USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 16
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42
94
COURTS AND LAWYERS OF INDIANA
himself. Unlike many of his contemporaries, though gifted in eloquence beyond any of them, he did not depend on argument before the jury entirely, but was a close student of the law, and a tireless worker. On the stump he was equally effective. He read widely and retained vividly the details of what he read, so that the political lives of most of his contemporaries were well known to him. The hardships of the circuit seldom took a heavier toll than when he died at his home in Bedford, Indiana, September 4, 1857, in the forty-fourth year of his life. He was born and educated at Bloomington.
The election of 1849 brought several new men into In- diana's congressional delegation, but, as usual, nearly all were direct from the legal forum.
Cyrus L. Dunham, of the Salem bar, came up to relieve Thomas J. Henley. He was born in New York, but early moved to Salem where he was admitted to the bar and prac- ticed till his death, October 15, 1856. As a lawyer, he was hardly up to the average. A great part of his attention was devoted to politics and also a good share to farming. His contemporaries speak highly of his good qualities, but they were of a social and political rather than of a legal nature. That he had considerable ability in this line is attested by the fact that he retained his seat from the Second district at this time through three terms (1849-55) .
From the Fourth district, George W. Julian, the Free-Soil warrior of the Centerville bar, replaced Caleb B. Smith. Mr. Julian was born in Wayne county, May 5, 1817, and died in Irvington, July 7, 1899. Although he was a lawyer and prac- ticed considerably, it can scarcely be said he gave his life to the practice. He was a politician and reformer. His legal activity served little more than to give him an acquaintance with the people of the circuit which he rode. He was a man of great power and spoke with much passion and vehemence.
Willis A. Gorman, fresh from his victories in Mexico, where he was an officer in the celebrated Second Regiment at Buena Vista, came up from the Bloomington bar to represent the Sixth district, taking the place left vacant by the death of George G. Dunn. He was born in Kentucky, January 12, 1816, and commenced the practice of law in 1835. Until the
95
THE CIRCUIT RIDERS
breaking out of the Mexican War he rode the circuit with James Hughes, George G. Dunn, Colonel Thompson, Paris C. Dunning and their fellows under the presidency of Judges David McDonald and E. M. Huntington. After his term in Congress was over he was appointed territorial governor of Minnesota. He died in St. Paul, May 20, 1876, after serving as city attorney of that city for several years.
From the Eighth district was sent in 1849 a lawyer des- tined later to achieve a fame in the profession not second to any in the state. Joseph E. McDonald hailed from the Craw- fordsville bar. He was born in Butler county, Ohio, August 29, 1819, came with his mother to Lafayette in 1826, and was admitted to the bar at Crawfordsville in 1843. The same year he was appointed prosecuting attorney, a position which kept him continually on the circuit during the next four years. After a term in Congress (1849-51) he served as attorney- general of the state from 1856 to 1860. From 1875 to 1881 he was in the United States Senate. From the latter date, until his death, June 21, 1891, he practiced in Indianapolis where he enjoyed a national reputation. He was a clear-thinking, plain- spoken man, who depended on the sheer strength of his posi- tion and his correct interpretation of the law to bring him success. He belonged to the later class of lawyers who prac- ticed law rather than oratory. Although he devoted much of his time to politics, it seems to have been never more than a diversion with him. He always returned at the first oppor- tunity to his place at the bar.
From the Tenth district in 1849 came Andrew Jackson Harlan, an attorney then practicing before the Marion bar. He was born at Wilmington, Ohio, March 29, 1815. He prac- ticed at Marion, Indiana, from about 1840 to 1849, when he was sent to Congress. He enjoyed politics and perhaps neg- lected his law practice on that account. In 1861 he went west where, after a varied experience in legal and official service, he died on May 19, 1907, at Savannah, Missouri. He had prac- ticed law and held office in Indiana, Dakota Territory, Mis- souri, Kansas and finally in Missouri again.
The election of 1850, the last under the old Constitution, sent at least four new lawyers from their places at the bar
96
COURTS AND LAWYERS OF INDIANA
to represent Indiana districts in Congress. From the First district went Judge James Lockhart of the Evansville bar, who has been noticed before. O. H. Smith said of him, "He was a man of acknowledged talents, a forcible speaker, a sound lawyer, and a good judge; he made no pretense to what is called eloquence, but was rather a matter-of-fact, straight- forward speaker, and much endeared to his friends."
From the Fourth district was selected Samuel W. Parker, the literary pride of the Connersville bar. He was known for his eloquence throughout his own and in adjoining states. His style was the most distinctly literary of any public man of his time. He dealt in broad comparisons, simple, elegant, often homely similes and metaphors. He had something of the Hoosier flavor of Riley, the easy grace of Irving, the broad humor of Mark Twain, but nothing of the pungent, biting sarcasm of George G. Dunn. He could gracefully crowd his opponent out of court and make him enjoy the process. Had he lived in later times, in or among more literary people than were Indianians of that day, he might have rivaled any of our modern Indiana authors. As it was, he won a place at the forefront of the bar.
The Fifth district did itself the honor of sending as its representative to Congress Thomas A. Hendricks, of the Shel- byville bar. He was a native of Zanesville, Ohio, born on Sep- tember 7, 1819. He was educated at Hanover College and read law in Pennsylvania. In 1843 he began practice in Shel- byville. He came into notice by the part he took as a member of the Constitutional Convention of 1850. Although he held high offices-governor, congressman, senator, vice-president- he was above all a lawyer. He was more at home at the bar than in Congress or the governor's office. He will probably not rank as high as his great contemporaries, Turpie and McDonald, but he will be remembered as a great master of the law in their class. Though he rode the circuit in his earlier days, he is not to be classed with Kilgore, Rariden and O. H. Smith. He tried far fewer cases, but prepared each with more care. Before a jury he was not the equal of Joseph Marshall or George G. Dunn, but where the argument had to do strictly with the principles of the law he was their superior. On the
97
THE CIRCUIT RIDERS
stump he cannot be classed with Whitcomb, Henry S. Lane, or even with Morton. He lacked the light, sparkling literary flavor of the first two and the bull-dog force of the latter. Taken as an all-round politician, he ranked even higher.
Daniel Mace came up from the Eighth district, from the Lafayette bar, and took the place of Joseph E. McDonald, of Crawfordsville. He was a native of Ohio, born in Pickaway county, September 5, 1811. In the early thirties he began practice and almost at the same time entered politics by rep- resenting his county in the General Assembly. His abilities as a lawyer and politician had so far been recognized by 1849 that he was appointed United States attorney for Indiana. From the time he entered Congress in 1851 he was almost con- tinuously in office till his death at Lafayette, July 26, 1867. During this period he neglected his legal work and never attained first rank as a lawyer.
This brief study of circuit riders in Congress must show at least that they almost monopolized this means of political preferment. As stated at the beginning, they filled seventy- five of the ninety-three terms of Indiana congressmen during the period. There were sixty-one different men sent up to Congress during the period. Of this number, forty-five were professional and active lawyers direct from bench or bar. Of the remaining sixteen, at least one-third gained their social notice by being directly connected with the Circuit courts either as sheriff or clerk. A genial officer of the court had a great opportunity of ingratiating himself with the circuit riders and thus preparing the field for his political efforts. Jonathan McCarty, Gen. John Carr and Samuel Brenton be- long to this class. It is also noticeable that few of these men served for any extended time. The very means that early brought the circuit rider into fame soon raised up enough enemies to put him out of public life. A large number of the more ambitious of them refused to neglect their law practice for the practice of politics. They made no pretense of keep- ing up their political fences and so easily gave way to some one who took the trouble to court public opinion. Whatever the causes, and there were a number of them, the result was
(7)
98
COURTS AND LAWYERS OF INDIANA
that few of our congressmen of the period had the national reputation to which a larger service would have entitled them. There can be no doubt that such men as O. H. Smith, George Kinnard, Edward Hannegan, Tilghman A. Howard, Henry S. Lane and George G. Dunn were superior to the average congressman and had their service been extended the supe- riority must have made itself manifest. On the other hand, it is to be regretted that the manner of life of the circuit rider conduced more to readiness of speech than to breadth or solidity of understanding. As soon as the session of Congress was over, the lawyer returned and plunged into his work on the circuit. This work kept him almost night and day until well into November, leaving him barely time to reach Wash- ington before Congress opened. At the taverns on the cir- cuit, where carousing and gambling were not the order, the time was spent in discussing law and politics. But as there was no chance of reading much, little was gained beyond a certain cleverness of expression and manipulation. The De- bates in Congress and the newspapers were about the only source of reading on politics. Even today they are a rather narrow basis for a course in political science.
In the United States Senate during this period-1816-1852 -Indiana was represented by nine men elected by the Legis- lature on joint ballot. After noting the composition of the Legislature, it is not surprising to find that all of these men but one were lawyers. John Tipton, the solitary exception, earned his fame by service in the army and in the land office. Of the others, William Hendricks, O. H. Smith, Albert S. White, Edward A. Hannegan, Jesse D. Bright and James Whitcomb have been noticed for their services in other stations.
James Noble, of the Brookville bar, and Waller Taylor, of the Vincennes bar, were the first two senators from the state. General Noble was born in Clark county, Virginia, December 16, 1785. After spending some time in Kentucky, he settled with his parents in Brookville, Indiana, in 1811. He died at Washington, February 26, 1831, while serving his third term in the Senate. As a lawyer he was one of the best examples of the old school. His Virginia military training led him to
99
THE CIRCUIT RIDERS
be more pompous than ordinary lawyers. He depended for his success at the bar almost entirely on his appearance before the jury. His voice was only equaled in magnitude by that of his townsman, Governor Ray. The country folks would crowd in for ten miles to hear these "great lawyers" plead, and it was a secondary matter with the client whether he won or lost his case, so the "pleading" was loud and long. The substance of the "pleading" was usually historical and politi- cal platitudes. They were long on the glories of liberty and freedom, the rights of man, and kindred generalities.
Waller Taylor was an easy-going old bachelor of Vin- cennes. He was born in Lunenburg county, Virginia, about 1785 and died there August 26, 1826. He was a friend and comrade-in-arms of Harrison and the other heroes of Tippe- canoe. Of his ability at the law no evidence seems to have been preserved. He stood well with Parke, Blackford, Noble, Johnson and the other leading lawyers of the territorial courts.
So far, this school of law and lawyers has been judged by its products acting in other than strictly legal capacities. In the field of general citizenship the circuit riders did a fair share of work. It could be shown that in the church many of the early lawyers were leaders ; some were regular preachers, but perhaps a majority of them took little or no interest in church work.
The lawyers were educated by the apprentice method. After attaining a common school education, and a smattering of Latin if possible, the prospective lawyer entered the office of some successful attorney and read law for three or four years, until he was able to pass the examination admitting him to the practice. The lawyer gave to the reader what attention he could. Some even went so far as to question the student every day, assign regular tasks, such as the preparation of papers, or otherwise direct and test the work. In many cases, however, the busy attorney left the student alone in his office to get on as best he could.
The reading course was based on Blackstone, Kent, Green- leaf and Chitty. The different volumes by these authors were considered a good library. Kent and Greenleaf, of course,
100
COURTS AND LAWYERS OF INDIANA
were not in the earliest libraries. The student began on Blackstone, devoting a year to the work. Next came Chitty, a prolific writer in nearly all fields of the law. A set of Chitty's works from the library of Judge Eggleston leaves no doubt that that distinguished Judge made constant use of it. After the student was well grounded in these fundamentals, he took up the special fields. He studied Harrison's Chancery, Grisley's Evidence in Equity, Heythusen's Equity Draftsman, and, after 1840, he had the clear treatise of Equity Pleading by Justice Story. He might use Sugden on Vendors and Pur- chasers and Roberts on Frauds; Starkie on Evidence or Ste- phen on the Principles of Pleading in Civil Actions. Impey's Modern Pleader would make him familiar with legal forms. The latter contained forms for all kinds of legal papers then in use-both common law and equity. Jones on Bailment gave him a good foundation for prosecuting suits over estrays. Chitty's Medical Jurisprudence armed him against the quack doctors, of which the settlements were full. After about 1830 he had to read finally-and he was delighted to get to them- Sullivan's Lectures on the Constitution of England and Story's Commentaries. No texts by Indiana authors appeared very early. Judge David McDonald's Treatise appeared about 1850, the end of this period. The chapter on legal writers treats this subject in detail.
One can see at a glance the limitations of this kind of education. The young attorney was a fac-simile of some older attorney, fortunate if he attained equal excellence with his master. During this period the rigid and often meaningless formulas of the English law held sway. Simplicity, so badly needed, had no chance of a hearing in the system. No attor- ney who was not well grounded in all these formulas had a chance at the bar. On the other hand, a well-trained court could do substantial justice under these circumstances, espe- cially when armed with equity powers.
The judges of the Circuit courts ranked with the best preachers in social prestige. They represented what was held most sacred in the state, the power and majesty of the law. One is convinced that their decisions carried far greater weight with the multitude than do the decisions of our pres-
101
THE CIRCUIT RIDERS
ent judges. Appeals were far less frequent. As a group they doubtless surpassed in social worth and in their knowl- edge of the law the rank and file at the bar, yet they were not a separate caste. They were merely the choice of that body. This of course did not mean that the best lawyer was always on the bench, but merely as a rule was that so. There was no social nor intellectual cleavage either between the lawyers at the bar and the judges on the bench. It was a democratic society. The pay of the judges was such that many of them declined long service from financial reasons. The duties were exacting and physically exhausting, so that many resigned from that cause.
Not counting those who served by the governor's appoint- ment for a brief time only, there were about fifty circuit judges on the bench from 1816 to 1850. They took as a rule no interest in politics, though they sat for a total of seventy- seven terms in the Legislature, eighteen terms in Congress and one term as governor.
In the highest sense, the work of the judges most nearly resembled that of the preachers. They stood for law and order and good neighborhood. They used the force of the law in accomplishing their object. The preachers stood for the same, but used the force of conscience and public opinion. It was fortunate that in the early period of our state these two institutions worked hand in hand.
In previous pages most of the great judges have been named. It would be useless to attempt to rank them in order of their greatness. Nothing but a long study of their records as preserved in the county clerks' offices would justify such an attempt. But tradition and the recorded opinion of their contemporaries have preserved for us the names of M. C. Eggleston, William T. Otto, Isaac Naylor, Horace P. Biddle, Samuel C. Sample, David McDonald, E. M. Chamberlain, Jehu T. Elliott, Elisha Embree, John R. Porter, B. F. Morris, Davis Floyd, W. W. Wick, and perhaps that many more as worthy a permanent place among those who have striven worthily for the founding of our commonwealth.
CHAPTER V.
JURIES, PROSECUTORS, WITNESSES AND COURT LIFE.
In a preceding chapter a general view of the courts and lawyers of the period from 1816 to 1852 has been given. It remains in this chapter to notice the organization of the minor courts and discuss the development of the judicial system from the standpoint of organization and jurisdiction.
The power of the Circuit courts was all pervasive. "They shall have jurisdiction in each and every county within this state in and over all crimes and misdemeanors of whatever name and description the same shall or may be, which shall be committed within the jurisdiction thereof, and shall and may hear and determine the same, and sentence give, and execu- tion award." It is evident at a glance that whatever special jurisdictions were later set up must have been carved out of this comprehensive grant. The same court had "original jurisdiction in all causes, matters and things at law, and at chancery." They had "full cognizance of all actions, real, personal and mixed." These powers were to be administered "according to the course of the Common Law and the usages of courts."
The law of January 28, 1818, was the basis for court pro- cedure under the old Constitution. Many of the rules are as old as the Common Law and consequently are well known to all practicing lawyers. The emphasis in this code sometimes surprises one. Granting of bail was carefully guarded. Hunt- ing criminals was at that time similar to hunting wolves, and the escape of a horse thief was about as irremediable as the escape of a wolf. After all safeguards possible had been thrown around the practice, it was further enacted that "If the bail be adjudged insufficient, and other good bail approved of by the court be not entered, the bail so objected to shall not thereby be discharged, and if the plaintiff shall proceed to
103
PROSECUTORS, JURIES, ETC., 1816-52
judgment against the bail so adjudged to be insufficient, and the demand be not satisfied by the return of the first scire facias against the bail, the sheriff or other officer shall be liable to the plaintiff for the amount of his demand and all costs of suit." This was in keeping with the old principle that if the executive officer accept bail without consulting a justice he does it at his own risk. Sheriffs have since been deprived of this power, and its attendant abuses avoided.
Delays were not countenanced. It seems there was as much popular impatience then with dilatory courts as there is now. All actions at Common Law were required to go to trial at the term to which the process was returned executed. Pleas to jurisdiction, in abatement and special demurrers had to be made before or on the first day of the trial or else the pleader forfeited his rights. All pleas in abatement or others that tended to delay required substantiation by oath. Mere formal amendments were not permitted to delay action. On the other hand, all the Common Law pleas, rejoinders, sur-rejoinders, rebutters and sur-rebutters were pleaded so that there is usu- ally a desert of lifeless forms in the court records before one gets down to the issue of the case.
Injunctions were not favored by the old courts, though power to issue them was possessed. The court in term time, or the circuit judge, or both associates in vacation might issue one.
Writs of ne exeat, to prevent debtors or defaulters escap- ing with goods, were quite common. The issuance of these writs, like those of injunction, were rather carefully guarded. A bill had to be filed and sworn to and it seems the defendant in either writ could more easily satisfy the court of his honesty than the plaintiff could establish the reverse. Tenders were pleaded more frequently then than now. One cause of that was the uncertain currency of those days. Hardly anyone, even the court, could tell exactly what kind of money was legal tender. It was sometimes found that a tender, worthless at the time of suit, had been good when made at a previous time.
In general the procedure was much more formal than at present. There was a tendency at the time to break away from the old Common Law writs and make the procedure less
104
COURTS AND LAWYERS OF INDIANA
formal, but the movement lacked enough force to carry it through. Another reason perhaps may be found in the fact that the lawyers who sat in the convention of 1816 were nearly all on the bench in 1817 and 1818 and there was no member of the Legislature capable of drawing up a similar code.
PETIT AND GRAND JURIES.
The Circuit court laid great stress on the jury. This will readily be understood and appreciated when the manner of practice of the early lawyers is recalled. They depended very largely for their success on their ability to influence juries. It is hardly to be expected then that there would be any oppo- sition to the jury system. The original act of January 28, 1818, made it the duty of the county commissioners every year when they received the lists of taxpayers to select for jury purposes the names of seventy-two "discreet men," household- ers, from the list. These names were then copied on slips of paper and placed in a box. As soon as this was done (forth- with) there were selected from the box three grand juries, consisting of eighteen men each. These slips were then en- dorsed with the words "grand jury" and placed in the posses- sion of the circuit clerk to be kept until thirty days before the opening of court. At that time he drew out eighteen names from the grand jury box and twelve names from the petit jury box. These were then turned over to the sheriff. By a law of this same session each party to a suit was given the right to challenge peremptorily three jurors.
In the Justice's court a jury of twelve, composed of electors, tried all crimes brought to that court. No special machinery for the selection of this jury was provided for beyond the justice ordering the constable to go out and forthwith fetch twelve men. In a civil case before a justice a jury was not called unless one of the parties to the suit demanded it. If the constable on execution took property claimed by another party, the constable was directed to summon a jury of five disinterested freeholders to determine the ownership of such property.
The coroner's jury called for a panel of at least fifteen
105
PROSECUTORS, JURIES, ETC., 1816-52
men, "good and lawful," so that when they appeared at the designated place there would be at least twelve of them present.
As an illustration of the shifts the Legislature was often put to in early days, it is worth noting that before the end of the year in which this code was enacted it had to make special provision for juries in Posey, Warrick and Vanderburg counties. The courts met in these counties after the law was passed, but before the county commissioners met. The jails contained criminals, but the courts had no means to draw either a grand jury to indict them or a petit jury to try them. The act of December 31, 1818, simply directed the sheriffs of these counties to summon thirty-six men in each county, out of whom the court might select jurors as needed.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.