USA > Indiana > Posey County > History of Posey County, Indiana : from the earliest times to the present, with biographical sketches, reminiscences, notes, etc. : together with an extended history of the Northwest, the Indiana territory, and the state of Indiana > Part 37
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OTHER PRACTITIONERS.
In February, 1832, Hon. Samuel Hall presented his commis- sion as president judge, signed by Gov. Noah Noble. The asso- ciates were Andrew Cavitt and Samuel M. Reynolds. Judge Hall was a resident of Princeton. His knowledge of the law was deep and of the substantial kind, but as a practitioner he was not above
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HISTORY OF POSEY COUNTY.
the average. He lacked the fire necessary to influence a jury. In the convention that framed the present constitution, he was an influential member. The record of the September term, 1833, contains the resolutions of the bar upon the death of James O. Wattles, an attorney that had been for a few years playing a somewhat leading part in this court. He was a resident of New Harmony, where his death occurred and where he was highly esteemed. His descendants yet live in the county. During the decade of the twenties, several attorneys appeared at the Posey County bar, who came to be foremost in their profession. Some of them were afterward circuit judges, and some of them members of Congress. One, Archibald Dixon, of Kentucky, was United States Senator from that State. Another of these was John Pitcher, who took rank as one of the ablest lawyers of Indiana. At that time he was a resident of Rockport, in Spencer County. He was well educated and a hard student in the law. Whenever he became enlisted in a cause, he brought all of his energies to bear upon it. He was quick to comprehend a case in all its bearings, and his judgment was nearly always correct. These combined to make him a safe counselor. In addition to this he was a ready speaker, but his impromptu speeches were more fiery and im- petuous than when he had made previous preparation. No one possessed a more bitter or withering sarcasm than he, and none were more skillful in its use. It is said of him that upon one occasion while addressing a jury he had occasion to use the Latin phrase, de minimum non curat lex. As he did so the judge, who was a well-known lawyer, told him to translate his "Choctaw" to the jury when he had occasion to use it. Pitcher went on with his address, and again used the phrase, "which," he added, "when reduced to the comprehension of the court, means, 'the law does not notice small things,' neither," he said, looking the judge squarely in the face, "do I." He was extremely forcible in his speaking, and at times became so eloquent and so impassioned with deep sentiment, that he carried both jury and audience with him. His conduct in court was always dignified, and taken "all in all," he was such an attorney as all desired for an ally and dreaded as an adversary. He was prosecuting attorney early in the thirties, and was common pleas judge from January, 1853, to November, 1866. For many years he has been a resident of
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Mount Vernon, where, in extreme old age, he is quietly declining to an honored tomb.
At the August term, 1829, Eben D. Edson was admitted as a member of the Posey bar, where he continued to practice for many years, and where he was one of the leading lawyers. He located in the county about the same time, and continued here until his death. He was county treasurer from 1837 to 1839, and about the same time was prosecuting attorney for this judi- cial district. His practice extended to several counties in this portion of the State, and embraced a large number of both crim- inal and civil cases. In stature he was of medium height, and bordering on corpulency. He was a man with a better education than most members of the bar during his time. His ability as a lawyer was of that higher order which always attracts attention. As a speaker he was rather fluent, and at times eloquent. His pleadings show care and accuracy in their preparation. He was a member of the Legislature, and in that capacity served with distinction.
Late in the decade of the twenties there came to Posey County a man who was for nearly thirty years intimately con- nected with her history. This was George S. Green, who had graduated at West Point and had lived for awhile in Kentucky, where he was commissioned as captain by the governor of the State. He was admitted to practice in the Indiana Supreme Court in November, 1829. He was the best educated and most polished member of the Posey County bar. His memory was most remarkable for its accuracy, and his tastes were of a decided literary turn. His command of language was most excellent, but its flow was often impeded by his modesty. During his lifetime no one was more highly respected and esteemed by the people of the county than George S. Green. He held several important trusts for the public, and enjoyed an extensive practice. After a residence of nearly thirty years in the county his death occurred at Mount Vernon in 1857.
CONTEMPT OF COURT.
On the 7th day of March, 1834, Judge Goodlett was fined twice for contempt of court in the sum of $5 each. Upon the following day the first order upon the records reads as follows:
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HISTORY OF POSEY COUNTY.
"Now, here, because on yesterday in open court, James R. E. Goodlett, an attorney of this court, threatened to do personal vio- lence to Judge Hall, the only member of the court upon the bench at the time, and using to the said Judge Hall many oppro- bious epithets, and assaulting the said Judge Hall with a chair, and attempting to do personal violence to the said Judge Hall in open court, it is considered by the court here that the said James K. E. Goodlett be committed to the county jail of the county of Posey for the term of thirty days; and it is ordered that the said James R. E. Goodlett show cause at the next term of this court why he should not have his name stricken from the records of this court as an attorney thereof, and why he should not be perpetually prohibited from practicing as such in any of the cir- cuit and inferior courts of the State of Indiana." At first the order imposing imprisonment was followed by immediate and peremptory suspension as an attorney, but that was modified as above. Upon an application to the associate judges for a writ of habeas corpus the above judgment was confirmed and Goodlett was remanded to the keeper of the county jail. The records of the same day contain the following: "The undersigned members of the bar of the Posey Circuit Court feeling highly indignant at what they consider a most flagrant outrage upon every princi- ple of order and decorum as well as individual right in the late conduct of J. R. E. Goodlett, one of the members of said bar ask leave to express their abhorrence of such conduct by spread- ing the following resolution upon the memorials of the court:
Resolved, That the attack made by James R. E. Goodlett, a member of the bar of the Posey Circuit last evening upon the Honorable Samuel Hall while upon the bench, and in the faithful and impartial discharge of his duty as a judge and a repetition of the same offense this morning is in their opinion with - out parallel in the history of our judicial proceedings, and for the honor of our country, our social, political and judicial institutions they hope may never occur again. They the more regret the circumstances from the elevated station which the offender has held in the community, and deem it their duty thus to express their abhorrence and indignation at such conduct.
AMOS CLARK.
E. EMBREE.
E. D. EDSON.
J. LOCKHART.
W. F. T. JONES.
JOHN PITCHER.
R. DANIEL. CHARLES I. BATTELL.
GEORGE S. GREEN.
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HISTORY OF POSEY COUNTY.
Throughout this matter Judge Goodlett seems to have been on the offensive. He followed the law for some years after this, although he is not a brilliant practitioner. He was slow and de- liberate, and lacked that readiness and rapidity so essential before a jury. He prepared his cases well, and in this manner made up somewhat for his lack of celerity.
At the September term, 1835, Charles I. Battell succeeded Judge Hall upon the bench. He had long been a resident of Posey County, having lived at Springfield while it was the seat of justice. He was a native of one of the Eastern States, and was fairly well educated. As a speaker he was not good, and he was more noted for being absent-minded than anything else. He remained upon the bench but a short time, and in March, 1836, was followed by Elisha Embree, of Princeton. Judge Embree was possessed of considerable ability, was rather a handsome man, and made a good impression. He was not a close read lawyer, but on account of personal attractions had a large number of friends. He continued as presiding judge of this district for ten years, and after that was elected to Congress. His successor was James Lockhart, of Evansville, who had been prosecuting attorney and was now a successful lawyer.
He, too, like his predecessor, was sent to Congress from this district. He resigned about the time of the adoption of the new constitution and Alvin P. Hovey, of Mount Vernon was appointed to fill the vacancy, His commission was dated May 31, 1851, and signed by Gov. Wright. His first court in this county was in March, 1852. He was admitted to the bar of Posey County, at the February term, 1843, and at the time of his appointment had been in active practice of the law but little more than eight years. He had studied in the office of John Pitcher while that gentleman was in the full vigor of his intellect. His early years had been passed in hard, manual labor, and in comparative pov- erty. At the time of his admission as an attorney, the Posey County bar contained some of its ablest lawyers, yet in spite of them he succeeded beyond what were, no doubt, his own expecta- tions. As a practitioner he was fearless and energetic. but was not a brilliant advocate. His qualities were not of the dashing kind but were solid and substantial, and always backed with, a thorough knowledge and preparation of the cause he advocated.
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HISTORY OF POSEY COUNTY.
His ability as a judge was of a high order, and sufficient to grasp the intricacies of law and solve them in harmony with justice and right. He retired from the circuit bench in May, 1854, and soon after became a member of the State supreme court. As a judge his dignity was always maintained with the utmost rigidness, and sometimes in almost an arbitrary manner. This naturally made the members of the bar entertain for him something of a luke- warmness. Judge Hovey's disposition was better adapted to rule upon the supreme bench than at a nisi prius court. For more than thirty years he has been one of the most conspicuous men of Indiana, and during the civil war the patriotic devotion of Gen. Alvin P. Hovey to the cause of the Union was excelled by none. He became a Major-General.
The next judge of the Third Judicial District was the Hon. William E. Niblack, a man who has for several years past been an important member of the Indiana Supreme Court. At that time he was a resident of Dover Hill, in Martin County, and was quite young to be called to so important a position. He was then without experience in the law beyond a few years' practice in his own county. Notwithstanding this he succeeded in being a good judge. Where he lacked in legal learning his extraordinary good common sense came to his aid and enabled him to administer equity if not law. He was kind and affable, honest and upright. These qualities made him many friends, and after leaving the bench was sent to Congress for several terms.
Judge Niblack's successor was Ballard Smith, a resident of Cannelton, in Perry County. He was, perhaps, the most polished man that has ever been upon the Posey bench. He was well educated and somewhat literary in his make-up. In addition to this, he was an able lawyer and rather a brilliant practitioner. He afterward moved to Vigo County and became a leading mem- ber of the Terre Haute bar. His first term in this county was in March, 1858, and in April, 1859, he was succeeded by M. F. Burke, of Washington, in Daviess County. He was of Irish descent, and possessed many of the sterling qualities of that race. With a ready mind, an abundance of resource, a free and im- petuous eloquence, he was one of the best of advocates. A change in the judicial districts brought William F. Parrett, then of Boonville, in Warrick County, to the Posey Circuit bench in
12
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September, 1859. For the succeeding ten years he continued to direct the course of justice. His successor in March, 1869, was James G. Jones, one of the ablest lawyers of the Indiana bar. As a chancery solicitor, he was not excelled by any in the State. His memory was superior to that of most men, and served him with unerring accuracy in the trial of a cause. His high ability won for him the office of attorney-general of the State.
David T. Laird became the next judge of Posey County, which was then a part of the Fifteenth Circuit, in April, 1871. Judge Laird is now, as then, a resident of Rockport, in Spencer County. His ability is not of that higher order which makes the possessor conspicuous among men, yet he was universally esteemed a good judge and an upright man.
In March, 1873, Judge Parrett was again called to the bench, and he has continued to occupy that position ever since, and it is probable that no one has filled it with more ability, dignity and satisfaction than he. His education was obtained at the Asbury University, and for a time he was local preacher in the Methodist Episcopal Church. His eminent success as a nisi prius judge, is largely due to his quick and ready perception of the real issue in a cause, and his ability to divest it of all the sophistry of attorneys, thus giving the jury a clear understanding of the points they are expected to decide upon. Indeed this is a faculty that is most essential to a successful judge. Judge Parrett has, for a number of years, been a resident of Evansville.
COURTS UNDER THE NEW CONSTITUTION.
Under the new constitution, the courts of Indiana received a radical change in 1853. In the circuit court the associate judges were dispensed with, and their ermine was folded away for all time, while a single judge was left to guide the course of justice. Alvin P. Hovey was then upon the bench, and under him the courts of the district were organized. Many of the old common law proceedings were dispensed with, and a new code was estab- lished. This code has been in force since the 9th of May, 1853. At that time the remains of John Doe and Richard Roe who had from time immemorial, been familiar to every lawyer, and had supplied a legal fiction in actions for the recovery of real estate, were forever buried beneath the reform in pleading and
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practice. The new law provided that every cause should be prosecuted by the real party in interest, and upon the real party complained of. John Doe and Richard Roe were mythical per- sonages who had so long appeared in the common law as plaintiff and defendant, that the memory of man runneth not to the con- trary. The alacrity with which John always stepped in to vindicate the alleged right of the man out of possession, and the equal prompt- ness of Richard to insist that the man in possession was the lawful owner and entitled to retain his possession, were such as to in- spire respect for these knights-errant of the common law, and parting from them caused feelings of regret. With the abolition of these fictions and a modification and simplification of many of the terms by which land was held in feudal times, much of the intricate learning of the old common law has faded away and now become mere matter of history. Those who had studied the common law, and by long years of practice had become thorough- ly imbued with its principles, admired it for its grandeur, wisdom and equality, and because it embodied the right principles of so- cial and political economy. It had been founded upon the wis- dom and experience of ages, and its admirers stood in awe when any attempt was made to prune it of even the smallest branches. Many of the old practitioners regarded the change as sacrilege and never became reconciled to the change, and some went so far as to abandon the practice forever. Notwithstanding this, there is little doubt that the practice of law in Indiana has been greatly improved by legislation. All that class of contentious cases known as "trespass on the case," "case," "assumpsit," "trover," and many others of a similar nature passed out of sight, and liti- gation went in a smoother channel.
Under the old Territorial Government the associate judges of the county had jurisdiction of probate matters and this power was extended to them after the organization of the State govern- ment. Soon afterward a separate probate court was established with a judge in each county. These courts continued under var- ious modifications until the establishment of the court of common pleas, when jurisdiction in probate matter was transferred to that court and the probate court abolished.
COURT OF COMMON PLEAS. At its establishment the common pleas court had original
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HISTORY OF POSEY COUNTY.
jurisdiction of all that class of offenses which did not amount to a felony, except those over which justice of the peace had exclusive jurisdiction. State prosecutions were instituted by affidavit and information. Under certain restrictions this court had jurisdic- tion over felonies where the punishment could not be death, and in no case was the intervention of grand jury necessary. In all civil cases, except for slander, libel, breach of marriage, action on official bond of State or county offices, or where the title to real estate was involved, this court had concurrent jurisdiction with the circuit court where the sum or damages due or demanded did not exceed $1,000 exclusive of interest and costs, and concurrent juris- diction with justices of the peace when the sum due or demanded exceeded $50. When the court was organized appeals could be taken from it to the circuit court, but that was afterward changed, although appeals could be taken to the supreme court, and its jurisdiction was from time to time enlarged. The clerk and sheriff of the county officiated in the common pleas as well as in the circuit court. The judge of this court was ex-officio judge of the court of conciliation. The court of conciliation had juris- diction in actions for libel, slander, malicious prosecution, assault and battery and false imprisonment and extended to questions of reconciliation and compromise only. No attorney was allowed to appear for his client in this court, but the parties were required to appear before the judge apart from all other persons. This branch of the court was abolished in 1867.
The first common pleas court held in Posey County was on January 3, 1853. John Pitcher was judge, a position he held until November, 1866. A. S. Robinson then held the office one year and was succeeded by Morris S. Johnson. Upon the death of Judge Johnson, William P. Edson was appointed in November 1871. He held the office until November, 1872, when John B. Handy became judge and continued such until the court was abol- ished early in 1873 ..
THE M'CLURE WILL CASE.
Perhaps the most important civil cause that has ever been tried in Posey County, was that which involved the question of the validity of the will of William McClure. Indeed it was one of the most important that has ever been tried in Indiana. William
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HISTORY OF POSEY COUNTY.
McClure had been a resident of New Harmony and owned a large amount of property in various parts of the county. In addition to this he owned a large amount of property in Pennsylvania, Spain and other parts of the world. He was a man of unusual benevolence and had founded several institutions for the diffusion of knowledge. In January, 1839, while he was residing in Mexico he made a will. In this he provided that his brother and two sisters, Alexander, Margaret and Anna McClure should have the use of all his property in and round New Harmony during their lifetime, and that upon their decease their shares should "be ap- plied for the diffusion of useful knowledge and instruction amongst the institutes, libraries, clubs, or meetings of the working classes, or manual laborers, who earn their bread by the sweat of their brow, agreeable to the instruction and directions which shall be inserted in a codicil to this will." After granting several annui- ties, and some other matters being disposed of the will closes by saying that upon the termination of these annuities they shall be added to the joint "funds or property that may remain in any part of the world" after his death, to be appropriated as above set forth. But the charity was confined to the United States. At first the State of Pennsylvania was specially mentioned to receive the benefit of his Spanish property, but in a codicil that was abol- ished.
Alexander McClure was appointed executor, and for some reason deemed the will null as far as the charity was concerned. He sold a large amount of the property and converted it to his private use. It is almost useless to say that the will was sus- tained in every particular by the supreme court. In the mean- time Alexander McClure had died. Alvin P. Hovey was appoint- ed to carry out the intentions of William McClure, as expressed in his will. He proceeded to collect what property he could, and distribute it among the working classes in the form of libraries. About $150,000 were thus disposed of by him. Most of it was confined to the State of Indiana, although some was distributed in Ohio, Kentucky, Illinois and other States. Every county in Indiana received aid from this source, and the good thus accom- plished can hardly be estimated. These books were scattered among a class of people who were unable to buy them, and that, too, at a time when books were far more expensive than at the present day.
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HISTORY OF POSEY COUNTY.
THE D' ARUSMONT CASE.
Another case that was begun in the Posey courts was one that threatened to involve all the romance that hangs around the per- son of Mlle. D' Arusmont, the daughter of the renowned Fanny Wright. This cause was changed to the Vanderburgh courts. It was brought to recover a large amount of real estate in the vi- einity of New Harmony. The plaintiff claimed that no title had ever passed to the defendants. They claimed to be the descendents of Camilla Wright Whitby, who once owned the land. It was elaimed that she never conveyed it to anyone, but that Robert Dale Owen had deeded it away without right. The suit was brought to a termination by the finding of a power of attorney made to Owen, that gave full power to sell. The power of attor- ney was made by Richardson Whitby, of Shelby County, Tenn., to Robert Dale Owen, to convey a certain tract of land in Posey County, containing 1,300 acres. It had been conveyed to him as trustee of Camilla Wright Whitby. The power of attorney had not been recorded, and the sale of the land by Robert Dale Owen appeared entirely without right. Suit was begun by the heirs of Whitby by another wife than Camilla, and they claimed to be half brother and sister of Sylvia, a supposed daughter of Camilla by Whitby. Later investigation proved that Sylvia was not a daughter of Camilla, but of Fanny Wright, a sister of Camilla. This would have inevitably defeated the Whitby heirs, even if the power of attorney had not been found among the old papers of Robert Dale Owen, and which put an end to the suit. It was dlated October 29, 1828.
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CHAPTER VI.
MILITARY HISTORY OF THE COUNTY-THE EARLY WARS AND THE MI- LITIA SYSTEM-THE STRUGGLE WITH MEXICO-SENTIMENT IN 1861- PUBLIC MEETINGS-THE FIRST VOLUNTEERS-SKETCHES OF REGI- MENTS-THE LEGION-REBEL RAIDS-ROLLS OF HONOR-AID SOCIE- TIES -- RECRUITING-THE DRAFTS-SUMMARY OF MEN FURNISHED- LOCAL BOUNTY -- CLOSE OF THE WAR.
THE EARLY WARS.
P OSEY COUNTY has always borne her full share of the bur- dens of war. Among her earliest settlers were several of the old Revolutionary soldiers, who always commanded respect and attention. The troubles with the Indians at the beginning of the present century kept the settlers on the frontier in a con- stant state of fear and agitation. A palisaded fort had been es- tablished at the mouth of the Wabash River, in the fore part of the last century, by the early French settlers, but that had long since disappeared. A few block-houses were built in various parts of the county, to which the people would resort in times of danger. When Tecumseh formed his famous and powerful con- federacy among the Indians of the West, it required all the mili- tia force of the Territories to overcome him. Posey County was then a part of Knox, but several men who had settled within its present boundaries took a prominent part in that memorable cam- paign which terminated in the battle of Tippecanoe. In that fight Thomas Allman, Thomas Givens and Adam Fisher were wounded, as was also Ezekiel Kight. James Duckworth was an ensign in the company of Capt. Jacob Warrick, and after all the commissioned officers had been killed the command fell upon the young ensign from Posey. He conducted himself with honor, and upon his return home was made a major of the State militia. John Black was killed by a ball passing through his head. Others were William and Hugh Todd, Robert Jeffries, Timothy Downen and Thomas Duckworth.
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