Papers Of Abraham Lincoln

In force, 4th March, 1837.

AN ACT to provide for the election of Probate Justices of the Peace.
1

Act repealed.

Sec.[Section] 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, That from and after the first Monday in August next, so much of an act entitled “an act relating to courts of probate,” approved, January 2d, 18292, as relates to the establishment of courts of Probate in the several counties in this State be, and the same is hereby repealed.

Election, when held.

How conducted.

Shall give bond and security.

Sec. 2. An election shall be held on the first Monday in August next, also on the first Monday in August in the year of our Lord, 1839, and on the first Monday in August in every fourth year thereafter, for the purpose of electing one additional justice of the peace for each county, to be styled by way of eminence and distinction, the probate justice of the peace, of their respective counties. The said election shall, in all respects, be conducted and returns thereof to made in a manner provided or to be provided by law in

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the case of the election of justices of the peace. The said justices of the peace so to be elected under the provisions of this act shall hold and keep their offices at the county seats of their respective counties, and shall take the same oath in the same manner and give like bond and security as are required of other justices of the peace.

Power of.

Sec. 3. Said probate justices of the peace are hereby vested with the same powers and jurisdiction in civil cases conferred by law upon other justices of the peace, and in the exercise of said power and jurisdiction, the rules of law which now are or hereafter shall be applicable to ordinary justices of the peace, shall be applicable to the justices of the peace hereby created, and to all proceedings before them, growing out of such power and jurisdiction, and appeals may be taken and certioris issued and prosecuted in the manner provided in cases of appeals from justices of the peace.

Jurisdiction of.

Sec. 4. The said justices of the peace hereby created, shall also have jurisdiction of all cases of debt and assumpsit, express or implied, where executors or administrators shall be a party, plaintiff, or defendant, and when the amount on either side claimed to be due shall not exceed one thousand dollars.

Ministerial powers

Sec. 5. In addition to the judicial powers conferred in the preceding sections, the said probate justices of the peace shall have, possess, and exercise within their respective counties, the following ministerial powers, to wit:

1st. Power to administer all oaths or affirmations concerning any matter or thing before them.

2nd. To issue and grant letters of administration, letters testamentary, and letters of guardianship, and repeal the same.

3d. To take probate of wills, and record the same.

Guardianship.

4th. To determine the person or persons entitled to letters of administration, or to letters testamentary, and in general, to do and perform all things concerning the granting of letters testamentary or of administration or of guardianship, which the judge of probate may do by the existing laws.

5th. To receive, file and record inventories, appraisement bills, and sale bills, as is required by the existing laws.

By sheriff of county.

6th. To require executors, administrators, and guardians to exhibit and settle their accounts, and to settle for the estates and property in their hands, and for that purpose they may issue citations and attachments into every county in this State, to be executed by the sheriff of the said counties; and

7th. To do and perform all other acts of a ministerial

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character which the judges of probate are now authorised to perform in their respective counties.

To be filed in clerk’s office.

Sec. 6th. If it should become necessary to use copies of the proceedings had before such justices of the peace under the ministerial powers aforesaid, or any of them in any other state or territory, the parties interested therein may procure a transcript thereof, and on motion the same may be filed in the clerk’s office of the circuit court, and shall be considered a matter of record in said court, and copies thereof may be certified as other records of said court are or may be.

Powers vested in.

Shall report to circuit court.

To be approved by judge.

Sec. 7. The said probate justices of the peace are hereby vested with all the judicial powers heretofore exercised by the judges of probate, but in all cases of the exercise of such judicial powers, the said justices of the peace shall report their proceedings therein to the next term of the circuit court of their respective counties on the first day thereof, for approval or rejection of such circuit court, and if such proceedings shall be approved by the circuit court, the same shall be considered as a matter of record in said conrt.

Entitled to fees

Fees of judges of probate.

Sec. 8. The probate justices of the peace when acting as ordinary justices of the peace, shall be entitled to the fees allowed by law to justices of the peace for similar services, and when acting under the powers heretofore exercised by judges of probate they shall be allowed such fees as were allowed to judges of probate.

Duty of judges of.

Sec. 9. So soon as the said probate justices of the peace shall be commissioned and qualified, it shall be the duty of the judges of probate to deliver over all the books, papers and documents, of every description whatever, belonging to their offices to the probate justices of the peace, elected for their respective counties.

Appeals allowed from.

Sec. 10. An appeal shall be allowed from the proceedings of such probate justices of the peace in the exercise of their ministerial power aforesaid, in the same manner that appeals were taken and prosecuted from the proceedings of judges of probate.

Approved 4th March, 1837.3

1On February 13, 1837, William Weatherford introduced SB 232, originally titled “An Act to Abolish the County of Calhoun, and for Other Purposes, ” in the Senate. The Senate referred the bill to a select committee. On February 15, the select committee reported the bill back with sundry amendments, in which the Senate concurred. The Senate refused to indefinitely postpone consideration by a vote of 14 yeas to 22 nays. The Senate tabled the bill and ordered 150 copies printed. On February 21, the Senate ordered the bill to a third reading by a vote of 22 yeas to 15 nays. On February 22, the Senate passed the bill by a vote of 24 yeas to 15 nays. The Senate refused Richard B. Servant’s motion to amend the title so as to read,“A Bill Inflicting a Vital Stab upon the Constitution,” but did amend the title so as to read “A Bill to Provide for the Election of a Probate Justice of the Peace.” On February 27, the House passed the bill without further amendment by a vote of 61 yeas to 10 nays. Abraham Lincoln did not cast a vote. On March 4, the Council of Revision approved the bill, and the act became law.
Illinois House Journal. 1836. 10th G. A., 1st sess., 672, 734-35, 803; Illinois SenateJournal. 1836. 10th G. A., 1st sess., 406, 435, 475-76, 486-87, 552, 591, 631.

2“An Act relating to Courts of Probate,” 2 January 1829, The Revised Code of Laws, of Illinois (1829), 37-38.

3In July 1837, the General Assembly amended this act with another act. In January 1840, the Senate considered a bill further amending the act. In January 1841, the House of Representatives considered a bill repealing this act.