USA > Indiana > Early Indiana trials: and sketches. Reminiscences > Part 5
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18
EARLY INDIANA TRIALS.
A CASE OF MISUNDERSTANDING.
FOR the more immediate consideration of the profession, and to take their legal opinion, a sketch of two cases that arose before the associate judges upon the defense of " tender," may not be out of place. They were cross actions, and came before the court at the same time, and were submitted together. I call the parties John Jones and James Backhouse. The facts : Jones was raised and educated in that part of New York, called the Genessee country, and Backhouse was an Ohioan, from near Cincinnati. In New York, where Jones came from, they called " shell-bark hickory, " " shag-bark walnut," and "ground hogs " " woodchucks." In Ohio where Backhouse came from they called " shag-bark walnut, " "shell-bark hickory, " and " woodchucks, " " ground hogs." The parties met accidentally and Jones proposed to sell to Backhouse "ten nice walnut logs, " for his saw mill. Back- house, supposing of course that they were " black-walnut logs, " agreed to give a dollar a-piece for them on delivery at his mill-dam. Back- house then in turn proposed to sell Jones two tame "ground hogs" that he had at home for fifty cents each, which Jones agreed to give, and to receive and pay for them when the first log was delivered. Jones cut the logs, loaded one on his wagon and drove down to the dam to unload. Backhouse happened to be there; "What is that you have there ?" "One of the logs." " What logs ?" "Why one of those walnut logs you hought of me." That's no walnut log." " Yes it is, as fine a 'shag-bark ' walnut as grows in Indiana." " It's no such thing, it is nothing but a shell-bark hickory." "Will you receive it ? I tender it to you with the other nine, under our contract aud demand my pay." " I shall not receive it, but am ready to receive the black-walnut logs I bought of you." "Then let me have the ground hogs I bought of you, I am ready to pay for them. " "Come down to the house and you shall have them. " At the house-" There they are, Mr. Jones." " What, them ground hogs, dew tell !" " Yes, a pair of as fine ground hogs as I ever saw, and perfectly tame." " They are no ground hogs, they are nothing but woodchucks. I would not give a cent for them, the pestering things bored our ground all hollow in York State." "I tender you the ground hogs and demand the pay." "I shall not touch them woodchucks, but am ready to receive and pay for the ground hogs under our contract." The parties were strictly honest men, wholly incapable of the suggestio falsi or the supressio veri, as was admitted by the learned counsel that argued the case. Associate justice Ogden .- " We have heard this case with attention and unusual interest, and I must say that after years of experience as justice of the peace and on this bench, I have never
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49
A CASE OF MISNOMER, ETC.
had a more difficult case to deeide. The ease will be taken under advisement to consult the lawyers and judges of the other courts." Entry " curia advisare vult."
A CASE OF MISNOMER.
" MOFFITT 28. Flowers," said the associate judge, "are the parties ready ?" " Ready," says Mr. Henry C. Hammond for the plaintiff. " Ready," says Flowers in person. The action was brought on a phy- sieian's bill for attendance on Lueinda, the wife of the defendant. Flowers was a kind of country pettifogger, who came up to the opinion of Judge Mills, of Kentucky, when granting a law license to Davis Flournoy, who had failed to answer a single question, but who boldly and impertinently persisted in urging the judge to grant him a license. " Well, Mr Flournoy, make out your license, and I will sign it, you have two of the qualifieations of a village attorney." "What are they, sir ?" "Impudence and ignorance, sir." Flowers, however, had read " Espinasse on Misnomer." Mr. Hammond opened the ease to the court, and then took up the account of his client and eom- menced reading. " To visit and anodyne " --- "Stop, " says Flowers, in a voice of thunder that startled the court and bystanders, "stop reading ; " and rising to his feet-" I demand a non-suit." The Court .- " Upon what ground ?" " Upon what ground ! why of mis- nomer." " Of what ?" "Of misnomer; her name is Lucinda and not Anodyne." The Court .- " Was she ever called or known by the name of Anodyne?" " Never that I ever heard of." This was a damper-a perfect chevaux de frieze in the way of the plaintiff. Counsel for plaintiff. - " We will suffer a non-suit and try him again, as we see the Court is dead set against us." The Court .- " Let the non-suit be entered, and the next time bring the suit in the right name."
THE BLARNEY STONE.
I WAS sitting in my office at Connersville, one day, when in stepped an Irishman, whom I call John Wood, of Union county, and told me he had been recommended to me for sound counsel in an important case. Ile had arrived in America directly from Cork, Ireland, only a few years before, bringing with him his wife and several children as far as Hamilton county, Ohio, where by pure accident he and his " ould wo- man " had somehow got separated and had not lived together for sev- eral years, and his business with me was to employ me to file a bill for a divoree in the Union Circuit Court. We soon agreed on the
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EARLY INDIANA TRIALS.
fee, twenty dollars, and he left. I immediately filed the bill and had the notice published in the paper for the next term. The old woman by mere accident, also, saw the advertisement and thereby found out for the first time where the man had stopped after he had left her, and came directly over to the residence of the old man. The whole mat- ter was soon reconciled between them. Soon after the settlement the old man called at my office in fine humor. " Mr. Smith, the ould woman and myself have made up." "Indeed ! well I am very glad of it, you are both too old to separate." " I know you're glad ; you are a good man; I just came over to see what you intend to charge a poor man like meself who has made up with me ould woman." " I charge you twenty dollars, Mr. Wood." " Ah sure, Mr. Smith, you'll not charge a poor body twenty dollars. The moment I landed at New York I heard of you Mr. Smith, that ye was a kind-hearted man and a dis- tinguished sargeant in the law, as ye are Mr. Smith." "I charge you only ten dollars Mr. Wood." "Surely, Mr. Smith you will not charge a poor body ten dollars for such a little matter as this. Mr. Smith, I have been acquainted with all the great barristers of Ireland, with the - Ponsonbys, the Emmets, the Grattons, the Currans and the Burkes, but there is not one of them that is aiqual to you, Mr. Smith ; you are so approachable in court, and you can take such grand distinctions in the law." "I charge you nothing Mr. Wood." " Ah! you are a gentlemanly man, Mr. Smith, surely you will pay the Printer." Mr. Wood was the only man I ever knew that always carried the " blarney stone " with him and knew just how to use it.
51
THE INDIAN MURDERS.
[WEDNESDAY MORNING, JULY 22, 1857.
THE INDIAN MURDERS IN 1824.
AT the time of the Indian murders on Fall Creek, the country was new and the population scattered here and there in the woods. The game was plenty, and the Indian hunting-grounds had not been for- saken by several of the tribes. The white settlers felt some alarm at the news of an Indian encampment in the neighborhood, and although they were all friendly, a watchful eye was kept on all their movements. The county of Madison had been organized but a short time before. Pendleton, with a few houses, at the falls, was the seat of the new county; Anderson, on White River, was a small village ; Chesterfield and Huntsville were not then heard of. There were only a few houses between Indianapolis and the falls, and still fewer in other directions from the capital. Early in the spring of the year 1824, a hunting party of Seneca Indians, consisting of two men, three squaws, and fonr children, encamped on the east side of Fall Creek, about eight miles above the falls. The country around their camping ground was a dense, unbroken forest filled with game. The principal Indian was called Ludlow, and was said to be named for Stephen Ludlow, of Lawrenceburgh. The other man I call Mingo. The Indians commenced their season's hunting and trapping-the men with their guns, and the squaws setting the traps, preparing and cooking the game, and caring for the children-two boys some ten years old, and two girls of more tender years. A week had rolled round, and the success of the Indians had been only fair, with better pros- pects ahead, as the spring was opening, and raccoons were beginning to leave their holes in the trees in search of frogs that had begun to leave their muddy beds at the bottom of the creeks. The trapping season was only just commencing. Ludlow and his band, wholly unsnspicious of harm and unconscious of any approaching enemies, were seated around their camp fire, when there approached through the woods five white men-Harper, Sawyer, Hudson, Bridge, sen., and Bridge, jr. Harper was the leader, and stepping up to Ludlow, took him by the hand and told him his party had lost their horses, and wanted Ludlow and Mingo to help find them. The Indians agreed to go in search of the horses. Ludlow took one path and Mingo another. Harper followed Ludlow, and Hudson trailed Mingo, keep- ing some fifty yards behind. They traveled some short distance from the camp when Harper shot Ludlow through the body : he fell dead on his face. Hudson on hearing the crack of the rifle of Harper, immediately shot Mingo, the ball entering just below his shoulders
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EARLY INDIANA TRIALS.
and passing clear through his body. Mingo fell dead. The party then met, and proceeded to within gun-shot of the camp. Sawyer shot one of the squaws through the head. She fell and died without a struggle. Bridge, sen., shot another squaw, and Bridge, jr., the other squaw. Both fell dead. Sawyer then fired at the oldest boy but only wounded him. The other children were shot by some of the party. Harper then led on to the camp. The two squaws, one boy and the two little girls lay dead, but the oldest boy was still living. Sawyer took him by the legs and knocked his brains out against the end of a log. The camp was then robbed of every thing worth carrying away. Harper, the ring-leader, left immediately for Ohio and was never taken. Hudson, Sawyer, Bridge, sen., and Bridge, jr., were arrested, and when I first saw them they were confined in a square log jail, built of heavy beech and sugar-tree logs, notched down closely and fitting tight above, below, and ou the sides. I entered with the sheriff. The prisoners were all heavily iroued, and sitting on the straw on the floor. Hudson was a man of about middle size with a bad look, dark eye, and bushy hair, about thirty-five years of age in appearance. Sawyer was about the same age, rather heavier than Hudson, but there was nothing in his appearance that could have marked him in a crowd, as any other than a common farmer. Bridge, sen., was much older than Sawyer ; his head was quite grey, he was above the common hight, slender, and a little bent while standing. Bridge, jr., was some eighteen years of age, a tall stripling. Bridge, sen., was the father of Bridge, jr., and the brother-in-law of Sawyer. The news of these Indian murders flew upon the wings of the winds. The settlers became greatly alarmed, fearing the retaliatory vengeance of the tribes and especially of the other bands of the Senecas. The facts reached Mr. Johu Johnston at the Indian Agency at Piqua, Ohio. An account of the murders was sent from the Agency to the War Department at Washington City. Col. Johnston and William Conner, visited all the Indian tribes, and assured them that the gov- ernment would punish the offenders, and obtained the promise of the chiefs and warriors that they would wait and see what their "Great Father " would do before they took the matter into their own hands. This quieted the fears of the settlers, and preparation was commenced for the trials. A new log building was erected at the north part of Pendleton, with two rooms, one for the court, and the other for the grand- jury. The court-room was about twenty by thirty feet, with a heavy " puncheon " floor, a platform at one end three feet high, with a strong railing in front, a bench for the judges, a plain table for the clerk, in front on the floor a long bench for the counsel, a little pen for the prison-
53
AN ANECDOTE.
ers, a side bench for the witnesses, and a long pole in front, substantially supported, to separate the crowd from the court and bar. A guard by day and night was placed around the jail. The court was com- posed of Wm. W. Wick, presiding judge, Samuel Holliday and Adam Winchell, associates. Judge Wick was young on the bench, but with much experience in criminal trials. Judge Holliday was one of the best and most conscientious men I ever knew. Judge Winchell was a blacksmith, and had ironed the prisoners; he was an honest, rough, frank, illiterate man, without any pretensions to legal knowledge. Moses Cox was the clerk ; he could barely write his name, and when a candidate for justice of the peace at Connersville, he boasted of his superior qualifications, " I have been sued on every section of the statute and know all about the law, while my competitor has never been sued and knows nothing about the statute." Samuel Cory the sheriff, was a fine specimen of a woods' Hoosier, tall and strong- boned, with hearty laugh, without fear of man or beast, with a voice that made the woods ring as he called the jurors and witnesses. The county was thus prepared for the trials. In the meantime the government was not sleeping. Col. Johnston, the Indian agent, was directed to attend the trials to see that the witnesses were present and to pay their fees. Gen. James Noble, then a United States Sen- ator, was employed by the Secretary of War to prosecute, with power to fee an assistant ; Philips Sweetzer, a young son-in-law of the Gen- eral, of high promise in his profession, was selected by the General as his assistant; Calvin Fletcher was the regular prosecuting attorney, then a young man of more than ordinary ability, and a good criminal lawyer. The only inn at Pendleton was a new frame house near the creek, still standing by the side of the railroad bridge.
AN ANECDOTE.
THE term of the court was about being held. The Sunday before the term commeneed, the lawyers began to arrive, and, as the custom was in those days, they were invited out to dine on the Sabbath, by the most wealthy citizens, as a favor and compliment, not to the lawyers, but to their hosts. We had a statute in those days imposing a fine of one dollar on each person who should " profanely curse, swear, or damn," and making it the duty of all judges and magis- trates to see that the law was enforced upon offenders in their presence. Judge Holliday invited Calvin Fletcher, the circuit prosecuting attor- ney, and his Indianapolis friend, Daniel B. Wick-the brother of the judge-to dine with him. The invitation was accepted, of course,
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EARLY INDIANA TRIALS.
there being no previous engagement in the way. Dinner was an- nounced ; Judge Holliday asked a "blessing" at the table-Mr. Fletcher declining. The judge had killed a fat goose for the extra- ordinary occasion, which was nicely stuffed with well-seasoned bread and onions, and placed in the center of the table. Mr. Wick, who was not a church-member, fixed his eye upon the goose, and said by way of compliment, " That is a damned fine goose, Judge." " Yes, it ' is a fine goose, and you are fined a dollar for swearing." Not a word more was spoken at the table. Dinner over, Judge IIolliday said, " Squire Wick, pay me the dollar." " I have not a cent, Judge, with me." " Perhaps Mr. Fletcher will leud it to you." Mr. Fletcher .- " I really have only enough with me to pay my tavern bill." Judge Holliday .- " What is to be done ?" Fletcher .- " Lend him the money, Judge, and take his note, or bind him over to Court." "I'll bind him over; you'll go his security ?" " The rules of the Court forbid lawyers from going security for any one, but you can go it yourself; just draw the recognizance that ' Daniel B. Wick, and Samuel Holliday, appeared before Samuel Holliday, associate judge of the Madison Cirenit Court, and acknowledged themselves to be indebted to the State in the penalty of twenty-five dollars each for the appearance of Daniel B. Wick at the next term of the court to answer.'" The sea- sonable proposition of Mr. Fletcher was at once accepted by all par- ties. The recognizance was taken in due formu, and forfeited at the next term, by the absence of Mr. Wick. Judgment was rendered against Judge Holliday for twenty-five dollars. A petition to the Governor was drawn up, and signed by the whole bar : a remittance soon followed. The trial of Hudson commenced the next day after the Sabbath diuner, at Judge Holliday's, and will be sketched in my next.
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55
TRIAL OF HUDSON.
[THURSDAY MORNING, JULY 23, 1857.
TRIAL OF HUDSON.
A WORD. of explanation before my sketch to-day commences. It has already been asked whether I have quit the practice of law, supposing that my whole time was occupied with these reminiscences. While I was a student of law, my habit was to lay down heavy reading the moment my mind was no longer able to understand and retain the previous chapter, and take up works of a different character-Plutarch's Lives, History, Travels, Voyages, and Adven- tures-until my mind was sufficiently rested, and then resume my studies. At the time I commenced these sketches, I was preparing some heavy briefs for the Supreme Court of the United States, and my mind needed rest. Instead of reading, I employed the time I have to spare in bringing up early incidents. I have kept no notes, and am drawing entirely upon my recollection, which in most cases I find very distinct. Pardon this disgression.
The day for the trial of Hudson, one of the prisoners arrived. A number of distinguished lawyers were in attendance from this State, and several from the State of Ohio. Among the most prominent I name General James Noble, Philips Sweetzer, Harvey Gregg, Lot Bloomfield, James Rariden, Charles II. Test, Calvin Fletcher, Daniel B. Wick and William R. Morris, of this State; General Sampson Masou and Moses Vance, of Ohio. Judge Wick being temporarily absent in the morning, William R. Morris arose and moved the associate judges-" I ask that these gentlemen be admitted as attorneys and counselors at this bar ; they are regular practitioners, but have not brought their licenses with them." Judge Winchell .- " Have they come here to defend the prisoners ?" " The most of them have." "Let them be sworn-nobody but a lawyer would defend a murderer."
Mr. Morris .- " I move the court for a writ of habeas corpus, to bring up the prisoners now illegally confined in jail." Judge Winchell .- " For what ?" " A writ of habeas corpus." "What do you want to do with it?" "To bring up the prisoners and have them discharged." " Is there any law for that ?" Morris read the statute regulating the writ of habeas corpus. "That act, Mr. Morris, has been repealed long ago." " Your honor is mistaken, it is a con- stitutional writ, as old as Magna Charta itself." " Well, Mr. Morris, to cut the matter short, it would do you no good to bring out the prisoners, I ironed them myself, and you will never get them irons off until they have been tried, habeas corpus or no habeas corpus."
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EARLY INDIANA TRIALS.
Per curia, "motion overruled." Judge Wick entered and took his seat between the two side judges. "Call the grand-jury." All answer to their names, and are sworn. Court adjourned for dinner. Court met; the grand-jury brought into court an indictment for murder drawn by Mr. Fletcher against Hudson. Counsel on both sides .- " Bring the prisoner into court." The Court .- " Sheriff put in the box a jury." Sheriff .- " May it please the Court, Dr. Highday just handed me a list of jurors to call on the jury." Judge Wick .- " Bring Dr. Highday into court." "Did your honor wish to see me ?" "Dr. Highday is this your handwriting." "I presume it is." " Dr. Highday we have no jail to put you in, the one we have is full ; hear your sentence, it is the judgment of the Court that you be banished from these court grounds till the trials are over; Sheriff, see the judgment of the Court carried strictly into execution."
I digress to give the scene in court, published by General Sampson Mason, in a Springfield, Ohio, paper. " As I entered the court-room the judge was sitting on a block, paring his toe nails, when the sheriff entered, out of breath, and informed the court that he had six jurors tied, and his deputies were running down the others." General Mason, with all his candor, unquestionably drew upon his imagina- tion in this instance.
Hudson, the prisoner, was brought into court by the Deputy Sheriff and two of the guard. Ilis appearance had greatly changed since I first saw him in the log pen with his comrades in crime. He was now pale, haggard and downcast, and with a faltering voice, answered upon his arraignment, "Not Guilty." The petit-jury were hardy, honest pioneers, wearing moccasins and side-knives. The evidence occupied but a single day, and was positive, closing every door of hope to the prisoner. The prosecuting attorney read the statute creating and affixing the punishment to the homicide, and plainly stated the substance of the evidence. He was followed for the prisoner, in able, eloquent, and powerful speeches, appealing to the prejudice of the jury against the Indians ; relating in glowing colors the early massacres of white men, women and children, by the Indians; reading the principal incidents in the history of Daniel Boone and Simon Kenton ; relating their cruelties at the battle of the Blue Licks and Bryant's Station, and not forgetting the defeat of Braddock, St. Clair, and Harmar. General James Noble closed the argument for the State in one of his forcible speeches, holding up to the jury the bloody clothes of the Indians, and appealing to the justice, patriotism, and love of the laws of the jury, not forgetting that the safety of the settlers might depend upon the conviction of
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A NEW MODE OF PROCURING A SIGNATURE.
the prisoners, as the chiefs and warriors expected justice to be done. The speech of the general had a marked effect upon the crowd, as well as the jury. Judge Wick charged the jury at some length, laying down the law of homicide in its different degrees, and dis- tinctly impressing upon the jury that the law knew no distinction as to nation or color ; that the murder of an Indian was equally as criminal in law as the murder of the white man. The jury retired, and next morning brought into court a verdiet of " guilty of murder in the first degree," motion for a new trial overruled. The prisoner brought into court, and sentence of death pronounced in the most solemn manner, by Judge Wick. The time for the execution was fixed, as is usual, for a distant day. In the meantime Hudson made his escape from the guard one dark night, and hid himself in a hollow log in the woods, where he was found and arrested.
Time rolled on, the fatal day for the execution arrived. Multitudes of people were there. Among them were scen several Senecas, relatives of the murdered Indians. The gallows was erected just above the falls, on the north side. The people covered the surround- ing hills, and at the appointed hour, Hudson, by the forfeiture of his life, made the last earthly atonement for his crimes. Such was the result of the first case on record in America, where a white man was hung for killing an Indian. The other cases were continued until the next term of the court, and will be the subject of a distinct sketch.
A NEW MODE OF PROCURING A SIGNATURE.
BEFORE the court adjourned there occurred an incident that I notice, not for its importance, but as a kind of relief reminiscence after the narration of the tragedy of Hudson. The grand-jury was still in session, and Mr. Fletcher, the prosecuting attorney, was before them examining the witnesses. A case was presented against an individual for selling whisky by retail without license. The proof was positive. The question was put and the jurors unanimously voted for a bill to be drawn. Mr. Fletcher drew the bill, presented it to the foreman, and asked him to sign it. " I shall do no such thing, Mr. Fletcher, I sell whisky without license myself and I shall not indict others for what I do." "If you don't sign it I will take you before Judge Wick." " What do I care for Judge Wick, he knows nothing about such matters." Mr. Fletcher .- " The grand- jury will follow me into court." In the court-room .- " This fore- man of the grand-jury refuses to sign his name to a bill of indict- ment against a man for selling whisky without license." Judge
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EARLY INDIANA TRIALS.
Wick .- " Have twelve of the jury agreed to find the bill ?" " Yes, eighteen of them." " Foreman, do you refuse to sign the bill." " I do." " Well, Mr. prosecutor, I see no other way, but to leave him to his conscience and his God; the grand-jury will return to their room." In the grand-jury room, the foreman said, "I told you that Judge Wick knew nothing about such cases." Mr. Fletcher .- " I am only taking the legal steps to have the bill signed." "What are you going to do now, why are you stripping off your coat ?" " The law requires the last step to be taken." " What step is that ?" " To thrash you until you do sign the bill." "Don't strike Mr. Fletcher, and I will sign the bill." "Here it is, sign it." The fore- man signed the bill, and the jury returned into court. Judge Wick .- " Has the foreman signed the bill." "He has." "I thought his couscience would not let him rest till he signed it."
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