USA > Indiana > Early Indiana trials: and sketches. Reminiscences > Part 21
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THE CHOLERA -KING.
BY HENRY W. ELLSWORTH.
He cometh ! A conqueror proud and strong ! At the head of a mighty band Of the countless dead, as he passed along, That he slew with his red right hand ; And over the mountains, or down the vale, As his shadowy train sweeps on,
There stealcth a lengthened note of wail, For the loved and early gone !
He eometh ! The sparkling eye grows dim, And heavily draws the breath, Of the trembler who whispers low of him, And his standard-bearer death, -
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He striketh the rich man down from power, And wasteth the student pale, Nor 'scapes him the maid in her latticed bower, Nor the warrior armed in mail !
He cometh ! Through ranks of steel-clad men To the heart of the warrior brave ; Ye may count where his conquering step hath been By the spear in each nerveless hand. Wild shouteth he where on the battle plains, By the dead are the living hid,
As he bnildeth up from the foemen slain, His skeleton pyramid !
There stealeth 'neath yonder turret's height, A lover, with song and lute, Nor knoweth the lips of his lady bright Are pale, and her soft voice mute, -
For he dreameth not, when no star is dim, Nor cloud in the summer sky,
That she who from childhood loved him Hath laid her down to die !
She watcheth ! A fond young mother dear ! While her heart beats high with pride, How she best to the good of life may rear, The dear one by her side;
With a fervent prayer, and a love-kiss warm, She hath sunk to a dreamy rest, Unconscious all of the death-cold form, That she claspeth to her breast !
Sail Ho! For the ship that tireless flies, While the mad waves leap around, .
As she spreadeth her wings for the native skies, Of the wanderers homeward bound, - Away through the trackless waters blue, Yet ere half her course is done,
From the wasted ranks of her merry erew There standeth only one !
All hushed is the city's busy throng, As it sleeps in the fold of death, Like the desert o'er which hath passed along, The pestilent Simoon's breath ;
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All hushed ! save the chill and stifling heart Of some trembling passer by, As he looketh askance on the dead-man's cart, Where it waiteth the next to die !
The fire hath died from the cottage hearth, - The plow on the unturned plain
Stands still, while nnreaped to the mother earth, Down droppeth the golden grain ! Of the loving and loved that gathered there, Each form to the dead hath gone,
Save the dog that howls to the midnight air, By the side of yon cold white stone !
He cometh ! he cometh ! No human power From his advent dread can flee, -
Nor knoweth one human heart the hour, When the tyrant his guest shall be ; Or whether at flush of the rosy dawn, Or at noon-tide's fervent heat,
Or at night, where with robes of darkness on,
He treadeth with stealthy feet !
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BATTLE OF TIPPECANOE.
BATTLE OF TIPPECANOE.
As the passenger on the train from St. Louis to Cincinnati, upon the Ohio and Mississippi Railroad, crosses the Wabash bridge at Vincennes, if he will look out of his window, on the left-hand side he will see standing there a square, two-story brick house surrounded by a porch. That house was the residence of William Henry Harri- son, when Governor of the Indiana Territory ; directly in front of the house he will see a few old loeust and elin trees, in a group. There it was in the midst of those trees that General Harrison was seated with an open file of men under arms before him many years ago, waiting the approach of Tecumseh, the great war chief of the Shawnees. Dark and portentous clouds had been gathering over the settlements on the Wabash. Tecumseh, the brave but wily chief of the Shawnees, and his brother the prophet, had ranged the woods and planted the war posts from tribe to tribe, and the rifle and tomahawk of Indian warfare were ready for their dreadful work upon the frontier settlers. Could it be staid? Could not a treaty of peace be made ? Gen. Harrison resolved to try. He asked of Tecumseh, through a messenger, a personal interview, privately between themselves, to see if they could not avoid the sacrifice of human life that must follow war. Teenmseh accepted the proposed interview with apparent satisfaction, the time for the meeting was fixed, and Vincennes the place agreed upon. General Harrison soon after learned that Tecumseh instead of meeting him alone, would bring with him a chosen band of warriors, prepared to seize and carry off the General a captive, and then fall upon the frontier set- tlers with all their savage fury. The General prepared to meet his wily foe ; selecting a few brave men, doubly armed, at the appointed honr he took his seat, his chair leaning against the large old elm, you see in front of the little grove; his men in open file facing in, with their arms in perfect order, at shoulder, ready for the word of command. Tecumseh and his warriors came in sight, but seeing that his plot had been discovered, and that the General was prepared, leaving his warriors behind, he stepped boldly forward, his blanket thrown over his shoulders, his breast bare, leggins tied at his knees, moccasins on his feet, bare headed, face painted, and eagle feathers sticking in his hair, his black eye looking vengeance, as he marched with proud, defiant step up the open file to the seat of the General. As he approached, the General rose and offered his hand. Tecumseh stepped baek, stood erect, and silently fixed his eyes upon the face of the General, with- out moving a muscle. The General, speaking to his interpreter,
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" Tell him his great father offers him a chair, to be seated upon." The moment the interpreter communicated the message, Tecumseh with his eyes still resting on the face of the General, spoke in a loud, firm tone of voice : " My father ! the sun is my father, and the earth is my mother, and I will recline on her bosom," and sat down on the ground directly in front of the General. The General .- " Inter- preter, ask him if he will make peace, or if he is bent on war." Tecum- seh .- " I am sick." The known meaning of which was that he was dis- satisfied. "Will you make peace or will you have war?" This he answered by a look that told his meaning. " Tell him if he will have war to spare the women and children, let it be a war of men." Tecumseh, rising from his seat, stretehing out his arm to its full length, with his fist clinched. " Your women and children are safe. My warriors against your men." He turned and marched proudly down the file, joined his warriors and left for his forest home; the tocsin of war was sounded and the Indians began to concentrate in their war lodges. Tecumseh and the Prophet were every where rallying their red brethren and arousing their war spirit. General Harrison was not idle, he saw the coming contest not without some alarm for the safety of the frontier settlers. He soon raised an army, composed of as brave men as ever drew a sword, or fired a rifle-volunteers from Kentucky and Indiana, men who understood Indian warfare, and were anxious to meet the savage foe.
About nine miles above the city of Lafayette the Tippecanoe enters the Wabash river ; the passengers on the trains from Lafayette to Chicago, will notice about seven miles from Lafayette, on the left hand side of the cars, a beautiful inclosed white-oak grove, widening from the point they first pass to the north, on the west side skirted by a narrow prairie, on the east by a wide, low prairie, and on the north by level woods. The spot is known as the " Tippecanoe Battle Ground ; " now the property of Indiana, by donation from the late John Tipton. It was on that spot the dreadful battle was fought between the American forces, under the command of General Harri- son, in person, and the combined Indian warriors, commanded by the Shawnee prophet, brother of Tecumseh, who had inspired his warriors with the superstitious belief that they would be invincible.
The American army had encamped carly in the evening on that elevated open wood. Near the south end, the company of the brave Capt. Spencer, the father-in-law of Gen Tipton, was stationed. Gen. Tipton was at that time ensign of the company. Near the upper end of the ground was the temporary marquee of Gen. Harrison. I refer to the report of the battle for the plan of the encampment, this sketch
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is from recollected private conversations with Gen. Tipton and Gen. Harrison. Gen. Harrison rode a beautiful fleet gray mare, that he had tied with the saddle on, to a stake near his marquee, to be ready at a moment in case of alarm. Major Owen of Kentucky rode a bay horse. After the gray mare was hitched, it became necessary in order to pass a baggage wagon, to remove her and tie her at another place ; without the knowledge of Gen. Harrison, the bay horse of Major Owen was afterward tied to the post where the gray mare bad been.
A dark night came on. It was probable that the Prophet would strike that night if at all, the men lay upon their arms, the officers at their respective commands. Hark ! the sound of rifles. The sentinels were either shot or driven in; the attack was made over the east and west banks of the high lands, bordering the prairies. The moment the alarm was given, every soldier was upon his feet, and the mounted officers in their saddles. Gen. Harrison ran to the post where he left bis gray mare, finding Maj. Owen's bay horse he mounted, leaving the gray for the Major if he could find her. The General dashed down to where he heard the firing, rode up to Capt. Spencer's position, at the point of the high ground around which the prairies meet ; there the enemy had made the first main attack-deadly in effect. There stood the brave ensign John Tipton, and a few of the surviving men of the company. Gen. Harrison .- " Where is the captain of this . company?" Ensign Tipton .- " Dead." " Where are the lieutenants?" " Dead." " Where is the ensign ?" "I am here." "Stand fast my brave fellow, and I will relieve you in a minute." Gen. Tipton told me in after years, that a cooler and braver man, on the field of battle, than Gen. Harrison, never lived. It was a deadly night, the Indians with rifles in their hands, concealed from view, in the darkness of the night, fighting to desperation, under the inspiration of their supersti- tion,-being the attacking party, and knowing where their enemy lay, had great advantages, which nothing but the indomitable courage of our brave men could have met and finally repelled. The moment the alarm was given, the brave Maj. Owen ran to his stake, but his horse was gone; near by he found and mounted the gray mare of the General. Ile was scarcely in the saddle, before he fell mortally wounded, pierced with rifle balls, which were intended no doubt for Gen. Harrison, as the Indians knew he rode a gray, and must have been in ambush near. The men and officers that fell that dreadful night were the bravest of the brave. Their names are not only recorded upon the records of our country, but will ever be treasured in the memory of every Indianian, with heartfelt gratitude, and undying sorrow. I visited the common grave of these brave dead, who fell in that terrible
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battle, only a few years since. You will find it in a grove of white- oak trees perforated by balls, standing near the center of the inclosed grounds. The victory was dearly bought, but it secured a lasting peace to our frontier. Tecumseh remained our deadly enemy while he lived, but soon after fell at the battle of the Thames. This is only intended for a charcoal sketch of those memorable scenes. The brave Gen. Tipton will be noticed among the United States Senators, before these sketches close.
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THE CULBERTSON CASE.
THE CULBERTSON CASE.
AMONG the civil trials of the State, there have been perhaps, none of greater interest, or involving more important legal principles than the case of Samuel Culbertson against Abner T. Ellis, John M. Cook, Joseph Bowman, Joshua Beall, Samuel Wise, William Butch, Thomas Bishop, and Sylvanus Lathrop, in the Circuit Court of the United States, in the year 1850. It was an action upon the case in the nature of a conspiracy, brought under the following state of facts. The defen- dants were the president, directors, and engineers of the Wabash Navigation Company, incorporated to improve the navigation of that river, at the rapids below Vincennes, by the construction of a dam, and lock, for the passage of steamers. The plaintiff, Culbertson, and his brother, citizens of Pennsylvania, made a written contract with the corporation, to construct the work in a given time, upon agreed terms. The contract contained a provision that whenever the con- tractors were not pushing on the work, in good faith, without any reasonable excuse, to the satisfaction of the company, the engineer should be authorized to declare the contract forfeited, which should be final between the parties. The contractors had progressed with the work for some considerable time. The waters of the river were occa- sionally so high as to obstruct the work. The season was sickly, the brother had died, and the plaintiff was laid low with fever; the work was not pressed as fast as the company desired, when the engineer under the advice of the president and directors, declared the contract forfeited, and demanded possession of the works, which Culbertson refused to give. The company then procured an affidavit to be made, a warrant to issue, and Culbertson, just able to walk, to be arrested, and kept in custody until they got possession of the works, materials, and tools.
In the year 1849, Culbertson brought an action of assumpsit on the contract, with the common counts, for work, labor, and materials, against the Navigation Company in the Circuit Court of the United States, Judge Huntington presiding. The case was warmly contested. The trial lasted a week. Joseph G. Marshall, and Randall Crawford, counsel for the plaintiff. Samuel Judah, Jeremiah Sullivan, and Abner T. Ellis, for the defendant. The able counsel employed, indi- eate the character and ability of the prosecution and defense. The main question, the facts being admitted was, for what was the plain- tiff entitled to recover. It was admitted by the plaintiff's counsel, that if the contract was declared to be forfeited upon sufficient ground by the engineer, then they were only entitled to recover the balance
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due them for work, labor, and materials. But if the contraet was declared to be forfeited on insufficient grounds, then they could recover the reasonable profits of the contract in addition. Judge Huntington in his charge, held that the plaintiff could only recover for the work done and materials furnished up to the time the contract was declared to be forfeited by the engineer, whose decision on that question was final between the parties. The jury found a verdict for the plaintiff for $ 9.985, dawages : costs $ 482. The company appealed to the Supreme Court of the United States. Mr. Judah appeared in that court for the company, and I presented a printed argument for Mr. Culbertson. The case was affirmed by an equally divided Court.
In the year 1850, Mr. Culbertson employed me to bring an action against the individuals composing the president aud directors of the company and the engineer; in tort, for declaring the contract for- feited without just and reasonable cause. It was to me a new ques- tion. I was able to find no reported case in the books directly in point; but, reasoning from the analogy of cases I came to the conclusion that the action would lie, and brought the suit. The case was tried at the next term, before Judge Huntington on the general issue. Joseph L. Jernegan appeared with me for the plaintiff, and Samuel Judah and Randall Crawford were for the defendants. Judge Huntington presided. The result was a heavy verdict for the plaintiff, which the the Court for reasons satisfactory to them, set aside, and granted a new trial, costs to abide the final result.
At the next term, before Judges Mc Lean, and Huntington, the defendants obtained leave to file a plea of formuer recovery, setting out the case that had been tried and affirmed in the Supreme Court. 1 demurred to the plea, and after full argument the Court sustained the demurrer, and the cause was continued. At the next term before Judge Huntington, the jury was impanneled, and the trial occupied near a week, resulting in a disagreement and a discharge of the jury by the Court, after having been out all the night, and the cause was again continued.
At the next term, the case was tried before Judge Leavitt, District Judge of Ohio, who presided in the absence from sickness, of Judge Huntington. Great preparations were made, on both sides, for the final trial, and both came fully prepared. Mr. Jernegan had left the State, and Judge Kilgore appeared in his place, with me: the defen- dants, to insure success, sent to Kentucky and employed John J. Crittenden to assist their able counsel. The case was called, and a jury impanneled. Next morning I briefly opened the case to the jury, and the evidence was introduced on both sides, occupying two
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days. After the evidence of the plaintiff was partly given, Mr. Critten- den moved to non-suit the plaintiff, on the ground that a conspiracy was charged in the declaration, but no proof to sustain the charge had been given. I placed my opposition to the motion upon the grounds that it was premature, as all the plaintiff's evidence had not been offered, and that proof of conspiracy was not required ; that this was not an action for conspiracy, but an action on the case where any one of the defendants might be convicted, and the others acquitted. That it was not like an indictment for conspiracy at common law, where more than one must be convicted, or at least, the one before the court with others, where the conspiracy is the gist of the prosecution. Judge Leavitt sustained my objections, and overruled the motion ; the evidence closed before noon, and the Court adjourned to dinner.
Judge Kilgore opened to the jury in the afternoon in a speech of some two hours, Court adjourned. Next morning, Mr. Crawford opened for the defendants, some four hours; Court adjourned for dinner. Mr. Crittenden was to speak in the afternoon, public expec- tation was on tip-toe, the court-room was crowded before the meeting of the court with the elite of the city, it was evident that the great Kentucky orator was taxed high in public opinion. Much was expected of him. As we walked down to the court from the hotel, I remarked to Mr. Crittenden, that I had decidedly the advantage of him. "Why so," he said. " Because in the first place I have the best side of the case, and in the next, I am at home. The people expect noth- ing from me, and will not be disappointed, while you are already taxed as high as you can be, aud may disappoint your audience." He denied the first, but admitted the last to be true. He arose, his head whitened over by years, his high forehead overspread by his silver locks, his projecting mouth, prominent chin, and manly features, reminded me of the days when he was combating in the Senate of the United States, the mighty men of the land. Like others around me, I was about to hear him for the first time in a forensic effort ; I confess I had some fears, lest he should cause the jury to forget the evidence, and the Court to overlook the law. He spoke some three hours in a strain of impassioned eloquence, but I thought he kept too much away from the facts of the case. He spoke about and around the case, and not at, and upon it. I said to myself, he cither thinks the case too heavy for him to carry, or too light to carry him. It was evident that the facts did not suit him, but he had declaimed beautifully. "Let me say to the plaintiff go home to your native State, dismiss your suit, betake yourself to some honest employment. You are engaged with some of the first men of the State, in a controversy
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that must end in both disgrace and ruin to you, unless you abandon it at once. Let me say to my friend the counsel that is to follow me, you have no case, it is the baldest case that was ever brought in a court of justice. No action ever was sustained in England or America, on facts like these ; an action has already been brought and a recovery had against the corporation, and now you are seeking damages against the president, directors and engineers, as individuals for the very act for which you have already recovered damages. Will you magnify this case to the conspiracy of Cataline without proof?" Mr. Crittenden closed near four o'clock. He was listened to by the jury and crowded stands with profound attention. I rose at once, and closed the argument before the jury in a speech over three hours. My friends said I was fully myself; the fact was, the case was with me, and was sufficiently strong to carry me triumphantly before the jury. Judge Leavitt gave to the jury a clear and able charge upon the law of the case, which may be found in McLean's reports. The jury retired and after a brief absence returned a verdict finding the defendants guilty as charged, and assessing damages at $750, costs $610. The moment the verdict was announced Mr. Crittenden rose and asked the jurors upon what ground they had found their verdict. I objected to the question, and told the jurors not to answer : the Court was appealed to. Judge Leavitt .- " The question is improper, you can poll the jury." Mr. Crittenden .- " I waive the question." Verdict entered, motion for new trial. Court adjourned. Next day motion for new trial withdrawn and judgment on the verdict. Thus ended this warmly contested, important case.
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RUFUS CHOATE.
RUFUS CHOATE.
MR. WEBSTER had resigned his seat in the Senate of the United States, to take the office of Secretary of State, under Gen. Harrison. Rufus Choate of Boston, was elected to the vacant seat. I remember well with what curiosity I looked for the appearance of Mr. Choate in the Senate. I had long known him through the press ; and from Mr. Webster and Mr. Bates, as the first lawyer at the Boston bar. It is characteristic of Massachusetts, to always have one great man in every department, and by a common consent, he can have no success- ful rival in his day. Mr. Webster stood in Massachusetts alone, as a great statesman ; not exactly as it was said of Mr. Calhoun, in South Carolina, that when he took snuff, all South Carolina sneezed. Judge Story stood at the head of the judiciary ; and Rufus Choate stood at the head of the bar, as he does at this day.
I heard Mr. Choate in the Senate, the first time he addressed the body, with much interest ; as I did his after speeches. He was in a new field for the display of his powers. He had to meet a body of the most distinguished men of the world - the first minds upon earth, on the very field of their training and triumphs in the great contest of mind with mind. I had heard him but a few minutes, before I became satisfied that he had nothing to fear; that Massachusetts had sent to the Senate in the person of Mr. Choate, a worthy successor of Mr. Webster, her favorite. Mr. Choate possesses a brilliant imagina- tion ; a sound and matured judgment; a happy elocution ; at times, I thought too rapid for effect upon his audience; words flow from him without a seeming effort ; his gestures are peculiarly his own ; the jerk of his arm while speaking would remind you of the whip-arm of a coachman touching up the leaders of his team. Ile was one of the most brilliant orators in the Senate; and was listened to by the body with profound attention, sometimes filling the galleries. Mr. Choate stood among the first of the National Whigs, a strong and firm friend . of the Union of the States, now and forever. I give an extract from one of his speeches, showing his style, and the east of his mind.
EXTRACT FROM A SPEECH OF MR. CHOATE, MAY, 1842.
" But the honorable Senator is against your jurisdiction in all forms and in all stages. Sir, I can not concur with him ; I would assert the jurisdiction, on the contrary ; on the same grand, general reason, for which it was given to you. It was given as a means of enabling you to preserve honorable peace, or to secure the next best thing, 'a just
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war,' a war into which we may carry the sympathies, and the praise, and the assistance of the world. Accept and exert it for these great ends. Do not be deterred from doing so, and from doing so now, by what the honorable Senator so many times repeated to you; that negotiations are pending with England; that she has insulted and menaced you, and withheld reparation, and withheld apology, and that, therefore, the passage of the bill at this moment, would be an unmanly and unseasonable courtesy or concession to her. How much England knows or cares about the passage of this bill; what new reason it may afford to the Foreign Quarterly Review for predicting the approach of his monarchial millenium in America ; we need not, I believe no one here, need know or care. But does it work unmanly fear of England, an unmanly haste to propitiate her good will, because I would commit the quiet and the glory of my country to you ? Where should the peace of the nation repose, but beneath the folds of the nation's flag? Do not fear either, that you are about to undervalue the learning, abili- ties, and integrity of the State tribunals. Sir, my whole life has been a constant experience of their learning, abilities, and integrity ; but I do not conceive that I distrust or disparage them, when I have the honor to agree with the Constitution itself, that yours are the hands to hold the mighty issues of peace and war.
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