USA > Illinois > Shelby County > Historic sketch and biographical album of Shelby County, Illinois > Part 17
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1 do not think it is assumption to say that 1 feel, after a continuous practice of nearly sixty years, I have made a safe, successful, and relia- ble lawyer. For more than half a century I have been a close student for sixteen hours a day. read faithfully, and pondered intently the princi- ples of the common law. My aim has ever been to comprehend fully the case presented, examine it carefully, apply well-known principles to the facts, and then give an opinion. Hence, 1 have rarely failed of success in the suits 1 have brought. It is not only a blunder, but a crime, to advise a client into litigation when a favor- able result is not apparent. Thus influenced, and with numerous good friends from the beginning
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of my humble career, my success in suits, and the retention of clients, have been eminently satisfactory.
. In our carly practice we "rode the circuit." as it was called. For a number of years we rode on horse-back from county to county. . After- ward, when we had acquired money enough to buy a buggy, and the roads had become some- what improved, we traveled the "circuit" in bug- gies. The lawyers I almost uniformly met in some of the counties in which I attended the courts, were .A. P. Field of Vandalia. "Long Jim" Davis of Hillsboro, Linder and Ficklin of Charleston. Emerson, Benedict, Post and Bunn of Decatur, and Lincoln. In the eastern coun- ties, Constable of Marshall, and Dan Vorhees of Terre Haute generally attended. In some of the counties we occasionally had Judge Rice of Hills- boro and levi Davis of Vandalia. I attended. for several terms of court, in eleven counties- Bond. Montgomery, Fayette, Effingham, Shel- by. Christian, Moultrie, Macon. Piatt, Coles and Edgar.
Of all the lawyers whom I ever met. Lin- coln was the most marked for his fairness and honesty. He was always earnest and forcible. and could manage and present a good case with as much power and clearness as any man I ever saw.
This traveling on the circuit was very pleas- ant. The lawyers were genial, and the "very pink of courtesy." The mode of life had so much variety as to preclude monotony. We met new faces every week: were often entertained with racy incidents, and were encountered with novel and laughable cases. There was no attempt at display in dress, but everybody wore plain clothes, adapted to the rough life on the fron- tier. Speaking of dress reminds me of a circum- stance when I first came to Illinois. In Ken- tucky young men, who coukl afford, were in-
clined to be fond of dress. When I came west. I had only a few hundred dollars, some law books, and a dress suit of blue cloth, with bright gilt buttons. My shirts were all ruffled, that is, a piece of fine muslin, gathered in folds, was sewed on the bosom of each shirt, and protruded about an inch outside the vest. When I saw the plain clothing of the people, the linser-woolsey dresses of the women, and the coon-skin caps. the buck-skin and jean breeches and coats of the men. I cut off my gilt buttons and ruffles, and adapted my dress to the conditions around 1110.
In those early days it is almost incredible how well we fared as to cating. Meals were. generally, twelve and one-half cents each, and horse feed in proportion. We had venison, wild turkey, and prairie chicken in abundance, and the sweetest bacon, made from the masts in the woods. Hogs were often killed without having been fed a grain of corn. Provision for sleeping was the worst. Two persons in one bed, three of four beds in one room, and often pallets on the floor, were common.
I might write pages in regard to these by- gone days, interesting to me from their reminis- cences, but | must hasten on to some brief ref- erence to my legal battles. I have always had the good fortune to secure an extensive practice. and can never forget the kindness, friendship. and support of the people of Shelby and adjoin- ing counties.
My first murder case was over fifty years ago. Robert Sellers killed James Rodman on the Vandalia road, about five miles west of Shelbyville. It is said the grass never grew on the spot where the body was found. There was no eye witness to the killing, yet the prosecution made a strong case. E. D. Baker, of Spring- field, assisted me in defense. He was killed at Ball's Bluff in Virginia during the Civil war.
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Baker was a most eloquent advocate. The jury found the defendant guilty of murder. Judge Treat presided. He was a tender-hearted man. and a fine lawyer. He wrote a brief sentence of condemnation, and. in the attempt to read it, speech utterly failed him for a time, and his eyes were filled with tears. The motion for a new trial having been overruled, a writ of error was prosecuted to the Supreme court, and the judy- ment was reversed for the reason that one of the jurors had formed and expressed an opinion before he was taken on the venire, that the de- tendant was guilty. A rather anomalous pro- ceeding in criminal jurisprudence then ensued. Between the time of the killing and the reversal, the legislature passed a law punishing the crime of manslaughter by imprisonment in the peni- tentiary for a term not exceeding eight years. A new indictment was found after the reversal. a "nolle" entered as to the old indictment : Sel- lers pleaded guilty to the new indictment, and was sentenced to the penitentiary for the term of seven years. There was no saving clause in the new statute as to offenses previously com- mitted. This occurred in 1842. In 1844 Josiah Sanbourne, one of the ablest prosecutors in criminal cases 1 ever knew in the state, and Jus- tin Butterfield, a prominent lawyer of Chicago. made a motion for a writ of habeas corpus to bring Sellers before the Supreme court. The court rendered a singular opinion to the effect that the prisoner was in the penitentiary by a voluntary contract on his part, and he was re- manded to prison.
1 had another interesting criminal case in my early practice which arose in Shelbyville. Captain Mathew Duncan, a brother of Governor Duncan, killed Thomas Lewis. They were both residents of Shelbyville. Duncan was a mer- chant. Lewis often became intoxicated. and. when under the influence of liquor, was one of
the most quarrelsome and disagreeable men 1 ever knew. Duncan was standing on his counter ananging some goods on the upper shelves. when Lewis came into the store, and commenced pulling at the feet and legs of Duncan. A yard stick was lying on the counter, and Duncan seized it and struck Lewis on the side of the head, just above the car. At this point the skull is very thin, and the blow fractured it. The broken pieces pressed on the brain. Lewis in- stantly fell: was soon in a comatose condition ; lingered for forty-eight hours, and then died. Nothing prior to the death, was done to relieve the pressure upon the brain.
Duncan was indicted. I defended him, and he was acquitted. My defense was malpractice. A post-mortem examination was made, and it was found that the fractured bone and the coagulated blood m de so great a pressure on the brain as to cause death. The concurrent testi- mony of the surgeons was that, if the trephining process had been resorted to at any time within twenty-four hours, and the pressure relieved, the man would have been alive. The principle in- sisted upon was that the blow was not necessarily fatal, and only became so from sheer neglect.
On one evening 1 came home from the "circuit" and met General Thornton, who was then a merchant in Shelbyville. Ile said to me : "Your absence has lost you a case." He then informed me that he had arrested a man for steal- ing some beeswax and a bridle, and he was now in jail. The criminal sent for me the same even- ing, and I undertook his defense. In those days beeswax was pretty good money. There was no mark on the beeswax, and every merchant had some of it. There was, therefore, no identi- fication of the beeswax as the property of Gen. Thomton, but the proof was pretty strong as to his ownership of the bridle. I, however, proved that other merchants had similar bridles. There
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was no proof of the actual taking, yet a case of strong suspicion was made out against the pris- oner. 1 had selected an unusually intelligent jury, and I have thought I had an inspiration as to the character of the defense. General Thorn- ton was, of course, a witness, and as such he was so uncontrollable that he prejudiced the jury against him.
I conceded in the argument to the jury that there was moral or probable guilt, but insisted it would be a dangerous precedent to convict. 1 emphasized the old maxim of the law, "It is bet- ter that ninety and nine guilty persons should escape, than that one innocent man suffer." The jury acquitted the prisoner. General Thornton remained in the court room, and I saw that he was excited, and was talking to the lawyers around him 1 was told afterward that he said he would give one hundred dollars for the priv- ilege of thirty minutes in which to reply to me. The reply would have been a severe one. He paraphrased the maxim to which I referred, and said it ought to be : "It is better that ninety-nine innocent men hang, than one rascal escape." 1 got a beautiful bay mare for my fee.
A man killed another in Moultrie county. lle was arrested and placed in jail. 1 took him before Judge Emerson by writ of habeas corpus. He heard the evidence, and remanded him to jail. The killing was by shooting with a rifle. Only one witness saw the shooting. She testi- fied the prisoner was twenty-five feet distant from the man shot : that he deliberately took aim and fired, and that there was a blaze on the woolen coat as the gun fired. There was also proof that the ball struck the man in the breast and tended upwards, and that the prisoner had several severe cuts on his back, done with some sharp instrument. After the indictment I took a change of venue to Coles county, and Usher F. L.inder aided me in the defense. My exper-
ience with the rifle assisted me very much în pre- paring for the trial. From the small quantity of powder used in a rifle, 1 concluded the woman's story as to the distance between the men at the time of the killing was untrue: and from the cuts on the back and the tendency of the ball. that the men were in close contact, and engaged in a fight at the time of shooting. To verify my "theory, 1 engaged three men, expert with the rifle, and obtained a rifle. of the same calibre as the one used by the prisoner : used the same quantity of powder, and the same patching, a piece of oiled buckskin : hung up a woolen coat on a tree, and experimented frequently in shoot- ing at it. The coat was never burned except when we fired within about a foot of it.
This proof was submitted to the jury, and Ilty mian was acquitted. He only agreed to pay mie one hundred and fifty dollars, but he was so pleased with the result he gave me a bag con- taining three hundred dollars in gold and silver.
.\ case of the greatest notoriety, and one which created more excitment throughout the country, than any other I was ever engaged in. was the Emma Bond rape case. Three men were arrested for an alleged rape of her in the loft of the school house in Christian county, in which she was employed in teaching school. Her story was that. upon the dismissal of the school, she remained to sweep out, and, as she had the dust near the door, one man threw a shawl over her head, and, with the assistance of a man above. she was hoisted into the loft, and there the rape was committed, and she was left unconscious until late in the night. when she went to the house of Mrs. Pettis. She was taken to her father's the same night by young Pettis, who. with John Montgomery and an Italian, were ar- · rested for the crime.
1 attended the preliminary examination in Taylorville which continued for several days. On
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the last day there was an immense crowd of rough, angry and scowling men in the court room. The pressure was so great that a substan- tial railing between the bar for the court and lawyers, and the audience room, was broken down. I was satisfied that a mob was contem- plated, and I took the first train for a more quiet region. Though Emma Bond did not appear. and without her testimony the proof was slight. vet the three men were bound over to court. The excitement was so intense that the justice would have been mobbed, had he released them.
Sure enough, according to my fears, a large and furious mob gathered in Taylorville on the night following the close of the preliminary ex- amination, and broke into the jail. Having tied a rope around the neck of each prisoner. after numerous threats and much violence, Mont- gomery protested vigorously his innocence, was suspended in mid-air by use of a limb of one of the trees, until he was entirely unconscious. and it was some time before he could be re- stored. This caused a reaction in the mob. and the accused were returned to jail.
.An indictment was preferred, and the de- fendants took a change of venue to Montgomery county.
All persons assembled in Hillsboro ready for the battle. Judge Phillips presided. Besides the able State's Attorney John G. Drennan, the lawyers in the prosecution were Judge Edwards of Springfield, Judge Vandeveer and James B. Rocks of Taylorville, and several others. The lawyers for the defense were McBride and Mc- Gaskill of Taylorville, and myself. We were for- tunate in the selection of a most excellent jury. On the opening of the court on the first day the court room was a jam, and the crowd continued every day during the whole trial which lasted for over five weeks.
There were several hundred witnesses, and
persons attended the trial from all the adjoining connties and from other states. Nearly every paper in St. Louis and Chicago had reporters who sent daily full reports of the progress of the trial. In the inception of the trial, and for sev- eral weeks, we had to battle against a bitter sen- timent. This was manifest from the open ap- plause whenever the judge ruled against the de- fendants. It was manifest from the scowling looks whenever the attorneys for the de- fendants gained a point. It was manifest from the constant rumors of mob violence every night. It was manifest from the daily anonymous letters to John Montgomery and myself, containing threats of every character. Judge Phillips heard of the letters to me, and, thinking that so many letters might affect me, directed the postmaster to put my letters in his box, and he handed me a number of threatening letters after the trial ended. In the beginning the judge was strongly against the defendants, but he changed as the trial progressed.
We began the trial in November, and held court every day, and frequently at night, until after Christmas, except Sundays and on Christ- was day.
During this exciting and protracted trial, 1 examined and cross-examined every witness. made all the legal arguments to the jury, and ended my labors in a speech of four hours to the jury. On the next day after the trial 1 was in Springfield, and delivered a memorial address before the State Bar-association upon the death or the lamented Chief Justice Lawrence.
But I must hasten with my sketch, and give a brief resume of my career in other respects.
I was first married to Mildred Thornton. a daughter of General Thornton, in the year 1852. She died on the 24th day of September, 1856. The issue of this marriage was two child-
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ren. William Towles, who is still living, and Anthony, who died on the 13th of July. 1873.
I was married to my present wife, whose maiden name was Kate H. Smith, on the 30th day of August, 1866. at Mrs. Reed's, near Springfield. Ohio. She was the daughter of Addison Smith, an excellent and well-remem- bered teacher in pioneer days. We have two children. Katharine Presley, now married to Harry C. Frankenfield of the U. S. Weather Bureau, now stationed in St. Louis, a lovely and intelligent woman, the pride of her parents ; and a son. Lewis Walker, who left New York on June 3rd. 1896. on the ship. St. Louis, for Southampton, and thence to Cape Town, South Africa.
My wife has ever been to me a loving and dutiful wife, in sickness and sorrow, as well as in prosperity. I owe to her a happy home.
I have not only succeeded in my profession ; have been fortunate in making friends : and in my domestic relations ; but have been equally fortunate in all attempts to obtain official posi- tion.
1 was. more than half a century ago, one of the trustees of the village of Shelbyville. served for several terms. In the beginning of the Mex- ican war 1 was a major in the militia of Shelby and several adjoining counties, and 1 made a number of speeches urging enlistments. Such was the furor in Shelby in favor of the war, that one company was formed and accepted, and we rapidly made up another composed of one hun- dred men, all six feet in height or over. and I was chosen captain. We drilled daily for several weeks, and were under pretty good discipline. when we received word from the governor that the quota was filled, and our company would not be accepted. So ended my military career.
My first attempt for any office was as a candidate for membership in the convention to
revise the constitution of 1818. The election oc- curred in the spring of 1847. The district was composed of the counties of Shelby and Moul- trie. My opponent was General Peter Warren of Shelby. He had been in the state senate for twelve years, and had never been defeated for any office. 1 traveled on horseback to nearly. every house in the two counties. Then the vot- ers required that the candidate should visit them. We also had frequent public gatherings at which we addressed the people. I took with me in niy saddle bags the journal of the senate, and for the first time exposed Warren's votes. He became so sore about these votes that, in Moultrie, near the close of the campaign, he proposed to go home if 1 would cease to use the journals. 1 told him I could not throw away my entire capi- tal. So I continued the fight, and the result was. I was elected by over eight hundred majority.
The convention met in Springfield on the 7th day of June, 1847. and adjourned on the 31st day of August. 1847. The constitution we formed was adopted by the people at an election on the first Monday of March, 1848. It was an admirable instrument, and well adapted to the condition of Illinois at that time. Her treasury was bankrupt : her credit gone : her bonds were unsalable : her banks were insolvent, and gen- eral financial distress hovered over us. The new constitution lessened greatly the expenses of the state government : reduced salaries ; and or- dlered that a tax of two mills upon each dollar's worth of taxable property should be annually assessed and collected, to be applied upon the state indebtedness. Thus a depressed people were imbued with new hope; the credit of the state was restored, and our grand state began her marvelous growth in wealth, population, and prosperity.
My next venture in political life was as a candidate for the legislature in 1850. The dis-
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trict consisted of Shelby and Christian counties. The regular democratic nominee was the Rev. Bushrod M. Henry of Shelbyville, a noted minis- ter of the Christian church. Before the election Judge . Vandeveer became a candidate. 1 was elected, in a strong democratic district, by about one hundred majority. We had two sessions during the term. At the first session the Illinois C'entral Railroad company was chartered. and we prevented a charter for a railroad by Van- dalia. This assured the completion of the Alton and Terre Haute Route Railroad, now a part of the "Big Four."
The sessions were very pleasant : the capital was gay, and I had my share of enjoyment al- though our compensation was only two dollars per day. Judge Breese was speaker, and he made a magnificent one.
In the charter of the Illinois Central Rail- road company. it is provided that, in considera- tion of the splendid body of land granted to the corporation, it should pay to the state seven per cent of its gross earnings. In view of the enor- mous gift which the company received. the state should have had, forever. ten per cent, in- stead of seven per cent, of the gross earnings.
I was a member of the committee of internal improvements, and when Mr. Rantoul, the agent of the eastern capitalists, appeared before the committee, he said the men who proposed to take the lands and construct the road, had talked of giving to the state ten per cent of the gross carnings. The committee so reported. But an influential lobby was created which in- fluenced the matter, and seven per cent was fixed in the charter. Lincoln, McClernand Pogue of the Galena district, and divers others, formed this lobby.
I was assiduously engaged in my profession until in 1862, when I was elected a member of a convention called to revise the constitution.
Shelby and Cumberland counties composed the district. We made a very good constitution. but, as the convention foolishly and improperly an- tagonized Governor Yates, who was deservedly very popular, the constitution was not accepted by the people.
As I have arrived at that period of my life when the fearful Civil war between the north and south was in progress. it may be proper that 1 briefly allude to it. I had voted for Douglas, and was, of course. opposed to the election of Lincoln. I knew him very well. A purer and more honest man, and one more devoted to the best interests of the country, 'never lived. But my birthplace was in the south. 1 lived there until 1 had attained to manhood. The same blood which coursed through my veins, flowed in the veins of hundreds, even thousands, of rela- tives, scattered through Kentucky. Virginia, Alabama, Missouri, and other southern states. My sympathies were, therefore, with the South- ern people. I never had a wish for their success in the mad attempt to disrupt the Union, and put out the light of liberty forever. But I could not engage in the deadly strife with brothers and near relatives. Still, at no time during the terrible struggle. did I falter in my devotion to the union of the states, as essential to our pros- perity as a nation, and even to the existence of liberty itself.
On several occasions during the war I en- dangered my own life in addressing infuriated crowds, and urging peace at home, and the preservation of the Union at all hazards.
In 1864. without having been a candidate for nomination, and without expectation or solic- itation, on my part. I was nominated by the democratic convention for congress in the dis- trict composed of Shelby. Montgomery. Macou- pin. Jersey, Green, Calhoun, Morgan and Scott counties. I visited each of the counties except
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Calhoun, and made speeches at each county seat. 1 was, of course, elected, as the district was largely democratic.
1 took my seat in December, 1865, and we had a continuous session until August follow- ing. I was renominated before my return home. but declined. I rather enjoyed the session, but during the latter part of it the heat was intense and a good deal of sickness prevailed.
Just after the war the city was filthy, and had a despoiled appearance, and I had no desire to return. The democrats were few, and some- times we could not muster votes enough to force a record of the ayes and noes. Men who have since become distinguished were members. There were Thaddeus Stevens. R. B. Hayes, James A. Garfield. James G. Blaine, Roscoe Conkling, and others of great ability.
The duties of a member of congress. if faithfully performed, are constant and arduous. 1 served on the Committee on Claims and Bank- ruptcy. The attendance upon the house, com- mittee work, and attention to the incessant re- quests of constituents, occupied all one's time. 1 tried to discharge the duties conscientiously ; served during the short session, and returned home to my favored profession.
But it seems I was to have new honors thrust upon me. In 1870 a new constitution was adopted, and the judges of the supreme court were increased in number, from three to seven. Seven districts were created, and one judge was to be elected in each district. As the three okl judges held over. four additional judges were elected in July, 1870. 1 was a resident of the 2nd district, composed of nineteen counties. In politics it was democratic. Numerous friends requested me to be a candidate, and I consented. Democrats from the southern part of the dis- trict insisted that the candidate should be select- ed by a party convention. To this I demurred.
and replied that a candidate for judge shoukl be under no obligations to any party, and shoukl not be chosen by a partisan convention. Indeed, I have always thought a judge should be re- moved. as far as possible. from all political bias or influence. For this reason in the convention of 1847 I voted against the election of judges by the people.
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