Pleading and Practice

Introduction

Nineteenth-century law was a hybrid system of common law precedents and specific statutory provisions. Within this system, the set of rules and practices called “pleading” had the purpose of bringing the subject in dispute “to issue,” to a point where one party affirmed some matter of fact or law and the other party denied it. Pleading ended when the parties submitted the points at issue to the judge or jury for their decision. “Practice” was a more general term that encompassed the rules and traditions that governed the operation of the courts.

The central structural component of the antebellum court system was the county circuit court. It was in these courts that most antebellum litigants interacted with the court system. Within the circuit courts, there were three major divisions of law: the common law, chancery, and criminal. The division in which the court handled a given case depended upon the nature of the controversy. Most cases called for an application of the statutory law and judicial precedent in the common law division. The chancery division encompassed those cases in which an individual could not obtain a hearing under the common law. The criminal division included those cases involving a violation of a public law. In antebellum Illinois, roughly two-thirds of docketed cases were common law cases, another quarter were chancery cases, and the remaining tenth were criminal cases.

Common Law Pleading

Chancery Pleading

Criminal Pleading

Probate Pleading

Bankruptcy Pleading

Appellate Pleading

Bibliography

Frequent Actions by Division

Common Law	Chancery	Criminal
Account	Accounting	Adultery
Agreed Case	Appointment of Conservator	Assault
Appeal	Bill in Chancery	Assault & Battery
Assault & Battery	Cancel Bond	Assault with Intent to Injure
Assumpsit	Conveyance	Assault with Intent to Murder
Attachment	Correct Deed	Assault with Intent to Rape
Certiorari	Correct Records	Assault with a Deadly Weapon
Cognovit	Cross-Bill	Bastardy
Confession	Discovery	Cohabitation
Covenant	Divorce	Failure of Duty as Supervisor
Debt	Dower	Forfeiture of Recognizance
Detinue	Foreclose Mortgage	Forgery
Ejectment	Injunction	Gaming
Forcible Detainer	Make Deed	Harboring Fugitive Slave
Garnishment	Make Title	Keeping a Disorderly House
Libel	Mechanic's Lien	Keeping Tippling House Open on Sunday
Mechanic?s Lien	Ne Exeat	Larceny
Petition & Summons	Partition	Loaning Public Money
Quo Warranto	Perfect Title	Malicious Mischief
Replevin	Relief	Manslaughter
Right of Property	Rescind Contract	Murder
Scire Facias to Foreclose Mortgage	Revivor	Obstructing Road
Seduction	Sell Real Estate	Passing Counterfeit Money
Slander	Sell Real Estate to Pay Debts	Perjury
Trespass	Set Aside Conveyance	Rape
Trespass on the Case	Set Aside Deed	Receiving Stolen Goods
Trespass on the Case on Promises	Set Aside Sale	Recognizance to Keep Peace
Trespass Quare Clausum Fregit	Set Aside Will	Riot
Trespass Vi Et Armis	Settle Partnership	Scire Facias on Recognizance
Trover	Specific Performance	Selling Liquor
Trover & Conversion	Vendor's Lien	Stealing from Mail

Lawyers, clerks, judges, and other court officers conducted most of the activity in antebellum courts and produced virtually all of the documents. Judges, clerks, and other court officials obtained their positions through appointment or election. However, each court controlled the admission of lawyers to practice before it. Each lawyer had to request admission to the bar for the court. The court appointed other attorneys to examine the prospective member of the bar and to certify his ability and “good moral character.” If the examiners approved the prospective member, the clerk entered the attorney’s name in the court record or on a separate roll of attorneys. A lawyer had to obtain separate admission to practice before the circuit courts, the Illinois Supreme Court, and the federal courts, but admission to one of these bars usually made admission to the others a matter of routine.

Nineteenth-century courts had authority over all of the individuals who lived within their geographical jurisdiction, but they did not view all people equally. Courts clearly viewed women, minors, and African Americans differently than they did adult, white males. None of them could serve as judges, lawyers, or jurors, and married women (femes covert) and children had to address the court as litigants through their husband or guardian. Unmarried women (femes sole) and African Americans could enter the court in their own name without any intermediary. However, African Americans could not appear as witnesses in criminal cases against white persons. Furthermore, in 1853, Illinois prohibited the immigration of free African Americans into the state.

Although the following descriptions of pleading and practice frequently refer to litigants, their attorneys usually wrote and filed the necessary legal documents with court clerks and judges. For purposes of clarity, this essay also refers to only one litigant on each side of an issue when frequently there were several litigants on one or both sides.

Common Law Pleading

To begin a common law case, the plaintiff contacted the clerk of the court in which he wished to sue at least ten days before the beginning of the term of court. The plaintiff filed two documents with the clerk. The first document was a praecipe, which briefly explained the basis for the action and requested that the clerk issue a summons to bring the defendant before the court at the next term. The second document was a declaration or narratio, which set forth in detail the facts of the case and the reason that the plaintiff should obtain relief through the court. The plaintiff sometimes wrote the praecipe directly on the declaration itself.

If the plaintiff lived out of the state or the action involved penal bonds or bonds of administrators, executors, or guardians, the plaintiff had to file a bond for costs to ensure that he would pay the court costs. The plaintiff also had alternate methods of ensuring his success when he initiated the case. If the plaintiff suspected that the defendant would not appear for trial or would attempt to hide his assets, the plaintiff could file an affidavit with the clerk substantiating his suspicions and requesting the clerk to issue a writ of capias ad respondendum. The plaintiff might also request a writ of attachment on some of the defendant’s assets before the trial of cases involving a debt or a writ of ne exeat to prevent an individual from leaving the court’s jurisdiction with his property.

The clerk of the court then issued a summons, which directed the sheriff to notify the named defendant of the impending case against him and to order him to appear at the next term of court. After the sheriff found the defendant and read the summons to him, the sheriff returned the summons to the clerk with a notation that he had served it.

In many cases, the court granted one party a continuance or the parties agreed to continue the case to the next term of court. To obtain a continuance, a litigant had to file an affidavit that explained that he needed the additional time to subpoena witnesses, to obtain other documentary evidence, to amend a pleading document, or to respond to an amended pleading document.

When the court term began, the defendant could file either a demurrer or a plea. In theory, the filing of pleading documents in turn by plaintiff and by defendant continued until the parties narrowed the case to an issue of law or fact affirmed by one side and denied by the other. Actual practice, however, was frequently less precise. In a demurrer, the defendant asserted that the plaintiff’s declaration was defective in either the substance of the law or the form of the document. In a plea, the defendant asserted that the plaintiff’s declaration was inaccurate or insufficient in fact. If the defendant failed to appear in the court, the court would simply record a default judgment for the plaintiff.

In response to the defendant’s demurrer, the court ruled on the validity of the demurrer. If the court overruled the demurrer, the defendant had to enter his plea to the declaration. If the court sustained the demurrer and determined that the error was fatal, the case ended. If the error was not fatal, the plaintiff could amend his declaration. Either party in the case could demur to the other party’s pleading at any point in the process.

In response to the defendant’s plea, the plaintiff had three choices: (1) he could demur to the plea and declare that it was insufficient in law; (2) he could enter a replication that responded to the facts of the defendant’s plea or asserted new facts to counter the defendant’s plea; or (3) he could “join” the issue and ask the court to decide the case.

The defendant’s response to a replication that erred in a matter of fact was a rejoinder, and the plaintiff’s response to the defendant’s rejoinder was a surrejoinder. Only rarely did cases reach this advanced stage of pleading. More commonly, the case went to the judge or jury for decision after the defendant entered a plea. When the pleading ceased and the parties agreed on the points of their disagreement, the party who had not pleaded last “joined” the issue by submitting a joinder. Frequently, the attorney simply wrote the joinder at the end of the last pleading document. At this point, the litigants submitted their dispute to the court for resolution.

If either party believed that he could not receive a fair trial in the court in which the legal action was pending, he could petition the judge for a change of venue to another court. The party requesting the change of venue had to submit an affidavit explaining why he could not receive a fair trial. Common reasons for changing venue were that the other party exerted undue influence over the potential jurors, that the judge had an interest in the case or a relation to one of the litigants or their attorneys, or that the potential jurors were prejudiced against the petitioning party. Neither party was entitled to more than one change of venue. If the circuit court granted a change of venue, the case typically moved to a nearby county circuit court, although occasionally the court moved the case to a county outside the judicial circuit.

In antebellum legal theory, judges were to decide issues of law and juries were to decide issues of fact. However, in practice, the distinction between issues of law and issues of fact was frequently unclear. The defendant in antebellum Illinois had a right to trial by jury without regard to the amount of money or property in controversy. In many cases, the parties agreed to waive a jury trial and to allow the judge to decide the case. If the parties did not waive a jury trial, the court summoned a jury of twelve men to hear the case. The attorneys for each party could challenge the qualifications or fitness of individual jurors, and each party was entitled to three peremptory challenges, for which they did not need to provide a reason.

In most cases, the plaintiff’s attorney opened and closed the arguments and examination of witnesses before the jury, but in some circumstances, the defendant’s attorney did so. The attorneys might also introduce evidence by depositions from witnesses who lived far away from the court. To obtain depositions, the attorney had to draft a set of questions or interrogatories, which the witness would answer. The attorney filed these questions with the clerk of the court and requested the clerk to issue a dedimus potestatem that ordered a commissioner or an officer of the court where the witness lived to take the deposition of the named witness. Attorneys could also introduce other evidence, such as documents or physical objects, to support their case.

After the attorneys argued the case before the jury, the attorneys had the opportunity to propose jury instructions to the judge. The judge presented instructions in writing to the jury, and the jury left the courtroom to deliberate privately on a verdict. When the jury agreed upon a verdict, they returned to the courtroom and presented their verdict to the court in writing.

Cases could reach a resolution in ways other than a verdict by judge or jury. If the defendant failed to appear to answer the allegations of the plaintiff’s declaration, the court would record a default judgment for the plaintiff. Defendants sometimes resorted to this method to reduce court costs when they were certain that the court would rule for the plaintiff, as in a debt case where the debt was legitimate and the defendant had failed to pay. If the plaintiff became convinced that his case was insufficient and abandoned it or failed to appear to prosecute his case, the court would enter a judgment of nonsuit. If one of the parties demurred to the pleading of the other party, and the court sustained the demurrer as a fatal flaw, the case ended with a judgment upon demurrer. At any point in the pleading process before a judgment, the court itself could also dismiss a case. If one of the parties died, the court could abate the case. If the plaintiff failed to follow the court’s directions, the court could dismiss the case.

Under certain circumstances, courts would set aside a verdict and grant a new trial. Common reasons included: misconduct by the litigants (such as influencing the jury or suppressing evidence), errors in the admission of evidence, newly discovered evidence, absence of witnesses, errors by the judge in presenting jury instructions, mistakes or misconduct by the jury, a verdict against the law or evidence, and excessive or inadequate damages. The party requesting a new trial had to motion the court for new proceedings. If the court granted the motion, the party requesting the new trial had to pay the costs of the original trial.

If, during the course of the trial, either party believed that the judge made an error in the law, that party could file an exception to the opinion of the court. The law required the judge to sign the exception and make it a part of the court record. A bill of exceptions frequently became the basis for an appeal from the circuit court to the Illinois Supreme Court on a writ of error. A party in the circuit court had to request an appeal to the supreme court within a certain time after the judgment and also had to give the court an appeal bond that ensured that he would pay both the judgment and the costs of the case and the appeal.

At the conclusion of a case when there was no appeal, the court still had to execute the judgment that it had rendered. The clerk of the court issued a writ of execution to the sheriff, who had the responsibility of collecting the debt, damages, and any court costs from the appropriate party. Specific writs of execution included a writ of capias ad satisfaciendum (for seizing the losing party himself), a writ of fieri facias (for seizing the losing party’s real or personal property), and a writ of possession (for seizing specific real property and conveying it to the winning party). When the sheriff seized property, the party could pay the judgment, or the sheriff would sell the property at public auction to satisfy the judgment. If, after one year, the sheriff had failed to collect the judgment, the winning party could request a writ of scire facias to enforce the previous judgment. If the losing party appeared in court to defend against the writ, the case proceeded as a new action, and the defendant had to show why the court should not enforce the earlier order.

Chancery Pleading

As in the case of common law pleading, the purpose of chancery, or equity, pleading was to bring the subject matter of contention to an issue affirmed by one side and denied by the other. The pleading began when a complainant (or plaintiff) filed a bill of complaint in the circuit court. The bill of complaint (also referred to as bill for relief, bill in chancery, or bill in equity) had several specific components. It had to identify the court, to name the complainant, to provide specific facts detailing the wrong that the complainant had suffered, to name the respondent (or defendant), to indicate that the complainant can obtain a remedy only through a court of equity (or chancery court), to request that the respondent answer the charges of the bill, and to include a “prayer for relief” from the court. If the complainant were a non-resident, he had to file a bond for costs before commencing the suit.

Upon receiving the bill of complaint, the clerk of the court issued a summons (also referred to as a subpoena in chancery or a summons in chancery), which directed the sheriff to notify the named respondent of a case against him and to order him to appear at the next term of court. After the sheriff found the respondent and read the summons to him, the sheriff returned the summons to the clerk with a notation that he had served it.

In cases where one or more of the respondents lived outside the state or their place of residence was unknown, the complainant could publish a notice in the nearest newspaper announcing that the suit was pending in court. Evidence of the newspaper notice would then serve as sufficient notification of parties to the case. If a respondent failed to appear in court to answer the bill of complaint, the court took the bill as confessed and entered a default judgment against the respondent.

In many cases, the court granted to one party a continuance to the next term of court. Chancery cases, especially those dealing with inheritance issues, frequently lasted several and sometimes many terms of court. To obtain a continuance, a litigant had to file an affidavit that explained that he needed the additional time to identify interested parties, to subpoena witnesses, to obtain depositions or other documentary evidence, to amend a pleading document, or to respond to an amended pleading document. To obtain depositions from witnesses who lived far away from the court, the attorney had to draft a set of questions or interrogatories, which the witness would answer. The attorney filed these questions with the clerk of the court and requested the clerk to issue a dedimus potestatem that ordered commissioners or an officer of a court where the witness lived to take the deposition of the named witness.

In response to the complainant’s bill of complaint, the respondent could demur, answer, or file a cross-bill on the date required by the summons. If the complainant’s bill of complaint lacked equity, the respondent could file a demurrer to the bill. Bills of complaint “lacked equity” when a remedy was available through the common law, when the chancery court could not perform the action requested in the bill, or when the complainant or respondent was not the proper party to the suit.

If the respondent disagreed with the facts presented in the bill of complaint, he could file an answer as a defense. The answer denied the facts of the bill or stated new facts that asserted the respondent’s rights in the matter before the court. Multiple respondents could file a joint answer or each respondent could file a separate answer. In cases involving minor litigants, the court appointed a guardian ad litem to represent the interests of the minor or minors in the specific case before the court. A guardian ad litem for minor defendants had to file a guardian ad litem's answer that included his objections or lack of objections to the relief requested in the bill of complaint.

The respondent could also file a cross-bill in the case. A cross-bill was in part an original bill and in part a response to the original bill of complaint. The respondent could file a cross-bill against any or all of the complainants or against any or all of his co-respondents. The complainant could also use the cross-bill to bring into the case new parties, who were not parties to the original suit. The primary difference between an answer and a cross-bill was that the answer was a defense against the complainant’s allegations, while a cross-bill combined a defense with a request for relief on the part of the respondent.

The complainant’s next action in the pleading process depended on the type of response that the respondent made. If the respondent demurred, the judge might rule that the problem with the bill of complaint was fatal, and the case ended. However, if the defect was not fatal, the judge might allow the complainant to amend his original bill. Courts allowed amendments to bills, answers, and replications, and chancery courts were generally liberal in allowing amendments of pleadings in the interest of complete justice.

If the respondent answered the bill, the complainant then had to file a replication, in which he reiterated the “truth and sufficiency” of his original bill and a denial of the sufficiency of the answer. The replication had the effect of joining the issue for trial.

If the respondent filed a cross-bill, the complainant had to reply to the allegations in his own answer to the cross-bill. Like the answer to an original bill of complaint, the answer to a cross-bill denied the facts of the cross-bill or stated new facts relevant to the issues raised by the cross-bill that asserted the complainant’s rights in the matter before the court. In response to the answer to the cross-bill, the original respondent would file a replication, reasserting the adequacy of his cross-bill and joining the issue for trial.

Supplemental bills corrected some defect in the original bill or the proceedings after the parties had joined the issue. The complainant or respondent would correct such defects before joining the issue by amending his bill, answer, or replication. A litigant typically filed a supplemental bill to add additional parties to the case, when he had become aware of their interest or they had acquired an interest in the matter since the start of the proceedings.

If a litigant in a chancery case died or a female litigant married before the final decree, the court could abate the case. If only one of several complainants or respondents died, the case would continue with the surviving complainants or respondents. Unlike abatement in a common law case, abatement in a chancery case merely suspended the proceedings. To restore a case, the remaining party or the representative of the deceased party had to file a bill of revivor.

After the pleading process ended and the parties joined the issue for trial, the attorneys then presented depositions, oral testimony, or evidence taken by the master in chancery to support each side’s claims. The court could refer an issue to a jury for trial when necessary. Some issues in chancery litigation, such as the validity of wills, required a trial by jury. The judge presented to the jury a set of written instructions, and the jury deliberated and returned a written verdict to the court. In most chancery cases, however, the judge issued a decree without the participation of a jury.

After the court issued its final decree in the case, it still had to enforce the execution of the decree. In inheritance cases, the court typically instructed the executor or administrator of the estate to perform some action. In other cases, the master in chancery or court-appointed commissioners had the duty of executing the decree. Frequently, the master in chancery or commissioners had to partition, convey, or sell land to satisfy the judgment. After completing their duties, these individuals would report to the court that they had satisfied the decree. The master in chancery or commissioners sometimes did not file their reports until several terms or years later.

Criminal Pleading

A criminal case began when an individual reported to a justice of the peace, the circuit court judge, or the state’s attorney that someone had committed a crime. The justice of the peace could call a jury and try minor cases within his court. In most criminal cases, however, the justice of the peace conducted a preliminary investigation, in which witnesses testified that the accused had committed a crime. The justice of the peace then jailed the accused or set bail for the accused and ordered him to appear on the first day of the next term of the circuit court. The justice of the peace also bound witnesses by a recognizance bond to appear at the next term of the circuit court to testify in the case.

When notified of the offense, either by the justice of the peace or an individual, the state’s attorney in the circuit court presented the case on behalf of “the people” to a grand jury of at least sixteen men. The grand jury heard witnesses for the prosecution only in each of the cases before the circuit court during a specific term. In determining whether to find a true bill of indictment, the grand jury could rely on the testimony of only one witness, but at least twelve of the grand jurors had to agree to find a true bill. The foreman of the jury wrote on each bill of indictment either “a true bill” or “not a true bill.”

After the grand jury found a true bill, the state’s attorney would file the indictment with the clerk of the court. The clerk issued a writ of capias ad respondendum to the sheriff or other court official for the apprehension of the person whom the grand jury indicted. The clerk also issued subpoenas for witnesses for both the people and the defendant. When the sheriff seized a defendant and the circuit court was not in session, the sheriff either jailed the defendant or allowed him to post a bail bond or a recognizance bond promising to appear in court on the first day of the next term. Any local judge or justice of the peace could also issue a search warrant in larceny cases to permit the sheriff or other court official to search specified buildings for specified goods. If the judge or justice believed that the recovered goods were stolen, the sheriff kept them pending the outcome of the case against the alleged thief.

A prisoner in jail for a crime could petition the supreme or circuit court for a writ of habeas corpus to challenge the legality of his imprisonment. In awarding the writ, the court ordered the sheriff or other official who held the prisoner to bring him in person to the court and to explain the cause of his imprisonment. At the hearing, the prisoner could challenge his imprisonment or the allegations on which it was based. The court could then release the prisoner, allow him to post a bail bond, or remand him to jail with an order specifying the basis on which the sheriff or jailer holds him in custody.

Before a session of the circuit court began, the county commissioners' court selected twenty-four potential petit jurors from among the “free white male taxable inhabitants” of the county. When the circuit court began its session, it heard criminal cases first. If the defendant could not afford an attorney, the court could order an attorney to defend him. The defendant had a right to have a copy of the indictment and a list of the witnesses against him. In response to the indictment, the defendant had three options. In a manner similar to a demurrer in common law pleading, the defendant’s first option was to motion to quash the indictment because it was insufficient in some particular. A judge would quash an indictment if the court did not have jurisdiction over the case, if the accusation did not charge an indictable offense, or for other irregularities.

If the defendant did not motion to quash the indictment or if the judge overruled his motion to quash, he had to enter a plea to the indictment. His second option was to enter a guilty plea; the judge would then render a judgment and impose a sentence. His third option was to plead not guilty, and the case would proceed to trial. If the defendant refused to plead, the court assumed a plea of not guilty. In cases involving misdemeanors, the defendant could waive a jury trial.

When the defendant believed that he could not receive a fair trial in the court in which his case was pending because the judge or the potential jurors were prejudiced against him, he could request a change of venue to another court. If the defendant provided sufficient reasons, the judge would grant a change of venue to the nearest county circuit court. The law allowed only one change of venue in a criminal case. At any point prior to a verdict, the state’s attorney could refuse to prosecute his case further, and the court would enter a judgment of nolle prosequi and release the defendant. The judge might also dismiss the case at any point in the proceedings. Occasionally, such dismissals were part of a “plea bargain,” in which a defendant pleaded guilty in another case in exchange for a dismissal.

Criminal trials generally followed the course of common law trials. The principal difference was that in criminal trials, petit juries decided matters of both law and fact. Before the trial began, the state’s attorney and the attorney for the defendant examined the twelve men chosen at random from the pool of potential jurors. In most criminal trials, the defendant could issue six peremptory challenges to potential jurors without providing a reason. In cases where the punishment could be imprisonment for more than eighteen months, the defendant had ten peremptory challenges, and in capital cases, he had twenty. In each category, the state’s attorney had half the number of peremptory challenges as the defendant. The principal purpose of the jury selection process was to obtain a jury of twelve impartial men.

During the trial, the state’s attorney and the attorney for the defendant examined witnesses in the presence of the jury. The attorneys might also introduce evidence by depositions from witnesses who lived far away from the court. To obtain depositions, the attorney had to draft a set of questions or interrogatories for the witness to answer. The attorney filed these questions with the clerk of the court and requested the clerk to issue a dedimus potestatem that ordered a commissioner or an officer of the court where the witness lived to take the deposition from the named witness. Attorneys could also introduce other evidence, such as documents or physical objects, to support their case.

After the state’s attorney and the defendant’s attorney had presented their evidence and arguments to the jury, they had the opportunity to propose jury instructions. The judge might select the instructions proposed by one or both parties or draft his own jury instructions, but he had to give them to the jury in writing. After receiving the instructions, the jury left the courtroom to deliberate on a verdict in private. If the jury had reasonable doubt about the defendant’s guilt, the law required that they acquit the defendant. When the jury agreed upon a verdict, they returned to the courtroom and presented their verdict to the court in writing.

If the jury found the defendant not guilty, the court released him immediately, and no court could prosecute him again for the same crime. If the jury found the defendant guilty, it often had to prescribe a punishment. For crimes punishable by death, the jury had to declare in their verdict whether the defendant should be executed by hanging, imprisoned for life, or imprisoned for a lesser term of at least fourteen years. For crimes punishable by imprisonment in the penitentiary, the jury had to specify the length of the prison sentence.

After receiving the jury’s verdict, the court proceeded to sentencing. The statutes prescribed a particular sentence or range of sentences for each criminal offense, and the judge and jury were bound by the statutory provisions. Depending on the crime, the court could impose punishment of a fine or imprisonment, but only the jury could impose a death penalty. If the jury imposed a prison sentence, the court would determine what part of the sentence the defendant had to spend in solitary confinement and what part at hard labor. If the court had discretion on the extent of punishment, it could examine witnesses concerning the mitigation or aggravation of the offense.

When the court imposed a fine and the defendant failed to pay it, the clerk issued a writ of execution to the sheriff ordering him to collect the fine and court costs. The sheriff then seized the defendant’s real and/or personal property and sold it at public auction to pay the fine. The court could also confine a convicted defendant in jail until the fine and court costs were paid.

If the state’s attorney or the defendant’s attorney believed that the judge made an error during the trial, he could file a bill of exceptions, which could become the basis for an appeal to the Illinois Supreme Court. Typical alleged errors in criminal cases included overruling a request for a new trial or change of venue, issuing or refusing certain jury instructions, and judgments against the facts. If the supreme court or one of its justices reviewed the transcript of the trial and the assignment of errors and found sufficient cause for allowing a writ of error, the supreme court would grant it. The clerk of the supreme court would then issue a writ of supersedeas to stay the execution of any judgment in the inferior court until the supreme court could review the writ of error in the case.

After the conviction and sentencing of a defendant, the governor of the state could pardon in all cases except impeachment. To obtain a pardon for a specific individual, interested citizens, often including the attorneys for one or both sides in a case, would petition the governor for a pardon and provide specific information to support the request.

Appellate Pleading

Illinois law permitted litigants to appeal decisions of one court to the next higher court in the hierarchy of the state’s court system. From inferior courts, such as the Justice of the Peace Courts, Sheriff's Courts, County Courts, and County Commissioners' Courts, a litigant could appeal to the Circuit Court of the county in which the inferior court sat. The litigant desiring an appeal (or appellant) had to petition the inferior court for an appeal. The judge or justice of the peace of the inferior court permitted the appeal, and the appellant had to post an appeal bond with either the justice of the peace or the clerk of the circuit court to ensure that he would pay the costs. The justice of the peace or the clerk prepared a transcript of the proceedings at the inferior court, and the appellant transmitted it to the county circuit court. The county circuit court re-tried the entire case on its merits. Therefore, the plaintiff in the inferior court remained the plaintiff in the circuit court, and the case name remained the same (e.g. if Smith sued Jones in the inferior court, the court ruled for Smith, and Jones appealed to the circuit court, the case would remain Smith v. Jones in the circuit court).

Litigants could also appeal the final judgment of a County Circuit Court to the Illinois Supreme Court in one of two ways: by an appeal or by a writ of error. In a true appeal, the supreme court reviewed the entire case; in an appeal by writ of error, the supreme court could consider and rule on only those issues that the appellant (or plaintiff in error) raised as errors. In the circuit court, the losing party who desired an appeal of either type had to request it; the winning party could appeal only by a writ of error but also had to request permission from the circuit court. A winning party in the inferior court might desire an appeal to obtain a more favorable judgment. The judge of the circuit court permitted the appeal, and the appellant had to post an appeal bond with the clerk of the circuit court to ensure that he would pay the costs. The clerk of the circuit court prepared a certified transcript of the proceedings in his court, and the appellant filed the transcript with the clerk of the supreme court. If the appellant failed to file the necessary documents, the supreme court dismissed the case, and the judgment of the circuit court stood. When the supreme court admitted an appeal, the circuit court judgment became “wholly inoperative.” When the supreme court admitted a writ of error, the clerk issued a writ of supersedeas to the circuit court to suspend the judgment pending the outcome of the review of the alleged errors.

Litigants in the circuit court could also pursue an appeal to the supreme court through an agreed case. The attorneys for the two parties produced an agreed statement of facts and points of law at issue between them. The parties agreed to present this statement to the circuit court for adjudication and to present that judgment to the supreme court for review. The circuit court issued a final judgment, and the case proceeded to the supreme court by a writ of error.

At each term, the supreme court heard cases involving “the people” as a litigant first, followed by all other cases in the order in which appellants filed their records with the clerk. In preparation for the case, the clerk issued a writ of scire facias, which commanded the sheriff of the appropriate county to summon the appellee (or defendant in error) to the supreme court on the first day of the next term. The appellant also had to file an assignment of errors that provided a detailed description of the alleged errors that the circuit court made. In response to the assignment of errors, the appellee had to file a plea or a joinder in error. A joinder in error simply denied that the inferior court had made any errors. If the appellee pleaded, the appellant could reply or demur to the plea, and the pleading would proceed until it reached a joinder in error and proceeded to argument.

The attorneys for each side had one hour to present their oral arguments to the court, and they could not call witnesses to testify. The attorneys could file additional written arguments to support their oral presentation. After oral arguments, the justices left the courtroom to consider the case and to reach a verdict. After deliberation, the justices presented their decision in writing. In unanimous and majority decisions, the justices selected one of their number to prepare a written opinion. In cases where a justice concurred in the judgment of the majority but differed over the reasoning, he would issue a concurring opinion. In cases where a justice disagreed with the majority, he might issue a dissenting opinion.

If the supreme court affirmed the judgment of an inferior court, the supreme court could issue a writ of execution in the case or it could issue a writ of procedendo to the inferior court to execute the judgment. If the supreme court reversed the judgment of the inferior court or ruled that an error occurred in the proceedings in the inferior court, the supreme court remanded the case to the inferior court for further proceedings.

In unusual circumstances, the supreme court or circuit courts could grant a writ of mandamus to command an inferior court or a person in an official position to perform the duties associated with the office. If the public official failed to perform his duty, the petitioner for a writ of mandamus had to make a clear demand that the defendant perform his duty before the petitioner could request the writ. The defendant could reply or plea to the petition, and the case would proceed according to the principles of pleading.

In the federal courts, the chain of appeal worked much the same as in the state courts and followed the hierarchy of the courts. Litigants appealed from the United States District Court for a particular district to the United States Circuit Court for that district, and from the United States Circuit Court for a district to the United States Supreme Court. Appellate pleading in the federal courts followed the same general patterns as in the Illinois courts. Appellants had to file a bond for costs, a transcript of the inferior court’s proceedings, and an assignment of errors. Courts were particularly vigilant about collecting bonds for costs because litigants in federal courts often lived hundreds of miles from the court. Superior courts rendered judgments by affirming or reversing the judgments of inferior courts, and they often sent cases back to inferior courts for further proceedings.

Bibliography

See Legal History: Contemporary Legal Resources for references to books with more detail on nineteenth-century pleading and practice.