 22G EARLY BENCH AND BAR OF ILLINOIS. that in the administration of criminal jnstice he did not ahvays adhere to tlie conventional rules of practice. Once, Gen. Turney was defending a man for horse stealing. At that time the punishment for that crime was at the whip- ping post. Just before noon the jury brought in a verdict of guilt}^, when the general moved for a new trial. Then it was that the dinner bell was heard at the little tavern where they all stopped, when the judge remarked : " Gen. Turney, I hear the dinner bell ringing now; we will ad- journ court till after dinner, when I will hear you on this motion," When the sheriff had adjourned the court the judge motioned him up while he still sat on the bench, and whispered : " While I am gone to dinner, you take this rascal out and give him thirty lashes, and see that they are well laid on; I am bound to break up horse stealing in this circuit." When the court opened after dinner, the judge told General Turney he could go on with his motion for a new trial, and he did so. In the meantime the sheriff had obeyed orders, and after the whipping had delivered the cul})rit over to his friends, Avho washed oft* his lacerated back, to which they applied a lotion, and then put on his clothes, after which he Avent limping down the street. As he passed the court house door, he heard his counsel's voice, and, upon listening, dis- covered that he was earnestly pleading for a new trial in the case, whereupon he rushed into the court house and cried out, " For God's sake. General Turney, don't get a new trial ; if they try me again they will convict me again, and then they will whip me to death." The general, of course, A\'as dumbfounded, and appealed to the court to know what this all meant. The judge quietly remarked that that was all right ; that in order to make sure that no horse thief should escape punishment in his circuit, he had ordered the sheriff to whip the rascal while they were gone to dinner, and he supposed he had done so. I was informed that horse thieves did become scarce in Judge Sawyer's circuit. ^ Judge Ford, who related this event to me, often expressed JUDGE CATON'S ADDRESS. 227 the opinion that whipping was a much more deterrent pun- ishment for crime than imprisonment; that he never saw a criminal sentenced to be whipped who did not cringe at the sentence; while he had rarely seen a prisoner manifest emotion at being sentenced to a long term. In 1S29 an act was passed which, as the State was but eleven years old, may be justly ranked among our legal antiq- uities. That act provided that in the absence of the circuit •judge (Judge Young) the Circuit Court of Jo Daviess county might be held by three justices of the peace of the county, and under this law the first circuit court of that county was so held, and Judge Young related to me some amusing incidents of the court, when held by the three jus- tices, in their austere efforts to maintain the dignity of the court, I have failed to find any subsequent act repealing that statute, and if it has not been repealed directly, or by implication, that circuit may still be held by justices of the peace, by reason of Avhich, such magistrates in Jo Daviess county may claim to occupy a higher plane of dignity and jurisdiction than the justices of the peace in other counties. But those happy days of circuit practice, and jolly nights and warm and sympathetic friendships, begotten of such associations, are now gone forever, I fear, in this State; and necessarily so, for the conditions which made them possible— yes, whicli necessitated them — have passed away, never to return. But it may be well that a record of them should be preserved, so that they may not be entirely forgotten. I may mention a few men w^ho rode the circuit, before my day, whose names, and of whose abilities, I heard from the lips of others, though for very few of these can s})ace be spared to illuminate this page. All practiced in the southern counties of the State. There were Habbard and Harlan, Kent, Cook, Beynolds, Semple, Forquer and Saw- yer. Of those whom I met and knewpersonally, the list would be long, though only a part of these did I ever meet upon 223 EARLY BENCH AND BAR OF ILLINOIS. the circuit, and some of them I only knew as judges, and not as practicing lawyers. There were the four judges of the Supreme Court when I came to the State — Wilson, Brown, Lock wood and Smith— and Young, who was judge of the fifth circuit. With all of these, except Smith, I sat upon the bench of the Supreme Court. Logan, Hardin, Stewart and Stone I met at the first circuit court I ever at- tended in the State, at Peldn, in 1833. Young, Ford, Mills,. May and Strode I first met, in 1834, at the first circuit court ever held in Cook county. Br(rese I first met when he held the Circuit Court in Putnam county, to which I have already referred. I may be allowed to mention a fev/ others of the lawyers Avho traveled the circuit, more or less, forty years ago: Snyder, Gillispie, Browning, Williams, David J. Balvcr, Edward Baker, Shields, Koerner, Trum- bull, Morrison, Grimshaw, Campbell, Wheat, McEoberts, Field, Peters, Purple, Dickey, Jesse B. Thomas, William Thomas, AYhitney (Lord Coke), McConnell, Martin, Linder, B. C. Cook, Fridley, Thompson Campbell, Marshall, John A. Logan, Gridley, Minchell, Joshua Allen and Lincoln, who, it is scarcely necessary to state, was always the very soul of hilarity and amusement on the circuit. His capacity for illustrating either wit or argument, whether upon a trial in court or in our social gatherings, always distinguished him from other men. His very presence was a joy to all. The law and chancery jurisdiction have ever been exer- cised by the same courts, and the common law and English chancery system of pleading have ever prevailed in this State, with very few statutory modifications. The first modification, for the purpose of simplifying pleadings, was made by a very early statute, which authorized actions to be commenced on promissory notes by petition and summons, Avhich, it was thought, would so simplify matters that every one could be his own lawyer; but its use was never general, or even common, and I have never, during all my experience, known more than two actions to be brought under it, and those not with very economical results. Another important JUDGE CATON'S ADDRESS. 229 change was early made in chancery by authorizing the com- plainant in his bill to Ayaiye the oath to the answer, when the answer should not bo cyidence; and another change, authorizing a defendant to attach to his answer interrogato- ries, which the complainant must answer under oath. Under this last proyision, the courts had been in the habit of grant- ing affirmatiye relief to the defendant, and this question hap- pened to be presented in a case of Ballance v. Underbill, which was the first case eyer assigned to me in which to write an opinion, and I wa^ote it, reyersing that part of the decree which gaye to the defendant affirmatiye relief, affirming all the rest; and on this point I had my first struggle with my associates, who said it had been the uniform practice to grant such relief in similar cases. At that time Judge Pope of the United States District Court, at Springfield, was in the habit, when he had leisure, of dropping into the conference room as freely as if he were a member of the court, without at all interrupting the de- liberations then progressing; and he happened to come in while we were considering this controyerted question. He seemed to listen attentively to the discussion, while I was trying to maintain my position against all of the others. At length, the conference adjourned without taking a yote, and we separated. When Ave were passing through the library on our way out, the judge came up to me and patted me on the back, saying, " My boy, you are right. Stick to them, and they will come to you at last. Come, go to my room and emoke a pipe with me." I did stick to them, and they did come to me at last, and voted unanimously for the opinion; and the rule Avas then adopted requiring a cross- ])ill to be filed in order to authorize affirmative relief to be granted to the defendant, which has ever since prevailed, I think, Avith the general approval of the bar. By practice sanctioned by courts and lawyers, much of the verbosity and formalities required in the English courts, in both the common laAv and chancery pleading, Avas eliminated in carlv times, and I think, Avith marked advan- 230 EARLY BENCH AND BAR OF ILLINOIS. tages ; while all that was substantive, and necessary fairly to advise the opposite party of what he had to meet, was retained. In this way has gradually grown up a change in our system of pleading which greatly simplilies the work of the profession and the courts ; and the system thus wrought out has tended to promote the ends of justice, as much, at least, as has been done by the adoption of codes in other States which were designed to accomplish the same end. Whether there has been a relapse of the old formalities and redundancy of words since my time, I can not say ; on that subject you are the best informed. Almost from the beginning, it has ceased to be necessary for a bill in chancery to contain a thricetold tale, as in the old forms containing the stating, the charging and the interrogating part, in each of which the facts had to be repeated. In my first bill, with great laI)or, I followed this nile ; Init ever since, I have deemed it better to simply state the facts upon which I relied for relief in the shortest and clearest manner possible. If an unnecessary fact be stated in a pleading, it may some time rise up to pester the pleader. I early learned to appreciate the importance of understanding the reasons why certain rules of laAv had been adopted, not only from my circuit practice, but from my general practice as well. The reasons of the law are the soul and essence of the law. During my time, that is, up to the time I resigned the chief justiceship of our Supreme Court in 1864, the rules of practice or modes of administering justice, to a large extent, remained unchanged. Since then important changes have been made, with which I have not kept pace as a law3'^er in active practice necessarily would have done. I was forcibly reminded of this a number of years ago, when I went into the Circuit Court in Chicago, where a case was pending in which a corporation in which I had some interest was plaintiff, and two individual parties were defendants. When I went in, a motion was being argued for a continuance by the defendants. As the plaintiff's case was conducted by a young lawyer, and I thought I saw some indications that he JUDGE CATOX'S ADDRESS. 231 Wcas getting the worst of it, I turned in to help liim, and in the course of my remarks, Judge Murphy, who presided, dis- covered that I was ignorant of ahite statute, when he kindly suggested that a statute had changed the hiw ; that we might take judgment against one of the two joint defendants, and not against the other. This astonished me, and I felt like exclaiming with an Indiana attorney long ago, as related by Chief Justice Wilson. He reported that a case was pending before an Illinois justice of the peace, down on the Wabash, in which an Illinois lawyer was eni2:ao;ed on one side and an Indiana lawyer on the other. In the course of the trial, the Illinois law>^er asserted a jirincijile of law Avhich was denied by the IIo<3sier, who denounced it as the most absurd propo- sition ever heard of in any civilized community, and that it never could be the law except among barbarians. Upon this, his opponent placed before him the Illinois statutes, which declared the disputed proposition to be the law of this State. After the Indianian recovered from the shock which this statute produced upon his nerve he straightened himself up, and with great solemnity exclaimed : '" May it please the court : When I hear of the assembling of a Legis- lature in one of these Western States, it reminds me of a cry of fire in a populous city. No one knoAvs when he is safe ; no man can tell where the ruin will end." IIoAvever, as the effect of the statute might be in my favor, I could not com- plain of it, and a little reflection convinced me that it might have been enacted in the interest of justice. Perhaps the most important changes which have taken place since my time, b}^ direct legislation, are in the law of evidence. During all the time when I was connected with the administration of the law, it was assumed that no one who had a direct pecuniary interest in the event of a trial could tell the truth Avhen under oath; hence it was a set- tled rule that no one who had the slighest pecuniary inter- est in the result of a trial could be a witness, and for the reason that it was assumed that such interest would induce him to testify falsely. No position in life, no established 232 EARLY BENCH AND BAR OF ILLINOIS. character for rectitude, no confidence which all members of the community might have in the uprightness of any man — earned by long years of integrity and probit_y — coukl relieve him from the suspicion which the law arbitrarily stamped upon him, while no one dreamed that this legal suspicion of unreliability cast the remotest reflection upon his integrity. We simply found the law to be so, and that it had been so, time out of mind, and no thought of the in- justice of such a rule ever dawned upon us; no lawyer ever thought of questioning its propriety, or even suggested a doubt that it was not the safest way for the ascertain- ment of truth. Ko judge ever thought of intimating, in an opinion, that a regret was felt that the sources of light which might develop the most important facts had been thus shut out, and that court or jury liad been left in dark- ness where it was evident that the brightest light might have been thrown upon an important transaction, from sources of which the most skeptical could entertain no moral doubt. This serves to show what curious beings we are, and how firmly we are wedded to old customs and old modes of thought. "We are inclined to look upon the ways of our ancestors as sacred, and therefore as just. The statute al- lowing parties in interest to testify in courts of justice caused a radical change in the administration of the law, and while it undoubtedly opened a wide door to the induce- ment to perjury, it as clearly afforded a new means for the ascertainment of truth. It was a revolution, in fact, and when once started it swept over this and other countries with astonishing velocity. England, whence we derive most of the principles which have governed us in the ad- ministration of justice, and whose conservatism has prompted her to move slowly and cautiously in the adoption of re- forms, cordially embraced this reform with a general appro- bation of the courts and of the legal profession; and the e-entlemenof this association can tell better than I can what has been its effect upon the administration of justice, though JUDGE CATON'S ADDRESS. 233 I am told that it has met with general appro])atioii ; but I ])resume that the change was more cordially accepted by the younger members of the bar and of the courts than by the older ones, into whose very being the old system had struck so deep a root by long practice and accustomed mode of thinking. The change made in the criminal law which allowed a prisoner to testify in his own behalf upon his trial, I think, from what I heard about the time the change was made, did not meet with quite so ready an acceptance. I heard it characterized as a legislative device to promote the crime of perjury by offering a reward, often of inestimable value, for the commission of that crime. There may be, and prob- ably is, some truth in this criticism. The inducement for a guilty man to testify in such a way as to shield him from the punishment to be inflicted for a crime committed, is undoubtedly very great, and that premium is no doubt very often offered to those on wliose consciences the oblio-ations of an oath would press very lightly. True, courts and juries might not feel themselves obliged to give the same credence to the testimony of a prisoner in his own behalf, as they would to that of an indifferent person, but tliat could not remove the temptation to perjurv or the danger from it. Again, it presents a danger which must ever menace him who lias some conscience left, and so, we may presume, is not a hardened criminal, and who refuses to go upon the stand and commit perjury in order to escape punishment for crime. Although courts and counsel are forbidden to urge this fact in order to create a prejudice against the presumption of innocence, it would take some- thing stronger than the mandate of a statute to prevent a jury from noticing it and thinking about it, and in fact, from being influenced by it. In that way, it does undoubt- edly have a prejudicial influence upon the cases of the least hardened criminals. The passage of our statute which opened the doors of the learned professions and other occupations to females, was 234 EARLY BENCH AND BAR OF ILLINOIS. another change from the old modes of thought and ]->roceed- ing in our profession. Of the thousands of applications, during my time, of candidates for admission to the bar, not one was a female. AVhile we had no statute expressly for- bidding this, it was so generally accepted as the law that women were ineligible to the profession, that no one seems to have thought of making such an application, no matter how eminent may have been her legal qualifications. But let not the present generation boast that it was the first to discover her fitness or capabilities to study or comprehend those principles which would qualify her for professional life. That was known and recognized and acted upon long ages ago. The ancients were not destitute of distinguished women in the medical profession. Agnodice, an Athenian maiden, assumed the garb of a man to enable her to study medicine, in which profession she became famous. As her popularity and her practice greatly increased, the male physicians were filled with envy, and accused her of corruption before the tribunal, to whom she confessed her sex; when a law was immediately made allowing all freeborn women to study midwifery, to which branch of the practice she was most devoted. She was born 506 years B. C. Hortense, not a Roman matron but a young lady of the Eoman Empire, ^yas the most learned lawyer of her time, when the science of the law absorbed the thoughts and studies of the most learned and talented of that great people. At the age of twenty-one years, she had already acquired such fame that she was pLiced at the head of the most distin- guished of the Roman law schools, and it was said of her that her beauty was so great that the beholder who gazed upon her could think of nothing else, until she opened her mouth to speak, when the charm of her eloquence dispelled all other thoughts, and her beauty was forgotten amid the fascinating influences of her address and the irresistible force of her reasoning. She was the daughter of Quintus Hortensius, a great JUDGE CATON'S ADDRESS. 2o.3 orator and lawyer. She was born eighty-five years B. C. The speech Avhich she made in defense of the 1,400 Roman matrons against a special tax, proposed by the Triumvirs, has come down to us in the languao-e in which it was uttered, and well sustains her reputation as an orator; and she suc- ceeded so well that 1,000 of her clients were exempted from the tax. These must serve as examples of women who acquired great distinction, and displayed great ability in professional life among the ancients. While there have been many female sovereigns in the past who have illustrated their capacity to stud}' and understand the sciences of statesmanship and of jurisprudence, public sentiment, begotten of prejudice and egotism, has practically closed against women the doors which lead to what are called the learned professions, until within the last few vears, while their great abilities in the conduct of affairs in which they were permitted to engage has been a thousand times illustrated by the most pronounced success. When our own Legislature passed a law authorizing women to engage in the different occupations on the same plane of right with men, many of the old school of thought anticipated that its effects might be calamitous. For myself, I did not partici- pate in this apprehension. Xo doubt, early memories and associations may have had their influence upon me in this matter. I was born and brought up in the Society of Friends, a religious denomination in which the endowments and qualifications of women were always distinctly recog- nized. They not only took part in the business meetings of the society, but their right to preach in the religious meet- ings was recognized equally with that of men; and in my boyhood, when I was so situated that I could attend those religious meetings, I heard sermons preached by women, and pra3'ers made by them, which made as lasting an impression upon my young mind as did ever those of men. The neat, plain dress of such a speaker, her sweet, benign countenance, her charming gentleness of manners, her soft and winning per- 236 EARLY BENCH AND BAR OF ILLINOIS. suasions, Avere calculated to win the heart of the hearer when the discourse of a man would have sounded harsh and almost repulsive. It seemed to me that she knew better how to touch those strings which vibrate from heart to heart, and especially those which reached down deep into the 3'outhful soul, than did the other sex; and this loving and benign influence was understood, appreciated and utilized by that denomination of Christians; and I have no doubt that a memory of this had much to do with shaping not only my feelings but my judgment on the subject. I presume numerically the medical profession has been augmented much more by lady practitioners than has the legal profession, and this may result from some peculiar endowments which they possess for the former. Their sympathetic nature, their natural gentleness, their quick perceptions, come to the aid of their judgment and their learning, and seem to endow them especiallj" for the prac- tice of the healing art; while the practice of the law seems to partake more of the belligerent character, and so may be thought to require a sterner nature and disposition. This, I say, may be one reason why fewer ladies devote them- selves to the legal than to the medical profession. Why so few devote themselves to the cure of souls, I will not attempt to say; but I may assert, without fear of contradic- tion, that a large proportion of those who have joined the cler- ical profession have met with marked success. But it is not in professional life alone that women have abundantly vin- dicated their right to the highest respect and consideration. The utility of their efforts in the moral world stands forth so conspicuously as to challenge the admiration of mankind, and I may be permitted to point with pride to their work and recognition in the Columbian Exposition, in connection with wdiich their labors and their influence are felt in all civilized countries. Gentlemen, I speak to you as from a former generation. AVe were once young, vigorous and ambitious. We sought to fill the places to which fortune had assigned us, accord- JUDGE CATON'S ADDRESS. 237 iiig to the best of our ability, so that the worhl iiiig-ht l)e the better for our presence. ^Ye a])i)reciate{l that we were members of a high and an honorable profession, with corresponding responsibilities. History shows that law- yers are more frequently called upon by tbeir fellow-men than members of any other profession or calling to take part in the conduct of public affairs ; and b}^ this is the measure of their responsibility fixed. So it has been in the past, so is it now, and so Avill it be in the future. Whatever flippant expressions may be heard from the ignorant, the prejudiced or the envious, to the contrary, this fact affords us the comforting assurance that the integrity, the ability and the learning of the profession are fully appreciated and valued by the community at large all over the country; and this of itself should act as an inspiration to every mem- ber of the profession to strive with his utmost energv to maintain that high standard of morality and integrity which has secured the confidence of our fellow-men, and enabled us to fill out the measure of usefulness which our place in society has rendered possible. Should the time ever come when the profession of the law shall be dragged down by its votaries from the position of a noble and an honorable profession to that of a venal trade, then the name of law^yer will become a title of reproach instead of an honorable appellation. But feAV are now left who commenced the struggle of pro- fessional life with me, animated by hope and ambition, inspired by indomitable will and a fixed purpose to succeed. I have seen them drop out one by one as we traveled the road of life, side by side, till now Init isolated instances are left of those who can tell from memory the incidents of the distant past ; but they have left dotted along that way beacons of brilliant light, which have served to guide their successors, and will serve to guide those who shall still come, later, to the goal of honorable distinction and of usefulness. It is one of the happiest hopes that I can now entertain that honesty and honor, usefulness and learning will be upheld in 238 EARLY BENCH AND BAR OF ILLINOIS. the future as in the past, and that the name of our profession may continue to be the synonym of all that is noble, useful and energetic. The comforting hope of the past must rest in the future. So can the younger men who are just coming upon the stage of life most honor those who have gone be- fore them. REMINISCENCES OF THE CHICAGO BAR. ADDRESS DELIVERED BEFORE THE CHICAGO BAR ASSOCIATION FEBRUARY 11, 1S93, BY JOHN DEAN CATON. 3Ir. President and Gentlemen of the Bar Association of Chicago: I am liappy to accept your kind invitation to meet you here at this time, and to say a few words about the earliest history of our profession in Chicago. It is indeed grateful to find myself surrounded by a legal atmospliere, in the pres- ence of gentlemen of the profession which I love so well, in a city whicli now stands where stood a little hamlet sixty years ago, and where I first commenced my professional career, and where it was my fortune to commence the first action ever brought in a court of record in Cook county. I think I may be pardoned for feeling a certain measure of l)ride in having had my name thus associated with the first judicial records of this county. There was no city here then, nor even a village corporation; for it was six weeks after my arrival before 150 male inhabitants over the age of twenty-one 3^ears could be mustered in the place — a statutory condition necessary to form a village corporation. It so happened that I was appointed the first corporation attorney, which was the first office I ever held in this State. Although the emoluments were very small, I well remem- ber that they were very opportune, and were probably as gratefully received as have been those of any legal repre- sentative of the town or city since. Although as early as 1830 the statute fixed the terms of the Circuit Court in Cook County and made it the duty of 240 EARLY BENCH AND BAR OF ILLINOIS. Judge Young, of the Fifth Circuit, to hohl the court here, of which CoL R. J. Hamilton was the clerk, yet no case of a civil or criminal nature had arisen to be placed upon his docket till more than two weeks after my arrival, and the judge, having been informed by the clerk of this fact, had not appeared to open the court. The first case that was ever entered upon the docket of the Circuit Court of this county was a criminal case, and the first fee I ever received was for prosecuting a thief who had stolen $36 of Bellows Falls money from a Mr. Hatch, who employed me to prosecute him and recover the money, which I did. I received $10 for this service, the first fee I ever received in this State, and I never received a fee with more satisfaction, for it just paid my two weeks board up to that time — to have paid which would have exhausted my funds. Giles Spring, whose arrival had preceded mine by a few days, and Colonel Hamilton defended the case before the magistrate, and then it was that both Spring and myself had an opportunity of being heard before a Chicago audience (for nearly every man and boy in town were pres- ent), and we both made our speeches as much to the people as to the magistrate, who bound the prisoner over to the grand jury; and so Colonel Hamilton had the pleasure or the pain of writing down his client's name, the first upon his docket, and filing his recognizance. The second action upon that docket was an attachment case, which was commenced by me. Of course I was very glad to get it. Spring necessarily was employed on the other side, and he beat me on the trial before the first petit jury impaneled in the Circuit Court of this county and got a good fee, for those times, Avhile I had to be content with a $5 retainer. As neither Spring nor myself received our licenses to practice in this State till October following — when I went on horseback to Greenville, in Bond county, to obtain them — we signed our clients' names to precipes, pleadings and such JUDGE CATON'S ADDRESS. 241 otbor papers as otherwise we ^yould have signed as attor- neys. When we remember that in the absence of panics and similar financial convulsions the amount of legal business is a safe criterion by which to determine the amount of com- mercial transactions, the entire absence of litigation in the hiffher courts would indicate that little commercial business had been carried on here up to the time of which I speak, and the entire absence of crime which had to be dealt with by the Circuit Court speaks well for the psacs and good order of the community. In truth, nothing had occurred which could not be dealt with by justices of the peace, and three such officers represented all the judicial force in the place, namely, Isaac Harmon, Russell E. Heacock and Archibald Clybourne. Only one of them, Harmon, kept an office, and he did nearly all the business. Mr. Ileacock was the only lawver of the three, and he was a ver}^ good lawyer too; but in the absence of any professional business he opened a carpenter shop, a trade which he learned when young; his shop, built of logs, was situated on the corner of South Water and State streets, and it was from him I procured the warrant for the arrest of the criminal alread}" spoken of. The criminal was brought in just at dusk, and the justice took his seat on a saw horse by the side of his work bench, upon which he placed a lighted tallow dip, held in position by four nails driven into a block of wood. This particularity can only be justified by my desire to enable you to understand the judicial position at the very commencement of its history in this city, and to enable you to draw a contrast between then and now. At that time there was already an aj^preciable amount of business in the Circuit Court of La Salle county, and especially in Putnam county, but there were no resident lawyers in either, and clients depended upon the circuit riders for the conduct of their cases. These lawyers were a class who traveled the circuit Avith the judge, and who had to practice law on the wing, as it 16 242 E^\JILY BENCH .\:ND BAR OF ILLINOIS. were, and who received their retainers about the time court opened and frequently had to learn their cases as the trials progressed. Their experience in this mode of practicing lavv' enabled them to do this with extraordinary facility and suc- cess. As a general, rule they were well grounded in the fundamental principles of the law; and habit had enabled them to think quickly and accurately and without confusion when required to pass from one subject of thought to an- other. The first Circuit Court which I ever attended in this State was in October, 1833, at Pekin, in Tazewell county, where I first met Judge Lockwood, who held the court; John J. Har- din, State's attorney; Stephen T. Logan, John F. Stuart and Dan Stone, of Spring held, who were the first circuit riders I ever met. I next attended a Circuit Court at Greenville, in Bond county, which was held b}^ Judge Smith of the Supreme Court, also in October, 1833, where I first met Jesse B. Thomas, who was State's attorney in that circuit. The next Circuit Court which I attended was the first ever held in Cook county, in May, 1831:. Judge Young held the court. Thomas Ford, of Quincy, was State's attorney. The foreign lawyers in attendance were William L. May, of Springfield; Benjamin Mills and James M. Strode, of Galena. I do not remember the number of cases on the docket at that term. Spring and I were engaged in them all, on opposite sides, excepting one in which Mr. Ford rei> resented the United States. I had brouo-ht a Avrit of habeas corpus directed to the commander of the fort here to pro- cure the discharge of a soldier who had been enlisted be- fore he was eighteen years old without the consent of his father. The State courts at that time exercised that jurisdiction, even where the Federal courts were conveniently near, as I showed by a case in Johnson's reports. The question of jurisdiction was not seriously contested, but the court held that the onus lay upon me to prove that the father had not consontod to the enlistment, and because I did not succeed JUDGE CATON'S ADDRESS. 243 in doing- this, clearly, the soldier Avas remanded. I suppose that no State court at this time would entertain jurisdiction in such a case. Six days after the opening of the Circuit Court here the court was required to be opened at Ottawa, in La Salle county, which is eighty-four miles distant. It required two days' riding on horseback to reach that place, and as half a day of the term time was given up to a political discussion between Colonel May and Mr. Mills, rival candidates for Congress, practically but three days were allowed to dispatch the busi- ness in court, but that proved to be amply sufficient. Ford, State's attorney, was called upon by the judge to charge the grand jury. This gave him an opportunity to be first heard in Chicago, where he had never been before. I went to Ottawa with the judge and lawyers who had come herewith him and attended that court. There were several more cases on that docket than had been on this, but I obtained but little business tliere, although I had been there twice before, and had formed a good many acquaintances, having on the previous 4th of March attended, as a delegate from Chicago, the first political convention ever held in Illinois. In that convention we nominated one candidate for the State Senate and one for representative in the General Assembly to represent all the northern part of the State as far south as Peoria, including that county. I did not anticipate much pecuniary result from my attendance upon these various courts 'which I have mentioned, but it served to extend my acquaintance and especially to familiarize myself with the practice of the courts in this State, and the mode of doing- business here, w^hich I early learned was widely different from that which prevailed in New York, where I had studied my profession. The day after my first arrival in Chicago I called at Col- onel Hamilton's office. He then held the offices of clerk of the Circuit Court, clerk of the County Commissioners' Court, and judge of the Probate Court. He received me with a cordiality and welcome which were one ■ of his dis- 244 EARLY BENCH AND BAR OF ILLINOIS. ting-uishine: characteristics and secured for him the warm friendship of all with whom he came in contact. He invited me to come to his office to do any writing I had occasion to do and kindly loaned me the use of his copy of the statutes of 1833, which I there first read, and, I may add, carefully studied. In New York the statute gives certain fees to the successful lawyer, which must be paid him by the unsuc- cessful party, because it is deemed but just that he who wrongfully causes litigation should pay the cost which he has compelled by his wrongful acts of omission or commis- sion, and I was greatly disappointed to find that the fee bill provided no compensation to be paid to the lawyer of the successful party; and I may now say that in my opinion the rule which compels the party in fault to pay at least a part of the expense which he compels the party who has suffered wrong to incur, in order to recover his rights, is but just, and consistent with sound policy. The law which exempts a man from paying anj^thing which he has compelled the injured party to incur, encourages litigation. This is not the only law which seems to have been made in the interests of wrong-doers. In our Criminal Code the State has placed itself to a great disadvantage in the prose- cution of criminals, by giving them much greater chances for escape than the State has for conviction. I repeat that many of our law^s seem to be made for the benefit of delin- quents and criminals. ISTotwithstanding my disappointment at not finding in the fee bill an allowance for the successfid lawyer, I finally contented myself with the reflection that if others could stand it I could, and directed my studies to the rest of the statute. I may mention one other case which I had to conduct in 1833. With the eastern immigrants had come a number of negroes, perhaps eight or ten. Of course, coming from the free States, they had no free papers, as our statute re- quired, which had been framed upon the manifest assump- tion that all negroes Avere born slaves and that such must be the legal presumption, only to be overcome by document- JUDGE CATON'S ADDRESS. 245 ary evidence sliOAviiig their right to freedom. Some per- son in the town, badly troubled with what we then called " negrophobia " on the brain, swore out warrants against every negro here and had them brought before Squire Har- mon to comiDel them to present their free papers or be sold as the statute required, and they employed me to defend them. Fortunately, the county commissioners were then in session, and I asked the court to hold the cases open till I could appear before that body and prove that all my clients were born free and obtain free papers for them. Of course I could show no statute authorizing such a proceed- ing but the justice very willingly granted me the time, when I marched m,y clients over to Colonel Hamilton's oifice, where the commissioners were in session, and made m}^ application for free papers. I made a little speech, showing that from the very necessitj^ of the case they must have jurisdiction and exercise it too, to prevent a monstrous wrong, which would be a disgrace to both the town and the State. The commissioners allowed me to produce my proof, which was abundant, and then made the order that the clerk should issue the proper papers to show that fact, when immediately Colonel Hamilton set himself to work and got up a most elaborate document, couched in the most formal terms, sealed with the seal of the court and issued one to each of my clients. Armed with these documents, we re- turned to the justice's office, whereupon the justice decided that those were good enough free papers for him, and im- mediately discharged the prisoners and taxed the cost to the prosecutor. Another incident that happened a few years later may be worth relating, as it shows a great change in the position occupied by the negro in Chicago. At that time a very considerable colony of colored men lived here and among them was George White. He had a very loud voice aiul" made himself town crier. He was both smart and am- bitious. At the same time there lived in the gutters of Chicago, a young man named Harper. He was a man of 246 EARLY BENCH AND BAR OF ILLINOIS. liberal education, but had succumbed to the disease of drunkenness; had enlisted as a common soldier in the army, where he was found to be absolutely incorrigible, had been drummed out of camp at Green Bay, whence he had made his way to Chicago, where he continued his dissipation and subsisted on charity and by doing little chores about the town. Everybody felt a kindly feeling toward Harper, for he was learned, witty and amiable, but he was a vagrant of the most pronounced description, and some one caused his arrest as a vagrant. He was convicted and condemned to be sold for the shortest time for wliich a bid could be ob- tained at public auction. George AVhite cried the sale throughout the town, with many commendations of the goods to be sold. A large concourse gathered at the auction block, nearly all of whom had a kindly feeling for Harper, who had got sobered up while in confinement, and we all appreciated that he was possessed of high and keen sensibilities when sober. The constable offered the victim for sale, and when he called for bids George White bid twenty-five cents for a month's service. Xo other bid being- received he was struck off to the negro, who walked up with a satisfied expression of countenance to take posses- sion of the goods; but just as George was about to lay his hand on Harper the latter made a bolt to the ring of spectators which surrounded the place, when an opening- was immediately made in it through Avhich he ran, when it was closed up before George could pass through in pursuit of his fleeing chattel. Harper took refuge among his friends who concealed him and kept him in hiding for a week or two while the pur- chaser was vainly seeking him, when some one gave him the quarter back, for which he disclaimed ownership, and the vagrant reappeared unreformed and pursued his old course of life. The disease had become so fastened upon him that it seemed absolutely uncontrollable. He actually sold his body to a doctor of whom he was begging for half a dollar, who, with the hope of disgusting him, offered the money JUDGE CATON"S ADDRESS. 247 for his body for dissection, who assured him that if he gave liim the money he would freeze to death before morninf^. Harper eagerly embraced the offer, actually signed the deed for his body after death, assuring the doctor that he expected to outlive him. After a number of years he finallv disappeared from Chicago. The next we heard of him in i^altimore, where with six other reformed drunkards he formed the Washingtonian society and distinguished liimself as a lecturer on temperance, the fame and influence of Avhich fifty years ago spread throughout tlie United States. Through the influence of that society many drunkards were reformed and became distinguished lecturers in the temper- ance cause. Edward Casey was the onl}'- lawyer that I distinctly re- member who joined us liero in 1833, but Alexander N. Ful- lerton may have come in that year. In 1834 our bar was augmented by the arrival of a very considerable number, several of whom became distinguished, but it is beyond my present purpose to name them now. For a score of years thereafter the number was increased only by immigrants, but later by native-born Chicagoans. How many, you Icnow better than I do. Xow it will compare favorably both in numbers and ability with any bar in the republic, and as I trace back the thread of memory to the very beginning I may feci a just pride in noting its advancement from that time to this, not only in learning but in reputation. If I contemplate the past with great satisfaction, I anticipate the future with high hopes. I feel that I may appropriate to myself some portion of the credit that may attach to the bar of Chicago, and should feel as a personal reproach any stigma which may ever fall upon it. Eemember, gentlemen, that the highest integrity can alone maintain that reputation which secures to the bar the public confidence which has selected from our profes- sion so large a proportion of the public men who have so nobly maintained the institutions of our republican gov- ernment. So long as we shall deserve it, from our ranks 248 EARLY BENCH AND BAR OF ILLINOIS. will be selected a large proportion of those who shall make and those who shall administer the laws of the land; and I may be permitted now to wish this association a long and prosperous career, and its individual members long, suc- cessful and happy lives. The appreciation by a later generation of a somewhat active and extended ]irofessional life is the sweetest consola- tion an old man can have. Gentlemen, I thank you. WHO GUIDED THE MORMONS TO SALT LAKE. A DESCEIPTIOX OF THE GREAT SALT LAKE COUNTRY AND HOW IT BECAME I>'HABITED BY THE MORMOXS. In the latter part of ISi-t I received a copy of " Fremont's First and Second Expeditions to and Beyond the Kock\^ Mountains," which I read with great interest. In his sec- ond expedition he gave an account of the Great Salt Lake, now called Utah, which he visited on his way west, which was the first authentic account ever published of that lake and region, and on his return he discovered the Utah Lake, which is a fresh water lake lying about twenty miles south of the salt lake and which discharges its fresh water into the salt lake, of which, and the surrounding country, he also gave an account. He gave a very good account of his observations m.ade in what may be called the Utah Yalley, which suggested the great possibilities for the future of a civilized settlement in that valley. That Avas the first session of the Legislature after the murder of Joseph Smith, Avhich had occurred in the previous June. When the Mormons settled in Hancock county, they were petted and caressed by both political parties, as both Avanted to secure their votes. The favors thus shoAvered upon them undoubtedly made them arrogant and made them magnify their importance as a political factor in the State, and under this influence some of the Mormons committed acts of outrage upon the Gentiles, as they called eA^erybody not of their oAvn people. A portion of these Gentiles were friendly to them and defended them through thick and (249) 250 EARLY BENCH AND BAR OF ILLINOIS. thin; these were called Jack-mormons; one of whom, named J. B. Backenstos, they had elected to the Legislature. His special business was to look after their interests in that bod}'", and in the performance of this service he certainly had a very dilRcult task on his hands, as they had become as generally odious as they had been popular before, when both political parties were endeavoring to secure their votes; and now they vied with each other with equal zeal in their endeavors to oppress them. A number of the leading Mor- mons, headed by Brigham Young, were at the Capitol to assist and advise with Backenstos in his endeavors, more to protect them against hostile legislation than to obtain an}^ favorable legislation, which was manifestly impossible. In this state of things I met Backenstos one morning in the rotunda of the State House, when on my way to the Supreme Court room, and asked him how he was getting along in his efforts for his Mormon constituents; he replied that things looked very bad; that everybody was down on them; that both political parties were vieing with each other in their efforts to oppress them; that nobody would listen to reason or justice or even common humanity, and that they were already driven to extremities. I then had Fremont's report under my arm. It then first occurred to me that the Salt Lake country, in the midst of the Rocky mountains, would afford them a secluded retreat Avhere they could run things their own way without interference from the outside world for the next hundred years, and at his request I gave him the book when I had turned down the leaves at those places where the valley of the Salt Lake is described, and he took it to his constituents with my suggestions for their examination and consideration. At the end of perhaps two weeks, he returned me the book Avith the thanks of his elders, who, he said, were so favorably struck with my suggestion that they had already determined to send an exploring party to the valley of the Salt Lake the next spring, who would give it a thorough exploration, and if they should make a favorable report, they WHO GUIDED THE MORMONS TO SALT LAKE. 2")! would, as soon as possible, remove their people to and take ])ossession of that country. This was accordingly done; a favorable report was made by the exploring party and the removal was commenced and prosccutecl as rapidh' as that could be effected, under the leadership of Brigham Young. In this exodus the great bulk of the Mormons joined, though some of them who did not believe in the polygamy doctrine of Brigham Young refused to go, but remained in the east and formed a small community by themselves, where they and their descendants still remain without further persecution. About twenty years later, when overhauling a box of books for which I could not find room on the shelves of my library, I came across this same co])y of Fremont's report, which called to my mind the incident above related, and it occurred to me that here was an incident of sufficient historic value to entitle it to record among the archives of our State; so I wrote it out on the fly-leaf in this copy of Fremont's report as being the book which first suggested the removal of the Mormons to the Salt Lake Valley, and presented it to the Chicago Historical Societ}^ Every- body is aware that the Mormons claimed that they were first led to that retreat by a divine inspiration or interposi- tion, the truth of which I will not deny, but this book was the. instrument selected by the author of the inspiration to effectuate his purpose, for it served to select the place and to point out the road to it. I should have inserted these facts, although not strictly connected with the judicial history of the State, at an earlier place in this series, had I not known that Judge Moses, who Avas the librarian in charge of this book, Avas preparing an elaliorate history of this State, and assumed that he would deem it of sufficient importance to deserve a place in its history; but an examination of that work since its publica- tion shows that it is not there mentioned. A note just re- ceived from Judge Moses informs me that he recollects a few years ago that I called upon him, and at my request ho 252 EARLY BENCH AND BAR OF ILLINOIS. procured the book referred to and read the note on the fly- leaf to me; that he intended to insert it in his chapter on the Mormons, but that it was accidentally omitted; and that it will be inserted in a revised edition of his work. He regards the incident of historic value and worthy of especial mention. Chicago, April 19, 1893. /0^.,:/r V.:^^^<4^i>^ .> .^Jh^<^ ^■'>^ ^4;> xm'^ -^ ^:^:.-^:^-. ->-- C-,"^ :^)^^^:^t^-^f|^ -* W^^^s ^:j^'\ .v^^^^-- r ^^^v^- •^'^j)^<^?^^^- :'^yK^^^%m^- '^yKT-smr - -^r ^v^V >*► ^1' J^>I* :^.{='<^- -^i .^/ UNIVERSITY OF ILLINOIS-URBANA B.C366C COOS EARLY BENCH AND BAR OF ILLINOIS. CHGO 3 0112 025405215 1. *