USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 18
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A complete list of the prosecuting attorneys from 1824, when the first circuit prosecutors were elected, to 1852, when the present Constitution went into operation follows :
Circuits. Prosecutors. Tenure.
7-Allen, James C. 1846-48
3-Allison, James Y. 1851-52
3-Barkwell, Harmon G. 1851-52
2-Barnett, Theodore I 1840-42
4-Battell, Charles I 1826-32
2-Bicknell, George A 1851-52
Circuits. Prosecutors. Tenure.
4-Breckenridge, John A .__ 1837-38
5-Brown, Hiram. 1831
6-Brown, William J. 1832-36
1-Brownlee, John 1839
1-Bryant, William P. 1834-38
11-Buckles, Joseph S. 1846-4S
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' PROSECUTORS, JURIES, ETC., 1816-52
Circuits. Prosecutors. Tenure. Circuits. Prosecutors. Tenure.
9-Chamberlain, Eben. M ._ 1842-43
S-Chapman, John B.
1833-34
3-Lanier, James F. D. 1830-32 4-Clark, Amos 1824-26
12-Combs, William H.
1841-43
7-Cowgill, John.
1834; 1837-38
3-Cushing, Courtland.
1833-37
11-Davis, John
1843-46
4-DeBruler, Samuel S. 1846-48
2-Dewey, Charles
1833-36
12-Douglass, Robert L.
1843-45
7-Dowden, John H
1832-33
3-Dumont, John __ 1837-41; 1842-48
2-Dunham, Cyrus L.
1844-46
S-Dunn, David M.
1845-47
7-Eccles, Delana R.
1838-41
4-Edson, Eben D.
1836-37 ;
1838-40; 1845-46.
6. 11-Elliot, Jehu T. 1839-44
9-Farnsworth, Reuben L ._ 1843-46
S-Ferry, Lucian P.
1839-41
3-Finch, Cyrus
1826-28
5-Fletcher, Calvin
1825-26
10-Franklin, William M.
1851-52
9-Frazer, James S
1851-52
24-Garver, John E.
1851-52
11-Garver, William
1851-52
5-Gooding, Davis S.
1851-52
S-Gordon, George E. 1851-52 5-Gregg, Harvey_1824-25; 1831-33
5-Hammond, Abram A.
_1843-47
7-Hanna, James M. 1844-46
9-Hanna, William C.
1838-42
1-Hannegan, Edward
1830-32
5-Herod, William
1833-36
10-Hester, Craven P.
1845-49
S-Howk, Isaac
1832-33
7-Huntington, E. M.
1830-32
4-Ingle, John
1841
1-Ingram, Andrew
1832-34
S, 9-Jernegan, Joseph L.
1836-38
3-Johnson, John M.
1832-33
8-Johnson, Thomas
1836-38
6-Julian, Jacob B. 1844-46
2-Kingsbury, John 1824-28
5-Lander, Edward
1847-49
3-Lane, Amos
1826
1-Law, John
1824-30
4-Lockhart. James 1841-45
7-McDonald, David 1834-37
1-McDonald, Joseph E. __ 1843-47 7-McGaughey, Edward W ._ 1841-42 7-McJunkin, Erasmus H .__ 1833-34 12-McMahon, Elza A. 1845-47 6-Macey, David 1838-40
9-Mather, Joseph H.
1846-48
6-Mellett, Joshua H.
1851-52
9-Niles, John B.
1838
5-O'Neal, Hugh
1841-43
6-Parker, Samuel
1836-38
2-Payne, John W.
1836-40
5-Peaslee, William J.
1839-41
6-Perkins, Samuel E.
1844
6-Perry, James
1830-32
4-Pitcher, John __ 1832-36; 1840-41
2-Porter, William A
1842-44
S-Potter, William
1849-51
5-Quarles, William
1836-39
10-Quick, William G.
1843-45
3, 6-Ray, Martin M.
1828-30,
1840-42.
3-Robinson, Andrew L
1849-51
3-Robinson, George
1841-42
S-Sample, Samuel C.
1834-36
7-Scott, Harvey D.
1851-52
11-Smith, Jeremiah
1839-41
3-Smith, Oliver H.
1824-26
13-Spooner, Benjamin
1851-52
2-Stapp, Milton
1826
6-Still, John B.
1846-48
S-Stuart, William Z.
1843-45
5-Sweetzer, Phillip
1830-31
3-Test, John
1833
2-Thompson. Jolin H.
1828-32
S-Tipton, Spier S.
1841-43
7-Usher, John P
1842-44
11-Wallace, John M.
1841-43
1, 8-Wallace, Lew
1851-52
7-Waterman, George F.
1842
10-Watts, John I.
1839-43
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COURTS AND LAWYERS OF INDIANA
Circuits. Prosecutors.
Tenure.
Circuits. Prosecutors. Tenure.
5-Whitcomb, James
1826-29
10-Worden, James L. 1851-52
5-Wick, William W. 1829
1-Willson, Samuel C. 1839-43
S-Wilson, John M.
1852
8-Wright, John W. 1838-39
1-Wright, Joseph A. 1838-39
WITNESSES.
Probably the most exasperating work of the trial courts of early Indiana was the management of the witnesses. As a rule, few of the witnesses were educated. They were, though ignorant, a headstrong, opinionated people. They had lived for two or three generations without restraint. Stories enough to fill a volume have come down from that day con- cerning the simplicity or perversity of witnesses. An instance which happened in one of the first sessions of court ever held in Dearborn county, in which an obstreperous witness broke the judge's arm with a slat, has been related.
O. H. Smith relates a case in which Michael O'Brien was charged with stealing the watch of Jimmy O'Regan. Judge Eggleston, presiding judge, said to O'Regan: "Did you find the watch upon Michael?" "Sir, your honor?" Judge, "I say, did you find the watch with him?" "Find the watch on him and didn't I tell your honor that it was me ould mother's watch as she gave me in Ireland? Had I found him with it do ye think I would have troubled your honor with him?"
The following evidence was adduced in a slander case. Queried the attorney, "Mr. Herndon, do you consider it libel- ous to call a man a Federalist?" "I do." "Which would you rather a man would call you, a Federalist or a horse thief ?" "I would shoot him if he called me the one or the other." Attorney, "You have not answered my question." "I would rather be called anything under the heavens than a Federal- ist." "What damage would you say the defendant should pay for this libel in calling the plaintiff a Federalist?" Answer: "I would say a thousand dollars at the least." Judge Test : "Mr. Herndon, what do you understand by a Federalist?" Answer: "My understanding is that it means a tory, an . enemy to his country." Judge: "Is that the common accep- tation of the term?" Answer: "Yes, I have never heard any
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other from the first settlement of Kentucky up to the present time." General Noble, who was the plaintiff's attorney, in- formed the court that he had twenty-nine other witnesses who would testify to the same. The plaintiff was awarded one thousand dollars damage by the jury.
The following case of circumstantial evidence is culled from the same "Sketches" as the others. It happened in Judge Eg- gleston's court, presided over, however, by the associates. The case was for five dollars damages for killing a dog. The plain- tiff testified that he saw the defendant pick up his rifle, run across a lot, rest it on a fence, saw a flash, heard the report, saw the dog fall, went up to him, and saw the bullet hole just behind his front leg. The evidence seemed conclusive. All appeared lost, but the defendant's attorney was not discon- certed. He knew the associates had just been reading a new law book, Phillip's Evidence, which cautioned judges against the pitfalls of circumstantial evidence. He therefore recalled the witness, had him repeat his evidence and ended by asking him if he saw the bullet hit the dog. When the witness refused to testify to the fact, the lawyer casually observed to the court, "A case of mere circumstantial evidence," and rested his cause. After due deliberation, the court announced, "This is a plain case of circumstantial evidence, judgment for the defendant."
More space cannot be given to these illustrations. Any number of them can be found in the county histories, in O. H. Smith's "Early Indiana Trials and Sketches" and various other memoirs and reminiscences that have come down to us.
Whatever the shortcomings of the witness, we can remain assured that he gave at least as much good evidence as he was paid for. He was often summoned from home and work, made to tramp, perhaps barefooted, twenty miles and then wait around while the wrangle of the lawyers continued over rejoinders, demurrers, and the whole repertoire of dilatory pleas. The witness received for his service the exorbitant sum of fifty cents a day before his own county Circuit court, or twenty-five cents before a justice of the peace. This was the fee law of 1824. It was later cut to thirty-seven and one- half cents a day. These fees were taxed as costs to be paid by the criminal, who usually preferred to lay them out in jail.
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COURTS AND LAWYERS OF INDIANA
CIRCUIT COURT IN ACTION.
The writer has in the preceding pages endeavored to give some idea of the Circuit courts by an analysis and discussion of its chief factors. The judge, the lawyers, the prosecutor, the jury and the witnesses constituted the essential features of the old court. The following descriptions are written in the hope of conveying some idea of the system in action.
To get anything like a correct picture of the court, it is necessary to divest our minds of all pictures of the furniture and trappings of the court room of today. The country was young, awkward and violent. Knowledge and skill, though highly prized, were not widely distributed. The associates, or "side" judges, had no pretension to legal knowledge. Many of the presiding judges had little more than a smattering of the law. The prosecutor was almost invariably a novice, while the foreman of the grand jury was very frequently a local preacher. Many of the practicing lawyers were of the class commonly called "shysters." They attained considerable success at the bar, when the "side" judges presided, by preju- dicing the judges against the really competent lawyers.
The language of this court was strewn with Latin wrecks, many of them so disfigured as to have lost all resemblance to their original forms. If a lawyer was uncertain just how to lay his declaration, he worked it in all conceivable ways in the hope that at least one of his "counts" would be good. If he was uncertain just what to say, he said everything possible, in the hope that in one place or another he would get it said correctly.
The following description is of an early court on the Third or Whitewater circuit: "The building contained two rooms, the largest being the court room, at one end of which there was a platform elevated some three feet, for the judges, with a long bench to seat them. These benches were very substan- tial in general, sufficient to sustain the most weighty judge; yet on one occasion the bench gave way and down came three fat, aldermanly judges on the floor. One of them, quite a wag, seeing the lawyers laughing, remarked, "Gentlemen, this is a mighty weak bench." The bar had their benches near the
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table of the clerk and the crowd was kept back by a long pole fastened with withes at each end."
The young lawyers, always called "squires," attracted most attention from the court house crowds. They sported what had been bee-gum hats; but stress of rain and frost had weak- ened the fiber or rotted the glue until many of them resembled on a small scale the leaning tower of Pisa. From beneath this wreck of a former beaver there protruded a long plait of hair, carefully wrapped in an eel skin, which hung to the belt, the whole appendage being called a queue. The young "squires" courted the admiration and homage of the multitude. The lawyers had no office, neither did they prepare their cases ; so that if not actually engaged at the bar, they were at leisure to walk around through the crowd and talk politics, for all were candidates for a seat in the Legislature.
The people thought holding court one of the greatest per- formances in the range of their experience. If not unavoidably detained, all those who had no business there flocked to court to hear the great lawyers "plead."
Judge Charles Test has left a reminiscence of a scene that was not only typical, but very common. A man was on trial charged with assault and battery for pulling another man's nose. The case was before a jury. The room was crowded to the last man. The evidence was all in and the crowd had assembled to hear the "pleading." Judge Test, then a young man, rose and said to the court:
"If the court please-" Before he could continue Judge Winchell from the bench broke in with: "Yes, we do please. Go to the bottom of the case, young man ; the people have come in to hear the lawyers plead." He then proceeded in a three hours' address to show how greatly his client had been pro- voked to pull the plaintiff's nose. As he closed and took his seat, the judge bawled out, "Capital; I did not think it was in him."
Few of the lawyers of the first generation had had college training, few had ever seen the inside of other than the mean- est frontier school. They were what formerly were proudly called self-made men, and who deserve all praise for their efforts and achievements.
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COURTS AND LAWYERS OF INDIANA
"Special pleading" became a hobby of a few lawyers about 1830 and a nightmare to the attorneys not read up on it. Chitty was the standard work on this subject, enforced by Saunders' Reports. On one occasion a demurrer to a pleading of this kind came up before the associate judges at Charlestown. Charles Dewey and Harbin H. Moore, two as able lawyers as could have been found in Indiana, perhaps, argued it to the judges all day. As Moore closed his powerful argument, one of the judges roused up. "Mr. Moore, do I understand that a demurrer means a dispute?" With disgust, Moore answered, "Yes, your honor." "Then," said the judge, "the opinion of the court is that the demurrer go." "Which way shall it go?" queried the attorney. "Mr. Moore, I will let you know that you are not to ram your rascality down the jaws of justice in this court," responded the judge.
Practically all the important trials of the early days were criminal. There was little property, but a great deal of vio- lence. A good illustration of this kind of litigation was the trial of Hudson, Sawyer and the two Bridges for murdering Indians on Fall creek at Pendleton. The story is well-known and is given here only to illustrate the time. A new log build- ing was erected, with one large room for the Circuit court and a small room for the grand jury. The main room, which was something over twenty feet square, had the usual raised platform for the court, a strong railing in front, a bench for the judges and a plain table used by the clerk. In front of the bar stood a long puncheon bench for the lawyers. A small pen was built for the prisoners, heavily ironed by the local blacksmith, who now sat on the bench as one of the associate judges. Benches on either side of the room accommodated the witnesses. The jail was a hastily-constructed log pen. The prisoners slept on a pallet of straw, guarded night and day.
Judge W. W. Wick, then a young man, but a good judge, presided. Gen. James Noble, then a United States senator, and his young son-in-law, Philip Sweetzer, assisted Calvin Fletcher in the prosecution. Rough and forbidding as were the surroundings, this was an excellent court and met the substantial demands of justice. Harvey Gregg, Lot Bloomfield, James Rariden, Charles H. Test and others of less fame
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defended. Before the President Judge arrived, William R. Morris, of the defense, moved the court for a writ of habeas corpus. "For what?" asked Judge Winchell, the blacksmith. "A writ of habeas corpus." "What do you want with it?" queried the judge. "To bring up the prisoners and have them discharged," was the answer of the lawyer. "Is there any law for that?" demanded the judge. Mr. Morris read the statute. "That statute has been repealed," ruled the judge. "Oh, no," said Mr. Morris, "that statute is as old as Magna Charta." "Very well," observed the judge, "it would do you no good. I put them irons on the prisoners myself and you couldn't git them off with a habeas corpus. The motion is overruled." The President Judge entered at this time and court opened. It was a truly pioneer group. The jurors wore moccasins and carried knives at their belts, but they responded to the evidence with a verdict of guilty and the fiends were in due time hanged.
This case became notorious on account of a description printed in an Eastern paper. This description is herewith given to show an opinion of Hoosier courts often met with in the East. Alexandria (Md.) Herald, June, 1825 .- A traveler from the West gives this picture of a court in Indiana. In passing through the state he stopped at a country town while court was in session. He was invited to attend court, and found the judge seated on a large block paring his toe nails. The members were separated from him by a pole withed to the logs on opposite sides of the house. Soon after the judge had finished dressing his toe nails, he inquired of the sheriff why the jury were not in place. He replied that he had eleven tied up stairs, and his deputies were chasing the twelfth-that the jury would be ready in a few minutes.
John Law has left a story of a trial at one of the first courts held in Vanderburg county. Mr. Law was prosecutor. The president judge was absent and the case came before the associates. The criminal was the son of one of the judges and was charged with murdering his wife. The attorney for the defense moved to quash the indictment. Mr. Law observed that he felt sure the court would have some delicacy in ruling on the case considering the relation of the criminal to one of
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the judges. He therefore asked a continuance. After with- drawing and deliberating for a few moments, the two judges resumed the bench and stated that the court felt no delicacy whatever in ruling on the case and therefore sustained the demurrer to the indictment and ordered the prisoner released.
Much of the early litigation was over trivial affairs. It is not infrequent in the early court records that one finds a verdict for five or ten dollars with costs of two hundred or three hundred dollars. Corporations as well as corporation laws were little known. Slander and libel suits were frequent, most of them having their origin in political or religious diffi- culties. Many cases of ad quod damnum appear on the early records. The larger number of these were for mill sites- always called "damsites." The law authorized one to condemn private land for this purpose.
In concluding this chapter, one can scarcely refrain from observing that a study of the old court dockets is the best pos- sible way to get an appreciation of the long and painful road by which society struggles on to higher forms and fuller life. It is a museum of misery, misfortune, and despair, illuminated by the flickering torchlight of justice.
CHAPTER VI.
MINOR COURTS AND PRACTICE, 1816-1852.
-
PROBATE COURTS.
The probate business of early Indiana was carried on by the associate judges and the circuit clerk. The Probate court was established by an act dated January 29, 1818. One would have expected, from the tendency of the lawmakers in terri, torial times, that the probate business would have been merged entirely in that of the Circuit court. Such no doubt would have been the case had not questions of economy of administra- tion entered into consideration. It was not thought best to detain the whole Circuit court, the juries, the prosecutor, and especially the president judge on such tedious business. The business was largely formal, consisting in making reports in a routine way. Rarely was a lawyer necessary in the practice.
If court was not in session, the clerk of the Circuit court took proof of last wills and testaments and granted letters of administration and letters testamentary. However, if these letters proved unsatisfactory to the judges when they met, they could be repealed and other letters issued in open court. Executors, guardians, trustees and others entrusted with prop- erty belonging to orphans, were completely under the power of the associate judges. The latter could demand reports, inventories, exhibits or accounts at any time they chose, pro- viding a reasonable time were given. This latter proceeding was common where an executrix was about to get married or .when there were indications that an executor was becoming insolvent.
Executors and guardians were directed in loaning out trust money. No such loan must have been for a longer time than one year. Minors and orphans, when of sufficient age, were MINOR COURTS AND PRACTICE, 1816-52 125
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permitted to choose their own guardians. The latter, by and with the advice of the judges, could apprentice the orphans for service.
In appointing guardians the judges had to respect the wishes of the orphans concerning religious preference and no judge had power to appoint to guardianship or apprentice- ship contrary to the will of the children involved. If the children were too small, or professed no preference, then the guardian must be of the same religious faith as the parents at the time of the death. The long law of forty-five sections covers all phases of the practice, giving specific directions for the sale of property, or part of it, to pay debts. Nuncupative wills were not allowed to control property worth more than eighty dollars, unless attested by two witnesses, who were present at the making of it, or unless it were made during the last illness of the testator and in his own home, unless such person were taken suddenly sick away from home. Appeals in all cases of probate lay to the Circuit court. If either or both associate judges were interested in the matter, then the estate had to be settled by the Circuit court. By an act of December 31, 1818, the widow received one-half the property if there were no children and one-third if there were.
By the law of February 11, 1825, the associate judges were constituted a Probate court independent entirely of the Circuit court. They were given full power to hear and determine all matters connected with the settlement of decedents' estates, except where the title to real estate was brought into question. This court sat at the seat of justice for the county on the Monday preceding the regular terms of the Circuit courts. Appeals lay to the Circuit court as under the former law.
The Legislature from time to time assigned new duties to this court, enlarging its jurisdiction and increasing its im- portance until 1829, when it was again reorganized. By this act-January 23, 1829-the last connection between the Pro- bate and the Circuit courts was broken. Instead of the two associate judges holding it, there was elected a probate judge for each county. His term of office was seven years. He had to have a certificate from either a president or supreme judge to the effect that he was qualified for the office before he could
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MINOR COURTS AND PRACTICE, 1816-52
be commissioned by the governor. It was constituted an inde- pendent court of record under the style "the Probate court" of the given county.
This court had original and exclusive jurisdiction in all matters relating to the probate of wills, granting letters of administration or testamentary and the settling of decedents' estates, the protection of minors, lunatics, idiots, and the con- trol of all guardian trusts.
The county sheriff and circuit clerk were made officers ex-officio of the new court. A complete docket was kept, the same as in the Circuit court, and the sheriff attended all of its sittings. In the settlement of estates, bills could be filed just as in chancery and plenary proceedings had, by following the regular chancery rules. When such bill or petition was denied, trial proceeded much as in the Circuit court. The court directed an issue of facts to be made up and the sheriff was ordered to summon the traverse jury of the last Circuit court. The case was tried and final judgment rendered. The judge had full chancery powers in compelling answers, making up issues, and punishing contempts, while the lawyers had the same rights of challenge as if it were a proceeding in the Cir- cuit court.
The sixty-three sections of the law provide for all probable conditions and complications of administration. Creditors of the decedent were to be paid in the following order: funeral expenses, expenses of last sickness, officers' fees, judgments and debts of record, debts evidenced by written instruments, and open accounts. Widows were given one-third of the chat- tels of the deceased husband if the property was not necessary in the payment of the debts, and she was entitled to one hun- dred dollars if the estate was completely insolvent. Seven years were allowed in which to contest a will.
The sessions of the court were fixed for the first Mondays in January, March, May, July, September and November. Each term was to last three days. The judge was not debarred by his office from practice in any other than the Probate court. He received three dollars a day out of the state treasury for time actually spent on the bench. Appeals lay from this court direct to the Supreme court, but not to the Circuit court. It
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was specially arranged that sittings of the Probate court should not conflict with those of the Circuit court or of the county board.
While the court was in vacation the clerk took proofs of wills and issued letters subject to the approval of the judge at the next term. If the probate judge were interested in any case, it was transferred to the Circuit court for action.
The General Assembly of 1831 reduced the number of ses- sions of the Probate court to four, February, May, August and November, but lengthened the session to six days. The same act gave the court full power to deal with titles to real estate involved in any case brought before it, regardless of whether the real estate was in the same county or not.
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