USA > Indiana > Bartholomew County > History of Bartholomew County, Indiana : From the earliest time to the present, with biographical sketches, notes, etc. : Together with a short history of the Northwest, the Indiana Territory, and the state of Indiana > Part 35
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The nucleus of a new party had begun to form. About 1840,
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the first anti-slavery documents were circulated in the county. Jo- seph Cramer, a Pennsylvanian and a Democrat, and Jasper H. Sprague, a New Englander and a Whig, were the only pronounced abolitionists at that time, though the Quakers of Sand Creek Town- ship, all of whom except a Mr. Peaslee, were Whigs, were op- posed to slavery, but had taken no part hitherto in azititating the question of its abolition. Many other Whigs in the county were opposed to slavery in the abstract but were equally opposed to any interference with it when it existed under the authority of law, fear- ing to disturb the harmony and good feeling between the two sec- tions of the country. In 1843, the abolition candidate for Governor received nine votes in the county, and in the following year thirteen citizens voted for James G. Birney, abolition candidate, in prefer- ence to Henry Clay or James K. Polk. Those votes were cast by the Quakers. The growth of the anti-slavery vote is elsewhere shown.
The campaign of 1848 was spirited but not as brilliant as those which had preceded it; that of 1852 was heated and exciting; and those following, wherein were discussed those great questions which for decision were at length referred to the fierce arbitrament of war, stirred public opinion to its very depths. It is not the pur- pose to consider further these political struggles.
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Some have lived to note the changes and improvement made since the first white settler pitched his tent on the fertile lands of the Hawpatch, now seventy years ago. They have seen the " wilderness rejoice and blossom as the rose," savages and wild beasts disappear, the log cabins replaced by comfortable and even luxurious homes, schools and churches erected in every' com- munity; and thus in the great transformation presented, have wit- nessed what seems to be the culmination of civilization and refine- ment. Most of the pioneers have passed away, and with them the land marks they erected. Because of this, and the frailty of aged memories, much of the early history is buried in eternal oblivion. What has been rescued shows that a great debt, which can not be reckoned in dollars and cents, is due from the present generation to the authors of the rich inheritance which they enjoy. To the liv-
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ing pioneers the consciousness of heroism in their lives, and of good deeds wrought for their onward subsequent generation is an addi- tional compensation and reward for the trying struggles manfully made.
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INDIAN HISTORY.
CHAPTER IV.
INDIAN HISTORY - SITUATION UNFAVORABLE FOR THE RED MAN -INDIAN LAND TITLES -THE DELAAWARE NATION-A DOOMED RACE -PIGEON ROOST MASSACRE - BATTLE AT TIPTON'S ISLAND - TREATY AT ST. MARYS.
ARTHOLOMEW COUNTY is so situated that in1 early times the Indians found but little encouragement to make it their permanent home. The most of it is low and level and is traversed by sluggish streams that then for a large portion of the year, overflowed their banks, rendering the adjacent country uninhabitable. These very streams, however, were the highways traversed by · the red man in his light canoe in going from one portion of the country to another. That part of Indiana lying between the White and Ohio rivers and comprising nearly all the eastern and central portion of the State, was occupied by what are known as the Dela- ware Indians at the time the earliest permanent white settlements were made here. A few other tribes were, however, located with- in this tract, the most noted of which was, perhaps, the Shawnee. It was to this latter tribe that those two famous Indians, Tecumseh and the Shawnee Prophet, belonged. A remnant of this tribe oc- cupied that portion of Indiana, lying to the southeast of Bartholo- mew County, while the Delawares were situated farther to the north. Thus it will be seen that Bartholomew was rather neutral ground on the border between two tribes and was probably visited more often when the impetus of the chase carried the red man be- yond his usual boundaries, than through any other motive.
The title to the land was, at the period of the settlement in southern Indiana, vested in the Delaware Indians, who had moved to this State in the latter part of the eighteenth century, from the eastern part of Ohio. This tribe was at one time one of the most pow- erful that inhabited the New World, and its fate has been more sor- rowful and calculated to excite more sympathy than almost any
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other in the history of American Indians. Their original home was . upon the banks of the Delaware and Susquehanna rivers, from «which the pacific aggression, if so it may be termed, of William Penn and his followers, soon excluded them. In the carly part of the eighteenth century, they endeavored to abandon the haunts of white men and they took up that westward march which the van of civilization has compelled them to continue to their graves. Their first halt was in Ohio on the banks of the Muskingum and Mahon- ing rivers, but scarcely had they familiarized themselves with the forests of their new tenting ground ere they were again obliged to take up their journey. This last was about the close of the Revo- lution, at which time they located in Indiana along the White River and its tributaries. In this region they were at first only tenants by. permission of the Miami Indians, but after a few years' occupation they were acknowledged to be the ostensible owners of the soil. In fact all the tribes that occupied Indiana, excepting the Miamis, were what were known as "permitted" tribes, though in a few years after coming here it was deemed necessary in all treaties pertaining to the ownership, or title of the land, to have the assent and signature of these " permitted " tribes.
The original name of the Delaware tribe of Indians was Lenni- Lennepe, which was substituted for the name by which they are more generally known. As a tribe they were more friendly to the whites than many that surrounded them, although they were often found in arms against the early settlers. Their cause for hostility had much more of justice than injustice in most cases, for they were being pushed almost from the face of the earth in order to give room for a more aggressive and enlightened race.
There seems to have been some sort of agreement or under- standing between the Delawares and Miamis as to the exchange of territory, for not long after the pioneer had come to Indiana the Miamis abandoned the whole White River country and the lower Wabash Valley, and moved to Ohio, whence the Delawares had come. It is probable that this was done in order to allow the Miamis to reside nearer the British in Canada, whose allies they had been in the War of the Revolution. In the State history in the forepart of this volume, there can be found much interesting
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matter pertaining to the general Indian history of the State and also of these leading tribes.
As stated at the outset of this chapter, Bartholomew County occupied a rather neutral position, and the surface features were such as to render its occupation by a savage race undesirable if not precarious. For these reasons there seems to be but little history that is purely local relating to this county. The principal cause for this is, of course, to be found in the fact that comparatively few white people settled in the boundaries of Bartholomew County prior to the time when the battle of Tippecanoe, together with the termination of the War of 1812, brought a cessation of open hos- tilities throughout most of the northwest territory. To be sure there were occasional depredations committed by some of the law- less Indians as well as by some of the whites. But nothing of that character seems ever to have occurred in this county of sufficient importance either to excite tradition or to attract the attention of the historian.
One of the outrages of this character, nearest to what is now Bartholomew County, was the " Pigeon Roost " massacre, which occurred September 3, 1812, within what is now Scott County. There were three men, five women and sixteen children killed at that time, and it spread more terror and alarm throughout the set- tlements of southern Indiana than all other events that happened during the early history of the State. This bloody tragedy was committed by a band of some ten or twelve warriors, most of whom were Shawnees. Dillon, in his "History of Indiana," gives the following: " On the afternoon of the 4th of September, about 150 mounted riflemen, under the command of Major John McCoy, fol- lowed the trail of the Indians about twenty miles, when ' the dark- ness of the night' compelled them to give up the pursuit. A small scouting party, under the command of Captain Devault, discovered and made an attack on the retreating, who, after killing one of Captain Devault's men, continued their flight through the woods and eluded the pursuit of the scouting party." In order to give some idea of the state of the constant excitement and alarm which attended the early settlers in this vicinity about that time, the fol- lowing account of Mr. Zebulun Collings, who lived but a few miles
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from "Pigeon Roost," is given: " The manner in which I used to work in those perilous times was as follows: On all occasions I carried my rifle, tomahawk and butcher knife, with a loaded pistol, in my belt. When I went to plow, I laid my gun on the plowed ground and stuck up a stick by it for a mark so that I could get it quick in case it was wanted. I had two good dogs. I took one into the house, leaving the other out. The one out was expected to give the alarm which would cause the one inside to bark, by which I would be awakened, having my arms always loaded. I kept my horses in a'stable close to the house, having a port hole so that I could shoot to the stable door. During two years I never went from home with any certainty of returning - not know- ing the minute I might receive a ball from an unknown hand; but in the midst of all these dangers, that God who never sleeps nor slumbers has kept me." Such were the hazzards of pioneer life in southern Indiana.
In March, 1813, one man was killed near Vallonia and three wounded. Major John Tipton was then commanding the militia in this part of the State, and in his report to Governor Gibeon he says: " At that time I was not here. On my arrival I took twenty- nine men and went up Driftwood River, twenty-five miles. I met a party of Indians on an island in the river. A small skirmish took place and in twenty minutes defeated them, killing one dead on the ground and saw some sink in the river, and I believe all that made their escape by swimming the river, if any did so, lost their guns." This skirmish took place on a small island in the river just south of the Bartholomew County line in what is now Jackson County. It has ever since been known as Tipton's Island.
The treaty by which the Delawares relinquished all claim to their lands in Indiana was concluded at St. Marys, October 3, 1818. Nearly all of it is here given :
Articles of a treaty with the Delawares at St. Marys, in the State of Ohio, between Jonathan Jennings, Lewis Cass and Ben- jamin Parke, Commissioners of the United States, and the Dela- ware Indians.
ARTICLE I. The Delaware Nation of Indians cede to the United States, all their claims to land in the State of Indiana.
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ARTICLE 2. In consideration of the aforesaid cession, the United States agree to provide for the Delawares a country to reside in upon the west side of the Mississippi, and to guarantee to them the peaceable possession of the same.
ARTICLE 3. The United States also agree to pay to the Dela- wares the full value of their improvements in the country hereby ceded, which valuation shall be made by persons to be appointed for that purpose by the President of the United States, and to fur- nish the Delawares with 120 horses not to exceed in value $40 each, and a sufficient of pirogues to aid in transporting them to the west side of the Mississippi, and a quantity of provisions proportioned to their numbers, and the extent of their journey.
ARTICLE 4. The Delawares shall be allowed the use and occu- pation of their improvements for the term of three years from the date of this treaty if they so long require it.
ARTICLE 5. The United States agree to pay to the Delawares a perpetual annuity of $4,000, which, together with all annuities which the United States by former treaty agreed to pay them, shall be paid in silver at any place to which the Delawares may remove.
ARTICLE 6. The United States agree to provide and support a blacksmith for the Delawares, after their removal to the west side of the Mississippi.
ARTICLE 8. A sum not exceeding $13,312.25, shall be paid by the United States, to satisfy certain claims against the Delaware Nation.
ARTICLE 9. This treaty after it shall be ratified by the Presi- dent and Senate, shall be binding on the contracting parties.
In testimony the said Jonathan Jennings, Lewis Cass and Ben- jamin Parke aforesaid, and the chiefs and warriors of the Dela- ware Nation of Indians, have hereunto set their hands at St. Marys, in the State of Ohio, this 23d day of October, ISIS.
Signed.
" JONATHAN JENNINGS,
" LEWIS CASS, " BENJAMIN PARKE."
In accordance with this treaty the Indians were allowed the term of three years in which to prepare for departure, but they did not avail themselves of the full time. The whites began com- 9
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ing in rapidly after this and there was much rivalry among them in trying to obtain the choice of lands. Ere the three years had ex- pired, all that remained of the once powerful, proud and brave Delaware Nation, resumed its journey toward the setting sun. Even beyond the mighty Father of Waters they have found no permanent resting place. The resistless tide of American prog- ress has still pursued them. The command to further west has again and again sounded in their cars, and the last lone warrior of the Delawares will probably sing his death-song to the wild music of the winds and waves of the Pacific Ocean. It is sad to contem- plate the extinction of a brave though savage and untutored race, but that result is sure and inevitable when it stands in the way of a highly civilized people. Nor can we really regret it when we con- sider how vastly the amount of happiness in the world is increased. An Indian requires thousands of acres to support his family; on the same territory a hundred happy families of the Caucasian race will find their homes.
From the time when the white men of Europe first landed on the soil of the Western Hemisphere, there has been but little variety in the fate of the Red men. Being an inferior race they have but followed that inevitable law of nature, the survival of the fittest. In the conflict with a foeman race they have succumbed to a civilization they could not attain and to a progress they could not resist.
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BENCHI AND BAR.
CHAPTER V.
BY COL. S. STANSIFER.
BENCH AND BAR - FIRST COURTS - ADOPTION OF SEAL - EARLY CASES-MISCELLANEOUS ITEMS-JUDGES OF CIRCUIT AND COMMON PLEAS COURTS-ASSOCIATE JUDGES-PROSE- CUTING ATTORNEYS-CLERKS-SHERIFFS-ROLL OF AT- TORNEYS.
HE importance of courts of law cannot well be over es- timated. To say that without law anarchy would reign, is trite. The law without courts would be a dead letter. The church, notwithstanding its high and holy mission, but for human law, would be powerless, and the claim that such laws are, or ought to be, inspired by Divine Law, is not disputed; but whether so inspired or not, they must be executed by the courts. The judge, the clerk, the sheriff and attorneys are each and all officers and integrals of the court, and in order that justice may be administered, the officers from the highest to the lowest ought to be men of known integrity, and peculiar fitness for their positions.
In this State the Circuit Court has always been a court of gen- eral jurisdiction, and other courts were aids or reliefs for that court; therefore this chapter will be devoted mainly to the Circuit Court. From the time of its first organization to the adoption of the Code of 1852, the Circuit Court was presided over by a President Judge, a man "learned in the law," and two Associate Judges in each county elected by the people. The Associate Judges presided in the absence of the President Judge and with him when present, with the power, but rarely exercised, to overrule the President Judge. By the Acts of 1852, Associate Judges were dispensed with, and the Court of Common Pleas was created, with exclusive jurisdiction over estates and guardianships, and largely concurrent jurisdiction with the Circuit Court, except cases involving title to real estate, actions for slander, libel and breach of promise to marry.
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The Circuit Court retained exclusive jurisdiction over felonies, ex- cupt enumerated cases for the benefit of defendants, in order to secure a speedy trial; exclusive jurisdiction over misdemeanors was given to the Court of Common Pleas, except the cases over which Justice's courts had exclusive jurisdiction. By the Act of March 6, 1873, the Court of Common Pleas was abolished and all matters confided to it restored to the Circuit Court. By the Act of June 11, 1852, a Court of Conciliation was created providing that any person claiming to have a cause of action against another for libel, slander, malicious prosecution, assault and battery or false imprisonment, might serve on him a written notice briefly stating the cause of action, and requiring him to appear at a time and place named before the Judge of the Court of Common Pleas. None but the parties, guardians of infants, husbands of wives, parties plaintiff or defendant, were permitted to appear at the hearing. It was the duty of the court to affect a reconciliation if it could rea- sonably be done, and if settled the entry thereof ended the matter. Without such notice and appearance of the plaintiff before the Court of Conciliation, he could not recover costs in the action, and if the defendant failed to appear, then if he defeated the action, he could not recover costs. In theory the law was a good one, but in practice it was a failure, for the parties appeared, but refused to be conciliated. The law was soon repealed.
Before the adoption of the code of 1852, the common law prac- tice prohibited actions at law and suits in chancery; actions at law being sub-divided and classified, assumpsit, debt, trespass, trover, ejectment, etc. By the code, the distinction between actions at law and suits in equity and all forms of action, were abolished, and one form for all actions provided, a complaint stating the facts con- stituting the cause of action. This radical change, notwithstanding its tendency to obscure the salutary principles that obtained in chancery courts, and to encourage loose pleading, has on the whole, worked well, under the new order of things, whilst before, chancery cases were tried by the court, all cases at the election of either party were tried by a jury, and in cases that would have been chancery causes, suits for the settlement of long and intricate part- nerships, there was frequently a miscarriage of justice, for jurors
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were not allowed even to take notes of the evidence. This condi- tion of affairs was remedied by the code of ISSI, which provides that all cases, which before the code of 1852, were of exclusive chancery jurisdiction, shall be tried by the court.
The first Order Book of the Circuit Court, unnamed and un- numbered, (the next being Order Book A), is unpaged and unin- dexed, containing about fifty pages, dinily and in many parts almost illegibly written. It was evidently made up of loose sheets of paper afterward fastened together in a paper cover as it now is. The first day's preceeding read as follows :-
" At a circuit court begun and held at the house of Luke Bone- steel, on Monday the twelfth day of March, 1821, in and for the County of Bartholomew, in the 2nd Circuit of the State of Indiana, Being the 2nd Monday in March aforesaid. Thereupon comes the Honoroble John Pence and Ephraim Arnold Esqrs., who produc- ing their commissions severally from under the hand and seal of His Excellency Jonathan Jennings Governor of the State of Indiana as Associate Judges of Bartholomew County, together with an indorsement on the back of each from under the hand of Joseph McKinney Sheriff of said County of their having taking the nec- essary and lawful oath of office as Associate Judges aforesaid, and took their seats accordingly. Thereupon comes Edward Balinger Esqr. and produces to the court a commission from under the hand and seal of His Excellency, Jonathan Jennings Governor, of the State of Indiana, as Clerk of the County of Bartholomew, to- gether with an indorsement on the back thereof, from under the hand and seal of the Honorable Ephraim Arnold Esqr. one of the Associate Judges of the County aforesaid, of his having taken the necessary and legal oath of office as Clerk aforesaid, and com- menced to discharge the duties of said office. Thereupon the court proceeded to appoint John F. Ross, Esqr. prosecuting attorney during the present term of this court who was duly sworn into office as such. Thereupon came Joseph Mckinney, Esqr. Sheriff. of said County, with a panel of a grand jury, towit: Ebenezer Ward, I; John Lindsey, 2; Abdiel Parsons, 3; William Carter, 4; Elijah Sloan, 5; Joseph Cox, 6; Samuel Downing, 7; Jacob Gab- bard, 8; M. Boaz, 9; Robert Wilkinson, 10; James Goodwin, II;
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James Quick, 12; Daniel Akens, 13; Nathan Thompson, 14. Good and lawful men and householders of his bailiwick, who be- ing empanelled sworn, and Ebenezer Ward, being appointed and sworn as fforeman, retired from the bar of the court, to consult of their presentments and indictments. On motion of John F. Ross, Esqr., Alexander Holton, Reuben Nelson, Daniel Grant, and James Melaney, are admitted as counsellors and attorneys at law in this court, they having produced satisfactory evidence of having been licensed as such. On motion of R. W. Nelson, Esgr., James Braman, John F. Thompson and Isaac Naylor, are admitted as counsellors and attornies at law, in this court, they having pro- duced satisfactory evidence of their having been licensed as such.
" The Grand Jury now return into court, the following bill of indictment: . The State of Indiana vs. Henry Harmon and Michael Van Blaricum, for an affray. Duly signed by Ebenezer Ward, their Foreman, and having further business, retired out of court. Ordered that the court stand adjourned until to-morrow morning nine o'clock.
"JOHN PENCE, A. J. B. C. " EPHRAIM ARNOLD, A. J. B. C."
On the second day it was " ordered that the clerk of this court be authorized and he is hereby empowered to use his own private seal until the seal of this court can be procured." The grand jury returned the following indictments: The State of Indiana vs. Joseph Mckinney, assault and battery. The State of Indiana vs. William McFall, assault and battery. When the indictment against McKin- ney was returned he entered a plea of guilty -" Wherefore it is considered by the court now here that the Defendant Joseph Mc- Kinney do make his fine to the State of Indiana for the use of county seminaries for the County of Bartholomew in the sum of five dollars together with the costs of suit and the defendant in mercy, etc." So that the second indictment and first trial or con- viction was against the sheriff. On the same day (the second of the term) the following proceedings were had in the State of Ind- iana vs. William McFall -" And now at this time came the prose- cuting attorney and the defendant in his proper person who being arraigned says that he is in no wise guilty as charged in said in-
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dictment and for his trial puts himself upon the country and the at- torney prosecuting doeth the like and on motion and by consent, this cause is laid over for trial until tomorrow morning and the de- fendant is ordered into the custody of the sheriff."
No other business was transacted on the second day except the return of indictments against Cotton Kent, James Burns and Wiley Powell, each for assault and battery. The first entry in the third day's proceedings is as follows :
" The State of Indiana vs. William McFall - Indictment for assault and battery."
This day comes the Prosecuting Attorney and the defendant also appeared at the bar of the court in custody of the Sheriff and puts himself upon his trial upon the issue heretofore joined, and thereupon comes a jur , to-wit : Peter Frank, Woodson D. Parker, Daniel Sublet, Samuel White, Peter Shull, William Storm, Henry Farmer, Jesse Smith, Lewis Neel, Stephen Spencer, David Parker and John McEwen, twelve good and lawful men, three of which the Sheriff summoned of the bystanders to make up the deficiency, the names of which are as follows, to-wit: Lewis Neel, Stephen Spencer and David Parker; who being elected, tried and sworn, well and truly to try the issue joined, retired from the bar to con- sult of their verdict, and after some time spent therein, came and returned into court the following verdict, to-wit: " We the jury do find the defendant guilty and assess his fine at fifty cents." Then follows judgment for the use of the county seminarics of the county. The next entry is the approval of the bond of Edward Balinger as Clerk in the sum of $2,500 with John Parker and Jesse Ruddick as sureties. The next entry is a plea of guilty by Henry Harmon on the first indictment returned into court against himself and Van Blaricum. He was fined $2 and the case con- tinued as to Van Blaricum. The next entry is as follows: "Ordered, that the prison bounds of the County of Bartholomew be co-exten- sive to the out line of the town of Tiptona, agreeably to the bonds the County Commissioners hold for deeds from Tipton and Bone- steel."
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