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The County of DuPage
Wheaton, Illinois

History of the Illinois Courts

Illinois, Pre-U.S. History

The Indian tribes dwelling in what was to become Illinois had communal codes of conduct and simply structured judicial systems. Occurrences of misconduct were ruled upon by representatives of the extended family, the clan, tribe or nation, depending upon the nature and extent of the violation. All decisions were made by these leaders, and all decisions had to be unanimous. There was no court of appeal.

European settlers began to penetrate into the area, drawn initially by the fur trade. Spain first claimed the territory, but the French were the first settlers. In 1699 the French established the Commandery of Illinois, and placed the area under the control of the Governor of Louisiana. The Commandant of Illinois appointed town commandants, or judges, for each settlement. These officials tried minor cases; the Commandant of Illinois had jurisdiction over major civil and criminal cases. In 1722 a Provincial Council was established to exercise original jurisdiction in both civil and criminal cases. This is the first record of any court in Illinois.

In the Treaty of Paris in 1763, France ceded all land east of the Mississippi River and south of the Great Lakes to Great Britain. Unsuccessful attempts to impose English common law on the French inhabitants led to the resumption of the "Custom of Paris. Each town had a board of arbitrators to hear civil cases and a judge, who heard all other cases. Friction between the French settlers and the English officials interfered with the administration of justice for some time after 1763.

Col. George Rogers Clark claimed the Illinois Territory as part of the Republic of Virginia in 1778. Seven men were elected as judges in each settlement. A majority of four was needed for a decision. Col. Clark served as the Court of Appeal. In 1779, John Todd was appointed County Lieutenant for Illinois. He reorganized the courts into three districts with the seats of government in Kaskaskia (Randolph County), Cahokia (near St. Louis) and Vincennes (now in Indiana). Each district had six elected judges, who met monthly, or as needed. English common law was growing in influence. For example, jury trials and imprisonment for debt became common. The courts of Illinois County functioned with the same jurisdiction as the courts of any Virginia county.

Illinois, Early U.S. History

Between 1784 and 1786 Virginia and other states claiming territory in the midwest relinquished their claims in favor of the new United States of America. The area was governed under the Northwest Ordinance of 1787. The next several years were chaotic as French, English and American inhabitants contended over the form the regional government would take. Each settlement was virtually independent.

The Northwest Territory was under the jurisdiction of a General Court of three judges. The judiciary, along with the governor appointed by the U.S. Congress, served as the territorial legislature. The judges sat in cases of both original jurisdiction in major criminal cases and as the Court of Appeals. The three judges could act individually and rode circuit in the districts.

In 1800 the Indiana Territory was established from the Northwest Territory and basically continued the same judicial system.

Strong anti-slavery feeling in the western section of the Indiana Territory led to the creation of the Illinois Territory in 1809. This territory contained the present states of Illinois and Wisconsin. The new Governor, Ninian Edwards, divided the new territory into three judicial districts and continued the same practices as under the Ordinance of 1787 and the Indiana Territory. The governor and three judges continued to act as a legislature until 1812, when a General Assembly was established.

The Supreme Court of Illinois was established in 1814. At this time, the General Court and the Court of Common Pleas were abolished in favor of County Courts. General civil and criminal jurisdiction was given to individual Supreme Court judges, who were required to ride the circuits.

The Illinois Constitution of 1818

Illinois became a state in April 1818. Article IV of the new Constitution described the judicial system. A Supreme Court of four judges was established, and three of the four Supreme Court judges constituted a quorum. The first Supreme Court judges were to ride circuit until their term expired in 1824 and, with the exception of these first judges, all judicial tenure was based on good behavior. The court had appellate jurisdiction except in cases of revenue, mandamus, habeas corpus and impeachment. The judges of the Supreme Court were appointed by the General Assembly and a judge could be removed by a two-thirds vote of the General Assembly. A circuit court judge had original jurisdiction in his respective circuit over all civil matters and in chancery where the debt or demand was more than $20, and all cases of treason, other felonies and misdemeanors. The legislature appointed new judges with no fixed term and they also had the power to remove any judges from the bench.

In 1824 the General Assembly appointed the new Supreme Court judges. Five Circuit Courts were created and five judges were appointed to hold court in the circuits. However, in 1827 they were legislated out of existence and the four Supreme Court judges were again required to hold Circuit Court in four circuits. In 1829 a fifth circuit was created north of the Illinois River and a Circuit Court judge was appointed by the General Assembly to hold court in that circuit. In 1835 the General Assembly appointed Circuit Court judges for all five circuits and the Supreme Court was again freed from circuit responsibility. Also a sixth circuit and judgeship was established.

It was in 1835 that the first white settlers moved into what was to become Lake County; the Daniel Wright family. It had only been in August of 1829 that the United States Government had negotiated a treaty with the Chippewa, Ottawa and Potawatomi Tribes and acquired the title to these lands. The treaty stipulated the Indians could remain in the area until the mid-1830's, although accounts seem to indicate that they left somewhat earlier.

By 1838 there were nine Circuit Courts and nine Circuit Court judges in Illinois. This system continued until the judiciary of the state was, again, reorganized in 1841. At that time, all circuits and Circuit judges were, once more, legislated out of existence. Five new Supreme Court judges were appointed to supplement the existing four judges. This enlarged Supreme Court was reassigned to Circuit Court duties and this system remained unchanged until 1848 when the second Illinois Constitution was adopted.

Justices of the Peace Courts were established on a county basis by the General Assembly in 1819 and were reorganized in 1827. They had jurisdiction in their counties over all civil suits for debt and demand not in excess of $100, and forcible entry and detainer cases. In criminal cases, their primary jurisdiction was over all assaults, battery, affrays, and over larceny committed by Negroes (slave or free). At this time, the northeast corner of Illinois was in Peoria County. One of the earliest Justices of the Peace, 1827, was Billy Caldwell, or Sauganash, a Potawatomi Chief with an Irish father. In general, local relations between the Indians and white settlers were peaceful.

The Constitution of 1818 gave the General Assembly power to create courts of inferior jurisdiction known as Circuit Courts. The presence of these courts were totally dependent upon the legislature and were legislated into and out of existence three times in twenty years. Since the General Assembly had the power to appoint and remove all judges, including Supreme Court judges, an established judicial system was unable to take root in Illinois. This judicial inadequacy was a major cause for the drafting of the 1848 Constitution.

The Illinois Constitution of 1848

Article V of the Illinois Constitution of 1848 established a Supreme Court of three judges with two of the three constituting a quorum. Election was by popular vote with one judge of three elected from each of the divisions of the state (Northern, Central and Southern) for a nine-year term. The Supreme Court had original jurisdiction in cases of revenue, mandamus, habeas corpus, and impeachment, and appellate jurisdiction in all other cases and was to convene once annually in each division.

The Constitution of 1848 established nine circuits and each circuit was to elect one judge for a six-year term. The Circuit Court was required to hold two or more sessions annually in each county. It had jurisdiction in all cases at law and in equity and all cases on appeal from inferior courts.

The constitution and subsequent legislation established a County Court in each county with one County Court judge who had a four-year term. The court had jurisdiction in all probate cases, civil cases involving not more than $100, forcible entry and detainer, and criminal cases of assaults, battery, affrays, larceny in the cases of Negroes (free or slave), and jurisdiction concurrent with the Circuit Court for sale of real estate of deceased persons.

The two decades following the enactment of the Constitution saw a great population increase in Illinois, especially in the previously sparsely settled areas of the north. Article V, Section 1 provided "that inferior local courts of civil and criminal jurisdiction may be established by the General Assembly in the cities of this state, but such courts shall have uniform organization and jurisdiction in such cities." Consequently, in 1854 the General Assembly established the elected position of Police Magistrate for a term of four years in each town and city as follows: one position for 6,000 or less inhabitants; two positions for 6,000 to 12,000 inhabitants; and three positions for more than 12,000 inhabitants. Although Justices of the Peace Courts and Police Magistrate Courts had the same jurisdiction, they were not courts of record. Therefore, any appeals were heard as new trials in Records Courts, which were located in Chicago, Aurora, Elgin and other growing cities. These courts were known as Courts of Common Pleas and had jurisdiction concurrent to the Circuit Court.

The Constitution of 1848 had established a rural judicial system, which, due to growth, quickly became inadequate. In 1868 a convention wrote an entirely new constitution for a part urban, part rural state. This new Constitution of 1870 remained the law of the State of Illinois until the adoption of the 1970 Constitution.

The Illinois Constitution of 1870

The Constitution of 1870 spelled out the new judicial system in Article VI. The Supreme Court was comprised of seven judges whose terms of office were nine years. Four judges constituted a quorum and the concurrence of four was necessary for decision. It had the same jurisdiction as it had under previous constitutions and was to hold annual terms as established by the 1848 Constitution. The state was divided into seven districts for election of the Supreme Court judges. These districts could be changed by law to maintain equality in population, but must be composed of contiguous counties.

In 1879, legislation was enacted requiring that terms of the Supreme Court were to be held only in Springfield. The Court was given authority to make rules regulating practice for the judiciary in Illinois. It also provided that the Supreme Court submit reports to the Governor on the deficiencies and problems of the laws in Illinois and suggest bills to the General Assembly designed to solve these problems. Combined with Article VI, Section 11, which provided for the establishment of an Appellate Court, we can discern the development of the Supreme Court as a body established for initiating, improving and interpreting the laws of Illinois. No longer was the Supreme Court to be a traveling Appellate Court.

The Constitution provided for the establishment of an Appellate Court by the General Assembly after 1874. Four such courts were established in 1877. The first was in Cook County, the second was in the rest of the Northern Division, the third was in the Central Division and the fourth was in the Southern Division. Each court consisted of three judges appointed by the Supreme Court from the Circuit Court, or in the case of Cook County, from the Superior Court. They were appointed for three years and held two court terms annually. Two judges were a quorum, and the concurrence of two was necessary for a decision. The jurisdiction of the court was appellate only.

By Act of Legislature of March 28, 1873, judicial districts were organized in accordance with the 1870 Constitution. Twenty-six circuits were formed, exclusive of Cook County, which formed its own circuit. The circuits were to be as equal as possible in population, economy and territory, and consist of contiguous counties. Lake and McHenry Counties, along with Boone and DeKalb Counties, constituted the Second Judicial Circuit. Theodore D. Murphy of McHenry County was elected as the Circuit Judge. Circuit Court judges were elected within their circuit for a six- year term. At least two terms of court were required to be held each year in each county.

An Act of the Legislature of June 2, 1877 again changed the judicial circuits of the state. The existing twenty-six circuits were reduced to thirteen. The Second Circuit containing Lake, McHenry, Boone and DeKalb Counties, was united with the Fourth Circuit containing Kane, DuPage and Kendall Counties, to form the new Twelfth Circuit.

Another change in the make-up of the judicial circuits occurred by an Act of April 23, 1897, which associated Lake and McHenry Counties with Winnebago and Boone Counties to form the Seventeenth Circuit.

During these years, cases in Cook County increased at a much greater rate than the population. To deal with the larger caseload, provisions were made to add to the number of judges in both the Superior and Circuit Courts of Cook County. The old Records Court of the City of Chicago was changed into the Criminal Court of Cook County with the jurisdiction of the Circuit Court in criminal and quasi-criminal cases. The terms of the Criminal Court were held by the judges of the Circuit and Superior Courts. The General Assembly increased the number of judges in the Circuit Court of Cook County until eventually, in 1915 that number reached 20.

The constitution, again, provided for County Courts in each county. One judge was to be elected to that position for a four year term; however, where it was expedient to do so the General Assembly could create a district of two or more counties under the jurisdiction of one judge. This court was to be the county court of record. The constitution of 1870 and subsequent legislation in 1877 and 1881 established Probate Courts in counties where the population was over 70,000. Judges of these courts had four-year terms. In 1903 an act of the General Assembly provided that the probate judges and county judges may hold court for each other and perform each other's duties.

The constitution also provided for the continuation of Police Magistrates and Justices of the Peace.

In 1901 an act was approved concerning courts of records in cities. It was amended in 1901, 1911 and 1913. It permitted from one to five judges in each City Court. However, the number of judgeships could not exceed one for every 50,000 inhabitants. The court could be established only in cities of at least 3,000 inhabitants. The judges were given four-year terms. These courts had jurisdiction concurrent with the Circuit Court, except in cases of treason and murder.

In 1903 an administrative agency called a Court of Claims was established in Illinois to hear all cases of claims of any nature against the state. Three judges were appointed to the court by the governor.

Dissatisfaction with the Justices of Peace and Police Magistrate system became so serious that a 1904 amendment to the constitution abolished Justices of Peace, Police Magistrates and Constables in the City of Chicago and limited the jurisdiction of all other Justices of the Peace, Magistrates and Constables in Cook County to the area outside the City of Chicago. It also permitted the establishment of a Municipal Court in Chicago.

Legislation in 1905, 1906 and 1907 established the Municipal Court of Chicago with jurisdiction in civil claims for money or property and in non-felony criminal cases. The court was created to meet the special needs of a rapidly growing urban area. Legislation approved in 1899 and amended in 1907 established a Juvenile Court (later called the Family Court) in Cook County. One judge of the Circuit Court was to hear all cases involving persons under the age of 21 termed by the act as dependent, neglected or delinquent. This act was the first of its kind in any state.

These specialized courts demonstrated the needs of a growing population and the developing independence, importance and responsibility of the courts in Illinois. They were very functional, but the problems caused by the creation of new courts for new needs soon outweighed the advantages.

Many of these specialized courts had overlapping jurisdiction causing organizational and administrative problems. There was no real administrative authority to unify, coordinate and supervise the various courts and judges. A unified court system was needed. It was during these years of organizational growth and confusion, that in 1957 the Legislature detached Lake and McHenry Counties from the Seventeenth Judicial Circuit and created the Nineteenth, to be comprised of only these two counties.

The Judicial Article of 1964

Under the Judicial Article of 1964 the judicial power of Illinois was vested in a Supreme Court, and Appellate Court and Circuit Courts. On the trial court level all courts other than the Circuit Courts were abolished and all their jurisdiction, judicial functions, powers and duties were transferred to the respective Circuit Courts.

The Supreme Court was composed of seven judges, elected from five judicial districts. Cook County was the First Judicial District. The remainder of the state was divided into four Supreme and Appellate Districts. Three Supreme Court judges were elected in the First Judicial District. One was elected from each of the other judicial districts. Four judges constituted a quorum and concurrence of four was necessary for a decision. Judges of the Supreme Court were elected for ten-year terms. The Supreme Court exercised original jurisdiction in cases relating to revenue, mandamus, prohibition and habeas corpus. It had appellate jurisdiction in all other matters. Appeals would go from the Circuit Court directly to the Supreme Court in cases involving revenue, a question arising under the federal or state constitutions, habeas corpus or appeal by the defendant from sentence in capital cases.

The Supreme Court was given the authority to establish rules for trial procedure. In fact, general administrative authority over all courts was vested in the Supreme Court to be exercised by the Chief Justice who was selected for a three-year term by the members of that court. To assist the Chief Justice in this task, the Article provided for an administrative director and a staff. In this Article the increased attention of the Supreme Court to the development, interpretation and administration of law in Illinois can be discerned.

The Appellate Court was organized in the same five judicial districts as the Supreme Court. It consisted of twenty-four judges, twelve in the First District (Cook County), and three in each of the other four districts. Appellate Court judges were elected for ten-year terms. Concurrence of two judges was necessary for a decision.

All final judgments of the Circuit Court except those directly appealable to the Supreme Court and acquittals on the merits in criminal cases were, as a matter of right, appealable to the Appellate Court in the district in which the Circuit Court was located. To assure a complete determination of any case being reviewed, the Appellate Court was empowered to exercise any necessary original jurisdiction. Appeals from the Appellate Court were to the Supreme Court in cases where a question arose concerning the state or federal constitution for the first time, as a result of the action of the Appellate Court, or when a division of the Appellate Court certified that the case was of such importance that it should be decided by the Supreme Court. In all other cases the Appellate Court was the last court of appeal unless the Supreme Court granted leave to appeal.

The Article provided that the state should be divided into judicial circuits of one or more contiguous counties. There were 21 such multi-county circuits. Cook and DuPage counties were single county circuits until 1985 when Will County also became a single county circuit.

Section 8 of the Article provided that judicial circuits should be established from time to time by law. The Article specified no maximum number of circuits; and therefore, it was flexible for meeting further needs. There was only one Circuit Court in each circuit. This court had "unlimited original jurisdiction of all justifiable matters". By giving jurisdiction to the Circuit Courts and establishing only one Circuit Court, the Article avoided and eliminated the problems of complex and often overlapping jurisdiction and all the legal problems that stemmed from the numerous courts of special jurisdiction which had grown up during the previous years.

The Circuit Courts had three categories of judges: Circuit Judges, Associate Judges and Magistrates. The Circuit Judges had the full jurisdiction of the Circuit Court, and the power to make the rules of the court. They were elected on a circuit-wide basis. One Circuit Judge was elected by the Circuit and Associate Judges as Chief Judge of the Circuit. He was the manager of the Circuit with general administrative authority in his Circuit subject only to the authority of the Supreme Court. He assigned cases, assigned duties to court personnel, and determined time and place of court sessions.

Associate Judges had the full jurisdiction of the Circuit Court. They voted for the Chief Judge but they did not have rule making authority and could not be selected as Chief. There had to be at least one Associate Circuit Judge elected in each county of the state. Both Circuit Judges and Associate Judges had six-year terms.

Magistrates were appointed by the Circuit Judges and served at their pleasure, without terms. While they had the full jurisdiction of the Circuit Court, only certain cases were assignable to them. This assignability was determined by law. The law enabled the Supreme Court to expand the matters assignable to lawyer magistrates. The Chief Judge could further limit and determine which matters were assigned to Magistrates in his circuit. Magistrates generally were assigned civil cases when the amount of damages or the value of personal property claimed did not exceed $15,000; and quasi-criminal and criminal cases, generally, where the maximum punishment did not exceed a fine of $1,000 or imprisonment for one year or both. Magistrates also were assigned internal administrative duties within the court. The authorized number of magistrates to be appointed was proportionate to the population. In addition to the number of magistrates authorized by statute, the General Assembly empowered the Supreme Court to allocate the appointment of 40 Magistrates to the circuits upon a showing of need.

The Judicial Article of 1964 introduced important innovations in the Illinois Judicial System. Under Section 11 of the Article, judges, once elected, were permitted to run for reelection not as members of a political party or against a candidate, but on their own record. The electorate voted yes or no on retention of the individual judge, and the judge had to receive a majority to be retained. Section 10, however, provided for the initial selection of judges by party ballot. Any candidate who ran for an elective judicial office for the first time was required to be "nominated by party convention or primary and elected at general elections..." Section 16 provided that judges could not "engage in the practice of law or hold any office or position of profit under the United States or this state or any other municipal corporation or political party". Section 15 also stated that no person could be eligible for the office of judge unless he was a citizen and licensed attorney at law of this state and a resident of judicial district, circuit, county, or unit from which elected. This was a clear attempt to establish a judiciary as a full time profession in Illinois, and to raise its efficiency, objectivity, and effectiveness. Section 18 established a commission of judges composed of one Supreme Court, two Appellate Court judges selected by the Appellate Court, and two Circuit Judges selected by the Supreme Court with the power to retire for disability or to suspend or remove any judge from office for cause. Thus, the judiciary rendered judgment on its own members rather than having the General Assembly exercise that authority. The Supreme Court was further required to report annually to the General Assembly. Here again provisions were made to develop the judiciary as an autonomous professional and independent arm of government cooperating with, but not dominated by, the General Assembly.

The Judicial Article of 1970

Illinois has the distinct advantage of not only having one of the first truly unified court systems in the nation, but also having had the opportunity in the 1970 Constitution of refining and improving that system after a trial period. The 1964 Judicial Article established a model court system of simplicity, efficiency, and flexibility. After seven years of scrutiny and analysis this successful system was modified to eliminate some of the minor flaws. Illinois now has a judicial system to meet the needs of its citizens, a system built on tradition but designed with flexibility to accommodate future needs as well. The Judicial Article of the Illinois Constitution of 1970 (Article VI) provides for a unified, three-tiered judiciary, comprising of the Circuit Courts, the Appellate Courts, and the highest Court in the State, the Illinois Supreme Court. Cases are normally channeled to the Supreme Court from the Appellate Court, but in cases where a Circuit Court has imposed a sentence of death, the law provides for an appeal directly to the Supreme Court, bypassing the Appellate Court.