Draft of an article published in 65 Miss. L.J. 99-170 (1995)

Mississippi Courts 1790-1868
by Michael H. Hoffheimer⁽¹⁾

Introduction. . . . . . . . . . . . . . . . . . . . . . 3

I. Courts in the Mississippi Territory (1790-1817). . .4

II. Courts under the Constitution of 1817. . . . . . .25

Supreme Court. . . . . . . . . . . . . . . . . . 29

Circuit Courts. . . . . . . . . . . . . . . . . .31

Court of Chancery. . . . . . . . . . . . . . . . 36

Probate Courts. . . . . . . . . . . . . . . . . .38

County Courts. . . . . . . . . . . . . . . . . . 40

Justices of the Peace. . . . . . . . . . . . . . 43

Courts Martial. . . . . . . . . . . . . . . . . .47

Gaps and Loopholes. . . . . . . . . . . . . . . .51

III. Courts under the Constitution of 1832. . . . . . 54

High Court of Errors and Appeals. . . . . . . . .56

Circuit Courts. . . . . . . . . . . . . . . . . .61

Superior Court of Chancery and Inferior Courts

of Chancery. . . . . . . . . . . . . . . .67

Courts of Probate. . . . . . . . . . . . . . . . 75

Criminal Court. . . . . . . . . . . . . . . . . .78

Boards of Police. . . . . . . . . . . . . . . . .80

Justices of the Peace. . . . . . . . . . . . . . 81

Mayor's Courts. . . . . . . . . . . . . . . . . .83

Courts Martial. . . . . . . . . . . . . . . . . .85

IV. Courts during and after the Civil War. . . . . . .87

County Courts. . . . . . . . . . . . . . . . . . 93

Epilogue. . . . . . . . . . . . . . . . . . . . . . . .97

Mississippi courts and lawmakers regularly confront questions about the proper powers and limits of the Mississippi state courts.⁽²⁾ Understanding the history of state court jurisdiction would often help answer such questions,⁽³⁾ but there is no good discussion of the older court systems in Mississippi, and many of the primary legal sources are not easy to find.⁽⁴⁾

The purpose of this Article is to describe the evolution of the legal organization of territorial and state courts in Mississippi from the establishment of the Mississippi territory in 1790 up to the time of the adoption of the post Civil War Constitution of 1868.⁽⁵⁾ Mississippi experienced several forms of government during this period, adopted and amended two state constitutions, and attempted to sever legal ties to the United States. Despite important changes to the courts, the structure of the local court system exhibited remarkable legal continuity, and many of today's jurisdictional problems have their roots in the earlier court systems.

I. Courts in the Mississippi Territory (1790-1817)

The Articles of Confederation (1777) did not expressly grant the central government authority to hold or administer lands apart from the constituent states, nor did the Articles specifically prohibit such federal territorial government.⁽⁶⁾ The drafters may have assumed that all land would be held as part of one of the states;⁽⁷⁾ nevertheless, under the Treaty of Paris (1783), Great Britain ceded to the United States (not to individual states) the western territory when Britain acknowledged the middle of the Mississippi River as the boundary of the United States.⁽⁸⁾ By this treaty Britain conveyed territory (to the extent it had the power to do so⁽⁹⁾) that would eventually comprise the states of Kentucky, Tennessee, Ohio, Indiana, Illinois, Alabama; and the Michigan Territory, recognized as part of the United States under the Treaty, included land that would become the bulk of the state of Mississippi. The treaty did not, however, include the stretch of the Gulf Coast, then part of Spanish Florida, which would be seized by the United States in 1810 and ceded by Spain (only after Mississippi was admitted as a state) in 1819.⁽¹⁰⁾

The first federal law to govern the western territory, the Northwest Ordinance,⁽¹¹⁾ provided the model for local governments throughout the new territories. Adopted under the Articles of Confederation in 1787, the Northwest Ordinance established a provisional government upon the territory north of the Ohio,⁽¹²⁾ expressly imposed the common law,⁽¹³⁾ and provided for the appointment of federal officers, including "a court, to consisted of three judges, any two of whom to form a court, who shall have a common-law jurisdiction."⁽¹⁴⁾ Until the creation of a General Assembly, the judges together with the Governor also had legislative powers.⁽¹⁵⁾ The General Assembly was granted "authority to make laws in all cases for the good government of the district, not repugnant to the principles and articles in [the Northwest] ordinance."⁽¹⁶⁾

Government for the first southern territory was established in 1790, after the adoption of the United States Constitution.⁽¹⁷⁾ Legislation established one district south of the Ohio out of land ceded by North Carolina and provided:

the government shall be similar to that which is now exercised in the territory northwest of the Ohio; except so far as is other wise provided in the conditions expressed in. . .'An act to accept a cession of the claims of the State of North Carolina, to a certain district of western territory.'⁽¹⁸⁾

The exception, cross-referred so elliptically, was the federal guarantee that no emancipation of slaves would take place in the Northwest.⁽¹⁹⁾

Further legislation in 1798 establishing the Mississippi Territory was similar, but contained two significant differences. It authorized the establishment of a government in the form that now existed in the Northwest Territory, and (as now permitted under the Constitution⁽²⁰⁾) it granted the President powers to effectuate the legislation and to appoint territorial officers.⁽²¹⁾ By the time the Mississippi Territory was established, Congress had authorized a single territorial judge to hold court in the absence of others.⁽²²⁾

Only one of the three judges first appointed for the Mississippi Territory lived in the territory, and due to delays in appointments and difficulties in travel the other two arrived in the Territory only in 1799.⁽²³⁾ The first governor, Winthrop Sargent, felt that the legal void required emergency steps. Without any authority other than "imperious Necessity,"⁽²⁴⁾ he announced appointments of "conservators of the peace" to serve until the arrival of another judge would make it possible to commission them as Justices of the peace.⁽²⁵⁾ He ordered these conservators to keep the peace and to sit regularly to try misdemeanors as a Court of general Quarter Sessions of the peace. Two Conservators could sit as a sort of magistrate court to hear accusations of felony and were authorized--in disregard of the Constitution⁽²⁶⁾--to hold suspects for trial.⁽²⁷⁾ Already assuming that the three territorial judges were planning to sit as a Supreme Court of the Mississippi Territory, the governor ordered the conservators to confine such suspected felons pending trial by "the Supreme Court of the Territory."⁽²⁸⁾

The governor thus established an embryonic court system modeled on the court system in the Northwest Territory where he had served as secretary for over a decade.⁽²⁹⁾ Under the 1788 code for the Northwest Territory, each county had courts of quarter session (with criminal jurisdiction), courts of common pleas (with general civil jurisdiction), and probate courts.⁽³⁰⁾ Perhaps the governor felt obligated to duplicate the structure of those courts because of the Congressional mandate to establish "government in all respects similar to"⁽³¹⁾ that in the Northwest Territory.⁽³²⁾ Perhaps he was just most familiar with that organization. As chief executive, the governor stood on firmer legal ground in authorizing military courts in the absence of the judges--and the military courts were thus arguably the first lawfully established courts in the territory.⁽³³⁾

With the arrival of a second judge, the governor and judges could sit as the provisional legislature.⁽³⁴⁾ This provisional legislature provided that the judges would sit as a territorial Supreme Court with trial jurisdiction over serious crimes, appellate jurisdiction, and power to convene the grand jury.⁽³⁵⁾ Throughout the territorial period, the chief legal distinction was that between superior courts (made up of the territorial judges appointed by the President as authorized by Act of Congress) and inferior courts (made up of justices commissioned by the territorial governor). These various judges sat as different "courts" depending on the kind of case--and even the posture of the proceedings. The judges of the superior courts served for life; the justices of the inferior courts served for a term or at the pleasure of the governor.⁽³⁶⁾

Territorial legislation confirmed the governor's appointment of justices of the peace, and authorized the appointment of justices for Courts of General Quarter Sessions (with criminal jurisdiction) and for Courts of Common Pleas (with general civil jurisdiction).⁽³⁷⁾ The names and organization of the courts, patterned after the system in the Northwest, betrayed the influence of Blackstone and the extraordinary prestige enjoyed in Mississippi by English common-law precedent.⁽³⁸⁾ To be sure, there was no court of King's Bench, but the territorial judges sitting as the supreme court played the role of King's Bench--with superior, supervisory review by common-law writ process over all the inferior courts. Indeed, one of the judges of the supreme court explicitly compared the role of his court to that of the King's Bench.⁽³⁹⁾

The inferior courts were fully courts of record with broad jurisdiction.⁽⁴⁰⁾ At first justices were commissioned separately either as justices of the peace (with criminal jurisdiction) or justices of the common pleas (with civil jurisdiction).⁽⁴¹⁾ But from the start citizens often held commissions as both⁽⁴²⁾ and would sit as criminal and civil courts during alternate weeks,⁽⁴³⁾ with the same clerks and officials working for both courts.⁽⁴⁴⁾ It is no wonder that after the formation of counties, such justices when sitting in counties, were often referred to simply as county courts.⁽⁴⁵⁾ Most areas of the territory did not have sufficient population to warrant permanent local courts. But the more populous areas needed more permanent judicial institutions than were provided by itinerant panels of justices. Accordingly, as early as 1805, two years after the incorporation of Natchez, the legislature established a Mayor's Court, with jurisdiction over civil cases up to five hundred dollars.⁽⁴⁶⁾ This court's summary process against debtors proved, perhaps, too efficient, for a public meeting eventually denounced the court, and the grand jury even condemned it as a public nuisance;⁽⁴⁷⁾ consequently, its powers were cut back to collecting city fines (not exceeding fifty dollars), and cases that had been brought under its older, broader jurisdiction were transferred back to the county court in Adams county.⁽⁴⁸⁾

Jurisdiction of the superior territorial courts was further complicated when in 1804 Congress appointed an additional judge with territorial jurisdiction over the Washington District--and divesting the existing superior judges of jurisdiction in that district⁽⁴⁹⁾ and giving the superior court appellate jurisdiction over the new judge.⁽⁵⁰⁾ In 1810 Congress added a fifth territorial judge for the Madison District under similar terms.⁽⁵¹⁾ Although the territorial judges also sat as federal courts, the exact basis of their federal authority was never completely resolved.⁽⁵²⁾ By act of Congress in 1805, the territorial courts were given the same broad federal jurisdiction exercised by the district court in Kentucky.⁽⁵³⁾ By the same act, the Supreme Court was given appellate jurisdiction over territorial courts, but no cases were appealed from the Mississippi Territory.⁽⁵⁴⁾

Federal law that created the Mississippi Territory specifically imposed only the common law on the territory and granted the territorial judges "common law jurisdiction." Historians have suggested that Congress deliberately meant to omit equity jurisdiction.⁽⁵⁵⁾ Nevertheless, the territorial assembly bestowed equity jurisdiction on the superior territorial courts in 1802.⁽⁵⁶⁾ This equity jurisdiction was reconfirmed in 1807.⁽⁵⁷⁾ Mississippi thus early inherited the problematic distinction between law and equity, and as early as 1805 a party was arguing that an action should be dismissed because of an error as between law and equity.⁽⁵⁸⁾

Territorial legislation in 1807 reorganized the inferior and superior courts,⁽⁵⁹⁾ authorizing the governor to appoint five justices of the peace in each county. These justices (in panels of three) held the county court and the orphans' court,⁽⁶⁰⁾ with jurisdiction to probate wills, administer estates, record land conveyances,⁽⁶¹⁾ appoint guardians, settle estates.⁽⁶²⁾ These county courts also continued to exercise broad original civil and criminal jurisdiction as is evident from statutes regulating instruction to juries⁽⁶³⁾ and the entry and enforcement of judgments on verdicts.⁽⁶⁴⁾ The governor was authorized to commission the territorial judges to sit individually as criminal courts in their respective circuits or territories.⁽⁶⁵⁾ It is not clear from the statutes what jurisdiction the local justices retained, but territorial legislation explicitly confirmed the broad, general jurisdiction of the circuit court:

One or more of the said judges shall hold the said circuit courts for the counties aforesaid, respectively, and shall have full jurisdiction therein, of all actions and suits, real, personal and mixed, and causes, matters and things, arising under the constitution and laws of the United States, and ordinances and laws of this territory. . .and shall have all the power, authority and jurisdiction, in the said counties respectively, of justices of assize, nisi prius, oyer and terminer, and jail delivery.⁽⁶⁶⁾

In 1809 the circuit courts previously established for six counties had their names changed to "superior courts of law and equity."⁽⁶⁷⁾ The supreme court's trial jurisdiction was given to these superior courts, and the supreme court was abolished.⁽⁶⁸⁾ The individual territorial judges sitting as "superior courts of law and equity" for particular counties thus directly exercised supervisory jurisdiction over the county justices. This arrangement was probably not entirely satisfactory, for in 1814 the territorial judges (sitting in panels of two) were designated "The Supreme Court of Errors and Appeals"⁽⁶⁹⁾--with broad supervisory and appellate jurisdiction over the superior courts.⁽⁷⁰⁾ By the same act, county justices were divested of some original jurisdiction at law, and actions in which the amount in controversy exceeded fifty dollars were given exclusively to the superior courts of law and equity.⁽⁷¹⁾

By the time Mississippi would be admitted as a state, there was a fully developed, multi-level court system on its territory. Modified from the organization of the court system inherited from the Northwest Territory, the western Mississippi Territory established a system of parallel trial courts: inferior county courts of local justices sat with original criminal jurisdiction and limited civil jurisdiction; and superior territorial courts sat as trial courts with general jurisdiction with broad supervisory or appellate jurisdiction over counties justices. The same territorial judges, sitting in panels, exercised ultimate or supreme appellate court jurisdiction over the inferior and superior courts.⁽⁷²⁾ And even before statehood, the people in the territory had experienced a variety of courts of special jurisdiction--probate courts, orphan's courts, and courts martial.


II. Courts under the Constitution of 1817

Mississippi's first state constitution⁽⁷³⁾ divided state government into three branches, vesting the legislature with impeachment power,⁽⁷⁴⁾ and authority to expel members⁽⁷⁵⁾ and punish persons for contempt.⁽⁷⁶⁾ The legislature rather than the governor was given authority to establish and regulate courts martial in the militia.⁽⁷⁷⁾

The constitution preserved the territorial practice under which the legislature created and organized the court system. All judges, except justices of the peace, were to be elected by the legislature.⁽⁷⁸⁾ The constitution itself established only the supreme court, and gave the legislature the job of establishing other "superior and inferior courts of law and equity."⁽⁷⁹⁾ But the constitution's drafters obviously assumed that supreme court judges would serve individually as superior court judges, as had been the practice under the territory. The constitution specified that between four and eight superior court judges be appointed.⁽⁸⁰⁾ (The even number authorized for the superior bench makes sense in light of the constitutional prohibition against a judge sitting in a panel reviewing his own decision.⁽⁸¹⁾) All state judges, except justices of the peace, served during good behavior⁽⁸²⁾ but only to the age of sixty-five when they were barred from continuing to serve as judges.⁽⁸³⁾

The constitution provided that the state be divided into judicial districts (containing three to six counties). A superior court judge was to be appointed and reside in each district.⁽⁸⁴⁾ Such superior courts were given original criminal jurisdiction; they were also given original civil jurisdiction, but "only where the matter or sum in controversy exceeds fifty dollars."⁽⁸⁵⁾ (Justices of the peace were permitted jurisdiction over civil matters up to fifty dollars.⁽⁸⁶⁾) The superior court was required to sit at least twice a year in each county--though the superior judge for a district encompassing a particular county did not have to sit and judges could hold court for each other.⁽⁸⁷⁾

The drafters of the constitution already anticipated details of the judicial structure that they expected the legislature to establish, for in addition to the general authority given the legislature to establish superior and inferior courts, the constitution specifically gave the legislature power to establish "a court or courts of chancery, with exclusive original equity jurisdiction"⁽⁸⁸⁾ and power to establish probate courts in each county.⁽⁸⁹⁾

Supreme court. The legislature established--or, perhaps more accurately, legislatively confirmed the constitutional establishment of--the supreme court.⁽⁹⁰⁾ Legislation directed the court to sit in Natchez and gave it appellate jurisdiction over the circuit courts, chancery court, and probate courts:

The said supreme court shall have jurisdiction over and shall hear and determine all manner of pleas, plains, motions, causes and controversies, civil and criminal. . .which may be brought before it, from any circuit court of law, superior court of chancery, or orphans; court of any count in this state, either by appeal, writ of error, or supersedeas, or other legal means. . .⁽⁹¹⁾

At the same time, legislation cut back the wide ranging supervisory jurisdiction exercised by the territorial supreme court, specifically limiting appellate jurisdiction to the review of final decisions except as otherwise provided by statute.⁽⁹²⁾ Legislation gave the supreme court authority to promulgate court rules for itself and for the circuit courts but not for chancery court.⁽⁹³⁾ The supreme court had no general original jurisdiction,⁽⁹⁴⁾ but it acquired authority to try a few types of cases through specific legislation.⁽⁹⁵⁾

Circuit Courts. The legislature acted--as the constitution had implicitly assumed they would--to make each judge of the supreme court the circuit judge for the multi-county circuit in which he resided.⁽⁹⁶⁾ The legislature initially designated four circuits⁽⁹⁷⁾ and granted circuit courts broad original common-law jurisdiction. Though circuit jurisdiction was limited to "law" and to controversies of fifty or more dollars, the statute also vested in the court jurisdiction over everything not given to some other court:

The circuit court of law in the several counties of this state, shall have original jurisdiction of all suits and actions for the recovery of money, founded on any bond, bill, promissory note, or other written contract, covenant or agreement whatsoever, or on any open account where the matter in controversy shall be of the value of fifty dollars or upwards, and of all other civil suits and actions, real, personal and mixed, and all causes, matters and things arising under the constitution and laws of this state, not expressly cognizable in some other court, established by law; and shall have power to hear and determine all prosecutions in the name of the state. . .except such as may be exclusively cognizable before a justice of the peace, or in some other court of this state, or of the United States. . . And the judges of said courts. . .shall have authority to grant writs of habeas corpus, mandamus, certiorari, writs of error, and supersedeas, and all other remedial writs. . .⁽⁹⁸⁾

The amount in controversy was construed strictly, so a claim on a fifty dollar note that did not demand interest did not survive a demurrer.⁽⁹⁹⁾ Circuit courts were also given broad power to remove cases pending in county courts.⁽¹⁰⁰⁾ Even though the circuit courts were called superior courts of "law," and even though (as envisaged by the constitution) the legislature created a court of chancery, the legislature attempted to give circuit judges power to grant injunctions and writs of ne exeat.⁽¹⁰¹⁾

This jurisdiction to issue injunctions is the distant ancestor of the present statute that gives (or attempts to give) circuit courts authority to issue injunctive relief.⁽¹⁰²⁾ Because the legislature in 1821 had already given exclusive equity jurisdiction to the Chancery Court, and because the statute defining circuit court jurisdiction granted the circuit court general original jurisdiction "not expressly cognizable in some other court," it was problematic how equity jurisdiction might be conferred on circuit courts.⁽¹⁰³⁾

Because potential equity jurisdiction of circuit courts remains a live issue, it is worth asking exactly what the General Assembly meant to do in 1822 when it first attempted to give the circuit court power to grant injunctions. There are several possible interpretations. First, the legislation may have been a sort of blunder--the legislature may not have meant to affect the jurisdiction of courts at all--in which case the grant of power to issue an injunction might have been invalid.⁽¹⁰⁴⁾ Second, since the consolidation of legislation (including circuit court power to grant injunctions) came after the creation of chancery court jurisdiction, the legislative grant of authority to issue injunctions may have been intended to--or have had the effect of--giving circuit court and chancery court an area of concurrent jurisdiction. Third, the circuit courts may have acquired only an extremely limited authority to grant injunctions and writs of ne exeat until the dispute could be presented to the chancellor.

This third interpretation is supported by the consideration that there was only one chancellor for the entire state; thus cases requiring provisional injunctive relief would have been left without any remedy at all when they arose some distance from the chancellor. Language in the statute supports this third interpretation, for the legislature specified that such writs be "returnable to the court of chancery, where the same is cognizable. . ."⁽¹⁰⁵⁾ The reference to "writs of" injunction may also suggest the legislature envisaged the process initiating such relief in analogy with the common law writs: such an injunction presumably operated like either a peremptory writ--that is, it would order a party to do (or not to do something), but the party could subsequently appear and challenge the order. In effect, this gave circuit courts power to grant relief comparable to a temporary restraining order, but the requirement that process be returnable in chancery assured that the case would proceed in a court of equity. This equitable power given to circuit courts may have been required by the exigencies of a day when one chancellor could not possible respond to the need for urgent relief at the local level; and in the absence of an adequate remedy at equity, the common law court was given the power to issue the writ and grant provisional equitable relief--resulting in a reversal of the roles of chancellor and common law judge in England. It is doubtful, however, whether circuit courts granted many such provisional injunctions.⁽¹⁰⁶⁾

Court of Chancery. The legislature established a Superior Court of Chancery consisting of one Chancellor⁽¹⁰⁷⁾ with "exclusive jurisdiction over all matters, pleas and plaints, whatsoever, belonging to or cognizable, in a court of equity. . ."⁽¹⁰⁸⁾ so long as the amount in controversy was not less than fifty dollars.⁽¹⁰⁹⁾ Though the chancellor's equity jurisdiction required the absence of an adequate remedy at law,⁽¹¹⁰⁾ the chancellor could nevertheless assume jurisdiction over legal claims in a number of ways.⁽¹¹¹⁾ The chancellor had considerable discretion in trying cases; if he did not dispose of them on the record of depositions⁽¹¹²⁾ or evidence accumulated by commissioners⁽¹¹³⁾, he could sit as a trial court (without a jury),⁽¹¹⁴⁾ and he could also set the matter for trial before any other court (which would likewise try the case without a jury⁽¹¹⁵⁾). The chancellor could also certify legal questions to the supreme court for their opinion,⁽¹¹⁶⁾ and appeals of final decisions⁽¹¹⁷⁾ and interlocutory appeals⁽¹¹⁸⁾ lay to the supreme court.

Probate Courts. As envisaged by the Constitution, the legislature created probate courts for every county called the Orphans' Court consisting of one judge with broad power to probate wills, supervise estates, appoint guardians for minors and incompetents--"with full jurisdiction of all testamentary, and other matters pertaining to an orphans' court or court of probate."⁽¹¹⁹⁾ The probate judge could try cases without a jury, and under equity-type proceedings could receive depositions and sworn statements.⁽¹²⁰⁾ In the event of a factual dispute, parties could demand that the contested issues be sent to the circuit court for trial--before a jury when appropriate.⁽¹²¹⁾ Appeals originally lay in all cases from the orphans' court either to the chancery court or the supreme court.⁽¹²²⁾ In 1824 the probate courts were amalgamated to the county courts; the probate judge was required to sit in a panel with at least one other county justice;⁽¹²³⁾ and there were no appeals from the amalgamated courts to the supreme court,⁽¹²⁴⁾ but in 1830 appeals were again authorized either to the chancery or the supreme court.⁽¹²⁵⁾

County Courts. The legislature also established county courts for each county. In a significant change from territorial practice, such courts were made entirely separate from the justices of the peace.⁽¹²⁶⁾ The county court was composed of the Probate Judge of the county who served as presiding justice and of two associate justices.⁽¹²⁷⁾ Though designated inferior courts of law, the justices were elected by the General Assembly and served for an indefinite term,⁽¹²⁸⁾ and the courts exercised limited original jurisdiction over contract and quasi-contract disputes in which the sum demanded was more than twenty and not more than fifty dollars.⁽¹²⁹⁾ These monetary limits were jurisdictional, for the courts were required to dismiss ("nonsuit") actions brought for an amount greater or less than the limits; they were directed likewise to dismiss actions fraudulently alleging an amount greater than twenty dollars with the purpose of evading the act.⁽¹³⁰⁾ At the same time, the legislature evinced a more realistic approach to jurisdiction in allowing the county courts to enter judgments above the statutory amount if an affidavit were filed to the effect that the amount sought did not exceed fifty dollars when the action was commenced.⁽¹³¹⁾ Appeals lay to the circuit court,⁽¹³²⁾ but concern with frivolous appeals led the legislature to impose ten percent "damages" (in addition to interest and costs) on defendants who unsuccessfully appealed county court judgments to the circuit court, at least in Monroe County.⁽¹³³⁾

County courts functioned as the "slave courts" with jurisdiction to enforce the brutal slave code and to try slaves for felonies⁽¹³⁴⁾ and also served as primitive administrative agencies.⁽¹³⁵⁾

Justices of the Peace. The legislature acted to regulate justices of the peace. At first, justices of the peace were recommended by the county court and appointed by the governor for three-year terms.⁽¹³⁶⁾ After 1830 they were elected.⁽¹³⁷⁾ They had power to issue warrants, set bail, conduct preliminary hearings, and hold suspects for trial before the circuit court.⁽¹³⁸⁾ They acquired jurisdiction to try many serious offenses involving free blacks and slaves⁽¹³⁹⁾ as well as jurisdiction over a hodgepodge of less serious offenses.⁽¹⁴⁰⁾

Legislation granted civil jurisdiction to justices of the peace over a variety of contract and quasi-contract claims not exceeding fifty dollars.⁽¹⁴¹⁾ Other acts gave justices of the peace jurisdiction concurrent with county court justices to issue writs of distraint⁽¹⁴²⁾ and (sitting as panels with juries) to try forcible entry and detainer actions.⁽¹⁴³⁾ In any suit tried before a justice of the peace, a party could appeal to the county court,⁽¹⁴⁴⁾ where the case would be tried de novo.⁽¹⁴⁵⁾ When a justice of the peace lacked jurisdiction to begin with and the case was appealed from county court to circuit court, the circuit court could enter judgment for the defendant.⁽¹⁴⁶⁾ Otherwise, county court decisions on appeal were final, and no further appeals were permitted.⁽¹⁴⁷⁾

Though justices of the peace initially had no general powers to summon a jury, the statutes explicitly provided that the right to trial by jury be available upon appeal when the amount in controversy exceeded twenty dollars.⁽¹⁴⁸⁾ And statutes directed justices of the peace to empanel a jury in executions where the ownership of property subject to attachment was disputed.⁽¹⁴⁹⁾

After 1830, however, the practice of trial before justices of the peace was altered. The original trial jurisdiction of justices of the peace over contract and quasi-contract disputes up to fifty dollars was restated.⁽¹⁵⁰⁾ But appeals no longer went directly to circuit court; instead they were "tried before any one or more justice or justices of the company district in which the cause originated, by five jurors. . .whose verdict shall be final and conclusive, between the parties, (except removed by certiorari.)"⁽¹⁵¹⁾ Certain property disputes were likewise tried before five jurors.⁽¹⁵²⁾ In 1831 justices were directed to sit in panels of two when holding court.⁽¹⁵³⁾

Courts Martial. The General Assembly exercised the power granted it under the 1817 constitution to organize and regulate the state military. It divided the militia into two divisions (commanded by major generals), and each division into two brigades (commanded by brigadier generals).⁽¹⁵⁴⁾ The militia in each county formed a separate regiment (commanded by a colonel).⁽¹⁵⁵⁾ Regiments were further divided into battalions and companies.⁽¹⁵⁶⁾

Each brigade was to have a brigade judge advocate (with the rank of major), and each regiment was to have regimental judge advocate (with the rank of captain).⁽¹⁵⁷⁾ Legislation provided for the establishment of courts martial at every level of the military and established regulations and procedures for the conduct of the courts martial. Moreover, the rules and regulations of the courts martial of the United States army were adopted to the extent they were not inconsistent with state statutes.⁽¹⁵⁸⁾

Regular courts martial were established at three levels: companies, regiments, and brigades. The company courts martial consisted of the commanding officer of the company (as president) and two other officers appointed by him.⁽¹⁵⁹⁾ They sat every three months.⁽¹⁶⁰⁾ The courts martial established at the brigade and regimental levels consisted of seven officers,⁽¹⁶¹⁾ and in addition to trial jurisdiction, the regimental courts martial heard appeals from company courts, and the brigade court martial heard appeals from regimental courts--except in cases appealed from the company courts martial.⁽¹⁶²⁾ Brigade courts martial sat once a year,⁽¹⁶³⁾ and regimental ones sat twice a year.⁽¹⁶⁴⁾ Each brigade judge advocate attended courts martial in his brigade where he administered oaths, recorded testimony, and generally made sure the proceedings were conducted in a legal manner.⁽¹⁶⁵⁾ The regimental judge advocates played the same role at courts martial conducted at the regimental level.⁽¹⁶⁶⁾

A rigid schedule of fines was imposed for specific infractions ranging from improper uniform to desertion,⁽¹⁶⁷⁾ and the courts martial tried officers charged with "disobedience of orders, neglect of duty, unofficerlike conduct and behavior, disrespect to a superior officer, or any other unmilitary or ungentlemanly conduct whilst on duty. . ."⁽¹⁶⁸⁾ Punishments were limited to fines and cashiering the officer.⁽¹⁶⁹⁾

In 1830 the legislature enacted an entirely new military code⁽¹⁷⁰⁾ which restated the power to arrest and prosecute officers for unofficerlike conduct, authorizing fines up to 100 dollars and cashiering of the convicted offender.⁽¹⁷¹⁾ The requirement that company courts martial meet three times a year⁽¹⁷²⁾ was soon amended to require company courts four times each year⁽¹⁷³⁾--with jurisdiction over all offenses committed by non-commissioned troops.⁽¹⁷⁴⁾ As before, appeals lay to the regimental courts martial,⁽¹⁷⁵⁾ which met twice yearly.⁽¹⁷⁶⁾ Appeals (in all cases other than appeals from company courts martial) still lay to the brigade courts martial⁽¹⁷⁷⁾ held once a year.⁽¹⁷⁸⁾ The judge advocates of the brigade and regiment were still obligated to attend all courts martial in their respective units.⁽¹⁷⁹⁾ The brigade courts martial decisions were final when they sat on appeals from regimental courts, but decisions in cases originating at the brigade level were appealable to the governor.⁽¹⁸⁰⁾

Gaps and loopholes. The constitution of 1817 prohibited the superior circuit courts from exercising original jurisdiction in civil actions where the matter did not exceed fifty dollars.⁽¹⁸¹⁾ In creating the county courts and justices of the peace, the legislature specifically granted these inferior courts original civil jurisdiction over cases lower than fifty dollars. But the legislation also specifically itemized the kinds of civil actions those inferior courts could hear. In general, these inferior courts received jurisdiction over contract and quasi-contract claims. Notably absent from the express grants of jurisdiction were the tort claims that would have been classed at that time as trespass and trespass on the case. There was a similar gap with respect to cases seeking equitable relief in which the value of the case did not rise to fifty dollars (the starting point of the chancellor's jurisdiction). The legislature never created inferior courts of equity, nor did it bestow equity jurisdiction on the county courts or justices of the peace.

Consequently, it is not clear what court had jurisdiction over tort cases and equity suits when the damages did not exceed fifty dollars. The legislature attempted to vest general jurisdiction in the circuit courts, despite the monetary limit on superior court jurisdiction in the constitution.⁽¹⁸²⁾ But the circuit court received jurisdiction over only those cases not within another court's jurisdiction; thus, if county court had jurisdiction over tort actions below fifty dollars, then the circuit court did not.⁽¹⁸³⁾

This theoretical conflict between circuit court and county court jurisdiction was avoided, however, by the adjustment of county court jurisdiction. The 1824 amendments amounted to a wholesale elimination of civil jurisdiction in county courts⁽¹⁸⁴⁾ and left the county courts (as distinct from the probate courts) to operate principally as slave courts.⁽¹⁸⁵⁾ From then on, the circuit courts exercised original jurisdiction over that category of tort cases less than fifty dollars that was not within justice of the peace jurisdiction. While this exercise of jurisdiction was apparently inconsistent with the limitation of superior court jurisdiction in the constitution, it demonstrated the powerful institutional continuity of the circuit courts, which continued--notwithstanding the language of the constitution-- to exercise that broad, residual jurisdiction enjoyed by the old territorial circuit courts.

III. Courts under the Constitution of 1832

The constitution of 1817 provided for its own amendment only by means of a legislatively convened constitutional convention.⁽¹⁸⁶⁾ Growing political dissatisfaction with parts of the constitution led the legislature in 1831 to summon a convention,⁽¹⁸⁷⁾ and the proceedings resulted in a new constitution in 1832. In focusing on the changes made in 1832, scholars have probably exaggerated the differences between the two constitutions. The constitution of 1832 followed the format of that of 1817 and preserved large parts of the 1817 text. Indeed, the drafters saw themselves as amending and revising the fundamental law, rather than radically altering it, for they styled the new document "The Constitution of the State of Mississippi as Revised in Convention. . ."⁽¹⁸⁸⁾

The basic tripartite structure of government was retained; provisions giving the General Assembly judicial powers to impeach,⁽¹⁸⁹⁾ to punish members for disorderly behavior,⁽¹⁹⁰⁾ and to punish nonmembers for contempt⁽¹⁹¹⁾ copied the 1817 constitution verbatim.⁽¹⁹²⁾

There were radical changes to the courts. First, chancery court was authorized to grant divorces.⁽¹⁹³⁾ Second, judges were elected by popular vote on all levels.⁽¹⁹⁴⁾ Moreover, the courts were reorganized, with the appellate court now clearly separated from the circuit courts. The legislature was given power to establish inferior courts (not inferior and superior ones);⁽¹⁹⁵⁾ and rather than delegating the lower court system entirely to the legislature, the constitution itself created five courts.⁽¹⁹⁶⁾

High Court of Errors and Appeals. The jurisdiction of the high court was limited to appellate jurisdiction, and its limited jurisdiction was emphasized by it new name, the High Court of Errors and Appeals:

The high court of errors and appeals shall have no jurisdiction but such as properly belongs to a court of errors and appeals.⁽¹⁹⁷⁾

The court itself ruled that such appellate jurisdiction did not give it authority to decide a fictitious case.⁽¹⁹⁸⁾ In a particularly troubling opinion (published in 1867), the high court, acknowledged that the constitutional grant of appellate jurisdiction was vague, and it basically deferred to legislation that regulated and, in effect, limited the High Court's appellate jurisdiction.⁽¹⁹⁹⁾

The court was composed of three judges.⁽²⁰⁰⁾ Each judge was elected from a different district,⁽²⁰¹⁾ and the judges served staggered six-year terms.⁽²⁰²⁾ It was required to sit twice a year.⁽²⁰³⁾

The high court had appellate jurisdiction over cases before the circuit court, whether of law or equity.⁽²⁰⁴⁾ Although it was not expressly given appellate jurisdiction over the chancellor, it could apparently review the chancery court decisions either by appeal or writ of error.⁽²⁰⁵⁾ Indeed, in 1844, the legislature significantly expanded the High Court's supervisory jurisdiction over chancery by providing that any decision by the chancellor or vice chancellor overruling a demurrer was appealable as a matter of right to the High Court.⁽²⁰⁶⁾ There were two cases where the high court exercised superior jurisdiction over the chancellor: 1) cases in chancery court in which the state was a defendant could be appealed to the High Court of Errors and Appeals,⁽²⁰⁷⁾ and 2) individual judges of the High Court of Errors and Appeals could review the chancellor's sanctions for contempt imposed by the chancellor between regular terms of chancery court.⁽²⁰⁸⁾ In 1844 the High Court also began to exercise appellate jurisdiction over Probate Courts.⁽²⁰⁹⁾

It is interesting to observe, in an age that now seeks to discourage the writing of appellate opinions,⁽²¹⁰⁾ that the legislature required the High Court to file a written opinion in every case "stating at large the reasons and principles upon which such decision is made" and further requiring every dissenting judge to "reduce his opinion to writing and the reasons therefor," and making the refusal to write an opinion a misdemeanor and cause for removal.⁽²¹¹⁾

Despite constitutional language limiting the court's jurisdiction to appellate matters, the legislature in 1841 extended to individual judges of the high court power to issue "writs of injunction and ne exeat, orders requiring bail in chancery, orders for receivers as well as all other remedial order and process."⁽²¹²⁾

Circuit Courts. Circuit courts were established for districts comprising between three and twelve counties.⁽²¹³⁾ The legislature initially created four districts;⁽²¹⁴⁾ two were added in late 1833,⁽²¹⁵⁾ two in 1836,⁽²¹⁶⁾ one in 1837.⁽²¹⁷⁾ By 1840 there were eleven judicial districts,⁽²¹⁸⁾ but they were reorganized into seven districts in 1844⁽²¹⁹⁾ and ten in 1856.⁽²²⁰⁾

Circuit court jurisdiction was defined by the constitution in the same terms as that given to the superior (circuit) courts in 1817--"original jurisdiction in all matters, civil and criminal, within this State; but in civil cases only when the principal of the sum in controversy exceeds fifty dollars."⁽²²¹⁾ The plaintiff's demand satisfied the jurisdictional amount unless it was inflated improperly to establish jurisdiction.⁽²²²⁾ Separate claims could be added together to satisfy the jurisdictional amount,⁽²²³⁾ and defenses did not affect jurisdiction.⁽²²⁴⁾ The legislative grant of jurisdiction was also identical to the legislation defining circuit court jurisdiction under the constitution of 1817.⁽²²⁵⁾ Thus the courts retained original jurisdiction over actions of contract and quasi-contract only when the amount exceeded fifty dollars; and they exercised general original jurisdiction over all other civil and criminal cases not given exclusively to some other court,⁽²²⁶⁾ and they continued to have broad remedial power to issue extraordinary writs.

In a change from the 1817 statute, language was inserted that granted "also such appellate jurisdiction as by law may be vested in said court."⁽²²⁷⁾ Circuit courts exercised appellate jurisdiction over justices of the peace.⁽²²⁸⁾ Cases tried before a justice of the peace were appealable (by writ of certiorari⁽²²⁹⁾) to the circuit court, where they were tried de novo. One defendant unsuccessfully challenged this practice by pointing out that such cases were not within the circuit court's original jurisdiction (because they were necessarily below its jurisdictional amount in order to be brought before a justice), but the high court held that the trial de novo process was an exercise of trial rather than appellate jurisdiction.⁽²³⁰⁾ The supervisory role of circuit courts was further expanded in 1854 when circuit courts were authorized to issue writs of error and supersedeas in misdemeanor prosecutions.⁽²³¹⁾ The circuit courts were required to sit twice a year in each county.⁽²³²⁾ Despite their broad general jurisdiction, circuit courts could not acquire subject-matter jurisdiction over matters outside their competence by consent of the parties.⁽²³³⁾ On the other hand, a presumption of correctness attached to a circuit court's determination of its own jurisdiction.⁽²³⁴⁾

The constitution of 1832 expressly authorized the legislature to give circuit courts jurisdiction over matters in equity so long as the amount in controversy did not exceed five hundred dollars.⁽²³⁵⁾ The legislature quickly conferred concurrent equity jurisdiction on the circuit courts:

[T]he said circuit courts shall have and possess original and concurrent jurisdiction with the superior court of chancery, over all matters, pleas, and plaints whatsoever, belonging to or cognizable in a court of equity, where the value of the thing or amount in controversy does not exceed the value of five hundred dollars; also in cases of divorce, and for the foreclosure of mortgages; and such process and course of proceedings shall be had herein as in similar cases are commonly had in the superior court of chancery.⁽²³⁶⁾

Notwithstanding this language imposing chancery court practice on the circuit courts, the legislature required trial by jury for all matters of fact.⁽²³⁷⁾

The legislature sought repeatedly to enlarge the equity jurisdiction of the circuit courts. In 1839 it voted to propose a constitutional amendment for referendum that stated:⁽²³⁸⁾

A separate superior court of chancery shall be established, with full jurisdiction in all matters of equity: Provided , however, the legislature may also give to the circuit courts of each county equity jurisdiction.⁽²³⁹⁾

This proposed amendment would have enlarged the circuit courts' concurrent equity jurisdiction by removing from the constitution the monetary limits on circuit court equity jurisdiction. At the same time--and, perhaps unintentionally--it apparently would have eliminated the power of circuit courts to grant divorces and foreclose mortgages. The amendment was not approved.⁽²⁴⁰⁾ Nevertheless, in 1841 the legislature extended to circuit judges the power to issue "writs of injunction and ne exeat, orders requiring bail in chancery, orders for receivers as well as all other remedial order and process."⁽²⁴¹⁾ But circuit courts had no jurisdiction to enjoin conduct outside their districts.⁽²⁴²⁾ In 1846 legislation gave circuit courts and chancery courts concurrent jurisdiction to effect legal changes in names, legitimate offspring, and to make a person a petitioner's legal heir.⁽²⁴³⁾ And by 1857 the constitution was amended to eliminate chancery and vice chancery courts; and the circuit courts assumed fully equity jurisdiction.⁽²⁴⁴⁾

Superior Court of Chancery and Inferior Courts of Chancery. The constitution of 1832 established a superior court of chancery under a single chancellor, but the system proved unpopular, and the chancery jurisdiction was eliminated by constitutional amendment--proposed by the legislature in 1854,⁽²⁴⁵⁾ adopted in 1856, and effective in 1857⁽²⁴⁶⁾--abolishing the separate chancery courts and giving full equity jurisdiction to the circuit courts.⁽²⁴⁷⁾ The evolution of the courts of chancery may have been influenced by contemporaneous legal developments in England.⁽²⁴⁸⁾

The constitution of 1832 originally conferred full equity jurisdiction of a single chancellor, elected statewide, who served six years,⁽²⁴⁹⁾ with "full jurisdiction in all matters of equity. . .in all cases of divorce, and for the foreclosure of mortgages."⁽²⁵⁰⁾ The language "full jurisdiction" was almost certainly meant to convey exclusive jurisdiction, because the constitution included a specific "provided, however" clause: "the Legislature may give to the circuit courts of each county equity jurisdiction in all cases where the value of the thing, or amount in controversy, does not exceed five hundred dollars. . ."⁽²⁵¹⁾ The language of "full jurisdiction" was omitted from the statute granting equity jurisdiction.⁽²⁵²⁾ Because the grant of exclusive jurisdiction applied only to equity, however, and not to divorce, or foreclosure of mortgages, the legislature could constitutionally confer concurrent jurisdiction over those matters upon the circuit court.⁽²⁵³⁾ Notwithstanding the broad grant of equity jurisdiction, the legislature subsequently enacted additional grants of jurisdiction to quiet titles and remove clouds on titles⁽²⁵⁴⁾ and to receive acknowledgments of deeds, trusts, and other instruments of conveyance.⁽²⁵⁵⁾ As under prior practice,⁽²⁵⁶⁾ courts of equity also could exercise jurisdiction over legal claims in a variety of ways.⁽²⁵⁷⁾

A court of limited jurisdiction, the chancellor could not acquire subject-matter jurisdiction by consent or waiver.⁽²⁵⁸⁾ Even with the establishment of concurrent equity jurisdiction in circuit courts, the chancellor must have been overwhelmed with casework at times, for the legislature in 1838 proposed a constitutional amendment removing the monetary limits on circuit court equity jurisdiction.⁽²⁵⁹⁾ After the proposed amendment failed to be approved, the legislature created an inferior court of chancery, called the District Chancery Court, for twenty-three northern counties, consisting of a Vice Chancellor elected from the counties.⁽²⁶⁰⁾ The court had "concurrent power and jurisdiction within said district with the Superior Court of Chancery of this State, when the amount in controversy shall not exceed five hundred thousand dollars. . ."⁽²⁶¹⁾ Cases could be removed to the superior court of chancery when the defendant resided outside the northern district of the vice chancellor,⁽²⁶²⁾ when the vice chancellor agreed that justice so required,⁽²⁶³⁾ or when all parties consented.⁽²⁶⁴⁾ Decisions could be taken by appeal to the superior court of chancery or, in the alternative, if all parties agreed, to the High Court of Errors and Appeals; and decisions could also be taken directly to the High Court of Errors and Appeals by way of a writ of error.⁽²⁶⁵⁾ In 1846 the legislature created a second inferior court of chancery for the southern district⁽²⁶⁶⁾ with a Vice Chancellor for the Southern District, elected from the district,⁽²⁶⁷⁾ and in 1852 a third Middle District Chancery Court.⁽²⁶⁸⁾

Legislation sought to limit the jurisdiction of the chancery courts and to make the chancellor more accountable in a number of ways. Chancery districts were first made coterminous with the three districts created for the High Court justices, but in 1841 the legislature divided the chancery court into four districts and permitted defendants to be tried only in the district in which they resided.⁽²⁶⁹⁾ In 1842 the legislature required the chancellor to publish his decisions--"or so much thereof as the Chancellor shall Direct. . ."⁽²⁷⁰⁾ In 1844 the legislature allowed defendants to appeal directly to the High Court of Errors and Appeals in any case in either the superior or district court of chancery that overruled a demurrer, without having first to answer the bill.⁽²⁷¹⁾

By statute the chancellor was also given original jurisdiction over cases in which the state was a defendant. In the event of a factual dispute, the chancellor was required to transfer the trial to a circuit court, where the action would proceed before a jury, an the verdict would be transmitted back to the chancery court.⁽²⁷²⁾ Later, however, the chancery courts were empowered to empanel juries in cases against the state.⁽²⁷³⁾ But none of this legislation was construed to permit the chancellor to grant common law relief against the state.⁽²⁷⁴⁾ About the time the separate chancery courts were abolished, the legislature also proposed abolishing suits against the state.⁽²⁷⁵⁾

The chancellor was originally required to hold court twice a year in Jackson,⁽²⁷⁶⁾ but after the load was lightened by the creation of the northern vice chancery district, the legislature declared that "hereafter the Superior Court of Chancery held at Jackson shall, in law, be considered as always open."⁽²⁷⁷⁾ Much of factfinding was effected through extra-judicial discovery, and depositions were encouraged by reforms in 1838,⁽²⁷⁸⁾ and further reforms in 1839 permitted defendants to introduce new matter under oath and to serve cross bills without subpoena on parties already joined in an action.⁽²⁷⁹⁾ The legislature also abolished the old equity requirement that a plaintiff produce corroborating witnesses or circumstances in order to survive a defendant's denial.⁽²⁸⁰⁾

In addition to its original jurisdiction, the chancery court might permit the transfer of any equity suit pending in circuit court if the defendant and one other person made affidavits "that they do not believe that a fair trial of said cause can be had in the circuit court."⁽²⁸¹⁾ Though equity might in extraordinary cases enjoin the enforcement of a judgment, the chancellor had no superior jurisdiction to grant relief in disregard of circuit court chancery decrees in a matter within the concurrent jurisdiction of the chancellor and circuit courts.⁽²⁸²⁾

Legislative hostility to the separate chancery courts appeared by the 1830s, when the legislature went so far as to propose a constitutional amendment that would have given circuit courts jurisdiction over most equity matters. In 1857 the chancery and vice chancery courts were abolished by constitutional amendment, and there would be no separate chancery courts again until the Constitution of 1868.⁽²⁸³⁾

Courts of Probate. Probate courts continued under the constitution of 1832 in each county, composed now of judges elected in the county serving two-year terms.⁽²⁸⁴⁾ The jurisdiction the probate courts was restated in the constitution as "jurisdiction in all matters testamentary and of administration in orphans' business and the allotment of dower, in cases of idiocy and lunacy, and of persons non compos mentis."⁽²⁸⁵⁾ This definition delegated jurisdiction to legislative control to the extent legislation established rights and duties of executors and administrators.⁽²⁸⁶⁾ Legislation establishing the probate courts incorporated the constitution's definition of jurisdiction by reference: "with such jurisdiction to said courts within their respective counties as is prescribed to them in the aforesaid article of the constitution."⁽²⁸⁷⁾ Subsequent legislation conferred upon the probate courts all jurisdiction previously exercised by county courts and probate courts,⁽²⁸⁸⁾ but some of this jurisdictional grant was unconstitutional.⁽²⁸⁹⁾ Appeals lay to the High Court of Errors and Appeals.⁽²⁹⁰⁾ The chancellor did not have authority to review probate proceedings,⁽²⁹¹⁾ and in 1844 legislation expressly prohibited appeals to the chancellor and directed appeals to the High Court of Errors and Appeals.⁽²⁹²⁾

Although it might be problematic whether the probate courts had jurisdiction at all,⁽²⁹³⁾ on matters within their competence, their jurisdiction was exclusive.⁽²⁹⁴⁾ They met monthly in most counties.⁽²⁹⁵⁾

Criminal Court. Early experience with the crime problem led to the creation in 1836 of special inferior criminal courts in five counties.⁽²⁹⁶⁾ The courts consisted of one judge in each of those counties, elected for a four-year term.⁽²⁹⁷⁾ These courts had general "cognizance and jurisdiction, concurrent with the circuit courts of said counties over all crimes, misdemeanours, and offences of whatever nature. . .and shall hear and determine the same, in the same manner, and with the same effects that said circuit courts may, or can do. . ."⁽²⁹⁸⁾ Appeals lay directly to the High Court of Errors and Appeals,⁽²⁹⁹⁾ but the criminal courts remained inferior courts, subject to the supervisory jurisdiction of the circuit courts, and circuit courts could review proceedings in criminal court by certiorari.⁽³⁰⁰⁾ The courts duplicated so closely the criminal work of the circuit courts that they were probably unnecessary, and the legislature abolished the criminal courts in 1840 and returned their cases to the circuit courts.⁽³⁰¹⁾

Two decades later, in 1860 another inferior court of criminal jurisdiction, called the Criminal Court, was established for Warren county. Consisting of one judge elected for a four-year term,⁽³⁰²⁾ the court had general criminal jurisdiction concurrent with the circuit court,⁽³⁰³⁾ including the power to issue writs of habeas corpus and injunctions.⁽³⁰⁴⁾ This criminal court followed circuit court procedure,⁽³⁰⁵⁾ and appeals (by writs of error and certiorari) lay directly to the High Court of Errors and Appeals.⁽³⁰⁶⁾

Boards of Police. The constitution created elected boards of police in each county, made up of five persons elected for two-year terms.⁽³⁰⁷⁾ The constitution itself delegated to these boards jurisdiction over county business like roads, bridges, and elections;⁽³⁰⁸⁾ it also designated them "conservators of the peace."⁽³⁰⁹⁾ The legislature transferred to these boards the jurisdiction previously exercised by county courts; this included county court jurisdiction in enforcing the slave code,⁽³¹⁰⁾ but, judging from the subsequent laws, most of the work of the boards (or courts) of police appears to have concerned taxation and supervising finances of local officials--work much akin to today's Supervisors.⁽³¹¹⁾ After 1846 the county boards of police acquired power to regulate the justice of the peace districts within their counties.⁽³¹²⁾

Justices of the Peace. Justices of the peace were to be elected by districts in each county and serve two-year terms.⁽³¹³⁾ As before, limited criminal jurisdiction was assumed (but not specified) and civil jurisdiction was limited to fifty dollars.⁽³¹⁴⁾ The statutory grant of jurisdiction referred even more vaguely to "all the jurisdiction, power and authority given and allowed by law to justices of the peace, not contrary to the constitution of this state."⁽³¹⁵⁾ They were later given limited power to punish contempt.⁽³¹⁶⁾ Decisions made initially by a justice of the peace could be appealed, or retried, before a justice of the peace and a jury.⁽³¹⁷⁾ Appeals to courts were guaranteed, but the legislature was authorized to regulate the procedure for such appeals,⁽³¹⁸⁾ and the legislature provided for appeals to lie to the circuit courts.⁽³¹⁹⁾

Justices of the peace could also be elected in towns, when the legislation incorporating the towns so authorized.⁽³²⁰⁾ But the resulting merger of executive and judicial powers must have had undesirable results in some cases, for subsequent legislation sometimes retracted the grant of justice of the peace powers to mayors.⁽³²¹⁾ The justice of the peace residing in Ripley apparently did something to irritate an influential county resident, for special legislation limited that justice's powers to the town limits of Ripley.⁽³²²⁾

Mayor's Courts. Notwithstanding early problems with the mayor's court in Natchez,⁽³²³⁾ a number of mayor's courts were established later in the century. For example, legislation incorporating Vicksburg required the mayor to hold Mayor's Court daily⁽³²⁴⁾ and granted the court broad jurisdiction to issue writs returnable throughout the state that was concurrent with the circuit courts.⁽³²⁵⁾ Appeals lay directly to the High Court of Errors and Appeals.⁽³²⁶⁾ The Vicksburg Mayor's Court also exercised within the limits of the city the criminal jurisdiction of a justice of the peace as well as additional criminal jurisdiction to arrest, fine, and punish with sentences of up to six weeks in the city work house simple assaults, breaches of the peace, and violations of city ordinances.⁽³²⁷⁾ This court must have proved effective, for subsequent legislation established a new mayor's court for Natchez with powers within the city concurrent with the justice of the peace and jurisdiction over all claims rising under city ordinances or by-laws.⁽³²⁸⁾ The Mayor of Natchez also enjoyed jurisdiction to punish contempt with fines up to ten dollars or imprisonment "for any time not exceeding twenty-four hours," and to punish violations of city ordinances and by-laws.⁽³²⁹⁾ Cases were appealable from the mayor's court in Natchez to the Circuit Court like proceedings before a justice of the peace,⁽³³⁰⁾ but judgements were made appealable directly to the High Court of Errors and Appeals from the mayor's court in Jackson⁽³³¹⁾ when the amount was thirty dollars or more.⁽³³²⁾ In 1854 all mayors of incorporated towns who were ex-officio justices of the peace were authorized to issue attachments.⁽³³³⁾ And legislation incorporating other towns and cities regularly gave the mayor powers of justice of the peace.⁽³³⁴⁾

Courts Martial. Under the constitution of 1832 the legislature continued to control the organization and discipline of the militia.⁽³³⁵⁾ Despite the growth of the state, the militia was still formed into four divisions in 1832, with each division divided into two brigades, constituted of regiments drawn from each county.⁽³³⁶⁾ But in 1837, the militia was reorganized into five divisions; each division into two brigades; and brigades into regiments; regiments into battalions and companies.⁽³³⁷⁾ Company courts martial, composed of the captain and two officers (or substitute noncommissioned officers), met every muster day.⁽³³⁸⁾ The detailed provisions of old statutes that established the superior courts martial and regulated their procedure were adopted by reference,⁽³³⁹⁾ and the duties of the brigade and regimental judge advocates continued as before.⁽³⁴⁰⁾

The 1837 act consolidated and restated the basic law and procedures. In addition to courts martial at the company, regiment, and brigade level, the governor or commanding officers of a brigade or division were authorized to institute special courts of inquiry "for the purpose of investigating the conduct of any officer. . ."⁽³⁴¹⁾ The special courts consisted as preliminary tribunals; consisting of between three and five officers and reported to the person who instituted them who could then appoint a court martial.⁽³⁴²⁾ Otherwise the jurisdiction of the courts martial were largely unaffected by several waves of legislation. During the Civil War the distinct compositions of company, regimental, brigade and special courts martial were preserved.⁽³⁴³⁾ (Legislation later provided that "general courts martial may consist of three commissioned officers and a judge advocate."⁽³⁴⁴⁾) The punishments were still limited to cashiering or fining officers and noncommissioned officers, but penalties for soldiers who resisted the draft ominously included "all the penalties to which a deserter of the Confederate States, or this State, is subject."⁽³⁴⁵⁾

IV. COURTS DURING AND AFTER THE CIVIL WAR

Even before Lincoln's election, Mississippi's statesmen had expressed alarm about the growth of abolitionist sentiment in the country and about the possible admission of enough free states--in the distant future--to ratify a constitutional amendment abolishing slavery. L.Q.C. Lamar had gone so far as to suggest an amendment that would have guaranteed forever the right of slave owners to own slaves.⁽³⁴⁶⁾ In 1860 the Mississippi legislature declared in favor of secession, explicitly identifying as grounds the northern interference with slave owners' rights,⁽³⁴⁷⁾ and in 1861 the legislature ratified the confederate constitution,⁽³⁴⁸⁾ which itself generally copied the United States Constitution closely but established slavery on all confederate territory, guaranteed slave owners' rights, and obligated confederate states to recognize slavery.⁽³⁴⁹⁾

Although the confederate constitution contained an article that duplicated Constitution's provisions for a federal judiciary,⁽³⁵⁰⁾ the confederate supreme court was never established. The Mississippi legislature viewed the confederate courts as occupying the same place--literally--that the federal courts had, for a statute authorized the confederate trial court to use the offices in the Jackson City Hall previously used by the federal court.⁽³⁵¹⁾ This confederate trial court for Mississippi also never met.⁽³⁵²⁾

Because there had been no appeals from Mississippi state courts to the Supreme Court prior to the Civil War, the attempted secession (and resulting elimination of superior federal court) had little effect on legal practice in state courts. More relevant was the fact that Mississippi itself suspended much civil litigation by staying most civil actions pending the war:

[A]ll laws for the collection of debts and liabilities, on bonds, promissory notes, bills of exchange, open accounts, or contracts for the payment of money, are hereby suspended until twelve month after the close of the present war. . .⁽³⁵³⁾

In 1865 the legislature voted--over the governor's veto--to extend this moratorium on most civil litigation to 1868.⁽³⁵⁴⁾ But the first opinion published in 1866 ruled this wartime suspension of enforcement of the state civil laws unconstitutional.⁽³⁵⁵⁾

The High Court of Errors and Appeals ceased functioning for most of the war⁽³⁵⁶⁾--at least it published no opinions between the October 1861 term and the April 1863 term, and none for 1865. It published only a handful of opinions for either civil or criminal cases between 1861 and 1866. But during the war, the Mississippi legislature resisted one of the more controversial acts of the confederate congress, protesting the confederate suspension of habeas corpus and questioning the constitutionality of the act.⁽³⁵⁷⁾ In fact the state adopted legislation the next year that strengthened the protections available under the writ.⁽³⁵⁸⁾

There was little formal change to the legal organization of the court system during the war: the local courts simply ceased to function. While this resulted in a privileging of possession and self-help that may have satisfied most private needs, slaveholders required a public legal response to the dramatic increase in slave escapes.⁽³⁵⁹⁾ Accordingly, legislation authorized probate court judges and even clerks of circuit and probate courts to try fugitive slaves.⁽³⁶⁰⁾

The years that followed the war--and prior to Reconstruction--witnessed some of the most radical changes to the state's judicial system. The Constitutional Convention of August 1865, from which blacks were excluded, amended the Constitution of 1832 to delete references to slavery and insert a provision acknowledging the "destruction" of slavery.⁽³⁶¹⁾ The convention preserved the judicial system intact. The courts themselves held that neither secession, nor war, nor military occupation altered the effect of the laws or the jurisdiction of state courts to enforce them. The issue was posed, perhaps most directly, in a defense to a prosecution for a crime prosecuted under an indictment dated May 30, 1865. The defendant argued that the state ceased to have legal status as a result of secession and that, accordingly, it could not prosecute violations of criminal statutes during that period. The high court rejected the defense:

We entertain no doubt that the laws of the States, civil and criminal, as they stood at the date of the secession ordinance, continued in force afterwards, precisely as before, unaffected by that ordinance, or by the war, or by the deposition of the State magistrates in the month of May, 1865, or their restoration in the fall of that year; and that offences against the criminal laws, committed during the war, or during the occupation of the State by the army of the United States, are now liable to indictment and punishment as if these events had never occurred. The laws themselves were not suspended during the administration of General Canby and Provisional Governor Sharkey, but only their administration was temporarily obstructed.⁽³⁶²⁾

Among the emergency measures taken by the governor was the establishment of special courts of equity with jurisdiction to enforce all contracts for cotton sales.⁽³⁶³⁾ On appeal to the High Court of Errors and Appeals, this special court's jurisdiction was not repudiated outright but was limited by construction.⁽³⁶⁴⁾

County Courts. In 1865 the legislature created a new system of inferior County Courts. The histories of Mississippi make scant reference to these county courts. It seems a fair inference that they were created in part to replace the slave courts and to institutionalize control of the Afro-American population. First composed of the probate judge and two justices of the peace,⁽³⁶⁵⁾ the courts were soon composed of the probate judge alone.⁽³⁶⁶⁾ The county court had broad civil jurisdiction, including exclusive jurisdiction over forcible entry and detainer actions,⁽³⁶⁷⁾ unlimited replevin power,⁽³⁶⁸⁾ and jurisdiction over "civil suits of every description at law and equity, when the principal of the same, or the amount of damage, or the value of property or thing shall not exceed two hundred and fifty dollars. . ."⁽³⁶⁹⁾ Appeals lay directly to the circuit court.⁽³⁷⁰⁾

These county courts also received criminal jurisdiction concurrent with circuit courts over misdemeanors,⁽³⁷¹⁾ power like the circuit court to punish contempt,⁽³⁷²⁾ and power to issue writs of habeas corpus.⁽³⁷³⁾ Though courts of record,⁽³⁷⁴⁾ criminal prosecutions before these courts dispensed with the need for grand jury indictment.⁽³⁷⁵⁾ The district attorney was not required to prosecute,⁽³⁷⁶⁾ and judges served as prosecutors when the district attorney did not appear.⁽³⁷⁷⁾

Authorized to inflict punishment by torture,⁽³⁷⁸⁾ appeals on the record⁽³⁷⁹⁾ were permitted to circuit court only if the defendant waived a jury, for cases tried to a jury were not appealable.⁽³⁸⁰⁾ Other procedural irregularities included the abolition of property requirements for jurors⁽³⁸¹⁾ and the elimination of peremptory challenges.⁽³⁸²⁾ The county courts also assumed the appellate role previously played by circuit courts and exercised supervisory jurisdiction over proceedings before mayors' courts and justices of the peace.⁽³⁸³⁾

Justices of the Peace. Justices of the Peace were given concurrent criminal jurisdiction with county courts in cases of simple assault and certain other misdemeanors.⁽³⁸⁴⁾

Probate Courts. The great expansion of jurisdiction of probate judges that occurred with their designation as county courts was followed by legislation that granted probate courts power to issue injunctions, writs of habeas corpus, "and all other remedial writs allowed by law."⁽³⁸⁵⁾

Military courts. As part of legislation reorganizing the militia in 1865, general, divisional, brigade, and regimental courts martial were established with separate composition and with right to an appeal.⁽³⁸⁶⁾ In 1867 the act was suspended, unless revived by the governor.⁽³⁸⁷⁾

The immediate historical context for the 1868 reforms was not, however, the memory of legal institutions that had ceased (for purely local reasons) in 1832 but rather the recent experience of the failure of justice due to the virtual nonoperating of local courts from 1861 to 1865, followed by the rogue county courts from 1865 to 1868, and the press of Reconstruction politics. For the courts, the most important results of the 1868 constitution were: the elimination of county courts,⁽³⁹⁴⁾ the elimination of probate courts and the amalgamation of their jurisdiction with equity jurisdiction in separate chancery courts, and the elimination of concurrent equity jurisdiction in the circuit courts.

1. Mitchell, McNutt, Threadgill, Smith & Sams Lecturer, and Associate Professor of Law, the University of Mississippi Law School. J.D., University of Michigan; M.A. and Ph.D. University of Chicago; B.A., The Johns Hopkins University. I thank the Lamar Order for a summer research grant and Sara Falkinham and Richard Russell for help with research.

2. A recent example was the problem presented by the need for an intermediary court of appeals. Because the state constitution vests in the supreme court "jurisdiction as properly belongs to a court of appeals," Miss. Const. art. 146, it was questionable whether the legislature had the authority to give appellate jurisdiction to an intermediary court. Rather than amend the constitution, legislation established intermediary courts of appeals that receive jurisdiction by assignment from the supreme court. See Miss. Code Ann. § 9-4-3(1) (1994 Supp.). This scheme might survive a constitutional challenge to the legislature's interference with supreme court's appellate jurisdiction, because the supreme court ultimately cedes jurisdiction over individual cases.

But this scheme does not necessarily avoid a challenge based on the inherent constitutional limits to the legislature's power to establish "other inferior courts," Miss. Const. art. 172 (emphasis added). The term "inferior" is nowadays loosely used to indicate courts lower than a supreme court, see generally Black's Law Dictionary 700 (5th ed. 1979), but in 1890 the term "inferior courts" designated special courts of limited original jurisdiction below the circuit and chancery court level. Circuit and chancery courts were originally courts of superior jurisdiction. See, e.g., an Act, to Reduce into One, the Several Acts and Part of Acts, Concerning the Establishment, Jurisdiction and Powers of the Superior Courts of Law, June 1822 Miss. Laws 25-76. The Mississippi courts repeatedly addressed the issue of the meaning of "inferior" courts in the 1800s. See generally Houston v. Royston, 8 Miss. (7 How.) 543 (1843) (vice chancery court of limited original jurisdiction held constitutional as "inferior" court when it had special, limited jurisdiction concurrent with chancellor and cases could be removed to the chancellor and were appealable to the High Court of Errors and Appeals by writ of certiorari), Thomas v. State, 6 Miss. (5 How.) 23, 28 (1840) (Criminal court held constitutional as "inferior" court when cases appealable to Circuit Court by writ of certiorari).

3. Legal history offers a clue as to why there is a statutory grant of jurisdiction to circuit courts to issue injunctions, Miss. Code Ann. § 9-1-19, under a constitutional regime that purports to vest chancery courts with "full" equity jurisdiction, Miss. Const. art. 159 and thus to divest circuit courts of such jurisdiction, id. § 156. See infra note 102.

4. Not even the University of Mississippi Law Library has a complete set of the session laws, and the version of the state constitutions in widest circulation, The Constitutions of Mississippi as Originally Adopted (1982), omits amendments, some of which profoundly altered the jurisdiction of the courts.

5. Though Mississippi was occupied by United States troops during the years immediately after the war, pro-slavery whites remained in control for several years. The authority of legislation and judicial decisions from these years was not questioned even after Reconstruction, when the court would denounce the legitimacy of the Reconstruction court. See Lusby v. Kansas City, Missouri & B.R., 73 Miss. 360, 19 So. 239, 242 (1895) (rejecting the authority only of volume 42 of the Mississippi Reports).

6. Such territorial government is not included in the list of powers expressly forbidden to the central government in the last paragraph of article IX. See Articles of Confederation, art. IX, printed in 1 U.S.C.A. at 12-13 (West 1987). Please note that, although the Blue Book requires that citations to statutes include an indication when they have been amended or repealed, almost all Mississippi positive law cited in this article has been implicitly repealed or amended--as have the Articles of Confederation--and it would be sophomoric to indicate this fact in each case.

7. This seems a fair inference from the fact that the Articles expressly provided that in disputes between states tried by Congress, "no State shall be deprived of territory for the benefit of the United States," Articles of Confederation, art. IX, 1 U.S.C.A. at 11, and from the fact that the Articles explicitly provided for the admission of Canada into the Union but made no provision for autonomous territories, id. art. XI, at 13.

8. Treaty between the United States of America and His Britannic Majesty (September 3, 1783), art. II, in Frederick E. Hosen, Unfolding Westward in Treaty & Law: Land Documents in United States History from the Appalachians to the Pacific, 1783-1934 32 (1988).

9. The Treaty ignored the claims of other sovereigns or the native American occupants. It is notorious that the westward expansion of the United States paid little attention to the sovereign claims of the indigenous peoples, and the laws established to regulate the territories provided for the elimination of the Native American residents. See, e.g., Northwest Ordinance § 8, 1 U.S.C.A. at 19 ("[The governor] shall proceed, from time to time, as circumstances may require to lay out the parts of the district in which the Indian titles shall have been extinguished, into counties and townships. . .").

10. The United States recognized Spain's territorial claims to West Florid. Treaty between the United States of America and Spain (Oct. 27, 1795), in Hosen, supra note 8, at 49, 50. Fifteen years later, the United States seized the territory of West Florida and annexed it militarily to the Orleans Territory as announced in a Presidential Proclamation. A Proclamation by the President of the United States of America Regarding the Territory South of the Mississippi Territory and Eastward of the River Mississippi and extending to the River Perdido (Oct. 27, 1810), in Hosen, supra note 8, at 79, 80. It was subsequently joined to the Mississippi Territory. An Act to Enlarge the Boundaries of the Mississippi Territory (May 14, 1812), in Hosen, supra note 8, at 84. Spain formally ceded the territory two years after the admission of Mississippi to statehood. Treaty between the United States of America & Spain (Feb. 22, 1819), art. 2, in Hosen, supra note 8, at 109, 110.

11. An Ordinance of the Government of the Territory of the United States Northwest of the River Ohio (July 13, 1787), in 1 Statutes at Large 51, 1 U.S.C.A. at 17-31 (1987) (hereinafter cited as Northwest Ordinance), also reprinted in Frederick E. Hosen, supra note 8, 45-41.

12. The legislation envisaged the ultimate formation of new states out of the Territory "at as early periods as may be consistent with the general interest," id. § 13, 1 U.S.C.A. at 20, but it also provided for more immediate government, including authorizing the subdivision of the territory into two districts, id. § 1, 1 U.S.C.A. at 17, and interim government by means of governor and judges until the formation of a General Assembly, id. § 5, §§ 9-11.

13. The common law and some of its familiar procedures were obviously recognized as rights enjoyed by the residents:

The inhabitants of the said territory shall always be entitled tot he benefits of the writs of habeas corpus, and of the trial by jury; of a proportionate representation in the legislature, and of judicial proceedings according to the course of the common law.

Northwest Ordinance § 14, art. II, in 1 U.S.C.A. at 21. The Ordinance also contained positive laws regulating testate and intestate succession. Id. § 2.

14. Id. § 4. The judges were required to have a freehold estate in at least five hundred acres and held their commissions "during good behavior." Id.

15. The terms of the ordinance gave the majority of the governor and judges lawmaking power but seemed to limit such power to the adoption of legislation in force in a state.

The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original States, crimina and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress from time to time, which laws shall be in force in the district until the organization of the general assembly therein, unless disapproved of by Congress. . .

Northwest Ordinance § 5, 1 U.S.C.A. at 18. Governor Sargent (a federalist appointee) was criticized by political opponents in the territory for, among other things, promulgating entirely new laws rather than adopting them from some other state. See generally John Ray Skates, Mississippi: A Bicentennial History 57 (1989).

The Governor acknowledged this criticism but expressed his intention of continuing to participate in new legislation, "though I would prefer exact adoption from any of the original state whenever such provision might sufficiently apply." Address to the Territorial Judges (May 5, 1800), in 1 The Mississippi Territorial Archives 1798-1803: Executive Journals of Governor Winthrop Sargent & Governor William Charles Cole Claiborne 231 (Dunbar Rowland ed. 1905). See generally Lawrence M. Friedman, A History of American Law 158-59 (2d ed. 1985)(discussing the widespread practice in the territories of copying statutes from states).

The Governor's political enemies also made much ado of the fact that one of his provisional criminal statutes punished arson by forfeiture of all estates in the territory. This was thought to conflict with the constitutional prohibition of "Forfeiture except during the Life of the person Attainted," U.S. Const. art. III § 3, or the prohibition of excessive fines, U.S. Const. amend VIII. See the petition presented to Congress, quoted in Robert Lowry & William H. McCardle, A History of Mississippi from the Discovery of the Great River by Hernando DeSoto including the Earliest Settlement made by the French, under Iberville, to the Death of Jefferson Davis 175-76 (1891). The Governor responded to this criticism by accepting responsibility for the error and working promptly towards repeal of the statute. See Address of May 5, 1800, in 1 Mississippi Territorial Archives, supra, at 230.

Problems of this sort were, perhaps, inevitable, given the lack of legal training of the Governor and the first judges. The Governor was evidently also handicapped by the lack of access to laws from other jurisdictions. In a letter to the Secretary of State of September 29, 1798, he had written, "For the Laws of the different states, I repeat my request, and for seals, stationary

[sic], and blank Commissions also." In id. at 54.

Negative evaluations of Governor Sargent colored redeemer historiography. See, e.g. Lowry & McCardle, supra at 171; 1 J.F.H. Claiborne, Mississippi, as a Province, Territory & State, with Biographical Notices of Eminent Citizens 203, 209 (1880). But see Dunbar Rowland, Winthrop Sargent: First Governor of Mississippi Territory, in 1 Mississippi Territorial Archives, supra, at 13.

16. Northwest Ordinance § 12, 1 U.S.C.A. at 20. The General Assembly was made up of the Governor (appointed by Congress), a House of Representatives (elected by resident males owning fifty or more acres of land who were either citizens of a state or residents of the district for two years), and a Legislative Council (consisting of five persons selected by Congress from a list of ten nominees submitted by the territorial House of Representatives. Id. §§ 3, 9, 11.

17. The source of federal territorial government in Mississippi is always identified with the establishment of the Mississippi Territory. See infra text at notes 8 to 15. The Act for the Government south of the Ohio River was presumably intended to govern only those lands ceded by North Carolina, but the legislation establishing the government in the territory provided broadly for the "territory south of the river Ohio," which arguably included all lands subject to federal dominion not included in the Northwest Ordinance.

18. An Act for the Government of the Territory of the United States, South of the River Ohio (May 26, 1790), in Hosen, supra note 8, at 45.

19. The legislation accepting the cession of claims from North Carolina provided for government in the new federal territory "in a manner similar to that which they [Congress] support in the territory [north]west of the Ohio. . . Provided always, That no regulations made or to be made by Congress, shall tend to emancipate slaves." An Act to accept a Cession of the Claims of the State of North Carolina to a Certain District of Western Territory (April 2, 1790), in Hosen, supra note 8, at 41, 44. This exception to the operation of the terms of the Northwest Ordinance was necessary to preserve slavery, because the Northwest Ordinance had provided, "There shall be neither slavery nor involuntary servitude in the [northwest] territory. . ." Northwest Ordinance § 14, art. VI, 1 U.S.C.A. at 23.

20. The Constitution provided for presidential appointment of officers. U.S. Const. art II. § 2.

21. An Act for an Amicable Settlement of Limits with the State of Georgia and Authorizing the Establishment of a Government in the Mississippi Territory (April 7, 1798), 1 Statues at Large 550, in Hosen, supra note 8, at 59:

hereby is constituted one district, to be called the Mississippi Territory: and the President of the United States is hereby authorized to establish therein a government in all respects similar to that now exercised in the territory northwest of the river Ohio, excepting and excluding the last article of the

ordinance made for the government thereof by the late Congress. . .and by and with the advice and consent of the Senate to appoint all the necessary officers therein. . .

22. Act of May 8, 1792 § IV, printed in Statutes of the Mississippi Territory; The Constitution of the United States, with the Several Amendments Thereto; The Ordinance for the Government of the Territory of the United States, North-West of the River Ohio; The Articles of Agreement and cession, Between the United States and the State of Georgia; and Such Acts of Congress as Relate to the Mississippi Territory 40 (Digested by the authority of the General Assembly 1816) (hereinafter cited as Statutes of the Mississippi Territory). Such judges were termed "supreme or superior judges of said territories." Id.

23. The third judge appointed apparently did not stay long in the territory. See generally 2 Dunbar Rowland, History of Mississippi The Heart of the South 441 (1925). One judge soon quitted the territory, and neither of the remaining two judges had legal training. A few years later, Governor Claiborne would write to Madison, "The Chief Justice, Mr. Lewis [who was appointed later] is a learned lawyer and a man of talents. But his colleagues, Messrs. Tilton and Bruin, (however amiable in private life), have not had the training for the bench. The former, it is said, read law for a few months, but never practiced. The latter was brought up a merchant. . . If these gentlemen, or either of them, should resign, as is now rumored, I respectfully urge the appointment of thoroughly trained lawyers of the highest character." Letter to Madison [Secretary of State] (January 8, 1802), in Lowry & McCardle, supra note 15, at 185.

24. Governor Sargent's own term. Letter to Timothy Pickering (Sept. 29, 1798), in 1 Mississippi Territorial Archives, supra note 15, at 53.

25. Information to the Inhabitants of the Mississippi Territory (Sept. 9, 1798), in id. at 42.

26. U.S. Const. amend. V. ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . .").

27. 1 Mississippi Territorial Archives, supra note 15, at 43 ("[U]pon Testimony of two Creditable [sic] Witnesses, that a Complaint is well founded, [two Conservators] may issue a precept directed to the Sheriff, to apprehend the Felon and him Commit to close Confinement to answer for his crime, before the Supreme Court of the Territory next to be holden after such Commitment, within the Said District.").

28. Id. at 43.

29. Dunbar Rowland, Winthrop Sargent, in 1 Mississippi Territorial Archives, supra note 15, at 10. The Secretary served as chief executive in the absence of the governor, and Rowland states that Governor Sargent often acted as governor. Id.

30. James L. Elder, Growing Pains under the Northwest Ordinance, The Law in Southwestern Ohio 10-11 (George P. Stimson ed. 1972)

31. See supra note 21.

32. I am not sure why the Northwest Territory itself borrowed so slavishly the forms of English common law court system. Perhaps this resulted from a literal reading of the Ordinance's language. Northwest Ordinance, supra note 11, art. II ("The inhabitants of the said territory, shall always be entitled to the benefits of. . .judicial proceedings according to the course of the common law.").

33. He had ordered:

If any officer shall neglect his duty, or violate any of the rules and regulations now, or hereafter to be made for the government of the militia, he shall be heard tried and sentenced by a court martial.

Courts martial may be appointed by the commander in chief, or the commandants of Legions, but the commander in chief reserves to himself the power of

approving and carrying into effect, sentences of courts martial, whereby the punishment shall be capital or an officer cashiered.

Order for Regulation of Militia (Sept. 8, 1798), in 1 Mississippi Territorial Archives, supra note 15, at 38-39.

34. Even though federal legislation provided for three judges, there were usually only two territorial judges present during most of the period of the territory. See generally William Baskerville Hamilton, Anglo-American Law on the Frontier: Thomas Rodney & His Territorial Cases 72-73 (1953).

35. 2 Rowland, supra note 23, at 441.

36. The governor revoked a commission of a Justice and also his commission as lieutenant in the militia after indictment for defacing a public record. 1 Mississippi Territorial Archives, supra note 15, at 328-29. The governor also appointed the attorney general and the clerk of the Supreme Court of the Territory. Id. at 1774. He also sought to control the admission of attorneys to the bar. See Letter to Daniel Tilton [territorial judge] (May 23, 1799), in id. at 147.

37. Jurisdiction included "pleas of assize, scire facias, replevins, and hear and determine all manner of pleas, actions, suits and cause of a civil nature, real, personal and mixed." Quoted in 2 Rowland, supra note 23, at 441-42.

38. "In Mississippi there was no expression of a sentiment of hostility to the common law and no effort to chop off the authority of English precedents at any terminal date." Hamilton, supra note 34, at 118. The untarnished prestige of the common law in Mississippi territory contrasted sharply with the bitter resistance to its reception in the Orleans territory and with the hostility to the common law experienced in the north--as witnessed by the codification movement and the successful passage of legislation "repealing" the common law in some states. See id. at 117. Judge Rodney's admiration for the common law is expressed clearly in his charge to Grand Jury (January 25, 1808), id. at 335-36.

The continuing eminence of Blackstone among practitioner's in the young state is evident in one of Joseph G. Baldwin's sketches. See The Flush Times of Alabama & Mississippi 233 (1974) (originally published 1853).

39. Letter of Rodney to Madison [Secretary of State] (Jan. 23, 1805), cited in Hamilton, supra note 34, at 72 n.28.

40. The broad original civil jurisdiction is recited in the commission of justices of common pleas. See 1 Mississippi Territorial Archives, supra note 15, at 241.

41. See, e.g., the appointments list dated May 6, 1799, 1 Mississippi Territorial Archives, supra note 15, at 145-46.

42. The first justices of the peace for Pickering County were simultaneously its first justices of the common pleas. Id. at 145, 146.

The first justices of the peace for Washington County also sat as Court of General Quarter Sessions of the peace.

All but one (who was appointed probate judge) were also commissioned as justices of the common pleas, which sat in panels of three, id. at 239, 240-41. I should point out that the Washington county referred to was not Washington County, Mississippi, but rather a county contiguous with the Washington District in the eastern Mississippi Territory. See the description of the borders in id. at 238. Washington County, Mississippi, like most of the delta was unsettled at this time and was not formed until 1827, when it received a full complement of county courts and officials, and even at that late date it had only 170 property owners. See generally Bern Keating, A History of Washington County, Mississippi 22 (The Greenville Junior Auxiliary 1976).

There was similar overlap in the commissions of justices in Adams County. See 1 Mississippi Territorial Archives, supra note 15, at 130, 133, 241.

43. See the scheduling orders in id. at 127, 145, 238.

44. For example, the same men were appointed as prothonotary of the common pleas and clerk of the quarter sessions for Washington and Pickering Counties. Id. at 145, 241.

45. It is interesting to note that justices in the Mississippi territory, sitting as quarter sessions, were thus acquiring general jurisdiction during the same period that the justices of the peace in Kentucky stopped acting in that capacity. See generally Robert M. Ireland, The County Courts in Antebellum Kentucky 2 (1972).

46. Lowry & McCardle, supra note 15, at 197.

47. Id.

48. Act of March 10, 1803, revised and amended by the act of December 9, 1809, in Statutes of the Mississippi Territory, supra

note 22, at 349.

49. Act of March 27, 1804 § 1, in Statutes of the Mississippi Territory, supra note 22, at 45. This Washington District surrounded the Tombigbee settlement. The judicial districts originally included in the western Natchez District of the Territory were Adams (for Adams and Wilkinson counties) and Jefferson (for Jefferson and Claiborne counties.

50. Id. §§ 1&2. See also Act of Feb. 10, 1807, in id. at 138, § 26.

51. Act of March 2, 1810, in Statutes of the Mississippi Territory, supra note 22, 48-49. The statute now expressly provided that the territorial court of Adams County had to sit in panels of at least two judges when hearing appeals from the territorial courts in Washington and Madison counties. Id 49. The Madison District was not present day Madison County, Mississippi, but lay to the east on the bend of the Tennessee River. See generally Hamilton, supra note 34, at 72 n.31.

52. Hamilton discusses the problem of federal authority of the territorial judges at length. Hamilton, supra note 34, 91-115 (1953). Territorial judges like Judge Rodney clearly believed that they could exercise jurisdiction of inferior federal courts. See id. at 93-95. Under Judge Rodney the territorial court issued process as a federal court and sat as a trial court in federal cases styling itself "the "Supreme Court Sitting as a Circuit Court of the U.S." Id. at 95, 96. This posed a legal problem in that the territorial supreme court lacked original jurisdiction and sat without a jury under territorial law. Id.

53. Act of March 3, 1805, in Statutes of the Mississippi Territory, supra note 22, at 47. The district court in Kentucky enjoyed all the jurisdiction of the circuit courts except the power to hear appeals or issue writs of error. See Act of September 24, 1789, in Statutes of the Mississippi Territory, supra note 22, at 46.

54. Id. The Supreme Court had previously distinguished the territorial courts from United States Circuit Courts and refused to exercise appellate jurisdiction over a territorial court because Congress had not expressly conferred such appellate jurisdiction on it. Clarke v. Bazadone, 5 U.S. (1 Cranch) 212, 214 (1803). See generally Hamilton, supra at 100-02. Hamilton suggests some reasons for the absence of any appeals during the territorial period, and he concludes, "So far as the private wrongs of the Mississippi colonists were concerned, their local courts were the last resort. The only checks upon such courts were the alertness of the bar and the habitual procedures of English common law." Id. at 105.

55. "The term 'common law' was ambiguous. Probably--but by no means certainly--the term was meant to exclude equity jurisdiction." Lawrence M. Friedman, A History of American Law 158 n.1 (2d ed. 1985). I believe this argument was first made by Francis S. Philbrick, The Laws of the Indiana Territory 1801-09 at xli nn. 100-01 (1950). {Check this cite!}

56. An Act for giving Equity Jurisdiction to the Superior Courts, Jan. 30, 1802, cited in Hamilton, supra note 34, at 131

n.56. Hamilton recounts the colorful local events leading up to this legislation. Id. at 129-30. Other territories also quickly authorized their courts to exercise equity jurisdiction or, in the case of the Indiana Territory, created a separate court of equity. Id. at 129.

The influence of Blackstone and other legal texts led to the adoption of many ridiculous details of equity practice before the Chancellor in England. See, e.g., id. 131.

57. Act of Feb. 10, 1807, Statutes of the Mississippi Territory, supra note 22, at 142, § 45 ("[e]ach of the territorial judges shall have power and authority to issue writs of injunction and ne exeat. . ."); id. § 46 ("said courts sitting in chancery, shall have power and authority to order and issue all process, as hath usually belonged to courts of chancery. . ."). See also id. § 43 (granting the supreme court and the superior court for the Washington district equity jurisdiction over the Washington district and a number of counties).

58. Judge Rodney's notes for the case of William Conner & Wife v. J[ames] W[illiams] (October Term 1805) records the argument, "the defendt. admits part of acct. but denies that Pltffs remedy is in this Court, and Says it is in a Coutt of Law." In Hamilton, supra note 34, at 193. In a note at the end of the record, Judge Rodney wrote:

In arguing the preceding Case the followg. Rules Or Legal Maxims were generally agreed To. . .

The Courts of Equity are bound by Law as Well as the Court of Law.

The Court of Chancery has Control over Exrs: Admrs: and Guardians Accounts &c. And have Control in the appointments of Guardians to Minors and Lunatics and Over the Management of their Estates and those of Orphans &c. and Sometimes may Take Cognizance of Partnership Accounts. . .

Id. at 198.

59. Rowland's account is confusing because he is does not understand that the superior courts (in their various names) were nothing other than the territorial judges sitting in slightly different capacities. For example the territorial judge who sat as trial judge in parts of the territory not yet made a county (and in the separate Washington district) was referred to (descriptively) as the district or district superior court, while the same judge sitting as trial court counties was referred to (descriptively) as circuit court. The 1807 legislation did not actually establish new courts of these names as Rowland supposes, 2 Rowland, supra note 23, at 442, so much as it adjusted the jurisdiction of the existing superior courts and, in doing so, referred to them by their appropriate descriptive names. Thus territorial legislation granted each territorial judge broad power to issue "writs and process returnable to the supreme court, or either of the circuit courts, or to the district court of Washington, as the case may be. . ." Act of Feb. 10, 1807 § 1, Statutes of the Mississippi Territory, supra note 22, at 134. But it was these same territorial judges who sat as the "supreme court" (when in a panel exercising supervisory jurisdiction), as the "circuit court" (when sitting as a trial court), and as a "district court" (for the Washington the assigned by Congress exclusively to the most recent territorial judge). The territorial judges were also given broad supervisory or appellate jurisdiction over the inferior courts, which the statute variously called "inferior courts," "county" courts, and "justices of the peace" in the same statute. Id.

60. Act of February 10, 1807 § 1, in Statutes of the Mississippi Territory, supra note 22, at 131.

61. Id. § 2 at 131-32.

62. Id. § 15 at 132.

63. Id. § 5 at 135.

64. Id. § 41 at 141.

65. Id. § 6, at 135. See Act of Feb. 6, 1807 §12, id. at 157 (authorizing special session of any superior court to try cases whenever necessary).

66. Id. § 9. The circuit courts also called the grand jury. Id. §18 at 137.

67. Act of Dec. 22, 1809, Statutes of the Mississippi Territory, supra note 22, at 178-79, § 1.

68. Id. at 179, § 6. See generally 2 Rowland, supra note 23, at 442-43; Hamilton, supra note 34, at 72.

While writers often refer to this statute abolishing the "supreme court" as constituting a significant legal change in the court system, it probably had little practical effect. The supreme court did two things. First, it exercised original jurisdiction in parts of the territory not made counties. But as more of the territory was organized into counties, disputes fell increasingly under the jurisdiction of superior judges sitting as "circuit" rather than "supreme court" judges. By act of Congress, a single judge could always have sat as the supreme court when so needed. But by requiring the judge to sit in the county as circuit court, the law minimized the serious inconvenience that parties and jurors would have suffered in traveling to the supreme court. Indeed, the inconvenience to jurors had bee raised as a compelling argument in favor of giving federal jurisdiction to the circuit court rather than the supreme court. See Judge Rodney's note (June 8, 1807), Hamilton, supra note 34, at 306 ("The others grounded Their Opinions on the Acts of the Terr[itor]y and Judge B[ruin] Said it was Too far Jurors to Come [to Adams] from Claiborn[e] here. . .").

Second, it exercised supervisory jurisdiction--including over superior court judges. Thus the main effect of abolishing the supreme court per se would apparently have been the elimination of the practice of superior judges in reviewing writs of error in panels of more than one judge. If, however, the judge to whom the error ran did not participate on the panel during such review, and if there were usually only two territorial judges in the western district, then there would not have been any change: ultimate review (before and after the abolition of the supreme court) occurred before a single territorial judge (who had not tried the case below).

69. Act of January 20, 1814, in Statutes of the Mississippi Territory, supra note 22, at 200, § 1. The court met at the court house in Adams county twice yearly, and the territorial judge for Washington district was excused from sitting in it. Id.

70. Id. at 201 § 4. While establishing broad supervisory jurisdiction, this statute significantly also imposed the final judgment rule except where the trial judge certified the question:

[B]ut no cause shall be removed into the said supreme court of errors and appeals, until after final judgement in the court below, except where the judge or judges in the said court below shall doubt as to the law, or rule of decision, and in that case, he or they may respite the final judgment, and refer the question to the said supreme court of errors and appeals. . .

Id.

71. Id. § 2 at 200-01.

72. See Act of December 12, 1816, in Statutes of the Mississippi Territory, supra note 22, at 473, § 4.

73. Miss. Const. of 1817.

George Poindexter, who had served as territorial judge, chaired the committee that drafted the constitution and was responsible for much of the state's first constitution. See generally Mack Swearingen, The Early Life of George Poindexter: A Story of the First Southwest 146, 155 (1934); David G. Sansing, Mississippi's Four Constitutions, 56 Miss. L.J. 3, 5 (1988); Winbourne Magruder Drake, The Framing of Mississippi's First Constitution, 28 J. Miss. Hist. 301-27 (1967). The journal of the constitutional convention is reproduced, The Journal of the Constitutional Convention of 1817, 29 J. Miss. Hist. 443-504 (1967) (William F. Winter ed.). Although Drake and others have suggested that the structure of the court system reflected compromises that expressed dissatisfaction with the territorial courts, see Drake, supra, at 318-19, John W. Winkle III emphasizes the influence of other state models: "Adapted, if not borrowed verbatim, from other frontier constitutions such as those of Kentucky and Tennessee, the Mississippi version offered few, if any, distinctive features among its six articles." The Mississippi State Constitution A Reference Guide 2 (1993).

74. Miss. Const. of 1817 Impeachments § 1 (the House of Representatives commences impeachments); id. § 2 (the Senate tries impeachments and convicts with a two-thirds vote).

The impeachment article was taken verbatim from language in the Constitution of the State of South-Carolina [sic] of 1790 art V, in 2 The First Laws of the State of South Carolina appendix at 41 (1981), except that South Carolina had required the House to impeach by a two-thirds vote and had listed the lieutenant governor after the governor in section three.

75.

Each house may. . .punish members for disorderly behaviour, and, with the consent of two-thirds, expel a member, but not a second time, for the same cause, and shall have all other powers necessary for a branch of the Legislature of a free and independent State.

Miss. Const. of 1817 art. III § 16.

76. Miss. Const. of 1817 art. III § 20 ("Each house may punish by imprisonment, during the session, any person, not a member, for disrespectful or disorderly behavior in its presence, or for obstructing any of its proceedings; provided, such imprisonment shall not at any one time exceed forty-eight hours.").

77. Miss. Const. of 1817 Militia § 1 ("The General Assembly shall provide by law for organizing and disciplining the militia of this State. . .").

78. See Miss. Const. of 1817 art. IV § 17 ("The appointment of all officers, not otherwise directed by this Constitution, shall be by the joint vote of both houses of the General Assembly."). The only judicial appointment power given expressly to the governor was power to appoint a superior court judge for Jackson, Greene, Wayne and Hancock counties. See id. Schedule § 9. The constitution gave the legislature power to determine the method

for selecting justices of the peace, id. § 8, and the legislature gave the governor the power to appoint. An Act concerning the appointment, jurisdiction, and powers of justices of the peace, within this state § 1, June 1822 Miss. Laws 1; Revised Code of the Laws of Mississippi 19 (George Poindexter comp. 1824) (hereinafter cited as Rev. Code Miss. 1824).

79. "The judicial power of this State shall be vested in one supreme court, and such superior and inferior courts of law and equity as the Legislature may, from time to time, direct and establish. Id. art. V § 1. While some scholars assume this delegation of court-making was derived from the United States Constitution, see Winkle, supra note 73, at 4, the real model was the role of the territorial assembly in the immediately preceding period. Moreover, the language was not borrowed from the Constitution but was taken directly from the 1790 South Carolina state constitution or from some other constitution that copied it or that it copied. See Const. State of South-Carolina [sic] art. III § 1 ("The judicial power shall be vested in such superior and inferior courts of law and equity as the legislature shall from time to time direct and establish."), in The Public Laws of the State of South Carolina, reprinted in 2 The First Laws of the State of South Carolina, supra note 74, appendix at 41.

80. Miss. Const. of 1817 art. V. § 2. Rowland describes the election of the first supreme court judges. 2 Rowland, supra note 23, at 445. One judge was elected for each of the four districts, and the judge residing in the second district was designated presiding judge. Id.

81. Miss. Const. of 1817 art. V § 2.

82. Id. art. V. § 9 (The judges of the several courts of this State shall hold their offices during good behavior."). Justices of the peace, in contrast, would serve for the term directed by the legislature. Id. art. V § 8. All judges could be impeached, id. art. impeachments, and the governor could remove them for cause under procedures set forth in the constitution, id. § 9. They could not simply be removed without cause by vote of the legislature, as one commentator suggests, see Winkle, supra note 73, at 4, and the constitutional convention resisted efforts to permit removal by mere majority vote of the legislature, see Drake, The Framing of Mississippi's First Constitution, supra note 73, at 320. The compensation of superior court justices could not be reduced. Miss. Const. of 1817 art. V. § 2.

83. Id. § 10 ("No person who shall have arrived at the age of sixty-five years shall be appointed to, or continue in, the office of judge in this State.").

84. Id. § 3. The constitution did not explicitly state that such a judge needed to be a superior court judge, but that is a fair reading.

85. The constitution employed language that explicitly granted original criminal jurisdiction to the superior court judges in stating, "The superior court shall have original jurisdiction in all matters, civil and criminal, within this State." Id. §4. I am thus baffled by Rowland's observation, "Under the constitution of 1817, only one criminal court was in operation, that established at Natchez in 1823." 2 Rowland, supra note 23, at 444.

86. Miss. Const. of 1817 § 8 ("jurisdiction, in civil cases, shall be limited to causes in which the amount in controversy shall not exceed fifty dollars."). Because this was stated as a limitation on possible jurisdiction rather than as a grant of jurisdiction, the general laws could constitutionally further restrict the civil jurisdiction of justices of the peace. See infra text at notes 129&141 (discussing the respective civil jurisdiction of county court and justices of the peace).

87. Miss. Const. of 1817 art. V § 5. One commentator apparently misread this provision as applying to the supreme court and requiring the supreme court to sit twice a year. See Frank E. Everett, Jr., Lawyers, Courts, and Judges 1890-1970, in 2 A History of Mississippi 378 (Richard Aubrey McLemore ed. 1973).

88. Miss. Const. of 1817 § 6. The constitution vested equity jurisdiction in the superior courts until the establishment of the chancery court or courts. Id.

89. Id. § 7 ("The Legislature shall have power to establish in each county, within this State, a court of probate, for the granting of letters testamentary, and of administration, or orphan's business, for county police, and for the trial of slaves.").

90. An Act to Establish and Organize the Supreme Court and to Define the Powers and Jurisdiction Thereof §§ 1-5, June 1822 Miss. Laws 76-77, Rev. Code Miss. 1824 at 149-50.

91. Id. § 5 at 149-50. The supreme court's seat was moved to Lawrence county from 1826 to 1827. See An Act to Remove the Supreme Court of This State from the City of Natchez [Jan. 31, 1826] § 1, in Laws of the State of Mississippi; Embracing all Acts of a Public Nature from January Session, 1824, to January Session 1838, Inclusive 95 (1838) (hereinafter cited as Laws Miss. 1824-38) (moved to town of Monticello), and An Act to Provide for Holding one Term of the Supreme Court at Natchez § 1, 1828 Miss. Laws 60, Laws Miss. 1824-38 146-47 (providing for winter term of supreme court to be held in Natchez).

Writs of error were made available as a matter of right by statute in 1830. An Act to Amend the 54th Section of an Act Entitled "an Act to Establish a Court of Chancery in this State. . ." § 4, Jan. 1830 Miss. Laws 33, Laws Miss. 1824-38 217.

92. Id. ("Provided, That no appeal, writ of error or supersedeas shall be granted, nor shall any cause be removed into the supreme court, in any manner whatsoever, until after final judgement or decree in the court below, except in cases particularly provided for by law."). There were a number of exceptions, the most important being interlocutory appeals in chancery--id. § 10 at 151. See infra note 118.

The Supreme Court strictly enforced the limits of its own jurisdiction, requiring that there be an express grant of jurisdictional authority, and refusing to exercise jurisdiction to review an interlocutory decree in chancery that ordered an accounting but did not yet order the payment of any money. See Linn v. Kyle, 1 Miss. (Walk.) 315, 316 (1829).

93. See an Act to Amend an Act Entitled "an Act to Establish and Organize the Supreme Court and to Define the Powers and Jurisdiction Thereof["] § 1 [Feb. 8, 1827], Laws Miss. 1824-38 107 ("it shall be the duty of the supreme court of this state to establish rules for proceeding in said court, and also rules for bringing causes to issue and the proper conducting of the business in the several circuit courts. . ."); an Act to Provide for Reporting the Decisions of the Court of Chancery and for Other Purposes § 1, Jan. 1830 Miss. Laws 49, Laws Miss. 1824-38 223 (authorizing Chancellor Quitman "to adopt a system of rules of practice in the court of chancery. . .").

94. In holding that a statute authorizing transfer of a case before final judgment from a superior court conferred jurisdiction and did not exceed the constitutional limits on the supreme court's powers, the court emphasized that the superior court (with original jurisdiction) itself authorized the transfer under the statute. Blanchard v. Buckholt's Adm'r, 1 Miss. (Walk.) 64, 65 (1818).

95. When the chancellor was disqualified from sitting as court in a case under his jurisdiction, the case was removed to the supreme court. An Act to Establish a Court of Chancery § 7, 1822 [Nov. 1821] Miss. Laws 107, Rev. Code Miss. 1824 86. The supreme court, along with circuit and chancery courts, was authorized to

hear petitions for writs of habeas corpus. An Act to Reduce into One the Several Acts Concerning the Writ of Habeas Corpus and to Annul the Remedy by Writ De Hominem Replegiando § 1, June 1822 Miss. Laws 266-67, Rev. Code Miss. 1824 221.

96. An Act to Reduce into One the Several Acts and Parts of Acts Concerning the Establishment, Jurisdiction and Powers of the Superior Courts of Law § 4, June 1822 Miss. Laws 26, Rev. Code Miss. 1824 102. Judges were allowed to swap circuits--permanently or temporarily. Id. § 174, June 1822 Miss. Laws 73, Rev. Code Miss. 1824 445.

97. A fifth circuit would be added in 1828. An Act to Amend an Act to Reduce into One the Several Acts and Parts of Acts Concerning the Establishment, Jurisdiction and Powers of the Superior Courts of Law § 1, 1828 Miss. Laws 72, Laws Miss. 1824-38 148-49.

98. An Act to Reduce into One the Several Acts and Parts of Acts Concerning the Establishment, Jurisdiction and Powers of the Superior Courts of Law § 16, June 1822 Miss. Laws 30, Rev. Code Miss. 1824 105-06.

99. Thomas v. Miller, Walk. (1 Miss.) 324, 324 (1829).

100. See An Act to Reduce into One the Several Acts and Parts of Acts Concerning the Establishment, Jurisdiction and Powers of the Superior Courts of Law § 168-69, June 1822 Miss. Laws 71-72, Rev. Code Miss. 1824 144.

101. Id. § 176, June 1822 Miss. Laws 73, Rev. Code Miss. 1824 145 ("The judges. . .shall within their respective circuits, have power to grant writs of injunction. . ."). Perhaps injunctions were termed "writs of injunction" in order to bring them under the constitution's grant of jurisdiction over all remedial "writs."

In 1828 circuit courts were also authorized to engage in the equitable practice of compelling discovery. An Act to Authorize and Compel Discoveries in Courts of Law in Certain Cases § 1, 1828 Miss. Laws 189, Laws Miss. 1824-38 162 ("circuits [sic] courts of law therein shall be. . .vested with full and complete power to compel discoveries in aid of actions at law. . .whenever, by the rules of equity, a discovery would be compelled in a court of chancery. . .").

102. Miss Code Ann. § 9-1-19 (1994 Supp.)("The judges of the. . .circuit courts. . .may severally. . .grant injunctions and all other remedial writs. . ."). The present statute first appeared in the code of 1857. Miss. Rev. Code ch. 61, § 3, art. 9 (1857). The supreme court has remarked in passing (in dictum) that this statute authorizes circuit court judges to grant injunctions. McMahon v. Adult Membership Boards of the Phi Kappa, Duty, and Debs Clubs, 244 Miss. 695, 146 So. 2d 359, 360 (1962). But it seems that no party has challenged the constitutionality of the statute, nor has anyone ever directed the court's attention to the fact that the present statute stems from 1857, a time when circuit courts were granted equity jurisdiction by the constitution and, indeed, when separate chancery courts had been abolished. See infra text at notes 235 to 244.

103. It should be noted, however, that at least there was originally no constitutional problem with the grant of jurisdiction to issue injunctions to circuit court, because the constitution did not divest the circuit court of jurisdiction conferred on other courts (as does the constitution of 1890, see infra text at notes 393 to 394). The only jurisdiction divested from the circuit courts under the constitution of 1817 was civil jurisdiction over matters where the matter or sum in controversy did not exceed fifty dollars. Const. of 1817 art. V. § 4.

104. There are also problems with the grant of jurisdiction to issue writs of ne exeat. The writ of ne exeat prohibited a person from leaving the court's jurisdiction. Such writs, so far as they restricted citizens from leaving the state, may have been unconstitutional. See Miss. Const. of 1817 art. 1 § 27 ("No citizen of this State shall be exiled, or prevented from emigrating, on any pretence whatever.").

105. An Act to Reduce into One the Several Acts and Parts of Acts Concerning the Establishment, Jurisdiction and Powers of the Superior Courts of Law § 176, June 1822 Miss. Laws 73, Rev. Code Miss. 1824 145.

106. My reason for doubting this is that the legislature in 1825 would prohibit both the chancellor and the supreme court from issuing injunctions ex parte. An Act Supplemental to an Act to Establish a Court of Chancery in this State, and to Prescribe the Rule of Proceeding Therein § 1 [Feb. 4, 1825], Laws Miss. 1824-38 74 (no injunction or stay or supersedeas granted unless defendant had five days notice). It seems extremely unlikely that the legislature meant to permit the circuit courts to issue injunctions prohibited to the chancellor and supreme court, and the most likely reasons for the omission of the supreme court was that lawmakers forgot (then as now) that there was a grant of injunction power to the circuit court.

107. An Act to Establish a Court of Chancery in this State and to Prescribe the Rule of Proceeding Therein § 1, 1822 [Nov. 1821] Miss. Laws 105, in Rev. Code Miss. 1824 84. Legislation created two districts and required the chancellor to sit at specified terms in Adams county for the western district and Marion for the eastern district. An Act to Establish a Court of Chancery § 4, 1822 [Nov. 1821] Miss. Laws 106, Rev. Code Miss. 1824 85. In 1827, the state was divided into four chancery districts. An Act to Amend an Act Entitled "An Act to Establish a Court of Chancery" § 1 [Feb. 5, 1827], Laws Miss. 1824-38 131.

108. An Act to Establish a Court of Chancery § 2, 1822 [Nov. 1821] Miss. Laws 105, Rev. Code Miss. 1824 84.

109. But no person shall commence an original suit in any matter of less value than fifty dollars, on pain of having the same dismissed with costs." An Act to Establish a Court of Chancery § 21, 1822 [Nov. 1821] Miss. Laws 111, Rev. Code Miss. 1824 90.

110. See, e.g., Ross v. Barland, 1 Miss. (Walk.) 489, 491 (1831) (no equity jurisdiction to vacate a land grant where court of law could set aside grant); Bates v. Bates 1 Miss. (Walk.) 356, 357 (1829) (party claiming legal property in slaves cannot invoke equity). See generally 3 W. Blackstone, Commentaries on the Laws of England * 432 (T. Cooley ed. 1884) ("The suggestion indeed of every bill, to give jurisdiction to the court of equity (copied from those early times), is that the complainant hath no remedy at common law. But he who should from thence conclude, that no case is judged of in equity where there might have been relief at law, and at the same time casts his eye on the extent an variety of the cases in our equity reports, must think the law a dead letter indeed.").

111. In litigation to enjoin enforcement of a judgment, where the creditor went into great detail in the accounting, the supreme court held that the Chancellor acquired jurisdiction over the account, because it would be unfair to let the creditor raise the validity of certain claims and challenge jurisdiction only if he lost. Head v. Gervais 1 Miss. (Walk.) 431, 436-37,12 Am. Dec. 577 (1831).

112. An Act to Establish a Court of Chancery § 31, 1822 [Nov. 1821] Miss. Laws 113, Rev. Code Miss. 1824 91-92.

113. The chancellor could appoint commissioners who enjoyed broad power to subpoena and examine witnesses. An Act to Establish a Court of Chancery §§ 25-29, 32, 1822 [Nov. 1821] Miss. Laws 112-13, Rev. Code Miss. of 1824 90-92.

114. An Act to Establish a Court of Chancery § 24, 1822 [Nov. 1821] Miss. Laws 112, Rev. Code Miss. 1824 90.

115. Id. ("The chancellor, in his discretion may direct an issue or issues, to be tried. . .in any other court whatsoever,

as justice or convenience to the parties may require; an in all other cases, the mode of trial shall be the same as has been heretofore used and practised in courts of chancery.").

116. Id. § 30, 1822 [Nov. 1821] Miss. Laws 113, Rev. Code Miss. 1824 91.

117. Id. § 35, [Nov. 1821] Miss. Laws 114, Rev. Code Miss. 1824 93.

118. Id. §§ 36-36, [Nov. 1821] Miss. Laws 114-15, Rev. Code Miss. 1824 93-93.

119. An Act to Reduce into One the Several Acts Concerning Last Wills and Testaments, the Duties of Executors, Administrators and Guardians, and the Rights of Orphans and Other Representatives of Deceased Persons § 1, 1822 [Nov. 1821] Miss. Laws 37-38, Rev. Code Miss. 1824 27. The probate court had no power to issue a writ of certiorari to a justice of peace. Barlow v. Esterling, 1 Miss. (Walk.) 302, 302 (1827).

120. An Act to Reduce into One the Several Acts Concerning Last Wills and Testaments, the Duties of Executors, Administrators and Guardians, and the Rights of Orphans and Other Representatives of Deceased Persons § 8, 1822 [Nov. 1821] Miss. Laws 40, Rev. Code Miss. 1824 29.

121. Id. ("in case either party shall require, the court shall direct an issue or issues to be made up, and sent to the circuit court of the same county; and the said issue or issues shall be tried in the said circuit court as soon as may be. . .and the power of the said court, and proceedings relative thereto, shall be, as in other cases, respecting the trial of issues; and the orphans' court shall give judgment, or decree upon the bill and answer, or upon bill, answer, depositions, or finding of the jury. . .")

122. Id. § 12, 1822 [Nov. 1821] Miss. Laws 41, Rev. Code Miss. 1824 30. Apparently the choice of the appellate court was left to the appellant. This right was retained in An Act to Amend an act entitled "An Act to Establish a Court of Probate" § 1, Jan. 1830 Miss. Laws 27, Laws Miss. 1824-38 295.

123. an Act to Establish a Court of Probate. . . § 1 [Jan. 23, 1824], in Laws Miss. 1824-38 53.

124. Ex parte Sellers, 1 Miss. (Walk.) 414, 414 (1831) (dismissing two appeals from county and probate courts, citing the act of 1824, and emphasizing the supreme court's limited jurisdiction).

125. An Act to Amend an Act Entitled "An Act to Establish a Court of Probate" § 1, Jan. 1830 Miss. Laws 30, Laws of Miss. 1824-38 295.

126. Legislation expressly provided that justices of county courts could not be a justice of the peace. An Act Concerning the Establishment, Jurisdiction and Powers of the Inferior Courts of Law in the Several Counties of this State § 34, June 1822 Miss. Laws 21, Rev. Code Miss. 1824 81.

127. Id. § 1, June 1822 Miss. Laws 21, Rev. Code Miss. 1824 71.

128. Id. § 1-2, June 1822 Miss. Laws 11, Rev. Code Miss. 1824 71-72.

129. Id. § 14, June 1822 Miss. Laws 15, Rev. Code Miss. 1824 75 ("The county courts. . .shall have original jurisdiction al all suits and actions for the recovery of money, founded on any bond, bill, promissory note, or other written contract, covenant or agreement whatsoever, or on any open account, where the sum demanded shall exceed twenty dollars, and shall not exceed fifty dollars, including all interest due thereon. . ."). I read this monetary limit as applying to all the causes of action, but it would be possible to read it as applying only to actions on open accounts.

130. Id. § 15, June 1822 Miss. Laws 15, Rev. Code Miss. 1824 75.

131. Id.

132. Id. § 24, June 1822 Miss. Laws 18, Rev. Code Miss. 1824 78. Actions could not be appealed or removed by writ to the supreme court unless first taken to the circuit court. Id. § 26, June 1822 Miss. Laws 19, Rev. Code Miss. 1824 79.

133. An Act to Amend an Act Entitled "An Act to Extend the Power and Jurisdiction of the County Court in and for the County of Monroe and for Other Purposes" § 1 [Jan. 10, 1824], Laws Miss. 1824-38 20.

Monroe County court had a unique history. Given concurrent jurisdiction with circuit court up to the staggering amount of three hundred dollars, the court was divested of original civil jurisdiction altogether in 1825, and pending cases were transferred to circuit court. An Act to Repeal an Act Entitled "An Act to Extend the Jurisdiction and Power of the County Court in and for the County of Monroe, and for Other Purposes" §§ 1&3 [Jan. 29, 1825], Laws Miss. 1824-38 60. Other legislation ultimately removed all vestiges of the exceptional treatment of county court in Monroe County. An Act [of Jan 30, 1830] to Amend an Act Entitled "An Act to Establish a Court of Probate" § 1, Jan. 1830 Miss. Laws 26, Laws Miss. 1824-38 214-15; An Act [of Feb. 11, 1830] to Amend and Act Entitled "An Act to Establish a Court of Probate. . ." § 1, Jan. 1830 Miss. Laws 172, Laws Miss. 1824-38 293 (repeating the repealer provision of the Act of Jan. 30).

134. An Act Concerning the Establishment, Jurisdiction and Powers of the Inferior Courts of Law in the Several Counties of this State § 14, June 1822 Miss. Laws 14, Rev. Code Miss. 1824 75 ("The County Courts. . .shall have power to hear and determine all prosecutions in the name of the State, against any slave or slaves, charged with felony. . .").

135. The judicial organization of county administration could resulted in unwieldy procedures. The county court was responsible for organizing the road system; but legislation required the selection of a jury of property owners to arrange the details of the route. In one case a county neglected to empanel a jury. The overseer of the county's work crew was prosecuted for trespass. He sought to raise as a defense the county court's directions to make the road. The validity of the defense was treated, however, as an issue of the jurisdiction of the county court. Stockett v. Nicholson 1 Miss. (Walk.) 75, 77-79 (1818) (holding that the county court as inferior court lacked jurisdiction in absence of jury to direct the construction of road so that overseer was not allowed to raise the county's order as a defense to trespass).

136. An Act Concerning the Appointment, Jurisdiction and Powers of Justices of the Peace §§ 1-2, June 1822 Miss. Laws 1-2, Rev. Code Miss. 1824 19.

137. An Act Further to Amend the Acts Concerning the Jurisdiction and Powers of Justices of the Peace in this State and for Other Purposes § 1 Dec. 1830 Miss. Laws 117-18, Laws Miss. 1824-38 334.

This significant change in the manner method of selecting justices preceded the more dramatic changes in the Constitution of 1832, which would require the election of all state judges. See infra text at note 194.

138. An Act Concerning the Appointment, Jurisdiction and Powers of Justices of the Peace, §§ 3-5, June 1822 Miss. Laws 2-3, Rev. Code Miss. 1824 20-21.

139. For example, it was a crime for either slaves or free blacks or mulattos to gather "for teaching them reading or writing, either in the day or night, under whatsoever pretext" and justices of the peace could try offenders and sentence them to up to thirty-nine lashes. An Act to Alter and Amend an Act Entitled "An Act to Reduce into One the Several Acts Concerning Slaves, Free Negroes and Mulattoes § 2 [Jan. 16, 1823], Rev. Code Miss. 1824 390. A justice of the peace could sentence a free black to up to thirty-nine lashes "well laid on his or her back" for giving liquor to a slave. An Act to Reduce into One the Several Acts Concerning Slaves, Free Negroes, and Mulattoes § 31, June 1822 Miss. Laws 188, Rev. Code Miss. 1824 376. A justice of the peace could sentence a black or mulatto, free or slave, to up to thirty-nine lashes for using abusive and provoking language. Id. § 32, June 1822 Miss. Laws 190-91, Rev. Code Miss. 1824 376.

140. The same conduct, such as keeping a dog, might made a serious offense for a slave, punished by up to twenty-five lashes for each offense, but a minor offense for a master, punished by a five dollar fine. Id. § 42, June 1822 Miss. Laws 190-91, Rev. Code Miss. 1824 379. See also An Act to Prevent Unlawful Hunting §§ 1&3, June 1822 miss. Laws 243-44. Rev. Code Miss. 1824 319 (illegal hunting tried before justice but sentence for slave up to thirty lashes while others sentenced by fine). When the punishment was serious enough, the justice of the peace lost jurisdiction over white defendants. For example, a slave attending an unlawful assembly was tried by the justice of the peace and punished with up to thirty-nine lashes. An Act to Reduce into One the Several Acts Concerning Slaves, Free Negroes, and Mulattoes § 31, June 1822 Miss. Laws 188. A white person attending such a meeting would be bound over to the next superior court and could ultimately be fined twenty dollars and receive up to twenty lashes. Id. § 19, June 1822 Miss. Laws 184.

Justices of the peace were given jurisdiction to try violations of an Act for the Suppression of Vice and Punishing the Disturbers of Religious Worship and Sabbath Breakers § 8, June 1822 Miss. Laws 225, Rev. Code Miss. 1824 316-18 (punishment of a cursing, drunkenness, and a variety of bad behavior by fines and imprisonment of up to 24 hours).

141. An Act Concerning the Appointment, Jurisdiction and Powers of Justices of the Peace § 9, June 1822 Miss. Laws 4, Rev. Code Miss. 1824 22 ("All debts and demands not exceeding fifty dollars, for a sum or balance due on any specialty, note, bond, cotton receipt, contract or agreement in writing, or for goods, wares and merchandize [sic] sold and delivered, or for work or labor done, or for money lent, or for specific articles, or for any sum or balance due, either by writing or verbal contract, or assumpsit, in any case not sounding in damages merely, are hereby declared to be cognizable and determinable by a justice of the peace. . .").

The monetary limit and the desirability of quick, local justice meted out by justices of the peace motivated creditors to try to structure their claims so as to enforce them before a justice of the peace. It was held that creditors could not separately enforce three notes given in the same transaction in order to confer jurisdiction on a justice of the peace. Grayson v. Williams, 1 Miss. 298, 298, 12 Am. Dec. 568 (1827) (remarking that the splitting of claims in order to bring cases before justices of the peace "has been a vexed question in our courts, since the formation of our state government. . .).

142. An Act for the Better Securing the Payment of Rents § 1 June 1822 Miss. Laws 260, Rev. Code Miss. 1824 21-22.

143. An Act Concerning Forcible Entries and Detainer § 10, June 1822 Miss. Laws 378, Rev. Code Miss. 1824 23.

144. An Act Concerning the Appointment, Jurisdiction and Powers of Justices of the Peace § 18, June 1822 Miss. Laws 7, Rev. Code Miss. 1824 25.

145. Id.

146. An Act Concerning the Appointment, Jurisdiction and Powers of Justices of the Peace § 18, June 1822 Miss. Laws 7, Rev. Code Miss. 1824 25.

147. "[N]or, shall any proceedings had before a justice of the peace, for the recovery of any debt or demand within the jurisdiction of such justice, be otherwise re-examined and reversed or affirmed, than by appeal to the county court of the county for which justice of the peace shall have been appointed. . ." An Act Concerning the Establishment, Jurisdiction and Powers of Inferior Courts of Law § 26, June 1822 Miss. Laws 49, Rev. Code Miss. 1824 79.

148. An Act Concerning the Appointment, Jurisdiction and Powers of Justices of the Peace § 19, June 1822 Miss. Laws 8, Rev. Code Miss. 25..

149. See An Act Directing the Method of Proceeding in Courts of Equity Against Absent Debtors and Other Absent Defendants and for Regulating the Proceedings on Attachments Against Absconding Debtors § 24, June 1822 Miss. Laws 97, Rev. Code Miss. 1824 167; An Act to Amend the Several Acts Concerning the Appointment, Jurisdiction and Powers of Justices of the Peace § 4 [Jan. 25, 1826], Laws Miss. 1824-38 100.

150. An Act Further to Amend the Acts Concerning the Jurisdiction and Powers of Justices of the Peace § 4, Dec. 1830 Miss. Laws 118, Laws Miss. 1824-38 335.

151. Id. § 5 Dec. 1830 Miss. Laws 118, Laws Miss. 1824-38 335.

152. Id. § 6 Dec. 1830 Miss. Laws 119, Laws Miss. 1824-38 336.

153. An Act to Amend an Act Entitled "An Act Further to Amend the Acts Concerning the Jurisdiction and Powers of Justices of the Peace in this State and for other Purposes Approved December 15, 1830 § 7, Dec. 1831 Miss. Laws 20, Laws Miss. 1824-38 357. The requirement did not apply "if both cannot attend," id.; nor did it apply in every county, id. § 10, Dec. 1831 Miss. Laws 20, Laws Miss. 1824-38 358 (Adams and Claiborne exempted for the act).

154. An Act to Reduce into One the Several Acts Concerning the Organization and Discipline of the Militia of this State §§ 1&2, June 1822 Miss. Laws 386, Rev. Code Miss. 1824 420.

155. Id. §§ 3&4, June 1822 Miss Laws 386-87, Rev. Code Miss. 1824 420.

156. Id. § 4, June 1822 Miss. Laws 386, Rev. Code Miss. 1824 420.

157. Id. § 5, June 1822 Miss. Laws 387, Rev. Code Miss. 1824 421. The brigade judge advocate was appointed by the brigadier general, and the regimental judge advocate by the colonel of the regiment--and commissioned by the governor. Id. § 9, June 1822 Miss. Laws 388, Rev. Code Miss. 1824 422.

158. Id. § 39, June 1822 Miss. Laws 399, Rev. Code Miss. 1824 432.

159. Id. § 38, June 1822 Miss. Laws 399, Rev. Code Miss. 1824 at 432.

160. Id. § 20, June 1822 Miss. Laws 393, Rev. Code Miss. 1824 426.

161. Id. § 37 June 1822 Miss. Laws 399, Rev. Code Miss. 1824 432. Five members constituted a quorum. The brigade courts martial officers had to hold ranks of captain and higher, and at least one needed to be a colonel. Id. A court trying a major general to be ordered by the governor and consisted of nine officers (with at least one general and three colonels). Id. § 33. Courts trying adjutant generals and quarter master generals were likewise ordered by the governor required at least two colonels. Id. § 33. Courts trying all other officers were composed of officers of the rank of major and higher and needed at least two colonels. Id. § 34.

162. Id. § 41 June 1822 Miss. Laws 400, Rev. Code Miss. 1824 432-33.

163. Id. § 17, June 1822 Miss. Laws 391, Rev. Code Miss. 1824 425.

164. Id. § 18, June 1822 Miss. Laws 392, Rev. Code Miss. 1824 426.

165. Id. § 28, June 1822 Miss. Laws 395, Rev. Code Miss. 1824 429.

166. Id. § 29 June 1822 Miss. Laws 396, Rev. Code Miss. 1824 429.

167. Id. § 43, June 1822 Miss. Laws 400-01, Rev. Code Miss. 1824 433-34.

168. Id. § 35, June 1822 Miss. Laws 398, Rev. Code Miss. 1824 431.

169. Id. § 36, June 1822 Miss. Laws 399, Rev. Code Miss. 1824 431.

170. An Act to Revise the Militia System, Jan. 1830 Miss. Laws 116-55, Laws. Miss. 1824-38 254-88.

171. Id. art. 20 § 1, Jan. 1830 Miss. Laws 142, Laws Miss. 1824-38 277 ("disobedience of orders, neglect of duty, un-officer-like conduct and behavior, disrespect to a superior officer, or any other unmilitary or ungentlemanly conduct, whilst on duty").

As in the repealed statutes, the new code incorporated the "rules and regulations observed in the army of the United States, that do not infringe the provisions of this act. . ." Id. art. 21 § 21, Jan. 1830 Miss. Laws 150, Laws Miss. 1824-38 284.

172. Id. art. 21 § 1, Jan. 1830 Miss. Laws 143, Laws Miss. 1824-38 278.

173. An Act to Alter and Amend an Act Entitled "An Act to Revise the Militia System" § 9, Dec. 1830 Miss. Laws 78, Laws Miss. 1824-38 326.

174. An Act to Revise the Militia System art. 21 § 3, Jan. 1830 Miss. Laws 143-44, Laws Miss. 1824-38 278.

175. Id. art. 21 § 6, Jan. 1830 Miss. Laws 145, Laws Miss. 1824-38 279.

176. Their composition was altered slightly so that the colonel or commanding officer of the regiment sat as president with the lieutenant-colonel, major, and four senior captains--or in their absence the other highest ranking regimental officers. Id. art 21 § 7, Jan. 1830 Miss. Laws 145, Laws Miss. 1824-38 279-80.

177. Id. art. 21 § 9, Jan. 1830 Miss. Laws 146, Laws Miss. 1824-38 280.

178. Id. art. 21 § 13, Jan. 1830 Miss. Laws 147, Laws Miss. 1824-38 281-82. The composition of the brigade court martial remained the same, and the brigadier general was made the president, id., and specially composed courts were required for officers and for trials of the highest ranking officers, id. art. 21 § 18, 19, Jan. 1830 Miss. Laws 149-50, Laws Miss. 1824-38 284.

179. Id. art. 21 §§ 7&14, Jan. 1830 Miss. Laws 145&148, Laws Miss. 1824-38 280&282.

180. Id. art 21 § 15, Jan. 1830 Miss. Laws 148, Laws Miss. 1824-38 282.

181. Miss. Const. of 1817 art. V § 4 ("The superior court shall have original jurisdiction in al matters, civil and criminal, within this State, but in civil cases, only where the matter or sum in controversy exceeds fifty dollars.").

182. The legislature limited circuit court civil jurisdiction only over those contract and quasi-contract cases given to county court and justices of the peace. The act provided without monetary limits for circuit court jurisdiction over "all other civil suits and actions, real, personal and mixed, and all causes, matters and things arising under the constitution and laws of this state, not expressly cognizable in some other court, established by law. . ." An Act to Reduce into One the Several Acts and Parts of Acts Concerning the Establishment, Jurisdiction and Powers of the Superior Courts of Law § 16, June 1822 Miss. Laws 30, Rev. Code Miss. 1824 105.

183. It is possible that the legislature may have assumed--perhaps from the designation of county courts as courts "of law"--that tort actions might be brought in the county courts when damages sought did not exceed fifty dollars. For example, a statute limiting recovery of costs in actions of assault and battery and trespass to land referred to "any court of law" rather than to the circuit court. An Act for the Limitation of Actions and Certain Proceedings in Civil Cases and for Preventing Frivolous and Vexatious Suits § 17, June 1822 Miss. Laws 258, Rev. Code Miss. 1824 187. So, too, the statute imposing liability upon owner's for the trespasses of their animals, provided for recovery "in any court of competent jurisdiction." an Act to Prevent Trespasses in Certain Cases and Declaring What Shall Be Deemed a Lawful Enclosure § 1, June 1822 Miss. Laws 297, Rev. Code Miss. 1824 334. That county courts were probably meant to be included in the designation of "any court of competent jurisdiction" is supported by the use of the term to designate fora from which penalties might be recovered under another section, which explicitly granted jurisdiction on justices of the peace or any court of competent jurisdiction. Id. § 7, June 1822 Miss. Laws 298, Rev. Code Miss. 1824 336. Because justices of the peace were authorized to impose the fine, it may be inferred that the statute meant to grant such power also to county courts.

184. The statute provided:

[S]o much of the act, entitled "an act, concerning the establishment, jurisdiction and powers of inferior courts of law in the several counties of this state," (the county of Monroe excepted) as gives to the county courts original and appellate jurisdiction, of suits or actions, for the recovery of money, where the matter in controversy exceeds twenty dollars, be, and the same is hereby repealed: an no venire facias shall issue from said court, except for the trial of slaves; and all appeals from a justice of the peace, where the matter in controversy exceeds twenty dollars, shall in future lie to the circuit courts respectively, where they shall be tried in the same manner, as such cases have heretofore been tried in the county courts.

An Act to Establish a Court of Probate § 4 [Jan. 23, 1824], Laws Miss. 1824-38 54. Pending cases where the amount in controversy exceeded twenty dollars were transferred to circuit court. Id. § 5 at 54 (Monroe county excepted).

185. The same act also eliminated the appellate jurisdiction of the county courts over justices of the peace in cases where the matter exceeded twenty dollars and directed that such appeals in the future lie to the circuit courts--except for Monroe county. Id. § 4 at 54.

186. Miss. Const. of 1817 Mode of revising the constitution § 1.

187. An Act for Holding a Convention in this State, Dec. 1831 Miss. Laws 99-103, Laws Miss. 1824-38 375-78. The legislature had recommended a convention in the previous term. Though there had been no referendum--none being required--the preamble to the act recited that "a majority of the citizens of this state, voting for representatives, have voted for a convention." Id. preamble at 375.

188. Miss. Const. of 1832.

189. Miss. Const. of 1832 art. VI. The only change was the addition of a separate number for the article on impeachments. See Miss. Const. of 1817 impeachments.

190. Miss. Const. of 1832 art. III § 16. See Miss. Const. of 1817 art. III. § 16.

191. Miss Const. of 1832 art. III § 20. See Miss. Const. of 1817 art. III § 20.

192. The legislative power to remove judges for "wilful neglect of duty or other reasonable cause" by two-thirds vote of both houses was retained. Miss. Const. of 1832 art. IV § 27. But judges of probate and justices of the peace could be removed from office after indictment and jury trial. Id. art. IV § 28.

193. "Divorces from the bonds of matrimony shall not be granted but in cases provided for by law, by suit in chancery." Miss. Const. of 1832 art. VII § 15. Though this was phrased as a restrictive treatment of divorce, it actually greatly facilitated the procedures for obtaining divorce. Under the constitution of 1817 divorces required two thirds approval by both houses of the General Assembly, after suit in chancery. Miss. Const. of 1817 art. VI § 17. The legal restrictions apparently did not assure family stability. There were an average of five private acts of divorce per year--extrapolating from the private acts of divorce reported for 1817 to 1822. See generally Rev. Code Miss. 1824, at 573-75. Judge Poindexter was himself divorced. See Swearingen, supra note 73, at 133-34.

194. Miss. Const. art. IV §§ 2, 5 (election of judges for high court of errors and appeals); id. § 11 (election of circuit court judges); id. § 16 (election of chancellor); id. § 18 (election of probate court judges); id. § 23 (election of justices of the peace). So, too, were the attorney general, id. § 25, and the clerks of all the courts, id. § 1, elected.

195. Id. art. IV § 24 ("The Legislature may, from time to time, establish such other inferior courts as may be deemed necessary,

and abolish the same whenever they shall deem it expedient.")>

196. "The judicial power of this State shall be vested in one high court of errors and appeals, and such other courts of law and equity as are hereafter provided for in this Constitution." Miss. Const. of 1832 art. III § 1.

197. Id. art. IV § 4. Obviously appellate jurisdiction included supervisory jurisdiction to issue extraordinary writs, and the court may have been burdened with such practice, for legislation in 1856 specifically provided that "hereafter no judge of the high court of errors and appeals shall, during the session of said court, be required to grant, try or hear any writ of habeas corpus, unless such judge shall, of his own accord, choose to grant the same." An Act in Relation to Writs of Habeas Corpus § 1, 1856 Miss. Laws 33.

The court policed its own limited jurisdiction and struck a case where it noticed the absence of a bond that was a prerequisite for a writ of error even thought the appellee had not raised the defect to the court's attention. Stamps v. Newton, 4 Miss. (3 How.) 34, 34 (1838) ("[W]e are bound to inquire in every case, whether the facts presented by the record give this tribunal a jurisdiction.").

198. Bank of Port Gibson v. Dickson, 12 Miss. (4 Smedes & M.) 689, 690 (1842) (striking cause from its docket challenging tax assessment that was not made).

199. Dismukes v. Stokes, 41 Miss. 430 (1867), held that a statute that provided for appeal to the circuit court from the boards of police which made the circuit court's determination "final," did not improperly limit the High Court's appellate jurisdiction.

[W]hen we come to determine what matters 'properly belong to a Court of Errors and Appeals,' we. . .have to refer for the solution of the question to other sources than these provisions of the constitution. The subject is one depending on general considerations of public policy, which, for the most part, must be determined by the legislature. . ."

41 Miss. at 433. Concluding that a right to prosecute a writ of error was more of a remedy (within the legislature's power to regulate procedure) than a guaranteed right, the High Court dismissed the appeal. 41 Miss. at 435. See also Robertson v. Williams, 7 Miss. (6 How.) 579, 579 (1842) (forcible entry and detainer could not be appealed to High Court of Errors and Appeals when remedy existed of appeal to circuit court).

200. Miss. Const. of 1832 art. IV § 2.

201. Miss. Const. of 1832 art IV § 2 (directing legislature to divide state into three districts for election of justices). The legislature initially divided the state up into the same three districts both for the High Court of Errors and Appeals and for the Superior Court of Chancery. An Act to Divide this State into Three Districts for the election of Judges of the High Court of Errors and Appeals, and for the Superior Court of Chancery §§ 1-3, Jan. 1839 Miss. Laws 82. But it later altered the High Court's districts. See An Act to Regulate the Districts § 1, 1840 Miss. Laws 78.

Two of the judges of the High Court formed a quorum, Miss. Const. of 1832 art. IV § 2, and when a quorum could not hear a case, because two or more of the judges were disqualified by interest or relationship, the governor was authorized to appoint a special commission to sit as the supreme court.

202. Miss. Const. of 1832 art IV §§ 2, 3.

203. Id. art. IV § 7. For four years the court was to sit wherever the legislature directed; but after 1836 it was to sit at the state capital, id., which was to be Jackson until the year 1850, id. art. III § 30. Later legislation required it to sit in different places and restricted the court's jurisdiction to cases from the district. The court held, however, that such a restriction was unconstitutional because it had the effect of reducing the number of court terms. See Opinion of the Court Construing the Act of the Legislature, approved February 21, 1867, 41 Miss. 54, 58 (1867).

204. An Act to Organize and Establish Circuit Courts and to Define Their Powers and Jurisdiction in Law and Equity § 15 Jan. 1833 Miss. Laws 32-33, Laws Miss. 1824-38 407.

205. Despite the title of the act, the legislation did not further describe the supreme court's jurisdiction. See An Act to Establish and Organize the High Court of Errors and Appeals and to Define the Powers and Jurisdiction Thereof, Jan. 1833 Miss. Laws 132-36, Laws Miss. 1824-38 440-43.

The High Court practice of reviewing chancery decisions is referred to in the 1842 statute creating the vice chancery court, and certain vice chancery decrees were appealable directly to the high court. See infra notes 260 to 265.

206. An Act for the More Perfect Organization of the Superior Court of Chancery § 3, 1844 Miss. Laws 123.

207. An Act to Designate in What Manner and in What Courts Suits May Be Brought Against the State of Mississippi § 1 Jan. 1833 Miss. Laws 205, Laws Miss. 1824-38 476.

208. An Act to Establish and Organize a Separate Superior Court of Chancery and Define the Powers and Jurisdiction Thereof § 4 Jan. 1833 Miss. Laws 36, Laws Miss. 1824-38 410.

209. See infra text at note 292.

210. See Miss. R. App. P. 35-A(a) (opinion must be written only if damages are assessed for frivolous appeal or if a majority of justices or judges decide that a written opinion will add to state jurisprudence, be useful to the parties, or be useful to the trial court). Moreover, even if an opinion is written, it is only published in certain defined cases. Miss. R. App. P. 35-A(b)-(c). And written but unpublished opinions may not be cited, quoted, or referred to. Miss. R. App. P. 35-A(d). For its entire first year, the court of appeals must write opinions in every case but not publish any of them. Miss. R. App. P. 35-B(a).

211. An Act to Establish and Organize the High Court of Errors and Appeals § 8, Jan. 1833 Miss. Laws 134-35, Laws Miss. 1824-38 442-43.

The Legislature would also require in 1842 the reporting of the chancery court decisions, "or so much thereof as the Chancellor shall direct. . . " An Act to Provide for Reporting the Decisions of the Superior Court of Chancery § 1, 1842 Miss. Laws 210.

212. An Act to Amend the Laws Relating to Injunctions and Supersedeas Bonds and Sales in Chancery § 1, 1841 Miss. Laws 123.

213. Miss. Const. of 1832 art. IV. §§ 11, 13. The circuit judge (unlike the supreme court judge) was explicitly required to actually reside in the district from which he was elected. Id. art. IV § 11. But the omission of residency requirement for supreme court judges was probably an oversight, as the constitution also omitted such a requirement for probate judges and justices of the peace. The drafters probably did not envisage inferior court judges, let alone justices of the peace, residing outside their counties.

214. an Act to Organize and Establish Circuit Courts and to Define Their Powers and Jurisdiction in Law and Equity § 1, Jan. 1833 Miss. Laws 23, Laws Miss. 1824-38 400.

215. An Act to Amend an Act to Organize and Establish Circuit Courts §§ 2-3, Dec. 1833 Miss. Laws 23-24, Laws Miss. 1824-38 501.

216. An Act Further to Amend an Act to Organize and Establish Circuit Courts §§ 1-3, 1836 Miss. Laws 39-40, Laws Miss. 1824-38 557-58.

217. An Act to Establish a Ninth Judicial Circuit § 1. 1837 Miss. Laws 181, Laws Miss. 1824-38 685.

218. An Act to Reorganize the Judicial Districts and to Abolish the Criminal Court § 1, 1840 Miss. Laws 30.

219. An Act to Reorganize the Judicial Districts, 1844 Miss. Laws 110-17.

220. An Act to Re-Organize the Judicial Districts, 1856 Miss. Laws 34-35.

221. Miss. Const. of 1832 art. IV § 14.

222. Griffin v. Lower, 37 Miss. 458, 460-61 (1859).

223. Cocke v. Board of Police of Copiah County, 38 Miss. 340, 342 (1860) (separate $1.50 fines were aggravated to exceed $50).

224. Boone v. Poindexter, 20 Miss. (12 Smedes & M.) 640, 647 (1849).

225. Compare An Act to Organize and Establish Circuit Courts § 5, Jan. 1833 Miss. Laws 27-28, Laws Miss. 1824-38 403-04 and an Act to Amend an Act to Reduce into One the Several Acts and Parts of Acts Concerning the Establishment, Jurisdiction and Powers of the Superior Courts of Law § 16, June 1822 Miss. Laws 30, Rev. Code Miss. 1824 105-6.

226. Excluded were those matters "as may be exclusively had before a justice of the peace, or in some other court of this state, or of the United States." An Act to Organize and Establish Circuit Courts § 5, Jan. 1833 Miss. Laws 28, Laws Miss. 1824-38 404.

227. Id. In another change, the legislature redefined replevin to permit recovery of any personal property. For some reason the original replevin statute authorized "replevin" only for distraint (or unpaid rent). Now it was given its broader common law scope, and jurisdiction was conferred on the circuit courts--somewhat redundantly as they already enjoyed general jurisdiction over all personal actions. See an Act to Organize and Establish Circuit Courts § 21, Jan. 1833 Miss. Laws 34, Laws Miss. 1824-38 409. This expansion of replevin proved unpopular, however, for it was repealed a few years later. An Act to Repeal the Law Extending the Action of Replevin § 1, 1836 Miss. Laws 98, Laws Miss. 1824-38 577. The procedure was adjusted and consolidated. 1843 Miss. Laws 65-67.

228. An Act to Declare in Force the Several Acts Concerning the Mode of Election and Jurisdiction of Justices of the Peace in

this State and for Other Purposes § 4, Jan. 1833 Miss. Laws 203, Laws Miss. 1824-38 474. See also an Act to Authorize Appeals from the Decisions of Justices of the Peace to the Circuit Courts §§ 1-2, 1842 Miss. Laws 136.

229. See Porter v. Deterly, 9 Miss. (1 Smedes & M.) 163, 165 (1843).

230. Hurd v. Tombes 8 Miss. (7 How.) 229, 233 (1843) (holding that the circuit court had proper appellate jurisdiction because the action originated in proceedings before a justice).

231. An Act to Extend the Act Approved March the 9th, 1850 § 1, 1854 Miss. Laws 101.

232. Miss. Const. of 1832 art. IV § 15; An Act to Organize and Establish Circuit Courts § 4, Jan. 1833 Miss. Laws 24-25, Laws Miss. 1824-38 401. In 1839 the legislature repealed the power of circuit court to hold special terms "except when the regular term shall have failed." An Act to Amend an Act Entitled "An Act to Organize and Establish Circuit Courts" § 1, 1839 Miss. Laws 85.

233. E.g., Hurd v. Tombes, 8 Miss. at 233 (dictum).

234. Cannon v. Cooper, 39 Miss. 784, 789 (1861).

235. Miss. Const. of 1832 art. IV § 16.

236. An Act to Organize and Establish Circuit Courts § 6, Jan. 1833 Miss. Laws 404, Laws Miss. 1824-38 404.

237. Id. § 7:

[I]n all actions, suits and controversies in equity that may be instituted in the circuit courts, according to the provisions of this act, whenever an issue or

issues as to matters of fact shall be made up by the parties, or under the direction of the court, touching the merits of the case in question, it shall be the duty of the court to empanel a petit jury to try said issue or issues; and the jury so impanelled, may render a specified [sic] verdict therein, whereby the court may be enabled to found a decree, Said jury, by consent of the parties, under the special charge and instructions of the court as to matters of law, may render a general verdict.

238. I believe this was the first amendment proposed for the Constitution of 1832.

239. an Act Proposing an Amendment to the Constitution of the State of Mississippi § 2, 1839 Miss. Laws 97.

240. The amendment did not "prevail." See Code of Miss. at 52 (A. Hutchinson 1848); 1840 Miss. Laws.

241. An Act to Amend the Laws Relating to Injunctions and Supersedeas Bonds and Sales in Chancery § 1, 1841 Miss. Laws 123. The grant was repeated in 1848:

That the judges of the several circuit courts of law in this State shall have power to grant writs of injunction, ne-exeat, and supersedeas, either in term time or in vacation, in all cases in which it may be proper to grant said writs or either of them, whether the case originated within or without the district of the judge granting the same; and the fiat of any such judge shall be sufficient to authorize the proper officer to issue any or either of said writs in pursuance thereof.

An Act to Amend the Laws § 1, 1848 Miss. Laws 100. The act expressly repealed all inconsistent legislation. Id. § 2 at 101. See also An Act to Amend an Act § 2, Jan.-Mar. 1850 Miss. Laws at 120. And in legislation later abolishing the separate courts of equity, the legislature specifically provided:

That the judges of the high court of errors and appeal, the chancellor and judges of the circuit courts shall have full power to grant injunctions, attachments and other remedial process returnable to the circuit court of such county as shall have jurisdiction thereof.

An Act to Confer Equity Jurisdiction upon Circuit Courts § 3, 1856 Miss. Laws 29.

242. Montgomery v. Commercial Bank of Rodney, 1 Rep. of Cases Argued & Determined in the Super. Ct. of Chancery (Smedes & M.) 632, 643-44 (1843). When legislation extended a circuit judge's authority to issue injunctions outside the district, the High Court of Errors and Appeals held that a judge from another district could not modify the injunction. Martin v. O'Brien, 34 Miss. 21, 38-39 (1857).

243. 1846 Miss. Laws 231.

244. Miss. Const. of 1832 amend. III, in Rev. Code Miss. 1857 at 38; An Act in Relation to Chancery Courts, Section II, art. 2, 1856 Miss. Laws 37-38.

245. An Act to Amend the Constitution of the State of Mississippi in Relation to the Chancery Courts §§ 1, 1854 Miss. Laws 173-74:

That the sixteenth section of the fourth article of the Constitution of the State of Mississippi, be stricken out and abrogated, and in lieu thereof the following section be adopted and inserted instead, viz:

Section 16. Chancery Courts with full jurisdiction in all matters of equity, shall be held in each juridical district by the Circuit Judge thereof, at such times and places as may be directed by law. The Superior Court of Chancery, and the several Vice Chancery Courts shall continue as now organized, until the first Monday of November, one thousand eight hundred and fifty seven for the disposition of causes now depending therein.

246. See Miss. Const. of 1832 amend. III, in Rev. Code Miss. 1857 at 38.

247. Legislation implementing the amendment conferred upon the chancery courts of the circuit judges "all the powers and jurisdiction now held and possessed by the superior court of chancery" and specified that the circuit court clerks would serve as clerks for the unified chancery courts. An Act to Confer Equity Jurisdiction upon Circuit Courts § 1, 1856 Miss. Laws 28.

248. I do not believe the possibility of the influence of legal developments in England has ever been examined. But problems with the Chancery in England had led to the creation of a "vice chancellor" in 1818, and more vice chancellors in 1842. There was public discussion of proposals to merge equitable and legal jurisdiction as early as 1851, and in 1854 the law courts were given some equity jurisdiction. See generally J.H. Baker, An Introduction to English Legal History 131 (1990).

249. Miss. Const. of 1832 art. IV § 16.

250. Id. art. IV § 16.

251. Id. art. IV § 16.

252. an Act to Establish and Organize a Separate Superior Court of Chancery and Define the Powers and Jurisdiction Thereof § 4, Jan. 1833 Miss. Laws 36, Laws Miss. 1824-38 410.

253. See supra text at note 235.

254. An Act to Quiet Land Titles to the Rightful Owners of Land in the State of Mississippi § 1, 1841 Miss. Laws 121.

255. An Act to Authorize and Empower the Chancellor and Vice Chancellors § 1, 1854 Miss. Laws 125.

256. See supra notes 110 to 111.

257. The need for discovery alone (which was available in equity but not at law) could establish equitable jurisdiction so that the court of equity could give complete relief. Huntington v. Grantland, 33 Miss. 453, 455 (1857), accord Morton v. Grenada Academies, 16 Miss. 773, 786 (1847).

258. In Brown Bros. & Co. v. Bank of Mississippi, 31 Miss. 454, 459-60 (1856), a plaintiff filed a creditor's bill before the entry of legal judgment that is a prerequisite for equity jurisdiction. Even though the defendant did not object to the bill, the court found no waiver and permitted subsequent demurrer, reasoning that "if consent cannot confer jurisdiction of the subject-matter, a mere negative act of waiver cannot have that effect." 31 Miss. at 460. Perhaps the result could be distinguished from Head v. Gervais, 1 Miss. 431 (1831), discussed supra note 111, on the ground that the defendant in Gervais took active steps to place the matter in issue that was originally outside the chancellor's jurisdiction and sought to challenge the jurisdiction only the defendant did not like the result.

259. See supra text at notes 238 to 240.

260. An Act to Establish an Inferior Court of Chancery in the Northern Part of this State § 1, 1842 Miss. Laws at 57-65. The act was an exercise of the legislature's constitutional authority to establish inferior courts. Houston v. Royston, 8 Miss. (7 How.) 543, 551, 552 (1843).

261. An Act to Establish an Inferior Court of Chancery § 3, 1842 Miss. Laws 58.

262. An Act to Establish an Inferior Court of Chancery § 9, 1842 Miss. Laws 61.

263. An Act to Establish an Inferior Court of Chancery § 10, 1842 Miss. Laws 62.

264. An Act to Establish an Inferior Court of Chancery § 11, 1842 Miss. Laws 62. Where a case filed in vice chancery court was within the concurrent jurisdiction of the chancellor, removal not dismissal was appropriate, and objections to the vice chancellor's jurisdiction were waived when no removal was requested. Harrington v. Mobbley, 33 Miss. 34, 35 (1857).

265. An Act to Establish an Inferior Court of Chancery, § 16, 1842 Miss. Laws 63-64.

266. An Act to Establish an Additional Inferior Court of Chancery in the Southern Part of this State, 1846 Miss. Laws 106-16. The southern district's jurisdiction was defined in terms identical to that of the northern district's. Id. § 3 at 108.

267. An Act to Establish an Additional Inferior Court of Chancery § 4, 1846 Miss. Laws 108-09.

268. An Act to Establish an Additional Inferior Court of Chancery in the State of Mississippi §§ 1-3, Jan.-Mar. 1852 Miss. Laws 60-61.

269. An Act to Amend an Act to Divide this State into Three District § 1, 1841 Miss. Laws 131.

270. An Act to Provide for Reporting the Decisions of the Superior Court of Chancery § 1, 1842 Miss. Laws. 210.

271. An Act for the More Perfect Organization of the Superior Court of Chancery § 3, 1844 Miss. Laws 123.

272. An Act to Designate in What Manner and in What Courts Suits May Be Brought Against the State of Mississippi § 1, Jan. 1833 Miss. Laws 205, Laws Miss. 1824-38 475-76.

273. 1846 Miss. Laws at 242. After the elimination of separate equity courts and the unification of the circuit and chancery jurisdiction, legislation provided that in certain actions to recover bonds under chancery jurisdiction, either party could request a jury. An Act to Amend an Act in Relation to Chancery Courts in this State § 2, 1858 Miss. Laws 85.

274. Farrish v. State, 3 Miss. 826, 829 (1838) (holding that chancellor had no jurisdiction in case seeking damages against state and that legislation, is construed to permit actions at law, would be constitutional as exceeding the "equity" jurisdiction conferred upon chancellor): "Any act which should confide to this [chancery] court jurisdiction over questions

purely of law, would be clearly unconstitutional, because such questions are to be determined, in the first instance, by the circuit court."

275. An Act to Amend the Constitution of the State of Mississippi in Relation to Suits against the State § 2, 1856 Miss. Laws 35.

276. An Act to Establish and Organize a Separate Superior Court of Chancery § 5, Jan. 1833 Miss. Laws 36, Laws Miss. 1824-38 410.

277. An Act Supplementary to an Act to Establish an Inferior Court of Chancery § 1, 1842 Miss. Laws 236.

278. An Act Concerning the Powers and Jurisdiction of the Superior Court of Chancery §§ 2-3, 1838 Miss. Laws 215-16, Laws Miss. 1824-38 864.

279. An Act Concerning the Powers and Jurisdiction of the Superior Court of Chancery in the State of Mississippi § 1, 1838 Miss. Laws 214.

280. Id. § 6.

281. An Act to Establish and Organize a Separate Superior Court of Chancery § 7, Jan. 1833 Miss. Laws 37, Laws Miss. 1824-38 411. The transfer was effected by legal process through a writ of certiorari. And the chancellor "shall also have power to grant bills of review in any judgment that may be rendered on the equity side of the circuit court in the same manner that bills of review are usually granted in courts of equity." Id. This apparently broad grant of power to review is misleading and did not establish superior appellate jurisdiction over the circuit courts. Bills of review were original actions (not appellate process) that would presumably have issued in a case upon removal. See generally Mercer v. Stark, 1 Rep. of Cases Argued and Determined in the Super. Ct. Chancery (Smedes & M.) 479, 485-86 (1841) (discussing bills of review).

282. Tooley v. Kane, 1 Rep. Of Cases Argued and Determined in the Super. Ct. Of Chancery (Smedes & M.) 518, 522 (1842), aff'd sub nom. Tooley v. Gridley, 11 Miss. (3 Smedes & M.) 493, 516, 41 Am. Dec. 628 (1844).

283. Frank E. Everett, Jr., suggests that the motives for abolishing chancery courts were "not entirely clear" but he assumed them to be considerations of "convenience or economy." Everett, supra note 87, at 375, 377. Yet the persistence of the legislature's efforts to control the chancery court suggest that the legislature was equally concerned with the problem of the accessibility of equitable remedies.

284. Miss. Const. 1832 art. IV § 18.

285. Id. art. IV § 18.

286. See Servis v. Beatty, 32 Miss. 52, 86-87 (1856).

287. An Act to Carry into Effect That Part of the Fourth Article of the Constitution Which Provides for the Establishment of a Court of Probates in the Several Counties in this State § 1, Jan. 1833 Miss. Laws 136, Laws Miss. 1824-38 444. Cases pending in either the old county court or the old probate or orphans'

court were transferred to the new probate court. Id. § 11, Jan. 1833 Miss. Laws 139, Laws Miss. 1824-38 446.

288. An Act to Amend an Act to Carry into Effect That Part of the Fourth Article of the Constitution Which Provides for the Establishment of a Court of Probates §§ 1-2, 1834 [Dec. 1833] Miss. Laws 28-29, Laws Miss. 1824-38 507.

289. In Smith v. Craig, 18 Miss. 447, 452 (1848), a party brought a suit to partition a joint estate in probate court, such power previously being vested in county courts. The High court affirmed the probate court's dismissal for lack of jurisdiction, observing that though a probate "judge" might receive such jurisdiction, the probate court could not because of its limited jurisdiction under the constitution. The opinion also observed that the sought an equitable decree for relief and thus placed it within exclusive chancery jurisdiction. 18 Miss. at 451.

290. E.g., Woolridge v. Wilkins, 4 Miss. 360, 360 (1839). Appeals were later held to exist as a matter of right under a writ of error from the High Court of Errors and Appeals to the probate courts. Green v. Whiting, 9 Miss. 579, 583 (1844) (writ of error to High Court held to be a matter of right under the acts of Feb. 10, 1830 and May 13, 1837).

291. See Blanton v. King, 3 Miss. 856, 862 (1838) (reversing chancellor who overruled demurrer to bill filed seeking to correct errors of probate court).

292. An Act to Amend an Act Entitled "an Act to Carry into Effect. . ." § 1, 1844 Miss. Laws 95. Even prior to the act it was held that decrees within the probate court's jurisdiction could not be challenged by proceedings in chancery, Griffith's Adm'r v. Vertner, 6 Miss. (5 How.) 736, 739, 741 (1841).

293. Compare Gaskins v. Hammett, 32 Miss. 103 (1856) (no probate court jurisdiction in claim against administrator who denies capacity as administrator); Clarke v. Ratcliffe, 8 Miss. (7 How.) 162, 163 (1843) (no probate court jurisdiction to enforce attorney's lien on money recovered in the court) and McWillie v. Van Vacter, 35 Miss. 428, 445, 72 Am. Dec. 127 (1858) (probate court had jurisdiction to determine property or contract claims when they arise in administration of an estate even though it lacked jurisdiction to determine them directly); accord Compton v. Compton, 14 Miss. 194, 198 (1846).

294. McWillie v. Van Vacter, 35 Miss. 428, 443, 72 Am Dec. 127 (1858); McRrea v. Walker, 5 Miss. (4 How.) 455, 457 (1840).

295. An Act to Authorize the Several Courts of Probate Therein Mentioned to Hold Their Courts Monthly § 1, 1838 Miss. Laws 333-35.

296. The legislation was a constitutional exercise of the legislature's authority to establish inferior courts. Thomas v. State 6 Miss. (5 How.) 20, 28 (1840).

297. An Act to Establish in the Counties of Warren, Claiborne, Jefferson, Adams, and Wilkinson an Inferior Court of Criminal Jurisdiction § 2, 1836 Miss. Laws 25, Laws Miss. 1824-38 547.

298. An Act to Establish in the Counties of Warren, Claiborne, Jefferson, Adams, and Wilkinson an Inferior Court of Criminal Jurisdiction § 8, 1836 Miss. Laws 27-28, Laws Miss. 1824-38 548. In addition to original jurisdiction, the criminal court also summoned the grand jury. Id. § 16, 1836 Miss. Laws 31, Laws Miss. 1824-38 551.

299. The act provided that "all the provisions in relation to appeals and writs of error in criminal cases in the circuit courts of this state, shall be applicable to said criminal courts. . ." Id. § 20, 1836 Miss. Laws 32, Laws Miss. 1824-38 552. And appeals in circuit court lay to the supreme court. An Act to Organize and Establish Circuit Courts § 15, Jan. 1833 Miss. Laws 32-33, Laws Miss. 1824-38 407. See supra text at note 204.

300. The language of the statute suggests that certiorari could in fact be employed to effect removal or interlocutory appeal of actions pending in criminal court:

[[W]henever it shall be made to appear to the satisfaction of the circuit court. . .that for any cause, injustice is likely to be done in any case depending in the court created by this act. . .the said circuit court shall award a certiorari to said criminal court, commanding such cause to be certified and sent into said circuit court, where it shall be proceeded on according to law.

An Act to Establish an Inferior Court of Criminal Jurisdiction § 21, 1836 Miss. Laws 32-33, Laws Miss. 1824-38 553.

301. An Act to Reorganize the Judicial Districts and to Abolish the Criminal Court § 4, in 1840 Miss. Laws 37.

302. An Act to Establish in the County of Warren an Inferior Court of Criminal Jurisdiction §§ 1-2, 1859 Miss. Laws 181-82.

303. The judge, in addition to being conservator of the peace, "shall have power to issue and order all writs and process relative to crimes and misdemeanors within the aforesaid county, as may be issued and ordered by the Judges of the circuit courts." Id. §6, 1859 Miss. Laws 183.

304. Id. § 12, 1859 Miss. Laws 184.

305. Id. § 8, 1859 Miss. Laws 183.

306. Id. §§ 17-18, 1859 Miss. Laws 186.

307. Miss. Const. of 1832 art. IV § 20.

308. Id. art. IV § 20.

309. Id. art. IV § 22. Their designation as conservators of the peace does not indicate that there functions were primarily

judicial. Later constitutions would vest conservator-or-the-peace jurisdiction in all "civil officers." See Miss. Const. § 167; Miss. Const. of 1868 art. VI § 22.

310. An Act to Establish Boards of Police and Define Their Powers and Jurisdiction and for Other Purposes § 3, Jan. 1833 Miss. Laws 6, Laws Miss. 1824-38 49. No explicit mention is made of the jurisdiction to try and punish slaves.

311. In fact the executive function of the boards was so well established that when, during the Civil War, the legislature wanted to empower additional courts to enforce runaway slave laws, it selected the Probate judges and Probate and Circuit Court clerks. An Act to Amend Article 16 § 1, Aug. 1864 Miss. Laws 33.

312. 1846 Miss. Laws 244-45.

313. Miss. Const. 1832 art. IV § 23.

314. "The jurisdiction of justices of peace shall be limited to causes in which the principal of the amount of controversy shall not exceed fifty dollars." Miss. Const. 1832 art. IV § 23. This language was intended to authorize justices of the peace to enter judgment over $50 that included interest on the principal debt or claim. See Planter's Bank v. Coulson, 7 Miss. (6 How.) 395 (1842).

Despite the case prior to the 1832 Constitution that held that creditors could not separately enforce notes given in the same transaction in order to confer jurisdiction on a justice of the peace, see supra note 141, creditors continued to try to manipulate their claims to establish justice of the peace jurisdiction. See Scofield v. Pensons, 26 Miss. 402, 404 (1853) (holding creditor could not subdivide open account into claims under $50 in order to enforce before a justice of the peace), overruled in part by McLendon v. Pass, 66 Miss. 110, 111 (1888) (permitting plaintiff to split actions for consecutive annual farm leases and to bring them separately before justice of the peace where the claims stated separate causes of action). On the other hand, a defendant could raise a setoff larger than the principal claim as long as the balance did not exceed the justice's jurisdictional amount. Glass v. Moss, 2 Miss. (1 How.) 519, 520-21 (1837) ($70 note permitted to set off $40 debt).

315. An Act to Declare in Force the Several Acts Concerning the Mode of Election and Jurisdiction of Justices of the Peace in this State and for Other Purposes § 1, Jan. 1833 Miss. Laws 201-02, Laws Miss. 1824-38 473.

316. Criminal contempt were punishable by fines not to exceed fifty dollars or imprisonment no longer than two days; to compel compliance with court orders the justice could impose a fine not to exceed fifty dollars or imprison until the order was complied with. 1858 Miss. Laws 218.

317. We know this because this practice did not originally extend to Franklin County until the legislature imposed it. An Act to Regulate Appeals Taken from the Decision of Justices of the Peace Within the County of Franklin § 1, 1840 Miss. Laws 41.

318. Id. ("In all causes tried by a justice of the peace, the right of appeal shall be secured under such rules and regulations

as shall be prescribed by law.").

319. An Act to Declare in Force the Several Acts Concerning Justices of the Peace § 4, Jan. 1833 Miss. Laws 203, Laws Miss. 1824-38 at 474 ("All appeals that have heretofore, by the now existing laws of this state, been taken to the county courts respectively, shall hereafter be taken to the circuit courts, under the laws no in force for the regulating appeals to said circuit courts. . . "); an Act to Authorize Appeals from the Decisions of Justices of the Peace to the Circuit Courts § 1, 1842 Miss. Laws 136; An Act Amendatory of an Act to Authorize Appeals, 1846 Miss. Laws 232. The circuit court's jurisdiction on appeal and its process was limited to that of the justice of the peace. See Crapoo v. Town of Grand Gulf, 17 Miss. (9 Smedes & M.) 205, 206 (1848).

320. For example, the legislature authorized the town of Philadelphia to elect a justice of the peace and constable. It also directed that the justice of the peace be president of the selectmen for the town. An Act to Incorporate the Town of Philadelphia §§ 2&5, 1838 Miss. Laws 219

321. E.g., An Act to Amend an Act Entitled an Act to Incorporate the Town of Hernando § 2, 1842 Miss. Laws 237 (repealing broad grant of justice of the peace powers to the mayor of Hernando but preserving limited power to enforce violations of town by-laws).

322. 1844 Miss. Laws 325-26. A second justice of the peace was specially authorized for Ripley in 1852. Oct. 1852 Miss. Laws 186-87. In 1856 the territory encompassing Ripley was authorized to elect three justices, but the justice of the peace elected from Ripley proper, now made president of the town selectmen, was authorized to decide civil cases only when both plaintiff and defendant resided within the town. 1856 Miss. Laws 179. In 1860 Ripley got back its second justice of the peace when the elected constable was given comparable jurisdiction. 1859 Miss. Laws 196.

323. See supra text at notes 46 to 48.

324. An Act to Incorporate the City of Vicksburg § 40, 1839 Miss. Laws 327.

325. Id.

326. Id. § 41, 1839 Miss. Laws 328-29.

327. Id.

328. An Act for Establishing and Defining the Judicial Powers of the Mayor of the City of Natchez § 1, Oct. 1852 Miss. Laws 191.

329. Id. § 2, Oct. 1852 Miss. Laws 192.

330. Id. § 4, Oct. 1852 Miss. Laws 193.

331. An Act to Amend the Charter of the City of Jackson § 1, Mar. 1861 Miss. Laws 55.

332. An Act Supplemental to "An Act to Amend the Charter" § 1, Mar. 1861 Miss. Laws 71.

In 1865 decisions of mayors in Jackson, Vicksburg, and Natchez were made appealable to the board of aldermen, and resulted in trials de novo. See An Act to Amend the Charters of the Cities of Jackson, Natchez and Vicksburg § 2, 1865 Miss. Laws 322.

333. An Act to Amend the Several Attachment Laws of this State § 6, 1846 Miss. Laws 89.

334. There was much variation in the details. E.g., An Act to Incorporate the Town of Forrest § 5, 1865 Miss. Laws 382-83 (mayor and aldermen authorized to punish violation of ordinances with fines up to 25 dollars); An Act to Revive an Act to Incorporate the City of Meridian § 2 1865 Miss. Laws 397 (mayor made ex officio justice of the peace); An Act Incorporating the Town of Friar's Point § 4, 1865 Miss. Laws 422 (justice of the peace made mayor, and mayor and aldermen empowered to punish violations of ordinances with fines up to 50 dollars); An Act to Incorporate the Town of Hernando §§ 6, 1866-67 Miss. Laws 46 (mayor's court also designated justice court for the DeSoto county).

335. Miss. Const. of 1832 art. Militia § 1.

336. An Act to Provide for the Organization and Discipline of the Militia of this State § 1, 1834 [Dec. 1833] Miss. Laws \5, Laws Miss. 1824-38, at 487.

337. See an Act to Regulate the Militia of this title 1 §§ 1-4, 1837 Miss. Laws 46-60, Laws Miss. 1824-38, at 604-07. Moreover, counties were sometimes divided into two regiments. See An Act to Divide the Militia of Itawamba, Panola, and Yallabusha Counties into Two Regiments Each § 1, 1841 Miss. Laws 142.

338. An Act to Provide for the Organization and Discipline of the Militia of this State § 20, 1834 [Dec. 1833] Miss. Laws 14, Laws Miss. 1824-38 494-95.

339. Id. §§ 32&43, 1834 [Dec. 1833] Miss. Laws 17-18, Laws Miss. 1824-38 496, 498.

340. The old statutes were adopted by reference. Id. § 31, 1834 [Dec. 1833] Miss. Laws 15, Laws Miss. 1824-38 496.

341. An Act to Regulate the Militia of this State, Title 9, art, 4, § 23, 1837 Miss. Laws 86. Laws Miss. 1824-38 634.

342. Id., Title 9, art. 4, § 24, 1837 Miss. Laws 86, Laws Miss. 1824-38 634.

343. See Of Courts-Martial and Courts of Inquiry, 1861-62 Miss. Laws 177-85.

344. An Act to Amend the Militia Law of this State § 2, Feb.-Mar. 1865 Miss. Laws 22.

345. Id., 1861-62 Miss. Laws 188.

346. See generally Michael H. Hoffheimer, L.Q.C. Lamar 1825-1893, 63 Miss. L.J. 5, 11 n.15 (1993).

347. See Resolutions of the Legislature of the State of Mississippi Declaring Secession to Be the Proper Remedy for the Southern States, Nov. 1860 Miss. Laws 43.

348. An Ordinance to Adopt and Ratify the Constitution § 1, in Journal of the State Convention, and Ordinance and Resolutions Adopted in March 1861 at 78 (1861).

349. Const. of the Confederate States art. IV § 2 (1), § 3 (3). See generally Michael H. Hoffheimer, Copying Constitutional Text: Natural Law, Constitutionalism, Authority, ___ S. Cal. L. Rev. ___ (1994).

350. Const. of the Confederate States art. III.

351. An Act to Provide for the Accommodation of the Courts of the Confederate States § 1, 1861-62 Miss. Laws 275.

352. The Judge S.J. Gholson, United States judge for district of Mississippi resigned. The proceedings of the 1861 convention record: "Mr. Gholson read to the Convention his letter to the President of the United States, resigning his position as Judge of the Federal Courts for Mississippi." Journal of the State Convention and Ordinances and Resolutions adopted in January 1861 18 (1861). Gholson played an active role in the convention, became speaker of the House in 1865. 2 Rowland, supra note 23, at 116. But unlike most of the federal judges who resigned, he was not appointed as confederate judge. Garner writes that Clayton was appointed as confederate judge for the Mississippi

district but probably never held court. See generally James Wilford Garner, Reconstruction in Mississippi 6, 40 (1968).

353. An Act to Modify the Collection Laws of this State § 1, Jul. 1861 Miss. Laws 74. Garner remarks that "[A]n act of the legislature in 1861. . .practically closed [the lower courts] so far as civil business was concerned. . . . [A]nd as a no[t] inconsiderable number of the criminal cases were settled by the military authorities, it is reasonable to suppose that the business of the courts was nominal." Garner, supra note 353, at 40-41. But the act did not stay actions that were pending in the courts, and it did not apply by its terms to many civil actions. Consequently, one must look to social, economic, and political explanations for the elimination of civil judicial business rather than to the statute.

354. An Act to Modify the Collection Laws of this State § 1, Oct. 1865 Miss. Laws 236.

355. Coffman v. The Bank of Kentucky, 40 Miss. 29, 37-39 (1866) (holding legislation staying contract actions to be an

unconstitutional violation of the right of access to courts). Although the legislature had some power to suspend laws generally, the court held that "it has not power to suspend the rights of person and of property guarantied to the citizen in the declaration of rights, and required by the constitution to be enforced at stated times; for that would be to suspend the constitution." 40 Miss. at 38.

356. This is Garner's conclusion, Garner, supra note 352, at 40, but it is based, I think, on the published cases, and it is possible that the court decided cases without reporting its opinions.

357. Resolutions of the Legislature of the State of Mississippi in relation to the Recent Act of the Congress of the Confederate States, Apr. 1864 Miss. Laws 91-93.

358. Feb.-Mar. 1865 Miss. Laws 12-13.

359. "Slaves fled from their owners as Union armies approached. Some 17,000 Mississippi blacks joined the Union forces." John Ray Skates, supra note 15, at 107.

360. An Act to Amend Article 16 § 1, Aug. 1864 Miss. Laws 33.

361. Miss. Const. of 1832 (as amended 1865) art. VIII ("The institution of slavery having been destroyed in the State of Mississippi, neither slavery or involuntary servitude otherwise than in the punishment of crimes. . .shall hereafter exist in this State. . ."). For the text of the amended constitution, see 1865 Miss. Laws 43-44. See Ordinances, Resolutions, and Constitutional Amendments, adopted by the Mississippi Constitutional Convention 1865 (1865).

362. Harlan v. State, 41 Miss. 566, 569 (1867). In a similar fashion the court held that executed contracts for the sale of slaves were enforceable. Bradford v. Jenkins, 41 Miss. 328 (1867). See generally Andrew Kull, The Enforceability after Emancipation of Debts contracted for the Purchase of Slaves, 70 Chi.-Kent L. Rev. 493, 494-95 (1994).

363. Governor Starkey's Proclamation of July 12, 1865, was never enacted and so appears in no compilation of the state's laws. But legislation did tacitly recognize the courts in 1866 when, due to a death in office, the legislature transferred cases pending in one of the special courts to the circuit court of Monroe County. An Act authorizing and requiring the transfer of

the business of the Special Court of Equity established for the 9th Judicial District, 1866 Miss. Laws 91.

364. An action was brought in the special court of equity by a principal against an agent who had violated directions to purchase cotton for the principal. The agent demurred to the special court's jurisdiction on the theory that an obligation to purchase cotton for a principal was not a contract "for cotton." The special court overruled the demurrer, but the High Court reversed. Tharp v. Marsh, 40 Miss. 158, 161 (1866).

365. An Act Establishing County Courts §10, 1865 Miss. Laws 71.

366. An Act to Amend the Act Entitled An Act to Establish County Courts § 1, 1866-67 Miss. Laws 1.

367. An Act Establishing County Courts, §23, 1865 Miss. Laws 77.

368. Id. § 24, 1865 Miss. Laws 78.

369. Id.

370. Id.

371. The jurisdictional grant included a long list of offenses and "all other common law and statutory offences below the grade of felony. . .and all attempts to commit any of those offences. . ." Id. § 3, 1865 Miss. Laws 68.

Notwithstanding statutory language giving the county courts "full and complete jurisdiction" over certain cases, the High court held that the circuit court retained concurrent jurisdiction in a prosecution for a misdemeanor. Harlan v. State, 41 Miss. 566, 570 (1867) ("Upon a careful consideration of the statute, we are satisfied that, although the county court is invested with 'full and complete jurisdiction' over the cases enumerated, yet it was not intended that its criminal jurisdiction should exclude that of the Circuit Court over the same offences [sic]. The Circuit Court already possessed the jurisdiction; and the fact that the same jurisdiction has been since bestowed upon another tribunal, will not have the effect to deprive the Circuit Court of its jurisdiction, without some negative words indicating plainly such an intention.").

372. An Act Establishing County Courts § 18, 1865 Miss. Laws 75.

373. Id. § 12, 1865 Miss. Laws 71.

374. Id. § 2, 1865 Miss. Laws 67.

375. Id. § 1, 1865 Miss. Laws 66.

376. Id. § 1, 1865 Miss. Laws 66.

377. Id. §14, 1865 Miss. Laws 73.

378. In addition to punishments authorized by statute, these county courts were authorized to inflict corporeal punishment by hanging the convict by his or her thumbs for two hours every day for up to ten days, and by starving the convict. Id., 1865 Miss. Laws 68.

379. It was held error for the circuit court to try an appeal de novo from county court. Lyles v. Barnes, 40 Miss. 608, 611 (1866).

380. An Act to Establish County Courts § 19, 1865 Miss. Laws 75. Appeals were later authorized also to the Criminal Court in Warren County. An Act to Authorize Appeals. . . § 1, 1865 Miss. Laws 203-04.

381. An Act to Establish County Courts § 13, 1865 Miss. Laws 73.

382. Id. § 14, 1865 Miss. Laws 73.

383. Id. § 25, 1865 Miss. Laws 79.

384. An Act to Amend the Act Entitled An Act to Establish County Courts § 7, 1866-67 Miss. Laws 4.

385. An Act to Authorize Judges of the Probate Courts in this State to Grant Injunctions §§ 1, 1866-67 Miss. Laws 425.

386. An Act to Reorganize the Militia of the State § 12, arts. 95-101, Oct. 1865 Miss. Laws 120-22.

387. An Act to Suspend an Act Entitled an Act to Reorganize the Militia § 1, 1867 Miss. Laws 231.

388. Miss. Const. of 1868 art. VI § 4 ("no jurisdiction but such as properly belong to a supreme court.").

389. Miss. Const. of 1868 art. VI § 14 ("original jurisdiction in all matters, civil and criminal within this State, but in civil cases only when the principal amount exceeds one hundred and fifty dollars.").

390. Miss. Const. of 1868 art. VI § 16 ("full jurisdiction in all matters of equity, and of divorce and alimony; in matters testamentary, and of administration in minors' business, and allotment of dower, and in cases of idiocy, lunacy, and persons non compos mentis.").

391. Miss. Const. of 1868 art. VI § 23 ("The jurisdiction of justices of the peace shall be limited to causes in which the principal of the amount in controversy shall not exceed the sum of one hundred and fifty dollars.").

392. Miss. Const. of 1868 art. VI § 24 (The Legislature shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever they shall deem it expedient.").

393. There were some changes in language that resulted in some small adjustments to jurisdiction. Miss. Const. [of 1890] art VI § 146 ("supreme court shall have such jurisdiction as properly belongs to a court of appeals."); id. § 156 ("circuit court shall have original jurisdiction in all matters civil and criminal in this State not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law."); id. § 159 ("chancery court shall have full jurisdiction in the following matters and cases, viz.: (a) All matters in equity. (b) Divorce and alimony. (c) Matters testamentary and of administration. (d) Minor's business. (e) Cases of idiocy,

lunacy, and persons of unsound mind. . ."); id. § 171 justices of the peace ("jurisdiction. . .shall extend to causes in which the principal amount in controversy shall not exceed the sum of two hundred dollars.").

The Constitution of 1890 also eliminates some of the problems that arose because of the difficulty in distinguishing between legal and equitable jurisdiction in some cases. The chancery court received explicit jurisdiction to grant complete relief in land title actions even if a legal remedy existed, id. § 160, and also received jurisdiction concurrent with the circuit court in certain actions involving fiduciaries and accounting, id. § 161. Moreover, the supreme court was prevented from reversing judgments or decrees from circuit or chancery court where the only error or mistake was whether the cause was of equity or common-law jurisdiction. Id. § 147.

394. The constitution itself did not eliminate county courts. The legislature abolished them and transferred pending cases to circuit courts. An Act to Abolish County Courts §§ 1-2, 1870 Miss. Laws 83-84.