USA > Illinois > Kane County > History of Kane County, Ill. Volume I > Part 39
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Calvin Ward.
Carlos Lattice.
Reed Ferson.
John V. King.
Benjamin H. Smith. John Douglass.
E. K. Mann.
Ira Merril.
Solomon H. Hamilton.
James Latham.
James Ferson. Gideon Young.
who were severally elected, tried and sworn well and truly to try the issues joined between the plaintiffs and the defendant, who upon their oaths do say : "We, the jury, find the defendant guilty, and assess the plaintiffs' damages at four thousand one hundred and sixty-six dollars and sixty-six cents."
John Pearson had been elected judge of this circuit at the session of the legislature ( 1836-37), and he opened his first court at Geneva, on June 19, 1837, and the first case on the docket was that of Wilson vs. Wilson, change of venue from Cook county. I had found a witness, who from a distance of half a mile or more had seen the plaintiffs walking on the road in the prairie, when they were met by the defendant with a drove of horses; that the defendant with several other men stopped and dismounted from their horses and seemed to surround the plaintiffs, and that after half an hour had elapsed they remounted their horses, gathered up the drove, and proceeded with them toward Chicago, and that after the expiration of another half hour the plaintiffs had returned along the road to Laughton's house, when they appeared to be in a much demoralized and frightened condition. At that time the parties to a suit, or those who had even a remote interest in the result, could not be allowed, or forced to testify, so that what actually took place at the time of the stoppage in the prairie could not be explained to the jury, but I had an undoubted right to draw the most unfavorable inferences against the defendants, which could be justified from the facts proved, and I made the most of this right.
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The jury was out but a little while, when they returned with a verdict of "guilty," and assessing the plaintiffs' damages at four thousand one hun- dred and sixty-six dollars and sixty-six cents, which amount at that time was considered simply enormous, at least in this part of the state, for a trespass to the person.
In the olden time in Illinois, say prior to 1850, the circuit system of practice was in vogue in legal life, and presented incidents and peculiarities which are entirely wanting since the country has become more populous. With the growth of the cities and towns, resident lawyers of ability and learning are found in every county seat at least, who require no assistance in the conduct of the most important cases. It was not so in the early days. Then the few local lawyers who had settled in the county towns were gen- erally newcomers, without experience and self-confidence, and both they and their clients depended largely on the assistance from abroad, especially at the trials of causes. This state of things necessitated a class of itinerant lawyers whose ability and experience had secured to them reputations coex- tensive with their judicial circuits, and. in many cases, throughout the state. These were few at first, but with the increase of population and business their numbers increased, while their theaters of action became more circumscribed.
At first they, with the judge, traveled on horseback in a cavalcade across the prairies from one county seat to another, over stretches from fifty to one hundred miles, swimming the streams when necessary. At night they would put up at log cabins in the borders of the groves, where they fre- quently made a jolly night of it. This was a perfect school for story telling, in which Mr. Lincoln became so proficient. It was, indeed, a jolly life on the border, the tendency of which was to soften the asperities and to quicken the sensibility of human nature. Here was unselfishness cultivated, and kindliness promoted, as in no other school of which I have knowledge.
This circuit practice required a quickness of thought and a rapidity of action nowhere else requisite in professional practice. The lawyer would, perhaps, scarcely alight from his horse when he would be surrounded by two or three clients requiring his services. Each would state his case in turn. One would require a bill in chancery to be drawn. Another an answer to be prepared. A third a string of special pleas, and for a fourth a demurrer must be interposed, and so on, and all of this must be done before the opening of the court the next morning. Then per- haps he would be called on to assist in or to conduct a trial of which he had never heard before, just as the jury was about to be called, when he must learn his case as the trial progressed. This requires one to think quickly and to make no mistakes, and to act promptly to take advantage of the mistakes of the adversary, who was probably similary situated. It is surprising how rapidly such practice qualifies one to meet such emergencies.
Those early settlers had not much money to pay lawyer's fees, but they would generally pay something and give notes for the balance, or, perhaps, turn out a horse or a colt in payment. These would probably serve to pay tavern bills, and a horse or two might be led home or sold on the way. Fee
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notes formed a sort of currency at a county seat about court time, and could frequently be sold to a merchant or the landlord at a moderate discount. A town lot or an eighty of land would sometimes be taken for a fee, espe- cially when it had been part of the subject-matter of the litigation.
The southern part of this state was first settled, and so legal tribunals were there first established. The first settlers were mostly immigrants from Kentucky and Tennessee, with some from Virginia and the Carolinas, though many were from the eastern states. The lawyers from the southern states were in the majority, while the eastern states furnished many able lawyers as well.
All of these men would have ranked high at any bar, and were thor- oughly read in the fundamental principles of the law. Later came Lincoln, Davis. Treat, Douglas and Trumbull, all able men. It may be remembered that all were young men then, and fond of amusements and pastimes and practical jokes, and after the pressure of the first few days of the court was over, they spent their evenings, and I may say night, in hilarity, which was at times, no doubt, boisterous. For instance, Benedict, who had a fog-horn of a voice, which he used most recklessly when excited, and who had been roaring to a jury at an evening session, was met, when he came to the tavern, by the sheriff, with a bench warrant on an indictment "for making loud and unusual noises in the night time," and soon a court was organized and he was put upon his trial, and before midnight he was convicted and sentenced to repeat the offense in arguing a motion for a new trial, or to pay a heavy fine, upon the ground that two affirmatives would make a negative, or that the hair of the same dog would cure the bite. It was said that he fairly outdid himself in that effort, so that he aroused the whole town from their slumbers, and he came near being fined for overdoing it.
Judge Young was a good performer on the fiddle and thus contributed much to the hilarity of circuit life. As the settlements extended into the northern part of the state, this circuit system of practice came with them, and for a time prevailed in all of its pristine beauty, except in Chicago alone, where the visits from foreign lawyers were only made upon special retainers and in important cases. I saw Mr. Lincoln here several times engaged in important cases.
Under the old circuit system, when the state was divided into five cir- cuits, and a circuit judge was elected for each, John York Sawyer was judge of the Vandalia circuit. He was not a tall, nor a very stout man, but carried in front about the largest bay-window for his size I ever saw. He presided in a very suave way, but with a fixed determination to do ample justice and without a very scrupulous regard to forms, especially if those forms did not suit him at the time. It was related to me that on one occasion Hubbard, who had a considerable practice, argued some question before him at great length and with great confidence, and concluded with an air of assurance which declared that he knew he could not be beaten this time. The judge in his decision praised Hubbard's argument and followed it all the way through, especially emphasizing the weakest parts of it, as if he was greatly impressed with them, and then decided against him without stating a single
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reason for the decision. This enraged Hubbard terribly, and he could hardly wait till court adjourned and the judge had retired before he gave vent to his indignation to the members of the bar and other by-standers, in terms forcible if not elegant, and in conclusion he said : "I tell you, gentlemen, what I am going to do about it, and so you may prepare yourselves with smelling bottles or cover these streets with quick lime; I am going right now to hunt up that offensive mass of bloated humanity, and I will relieve his corpus of a peck of tadpoles the first slash." But he did not do it, and I was told that the facetious judge, when told of it, laughed heartily at Hubbard's rage, regard- ing it as an excellent joke.
Another circuit scene, in which we may see how Judge Sawyer admin- istered the law, may be given as it was told to me by Judge Ford, soon after I made his acquaintance, in 1834.
At the time of which he spoke, horse thieves were punished at the whip- ping post, and Ford always insisted that it was the most deterrent punishment ever inflicted for the punishment of crime. He said he had often seen criminals receive a sentence of ten years or more in the penitentiary with apparent indifference, but he had never seen a man sentenced to be whipped who did not perceptibly wince, and that the most hardened would turn pale and shudder.
A man who had been indicted for horse stealing, had retained General Turney to defend him. The general struggled hard for his client, but the proof was so clear that the task was hopeless, and the jury, after a short absence, returned a verdict of guilty. The general immediately entered a motion for a new trial. and was about to proceed to argue it, when the dinner bell at the tavern hard by, where they all boarded. was heard loudly calling all to dinner. Judge Sawyer, as I have said, was a man with a very pro- trudent stomach, and he especially prized his dinner. The judge interrupted the counsel, saying: "General Turney, I hear the dinner bell now ring, so the court will adjourn till one o'clock, when I shall take pleasure to hear you on your motion for a new trial." So the court was adjourned till one o'clock, but before the judge left the bench he motioned the sheriff up to him, and in a determined whisper, said:
"While I am gone to dinner take that rascal out behind the court house and give him forty lashes, and mind you, lay them on well, and tell him if he is ever caught in this county again you will give him twice as much."
After the whipping the culprit was turned loose and was taken charge of by some of his friends, who washed him off and bathed his lacerated back with whiskey, and dressed him, and when he had taken some dinner he hobbled down the street, and as he passed the court house he heard the general's loud voice and crossed over, and soon discovered he was earnestly pleading for a new trial in his case. This horrified him, and he rushed into the house and cried out, "For God's sake don't get a new trial. If they try me again they will convict me again, and then they will whip me to death."
The general stood aghast for a moment and said. "What does all this mean?" With the utinost composure the judge replied: "Well. General
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Turney, I thought we would make sure of what we had got, so I ordered the sheriff to whip that rascal while we were at dinner, and I trust he has done so. But go on, general, with your argument, for I am inclined to be with you. I think another whipping would do him good."
A year later I was retained in the most important case, nominally at least, in which I was ever engaged. That was to defend one hundred and twelve men charged with the crime of murder. For some years before there was a sort of an organized band of criminals, principally engaged in horse stealing and counterfeiting, but who on occasions did not hesitate to commit murder. They became bold and defiant. They were well known throughout the community, and had many sympathizers, who, in order to turn sus- picion from themselves, roundly denounced them when in certain circles; indeed, they were so well organized and bold, and had so many sympathizers, who did not profess to be of them, that it was impossible to punish them, even upon the clearest proof of guilt. The jail was broken open and burned to liberate some of the gang who were confined in it, and some of their sympathizers would always manage to get on the jury, so that a conviction became impossible.
But the evil-doers consisted of but a small percentage of the population of the county, a great majority of whom were as excellent men as could be found in any other community. They, seeing that the arin of the law was too short to afford them protection for either life or property, formed them- selves into a sort of association or club, the declared object of which was to rid the community of the criminal class; one Campbell was elected captain of this club, which also elected several subordinate officers. This was done . on Saturday, and, as its proceedings were open and public, they were known immediately throughout the county. The desperadoes saw at once that they must strike such a terror throughout the community as to disintegrate the members of this club by the force of fear. or they must go themselves. They saw it was an issue of blood. and did not hesitate to accept it at once. By arrangement three of the gang were to commence operations by assassinating, in the most public manner. Campbell. the leader of the association, and accord- ingly, on Sunday, rode up to his cabin in broad daylight, called him to the door and riddled him with bullets.
The news of this terrible tragedy was known throughout the county by Monday morning, and without call or notice, the members of the club assem- bled at their appointed rendezvous, and details were sent out to arrest and bring in the murderers. This was finally accomplished, and they were brought before the assembled club in a grove a few miles south of the county seat. There a court was organized, consisting of a judge and jury. all of whom were sworn by a justice of the peace, to impartially try the case, and a true verdict to render. Witnesses were sworn before this tribunal, who saw the murder committed, and who positively identified the prisoners as the murder- ers. Lawyers had been appointed to prosecute and defend the prisoners, and every formality was observed which was characteristic of a regularly consti- tuted court of justice established by law. A verdict of guilty was returned, and a sentence passed that all should be shot on the spot. A company was
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detailed to carry the sentence into execution, which was done at the word of their commanding officer.
This prompt proceeding struck such a terror into the criminal class, that the most notorious of them fled at once, without standing on the order of their going, and their sympathizers were dumb with terror.
Accordingly an indictment was presented against one hundred and twelve who were present at the trial and execution of the culprits. Of course, my consultations had been with only a few of the leaders, but now it was neces- sary to have them all together, and accordingly we marched out onto a little isolated peak in the prairie, and I had them formed in a circle around ine, while I called over a list of the defendants, when all answered to their names except four, who were unavoidably absent. Even the sheriff, in whose nominal custody they were, was conveniently absent, and no one but the prisoners and myself were within two hundred yards of us. I was assured that no one of them had boasted of the transaction, or in any way admitted that he was present at the time, and I saw no difficulty in the way, except as to the four defendants that were not present, in whose favor a judgment of acquittal was as necessary as to the others; but this was got over by selecting four of the party, each of whom was to answer for one of the absentees when his name should be called in court to plead to the indictment. When all of the many details were arranged for the conduct of the case, we marched back to the court house, which was cleared of all others, as supposed, and when my numerous clients filed in they filled the little court room quite up to the table around which the lawyers sat. While the court was waiting for our appear- ance it had been occupied with some unimportant business, so that all was ready to proceed with the case when we arrived. The case was at once called. and the clerk proceeded to call the prisoners, who promptly answered to their names. I confess I felt a little anxious whenever the name of an absentee was called, but the proxies all answered promptly and without another word, until the last answer was made, when some one near the door hallooed out in a rather tremulous voice. "That ain't him."
This caused a flutter of excitement for a moment, and the judge directed that name to be called again, when the proxy, who was standing away back in the crowd, again responded for his principal, and no one could tell who had interrupted the proceedings in the manner stated.
I called no witnesses, no argument was made to the jury on either side, and I asked the court to instruct the jury that mere rumors were not evidence, which, of course, he did, and explained the law in his own way as to what evidence was necessary to authorize a conviction. The jury were absent but a short time, when they returned with a verdict of acquittal, upon which judgment was entered, and thus ended that celebrated case.
There were great discrepancies in the statements made by the brothers and the third witness, and as the science of jurisprudence had not so far progressed as to offer a high premium for perjury by allowing the prisoner to swear in his own exculpation, the evidence closed with two witnesses against one. Mr. Dickey, who was defending the prisoner, to overcome this advantage, in summing up to the jury pointed out many inconsistencies
EARLY KANE COUNTY JUDGES AND LAWYERS.
S. D. LOCKWOOD. J. G. BARR.
O. D. DAY. R. M. IRELAND.
JAMES COLEMAN. S. S. JONES.
CHARLES WHEATON. J. W. RANSTEAD.
A. S. BABCOCK.
L. R. WAGNER.
LUTHER DEARBORN. W. F. LYNCII. A. G. M DOLE. T. E. RYAN.
E. C. LOVELL.
J. S. WILCOX.
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KANE COUNTY HISTORY
in the statements of the witnesses for the people, and insisted that the story told by his witness was the most probable and natural for the occurrences of such a fight, and said that if Scott or Bulwer or Cooper, or any other great novelist, were going to describe such a fight in a novel they would describe it just as his witness had testified to this one, simply because it was most probable and natural-most consistent with human action under such conditions.
In reply to this Fridley in his closing speech said that Mr. Dickey had told them that if a novelist was going to put in his novel an account of such a fight as this was, he would put it down just as his witness had stated it here. "Well," said Mr. Fridley, "I agree with Mr. Dickey in this. Now what does a novelist do, when he's going to write a novel? He just sits down and invents the infernalest lie he can think of. Then he tells the story in his book, and that's just the way with Mr. Dickey's witness. He just invented this big lie, and then came here and told it to you, but he didn't expect you to believe it any more than you would a novel. Mr. Dickey was right in what he said and he don't believe it either."
Benjamin F. Fridley was certainly a man of some remarkable char- acteristics. His mind was clear and penetrating, his observations exception- ally acute; his study of mankind was much more profound than his study of law. He was witty without knowing it, and his sense of the ludicrous was really brilliant without his appearing to appreciate it. I scarcely ever knew him to laugh, while his quaint suggestions would sometimes provoke laugh- ter in others, though generally these were made in so solemn and matter-of- fact a way as not to provoke boisterous laughter, but rather a quiet internal satisfaction.
He readily perceived the vital points of a case, though when his interest could be subserved thereby he could appear to be as stolid as a block about them. His primary education was very limited, and his orthography was nearly as remarkable as that of Chief Justice Wilson, who always assumed that the proper way to spell any word was to use as many letters as could possibly be appropriated for the purpose. I observed once, when sitting beside him on the bench, and Stephen T. Logan was arguing a case and quoted from Dana's reports, that in making a note of it he wrote it down "Dainey"; and yet any one who will read over his opinions will observe that he was really a fine scholar, and a clear and perspicuous writer.
His opinions will compare favorably with those of any other judge to be found in our reports. With this example before us we are not at liberty to condemn Mr. Fridley for his bad spelling. He, too, was a very poor reader, but by pauses, repetitions and emphasis, he could cover this up most ingen- iously, and would manage to give what he read a meaning to suit himself. I never saw evidence that he had ever read a literary work in his life and I doubt if he ever read a law book through, but he knew a great deal of law, and what he did know he was able to turn to the very best account. He learned his law from his observations in courts or in conversations with other lawyers. When he heard a proposition of law stated for the first time he could tell intuitively whether it was good law, by determining in his
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own mind if it ought to be law. When it suited his purpose he would pretend to be ignorant of a principle which he well understood, and would pretend to be unable to understand a ruling which he perfectly comprehended.
He was the originator of many aphorisms, which I often hear repeated, the author of which is not generally known; for instance: Fridley and I were appointed by Judge Ford at the DeKalb circuit court to defend an impecunious horse-thief. When we were congratulating ourselves that the evidence was quite insufficient to convict him, as a last resort. the officer who arrested him was put upon the stand, who testified that the prisoner had confessed to him that he had stolen the horse. At this point the court adjourned for dinner. When walking up to the hotel together. I remarked to Fridley that a very good case had been badly spoiled by that last witness. "Yes," answered he, "in this country, if a man is amind to be a darn fool, there is no law agin it."
Fridley was state's attorney for two years during my administration on the circuit bench, and he was certainly a most proficent prosecutor; in the main he was just and fair, but when fully convinced that the prisoner was guilty, he was sure to convict him in one way or another. When the emergency required it, he exceeded all men I ever knew to worm in illegal testimony, and he would contrive to make it tell, when it was ruled out, but he would do it in such a way as to avoid censure, and yet to make the very ruling out of the evidence tell against his opponent, sometimes by an affecta- tion of illiteracy. The first time he went round the circuit as prosecutor, many of the lawyers evidently thought they would have a good time, and sought to expose his want of education in various ways, and particularly by moving to quash his indictments for bad spelling and bad grammar, which they would parade to the amusement of the audience; but these were generally overruled, as they expected they would be, but this was invariably followed by a suc- cessful prosecution, whether the prisoner was guilty or innocent, so that it was not long before this amusement was found to be too expensive to be indulged in, unless the defense was deemed too clear that conviction was thought to be impossible.
When I was holding the Kane circuit, the grand jury came into court, and complained that they had found an indictment against a man for larceny, but that the state's attorney refused to draw the indictment; whereupon Mr. Fridley stated that he had heard all the evidence before the grand jury, and was certain that no conviction could be had; that the man complained of had found an old plowshare in the weeds by the side of the road, and supposing that it had been lost or thrown away, had thrown it into his wagon and taken it home, without any felonious intent ; and that he did not deem it his duty to put the county to the expense of a useless trial. I told him that he had better draw the indictment, and when it should be returned into court he could do with it as he thought best.
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