Biographical and Pictorial History of Arkansas, Chapter VI *********************************************************** Submitted by: Joy fisher < > Date: 14 Dec 2007 Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm *********************************************************** BIOGRAPHICAL AND PICTORIAL HISTORY OF ARKANSAS. BY JOHN HALLUM. VOL. I. ALBANY: WEED, PARSON'S AND COMPANY, PRINTERS. 1887. Entered according to act of Congress in the year eighteen hundred and eighty-seven, BY JOHN HALLUM, In the office of the Librarian of Congress at Washington. BIOGRAPHICAL AND PICTORIAL HISTORY OF ARKANSAS. HISTORICAL. CHAPTER VI. SYNOPTICAL HISTORY OF ARKANSAS FROM THE ACQUISITION OF LOUISIANA TO THE ADOPTION OF THE CONSTITUTION OF 1836. CONGRESS, by act of the 26th of March, 1804, divided Louisiana and created two territorial governments. The southernmost was called the territory of Orleans, the remainder the territory of Missouri. By this act Arkansas was embraced in the territory of Missouri. On the 8th of April, 1812, the territory of Orleans was admitted into the Union as the State of Louisiana, and on the 4th of June the same year, the territorial government of Missouri was created and the old Spanish parish of Arkansas was embraced in the new territorial government. The integrity of the territory embraced in the old parish was, during all these mutations, maintained until the 13th of December, 1813. On that date the territorial legislature of Missouri created the county of New Madrid, and extended it down the Mississippi to a point directly east of the mouth of Little Red river; thence to the mouth of Red river; thence up Red river to the Osage purchase; thence north to the Missouri line. At the same time the county of Lawrence was created by "cutting off a part of Arkansas county" On the 15th of December, 1818, the legislature of Missouri created three new counties out of the south-western portion of Arkansas county, to-wit: Pulaski, Clark and Hempstead. On the 2d of March, 1819, the territorial government of Arkansas was created by cutting off these five southern counties and the major part of New Madrid county from the territory of Missouri. The act of congress creating the territorial government extended over it all the laws of Missouri of a general nature in force on the 4th of July, 1819, until the same should be altered or modified by the new government thus created. The organic act created the offices of governor, secretary and three judges of the superior court, all to be appointed by the president and confirmed by the senate. A provisional government was created, subsidiary to the regular territorial government it was to provide for and call into being, after which it was to cease. This provisional government was clothed with legislative power vested in the governor and three judges of the superior court - a strange union of the executive, judicial and legislative functions of government in the same men. To the author this has always appeared a strange anomaly, a curious inconsistency and contradiction of great fundamental principles underlying our organic laws, both State and Federal. The framers of our federative system manifested great solicitude to keep these functions distinct, independent, co-ordinate. But the precedent was established in the celebrated ordinance of 1787, for the government of the territory of the United States north-west of the Ohio and the first territorial government ever organized by congress, and it has, I believe, been uniformly followed. James Miller was the first governor, Robert Crittenden the first secretary, Charles Jouett, Andrew Scott and Robert P. Letcher the first judges of the superior court; all appointed by President Monroe. That ancient trading post, established by the French in 1721- Arkansas Post - was designated as the capital until the legislature should select some other site. After the provisional government had performed its functions, the legislative department was divided into two branches: first, a house of representatives chosen by the qualified electors of the territory, not to exceed nine until the white male adult population exceeded five thousand; second, a legislative council, not to exceed one from each county, to be elected for a term of five years, members of the house being elected for two years. Governor Miller appears to have taken but little interest in the affairs of the territory, and to have been absent much of the time during his four years' administration. The secretary was ex-officio governor in the absence of the chief executive. Robert Crittenden as " acting governor" issued his proclamation and convened the provisional government on the 3d of August, 1819. On that day six laws were enacted and promulgated, and in the evening of the same day the provisional legislature adjourned sine die. One of these laws extended the laws of Missouri of a general nature over the jurisdiction of Arkansas, which was entirely unnecessary because congress had so provided in the organic act. The offices of auditor and treasurer were created, and the salary of each was fixed at $300, on which an improvement has subsequently been engrafted, but not during our territorial pupilage. By another act of the provisional government the territory was divided into two circuits, and the practice in these courts regulated. The counties of Arkansas and Lawrence constituted the first circuit; Pulaski, Clark and Hempstead the second; and three terms per annum were to be held in each county. The governor was authorized to appoint and commission two judges to preside over these circuits for a term of three years. This assumption of power was an invasion of the jurisdiction of congress and the constitutional prerogatives of the president and senate, to appoint the Federal judiciary, and the acts of the provisional government to this extent were ignored by the national government. In this connection, as a matter of justice to the members of the provisional government, it ought to be stated that a literal interpretation of the act creating the territorial government prescribing and defining its powers seems to warrant the power assumed. This act conferred on the circuit judges power to appoint clerks of court, and directed the governor to appoint and commission "a suitable person learned in the law as circuit attorney for each of the circuits established." Here we may state, to avoid confusion, that the judges of the "superior courts" were assigned to the circuits, and that when the circuits were increased to four, congress authorized the appointment of a fourth judge to meet the requirement. As a matter of interest to lawyers of this generation the author copies from the seventh section of the act creating the territorial government defining the jurisdiction of the" superior courts." "The superior courts shall have jurisdiction in all criminal cases, and exclusive cognizance in all capital cases, and shall have and exercise original jurisdiction concurrently with the inferior courts, and exclusive appellate jurisdiction in all civil cases in which the amount in controversy shall be $100 and upwards." By a strange casus omissus in the territorial legislation of Missouri, the county of Arkansas was not included in any judicial circuit, and her judicial machinery consisted alone of justices' courts and a court of common pleas. Probably it was too remote and inaccessible - there were no roads and no bridges spanning the streams then. To obviate this difficulty congress, in 1814, authorized the president to appoint an additional judge for the territory of Missouri, who should hold his office for four years and reside in or near the village of Arkansas. We must not confound the village of Arkansas with the Post of Arkansas; these villages were in close proximity, but located on opposite sides of Arkansas river, the former being the county seat of Arkansas county in those days. This primitive legislation was attested under the following form of certificate: "In testimony whereof, we, Robert Crittenden, secretary of the territory of Arkansas, and exercising the government thereof, and Charles Jouett, Robert P. Letcher and Andrew Scott, judges of the superior court, in and over the said territory, have hereunto set our hands at the Post of Arkansas, on the third day of August, in the year of our Lord, one thousand eight hundred and nineteen, and of the independence of the United States the forty-fourth." ROBERT CRITTENDEN. C. JOUETT. ROBERT P. LETCHER. ANDREW SCOTT. This certificate was added to each separate act of legislation. How truly and pathetically has General Albert Pike said: "Arkansas has done nothing to preserve, in a permanent form, the names and fame of her worthy sons from oblivion." These old laws and all connected with them ought to be guarded and preserved with profound veneration. But as the Hon. James A. Gaither, of Kentucky, one of the collateral relations of Judge Thomas J. Lacy, deceased, says in a recent letter to the author: "In this democratic country we run back to the hundredth generation of horses and bulls when we don't know who our grandmothers were." The first legislature elected by the people convened the 1st of February, 1820, at Arkansas Post, and remained in session five months, and on the 1st of July adjourned over until the 1st of October. Joseph Hardin was elected speaker of the house of representatives, and Edward McDaniel, president of the council. At that time the law required an attorney to reside two years in the territory before he could apply for license to practice his profession. The first legislature passed a special act of grace exempting Rufus P. Spalding from this long probation. In 1821 the law was repealed. The county seat of Pulaski was located at Cadron. William E. Woodruff was, by resolution, appointed public printer to the territory, a position long and honorably held by the old pioneer. Mr. Woodruff told the author, many years ago, that he shipped his little printing press down the Ohio and up the Arkansas river to Arkansas Post in a canoe in 1819; that the first issues of the paper were about twelve inches square, and his first domicile a rude board shed. This little paper was the mother of the flourishing Gazette. At the adjourned session in October, Amos Wheeler, in behalf of himself and others, memorialized the legislature, praying the removal of the seat of government to "the Little Rock," and as inducement offered many facilities "for the use of the territory and the general assembly." The memorialists were landed proprietors. On the 18th of October, 1820, the legislature passed an act removing "the temporary seat of government to 'the Little Rock,'" and on the same day by joint resolution instructed the governor to demand from the proprietors all the facilities promised. This legislature also authorized Pulaski county to build a jail, not to cost exceeding $1,000, and to build a court-house not to cost exceeding $400. That political corporation has recently appropriated $80,000 for these purposes. Miller, Crawford, Phillips and Independence counties were created. Crawford was cut off of the west end of Pulaski. The code duello was then a part of the lex non scripta of the frontier, to which every gentleman was expected to give adhesion when circumstances required it. A moral cyclone seems to have struck this legislature which found eccentric manifestations in a large resolution requesting all justices and other civil officers of the territory to take special notice and bring to justice all offenders against Sabbath laws. This was supplemented by "an act to suppress duelling," by which it was made the duty of justices and coroners "to inquire into the cause of death of any person killed in a duel, or who dies of a wound received in a duel." And, "if the justice or coroner in his certificate shall say that the death was occasioned by a wound (which he shall describe), that he has reason to believe was received in a duel with J. H., it shall be good evidence for a grand jury to find a true bill." History has left no record as to how often J. H. violated the law, or how many antagonists he killed or wounded, but all along the line we do find that the law was a dead letter. That remnant of barbarism, the old casa law, imposing imprisonment for debt, was then in force in the territory, and this legislature wisely and humanely mitigated its rigor by extending the prison bounds of the debtor to an area of fifty acres adjoining the jail, and if he would feed himself the prison bounds were extended to the whole township in which the jail was located. A tax on land was imposed amounting to $1.50 per hundred acres, and other species of property in proportion. Circuit courts were abolished and common pleas courts substituted with three judges in each county to compose the court, whose sole qualification required by the act was that each judge "should be a respectable householder." The folly and ignorance in which this act originated soon became manifest, and the succeeding legislature repealed it and restored the old system, to the organic basis required by congress. This session established a precedent for payment of members at $4 per diem, the speaker of the house and president of the council received each $5 per diem, and mileage was given at the rate of $3 for every twenty-five miles traveled by the members. The second legislature convened at Little Rock in October, 1821. Wm. Trimble was elected speaker of the house, and Sam. C. Roane, president of the council. Common pleas courts were speedily abolished and circuit courts were restored, three terms of the latter being required in each county annually. The tenure of office with circuit judges was reduced from four to two years, and another attempt was made to confer the appointing power on the governor, but it was an invasion of national authority and was not recognized when brought to the attention of congress. My authority for this statement is found in the fact that all the territorial judges were appointed and commissioned by the president, and that the judges of the superior courts were assigned to the circuits as they were created. This legislature authorized the governor to borrow $10,000 for the benefit of the territorial treasury, but no such power was conferred by the organic act, and capitalists stood aloof; not a dollar could be obtained on the basis of such authority, and the succeeding legislature repealed the act. An act was passed declaring all future elections shonld be held viva voce, and I presume such continued to be the law during territorial pupilage as I have been unable to find where the law was repealed. The territory was again re-districted and divided into three circuits, and the judge of each was required to reside in his circuit. This legislature set the bad example of granting legislative divorces, and the precedent was followed in numerous instances by this and subsequent legislatures. It was a clear invasion of judicial functions by the legislative department. Another precedent of doubtful policy was established at this session, and followed in a great number of instances by subsequent legislatures in the appointment of commissioners to locate county seats, with little or no restraint on the exercise of arbitrary power over the matter. The preceding legislature enacted a law requiring the superior courts of the territory to be held in each judicial district, the present legislature repealed the law, and ordained that these courts should be held at the capital. Three hundred copies of the session laws were ordered published and distributed to the officers of the government. Governor Miller seems to have been absent during the entire session, as all the published acts were approved by Robert Crittenden as "acting governor." The third session convened at the capital on the first Monday in October, 1823, and Terrence Farrelly was elected speaker of the house, and Sam. C. "Roane president of the council, and Robert Crittenden was again "acting governor" during the entire session. The office of prosecuting attorney was restored; his compensation was fixed at $300 and the fees of office, and he was required to represent the people in all the superior courts held in his circuit. Sheriffs were released from giving special bond for the collection of taxes. Another practice act was passed prescribing the practice in the circuit and superior courts. Rape was made punishable with death. The law limiting real actions was repealed, and fifteen years was given in which to bring a real action. Three hundred copies of the session laws were ordered printed and distributed. The fourth session convened at the capital on the 3d of October and adjourned on the 3d of November, 1825. Robert Bean was elected speaker of the house, and Jacob Bark-man president of the council. John Quincy Adams, by choice of the house of representatives, succeeded President Monroe in 1825, and Governor Miller's official head fell into the basket to make room for Georore Izard, as governor of the territory of Arkansas. During this era of territorial pupilage political and partisan excitement ran high. Chester Ashley and Robert Crittenden were the acknowledged chiefs and leaders of the respective parties. Both possessed great abilities and were worthy of the clans they led. There was no neutral ground in the area controlled by these leaders. When a stranger moved into the jurisdiction he had to take sides. Many political duels resulted, which will be noticed in these memoirs. Prominent whigs and prominent democrats were now equally and strongly interested in removing the stringent disabilities consequent on having been either priucipal or factor in a duel, and the act was repealed at this session. Our exemption laws originated with this legislature in an act exempting $50 worth of personal property in the hand of the head of a family from seizure for debt. And with this session also originated the statutory presumption of a person's death after an unexplained absence of live years. Under this statute a live man's estate was administered on and disposed of, after which he returned and demanded restitution from the judge who had sanctioned the presumptive procedure, and the judge gave him letters of administration on his own estate as the only way out of the dilemma. At the end of 1825 the counties numbered thirteen: Arkansas, Conway, Chicot, Crawford, Crittenden, Lawrence, Miller, Hempstead, Independence, Pulaski, Izard and Phillips, and to meet the necessities constantly recurring from the creation of new counties, the territory was again re-districted and divided into three circuits. Public necessity demanded four judges. The legislature memorialized congress asking for another judge, having by this time learned that the national government would not tolerate an attempt to supplant its authority over the judiciary. The fifth session convened on the 1st and ended on the 31st of October, 1827. Ambrose H. Sevier was elected speaker of the house and Daniel T. Witter president of the council. The citizens of Little Rock were exempted from working on roads at a greater distance than ten miles from town. The territory was now divided into four judicial circuits, and William Trimble, Benjamin Johnson, Thomas P. Eskridge and the newly appointed James Woodson Bates, were assigned to the circuits in the order named. Judge Bates was appointed under a special act of congress in response to the memorial sent up by the legislature of 1825. He was an able lawyer, jurist and polished writer, and was called "The Junius of the West." He possessed charming conversational powers and would sit up all night entertaining his auditory. His professional brothers also called him "The Chesterfield of America." As a writer he had no rival in the territory until the star of General Albert Pike ascended to the zenith never to set. A special session of the legislature was convened on the 6th and adjourned on the 22d of October, 1828. John Wilson was elected speaker of the house and Edwin L. Clark president of the council. At this session the judicial districts were again remodeled, and if any of the judges failed to comply with the provisions of the act the governor was requested forthwith to report them to the president. A memorial was addressed to the secretary of war setting forth Indian depredations in the south-west on the defenseless inhabitants of Miller county, and in the language of the memorial "calling loudly on the general government for more adequate protection." The short-lived county of Lovely was abolished and the territory embraced in it attached to the county of Washington. A part of the land acquired by the Cherokee treaty was attached to Izard, Independence, Conway and Crawford counties. Conway county gave the territorial legislature much trouble about her county site, county buildings and county lines. Conway always came to the front with her grievances. In March, 1829, President Jackson appointed John Pope, of Kentucky, governor, who made an eminently wise and conservative executive. The sixth session convened on the first Monday in October, 1829. The first act passed under Governor Pope's administration demonstrated his claims to popular favor. With one broad democratic sweep it declared the offices of prosecuting attorney, clerk of the superior court, clerks of the circuit courts, sheriffs, coroners, constables and county surveyors elective offices. The machinery for holding ejections and punishing fraudulent voting was provided by the same act. Governor Pope's signature approving this act is the first record we have of him. This legislature made another great advance by enacting the first law ever made in the territory in restraint of gaming, and declaring all gambling contracts void. Before this law prohibited it, faro banks and other species of gambling were indulged in the presence of the courts. We learn from General Pike's autobiography that a faro bank was run in the court-house at Van Buren whilst the court was being held in an adjoining room. The third act by this reform legislature established county courts in every county, and conferred probate powers over estates, guardians and administrators. In fact this court then exercised all the powers which our county and probate courts now exercise. The office was made elective. An act supplementary to the judicial system, re-districting the territory and re-assigning the judges, was passed. Judges Trimble, Johnson, Eskridge and Bates, in the order named, were assigned to their respective circuits. An act of this legislature imposed the death penalty against persons found guilty of stealing horses, mules or negroes. In February, 1829, congress amended the organic act of the territory, by delegating to the territorial legislature the power to elect justices of the peace, and in November, 1829, the legislature memorialized congress and asked that the power to elect justices of the peace be conferred on the electors of each township. Robert Crittenden was secretary of the territory from its organization in 1819 to the accession of President Jackson in 1829. William S. Fulton succeeded Crittenden as secretary in 1829, and on the 9th of March, 1835, succeeded Governor Pope as governor of the territory. The seventh session of the territorial legislature convened on the 3d of October, 1831. Wm. Trimble was elected speaker of the house, and Charles Caldwell president of the council. Two acts stand out conspicuous in the history of this legislature; one taxes "clock-peddlers" $30; the other is headed "An act to regulate attorney's fees," and it provides a free list, and prohibits any attorney, solicitor, prosecutor or district attorney from demanding any fee, tax, docket or record fee in any declaration, judgment, bill, decree or demurrer. An act was also passed giving petit jurors power to assess fines and punishments in criminal cases, and gave the defendant after conviction the right to say whether the judge or jury should assess his punishment. A new apportionment of legislative representation was made at this session, giving one representative to every five hundred free white male citizens, and after the census of 1833 the governor was authorized to issue his proclamation declaring and fixing the representation. The politician and political economist of to-day might add an important lesson to their store of knowledge by consulting a memorial to congress asking an additional $1,000 to defray the expenses of this and an extra session, for the alleged reason that the $5,000 appropriated for that purpose had been exhausted. The eighth session convened on the 7th of October, 1883. John Wilson was again elected speaker of the house. This session voted $500 to Robert Crittenden as extra compensation for services rendered by him in going to Washington in 1820 to promote special legislation for the territory. It has handed down a legal curiosity in the shape of an omnibus divorce bill, severing the marriage tie between eleven couples in one act. The ninth and last territorial legislature convened on the 5th of October, 1835, and adjourned on the 16th of November. John Wilson was elected speaker of the house, and Charles Caldwell president of the council. Conspicuous and forever memorable in the history of our State is the act of this session calling a constitutional convention, which convened on the 4th of January, 1836. John Wilson was elected president of the convention, and Charles P. Bertrand, secretary. There were many lawyers in that convention who were either then or afterward became distinguished, notably James Woodson Bates, Thomas J. Lacy, Sam. C. Roane, Andrew Scott, William Cummins, Absalom Fowler, Grandison D. Royston, Townshend Dickinson and David Walker. The State was admitted on the 15th of June, 1836. The preamble to the act of admission recites the population at forty-seven thousand seven hundred, and declares the State entitled to one representative in congress. Archibald Yell was the first representative in congress from the new State. Governor William S. Fulton and Ambrose H. Sevier were the first senators in congress. Governor Fulton was re-elected in 1840, and died before the expiration of his second term in the senate. Thomas J. Lacy, Townshend Dickinson and Daniel Ringo were by the legislature elected the first judges of the supreme court. The first legislature under the new State government incorporated the State and Real Estate Banks, both of which institutions have proved an unmitigated curse to the people of the State and her good name. Colonel Ben. T. DuVal says of these banks: "The debts created in their establishment have been disastrous in the extreme. They have hung like a cloud over the fair name of the State, and have obstructed its development from the beginning." A joint committee of the legislature in 1842 having under consideration the management of the Real Estate Bank, in their report employ the following language: "All the above facts having been duly considered, your committee unhesitatingly express it as their opinion, that the conduct of the managers of the Real Estate Bank, from its earliest commencement to the present time, has been distinguished by a series of acts in disregard and open violation of its charter. "Alike indifferent to the restrictions of its charter, its faith to the State, the honor and credit of the institution, and of the consequences which might result to the community, influenced principally by one motive, and one only, that of appropriating to themselves and the stockholders generally the effects of the bank." But it is not within the scope of this work to go into the details of this unfortunate institution.