USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 23
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The defense set up the plea of insanity but, although Parker, in relating the case years afterward, said it was as good as any address he ever made to a jury, and he was one of the best speakers in the state, the jury nor the people took any interest in the plea. It has generally been conceded among
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lawyers who have studied the case that Heller was unaccount- able. However, he was found guilty and hanged at Liberty, April 29, 1836. Time has changed the efficacy of the insanity plea in the criminal practice. A modern Judge and jury would doubtless have sent Heller to the insane asylum, much to the disgust of the community, while the old-time court and jury hung him and perhaps all afterward regretted it.
One more case, a civil case at the close of the period, must suffice for these illustrations. In the late forties a company was organized, composed mostly of Vincennes men, to improve the navigation of the Wabash below that city. Their inten- tion was to construct a dam and lock at the rapids. For this purpose the company entered into a contract with the Culbert- son Brothers, of Pennsylvania, to do the work. The contract was rather peculiar. The engineer was given power to declare the contract at an end if in his judgment the contractors were not pushing the work with due diligence. High water inter- ferred, sickness interrupted, carrying off one of the contractors and bringing the other down with fever. All the hands had ague and consequent fever so that work could hardly be prose- cuted. At the insistence of the president and directors of the company, the engineer declared the contract forfeited. Cul- bertson refused possession, but he was arrested and while in custody the company took charge of the works, tools and materials.
Culbertson at once filed suit against the company for dam- ages (assumpsit on the contract). The suit was laid in the United States Circuit court for Indiana. Judge Elisha M. Huntington, of Terre Haute, presided; Joseph G. Marshall, of Madison, and Randall Crawford, of New Albany, brought the suit and Samuel Judah, of Vincennes and Jeremiah Sullivan, of Madison, defended. Abner T. Ellis, president of the com- pany and a lawyer of Vincennes, also assisted in the defense. The case was considered very difficult and the parties intended to have the best counsel in the state. From our distance it would be hard to prove that Judah, Sullivan, Marshall and Randall Crawford were not four as good lawyers as could be found in Indiana at that time. The case was fought step by step for a week. Huntington ruled that the plaintiff could only
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recover for work done and not for the value of the contract. The verdict was for the plaintiff in the sum of nine thousand nine hundred and eighty-five dollars with four hundred and eighty-two dollars costs. The case was taken to the United States Supreme court, Judah appearing personally, while the defendant, Culbertson, was represented by a written argument made by O. H. Smith. The lower court was sustained by an equally divided Supreme court. The following year, 1850, the case was renewed. This time Culbertson had O. H. Smith bring suit against the individuals of the company and the engineer for declaring the contract forfeit without sufficient reason. The action was in tort. The books furnished no prece- dent for such an action. Its nearest parallel was in conspiracy, but the difference was that in the tortious action one defendant could be held and the other acquitted, while in conspiracy two or more had to be found guilty. The case was soon brought to issue. Joseph L. Jernegan, of South Bend, assisted Smith, while Randall Crawford crossed over and assisted Judah. A heavy verdict for the plaintiff followed, but was set aside and a new trial ordered by the Judges, McLean sitting with Hunt- ington. At the next term it was tried again, Judge Leavitt, of the Ohio district, taking the place of Huntington, who was sick. David Kilgore took the place of Jernegan, who had moved west, and John J. Crittenden, then the most eminent attorney in Kentucky, assisted in the defense. It was a battle of old warriors. Judah had commenced his practice while the capital was still at Corydon. His reputation was national. In the United States Supreme court he was no stranger. He had added to a college education the fruits of a long life of study. Randall Crawford, unlike all the others, was not gray, for he hadn't a hair on his head or face except a wig. His tall, bony form, pale as a ghost, his wide scholarship and legal acu- men were known throughout the state. He was held without an equal in his circuit, unless, perchance, it was Charles Dewey. Kilgore and Smith, both from the Whitewater circuit, trained as young men under Judge Miles C. Eggleston, had both served in Congress, one in the Senate, the other in the House, familiar to the courts of Indiana for the last thirty years, now fighting together to sustain their reputation and that of the bar of the
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State, had the sympathy and admiration of their friends and neighbors who turned out to hear the wordy battle. Last and most attractive to the citizens of Indianapolis was the elo- quent Kentuckian, now tottering toward the sunset, gray and feeble. A verdict of seven hundred and fifty dollars for the defendant closed the long contest.
The following extract preserved from the peroration of a trial lawyer of Williamsport illustrates very well a class of sentimental appeal common and powerful at the time.
"Oh, gentlemen, don't find a verdict against these plain- tiffs, but decide this case so that your children will be proud of you, and that you may look back in after life to this day with satisfaction; and when the shades of night are gathering round you, when the film of death is sealing up your eyelids, when your frail mortal bodies are burning with fever, when you pass from Time to Eternity, when the little angel Mur- phy will hover around you [Murphy was the plaintiff] and seat you on a cool cloud, and thence convey you to the realms of eternal bliss, and on their way gently fan you with their ambrosial wings, where all tears will be wiped from your eyes, and you will never repent of giving such a verdict."
Murphy was given a verdict.
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CHAPTER VIII.
THE SUPREME COURT, 1816-1853.
MEMBERS.
John Johnson, December 28, 1816, to September 10, 1817. James Scott, December 28, 1816, to December 28, 1830. Jesse L. Holman, December 28, 1816, to December 28, 1830. Isaac Blackford, September 10, 1817, to January 3, 1853. Stephen C. Stevens, January 28, 1831, to May 30, 1836. John T. Mckinney, January 28, 1831, to May 29, 1837. Charles Dewey, May 30, 1836, to January 29, 1847. Jeremiah Sullivan, May 29, 1837, to January 21, 1846. Samuel E. Perkins, January 21, 1846, to January 3, 1853. Thomas L. Smith, January 29, 1847, to January 3, 1853.
This has been designated the Old Supreme court, in distinc- tion from the Territorial Supreme court, which was a Federal court, and the New Supreme court, which took its place Janu- ary 3, 1853. It lasted from December 28, 1816, to January 3, 1853, a period of thirty-seven years. Only one member of the old court was elected to the new court-Samuel E. Perkins. Isaac Blackford served throughout the life of the old court except its first session, during which no decisions were handed down. The chief opinions are published in Blackford's Reports.
The territorial bar of Indiana was well satisfied on one feature of the Supreme court. The territorial lawyers had had enough of a court which was both nisi prius and appellate. They were prepared to go beyond either the United States Constitution or the constitution of any state in this matter. In the former case a limited field was set off in which the Supreme court of the United States had original jurisdiction. In the Constitution of 1792 the Supreme court of Kentucky was given
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original and exclusive jurisdiction over cases arising out of land titles. This provision was a direct result of the universal uncertainty over land titles in that state. It was omitted in the Constitution of 1799, which made the Kentucky Supreme court practically a court of appeals only, with the significant reservation, however, that the Legislature might confer orig- inal jurisdiction in certain cases.
In the Constitution of 1802 of Ohio the Supreme court was left almost entirely at the mercy of the Legislature. It was given original and appellate jurisdiction in Common Law and chancery in such cases as the Legislature might specify. This applied to both criminal and civil jurisdiction. It was further specified that the Supreme court should hold at least one ses- sion annually in each county. This Constitution retained the very features that had proved so obnoxious in territorial Indiana.
As stated in another chapter, the Judiciary committee of the Indiana Constitutional Convention was composed of James Scott, of Clark county ; John Johnson, of Knox; James Dill, of Dearborn; Samuel Milroy, of Washington; James Noble, of Franklin; William Cotton, of Switzerland, and William Lowe, of Washington. All these men were lawyers but Milroy, and he may have been. Benjamin Parke, of Knox, arrived on the fourth day of the convention and was placed on the Judiciary committee. He seems to have completely changed the attitude of the committee. It had been previously dominated by Scott and Johnson, but from the 14th on it seems to have been dominated by Parke.
On the morning of June 17, Chairman Scott, of the Judi- ciary committee, reported. The second section of this report reads as follows :
"The Supreme court shall consist of three Judges, and shall have appellate jurisdiction only; which shall be co-ex- tensive with the state, under such restrictions and regulations not repugnant to this Constitution, as may from time to time be prescribed by law."
This section is taken almost word for word from the Ken- tucky Constitution of 1799. The two changes are, first, the
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ST. IVES.
Patron Saint of the Legal Profession. Born, 1253: died, 1303, Treguier, Brittany just judge he became so famous that, on popular petition, including kings and nohb . he was canonized in 1347. This statue, in his old parish church near Treguter, shows him standing between a rich man and a poor man, dispensing justice.
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limitation on the number of Judges, and second, the limita- tion on the jurisdiction.
Section four of Scott's report provided, as did the Ken- tucky constitution, that the Judges should hold office during good behavior.
Section five follows the Kentucky Constitution. "The Judges of the Supreme court shall, by virtue of their offices, be conservators of the peace throughout the state."
Section six directed that the Supreme court should hold its sessions at the seat of government, at such times as should be prescribed by law.
Section seven, again following the Kentucky Constitution, gave the power of appointing Judges to the governor, subject to the consent of the Senate. In Ohio, by the Constitution of 1802, the Judges were all elected by the Legislature for a term of seven years.
On June 20, the article on the Judiciary was taken from the Committee of the Whole after it had considered it one session and referred to a select committee composed of Benjamin Parke, Joseph Holman, William Cotton, John Benefeld, James Dill and William Lowe. What the difficulty was does not appear. There may be no significance in the change, but the new committee was strictly anti-slavery and more favorable to the Ohio influence.
On June 22, Mr. Parke, chairman of the new Judiciary committee, made a report. Section two was amended by insert- ing that two Judges should constitute a quorum. This was the law in Ohio. Section four was changed so that the Judges were to be selected for a term of seven years, though their appointment was left as before.
On second reading, June 24, a number of amendments were offered, only one of which affected the Supreme court. This motion by Robert Hanna, of Franklin, provided that the Su- preme court be not organized till 1824; in the meantime the presiding Judges of the Circuit courts should hold at stated times and places courts of errors and appeals. A vote on this was demanded by the mover, which resulted in eight to thirty- three against the amendment. In general, the lawyers all
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opposed this amendment, which would have embodied exactly that feature of the Territorial Supreme court which was most obnoxious to them.
On June 25, David Robb, of Gibson county, moved to amend section two by inserting, instead of "three judges" "one or more Judges as the General Assembly shall from time to time prescribe by law." This was plainly an attempt to cater to those who feared the new government was going to be too expensive. From the general standpoint of political science, the motion was sound; but it was voted down, twenty-five to sixteen.
On June 27, the article, as it came from the hands of the special committee, was passed without a division. Only one serious change would be suggested by the experience of the thirty-six years. That would be a life tenure of the Judges. There is no doubt but this question was discussed, and there is no doubt that the sentiment of the convention was decisively against it. The general distrust of government which was at the foundation of Jeffersonian Democracy was prevalent throughout the West. The modifications made in the Ohio article from which this was taken assure us that every part of it was well considered. Its later history has left us little room to criticise the basic law of the old Supreme court.
The first chapter of the Laws of 1817 organized the Su- preme court. This law was originally enacted December 23, 1816, but was revised and re-enacted on January 12, 1818. It was provided that the court should sit twice annually, the first meeting to be on the second Monday of May, the second meeting on the second Monday of November. Each session should last at least thirty days if business justified. The meet- ing place was to be the county court house at Corydon, the sheriff of Harrison county being made the executive officer of the court.
A proviso in section seven denied the right of appeal from any inferior court to the Supreme court in criminal cases. The ordinary writ of error was not permitted to act as a super- sedeas in criminal cases. Aside from this, writs of error and appeals to the Supreme court extended to all judgments and decrees given by any inferior court of record in the state. Such
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THE SUPREME COURT, 1816-52
judgments or decrees, from which appeals were sought, had to be final, and equal or exceed in amount fifty dollars, or appertain to a franchise or freehold. The transcript had to follow the appeal within thirty days. In the later revisions this was extended to sixty days. The power of the court ex- tended only to questions of law arising upon the face of the proceedings. Plaintiff in error was not permitted to plead other than errors except in cases of wills, where the Supreme court was permitted to review the facts ascertained by the lower court. If the decree of the lower court was confirmed, the Supreme court could at its discretion add a penalty not exceeding ten per cent. The review of the case could only extend to the first error. At this point the case was to be remanded to the trial court with instructions for its future proceedings. Writs of error could not be brought after five years from the passing of the judgment, except in certain extraordinary cases.
At its discretion the Supreme court might summon wit- nesses, impanel juries and thus ascertain facts under the same rules and limitations as a trial court. Parties to the case might appear in person or by attorney according to rules laid down by the court itself.
There was to be no break between the work of the Terri- torial and State Supreme courts. All papers, records and pleading cases were to be transferred to the new court for final disposition. Those suits over which the State Supreme court, under the Constitution had no jurisdiction were sent back to the proper county for trial. The same dispositions were made of the old dockets in Knox and Franklin counties. Finally, the opinions and determinations of the court were to be delivered in writing, except on inconsequential points, and duly recorded and preserved. Thus was constituted the high- est court in the new state. So far as the determining laws were concerned, it will not suffer in comparison with any court of its time. It well became the system whose crowning fea- ture it was. The Circuit Judges in 1816 had all been practic- ing attorneys previous to their election and were directly inter- ested in many cases. There was no law then, as there is now, for appointing a special Judge. The General Assembly, on the
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first day of the year 1819, directed that all suits in chancery and all capital criminal suits for which the President Judge was incapacitated be transferred to the Supreme court for trial, the act giving the latter court original jurisdiction over all such cases. In lesser cases the President Judge might merely vacate the bench and let the case come up before the Associates.
By act of January 17, 1831, they changed the date for the sessions of the court. The Legislature met early in December. Many of the attorneys of the state were members. It was therefore convenient for them to come to court and stay for the Assembly. The November term was therefore directed to be opened on the first Monday of November. If it was con- tinued the full four weeks it would lead up to the opening of the General Assembly. The May term was set for the first Monday of May, a time when the Circuit courts had completed their spring sessions and the congressmen were back from Washington. The court was to be held in the Marion county court house, or in some other building to which the court might adjourn. A consultation room was set aside for them in the "Governor's Mansion" on the Circle. This room came to be occupied by Judge Blackford and was a kind of Supreme court headquarters between terms.
The same Assembly provided the court with a sheriff of its own. This officer was appointed by the court for a term of three years. Each county sheriff was made his deputy, so that in a sense he became a state sheriff, though he had almost no power or influence over the county sheriffs. The act of February 17, 1838, fixed the opening of the Supreme court sessions on the third Mondays of May and November an- nually.
The Revision of 1843 contains not only the laws governing the Supreme court, but also the rules which the court from time to time had laid down to govern the practice at its bar. At this time the prosecutor of the circuit in which the capi- tal was located was made the state's attorney at the bar of the Supreme court. It was his duty to appear for the state in all causes in which the state was a party or had any real inter-
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est. However, the attorney who had represented the state below might, if he cared to, represent it in the Supreme court.
In the Constitutional Convention of 1850 there was very little criticism of the Supreme court; what little there was related to two points. The first of these was the appointment by the governor. There was next to unanimous opinion that the Judges be elected. This public opinion was a direct result of the general feeling that the appointments in at least two cases had been determined solely by political considerations. These incidents will be discussed later in this chapter. The other subject of criticism was the court's delay in forming and announcing decisions. Edmund E. Taylor, a lawyer of Laporte, in addressing the convention said he had had a case involving ten thousand dollars before the court for two years and it was still undecided. He and Mr. Kelso had questioned the court and the Judges had said that if they had a reporter they could keep their docket clear. The general impression was that more Judges were needed.
It is a striking fact in connection with this part of our his- tory that the Legislature never meddled with the Supreme court. There was no important change in the organizing act during a period of thirty-five years. The two or three brief amendments were merely regulatory, having to do with the time of meeting. During this period the Circuit and Probate courts were seriously impaired by special legislation.
WORK OF THE COURT.
The court, composed of James Scott, John Johnson and Jesse L. Holman, met as directed by law at Corydon for the first time, May 5, 1817. Judge Blackford, in his Reports, mentions only two cases. The first was McDowell v. Davis, from Warrick county. This case was pending in the Terri- torial General court and, according to law, was ordered back to the Circuit court of Warrick county for trial. Thomas Blake, of Vincennes, and later of Terre Haute, was the attor- ney of the plaintiff. There were a number of such cases on the docket and all were transferred to the proper Circuit courts for trial.
Two motions for writs of supersedeas were made and both
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granted. Evidently both came up from Dearborn county. Both seem to have been granted without opposition.
At the second term Isaac Blackford took the place left vacant by the death of John Johnson. Three cases at least were on the docket. The case of Aceril v. Dickerson came up from Switzerland on an assignment of error concerning an appeal bond. The decision, which is twelve lines long, was by Jesse Holman. The appeal was dismissed with costs. The attorneys were Reuben Kidder and Amos Lane. The latter was the well-known lawyer of the old Third circuit, and later a congressman. Of the former, nothing is known beyond the fact that he practiced for many years in Dearborn and adjoin- ing counties, appearing at times as far west as Posey county. Another appeal on the same question of the execution of an appeal bond came up from Jefferson. In this case James Scott delivered the opinion and held for the plaintiff, represented by Amos Lane. The appellee was represented by Alexander Meek, an attorney and militia officer of Madison. In the case of Mills v. Conner from Dearborn county, Judge Blackford quashed the writ of supersedeas because of a defective appeal bond. Kidder and Amos Lane appeared for appellant and Stephen C. Stevens, for appellee. These three cases consti- tuted the work of the term. The inference is that it required about all the skill of the bar for a few years to perfect an appeal. In fact in these five cases no lawyer had been able to get into court.
At the beginning of the next term, May, 1818, Kidder and Lane succeeded in getting their case before the court. It involved an award by two arbitrators. The award which they had secured was found faulty, the judgment was found faulty and the judgment on the scire facias following was reversed. Stephen C. Stevens was the defendant attorney.
In the case of Morgan v. Fencher, from Dearborn county, Kidder was again beaten by Amos Lane in a case involving a horse trade.
John Thompson, for appellant, and Benjamin Ferguson, for appellee, appeared in a case of malicious prosecution from Clark county. Both were from the Clark county bar. The case was affirmed with five per cent. damages. Another case of
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this term is interesting from many standpoints. Bullitt, the land speculator, had sued Scribner, the founder of New Albany, on a promissory note. Hurst and Ferguson represented the plaintiff and Charles Dewey and Harbin Moore represented the defendant. The latter lost their point and the case went back for trial. All the lawyers in the case were well known and the latter two came to be leaders of the bar of the state. Amos Lane and Alexander Meek tried another case from Jef- ferson county, Lane losing and drawing ten per cent. damages. Harbin Moore and Charles Dewey were opposed in a suit in- volving the right of a squatter to receive pay for improve- ments made on government land, Moore, who represented the squatter, lost his case. The amount involved was eighty dollars.
In an ejectment case from Harrison county, Reuben E. Nelson, Major Henry Hurst and Harbin Moore were opposed by Charles Dewey, Benjamin Ferguson and David Raymond. This case had been tried before Judge Holman while he was on the circuit. It was affirmed by Blackford. There were tried at this term eight cases. Five cases were tried at the November term following. During the first year after the court was organized there were disposed of thirteen cases, involving perhaps one thousand five hundred dollars. Further statistics of the Old Supreme court will be given in connection with the table of its work.
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