USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 22
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Judge Wick has left the following story. He was coming from Columbus to Franklin on the Berry trace. It was Sep- tember and he was coming on ahead of the lawyers to open court at Franklin. Night and a drizzling rain overtook him on the banks of Burkhart creek. William Burkhart's cabin was the last till he reached Franklin. The way from Burk- hart's on was a "blind trail," the merest bridle path through the swampy forest. He called at the cabin and was informed by Burkhart that his wife was gone and that he had nothing for his horse except pumpkins or for himself but venison. However, he received a hearty invitation to stay and enjoy such accommodations as were available. The judge says he stayed, dried his clothing and spent a most pleasant and com- fortable night with the pioneer.
The lawyers were not lacking for amusement to while away the long rides over the dreary roads or the still longer evenings at the crowded hostelries. `While the horses were jogging along in the mud, the men made stump speeches, held debates, moot court, preached sermons, or told stories. Many of them earned lasting reputations. Harvey Gregg, who had been educated for theology, was able, according to tradition, to preach an acceptable sermon from every sec- tarian standpoint then known in the West. He excelled in imitating Baptists and campmeeting Methodists, though it is said he could successfully imitate any preacher he had ever heard.
On one occasion this same Harvey Gregg, in company with Judge Wick and Philip Sweetzer, was traveling the trace from Columbus to Franklin. They left Columbus late in the afternoon and made slow progress along the muddy roads. Near where the village of Amity stands a 'possum was dis- covered in the highway. One of the lawyers gave chase, cap- tured, and returned "Brer Possum" to the middle of the road. While the horses rested, he was placed on trial for "trespass- ing on the public highway." Wick presided, Gregg prosecuted, and Sweetzer defended. After long arguments to an imag- inary jury, the judge announced a finding for malicious tres- pass and pronounced verdict for thirty-nine lashes. After
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an hour of amusement, the lawyers continued their journey, arriving at Franklin about daylight.
One autumn in the forties Judge Wick, Calvin Fletcher and Hiram Brown started from Indianapolis to Franklin to hold court. At Greenwood, while they stopped for refresh- ments, Brown engaged in some business and was left behind, following, however, an hour later. Brown himself was an insatiable joker and Fletcher was even more notorious. A few miles out of Greenwood, Wick and Fletcher met a man. They described Brown carefully and requested the stranger to tell him that he need come no further, as the tarbucket had been found. A few miles further on they met a second, and still further on, a third, a fourth and so on till they got to Franklin. To each one they described Brown and made the same earnest request. Brown heard the first two or three travelers with some patience, but long before he arrived at Franklin he was furious. Fletcher managed to avoid him till the following morning, when he was so far subsided that he did not want to fight, but took out his vengeance in a tongue lashing which all enjoyed-none more than Fletcher.
Not only on the trail, but also at the tavern, was there ample evidence of the good humor of the old-time lawyers. We are told that Lincoln was a leader in the good-natured banter of those times and places. They took the world as it came, usually meeting the hardships with a smile and the pleasant things with hearty appreciation. There is no use trying to disguise the fact that some of this by-play was not consonant with the highest morality; but it seems to be true that the great majority of first-class lawyers and judges were men of unquestioned personal morality as well as integrity. On some of the circuits there was considerable gambling and drinking. These were the only excesses worth noting indulged in by the lawyers. On some circuits it was the regular thing to gather in the judge's room after supper and play cards, usually merely for "snorts and smells." The games were gen- erally "seven-up" and "euchre" and the parties winning took a "snort" out of the bottle and the losers merely "smelt". It must always be kept in mind that a strong man, such as those who rode the circuit, during a day's ride and at the tavern
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at night might drink a quart of corn whiskey and not get "drunk", not even enough to have a headache next morning. The gambling on the Indiana circuits was never such as we read about at this time in the South, especially in the Blue Grass country of Kentucky. There can be no question that such judges as Embree, Huntington, Eggleston, Sample, Por- ter and their class stood for high personal as well as public morality ; such lawyers as Marshall, Whitcomb, Smith, Niles, Law, and their class were not criminal in their habits; yet, as said above, they often indulged in amusements at the tav- erns that would hardly be in order at present.
Simon Yandes tells of an incident in a Boone county tav- ern when that county was young. The tavern was full, twice full. It was decided to use the beds in relays. The farmers who wanted to be on the road early went to bed early and were to vacate at two o'clock next morning for the lawyers. During the first few hours the lawyers were quite busy talk- ing with their clients and of their cases in court, but by mid- night time was hanging heavy. It was decided then that Daniel Wick, brother of the judge and the son of a Presby- terian minister, should preach a sermon from the text "God Made Great Whales". It was the boast of every lawyer that he could make a good address on any subject. Lawyer Wick accordingly settled down in a two-hour sermon to show that while God did make a few whales, every man supposed that he was one of them. He used the men present as examples and ended up by showing that even the hotel keeper, a little scrawny man named Fish, had concluded that he was a whale himself when in reality he was a very small "Fish". Mr. Yandes said no one got sleepy while the sermon continued.
Nobody was spared and no one was made a butt in their good-natured banter. Mr. Yandes is authority for a joke played on James Rariden in his palmy days. The lawyers were gathered around the big log fire in a double log tavern. Rariden came in late. While at supper it was agreed all around that no one was to notice his repartee, in which he had scarcely a competitor. And it may be added no one was more universally liked. There were perhaps half a dozen lawyers and three times as many of their local friends who
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always dropped in to hear the news. In due time Rariden returned and began his usual line of remarks, urged on espe- cially by David Kilgore and Charles Test. The lawyers and others paid no attenton to the sallies of Rariden, but ap- plauded every crack at him. He stood it a while, but at last became crabbed, jumped up, pronounced all of them a pack of fools and went off to bed. Next morning he was let in on the joke.
About this time a party of Fifth circuit lawyers put up with Capt. John Berry at Andersontown. Among them was James Whitcomb, first Democratic governor of Indiana. Whitcomb was from the East and somewhat scrupulous about his clothing and personal neatness. He shaved every morn- ing, and usually put on a clean shirt every morning. What was infinitely more, he slept in a night shirt. Captain Berry was very proud of his hostelry and resented any criticism or even aspersions. Calvin Fletcher, always on the alert for fun, saw great possibilities of fun in the situation. He told Captain Berry, strictly aside, that Mr. Whitcomb had inti- mated that he had to bring along a dirty shirt to sleep in while staying with the Captain so that his clothes would not be soiled. Mr. Fletcher said he had only heard this and did not believe it was so, but that the Captain could easily tell by observing Mr. Whitcomb that night, when he retired. Accord- ingly the Captain took his place at the keyhole at the proper time, and went into a rage when he saw the future governor dig a night shirt out of his saddlebags and proceed to put it on. The Captain sprang into the room, seized Whitcomb, threw him on the bed, and was only prevented from doing him physical harm by the perpetrators of the joke rushing in. Explanations followed between Whitcomb and Berry and the peace was soon re-established. Long after, Fletcher told Whitcomb the cause of the mysterious fury of the host.
On another occasion, in 1823, Whitcomb and O. H. Smith set out from Indianapolis for the Whitewater, the former on his way to Ohio and the latter on his way home. Night over- took them in Henry county and they drew up after dark at a little cabin where a pioneer named Amos Dille lived, near the present site of Knightstown. Dille was playing on a fiddle
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and when he came out laid it on the bed. The host took the horses, and the guests sat down by the fire, removed their muddy boots, and made themselves comfortable. Whitcomb was an excellent performer on the violin. As soon as he had adjusted himself to the place he picked up the violin, put it in proper tune and when Dille returned was playing such music as had never been heard in that cabin before. Dille sat enraptured as Whitcomb played tune after tune. At last when Whitcomb ceased he sprang up and cried, "If I had fifty dollars I would give it all for that fiddle. I never heard such music as that before." Whitcomb laid it back on the bed, from which Dille picked it up, carefully carried it to the fire turned it over and over, eyeing it carefully. Finally he ob- served, "Mister, I never saw two fiddles so much alike as yours and mine."
As stated before, there was usually more or less jealousy or distrust of the better lawyers by the Justices and Associate Judges. This occasionally cropped out in trials, to the merri- ment or disgust of the lawyers. A case has been already in- stanced in which Dewey and Moore were arguing a demurrer. Judge John Morris relates another which took place in Auburn in 1844, soon after that town had been founded. It consisted at the time of perhaps a dozen log houses. Judge Borden had held Circuit court and disposed of the main cases on the docket. It being necessary for him to leave, he entrusted the trial of a slander case to the lawyers of the circuit. Ex- Governor Bigger, David H. Colerick, William H. Combs, Rob- ert Brackenridge, of Fort Wayne, John B. Howe, of Lima, the early county seat of Lagrange county, Robert L. Douglass, of Angola, and Morris, of Auburn, all took part in the case or remained at least to hear the trial. The case was simple. The plaintiff proved the exact spoken words, which consisted of accusing the plaintiff of stealing a calf, and rested. The de- fense also rested. Howe addressed the jury briefly, stating the measure of damages. Colerick spoke for the defense, explaining in general terms what character consisted of and that it was impossible for real character to be injured by the mere remarks of anyone, if the person himself really had any character. He made a very graceful plea. Combs fol-
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lowed, confining himself to the proposition that a real man never would go into court to vindicate his character, a propo- sition that was particularly truthful along the frontier. Howe closed briefly, handing the judge a charge almost peremptory, which he read to the jury. The jury was only out a few minutes and returned a verdict for the defendant. Howe was furious and demanded that the verdict be set aside instanter. Colerick, in his cool, deliberate manner, observed that Howe was ordinarily a far more honest man, and that he was pain- fully surprised when he saw him thus attempting to override the constitution. "I hold in my hand," he said, "a copy of the constitution, which guarantees to every man a jury trial. You can imagine my surprise when I heard Mr. Howe ask this court to lay its ruthless hand on the constitution and attempt to trample the sacred instrument beneath their feet. If Mr. Howe had known this court as I know it, especially if he knew one of its judges as I know him, he could not have commanded the audacity to make this motion. The consti- tution of Indiana says the right of trial by jury shall forever remain inviolate. Will you respect the constitution or will you trample it in the dust? You will preserve it!" "May it please your honor-" shouted Howe. "Sit down, Mr. Howe," shouted Judge Walden. "But-" said Mr. Howe. "Sit down, I tell you, we will not hear you, we can not and will not." Mr. Howe, thoroughly crestfallen, bowed contemptuously and put on his hat as he started for the door. As he reached the door the judge, in a voice that could be heard throughout the vil- lage, thus admonished him: "The court advises you to go home and read Henry Clay on the Constitution." The judge was a great admirer of the Kentucky statesman and Attorney Colerick, knowing this, had ingeniously taken advantage of it.
Mention has been made of the hardships of the circuit. The following reminiscent sketch of himself by Judge Wick, in 1848, will help to fill in the picture. He was the first judge in the New Purchase and none knew court life better than he. "At the present writing Mr. Wick is fifty-two years of age, fair, a little fat, having increased from one hundred and forty- six pounds in 1833 to two hundred and ten pounds-six feet and one inch high, good complexion, portly-has been called
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the best looking man about town-but that was ten years ago -not to be sneezed at now-a little gray-has had chills and fever, bilious attacks and dyspepsia enough to kill a dozen common men, and has passed through misfortunes enough to humble a score of ordinary specimens of human nature. He acquired a good deal of miscellaneous knowledge, loves fun, looks serious, rises early, works much, and has a decided penchant for light diet, humor, reading, business, the drama, a fine horse, his gun, and the woods. Wick owes nothing, and were he to die today, his estate would inventory eight hundred dollars or nine hundred dollars. He saves nothing of his per diem or mileage and yet has no vices to run away with his money. He 'takes no thought of tomorrow,' but relies on the good Providence to whom he is debtor for all. Wick would advise young men to fear and trust God, to cheat rogues and deceive intriguers by being perfectly honest (this mode misleads such cattle effectually), to touch the glass lightly, to eschew security and debt, tobacco, hypocrisy and federal- ism, to rather believe and fall in with new philosophical and moral humbugs and to love woman too well to injure her. They will thus be happy now and will secure serenity at fifty- two years of age and thence onward."
W. P. Fishback relates the following story of the same judge. An old case at equity had stood on the docket for several years, to the great annoyance of the presiding Judge, who dreaded to tackle it. Counsel persuaded the latter to appoint Mr. Wick a special Judge on the case. The tedious argument consumed a whole day. The following morning Judge Wick appeared with the bulky papers in the case neatly tied up in the proverbial tape. Calling the attorneys up, he proceeded as follows: "Well, gentlemen, this case has both- ered me a good deal. I went home last night and sat by the fire an hour or two and thought it all over, but couldn't make up my mind. I then went across the street to Henry's bowl- ing alley and after a glass of beer rolled a game of nine pins, and went home and went to bed. After a good night's sleep my mind cleared up and I think now I understand this case- at any rate, I will give you the best guess I can on it."
The same Judge, with his retinue of lawyers, was on his
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way from Greensburg to Shelbyville in the early twenties. No road had yet been cut between the places. They had started from Greensburg after breakfast and had traveled hard all day by the bridle path through the woods, a drizzling rain falling throughout the day. At the forks of the path, one leading to Shelbyville and one to Brookville, the Judge, who was leading the cavalcade, drew rein before a little cottage. Upon the gatepost hung a rough board with the single word, "Whiskey," written on it with chalk. A loud halloo by the Judge brought the woman of the cabin to the door. "Have you got any whiskey?" asked the Judge. "Plenty of it; but we can't sell it by the small. Do you want a gallon?" "A gallon. I don't want a gallon. Bring me a tincup full and some sugar." "Can't do it. We'd be prosecuted." "Fetch it out," ordered the Judge. "I am presiding Judge of this dis- trict and here is the prosecutor, who can quash any indict- ment that can be written in this neighborhood." The old lady brought out the liquor and the sugar, the tanks were all filled and the party headed for Shelbyville.
But there were solemn occasions as well as merry on the circuit. Death from exposure and the hard life took a heavy toll from the ranks of the lawyers. The trials at law were not all of the amusing kind. The lawyer as well as the preacher and physician is accustomed to people in trouble. The anxiety of the client cannot help but reach to some extent the attor- ney. This is especially the case in prosecutions for felonies. No criminal is so poor but leaves some one in sorrow when he is taken to the prison or scaffold. If he has no friend his very loneliness itself appeals to the lawyers.
At the March (1820) term of the Dearborn Circuit court, there came up the famous Fuller case for trial. Judge Cotton, who was acquainted with all the parties, has left a long account of the case in poetry. Nearly all Hoosiers sixty years old have heard the old ballad of "Fuller and Warren". Both were highly respectable young men of good education and brilliant prospects. They were suitors of the same young woman. Warren was preferred, and Fuller, the elder of the men, seemed unable to reconcile himself to his loss. He procured pistols, sought out Warren, demanded that he take one of the
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pistols and defend himself. When Warren refused to do this, Fuller shot him dead. The case was called; the prisoner was in the box, dressed in black broadcloth with a white vest. Amos Lane and John Test, both congressmen, appeared for the state. Daniel J. Caswell, Charles Dewey, of Clark, Sam- uel Q. Richardson, John Lawrence and Merritt Craig, of Rip- ley, defended the prisoner. Nothing was left undone on either side that legal talent of the state could do. All the lawyers were of the dignified, sober, serious class. The judge, Miles C. Eggleston, was trained in Virginia and somewhat aristo- cratic, but firm, fair and kindly. The whole community was horrified by the murder and by the doom impending over the murderer. The powerful pleas of the attorneys ranged between the invective of the camp-meeting preacher, explaining the judgments of God, and the spirit-crushing funeral address. The instructions of the Judge fell like the pronouncements of a fatal oracle. The verdict of guilty followed. The day of execution was placed far enough in the future to give the Supreme court a chance to review the case. The sympathy of every one went to the convicted man. All looked to the Supreme court for relief, but none was given. Then all turned to the governor for a pardon. Everybody signed a petition. The governor refused to condone the crime. The guilty man was given every opportunity to break jail, but he made no effort. At last, in the presence of the whole community, the prisoner was executed. All felt that justice had been done, but all were sorry it had to be done.
In the early days of Fayette county there lived near Con- nersville a surgeon and physician of wide acquaintance. For some reason not disclosed by the record, he had incurred the ill will of several young men of the neighborhood. These youngsters, between the ages of sixteen and twenty, deter- mined to ride the doctor on a rail and then duck him. No serious harm was meditated by any of them. The doctor. however, was averse to the fun and provided himself with weapons of defense, among them a long dagger-like knife used in surgery. On the appointed night the boys approached, tried the door, found it locked, and lifted it from its hinges with a crow bar brought for the purpose. The doctor, a man
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of powerful build, sat coolly on the side of his bed in the dark room, knife in hand. As the first young man came in reach of him he stabbed him. The young man fell without a mur- mur. The second one was stabbed to the heart, but groaned sufficiently to warn the others, who succeeded in escaping. The trial came on. The doctor told a straightforward story, as bloody as the deed itself. The dead men, or rather boys, belonged to two of the best families in the county. The court- room was packed, but no one sympathized with the doctor. Gen. John T. McKinney, of Brookville, defended him in an able argument, but it seemed to make no impression on audi- ence or jury. The prosecutor painted the crime in all its dark hideousness. The jury as well as the audience seemed bent on a victim. The judge, however, laid down the law of self-defense in his charge to the jury, the jury promptly ac- quitted the prisoner and averted what threatened to be a legal murder. No greater praise can be given that community than to say that it quietly accepted the verdict of the court as just, though it had ardently hoped for a victim. In the first case the entire community sympathized with the guilty mur- derer, yet nevertheless it carried out the undoubted demands of justice. In the latter case the community was equally united against the accused, yet, in spite of this, he was given the right of every man and the verdict of an honest court respected. There are no more solemn moments in the history of a state than these when the popular passion is made by the people themselves to give way to their deeper respect for law and order. Such communities rarely have cause to be ashamed of themselves. In the building up of this sentiment, on which popular government must ultimately rest, if it finds a resting place, the courts and lawyers are and have been the chief instrument.
Every county has its traditions of murder trials which profoundly stirred the people. Though the passions on such occasions rise to tempestuous heights, they seldom last so long as the petty ranklings that survive a slander or trespass case. In the early twenties Hugh Monroe killed his neighbor at a shooting match. The circumstances were singular. The vic- tim was fixing his board preparatory to shooting; Monroe
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was lying down sighting his gun. It went off and the man with the board dropped dead. They had previously quarrelled, but no one could say whether or not the shooting was acci- dental. Young Monroe had but just come to the neighbor- hood from North Carolina. The grief-stricken father tried to hire a lawyer from Carolina, but could not and had to trust the defense to strangers. James Whitcomb was the prosecutor, opposed by Charles Test, James Rariden, James T. Brown and O. H. Smith. No better array of lawyers could have been picked for the case. The distress of the father engaged the sympathy of everyone, while the dogged silence of the defendant threw the sympathy to the deceased. No one who has not heard the artful jury lawyers speak can form any idea of the nerve-wracking ordeal to which the com- munity was exposed as it listened two whole days to the argu- ments of these attorneys. So eloquent was young Whitcomb that a verdict for sixteen years of servitude was rendered and the father was thankful that it was so light. Governor Ray soon pardoned him and he returned to his native state.
The following case is given more to show the character of some of the crimes of the time than to rehearse details of horror. Isaac Heller, a Pennsylvania Dutchman, lived about one mile from Liberty. On February 27, 1836, he killed his wife and three small children with an ax. The circumstances were most atrocious and bloodthirsty, not to say brutal. The murderer fled, was overtaken, captured without difficulty and coolly admitted his guilt, giving all the harrowing details. The trial came on at the March term of the Union Circuit court. Governor Samuel Bigger was the Judge. William J. Brown, later a congressman from the Fifth district, and James Perry represented the state, while Martin M. Ray and Sam- uel W. Parker, the former of Shelbyville and the latter of Connersville, later congressman from the Fourth and Fifth districts, defended.
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