USA > Indiana > Rush County > Centennial history of Rush County, Indiana, Volume I > Part 9
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On October 5, 1822, the court. Poston and Parker, fixed the rate of tavern license at $10, and Richard Thorn- berry and John Perkins were both granted license to keep taverns. Then, after allowing themselves each $2 per day for their services and the grand jurors each 75 cents per day, the judges adjourned the court to meet again at the regular term, at the house of Robert Thomp- son, in Rushville. For the sake of comparison it is inter- esting to note the amount necessary to run the circuit court in the first year of the county.
Grand jury, two days $21.00
Petit jury, one day 9.00
Two judges 12.00
Clerk 6.00
Sheriff 6.00
Prosecuting attorney 5.00
Bailiff to grand jury 2.00
Grand total $61.00
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It is unfortunate that the names of the men who comprised the first petit jury of the circuit court of the county were omitted from the records by the clerk, as it would be interesting to know who these men were. But through inexperience on the part of clerk and judges, who were probably at best unfamiliar with legal forms, this list is lost to us.
The April term of 1823 was held at the house of Robert Thompson, near the foot of Main street where the Scanlan hotel now stands. The fall term of 1823 was held in the house of Reu Pugh, who kept a tavern situated near the present site of the Rushville National Bank, and from this time until October, 1826, all sessions were held in the house of Robert Thompson with the exception of one held at the house of Christian Clymer. At the April term of 1823, Hiram M. Curry resigned as prosecuting attorney, and Charles H. Test was appointed in his place. Nathaniel Marks was sheriff, and the associate judges, Poston and Parker, conducted the business of the court, no circuit judge being present. On April 24, 1823, Oliver H. Smith was admitted to the Rush county bar. He after- ward became distinguished as a lawyer and politician, being elected in 1837 to the United States Senate, where he served with much credit to Indiana. When he had abandoned politics but was still engaged in the practice of law he published a series of very engrossing sketches of the early trials in Indiana. Some of these are incident to Rush county, and the more interesting appear elsewhere in this section.
FIRST NATURALIZATION PAPERS GRANTED
At this same term of court, Aaron Anderson, an Irishman, made application for citizenship under the naturalization laws of the country-the first to become naturalized in Rush county. Also, the court convicted Daniel Lauman of selling liquor without license, upon his own admission, and fined him $2 in each of two cases. 8
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This was the first conviction for this offense in Rush county, an offense committed all too often throughout the subsequent history of justice here. Before adjourning, the court appointed John Julian county commissioner.
Violations of the liquor laws of the state and several assault and battery cases engaged the attention of the court throughout most of the August term of 1823. In November of the same year, it assembled again, and tried the case of the State of Indiana vs. Albin Shaw for adultery and fornication. He pleaded not guilty, and a jury was empaneled to try the case, viz., Andrew Gilson, Richard Thornberry, James Abbott, William Dill, Adam Conde, William Alexander, Sampson Cassady. Amos Baldwin, Amos Dickerson, James Walker, David Morris, and John Nash, who returned a verdict of not guilty. According to the records, this was the first petit jury that found a verdict in the Rush Circuit Court, and this the first case decided by a jury in that court.
in the April term, 1824, the following men were admitted to the bar: Joseph Cox, Philip Sweetser and Calvin Fletcher, all of whom became distinguished at the bar in later years. James Grier, at this term of court, was the first man to be found guilty of contempt of court. He was fined $1, but even this small amount was afterward remitted. The grand jury, before adjourning, inspected the new jail, then just completed. and reported that it had been built in accordance with the specifications, and was in good condition and ready for the reception of any who might be consigned to it. This was the first grand jury inquest as to the condition of the county jail. The first petition of a guardian, for any purpose, was filed in this court by Isaac Fleener, praying for an order to invest his ward's money in land; this was granted. And for the first time, Judge Wiek, in the performance of his duties as required by law, made an examination of the clerk's office. He reported that the duty never before having been performed since the organization of the county, he was compelled to go over the entire record, and that "the
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final record and order-book furnish evidence of industry and care." It was very certain that the people of Rush county were satisfied with Robert Thompson as their clerk, because they kept him in office twenty-one years, and it was only by a hard and close contest that he was defeated by John L. Robinson in 1841. He left the county in disgust, esteeming himself an ill-used man. At this same term of the court the prison limits of Rush county were defined by order of the court to be "at the limits of the town plat of Rushville. as recorded in the Recorder's office." This is the first official mention we have of prison limits in our county. Imprisonment for debt was then possible, and these limits were for the benefit of unfortunate debtors. The first settlement of an executor in Rush county was made at this term by David Morris, executor of Joseph Morris, deceased.
The next term was held in Rushville, at the house of Christian Clymer, on April 7, 1825. Bethuel F. Morris was presiding judge, succeeding Judge William W. Wick, who had been made secretary of state. Now was tried the first slander suit, in which John Newan was awarded $808 damages from Thomas Wilson, the defendant.
The October term of 1826 was held in the new court house, a brick building, forty feet square with thirteen and eighteen inch walls. The court room was on the first floor, the four county offices on the second, and the whole building surmounted by a cupola embellished by two or three gilded balls. It was erected by Reynold Cory at a cost of $2,500, and required three years for its completion.
COUNTY'S FIRST MURDER CASE
The October term of the following year was opened by Hon. Bethuel F. Morris, who tried the county's first murder case-the State of Indiana vs. Andrew Young. James Whitcomb and Oliver H. Smith were employed for the state, and James Rariden, James T. Brown, and Charles H. Test for the defense. The account of this trial
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is entertainingly told by Oliver H. Smith in his "Remin- iscences" and is here quoted.
let me present the great and exciting trial of Alexander Young for killing John Points, in the Rush Circuit Court. The case was prosecuted by James Whit- comb and myself for the state, and defended by Charles H. Test. James Rariden and James T. Brown for the prisoner. The facts of the case were these : Young was a justice of the peace of Rush county, who had a beautiful and beloved daughter, about seventeen years of age. Points was a fine-looking young farmer, the son of a respectable man in the neighborhood, but somewhat wild and reckless. He had for some time been attached to the Squire's daughter and had asked the consent of the father to their marriage ; but was rejected and denied the privil- ege of longer visiting the house. The young couple then arranged for an elopement, to get married at a neighbor- ing village; the father got wind of their intentions and determined at all hazards to prevent it. He loaded his rifle and hung it up at a convenient place, to be taken down at a moment's notice of the approach of young Points. The Squire was absent one morning from his house, when Points rode up on horseback ; the daughter was ready, stepped to the block and sprang up behind him, and off they bounded on a circuitous path round the fields to the public road leading to the village where they were to be married, and their earthly joys to commence for life. They left the house full of life, with bright hopes of the future, and the ultimate reconciliation of the parents, as they had been readers of romance, and imagined this was to be a noted adventure, like escaping from a castle by young lovers. But alas for their dreams! The Squire returned a few moments after they had left, and seizing his rifle ran across the fields to the road, and took his position near the roadside-behind some trees, where the young couple had to pass. They soon approached at a rapid pace, wholly unconscious of impending harm. As
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they were directly opposite the tree, where the Squire was concealed, he raised the rifle. The crack was heard at the house by the mother. The ball grazed the head of the daughter, and young Points fell from his seat a corpse, leaving the intended bride in her seat on the horse. She returned to the house with her father, and was the prin- cipal witness against him on the trial.
"The case created great excitement throughout the whole country. The coroner's inquest charged Young with the murder of Points. The Squire was arrested and confined in the jail of Rush county. The grand jury found a bill of indictment for murder in the first degree. The clergy visited him in his cell repeatedly. He expressed the most poignant regret, and the deepest sorrow, so as to make a profound and lasting impression upon all who visited him-among the rest, upon my ven- erable friend, the Rev. James Havens, who took a deep interest in the trial. The court house was crowded, and surrounded at every window, during the trial, with the most anxious countenances I ever saw on any occasion ; and while the daughter testified, the crowd seemed almost to cease breathing, such was the silence that surrounded us. The daughter related the whole facts and circum- stances of the case briefly and calmly, but evidently with great feeling, and so far as we could judge, without any disposition to withhold anything material because her father was on trial. However, the tragedy proved too much for her strength. She gradually sank into a state of partial alienation of mind, from which she was never relieved.
"The case was argued with all the ability the eminent cousel on both sides could bring to bear upon it. Mr. Whitcomb for the state and Mr. Charles H. Test for the prisoner especially distinguished
themselves. The appeals to the sympathy of the jury were not in vain. A verdict of manslaughter, two years in the state prison, and a pardon from the governor, were the final result, but I learned that Alexander Young never smiled afterward."
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STORY OF THE SWANSON CASE
From this time forward the courts attended to their usual routine business, with no case of great general inter- est until the murder of Elisha Clark by Edward I. Swan- son in the early part of October, 1828. Dr. John Arnold was an important witness of this murder and in his "Reminiscences of an Old Settler" gave an accurate description of this case which resulted in the only hanging which has occurred in the county.
"I think it was on the 4th of October that the muster was held at my father's store, and as was customary on such occasions, the company indulged pretty freely in drinking old Monongahela whisky (Bourbon had not then attained its high reputation). In the evening after the rest had gone home, Elisha and Lewis Clark and Rich- ard Blackledge still remained in the store. My father was tired and wished to shut up, had gone back into his resi- dence thinking that they would soon retire. I remained until they finally went out of the store and turned their course to the west. When they passed out I also went out on the porch and walked to its west end. The three men were walking abreast, Elisha Clark in the middle: just then the gate opened and Swanson advanced three or four steps and in an instant presented and fired his rifle. Clark fell, and Lewis Clark and Blackledge sprang upon Swanson and a fierce struggle ensued, the men rolling over on a pile of lumber that lay there. At this moment Mrs. Swanson, Mrs. Cruzan and Polly Swanson, a stout girl of eighteen, rushed to the rescue and instantly freed Swanson from the hand of Clark and Blackledge. He picked up his gun and returned through the same gate. My father and two men took up the murdered man and laid him on a long table in our kitchen. He gave one or two convulsive gasps after they took hold of him and all was over. The ball had passed through his heart."
The cause for discord which led to the murder of Clark is alluded to by Dr. Arnold thus: "The Swanson
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family were on terms of most friendly relations with Robert Cruzan's family. Mrs. Cruzan was a fine-looking woman and a good neighbor, but it seemed that years previous to her marriage, there had been in circulation reports most damaging to her character. Clark had revived and circulated these reports through the neigh- borhood, thereby exciting the intense indignation of the subject of them. She made her husband fight Clark, but the result was not decisive, and he refused to try it again. Swanson and family strongly sympathized with the Cruzans and severely denounced Clark ; this led to a bitter quarrel between the parties, which ultimately culminated in the slaying of Clark."
Swanson was taken some time later, and brought to trial in April, 1829, in the circuit court. He was ably defended by Charles H. Test, but his conviction was almost certain from the start of the trial, and he was condemned to death by hanging. His execution took place on May 11, 1829, between 10 a. m. and 4 p. m. on Fourth street about midway between Main and Morgan. The following redundant indictment is a copy of the original document in this case.
A COURT DOCUMENT OF OTHER DAYS
"State of Indiana, Rush county, in the Rush Circuit Court, of the term of October, in the year of our Lord one thousand eight hundred and twenty-eight.
"Rush County, Rush Circuit, ss.
"The grand jurors for the said state of Indiana, empaneled, sworn and charged in the said Rush Circuit Court, to inquire in and for the body of the same county of Rush, upon their oath present that Edward I. Swanson, late of the said county of Rush, veoman, a person of sound memory and discretion, not having the fear of God before his eyes, but being moved and instigated by the devil, on the fourth day of October, in the year of our Lord one thousand eight hundred and twenty-eight, about
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the hour of six o'clock in the afternoon of the same day, with force and arms, at and in the county of Rush, afore- said, in and upon one Elisha Clark, a reasonable creature. in and under the peace of God and the state of Indiana then and there being, did then and there unlawfully, fel- onionsly, and of his malice aforethought, make an assault, and that he. the said Edward I. Swanson. a certain rifle gun of the value of ten dollars, then and there loaded and charged with gunpowder and one leaden bullet, which said rifle gun. he. the said Edward I. Swanson then and there in both hands had and held, then and there unlaw- fully. felonionsly and of his malice aforethought, did discharge and shoot off to. against and upon the said Elisha Clark, and that the said Edward I. Swanson with the leaden bullet aforesaid, out of the rifle gun aforesaid, then and there by the force of the gunpowder aforesaid. by the said Edward I. Swanson discharged and shot off aforesaid, then and there unlawfully, feloniously, will- fully and of his malice aforethought did strike, penetrate and wound. the said Elisha Clark, between the lower end of the left shoulder blade and the spine of the said Elisha Clark, then and there with the bullet aforesaid so as afore- said shot off and discharged by him the said Edward I. Swanson, out of said rifle gun as aforesaid, by force of the gunpowder aforesaid in and upon the back of him the said Elisha Clark, between the lower end of the left shoulder blade and the spine of the said Elisha Clark, and near the spine of the said Elisha Clark, one mortal wound of the depth of seven inches and of the breadth of one inch, of which mortal wound, the said Elisha Clark on and from the hour of six o'clock of the afternoon of the fourth day of October, in the year of our Lord. one thousand eight Imdred and twenty-eight. aforesaid. until the hour of seven o'clock on the same afternoon of the fourth day of October in the year of our Lord. one thousand eight hundred and twenty-eight aforesaid. in the county of Rush, aforesaid, did languish and languishly
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did live, on which said fourth day of October in the year of our Lord, one thousand eight hundred and twenty- eight, about the hour of seven o'clock of the same after- noon, of the same day as aforesaid, the said Elisha Clark. at and in the county of Rush aforesaid, of the mortal wound aforesaid, died ; and so the said jurors aforesaid, do say that the said Edward I. Swanson herein the said Elisha Clark, in the manner and by the means aforesaid, unlawfully, feloniously and of his malice aforethought did kill and murder, contrary to the form of the statute in such cases made and provided against the peace and dignity of the state of Indiana.
JAMES WHITCOMB
"Attorney prosecuting for said state for the fifth judicial circuit thereof."
COMPOSITION OF THE COURT
The Third Judicial Circuit included what was then known as the Whitewater country, and extended from the county of Jefferson north, to the state of Michigan, some two hundred miles in length, and from the Ohio line on the east, to White river, some seventy-five miles west. The country was new, sparsely settled, and being on the west- ern frontier, the towns and villages were filled with In- dians, trading their peltries, wild game and moccasins, or- namented with the quills of the porcupine, with the set- tlers, for calicoes, whisky, powder, lead, beads and such articles as met their fancy. The population of the country embraced by the circuit, was a hardy, fearless and gener- ally honest, but more or less reckless people, such as are usually to be found advancing frontiers from more civilized life, and consequently there were more collisions among them, more crimes committed calling for the action of the criminal courts, than in common in older settled parts of the older states.
The judiciary system at the time referred to was, like the country, in its infancy. The circuit court was
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composed of a president judge, elected by the legislature, who presided in all the courts in the circuit, and two asso- ciate judges, elected in each county by the people. These "side judges," as they were then called, made no preten- sions to any particular knowledge of the law, but still they had the power to overrule the presiding judge, and give the opinion of the court, and sometimes they even "out- guessed" the president, giving the most preposterous reasons imaginable for their decisions, as, in one instance, that a writ of scire facias to revive a judgment, would not lie, unless it was sued out within a year and a day. The decision of the associates was affirmed in the supreme court, for other reasons of course. The court houses were either frame or log buildings, arranged to hold the court in one end, and the grand jury in the other. The petit jury was accommodated in some neighboring ontbuilding. used as a kitchen of the neighboring inn, during vaca- tion. The clerks had very few qualifications for their duties. Still they were honest, and the most of them could write more legibly than many a United States senator. The sheriff's were elected by the people, as they are now, and seemed to have been selected as candidates on account of their fine voices to call the jurors and witnesses from the woods, from the door of the court building, and their ability to run down and catch offenders. The most impor- tant personages in the country, however, were the young lawyers, universally called "squires" by old and young, male and female. Queues were much in fashion, and nothing was more common than to see one of these young "squires, " with a wilted hat that had once been stiffened with glue in its better days, upon a head, from the back part of which hung a queue three feet long, tied from head to tip with an celskin, walking in evident superiority, in his own estimation, among the people in the court vard. sounding the public mind as to his prospects as a candi- date for the legislature. There were no caucuses of con- ventions then. Every candidate brought himself out, and
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ran upon his own hook. If he got beat, as most of them did, he had nobody to blame but himself for becoming a candidate; still he generally charged it upon his friends for not voting for him. and the next season, found him once more upon the track, sounding his own praises.
LIFE OF THE TRAVELING ATTORNEY
The court rooms in those days were prepared and furnished with much simplicity, and yet they seemed to answer all the purposes absolutely necessary to the due administration of justice. The building generally con- tained two rooms-the court room being the larger-at one end of which there was a platform elevated some three feet, for the judges, with a long bench to seat them. The bar had their benches near the table of the clerk, and the crowd was kept back by a long pole fastened with withes at the ends. The "crowds" at that day thought the holding of a court a great affair. The people came from miles about to see the judges, and hear the lawyers "plead," as they called it.
The great variety of trials and incidents on the circuit gave to the life of a traveling attorney an interest that they all relished exceedingly. There was none of the green-bag city monotony, no dyspepsia, no gout, no ennui, rheumatism or neuralgia ; consumption was a stranger among them. An occasional jump of the toothache, relieved by the "turnkey" of the first doctor they came to, was the worst. All was fun, good humor, fine jokes well received, good appetites and sound sleeping, cheerful landlords and good-natured landladies at the head of the table. They all rode good horses, good travelers, trained to the cross-pole mud roads and to swimming. The counties furnished too little practice for the resident attorney, so all looked to a circuit practice. Some rode the whole circuit, and others but a few counties.
Some of the trials which were brought into court in the early days of the county are of present interest as
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serving as a study in the effect of the changing times on our judicial and legal system, and are here reproduced from the "Reminiscences" of Oliver H. Smith, heretofore referred to.
AN "AGGRAVATED" SLANDER CASE
"As I was on my return home from Indianapolis, accompanied by my friend, the late George H. Dunn, we stopped at a little shanty tavern in the woods between Big Blue river and Rushville, to stay for the night. The landlord, I call Perry Laden. We had a good open log fire, a tolerable supper, and took our seats. We were evidently strangers at the inn. The landlord, who was a small, frisky, run-about fellow, eyed us for some time, and at last drew up his 'splint-bottomed chair' and commenced: 'Are either of you lawyers?' 'Yes, both of us.' 'Then you are the very men I want to see-I have a lawsuit for you.' 'What about?' 'The man that keeps the tavern in sight down the road [whom I call Elzy C. Lee] has slandered me the worst kind.' 'Indeed. what did he say of you?' 'He said that I fed my travelers on stolen pork.' 'Perhaps he was only in fun.' 'Not he, it was all done to get the traveling custom to his tavern.' This looked plausible, and as I practiced in the Rush Circuit Court, the matter began to assume a serions, busi- ness-like character, as I thought myself somebody in slander cases, although 'Starkie on Slander,' in two volumes, had not then met the eve of the profession. We generally carried with us on the circuit, 'Espinasse's Nisi Prius' and ' Peak's Evidence' with dogears turned down at each heading. Judge Dunn was my senior in practice, and had some experience in the difficulties that sometimes embarrass counsel upon the trial, when, for the first time they learn that their clients only told the truth as far as they went. but forgot to tell the whole truth, which alone would enable them to meet the true state of the case before the court. 'One question more Mr. Laden,' said Judge
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Dunn, 'did you ever kill anybody's hogs by accident and bring them home, out of which your neighbor might have made up this story against you ?' 'Never! I never killed a hog in the woods in my life; besides I can prove my character from a boy, by Captain Bracken.' This settled the matter in favor of the action. Judge Dunn, living at Lawrenceburg, and not practicing in Rushville, the case was given up to me ; the fee agreed upon, $20 certain, and one-half the damages contingent. The case was brought at the next term of the court, and Captain Bracken sub- penaed to prove the good character from infancy of my client. My expectations were high of the large damages that I was to divide with my client ; I had read of $20,000, $10,000, $5,000, and such verdicts in aggravated cases of slander. The court came on, my case was called. ‘A rule for a plea,' says I. 'Plead instanter,' says James Rariden for defendant. 'Hand the plea to me, Mr. Clerk,' says I. The clerk handed over the plea. A single glance satisfied me that there was trouble ahead. The plea was a ‘justifi- cation' of the words, and charging the stealing of two hogs by my client, the property of some one unknown. I told my client the substance of the plea. 'It is all a lie, they can't prove it, and if they do Captain Bracken will clear up my character.' Of course I took issue upon the plea. A jury was called, and Mr. Rariden and Chas. H. Test called to the witness stand and a girl that had lived with my client at one time, but had been discharged some time before the trial. She swore positively that my client had killed two hogs in the woods, skinned them, cut off their heads and brought them home before daylight on a sled ; and said that he could kill enough for his winter's meat for the whole family. 'How is this,' I whispered in his ear. 'Ask her what I said when I came home.' I put the question. 'He said as he had cut off the heads and legs of the hogs, and had skinned them; nobody could tell whether they were deer or hogs.' My client seemed pleased with the answer to his question. 'Now call up
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