USA > Indiana > White County > A standard history of White County Indiana : an authentic narrative of the past, with an extended survey of modern developments in the progress of town and county, Vol. I > Part 14
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In January, 1801, William Clark, Henry Vanderburgh and John Griffin, who had been appointed the first judges of Indiana Territory,
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met Governor Harrison at Vincennes, the capital, for the purpose of passing a code of laws to supersede that enacted at Cincinnati for the government of the Northwest Territory. Among those passed as a part of the new code was one establishing courts of general quarter sessions of the peace in the counties of Knox, Randolph and St. Clair.
The first session of the General Court was opened at Vincennes on the 3d of March, 1801, all the judges present. The grand jury called, as will be seen by an examination of the names of its members, was largely of French extraction, consisting of Luke Decker, Antoine Marshal, Joseph Baird, Patrick Simpson, Antoine Petit, Andr. Montplaiseur, John Ockiltree, Jonathan Marney, Jacob Tevebaugh, Alexander Vadney, Francois Turpin, Fr. Compagnoitte, Charles Languedoc, Louis Severe, Fr. Languedoc, George Catt, John St. Barios, Abraham Decker and Philip Catt. With a court of general sessions and a grand jury in operation, the judiciary of Indiana may be said to have been fully established.
JUDGE PARKE REFUSES TO HOLD COURT
In February, 1805, the first popular assembly of the territory met at Vincennes and split off Michigan from Indiana Territory, and four years later Illinois was carved out of it. In 1814, what is now Indiana was divided into five districts, each of which was to elect a member of the Territorial Council; this action originated in Congress. In the same year the General Assembly divided the territory into three judicial dis- tricts, but Judge Parke refused to act, on the grounds stated in the following letter to Governor Posey: "By an act entitled 'An act reor- ganizing courts of justice,' passed at the late session of the Legislature, the Territory is divided into three districts, in each of which a circuit court is established-the court to consist of one of the judges appointed by the government of the United States for the territory, as president, and three associates commissioned under the authority of the territory, and to have jurisdiction in all cases at law and in equity. The first circuit, comprising the counties of Knox, Gibson and Warrick, is assigned to me. The Legislature is empowered to make laws in all cases for the good government of the territory not repugnant to the laws of the United States. In the delegation of power that which is not expressly given is reserved. Implications cannot be admitted further than to carry into effect the power given. The laws of the United States being paramount to the laws of the territory, if they are found in conflict, the latter must yield to the former. Congress has defined the jurisdiction of the judges appointed by the General Government and made one judge, in the absence of the others, competent to hold a court. The judges are coordinate and their jurisdiction extends over the whole Territory. They are judges in and over, and not of a part of the Territory. As the judges derive their jurisdiction and power from the government of the United States, they cannot be controlled, in the exercise of their functions, by . persons deriving their authority from the government of the Territory.
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The judges appointed for the Territory are limited, by the laws of the United States, to the exercise of a common-law jurisdiction. The act, therefore, as it regards the organization and jurisdiction of the circuit courts, is repugnant to the laws of the United States, and neither confers any powers, nor imposes any duty, on the judges appointed for the Ter- ritory by the United States. The General Government has appointed for the territory three judges with common-law jurisdiction; but when, where or in what manner they are to hold a court, or rather exercise the jurisdiction with which they are invested, Congress has not provided. I consider it the duty of the legislature to do it. To you, sir, it belongs to watch over the affairs of the territory and to see that the laws are faithfully executed, and, on account of the relation in which I stand to the Territorial Government, I have thought it my duty to make this representation to you. The peculiarity of the case leaves me no other mode of stating my objections and the cause of my not conforming to the law. The legislature has organized certain courts and assigned me to perform certain duties; but the law constituting the one, and direct- ing the other, is unconstitutional, and as I can derive no authority from it, it imposes no obligation. I shall, therefore, not hold the courts for the circuit."
This refusal of Judge Parke, with various appeals to the General Assembly to establish courts which should modify the one-man power of the Superior Court (one judge being competent to hold court) has- tened the establishment of the Circuit Court which was alive when White County was created. At the legislative session which convened at Corydon in August, 1814, the territory was divided into three judicial districts, each of which was to be presided over by a judge appointed by the governor. In selecting the presiding judges, the chief executive was required to choose men "learned and experienced in the law," who were citizens of the United States and who had "regularly practiced in some of the courts of the United States, or in this territory, three years." The two associate judges of each county were to be residents of good standing, but not necessarily lawyers. Two judges were to constitute a quorum.
THE COURTS UNDER THE FIRST STATE CONSTITUTION
The entire judicial system, which prevailed in Carroll and White counties from the years of their organization in 1828 and 1834, respect- ively, until the Common Pleas Court was established in 1852, was fixed and consolidated under the state constitution of 1816. Under its pro- visions the judicial bodies were to consist of a State Supreme Court, Circuit courts, and such inferior courts as the General Assembly might establish. The highest body was to consist of three judges to be ap- pointed by the governor. and confirmed by the senate, their term of office to be seven years. The Supreme Court was given jurisdiction in capital or chancery cases where the president of the Circuit Court might be interested or prejudiced.
RIVER SCENES : (A) WASHINGTON STREET BRIDGE; (B) AT TIOGA DAM; (c) GENERAL SCENE; (D) MONTICELLO DAM AT FLOOD TIDE; (E) OLD MONTICELLO FLOURING MILL
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The Circuit courts were to consist of a presiding judge and two asso- ciates. The president alone, or with one of the associates, or the two associates together, could hold court, although capital and chancery cases could not be tried in the absence of the presiding judge. The presi- dents of the Circuit courts were elected by the General Assembly in joint session and the associate judges were chosen by popular vote.
The state constitution also provided that the clerk of the Supreme Court was to be appointed by the court and that the clerks of the Circuit courts were to be elected by the people, but no clerk could qualify who had not obtained a certificate of competency from a judge either of the Supreme or Circuit Court. The constitution also provided for justices of the peace.
UNDER THE SECOND CONSTITUTION
The constitution of 1851 made the supreme judgeship elective instead of appointive and reduced the term of service from seven to six years. The choice of a clerk for the Supreme Court was also given to the people, and the associate judges of the Circuit courts were abolished. Further, the new constitution provided that no one elected to any judicial office should be eligible to any other office during the term of his service, other than a judicial one.
COURTS OF COMMON PLEAS
"In creating inferior courts," says W. H. Smith, in his "History of Indiana," "the Legislature established what were known as Courts of Common Pleas. These courts were given exclusive jurisdiction in pro- bate matters and concurrent jurisdiction with the Circuit Courts in some other matters. This created great confusion. All the courts assumed to pass upon the constitutionality of laws enacted by the Gen- eral Assembly and the state witnessed the anomaly of having laws enforced in one county and declared unconstitutional in another. When the Legislature enacted the prohibitory liquor law in 1855, some of the Circuit judges declared it constitutional and enforced it, while others declared it void. This lasted until the Supreme Court finally overthrew the law. The confusion grew worse after the Common Pleas Court was established, for then some counties were operating under two different laws at the same time, according as the opinions of the judges differed. This confusion could not last, and finally the General Assembly abol- ished the Courts of Common Pleas, and in counties where the business was too great to be transacted by the Circuit Courts, Superior and Crim- inal Courts have been established, with well defined jurisdiction."
To condense judicial matters in so far as they relate to White County : From the organization of the county in 1834 to the adoption of the second state constitution in 1851 its immediate judicial affairs were under the jurisdiction of the Circuit and Probate courts, with right of appeal to the State Supreme Court; in 1852 all probate matters
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were transferred to the Common Pleas Court, created by the Legisla- ture; the Circuit Court continued its jurisdiction, with the abolish- ment of the two associate judgeships, and in 1873 absorbed the Court of Common Pleas; so that as far as White County is concerned, the Circuit Court has had a monopoly of judicial power for considerably over forty years.
At the time of the organization of the county in 1834 there were, besides the Circuit and Probate courts, one or more justices of the peace for each of the townships and the Court of Commissioners, comprising three members, the latter having charge of the location and improvement of highways, building of bridges, levying of taxes, allowance of claims against the county and general supervision of county affairs. Although judicial to a certain extent, its functions were so largely administrative that the commissioners' standing as a court has been largely obscured.
The state was divided into districts or circuits, and the presiding judge was required to reside in one of the counties embraced in his circuit, all civil and criminal cases coming before the body over which he presided. White County was attached to the Seventh Circuit, and it was not until 1888, when Alfred W. Reynolds ascended the bench, that the county was represented in that judiciary.
CREATURES OF THE LEGISLATURE
The first law passed after the adoption of the constitution of 1816 was for the creation of a Supreme Court; the second, defined the powers of the Circuit Court; the third was in relation to suits at law and chancery, and the fourth regulated the jurisdiction of justices of the peace.
PROBATE COURTS
Probate courts were established by an act of the General Assembly passed January 23, 1829, to consist of one judge, who was not required to possess a legal education. Exclusive jurisdiction was given in the probating of wills, granting letters testamentary, and in affairs relating to guardianship and the settling of estates. The judicial term was four years.
COURT OF COMMON PLEAS DEFINED
By the provisions of an act approved May 14, 1852, the Court of Common Pleas was established and its powers defined. Its jurisdiction was similar to the old Probate Court which it superseded; it also had jurisdiction over criminal cases which were not felonious. An appeal lay to the Circuit or Superior Court direct, at the option of the appel- lant. The judges could practice law in all courts except their own. The clerk of the Circuit Court and the sheriff of the county served also the Probate and Common Pleas Court.
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THE NEW CIRCUIT COURT
The constitutional convention of 1851, of which Judge Biddle was a leading member and in which he took a prominent part, provided that the Circuit Court should consist of but one judge instead of three, and by act of the Legislature of 1852 it was provided that there should be ten districts in the state. White was then assigned to the Eighth Cir- cuit, with Cass, Miami, Howard, Wabash, Fulton, Pulaski, Jasper and Carroll. The term of the circuit judge was fixed at six years and John U. Pettit was the first judge to serve after the triple judgeship was abolished.
FIRST CIRCUIT JUDGE
Little is known of John R. Porter, the presiding judge of the 1835 session. About all that can be stated in the way of facts is that he formerly presided over the Eighth Judicial Circuit, which embraced territory to the east and northeast of White County-the counties of Carroll, Cass, Miami, Wabash, Huntington, Allen, Lagrange, Elkhart, St. Joseph and Laporte. Like so many other of the early judges, he was rather "practical than technical," and the "records show a lack of method and a non-observance of strict rules of procedure and practice."
As has been noted, the first session of the Circuit Court at the house of George A. Spencer, in Big Creek Township, was held by the two associates, James Barnes and Thomas Wilson. The grand jury con- sisted of Royal Hazleton (foreman), William Woods, James Johnson, Samuel Gray, Robert Barr, Aaron Hicks, Daniel Dale, Robert Hanners, John Roberts, John Ferguson, James Parker, Joseph James, Sr., Cor- nelius Sutton, William Kerr and Joseph Thompson. In all probability Judge Porter had ascertained that only one little case of "malicious mis- chief" was on the docket and concluded that it could wait; but at the second session, held at the same place, April 17, 1835, all the judges were present and both bench and docket were full.
FIRST ACTIVE JURORS
The grand jurors who returned the indictments consisted of Ben- jamin Reynolds (foreman), Ashford Parker, David Berkey, Elias Louther, Jonathan Harbolt, William Walters, Rowland Harris, William Phillips, Matthew Terwillager, James Kent, Phillip Davis, Armstrong Buchanan and Robert Newell. William Sill acted as clerk, John Wilson as sheriff, and George A. Spencer, in whose house court was held, as bailiff.
As this was the first session of court in White County where cases were actually adjudicated, the matters brought before Messrs. Porter, Barnes and Wilson have been noted as an important incident in the general history of the county. The petit or special jury which tried the cases legally allotted to it consisted of Joseph Sayre, Jacob Crooks,
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John Price, Henry Smelcer, Oliver Hammond, Jacob Keplinger, Thomas Kelley, Henry Baum, Robert A. Spencer, Joseph James, Joseph Dale and Elisha Bowles.
PIONEER LAWYERS OF THE CIRCUIT
For four years the practitioners at the White County Bar were drawn from outside localities. At the October session of 1834 William P. Bryan, Andrew Ingram, Aaron Finch and William M. Jenners were licensed to practice. At the close of that very uneventful sitting these gentlemen, with the judges and the new county officers, visited the county seat at Monticello, and seriously inspected the lone cabin in which the clerk held forth, at the same time enthusiastically praising the good judgment of the commissioners in selecting the site.
At the April term of 1835 so many cases came before the court that it became necessary to have a prosecuting attorney to represent the state. William P. Bryan was appointed to that office, and Thomas B. Brown and John W. Wright were sworn in as members of the White County Bar. At the April term of 1837 Albert S. White, Rufus A. Lockwood and M. C. Dougherty were admitted to practice, and at the October session Zebulon Baird, A. L. Robinson, Samuel C. Wilson, Williamson Wright and Joseph Tatman were licensed as attorneys. None of the lawyers mentioned resided in White County, but followed the judge in his circuit and attended to what legal business they could secure.
ALBERT S. WHITE
The best known of these early lawyers, who became a character of national distinction, was Hon. Albert S. White. He was learned in his profession, literary in his tastes, graceful in his diction, popular in his intercourse with his fellows, and of unimpeachable morality. During most of his mature life his residence was Lafayette, but while he actively practiced his profession there were few lawyers in Northwestern Indiana who were abler or more widely known, and it was no surprise to his numerous admirers when he graduated to Congress, the United States Senate and United States District Court. His death occurred at Stock- well, Indiana, September 4, 1864, and his funeral was the occasion of an impressive demonstration of deep and widespread grief, observed by public officials, railroad employes, and those of all classes included in those democratic words-the people.
Judge White is described as a small, wiry, wide-awake, nervous man, near-sighted, with aquiline nose and thin face. He shared with Hon. Dan- iel D. Pratt, of Logansport, the highest honors of the profession and of public life among the early practitioners of Northwestern Indiana. Both were elder friends of Hon. David Turpie, whose fine record as a lawyer, jurist and public man is more intimately identified with the history of White County than the careers of the elder statesmen.
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TURPIE'S SKETCHES OF JUDGE WHITE
It was the pleasure of the late Judge Turpie to meet Judge White at different periods of his life, from boyhood to middle age-in his school days at Lafayette, in his practice as a young lawyer, and in the halls of Congress after he had acquired a high standing as practitioner and judge. Turpie's delightful book, "Sketches of My Own Times," has this first picture of Mr. White, which is illustrative of both char- acters: "In the outskirts of the town (Lafayette) where we lived was an inn-so called-so kept. It stood upon a street corner, which we passed every day in going to school. Here Mr. Albert S. White had his rooms and lodging; he was one of the United States senators from Indiana ; he was at this time a bachelor, had an office down town, but dwelt at the inn-no doubt from choice, as it was a quiet, pleasant house, and convenient for those who called to see him. He was a man of very affable manners, always spoke to the school boys whom he met, touched his hat when we doffed ours, and occasionally stopped to talk with us. We saw and noticed him day after day, and often made our small reflections about the high place which he held and his manner of life in Washington.
YOUNG TURPIE HEARS FIRST STUMP SPEECH
"After we had been going to school for a year or two, one day the town was billed with notices of a Whig meeting to be addressed by Senator White; the time was fixed for Saturday at one o'clock in the afternoon. As Saturday was always a holiday with us, we made up a party to attend the meeting, chiefly to hear him. The meeting was held out of doors and the attendance was large, mostly of people from the country. When we arrived Mr. White had already commenced his address, which was delivered from a wagon standing under the shade of an old beech. He held in his hand a document from which he read, commenting upon it as he proceeded. This document was the cele- brated Ogle report. The Whigs charged at that time that there had been a very lavish and unnecessary expenditure of public money in fur- nishing the White House, its gardens and grounds, and that the Demo- cratic president, Mr. Van Buren, was responsible for this expenditure. The first words of the address which I heard related to the purchase of golden spoons for the use of the president's table. Mr. White said this was a mere waste of the national revenue, and he sharply contrasted these costly spoons with those of horn and wood still not out of use among the people.
"In the course of reading the report, he came to an item for the purchase of a large number of young trees of the Morus Multicaulis, saying that his Latin was a little rusty, but that he understood these words to mean, the many-leaved mulberry, whose foliage was fed upon by the silk worm; that the president had gone into the mulberry trade in order to procure, as he supposed, silk napkins, table-cloth and towels.
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to match the golden spoons. He added that there was another kind of tree which would have been far more appropriate to adorn the lawn and gardens of the executive mansion than the Morus Multicaulis ; that tree was the Ulmus Lubrica-in English, the slippery elm. When he spoke of the slippery elm, he was interrupted by prolonged shouts and laughter.
"Mr. Van Buren was already well known to the public as the Kinder- hook Wizard and the Little Magician, and although Mr. White had applied none of these epithets to the president, the audience readily made the application. In the latter part of his address Mr. White became more grave and serious, describing the Whig national convention held a few months before, which had nominated General Harrison for the presidency. He related the account of Harrison's government of this territory ; his faithful and long continued safeguarding of white settlers on the frontier, his treaties with the Indian tribes, his defeat of the Prophet at Tippecanoe, the subsequent overthrow and death of Tecumseh at the Thames, closing with an appeal, full of force and feeling, to the old soldiers and settlers of Indiana to stand by their former friend and commander as one who had worthily deserved the highest honors of the republic.
BOYS ABASHED AT WHITE'S GREATNESS
"The speech was well received, applause was manifested by the wav- ing of hats and clapping of hands, and many of the audience walked to the speaker's stand and tendered their congratulations. None of our group of school-boys went forward; our old acquaintance, Mr. White, had suddenly become in some way a stranger to us; he seemed upon the stand before a public assembly to be so much greater, higher, than upon the street-we felt too much abashed to approach him. This address, made now more than sixty years ago, was the first stump speech I ever heard. It was, judging from the effect following it, an excellent speci- men. It gave life and movement to the Whig campaign, which from that day prospered without ceasing until it ended in the election of General Harrison to the presidency."
MEETING OF ALPHA AND OMEGA
In 1850, soon after his admission to the bar and at the commence- ment of his practice, Mr. Turpie again met his elder practitioner at Mon- ticello. Let him tell the story: "Mr. Albert S. White appeared only once in the White Circuit Court-it was at the second term after my admission. He came to present an argument upon a demurrer pending in an important cause which had been brought to our county on change of venue. He spoke more than an hour. There was a large audience and a full bench, though upon mere questions of law the two associate judges seldom acted. Every one liked to hear Mr. White. He had a very copious and accurate command of legal terms and phraseology.
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The case involved the construction of a will, and when he spoke of real estate he used the word devise; when of personalty, the word bequeath ; and he never confused them. His own position was always defined in language measured, precise and deliberate, with courteous deference to the court, implied, even more than expressed in his tone and manner. In criticizing the position of opposing counsel, he was trenchant and severe, but classic and ornate. He had an elegant way of transposing maxims and cases cited by the adverse party to his own advantage, which had all the effect of surprise or accident.
"At the close of his argument he was complimented in high terms from the bench and by the attorneys in attendance. I went forward, among others, and offered my hand, giving him my name. He recog- nized me, in the friendliest manner, as the school-boy of his former acquaintance. 'Why,' said he, 'here is a meeting of Alpha and Omega ; you are commencing your professional course, and I am just closing mine.' He told that he had become president of a railroad company recently organized in his city, which required all his time and attention ; that he had given up the practice of the law, and did not think that he should ever appear in another case. I was invited to call on him at his room, and I called in the evening. He inquired about my previous occupation and said he was glad I had been engaged in teaching in the country. The business men about a town who know and become a(- quainted with a young man as a schoolmaster seem to entertain a kind of misgiving as to his ability for any other pursuit. If he becomes a lawyer they avoid him; they are unwilling to consult him in their affairs; they think there is a sort of dust of incapacity that settles upon a school-teacher, not to be brushed off; but a teacher in the country is not so much subject to this disparagement. Kindly directing the con- versation to those things most interesting to myself, he gave me an account of his early experience in the law practice at Rushville and Paoli, Orange county, where, as a young man, he had labored in the profession."
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