USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 17
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The first form of selecting jurors contained possibilities of grave dangers. The selection was too direct and reposed too much power over juries in the hands of the commissioners, who were frequently small politicians. A second law, bearing date of January 31, 1824, provided that the county commis- sioners at their May session annually should select from all the taxpayers all the discreet householders and freeholders resident in the county between the ages of twenty-one and sixty. The clerk then wrote these names on small tickets and deposited them in a box. From this box the commissioners were directed to draw for each of the three terms eighteen names for grand jurors and twenty-four for petit jurors. These names so drawn were placed in other boxes and one month before court time the proper number for each jury was drawn and summoned by the sheriff.
This was not the end of the juror's troubles. He was liable to be called to the county seat once or twice between regular terms to sit at a special session. A law of February 12, 1825, gave the sheriff power to order a special session of the Circuit court at any time he had a criminal in jail who was unable to give bail, or one for an unbailable offense.
The act of December 29, 1826, changed the age limits so far as it applied to grand jurors. The restriction on petit jurors was not because men over sixty were thought to be incapable of weighing evidence and giving an impartial judg- ment, but referred solely to their lack of physical strength to
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endure the ordeals of jury duty. The law last referred to made still other changes. By this time few of the counties had county commissioners, the county business being done by a board of justices. The duty of choosing jurors devolved therefore on the board of justices. Many boards had neg- lected to choose juries at the May term, so it was provided that the justices might do this at any session. At the time the law took effect no less than seven counties were without juries, so that without the aid of the Legislature no court could be held. The necessity of putting the names of all the taxpayers in a box and selecting from them was removed, and the justices were empowered to select the proper number of grand and petit jurors-eighteen and twenty-four respectively-from among the discreet taxpayers. This law left the selecting and impaneling of juries in the hands of the justices, the begin- ning of a concentration of power in their hands which con- tinued during this entire period until the justice system was abolished.
Another modification at this time which also speaks of the physical wear and tear on the juror was that in case the court lasted over one week a relay of jurors relieved the first panel at the end of a week. In drawing the jury it was provided that the lots be taken by the president of the board of justices in the presence of a quorum of the board.
A law of January 30, 1830, directed that in a trial before a justice of the peace only the defendant could, of right, de- mand a jury trial. If the defendant did not so demand, the trial would proceed before the justice.
There is frequently a bit of interesting local history hidden behind the innocent-looking acts of the Legislature. A law of February 16, 1839, provided that in the Eleventh circuit the judge might order the sheriff to impanel a jury from the bystanders or citizens living or being at the time closest to the place where the court was sitting. It seems to have been common among the newer counties of that circuit for the county authorities to neglect or even refuse to impanel juries in the regular manner. When jurors were not so drawn it was the custom of the lawyers to challenge the whole panel.
An act in this same year (February 15, 1839) directed the
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county board to select a third set of jurors, twenty-four men- making seventy-two in all-to serve during the third week of the term. It seemed by that time the settled policy not to compel any person to serve on a jury more than a week. How- ever, it was provided that if the second set of jurors was not present at the designated time, or if court continued longer than it had been set for, the first jurors should remain.
The pay for jury service at this time both on the grand and petit juries was one dollar and twenty-five cents a day. There was nothing said in the act about mileage. In many cases the jurors had to camp out, and not infrequently bring provisions with them for the time of the session. At this time, 1839, the majority of the county seats were the merest villages. A full court consisted of three judges, and there were perhaps ten traveling attorneys, eighteen grand jurors and twenty- four petit jurors, not to count litigants and their witnesses. The crowd frequently numbered fifty men. Add to these the "bystanders" or as we would call them now loafers, the local officers such as clerk, sheriff, bailiff and talesman, the poli- ticians, and those who came to hear the "great lawyers plead" and one has a pretty respectable crowd for such taverns as could be found at that time. Besides, on one dollar and twenty- five cents a day few of the jurors could afford to stay at the tavern.
The theory of particular legislation reached even the jury system with demoralizing effect. In 1842, for example, Law- rence county was exempted from the general law regulating the selection of jurors and the sheriff there was instructed to select at his discretion a panel of twelve men to try each case as it was set. This was done in the interest of economy. The same law provided that not more than two bailiffs, one to look after the juries and the other, known as the riding bailiff, should be employed.
At the same session it was enacted that no more regular juries be impaneled in Monroe and Brown counties, but that when juries were needed either in the Circuit or Probate courts the sheriff should select them from among the bystand- ers. Certainly no step could have been more demoralizing to the courts than this.
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The same Legislature (it was devoted to economy) enacted that in Greene, Daviess, Ripley, Adams, Jay, Crawford and Parke only twelve jurors be selected for the first week of court and none for the second. If a jury were needed after the first week it might be chosen from the bystanders.
Laporte county was relieved by special act of summoning a regular panel and permitted through its sheriff, or "other officer under the direction of the court," to gather a jury from the bystanders. In this county jurors were to receive only one dollar a day. In this county the number of peremptory challenges allowed the parties was raised by this act from three to eight.
In Jackson and Bartholomew counties, by special act of the same year, no regular juries were to be drawn, but juries, at need, were to be summoned at the direction of the court from among the bystanders. The county commissioners were also forbidden to pay a riding bailiff for the grand jury.
By still another act of this same General Assembly, in the counties of Allen, Hamilton, Vigo, Delaware, Grant, Marion, Clark, Switzerland, Spencer, Greene, Putnam, Morgan, Fulton, Jennings, Marshall and Orange there should be drawn fifteen grand jurors and twelve petit jurors for the first, and a like number for the second week, but if it should happen that no jury had been impaneled there the court should order one drawn from the bystanders. In these counties, in the case of a jury from the bystanders, the parties had the right to six peremptory challenges each.
In the county of Dearborn it was left to the discretion of the county board to select as many jurors as they saw fit.
Finally, in Hendricks, the county board was forbidden to impanel juries, but if one became necessary, the sheriff should select it from the bystanders and the parties should have only three peremptory challenges.
But this is enough to show the utter confusion being intro- duced into the jury system and, incidentally, into the judicial system of the state. There were several reasons for this de- bauching of the courts. Many good people supported it through honest motives of county economy, and there were good grounds for their support. The sheriffs as a rule sup-
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ported it because it gave them a chance to pack juries both for the benefit of the client and as a special favor to the bystanders who enjoyed sitting on the jury. Nothing was commoner than for the henchman of the sheriff who wanted to earn a dollar to hang around the court where he could easily find them. Then there was this army of "bystanders" who were particularly flattered by this chance of jury service. We can easily imagine how smug they felt as they were addressed as "gentlemen of the jury" and told that they were the "bulwark of freedom," the "palladium of our liberties," the "pilots of the old ship of state." We can also imagine how the best of the lawyers must have regarded these bumpkins as they ambled into the jury box.
The Legislature of 1843 did not register the low water mark in the so-called reform of the jury. The next year the grand jury of Hancock was limited to three days per term and the pay fixed at seventy-five cents a day. The pay of the petit jurors was fixed by this act at thirty-seven and one-half cents a case. By a proviso, Monroe, Owen and Randolph were given the benefit of this act, except that petit jurors still received one dollar and twenty-five cents a day. In Madison county the grand jury was limited to four days.
However by this time Lawrence county had had enough of "bystander" juries and went back to the old practice, cut- ting the wages of petit jurors to one dollar a day.
Lagrange county was provided with still another feature in the way of jury service. An act of 1844 directed that when an issue was joined the sheriff should summon twelve lawful men, not more than four of whom should be from the same civil township. The parties were given five peremptory chal- lenges on this jury. On petition, Kosciusko was given the benefit of this act.
There grew up considerable dissatisfaction with the method of drawing jurors provided in the Revision of 1843. The clerk who drew out the names was said in many cases to know be- forehand what names he was drawing.
An act of January 13, 1843, sought to eliminate this objec- tion. It provided that the names of the freeholders of the county be written on slips of similar paper and closely folded
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to conceal the name. The clerk was then blindfolded and caused to draw the names in the presence of the board. A general law of the next year fixed the pay of all jurors at one dollar a day, but gave county boards the privileges of cutting this price to seventy-five cents or raising it to one dollar and twenty-five cents. The same Legislature fixed the wages of petit jurors of Hancock county at fifty cents per trial, unless it lasted over one day, when they should receive seventy-five cents a day.
Each session of the Legislature from 1843 to 1852 passed numerous acts varying the details of the jury system. The session of 1848 enacted perhaps a half score of such laws. The session of 1849 added more than a score, twenty-four separate acts being directed at the compensation of petit jur- ors in as many counties. The business became the football of the Assembly.
It might be observed that these alleged reforms emanated from other desires than that to improve the courts. The ordinary "bystander" jury was an abomination. The ordin- ary court-house lounger was not a very satisfactory juror to the parties. No institution could long stand such abuse. It threw the courts into the hands of the lowest class of poli- ticians. The only compensation was in the saving to the county of a slight expense, a very slight one. The litigants paid the petit jury fee, charged as costs, and also paid the bailiff. The only charge direct to the county was for the grand jury. The better class of citizens, always in the major- ity when they can find expression, soon demanded that the juries be restored. They now found expression through the President judges and the better lawyers, just as the opposite class had found expression through the pettifogging lawyers.
As it was, it came near crippling the grand jury system in the Convention of 1850. Many of the best citizens, including some eminent lawyers, favored abating the whole jury system as mischievous, and leaving the judges to try the cases, just as was done in the Supreme court.
Samuel I. Anthony, himself a lawyer, summed up the finan- cial objections to the grand jury in a speech in the Constitu- tional Convention on the afternoon of October 21, 1850. "We
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have in Indiana ninety counties. The grand jury, along with the Circuit Court, assembles twice each year, and is generally composed of from sixteen to eighteen individuals. We gen- erally sit ten days, and as we may set down their per diem at one dollar and twenty-five cents each, the total expense of grand juries to the people of this state is some twenty thou- sand dollars each year. And, sir, for the payment of this large sum, remember, that the people must be taxed, in addi- tion to their other burdens, twenty thousand dollars for the grand jury alone." He was discussing a resolution to abolish grand juries, and what is more interesting to us is that he was getting a respectful hearing.
He was answered by James Rariden, the legal Nestor of Wayne county. "And first," he says, "let me apprise gentle- men, old or young, that, when they undertake to pull down and rashly demolish this part of the American judicial system, they are embarking in a cause too weak to carry them and too heavy to be carried by them. The grand jury system is too deeply rooted in the confidence and respect of the people of the state to be torn up in this day of light and general infor- mation." In a long and rather loose argument he showed how the grand jury was allied with the schools and churches to advance morality and that as an institution its main enemies were a class of designing and criminally-inclined men who found the grand jury hindering their ambitions and endanger- ing their schemes,
C. C. Nave, a lawyer from Hendricks, favored the aboli- tion of the system. He said he was convinced that fully one- half the indictments in the state returned by grand juries were either of innocent men or of men who could not be con- victed under the charge. In closing his argument he said, "I reiterate my former assertion that I am in favor of the entire abolition of the grand jury system, for I consider that it has been an instrument in the hands of bad and designing men to set aside the claims of justice; and I insist that the system of public examinations is better calculated to suppress vice and punish crime." Mr. Nave was one of the foremost law- yers in the state and his indictment of the system carried great weight.
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Daniel Kelso, of Switzerland, thought the grand jury one of the essential features of our judicial system; he could not believe men were serious when they spoke of abolishing it. He objected to an inquiry by a justice of the peace taking the place of a grand jury.
Horace E. Carter, of Montgomery, found the difficulty in the grand jury system to consist in its propensity to find in- dictments for small offenses. A large part of this meddle- someness was due to prosecutors who got a fee for every con- viction. He estimated the annual expense of the grand jury to the state at one hundred thousand dollars, instead of twenty thousand dollars as suggested by a former speaker. He sug- gested, as a possible means of saving the grand jury, that it be restricted in its investigations to felonies, leaving misde- meanors exclusively to justices of the neighborhood. How- ever, he opposed destroying the grand jury system.
William S. Holman, of Dearborn, a man of wide and en- lightened views, found two sources of trouble in the grand jury. One was in the attention given to small affairs, thus entailing great cost on the county ; the other was in the incon- venience caused by taking so many witnesses from their homes and work on long trips to the county seats on the most trivial accounts. He said a remedy could be found in relieving the Circuit courts and, hence the grand juries of any jurisdiction over trivial offenses.
The argument continued through several days, partici- pated in by no less than thirty members, among whom were some of the best known lawyers of that day. John Pettit bitterly assailed the grand jury; Horace P. Biddle defended it; John B. Niles, of Laporte, opposed it; Thomas A. Hend- ricks favored the grand jury, but would greatly amend it; Judge James Lockhart, of Evansville, opposed any change, as did ex-Governor David Wallace.
The matter finally settled down to a question of whether Mr. Pettit's resolution to abolish grand juries, or Mr. Hol- man's resolution to leave the whole matter in the hands of the Legislature, with full power to preserve, amend, or de- stroy it should prevail. Mr. Robinson submitted a resolution limiting the power of the grand jury to such cases only as were
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punishable by death or imprisonment for a term of years. This last resolution was promptly voted down. Out of all the agitation, only one short sentence was framed for the finished constitution. It reads as follows: "The General Assembly may modify or abolish the grand jury system." This was the resolution of Mr. Holman and indicates the uncertain feeling of the convention. The grand jury had not made good with the people or with the lawyers. Its life was left hanging by a thread, but its prestige at the time was gone.
THE PROSECUTING ATTORNEY.
Another important factor of the early courts was the state's attorney, usually called the prosecuting attorney, or merely prosecutor. In this connection we will not discuss any of the forerunners of the present attorney-general, but rather those officers who represented the state in all cases in which the peace of the state had been broken and reparation was demanded. In the Revision of 1824 the law creating the office is as follows: "It shall be the duty of the said Circuit courts, in the several counties throughout this state, to ap- point some person legally authorized to practice as an attorney and counselor-at-law, as prosecuting attorney in each county ; who shall hold his office during good behavior, to be adjudged by the court, and who shall receive for his services in addi- tion to the fees allowed by law, such compensation as the judges in their discretion may allow, to be certified by the court and paid out of the county treasury on the order of the commissioners."
The section of the act following the one quoted above indi- cates the inherent weakness of the above system. Besides the payment from the county treasury, which was ridicul- ously meager, for no judge would certify any but the smallest possible charge, the prosecutor was allowed five dollars for each conviction for crime and three dollars for each applica- tion for divorce defeated. As a consequence of this, only young or inferior attorneys would accept the appointment. The system also opened up vast possibilities for corruption
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and open bribery. That the latter condition existed through- out the early period is assured by abundant testimony.
It was all but impossible for the circuit judges to get on with such prosecutors as could be had under the above system. Some of the old lawyers have given it as their opinion that not one out of twenty of the grand jury indictments resulted in a conviction, while the lowest estimate was one out of five.
The new law directed the governor of the state to appoint a prosecutor for each district, who should travel the circuit with the judge. The chief difficulty in the law was that he held his office only for one year. It was also made his duty to prosecute all delinquent local officers, such as sheriffs, clerks and revenue collectors. He was paid a salary of two hundred and fifty dollars out of the state treasury. It was necessary that he be present at the impaneling of every jury, especi- ally a grand jury. If he was not there, the Judge had to appoint a prosecutor pro tem, who was paid out of the prose- cutor's salary. This system had in it many elements of strength and doubtless would have proven satisfactory, but such an officer as the above might have wide-reaching poli- tical connections. As it was, he owed no fealty to any power but the governor. Neither the Legislature, Judges nor county commissioners could dictate to him. His very power and independence were his undoing. No sooner had the quarrel broken out between Governor Ray and the Legislature than a ripper bill took the appointment out of his hands and vested it in a joint meeting of the General Assembly. The term was lengthened to two years and the salary reduced to one hundred and fifty dollars per annum except in the Fifth circuit, where it was placed at two hundred dollars. It might be added that the last two features had been included in a law of January 20, 1826, the salary then being placed at two hundred dollars. The prosecutor of the Fifth circuit was compelled by these laws to prosecute all appeals taken to the Supreme court in which the state was a party. This extra work accounts for the munificent extra salary of fifty dollars. As a result of this low salary, the old custom of appointment by the court soon came to be the common thing. A law of February 1, 1834, gave the court power, where the prosecutor
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did not attend, to appoint a substitute for the whole district. It soon became impossible to get a circuit-riding attorney to hold the office. The duties fell almost entirely into the hands of young attorneys. If an especially important case appeared -murder, horse-thieving or robbery-interested parties usu- ally hired an attorney to help the prosecutor. The act of February 11, 1843, provided for the election of prosecutors in each circuit for a term of two years.
Many irksome duties were imposed upon the prosecutor in the course of the quarter of a century during which he rode the circuit. A law of January 23, 1829, made it his duty to collect the fines from all persons who had conscien- tious scruples against serving in the militia. By a law of the same year, he was required to audit the accounts of the road commissioners, the men who received the three per cent. fund from the state and expended it in laying out roads. In the same manner he was required to look after commissioners appointed from time to time for opening up the streams. He was required to look after each appropriation and see that it was entirely and honestly expended. In this matter his duties were a forecast of the present board of accounts. In 1835 he was required to see that clerks promptly transmitted election returns to the secretary of state. In the same year he was required to foreclose all delinquent school-fund mort- gages, vesting the title to the real estate in the state.
Various other changes were made in the law governing the office, but all related to details. The officer rarely answered the high demands of the office. The office was used and has always been used too much as a political pawn. This does not mean to deny that many fine lawyers in the old days rode the circuit as prosecutors-in fact, nearly all of them did in their earlier years of practice. As a result of the inexperience of the prosecutor, much of the work of that nature fell on the shoulders of the Judge, a fact which again reminds us that the latter officer was the supporting pillar in the early institution.
In the Constitutional Convention of 1850 there was little discussion of the prosecutor's office. The mania for popular election caught up this office with all others. The only ques- tion which divided the Convention on this subject was as
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to the advisability of making the prosecutor a state or county officer. The vote favored the state by about two to one and he was made elective for the whole circuit, the same as the Judge.
The act of January 27, 1847, provided for the election of a prosecuting attorney in each county in the state, whose ten- ure should be three years. These were not circuit prosecutors, and it was not until the act of January 16, 1849, that an act was passed providing for the election of circuit prosecutors for three-year terms. The act of 1849 authorized the voters of the Fourth and Eighth judicial circuits to elect one prose- cutor for each circuit on the first Monday of August, 1849, to serve for three years. For some reason the act stated that it "shall not extend to the county of Cass." Furthermore, the provisions of this act did not "extend to the counties of Posey, Perry and Crawford, in the Fourth circuit, nor to the county of Wabash, in the Eighth, until the expiration of the term of service of the present incumbents in Posey, Perry, Crawford and Wabash." The prosecutors so elected were not entitled to any pay or salary from the state. The act of January 27, 1847, providing for the election of a prosecutor in each county, did not meet with success and the act of January 16, 1849, for the election of a prosecutor for both the Fourth and Eighth circuits, was an effort to get back to the former method of electing prosecutors. As a result of the dissatisfaction with these two acts, the Legislature passed an act on February 14, 1851, which again provided for the election of a prosecutor for each circuit in the state, whose tenure was to be two years. These three acts will explain the hiatus in the list of prosecu- tors in each county.
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