USA > Indiana > Early Indiana trials: and sketches. Reminiscences > Part 15
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JOHN TYLER.
moment and returned to the chamber, then in executive session. The nominations were fast falling on the President's desk, and as they were announced over and over again, as promptly rejected. Cushing, Wise, Spencer followed each other in rapid order, and were each retur- ned with the message, " We do not advise and consent to the nomina- tion." Congress adjourned. The Tyler convention of his office-hold- ers and aspirants for office under him, was held at Baltimore, Mr. Tyler was unanimously nominated for re-election. The nomination fell still born. Not a State formed an electoral ticket for him. Long before the Presidential election, Mr. Wise was leading the Democratic forces against his late brethren, but poor Tyler was left shivering at the door of the party, with the voice of the watchman, " We know you not," ringing in his ears.
" Who would rise in brightest day, To set without one parting ray ?"
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EARLY INDIANA TRIALS.
[MONDAY MORNING, SEPTEMBER 21, 1857. UNITED STATES SUPREME COURT.
A FEW years since I visited the Supreme Court a second time. What a change since I first saw that dignified tribunal in the year 1827 ! The court was in session when I entered and took a seat on the sofa in front of the judges. Where were Marshall, Washington, Duvall, Thompson, Story, Baldwin, Johnson, Trimble ? Gone in the few years of my absence, gone forever; and there sat in their gowns Chief Justice Taney in the chair of Marshall, the young Judge Curtis in the seat of Story, Judge Nelson in the chair of Thompson, Judge Grier in the seat of Baldwin, Judge Wayne in the place of Johnson, Judge McLean in the seat of Trimble, Judge Daniel in the place of Washington. Caleb Cushing sat at the table of William Wirt. Every thing looked strange, except the familiar face of Judge McLean, the presiding judge of the Circuit Court of the United States for the District of Indiana.
It is not my purpose to institute a comparison between the judges that composed the court in the year 1827, and those of after years. The moment my eye struck the bench I said to myself, the two strong men are Chief Justice Taney and Judge McLean. Nature so declared. Their powers of mind were stamped upon their faces, and their high judicial character distinctly marked upon the whole external man, and yet in person they were not alike. The Chief Justice was tall and slender, considerably bent with years, his face deeply furrowed, his hair hanging carelessly over his high forehead, which he frequently wiped away. Ilis arms and fingers were long and bony, not unlike those of John Randolph. His countenance was marked by the study of many years. His dress plain black. He sat pen in hand attentively listening to Mr. Cushing addressing the Court, frequently taking notes, as the argument progressed. Judge McLean sat near him; his large head, inclined to baldness, gave him a remarkably prominent forehead. In person full six feet, well made, quite fleshy, large, expanded chest, features prominent, countenance open and noble. I know no living man with whom to compare him. He always reminded me of my idea of the appearance of Gen. Washington at the same age. The Judge sat quietly listening to the argument, with a printed brief in his hand. I looked at these distinguished judges with the highest veneration for their age and high judicial standing. I felt that the one was Chief Justice, and that the other would grace that high judicial position, or any other under our free institution, with credit to him- self and honor to the nation. Chief Justice Taney, it was said,
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received his appointment from Gen. Jackson as a reward for his services in removing the deposits from the Bank of the United States, as required by the President. He was at the time Secretary of the Treasury. He was a sound lawyer of many years practice at Balti- more, and a good Catholic, when he was taken into the Cabinet of Gen. Jackson. His mind was of a very high order, and bringing with him a ripe professional experience, with long reading, he stood at once fairly in the judicial shoes of his illustrious predecessor. Judge MeLean had been many years a member of Congress from Ohio, afterward Supreme Judge of that State, when he was transferred to the office of Postmaster General of the United States. It may he said with entire confidence that no man ever filled that highly res- ponsible office more to the satisfaction of the people of the United States. He was respected, feared, and beloved, by contraetors and deputy post-masters, over the length and breadth of the land. He required promptness, diligence, and faithfulness of them ; a slight excuse would atone for slight errors, but dismissal promptly followed intentional neglect or willful unfaithfulness. I was at Washington at the time Judge MeLean was transferred, by Gen. Jackson, from the Post Office Department to the Supreme Bench. It was whispered in political circles, at the time, that the Judge had been requested to make certain post-office appointments on political grounds, to reward partisan services, and had declined to do so, setting up the Jeffer- sonian qualifications as his standard. " Is he honest, is he capable, is he faithful to the Constitution ?" The seat on the bench became vacant by the death of Judge Trimble. Judge McLean accepted the nomination to the bench, and was at once unanimously confirmed. Ilis long and invaluable services can only be appreciated by an examination of his opinions, in the reports of the Supreme Court, and McLean's Circuit Court reports. I have not had an opportunity of comparing the Chief Justice with Judge McLean, presiding on the circuit, but from his kind, affable manner of presiding in the Supreme Court, I have no doubt of his high character in his cireuit. Of Judge MeLean I may speak from personal observation, having practiced in his court, in this State, for the last thirty years. Judge MeLean on the bench is a model-plain, courteous, affable, dignified, patient and prompt. His mind is of a highly comprehensive order, always in search of truth, and the merits of the legal controversy ; the cobweb forms that are too often interposed by ingenious counsel in the path of justice, are swept away by a brush of his judicial mind, and the merits of the case seized with a strength that carries con- vietion with him; his opinions given in a plain, direct manner, are
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intelligible to the commonest legal mind, more like the decisions of Lord Mansfield than any living jurist. With all, his high moral and religious character stamp his opinions with great weight upon the publie mind.
The high estimation I had been accustomed to place on the opinions of these two eminent judges, led me to look with deep interest to their opinions in the late Dred Scott case. I saw that their local positions and political associations would be charged on either side of Mason's & Dixon's Line, as influencing their minds and controlling their opinions. That is a matter that politicians may dwell upon, but with which I have nothing to do, as I expressly eschew politics in these sketches. The opinions of Chief Justice Taney and Judge MeLean in that exciting case are published at large, and have been read by the American people. I have neither time, space, nor incli- nation to review them. But I do not feel willing to pass the ques- tion by without a single word of my own. I give to the judges the same unqualified credit for honesty, impartiality and love of country- the same determination to confine the judicial functions of the Supreme Court of the United States to their Constitutional boun- daries ; I strip the case from all outside pressure-all external political influences; I seat the judges in their robes upon the bench judicial, with the Constitution of the United States and those of the several States open before them, and put to them the following questions :
First, Have the people of the several States the right to adopt their own constitution, allowing, or inhibiting slavery, under the provisions of the Constitution of the United States ?
Second, After the constitution of a State is approved by the people, - and the State is admitted into the Union by Congress, and the act of admission has been approved by the President, can either the President, Congress, or the Judiciary, interfere with, or annul, any of the fundamental principles of the constitution without the assent of the people of the State, expressed in the way and manner provided in the State constitution ?
Third, If the Supreme Court has the power to say that slavery may exist an hour in a State whose constitution prohibits slavery, may it not fix the time that slavery may exist in such State ?
Fourth, If the Supreme Court can say that slavery may exist in a State for an hour against the express provisions of the State constitu- tion, may it not say, with equal authority, that slavery shall not exist in States whose constitutions expressly recognize the institution of slavery ? Does not the exercise of the power over the subject cross Mason and Dixon's line with equal authority, if it exists at all ?
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Fifth, If the position be true, that the slave carries with him to the free States his condition in the slave States, for any other pur- pose than that of being reclaimed under the Constitution of the United States, when he has escaped without the assent of his master, then are not the express provisions of the constitutions of the free States inhibiting slavery impliedly repealed, at the will of every slave- holder ?
Let these questions be fairly answered by the reader, let him be a slave-holder or non slave-holder, then let him read the opinions of Chief Justice Taney and Judge MeLean in the Dred Scott ease.
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[TUESDAY MORNING, SEPTEMBER 22, 1857. HORSE-THIEVES-JUDGE CLARK'S MODE OF PRE- VENTING NEW TRIALS.
THERE are a few more cases that I desire to rescue from the hand of time, which must soon sweep all others from the recollection of the living, hefore I proceed to sketch more important reminiscences of the men and things of my day.
Iudiana was a territory. The country was a wilderness, except a few posts and settlements. Fort Harrison, had been successfully defended by Gen. Taylor. Gov. Harrison had removed to Vincennes, as the executive of the Territory. The country was filled with Indians, friendly and hostile, when a gang of desperate horse-thieves from Ken- tucky, Ohio, Pennsylvania aud Virginia, began to cross the river and steal and drive away the horses of the white men and Indians, indis- eriminately. Gov. Harrison was waited upon, and consulted. The settlers were for lynch law and hanging, or at least whipping ; but the opinion of the Governor, that the laws should be enforced upon the offenders, prevailed, and many thieves were taken and confined, ready for the sitting of the Court. At the next term, trial after trial, with conviction after conviction, were had, but the attorney for the United States was a young, green lawyer, and every conviction was followed with successful motions in arrest of judgment for some defect in the indictments. The judge being a good lawyer, decided no doubt, cor- rectly, according to the written law; but the decisions gave neither protection nor satisfaction to the people. The clamor against the Court reached the ears of the judge, and lie resigned, when Gen. Marston G. Clark, a cousin of Gen. George Rogers Clark, and after- ward agent for the Kansas Indians, was by consent appointed judge to fill the vacancy on the bench. The General was no lawyer - was raised in the woods of Kentucky, where there were no schoolhouses ; could scarcely read a chapter in the Bible, and wrote his name as large as John Hancock's in the Declaration of Independence. He was about six feet in his stockings, of a very muscular appearance - wore a hunting-shirt, leather pants, moccasins and a fox-skin cap, with a long cue down his back. Court came on; Judge Clark on the bench. The jail was full of horse-thieves. The penalty was not less than thirty-nine lashes on the bare back. The grand-jury returned into court indictments against each of the prisoners. Judge Clark .- " We will try John Long first, as he seems to be a leader in this busi- ness. Bring him into court." Sheriff. - " There he sits ; I brought him with me." "John Long stand up. You are indicted for stealing
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TURKEY IN COURT AND ON THE TABLE.
an Indian pony ; guilty or not guilty ?" Counsel .- " May it please the Court, we plead in abatement that his name is John II. Long." " That makes no difference; I know the man, and that is sufficient." " We then move to quash the indictment before he pleads in chief." "State your objections." -" First, There is no value of the horse laid. - Second, It is charged in the indictment to be a horse, when he is a gelding." "I know an Indian pony is worth ten dollars; and I shall consider that a gelding is a horse ; motion overruled." Plea of not guilty ; jury impanneled ; evidence heard ; proof positive ; verdict, guilty ; thirty-nine lashes on his bare back. Counsel .- " We move in arrest of judgment, on the ground that it is not charged in the indictment that the horse was stolen in the Territory of Indiana." " That, I consider a more serious objection than any you have made yet. I will consider on it till morning. Sheriff, adjourn the court, and keep the prisoner safe till court meets." The judge kept his seat till the sheriff returned from the jail. "Sheriff, at 12 o'clock to-night you and your deputy take Long into the woods, clear out of hearing, and give him thirty-nine lashes on his bare back, well laid on, put him in jail again ; say nothing, but bring him into court in the morning." The order was obeyed to the very letter, and next morning Long was in the box when court opened, his counsel ignorant of what had taken place. Judge Clark .- " I have been thinking of the motion in arrest in the case of Long; I have some doubts, as the evidence proved that he did steal the horse in this territory, and I think I ought not to sustain a motion that I understand will discharge the prisoner after he has been found guilty by the jury ; but I feel bound to grant a new trial." Long, springing to his feet, "Oh, no, for heaven's sake ; I am whipped almost to death already. I discharge my attorneys and withdraw their motion." Judge Clark .- " Clerk, enter the judgment on the verdict, and mark it satisfied." The other prisoners were brought up in succession, and convicted. No motion to quash, or in arrest, was afterward made. The prisoners were whipped and discharged, carrying with them the news to all their comrades. Not a horse was stolen in the territory for years afterward.
TURKEY IN COURT AND ON THE TABLE.
IN the third circuit our prosecutions were technical, the criminal law describing crimes and prescribing punishments, strictly construed, and the forms of Chitty's criminal law with the statutory definitions adhered to, as I have sometimes thought, beyond the requirements of justice. On one occasion I had indicted a man for stealing a horse 1I
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and the evidence proved the animal to have been a gelding. The variance was held fatal on the trial. In another case the indictment charged the stealing of a hog, and the evidence proved that the animal was dead and dressed, hanging upon the hook. The Court held that the variance must defeat a conviction, as it was " pork " and should have been so laid, and not a " hog." I had been a good deal annoyed with these cases, when there came up for trial a prosecution against a man for stealing a turkey of the value of one dollar. The proof was that the fowl was dressed, hanging up in the smoke-house of the prose- cutor. Judge Eggleston ruled that the variance was fatal on the ground that it was " fowl, " and the prisoner was acquitted. Court adjourned, and dinner was announced at the hotel. As we entered, I saw about the middle of the table a fine, large, roasted turkey, of which the Judge was uncommonly fond. It fell upon me that day to carve. I had just finished the operation. Judge Eggleston .- " Mr. Smith, will you please help my plate to some of that turkey." " To what ?" " A part of the turkey-a wing, a side-bone, or some breast." " Judge, I don't know what you mean, I sec no turkey, will you have some fowl ?" The Judge "took, " as the saying is. " Well, Mr. Smith, you rather have me, but you must recollect that there is a wide difference between a turkey in an indictment, and one on the dinner table."
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PROMINENT MEN OF EARLY INDIANA.
[WEDNESDAY MORNING, SEPTEMBER 23, 1857. PROMINENT MEN OF EARLY INDIANA.
I AM unable yet to leave for Washington, as there are a few more persons that I wish to introduce to the reader as my early friends. There lived in early times, near Brookville, two families from which sprang individuals of considerable note, known as the McCarty and Hanna families. Judge Benjamin McCarty was one of the first judges of the county courts under the territorial government. He was a man of Herculcan frame, and of a strong mind. I barely knew him. His two sons, Enoch and Jonathan, I knew well. Enoch was a member of the first convention that formed the State Constitu- tion ; of the Legislature repeatedly, and many years clerk and judge of the Franklin Circuit Court. He was a cool, strong-minded man, of the very first standing in society, and contributed largely to the mass of mind that controlled early Indiana-cast all his influence on the side of morality and religion. Gen. Jonathan McCarty, his brother, was one of the most talented men in the State. He was defective in education, but had great native powers. He early became a politician ; represented the county of Franklin in the Legislature, and procured the passage of the law laying off the county of Fayette ; soon after which, he removed to the new county, and when I arrived at Connersville, in 1820, I found him clerk of the court. Gen. McCarty represented his district in Congress for several years with ability. As a stump speaker he was ardent and effective ; his person was above the medium size ; his head and face of fine mold ; his voice strong and clear ; and his action good. At one time he was receiver of public moneys at Fort Wayne, but soon voluntarily left his office for the more fascinating, but less profitable field of politics, and was ultimately defeated by Mr. Rariden. He removed from the State to Keokuk, Iowa, where he died some years since. The General left many warm friends behind him in the Whitewater country.
Gen. Robert Hanna, of Franklin, was among the very first men in early Indiana. He was in person below the common size, strong and firmly built up, his head large, his forehead high, his eyes light and well set in his head. His walk would point him out as a drill officer of the regular army, and his appearance in full uniform at the head of his brigade was truly en militaire. The General represented his county in the Legislature, and in the Convention of the State that formed the Constitution of 1816. On the death of Gen. Noble, he was appointed by Gov. Ray to fill the vacancy in the Senate of the United States for the balance of the term. He was highly respected
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in that body and voluntarily retired to private life at the close of the term, honored and respected by all.
George HI. Dunn, of Lawrenceburg, and James Perry of Liberty, were two of my early friends. They were both fine lawyers, very much alike, both well acquainted with their books, both fine special pleaders, both under the medium hight. As debaters, the same simi- larity was observed. They were neither what we call advocates, whose powers control the Court and carry away the jury. If they gained their cases, it was because they were ou the right side, and they sel- dom failed when they were. As commercial and chancery lawyers, they ranked high.
James Rariden I have noticed so frequently, that it seems only necessary to say here, that he was one of the strong men of the State. Ile represented Wayne county many years in both branches of the General Assembly, was an efficient member of the last Constitutional Convention, and served two terms in Congress from his district. Mr. Rariden was for years my circuit companion ; we rode through the wil- derness together, ate together, slept together, and were just as near one man as two could be. Mr. Rariden was a strong, common-sense man, always ready at retort. He made no religious pretensions, though he said he was " brother-in-law to the Methodist church." During the time he was in the House, I was in the Senate. It became necessary for the Secretary of State to designate two newspapers in his district to publish the laws of the United States. Mr. Forsyth, then Secre- tary, wrote to Mr. Rariden to make the selection of " two papers that inculcated correct doctrines." Mr. Rarideu in answer, "would the Secretary consider a paper that supported Gen. Harrison as inculca- ting correct doctrines ?" Mr. Forsyth .-- " I would not." "Then I have no recommendation to make." The Presidential election of 1840 was approaching ; the contest grew warmer and warmer; both sides seemed to be sanguine when by accident Mr. Rariden and Mr. Francis P. Blair, then the editor of the Globe, met in the hall of the House of Representatives. A bet was proposed by Mr. Blair of one thousand dollars that Van Buren would be elected, and one hundred dollars on each State that Van Buren would get the electoral vote over Gen. Harrison. Rariden promptly took the bet ; stakes to be put up in a few days. I happened over in the House when the two parties met. Mr. Blair .- " Mr. Rariden, I would rather not bet; I am the editor of the organ of the Government, and it may injure my influence if it is known that I bet on the election." "Then you give up, do you ?" "I give up that your party can out lie us." " Do you give that up ? I consider that giving up the election ; that is the only strength your
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NEWTON CLAYPOOL.
party ever had." The bet was carried no further. One day Gen. Garrett D. Wall of the Senate asked me to introduce him to Mr. Rarideu, stating that he wished to bring him over to the Democratic party. An opportunity soon offered, and the General remarked, " Mr. Rariden, I believe you are an honest man." " That is my character, General." "I can not see then why you remain attached to the corrupt Whig party." " What better can I do, what corruption do you refer to ?" " I refer to the corrupt and false certificates, by which the New Jersey members have got their seats." " Are you sure, General, that the certificates were false and corrupt ?" " I am." Rariden, laugh- ing, " That is the first ray of hope I have had for our party, for a long time; there's where we always failed before; your party has beaten us all the time in getting up these spurious certificates. Now we seem to have some chance." We parted, and as Gen. Wall and myself walked up the avenue, he remarked, "Your friend is the most incorrigible man I ever met." Mr. Rariden died within the last year. A meeting of the bar was held in the Supreme Court room, and I was honored with the solemn duty of presenting the proceed- ings to the Supreme Court of the State and the Circuit Court of the United States.
NEWTON CLAYPOOL.
WHEN I arrived at Connersville, in May of the year 1820, I stop- ped at the hotel of Newton Claypool. He was about my age. I had been licensed to practice in March before, and was looking for a loea- tion. My last dollar had escaped from the top of my pocket. Break- fast over, I met Mr. Claypool in the bar-room ; as we met I remarked- " Look at me and see whether you will risk me for my board a year." " Who are you ? where did you come from ? what is your trade ? and how do you expect to pay for your board ?" "My name is Smith; I am from Lawrenceburgh ; I am a young lawyer, and I expect to pay you from my practice." " Rather a bad chance, but I will risk you." That day my acquaintance with Mr. Claypool commenced, and I found him my friend in need, as well as in deed. An intimacy grew up between us, which has lasted thirty-seven years, without the slightest interruption, and which I have no doubt will continue while we live. He never was a candidate for office that I did not support him, nor was I ever before the people or the Legislature, that he was not my fast friend. Mr. Claypool represented the county of Fayette many years in both branches of the General Assembly, with signal ability. He voted for me for United States Senator when I was
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elected. His greatest forte was in his practical knowledge applied to the subject by his strong common sense. He was one of the most effi- eient men of the Legislature for many years. The boarding was paid, and in after years I had both the honor and pleasure of receiving his son, Benjamin F., into my office as a student.
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