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The Justice of the Peace
Docket Book
The Civil and Criminal Justice System in Early Illinois
In the early years of statehood, the justices of the Supreme Court of Illinois performed
the duties of circuit judges, traveling around circuits made up of several counties,
as defined by the legislature, and holding court at prescribed times.* These si
ttings of circuit judges were understandably infrequent, given the appellate duties of
the justices and the time required to travel the circuit. For example, the legislature
in 1823 directed that a justice hold court in Fayette County, part of the third
judicial circuit, on the third Monday in June and November. (69) Thus, until Shelby County
was created as a separate county in 1827, any resident of the Whitley Point community
wishing to to be heard b
y the Circuit Court would have had to travel to Vandalia
during one of those two terms during the year.
After Shelby County was carved out of Fayette in 1827, Shelby County was placed in
the second judicial circuit, and Justice Theophilus W. S
mith was assigned circuit
duties for this circuit by the legislature. Now a trip to the court would have been
shorter--to Shelbyville--but still too far for many people in the county to travel except to
bring actions involving what at the time would ha
ve been a
* Under the first state constitution, each county had a County Commissioners' Court, but these courts were administrative boards and lacked any civil or criminal judicial jurisdiction. (Inventory Of The County Archives Of Illinois,
No. 70, p. 54.)
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significant amount of
money. Reflecting that reality, the Circuit Courts were given jurisdiction over suits
at common law "where the debt or demand shall exceed twenty dollars." (70)
In 1835 th
e legislature modified the system by providing for the election of separate
Circuit Court judges, and thus relieved the judges of the Supreme Court from the
requirement that they ride the circuit. (71)
This modification did not change the fact
that citizens of Whitley Point would still have to travel approximately 15 miles to present
a cause to the Circuit Court at Shelbyville, and that this court would be open for
business only at certain specified
times during the year. In any event, the legislature changed its mind again in 1841, abolishing the office of circuit judge and again
requiring the Supreme Court justices to ride the circuit. (72)
For these reasons, most civil disputes and criminal matters were tried at that time
by local Justices of the Peace. Justices were elected by the voters within each district
(at least two districts per county), and served four-year terms. The justices
did
not have to be lawyers or have any legal training. But they could read the Illinois
statutes, and the more careful (or prosperous) among them could refer to secondary
works of instruction, such as Swan's Treatise, or
Asbury's Justice. (73)
A series of enactments of the legislature defined and refined their duties and powers. (99)
Their jurisdiction was defined to include al
l civil suits on notes or written or
verbal contracts, or amounts due for goods sold or work done, not exceeding $100.
Each justice was directed "to record, in a book kept for that purpose, the names of the
parties, the amount and nature of the debt su
ed for, the date and description of
the process issued, and the name of the officer to whom such process shall be delivered...." (75) Also, the justices were charged to "make a written memorandum" of any
order or
judgment in the same book, "and to file and safely keep all papers given him in charge." (76)
The justices were also given jurisdiction of certain tort claims pertaining to property--cases of
trespass, trover and conversion--but only those not exceeding $20. (77)*
* Probate matters were initially delegated to the County Commissioners' Court (1819), then given to a court of probate for each county (1821), and later assigned
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Proceedings before a Justice of the Peace were commenced by the justice's issuance
of a summons directing the defendant to appear at a stated time and place. The summons
could be served by a constable by reading it to the defendant, or by leaving a copy
at his or her usual place of residence. If the justice believed the plaintiff was in
danger of losing his debt or claim, the justice could issue a warrant directing the
constable to "take the body" of the defendant and "bring him forthwith" before the
justice; the defendant could then obtain release by giving bail as security for payment
of an adverse judgment. Witnesses could be summoned, and were entitled to 50 cents
for attending the trial, to be taxed with other costs of the suit.
On
the day appointed for trial, the justice would hear and determine the cause, give
judgment as appropriate and award costs. If the matter in controversy exceeded $20,
then either the plaintiff or the defendant had a right to demand a trial by jury,
in w
hich event the justice directed the constable to impanel a jury of "six men, or twelve,
if a less number be objected to." Each juror was entitled to be paid 25 cents. If
the judgment was in favor of the plaintiff, costs were assessed against the defenda
nt;
if the plaintiff failed to prove his case, then costs were assessed against the plaintiff. (78)
The Act provided specifically for arbitration. Parties to a suit were given the "privilege
of
referring the difference between them to arbitrators, mutually chosen by them,"
who would examine the evidence, make an award, and deliver it to the justice, who
would then enter it on his docket as a judgment. (
79)
If the defendant believed that he or she could not have an "impartial trial" before
a particular justice, he or she could so swear, in which case the papers would be
transferred to the nearest other justice, who would then proce
ed with the trial.
If after the case was determined any party wished to appeal, he or she could do so
within twenty days by filing a copy of the judgment
_________
to special probate justices of the peace (1837). The County Court was not created until 1848, and then the county judge was given only the same civil and criminal jurisdiction as Justices of the Peace. (Inventory Of The County Archives of Illinois,
No. 70, pp. 60, 149 150.)
(Page 35)
with the clerk of the Circuit
Court of the county, along with a bond to cover the amount of the judgment and all
costs. The clerk would then issue a supersedeas enjoining the justice from any further proceedings
in the suit and also an order set
ting the matter for hearing before the Circuit Court.
When causes were appealed from a justice to the Circuit Court, the latter court's function was to try the case de novo, with the justices' judgment below given no weight. (80)
Justices of the Peace were also given criminal jurisdiction over "all cases of assaults,
and of assault and battery, and affrays." (81) The justice could initiate a pr
oceeding
by issuing a warrant to the constable for arrest of any person charged with such
an offence. Then jurors would be summoned--six in number unless the defendant asked for
twelve. If the defendant was found guilty of one of these offenses, the fi
ne was
not less than $3 nor more than $100. Following a conviction, the justice would issue
an execution against the defendant for the amount of the fine and all costs. Contrary to
prevailing modern criminal practice, convicted parties could appeal to
the Circuit
Court, in which case they would be entitled to a new trial by jury. (82) Also, if the
injured party was dissatisfied with the verdict of the jury given before the justice, he
or she could "
remove" the case to the Circuit Court, post a bond, and have the case
retried in the Circuit Court by a jury, which could find a previously-acquitted party
guilty (which today would violate rules against double jeopardy), or increase the previous
fine. (83)
The justice was compensated for his labors by collecting fees from the non-prevailing
parties, and the fees were prescribed in detail by the legislature. The cost of a
summons or a warra
nt, for example, was 18-3/4 cents; administering an oath was 6-1/4
cents; issuing an execution was 25 cents. For each day's trial, the justice earned $2.00.
Similarly the constable was permitted to charge for his services--25 cents for serving
warrants
or summons, and so on. (84)
The particular amounts charged for judicial services appear to be derived from the
coinage of the time. Thus, charges were amounts that could easily be paid by combi
ning
the old Spanish or Mexican silver coins then in circulation--which were dollars, half
dollars,
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quarters, eights (12-1/2 cents called "bits"), and sixteenths (6-1/4 cents called
half-bits or "picayunes"). (85) For example, the cost of a summons--18-3/4 cents--was one
and a half bits. The cost of a
dministering an oath--6-1/4 cents--was a half bit.
Although this legal structure for dispute resolution was modified somewhat over the
years, it was in place in 1834 when the first cases were recorded in the docket book
by W. G. Haydon, J.P.
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