USA > Indiana > Johnson County > History of Johnson County, Indiana > Part 12
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84
Judge Wick told another story of Harvey Gregg which is characteristic
Digitized by Google
.
127
JOHNSON COUNTY, INDIANA.
of the men and the times. It is thus repeated by Judge Banta in "The Bench and Bar of Indiana": "The Bartholomew court came to an end late one afternoon, when Judge Wick, Philip Sweetser and Harvey Gregg, at about nightfall, took the road for Franklin. The road was next to impassable and their progress was slow. Some time after the trio reached the place now marked by the village of Amity, in Johnson county, an opossum was dis- covered in the highway. At once one of the riders dismounted and suc- ceeded in catching the animal before it could make off; he soon had it 'pos- suming.' Here was a new diversion. What should be done with the 'possum found trespassing in the public way was the question. The trespasser was at once put to trial. Wick sat as judge, Gregg prosecuted and Sweetser defended, and the Judge long after asserted that the arguments of the two lawyers were ingenious and highly entertaining. The beast was found guilty of being 'in, upon and obstructing the public highway,' and the judg- ment of the court was that he should receive thirty-nine lashes, which pun- ishment was at once administered, after which the party resumed their journey and reached Franklin at daylight."
The criminal case disposed of at the March session of our court in 1824 was an indictment against David Burkhart for an affray with Richard Berry. It was charged and proven that the defendant by agreement with Berry fought together in a public place to the great terror of the good citi- zens of the county, and by the verdict of the jury, the defendant was fined in the sum of one cent "for the use of the County Seminary of Johnson County." It is a matter often remarked by historians of our pioneer days that breaches of the peace were the most common offenses, and, of these, affrays greatly outnumbered other offenses. In all new communities the spirit of personal independence is exaggerated, and neighbors settle disputes in a summary manner. To fight "by agreement" was regarded as a gentle- man's privilege, and while it sometimes met with punishment, the fine was small and the offender was rather proud of his misdemeanor. A charge of assault and battery was preferred only in cases where a man attacked a weaker or unoffending brother, and in such case the crime was more oppro- brious and the punishment was accordingly more severe. For example, we note that in the list of fines reported by James Thompson, a justice of the peace in Blue River township in 1832, nine are for affrays, with fines of one dollar each, while only two are for assault and battery, one of which cases drew a fine of twenty dollars. Of the other cases reported by the Squire, three are for "profane swearing," two for running a horse, two for Sabbath breaking, and one for exhibiting a show.
Digitized by Google
128
JOHNSON COUNTY, INDIANA.
Criminal actions greatly outnumbered the civil actions on the dockets of our court in the twenties and thirties. At the second term of the John- son circuit court, in March, 1824, four of the cases, out of a total of six, were for affrays and batteries. At the next September term, twelve actions were docketed, of which eight were criminal, five being for batteries and affrays. At the March term, 1825, ten out of fifteen cases were criminal prosecutions, of which seven were for assaults and batteries, and for affrays. At the September term, 1825, of the fifteen cases on the docket, eight were criminal and all belonged to the class above named. At the March term, 1826, thirteen out of nineteen cases were criminal, and of these eleven were for the same offenses. And this proportion of criminal cases held for sev- eral years.
Judge Banta, in commenting on this index of the civilization of the early times, well says: "The most casual study of Indiana's early history dis- closes the fact that the state was characterized by what may truly be called a 'pugnacious age,' an age that came in with the first Anglo-American settlers at Clarksville and to have continued well up into the forties. A pugnacious spirit seems to have pervaded all classes. A study of the history of the times as read in the newspapers of the period, and in the records of church courts as well as the civil, discloses this fact. A hint has already been given as to the disclosures made by the court records of the readiness of the people to brawl and fight; the same records disclose the fact that the people were no less ready to use their tongues against each other, than their fists. In the language of the times, they 'tongue-lashed' each mercilessly. As a result, the old dockets were seldom without an array of slander cases."
One civil case was disposed of at the March term, 1824, in our court. Court was held at the house of George King in Franklin on the 16th day of March, Fletcher & Morris appearing as counsel. Our county historian. Judge Banta, makes the statement that the court was convened at George King's wheel-wright shop on the first Monday in March, and that Gabriel Johnson, Philip Sweetser, Edgar C. Wilson and Hiram Brown were admitted to practice at the Johnson county bar. But the writer is unable to verify his statements from the original records either as to the date or as to names of attorneys who were before the court at that term. Court in this county was held pursuant to statute on the third Monday in March. An examination of the records discloses the fact that Calvin Fletcher was probably the only lawyer in attendance. Fletcher was an Indianapolis lawyer of much ability and his partner, Morris, was soon to become Wick's successor on the bench.
At the close of the year 1824 Judge Wick resigned to accept the office
Digitized by Google
129
JOHNSON COUNTY, INDIANA.
of secretary of state for a term of four years. He returned to Johnson county, however, at the March term, 1825, as counsel for the plaintiff in an action in chancery involving the title to a quarter section of land near Amity. Judge Wick later returned to the circuit as prosecuting attorney, and in 1834 again was elected to the bench of this, the fifth judicial circuit. In 1835 he changed his politics, becoming a Jackson Democrat, and on re- tiring from the judicial office in 1839 was elected to Congress on the Demo- cratic ticket. In 1845, and again in 1847, he was elected member of Con- gress from the district of which our county then formed a part. In 1849 he was elected presidential elector, and during the administration of President Franklin Pierce served four years as postmaster of Indianapolis. In 1850 he was again elected judge of our circuit and served for seven years, and in 1859 he occupied the bench of the circuit for a few months.
Thus for nearly forty years Judge Wick was in public life, for more than sixteen years honorably filling the office of circuit judge. The Hon. John Coburn, in his sketches of the personality of the members of the bar of the Indiana supreme court of 1843, thus describes Judge Wick: "The best looking man about town, as. he was called. He had a grand and com- manding figure-a great, massive head, a lofty and columnar forehead, projecting far over a pair of bright eyes. His voice was deep and im- pressive. He had been judge of the circuit court and a member of Congress. On the bench he presided with great ease and dignity. He often said that, his salary being small, he was only paid to guess at the law and was not bound to know it all. He was indolent, good natured and careless in business matters. He took life in an easy way. Never acquired property or seemed to care for its possession or strove to obtain it. He had a fair knowledge of the law, and when he chose to make an effort at the bar or on the bench, rose easily into the sphere of a strong man. He had abilities to be powerful, but put off the day of achievement. He excelled in conversation, had a good memory ; he had talked much and was adroit in expression, often humorous, always entertaining."
In 1848 Judge Wick said of himself, according to the author of "Bench and Bar of Indiana": "At the present writing Mr. Wick is fifty-two years of age, fair, a little fat, having increased since 1833 from one hundred and forty-six to two hundred and ten pounds; six feet and one inch in height, good complexion, portly-has been called the best looking man about town- but that was ten years ago-not to be sneezed at now-a little gray-has had chills and fever, bilious attacks and dyspepsia enough to kill a dozen
(9)
Digitized by
130
JOHNSON COUNTY, INDIANA.
common men, and has passed through misfortunes sufficient to humble a score of ordinary specimens of human nature. He acquired a good deal of miscellaneous knowledge, loves fun, looks serious, rises early, works much, and has a decided penchant for light diet. humor, reading, business, the drama, a fine horse, his gun and the woods. Wick owes nothing, and were he to die today his estate would inventory $800 or $900. He saves nothing of his per diem and mileage and yet has no vices to run away with money. He 'takes no thought for the morrow,' but relies upon the good Providence to which he is debtor for all. Wick would advise young men to fear and trust God, to cheat rogues and deceive intriguers by being perfectly honest (this mode misleads such cattle effectually), to touch the glass lightly, to eschew security and debt, tobacco, betting, hypocrisy and federalism, to rather believe or fall in with new philosophical and moral humbugs, and to love woman too well to injure her. They will thus be happy now, and will secure serenity at fifty-two years of age and thence onward."
The circuit riding lawyers and judges were not only exposed to great physical hardships, but their entertainment at the lonely cabin of the pioneer and at the village taverns promoted a spirit of recklessness and jollity not consistent with steady, sober-minded living. Many of them were intemper- ate, and none escaped the influences of their surroundings. We are not surprised to find, therefore, that even so clean a man as Judge Wick should, while serving as judge of the Johnson circuit court, be indicted and punished for "gaming." Oliver H. Smith, in his "Early Indiana Trials and Sketches," tells of the custom prevailing among the lawyers to meet at night and while away the tedious hours about the taverns with social games of cards, the winner taking a "snort" and the loser a "smell," the judges of the courts often leading in these old-fashioned amusements. The habit of drinking intoxicants was well-nigh universal, and yet few drank to excess.
Judge Smith relieves the story of the dissipations of the times (meas- ured by present standards) by many anecdotes of the merry gatherings of these circuit riders, and points an attractive picture of the better side of their fun-loving, gay careers. He says: "The great variety of trials and inci- dents on the circuit gave to the life of the traveling attorney an interest that we all relished exceedingly. There was none of the green-bag city monotony, no dyspepsia, no gout, no ennui, rheumatism or neuralgia ; consumption was a stranger among us. An occasional jump of the tooth-ache, relieved by the turnkey of the first doctor we came to, was the worst. All was fun, good humour, fine jokes well received, good appetites and sound sleeping, cheerful landlords, and good natured landladies at the head of the table."
Digitized by Google
13I
JOHNSON COUNTY, INDIANA.
Judge Banta tells of many practical jokes played by these itinerant lawyers, among them the following: "Daniel B. Wick was a great wag and loved his joke almost as well as he did his bottle. On one occasion he craved entertainment at the house of George King in Franklin, and knowing that Mr. King was a Presbyterian and entertained without charge preachers of that faith, Wick passed himself off as a Presbyterian preacher. The next morning the weather was damp and disagreeable, and when the visitor was arrayed for the road King set out his bottle with the suggestion that in view of the character of the morning a dram would not, perhaps, be objectionable. Wick offered no objection, but relating the adventure afterwards, he declared that he was never so sorry for anything in his life as that he was playing preacher for the moment, as he was compelled to drink a preacher's dram, when he wanted so very much to drink a lawyer's."
From these scenes and sketches, necessary to a sympathetic understand- ing of the lives of these pioneer lawyers and judges, we anticipate the close of the story of the life of the first and in many respects the greatest of the judges known to Johnson county citizens. Judge Wick came to old age loved by all, but broken in health and fortune. The last few years were spent at the home of his daughter, Mrs. William H. Overstreet, near the corner of King and Breckenridge streets in the city of Franklin. He died on the 19th day of May, 1868, and was buried in Greenlawn cemetery in Franklin. His life story is full of human interest, and the memory of his useful life ought to be kept fresh in the minds of the men of today. Judge Wick and Judge Finch were the only judges of the first half century of the county who claimed this as their home, at any time. The other judges resided at the capital city and were, save for their official relations, as strangers to our people.
Bethuel F. Morris, appointed by Governor William Hendricks to suc- ceed Judge Wick, began his service on the bench in this county at the March term, 1825, and continued until the September term. 1834. Judge Banta says of him: "Judge Morris was a slow man, slow in thought and slow in speech. He was not considered by the bar as a well-read lawyer, but he was a conscientious and painstaking worker. He paid great attention to the arguments of counsel, and usually gave satisfactory judgments, but fre- quently said : 'It is a good deal easier to give a good judgment than a good reason for it.' A few months before his commission expired, he resigned and took an office in the State Bank."
Among the circuit-riding lawyers whose names most frequently appear in the records signed by Judge Morris are Harvey Gregg. Philip Sweetser,
Digitized by Google
.
132
JOHNSON COUNTY, INDIANA.
Calvin Fletcher, Judge Wick, James Whitcomb, William Herod and Hiram Brown.
Of the above named, Gregg was circuit prosecutor in 1825, Fletcher in 1826, Whitcomb in 1827 and 1828, and Wick in 1829 and 1830. Philip Sweetser was employed in most of the civil cases of merit, and seems to have ranked high as a lawyer. He was born in Massachusetts, was grad- uated from Harvard College, and, according to Simon Yandes, who writes of the Indianapolis bar of 1839, was a class-mate of Rufus Choate, Sweetser leading his class in Greek, and Choate leading in Latin. John Coburn says of him: "A man of few words, who could condense an argument or a brief with more ease and precision than any man at the bar. A strong advocate, an excellent pleader, a skillful reasoner, a fearless defender of the rights of his client. He stood high in the supreme court because of the brevity, force, point and learning in his arguments. He was an Episcopalian in religion and a Whig in politics. A man of singular firmness and rectitude of character."
James Whitcomb, governor of Indiana from 1843 to 1848, and United States senator from 1848 to 1851, came often to our court, first as prosecuting attorney and later associated with Sweetser. Calvin Fletcher was a Ver- monter who had located in Indianapolis in 1821, and thereafter divided his time between business and the law. He was a successful banker and farmer, and a man of high repute. As a lawyer, he was slow to grasp a case, but he worked carefully and conscientiously, and his dealings with men had given him a keen understanding of human nature. With Fletcher's name on our records is associated the name of Hiram Brown, acknowledged by many of his contemporaries as the leading lawyer of central Indiana. Hiram Brown had little schooling, but his enthusiastic temperament and unflagging zeal, supplemented by an inborn grace of manner and speech, made him a great advocate, and he was everywhere noted as a speaker before juries.
With lawyers of such force and character riding the circuit it is little wonder that court week attracted unusual crowds. The lawyers, many of them from the older communities east of the mountains, brought with them the political news of the day, and their society was sought by the best people of the community. They were frequently guests at the homes of the more well-to-do, and their tavern was the center of the social life of the town for the week. The court room was thronged with visitors who came to see and hear the celebrities, and the court room became the people's university. The lawyers bent every effort to securing a verdict. An appeal was impossi- ble, almost, as the cases involved small amounts and courts of error were seldom sought by the litigant. Where the jury was the last resort, it was
Digitized by Google
133
JOHNSON COUNTY, INDIANA.
all important to use all the arts of persuasion and logic in the jury speech. Hence, the florid style, the exuberant fancy, the graceful gesture, the vehe- ment manner were much more in evidence in the court room than now. The lawyer had few law books to distract his mind, and his chief study was of his fellow man. They knew how to reach men by appeals to passion and prejudice, how to move them to sympathy and compassion, how to arouse anger and hatred, how to appeal to right and justice. And certainly we can believe that a law suit of the twenties was a better entertainment than those of the twentieth century.
The first man sent to the penitentiary from Johnson county received his sentence at the hands of Judge Morris. Nathaniel Bell, mill owner on the Whetzel trace, was tried and convicted for marking two unmarked hogs, and was sentenced to one year in the state penitentiary. Judge Wick, we may infer, defended him, for at the same term Bell confesses judgment in favor of Wick in the sum of fifty-four dollars. Many other similar cases are found in the early records. Violations of the estray laws were numerous and met with summary punishment. Not long after Bell's conviction two of his boys were indicted and tried for killing a stray hog, on a charge of malicious mischief. The boys were acquitted upon a peremptory instruction by the court, to which Prosecuting Attorney Whitcomb excepted, and this the first bill of exceptions filed in our court was recorded in full on the order book. It reads: "Be it remembered that on the trial of the above cause, the prosecuting attorney on behalf of the state gave in evidence that the de- fendant had said that he had killed a hog and about the time charged in the indictment. There was no other evidence that a hog had been killed except the above statement by the defendant. The jury were instructed that this testimony was not sufficient to convict the defendant without other evidence that a hog had been killed. To this instruction the prosecuting attorney excepts and prays that this his exception may be sealed and made a part of the record, which is accordingly done."
The corpus delicti had not been proven, and yet according to Judge Banta (History of Johnson County, page 334), the defendants were proba- bly guilty, as "Joseph Vorhies, who settled about three miles north of Hope- well, hearing a shot in the woods, went in the direction of it, till he came to a couple of men who had killed and were skinning a hog. They appeared quite friendly, and affecting great admiration of his gun, one of them took it as if to look at it. No sooner was he disarmed than their demeanor changed. They threatened his life and the man really thought his end had come. The hog thieves reminded him that 'dead men tell no tales,' but finally relenting,
Digitized by Google
134
JOHNSON COUNTY, INDIANA.
they made him swear never to reveal what he had seen, and true to his oath, he never told it till after he moved to Iowa, and after both thieves had long been dead."
Many of the court records of Judge Morris' day exhibit the quaint phraseology and yet precise form of the old style pleading. Even the ver- dicts of the jury were recorded with curious, yet entirely proper phrasing. A few examples will illustrate: "Whereupon came the jurors of the jury to-wit: (naming them) twelve good and lawful men and discreet house- holders who being elected, tried and sworn well and truly to try the issue joined and the truth to speak between the parties upon their oaths do say : We the jury find the defendant guilty and assess the plaintiff's damage at five hundred dollars."
A demurrer to an answer followed this form: "And the plaintiff comes and says that the plea of the said defendant by the said defendant above pleaded is not sufficient in law to bar the said plaintiff of his said action nor is he bound by the law of the land to answer the same and this he is ready to verify." And to this demurrer, the defendant files his joinder in these words: "And the said defendant saith that the said plea by him above pleaded and the matters therein contained as the same are above pleaded and set forth are sufficient in law to bar and preclude the said plaintiff from having and maintaining his said action thereof against him and this the said defendant is ready to verify and prove when, where and in such manner as the court shall direct." The court rules with the defendant on his answer and the plaintiff refusing to plead further, "it is considered by the court that the defendant recover of the plaintiff his costs and charges by him in this behalf laid out and expended. and the plaintiff for his false clamor be amerced."
1
The writer notes that about the beginning of the thirties most of the prominent circuit riders of the twenties ceased their visits to our court, and their places were filled by other lawyers less widely known. Among the latter were James B. Ray, John Eccles, William Quarles, William Brown, John Livingston, John H. Scott, Humphrey Robinson, Thomas D. Walpole, William Sweetser, Christian C. Nave and William J. Peaslee. Of these, Ray, who had served as president of the Indiana Senate and in 1825 as acting governor, Thomas D. Walpole, of Greenfield, and Peaslee, afterward judge of the circuit, were the most prominent. The intellectual giants of the earlier days had withdrawn to other more promising fields, as the litigation continued to be of a petty character, petty criminal prosecutions greatly pre-
Digitized by Google
- --. .. ..
------ -- -- ! : :
!
I35
JOHNSON COUNTY, INDIANA.
dominating. It may be noted, however, that Philip Sweetser returned to this county on a few occasions as late as 1840.
Up to about 1830 not a resident lawyer had come to the county. Upon the authority of Judge Banta it is stated that about that time one Winchell located here for the practice of the law, but nothing is remembered of him as a practitioner and his name is not found on the records At the March term, 1832, Fabius M. Finch was admitted to practice at our bar, and to him be- longs the honor of being the first Johnson county citizen admitted to this dis- tinction.
Judge Bethuel F. Morris retired from the bench of this circuit at the end of the year 1834. He later became cashier of the Indianapolis Branch Bank, of which Calvin Fletcher was president, and we find no further men- tion of his career as a lawyer or judge.
Judge W. W. Wick returned to the bench of the fifth judicial circuit in 1835, his first record in our court bearing date of the March term of that year. Whether driven to the necessity by the conduct of attorneys, or in- duced thereto by a desire for a more prompt and orderly administration of justice, Judge Wick in 1837 adopted certain rules of court and caused them to be recorded in the order book. They are full and explicit and might well serve as an example for the present day. Rule No. 18 was doubtless in- tended to restrain too zealous counsel, for it orders: "Harsh and dis- courteous language, unfriendly altercation, satirical and personal allusions to the conduct and motives of others, and allusions to matters dehors the business pending prove nothing, convince no one, tend to no profitable result, and are out of place in court. Parties or their counsel indulging in any of those things will be held to be in contempt, and although one wrong is no justification of another, the first wrongdoer will be held to be the principal offender."
Judge James Morrison began his duties as president judge of our court at the September term, 1839. Judge Morrison was a native of Scotland, very diligent in his profession, and of a most irascible temperament. He was not popular, but his integrity and ability were unquestioned. After his re- tirement from the bench after two years of service, he resumed practice of the law and was quite successful. In 1855 he was chosen attorney-general of Indiana, and in after life was president of the State Bank.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.