USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 20
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The dependence of our early practice on the Common Law is well set forth by the following report by Stephen C. Stev- ens, from the Legislative Judiciary committee, to whom was referred a resolution of the House in 1827 [House Journal, 1827, pp. 414-417] :
The committee on the judiciary, to whom was committed a resolution of this House, directing an inquiry into the expediency of reducing so much of the common law, including the British statutes, as are now in force in this state, together with the decisions of the chancery courts, to a written text. under proper heads and divisions, have had that subject under their consideration and now ask leave respectfully to report :
That they consider the subject embraced by that resolution, a matter of more than ordinary importance, and that it requires much more grave and deliberate consideration than this committee has bestowed upon it. Codification, and the expediency and practicability of having written codes of laws for the government of mankind. have employed the attention of the ablest jurists and civilians of the present age; and all agree, that it is not only expedient, but entirely practicable. Napoleon, with the assistance of the jurists and civilians of France. succeeded in establishing a written code for the government of the French empire: the people of the state of Louisiana, with the assistance of their Livingston, have reduced their laws to a written code; and the committee cannot see why the state of Indiana, or any other nation of people, cannot reduce their laws to a written text also.
When the state of Indiana adopted her Constitution, and commenced a state government, she had no written laws prepared for the government
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of her people. To prepare and adopt such a code required much labor, deliberation, expense and time : hence the people wisely adopted the com- mon law of England, and all the British statutes in aid thereof, passed prior to the fourth year of James I. inasmuch as they had no other rule of civil conduct prepared. Those adopted laws, although they furnish the whole rule of our civil conduct, are neither visible nor tangible to the main body of the people. They are only to be found in digested elementary law books, or in the first volume of numberless reports of judicial deci- sions, many of which decisions are contradictory, others obsolete, and others almost buried in the heterogeneous mass of feudal jargon, non- sense and tyranny with which they are intermingled and entwined. The common law of England is a metaphysical essence, which originally con- sisted of certain feudal traditional customs, but which has, by the force of events, been extended and identified with the government of the country of England; which regulates the prerogative of the king, the rights of the subject, and is considered as the source of various jurisdictions, which makes part of all the civil and political institutions and is connected with everything that relates to the government of the nation. On the first settlement and formation of the American colonies, the founders brought with them the common law, which every Englishman regards as his birth- right; but each colony judged for itself what parts of it were fitted to its new situation, and, either by legislative provisions, or by judicial deci- sions, or usage and practice, adopted certain parts and rejected others, so that in no state of the Union is the whole of it received; some have adopted what others have rejected. Under this diversity of common law, the most that can be said is, that it is the law of each state on any matter where it has not been derogated from; but the common law of one state is not the common law of another, in all things, much less of the United States.
The American Revolution has furnished decisive arguments to those who are opposed to the common law of England, in its unwritten form. It has made written constitutions the basis of government and legislation, and the constituted authorities have to look to their constitutions and their legislative acts for the foundation and measure of their powers. This much having been consummated, why stop the progress of civil juris- prudence and improvement? Why not root out all the vain forms and unmeaning phrases of the ancient feudal system? Why not abolish the inextricable labyrinth of the English practice, and render justice plain and accessible to all? Why not at once realize the desired object, by reduc- ing the whole body of the laws to a written text, so that every man may see, read and judge for himself, without having to recur to the antiquated decisions of English judges. It is indeed something astonishing that the American people should submit so long to be governed by such strange usages, transmitted by vague and uncertain tradition, from age to age, without any other authority than judicial decisions. This prodigy may be accounted for in England, by the concentration of all judicial authority
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at Westminster, in the persons of twelve judges, who meet and confer on all doubtful cases, and so preserve that uniformity essential to their juris- prudence. But in the United States of North America no such uniformity can be preserved : there are already twenty-four superior, and an almost infinite number of inferior, tribunals, over which there is no confederated head, having power to enforce and preserve uniformity.
The divergence of the state courts must soon become extreme, unless 1 they cease to rely upon these blind traditions. The common ... w may con- tinue to find favor with the English, as a tradition of national antiquities, notwithstanding its shocking defects and extravagances. Time has, in that country, affixed its seal to these inconsistencies, and has interwoven an unnatural alliance between them and the manners and customs of the people. The heterogeneous elements are so intermixed that it is supposed impossible to reform any part without tearing up by the roots the ancient liberties of England; but the Americans have no such motives for up- holding this superstition. They can have better security for their civil and political rights than obscure traditions beyond the seas. It is by written and unequivocating constitutions, and codes of laws, they will protect that liberty which, in defiance of those traditional doctrines, they had the courage to achieve. Americans ought to establish a legislation in the true spirit of their fundamental compact: they have all the ele- ments in their own possession. This would be more worthy of them than the seeking for the rules of their judicial decisions in the judgments of foreign tribunals.
It is said by many, that to digest or codify the principles of law, so far as they have been determined, will save no labor to the man searching for a rule of civil conduct : that cases would still have to be resorted to, to ascertain the shades of difference in those that have been decided, from those that would arise afresh. Mere general principles, so plain as to be at once acknowledged, would be too loose for practical purposes. To this it may be replied, that reported cases may all be reduced to two classes: First, those which serve as the basis of general principles; second, those which contain circumstances of limitation, enlargement or variation, that render the application of general principles difficult. or that compel them to be modified when applied to cases before court. Under these two heads, all cases whatever may be classed. Now it is manifest that a written code would save all the first class and would render useless a great part of the second class. And if everything that is wished for cannot be done. ought we therefore to abandon all improvements in despair, and no nothing?
A digested code of plain, undeniable, legal principles, founded on the morality of common sense, applied to every-day transactions, might render the whole community wiser, better, more prudent, more cautious and less litigious. Men would better be able to judge when they ought and when they ought not to go to law; they would be better jurors, better arbitrators. wiser and better citizens.
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The committee, without attempting to discuss the real merits of the inquiry, have sketched this hasty and undigested report-hoping thereby to elicit further discussion of those points by the people generally, or by some future legislative body.
With these remarks, the committee ask to be discharged from any further consideration of the subject.
House Journal 1827, pp. 414-417.
The subject-matter of law suits, both the "res" and the "res gestae," have greatly changed in the course of the last hundred years. One of the commonest suits in the old courts up to about 1830 was the trial of a writ of ad quod damnum. The purpose of this suit was to condemn land along the side of a waterway for a mill- or dam-site. . The writ directed the sheriff to impanel a jury of twelve men to go and view the site and, if conditions were favorable for the improvement, condemn one acre on the opposite side of the stream from the mill and abutting the dam. It was also their duty to appraise this dam-site and estimate the probable damage that would be done by building a mill-dam. They must see to it that naviga- tion was not obstructed and that fish were not prevented from passing back and forth.
The jury sealed its findings and transmitted them to the Circuit court. If the court found that the "mansion house" of any landowner would be flooded, it should not allow the writ. It was also necessary to prove to the court that the mill when built would be of public utility. It must also be shown that the pond above the dam would not endanger the health of the community. If all things were favorable, the person seeking the writ paid the damages and secured title to the acre. However, if he did not begin to build within one year and complete it within three years the land forfeited to the original owner. These points gave occasion for great ar- guments between the lawyers.
Another common action in the early days was for trespass. Nothing would exasperate a farmer so much as to have his crops damaged or perhaps destroyed by a neighbor's cattle. One of the common traditions of the folks who came from the southeast, the Carolinas and Kentucky, was that the uninclosed land formed a public pasture. They resisted long and success- fully any attempt at what they called the "stock law," whereby
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they would be compelled to fence their own stock in rather than their neighbors' stock out. In place of a "stock law" they had a "fence law". It seems at this distant day that it would be impossible to frame a law more pregnant with possi- bilities for lawsuits than the old "fence law." The law of 1818 is worth quoting: "All fields kept for enclosures shall be well enclosed with a fence composed of sufficient posts and rails, posts and palings, palisadoes or rails alone, laid up in the man- ner which is commonly called a worm fence; which posts shall be deep set and strongly fastened in the earth, and all fences composed of posts and railings, posts and palings, or palisa- does, shall be at least five feet in height; and all fences which are composed of rails in a manner which is commonly denomi- nated a worm fence, shall be at least five feet six inches in height, the uppermost rail in each and every panel thereof supported by strong stakes strongly set and fastened in the earth so as to compose what is commonly called a staking and ridering, otherwise the uppermost rail in each and every panel shall be braced with two strong rails, poles, or stakes, locking each corner or angle thereof ; and in all the foregoing materials, the apertures between the rails, palings, or pali- sadoes within two feet of the surface of the earth, shall not be more than four inches, and from the distance of two feet from the surface of the earth the apertures between such rails, palings and palisadoes shall not be more than six inches, and that in all worm fences staked and ridered the worm shall be at least four feet six inches and if locked as aforesaid, the worm shall be at least five feet." The above were the specifications for a lawful fence. The attorney who failed to prove the above could hardly hope for damages in a suit.
To render this proof at least possible, the commissioners were directed to appoint two viewers who visited the fence in question and reported under oath to the court whether the fence was lawful or not. It does not seem beyond the truth to say that these trespass suits were the most bitter legal con- tests had in the early years. Lawyers were employed and costs incurred out of all proportion to the damages sought. The man who lost in one of these neighborhood feuds, for they usually resulted in' such, was disgraced. Numerous instances
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have come down in which both parties to the suit were broken up. Neighbors have been estranged for life and in many cases brothers, or more often brothers-in-law, have been made life- long enemies.
Another class of suits closely akin to the above was the replevin. All stock ran at large. Each farmer had his registered stock mark, which usually consisted of some kind of slashes of the animals' ears. One man might merely have a "crop" off each ear, another a "crop" off one and a "split" in the other, a "crop" and "split" in the right and a "hole" in the left, a "swallow fork" in the right and an "underbit" in the left, and so on, ad infinitum.
The writer has seen hundreds of head of stock marked in this manner. Suckling pigs. and calves were not supposed to be marked until they became "weanlings." As might be inferred, at the weaning period was the proper time to steal stock. Many owners neglected to mark their stock at the proper time. The natural result of all these customs was endless petty litigation, much of which, originating in the Justices' courts, was carried to the Circuit and Supreme courts. As in the case of the trespass suits, the real founda- tion of the litigation, the fuel that fed the flame, was the animus between the parties rather than the property at stake. It was great fun for the younger attorneys to get in a case of this kind, bring out all the folks in the neighborhood as wit- nesses and, after the evidence was in, to argue a day or two before the jury for the benefit of the parties and their friends who crowded in to hear the lawyers "roast" the parties, the witnesses and one another.
A third class of cases, which takes us over into the Crim- inal court, arose from the violence common to the frontier. Fighting was common and every man had to sustain his reputation for physical courage. The ordinary man never thought of going to court. He fought it out, shook hands with his opponent, and all was over. But in most every neighborhood there lived some "colonel," who tried to sustain an undeserved reputation for bravery by the aid of the courts. Provoke and slander suits were his main reliance. These
منالشاب سعد
Selleredith
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suits also offered the lawyers great opportunities for argu- ments, especially in establishing character or the opposite.
Yet another class of petty criminal suits occupied a great deal of time in the Circuit courts. The courts, through their clerks, licensed dealers in liquor and merchandise. Liquor was widely used and quite as widely sold. The offense of selling without a license, which cost from five dollars to twenty-five dollars at the discretion of the county board, usually drew a small fine. The cases were not contested as the preceding and the lawyers rarely appeared. The cases are important merely because of their frequency.
These suits were all petty, however, when compared with the trials of the three great criminals of the early days-the murderer, the horse-thief and the counterfeiter. While the litigants in the former cases were in deadly earnest, the at- torneys and Judges usually regarded them with less serious- ness. On the other hand, there was solemnity on the counten- ance of every one at a murder trial. The Judges and attorneys were especially circumspect lest justice be not done. The rules of law were applied with the utmost nicety by the Judge. The lawyers were alert that no opportunity pass by which they might profit. The jury was drawn with utmost care. The lawyers usually divided the work and the one who was to make the final appeal studied the jury narrowly throughout the trial for any evidence of sentiment, passion, prejudice, or interest. As a result of these passionate pleas, the juries frequently rode down both law and evidence in their verdicts. An experienced advocate was well nigh irresistible before a backwoods jury. Such efforts reached their height in capital cases. There are a number of cases on record in which the accused was hanged, when from the evidence it seems a jury of today would at most have imposed a light term of servitude.
Taken by and large, the practice was not such as a lawyer of today would enjoy. The travel from county seat to county seat was exhausting, the accommodations at the county seats were meager, the practice at the bar was full of humiliating tricks and surprises, the pay was small and often made in other forms than cash. Defeat was oftener attributed to the
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lawyer than to the lack of evidence or to the weakness of the case.
The following are the famous rules of the Circuit court drawn up by Miles C. Eggleston. They were followed largely not only throughout Indiana, but in many other states of the northwest :
RULES OF THE CIRCUIT COURT OF SWITZERLAND COUNTY.
(Adopted February 11, 1823.)
These rules are recorded in Order Book (February, 1823; April, 1825) of the Switzerland County Circuit Court, pp 2-4:
1. On the first day of each session, the court will meet at eleven o'clock in the forenoon, and on each succeeding day at nine o'clock in the morning unless the press of business, or other peculiar circumstances, should induce a temporary alteration.
2. At the meeting of the court on each day all the officers, jurors, witnesses and suitors will be expected to be present and ready to perform their several duties when called upon. And it shall be the duty of the sheriff on each meeting of the court to call all the attorneys attending the same audibly at the door.
3. The minutes of the preceding day must be read every morning by the clerk before any business is taken up. The attorneys concerned are requested to attend and see that the entries are correctly made by the clerk.
4. All motions must be made as soon as the minutes are read and signed on each day of the term and only one attorney on each side will be allowed to argue motion unless the court under particular circum- stances should wish to hear others.
5. In all cases the attorneys holding the affirmative shall have the opening and closing of the case.
6. In making motions the attorney prosecuting the pleas of the state shall be entitled to precedence and the rest shall be heard in the order they qualified in court, but no gentleman shall make more than one motion at a time.
7. Whatever the parties by counsel agree to do in any case pending they may direct the clerk to enter accordingly without troubling the court, and where a suit is dismissed, each party to pay his own or part of the costs, orders will be entered requiring them to be paid by the first day of the next term, which if not done, provided a copy of each order be served as other process twenty days before the first day of the next term, an attachment may issue to compel a compliance with the order.
8. The cases on the court docket will be called and tried in the order they stand unless for good cause shown a case may be passed over or continued or taken up as a delay case.
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9. No judgment will be rendered until the jury fees are paid as required by the statute and if not paid before the adjournment of the court at the term at which the verdict may be found an order will be made and enforced as mentioned in the seventh rule of this court.
10. In chancery cases counsel will be required to furnish the court with an epitome of each case, the points and authorities they rely on with references to the evidence in support of the several points material to be examined and will also be required to write the decrees and submit them to the court for approval or correction.
11. When matters of accounts are referred to a master in chancery all exceptions to his report must be made at the time and entered with him in writing before they will be noticed by the court.
12. When leave is asked to plead it will be granted on the terms of filing an issuable plea, which application must be supported by an affidavit of merits or on the word of the attorney that in his opinion his client has a good legal defense for which he will be considered in good faith as pledging his honor to the court.
13. When parties or witnesses are directed to be called, the sheriff will call them once in the house and if they do not answer he, his deputy or a constable, will call them three times at the door without delay.
14. Where one attorney is addressing the court or jury the opposing counsel must be silent. In addressing the court the attorney will rise on his feet in his place and when he has conducted his address he will immediately resume his seat and remain silent until his opponent has closed his remarks. And when one attorney is speaking the rest must keep their seats.
15. No loud private talking will be allowed in court. The sheriff and constables are to see that this rule is obeyed.
16. In civil cases no attorney will be allowed to read law to the jury without the consent of the court first asked and obtained.
17. When the court is in consultation or delivering an opinion the gentlemen of the bar must keep silent.
18. While one attorney is examining a witness the opposing counsel will not be allowed to interrupt him by cross examining the witness, but will wait till he is told that the examination of the witness in chief is ended.
19. No gentleman of the bar or other person will be allowed to lie down in the court house during the sessions of the court.
20. All the officers of the court must be and remain in their proper places in the court during the time of their attendance.
CHAPTER VII.
INCIDENTS AND ANECDOTES OF LAWYERS AND LAW PRACTICE.
Before passing to another part of this work, some inci- dents of the period will be recounted in the hope that they will, to some extent at least, recall the life led by the attor- neys of that day. These have been culled from a variety of sources, including court records, reminiscences by old law- yers, county histories and the newspapers of the times.
O. H. Smith relates the following story of a slander suit in which he was the plaintiff's attorney. It took place in Rush county, Indiana. He and George G. Dunn, of Lawrenceburg, were on their way home and stopped for the night at a small tavern near Blue river west of Rushville. As soon as the tavern keeper had put up their horses and made the lawyers comfortable by the log fire, he inquired rather anxiously if either of them was a lawyer. "Both," responded Smith with a young attorney's eager interest in a possible case. The tavern keeper then informed them that his neighbor tavern keeper down the road had basely slandered him in an attempt, as he took it, to ruin his hostelry. In answer to questions, the tavern keeper went on to say that his fellow had said that the speaker fed all his travelers on stolen pork. "Perhaps he was only in fun," suggested Mr. Dunn, the older lawyer. "No," was the assuring answer, "it was all done to get the custom down to his tavern." Smith was already examining the dog-eared pages of his "Espinasse's Nisi Prius" and his "Peak's Evidence." Dunn went on to ask if the landlord had ever killed anybody's hogs by accident or under circumstances that could give rise to suspicion. "Never," asserted the would- be litigant, "I never killed a hog in the woods in my life, and besides I can prove my character from a boy by Captain Bracken." Smith agreed to take the case for twenty dollars and one-half the damages. Court came on and the case was
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called in order. "A rule for a plea," demanded Smith. "Plead instanter," answered James Rariden for the defendant. The answer, much to the surprise of Mr. Smith, was justification and a charge that the plaintiff had stolen two hogs. "It is all a lie," said the plaintiff. The first witness was a girl who had formerly worked for the plaintiff. Her testimony was that the plaintiff had, on a day named, killed two hogs in the woods, skinned them, cut off feet and head and brought them home before daylight on a sled; and had bragged that he could kill enough for his winter's meat. "What do you say to that?" asked Smith of his client. "Ask her what I said." "He said as how he had cut off the legs and head nobody could tell but what they wuz deer." The client seemed entirely satisfied with this. "Now," said he, "call Captain Bracken and he will give my character." In answer, the Captain said, "I have known him from a boy." "What is his character?" "Well, he always dealt fair enough with me." "You never heard anything against him for honesty?" "Well, I can't exactly say that; he stole a fine hog from me that I had killed and hung up in my smokehouse; I tracked him and found the hog next morning at his house and he paid me for it." The oppos- ing attorneys received this, the last of the evidence, with a boisterous laugh. After the court had instructed the jurors that the evidence must be strong enough before they could find for the defendant, that if the plaintiff were on trial they would send him to the penitentiary, the jurors went upstairs and wrestled with the case all night. About daylight they hit upon a solution and returned a verdict of one cent and costs for the plaintiff. They had understood from the court's instructions that if they found for the defendant the plaintiff would have to go to the penitentiary, hence the strange verdict and the long consultation.
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