USA > Indiana > Vigo County > History of Vigo county, Indiana, with biographical selections > Part 33
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HISTORY OF VIGO COUNTY.
CHAPTER XX.
BENCH AND BAR.
W HILE Vigo county became noted for its rapid development in the lines of agriculture, manufacture and as money changers, it has not lagged behind in those things that partake more of the professional side of life. Its bench and bar have contributed from the first to extend its name and fame abroad over the face of the earth.
The first circuit court which met in Terre Haute, within thirty days after the organization of Vigo county, was held by two of its sturdy old pioneer farmers-Moses Hoggatt and James Barns, the associate judges of the circuit court. There was then no president-judge for Vigo county. The provision of the law at that time was that the court consisted of three members-a presi- dent-judge and two associate judges-two of whom constituted a quorum to transact any business. The president-judge was required to be a man "well versed in the law," but the associates need only be good citizens of the county where their jurisdiction lay. The judge had equal jurisdiction in all the counties comprising the cir- cuit, while the associates were confined to the county in which they resided and for which they had been appointed.
The law and the practice then were literally English, you know. The Common Law of England, as well as certain statute laws, was in force here the same as in England. The qualifica- tion, or rather the slight difference lay in the legislative enact- ments of the State.
The law pleadings were purely English, as laid down in Black- stone and Chitty's commentaries and forms. The law of evidence was literally as it came to us in the standard English books on those subjects. The decisions of the English courts were the law here the same as in Great Britain, except where they were in con- flict with our statute laws. An English lawyer, therefore, fifty years ago, had to make but little preparation for the change if he wanted to come to America to practice his profession.
It would be the customs of the profession here that would, per- haps, bother him more to learn than the differences then existing in the law in the two countries.
The great lawyers they had here in those days, and it is no
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exaggeration to say that we had many really great men in the pro- fession, were all of the kind that were known as "circuit riders." They had to know the law better than their English brothers. They traveled over wide circuits, going with the judge from county to county on horse-back, and in their saddle-bags were their ward- robes and their law libraries. Hence, as they made long trips, sometimes like sailors, only after months returning home for a short rest, when they would resume their trip and go again over the same ground. Two trips a year, as there were two courts a year in each county. The counties were then much larger than now, and often it was many miles' ride to some new county seat, and the business at that probably the first term of the court in the new county would be no more, if as much, as was that of the first session of the court in Vigo county, which is quickly told. There were two parties who asked for a writ of ad quod damnum, that is to ascertain the damage that might result if they should build a dam and mill on some creek in the county. The early legislatures were very jealous of acknowledging that even the smallest creeks were not navigable streams. The early statute books are full of laws declaring nearly every place where there was a spring, branch or a creek that had high water in the spring freshets were "hereby declared navigable streams." These men saw no future to foreign commerce, except by navigation, and therefore they hoped, no mat- ter how small the stream, that by locks and dams, some day they might become a part of the country's great highways. At all events it cost nothing to declare them navigable, and this would protect them from being choked and ruined by mill dams. While this was a good intention, it obstructed building water-power mills often, and the people found that they wanted something to grind their wheat and corn before they wanted transportation to foreign mar- kets. The writ of ad quod damnum, therefore, was the first busi- ness often presented to the new court. There were two cases of this kind at the first court in the county, and the trial cases on the docket were a divorce case, which was continued, of course; then an assault and battery case was tried and the jury returned a verdict of 6 cents for the complainant.
Now this would strike a lawyer of this time as rather meager picking after, perhaps, as did these lawyers in this case, riding on horse-back all the way from Vincennes to attend the court.
But these lawyers knew what they were doing-they were lay- ing up future treasures in the line of their profession. Everyone who was present at the court afterward became prominent lawyers in this portion of the State, and others occupied positions on the bench.
There has been a great change in the practice of the law in the
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past twenty-five years, and more particularly in the past decade. In law pleading we have parted widely from much of the old English forms, and so abundant and varied are our statutes, and the increase of our courts and the many decisions, that now in this respect it may be called the American system. We retain the old English rules of evidence more nearly literal than anything else of the English law.
The law and the courts, in their broadest meaning, are one of the most marvelous outgrowths of civilization; evolved through the long centuries antedating the morning of authentic history. The vastness of the court machinery itself staggers the mind when it first comprehends something of it-courts, clerks, officers, lawyers, jurors, criminals on hand, cases dragging through generations, and cases in actual trial running through days, weeks, months and sometimes years, and are never completed. Great and magnificent buildings, and the armies of attendants, employes, the written records by rooms full, vaults full, and thousands of busy pens making every day more; the countless libraries and law schools, and offices and court-rooms are some of the palpable evidences of this institution. Behind and beyond these are the mysteries-the learned technicalities-the Draconian Code, the black-letter and the comparatively modern Coke-upon-Littleton are some of the conjur- ing that have grown from what must have been a very simple beginning. Indeed, why should not the common mind reel and stagger under the glimpse of realization of the stupendous whole.
Cui bono? What inherent principle is it in our nature that has rendered all this vast and involved machinery a necessity to our com- mon mankind? Very much the same it prevails in all organized communities or nations. Is the demand for all this an artificial creation ? Appearances would indicate that it was a natural and spontaneous outgrowth, like that of marriage, or war, some form of religion, or the universal ideals of beauty in women or horses. It is singular that some able biologist, like Spencer, has never taken this subject in hand, and at least tried to account for its uni- versal outcropping in every civilization, and in substantially much the same form in all. The technicalities of the law are a phe- onomenal curiosity. The most august courts, where are the longest black gowns, the biggest wigs and the stuffiest figurative wool sacks, are often the splendid arenas for the legal gladiatorial contests. The causae celebres are where are decided the contests of the pen- nant winners among the great attorneys-simply legal tournaments where wealth and fame is in winning, "knocking out" as it were, the attorney on the other side, and where often the poor client cuts about as much figure as an ancient almanac. Then for instance, you look carefully over the Myra Clark Gaines ejectment case-
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where millions are involved, and generations come and pass away, and the case goes on and on. Or Dickens' fanciful case of Jarndyce; and the last scene, where the pale young man drags himself into court and wearily listens to learned arguments that he cannot understand what it is about, and finally gropes his way out of the court-room and lies down and dies. Another case where it was in court one hundred years, and the parties all being dead, it was then discovered that what was once a great estate was all gone, and the last penny was a little short of being enough to pay the costs.
" The curiosities of the law" ought to be some day the title of a great book that would reflame the fires of the old maxim, that truth is stranger than fiction.
The early law of this State was very particular to provide that the higher courts must be presided over by men "versed in the law." The subordinate branches they were not so particular about, and now although only the most prominent lawyers are as a rule selected for judges, yet if the people so will, in many of the States, they are not restricted to the licensed members of the profession in selecting the judges of their courts. Once in this country all judges were appointed. This was the case in the early days in this county. Then they were elected by the legislature, and now all State judges are elected, while all the United States judges are still appointed. And while, of course, there is not the same oppor- tunities in the local courts for fame as in the higher courts, yet the standard of men elected by the people to the bench has not been lowered by the people who vote. It is true that the people some- times elect the veriest demagogues, but this is unfortunately also true of presidential appointments. Our institutions are so vast and country so big that the president in his appointments can not often personally know his appointees, and he then must rely upon politi- cians to some extent, and often politicians have to rely upon party heelers.
There is one other thing about the study of the law that is striking in its features. Perhaps as much or more than any other school, it teaches the importance and authority of precedent. Hence the perhaps gross incongruities you may sometimes meet in the courts in a democracy that have been transplanted from the ancient monarchy. Wigs and gowns are simply comical in this country, where theoretically every voter is a sovereign. The uni- form and tin star of a roundsman; the ceremony of kissing the Bible in making oath, about which you will find they are very particular in the older States, but which is now substituted in the west by generally holding up the right hand; the retention of the grand jury and the necessity of their formal and once hyper- critical bill of indictment before you could put a man on trial; the
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fictitious John Doe vs. Richard Roe are now about obsolete, but at one time and for centuries all ejectment suits were in the names of these unfortunates, and above all is the general faith that the older a precedent the better it is the law and the more binding its authority. There must be a close relation existing between the science of law and the science of State craft. The lawyer and the statesman are esteemed as one to a large extent.
The American law student when he commences his reading is put to the study of Blackstone exactly as is the student in England. This is the standard book on which all is based, even if Blackstone did believe that there were in ancient times swarms of witches and ghosts, but thought that modern cases needed careful looking into before believing. He writes most eloquently of the "garnered wisdom of the ages," and tells the young student in glowing sen- tences that in the knowledge of the law, at least the past, was the Golden Age; that here is the Pierian springs where he may drink long and deeply of the health-giving waters.
When you divest yourself of these accumulations that have gathered around the law, and think of it a moment in that mood, you can not but realize that once all this wonderful thing must have lain bundled up in the simple Golden Rule; if there is either right or wrong, justice or injustice that is not included in this short and simple rule of life you, can not imagine what it is.
Do as you would be done by, is the simple lesson easily under- stood by the savage or the child. To add to this statutes and laws neither extends its meaning, application, nor simplifies its terms. Simple as this is it must have been the source from whence came all this stream of law-making, law practice, law libraries, courts and officers, as well as the great and powerful profession of the lawyers.
The pioneer lawyer was, like the pioneer farmer, compelled to be a man of far greater resources within himself than his modern brother. The times are drifting away from the ancient techni- calities of the law 'as well as from the ancient severity of the church dogmas. Men have grown more liberal as they have become less and less technical. The modern lawyer fits up his office, and there is usually a court library near at hand, and he has long since ceased to ride the circuit. He stays at home with his books and practice, and no longer is every successful attorney pre- sumed to have Chitty's forms committed to memory. He may now write a warantee deed in fewer words than it once required lines, if not pages.
Again the profession of the law, like that governing skilled mechanics, is divided up into specialties, and this immensely lessens the labors of the preparatory work of learning the profession or
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trade. We now have our criminal lawyers, chancery lawyers, corporation lawyers, constitutional lawyers, etc. Dividing the necessary preparatory work after the manner, for instance, of that of the workmen in a watch factory. This division of labor is peculiarly an American innovation on the old, and while it is de- stroying the old-fashioned, all-around workmen or professional men, it is perhaps bettering the work as well as lessening the time required in serving an apprenticeship. In Europe a man must yet serve a seven years' apprenticeship to be a licensed watchmaker. In the American watch factories you will find girls working machines and making very perfectly the one piece of the watch to which they confine their entire labor, and two weeks' apprenticeship was all that she required to learn her trade well. In her line she can probably do more in a day than the European seven-year- trained man can do in a week, and do it better. Striking off into specialties is the strong tendencies of modern times, found as dis- tinctly in the learned professions as in the trades. In medicine there is the general practitioner, the surgeon, the eye and ear doctor, the corn doctor and the horse doctor, and for nearly every disease a specialist. In theology there is the revivalist, the or- ganizer, the church builder, etc. It is the art of doing one thing, and thereby doing it better than one can many things.
Lawyers now gather in the great cities and work for a salary for large corporations. They seek no other employment than that of the one man or firm who hires them by the year. They simply need to know the law necessary to the business of their employer, and in that respect they are invaluable advisers.
It is these circumstances that have carried us beyond the age when the statutes required every lawyer to have a license before allowed to practice. In fact the law requiring this is a mere fashion -the relic of a past age. It is impossible to imagine how a com- munity or State would suffer if this ancient law should be abolished. The man in search of a lawyer never inquires as to whom it was that signed his license.
The "circuit riders" present at the first Vigo circuit court held by Hoggatt and Barns were Nathaniel Huntington, George R. C. Sullivan, Samuel Whittlesy and Jonathan Doty. These came mostly from Vincennes and Sullivan county. They must have started as soon as they could have got word where and when the court was to be. The county was hardly a month old. Nathaniel Huntington had come to stay, and the court, in recognition of this fact, ap- pointed him prosecuting attorney pro tem. As there was not a criminal case yet in the county his work was not onerous. If the grand jury " assembled on a log " he could get easy access to them, and when each one arose and announced that he knew of no busi-
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ness, he no doubt advised them to adjourn in the hope that the festive law breaker would make his presence manifest before the next court.
There is a current tradition that the grand jury, after being charged by the prosecuting attorney, retired to a log just outside the cabin in which the court was convened, and here went through the forms of their short session, but the record made by the clerk, Curtis Gilbert says they "retired to their room." It is safer, evidently, to follow Clerk Gilbert than tradition. He was one of the best circuit clerks in the State, and the exact and beau- tiful records he has left, the work of twenty-one years (he was the all-around clerk and recorder and auditor for Vigo county), are a splendid monument to his memory. His peculiar chirography, as even and beautiful as copper-plate, all made with the old-style goose quill, has never been equaled by any of his successors in any of all the offices he held.
He was elected clerk over John M. Coleman, his opponent, it is not known by what majority, as the ancient election returns are not to be found. And it is not to the disparagement of Mr. Cole- man to know that he was beaten by Curtis Gilbert. There were not many men here then to select from in choosing the first officers, but had the whole world been open to the choice, the people could not have done better than they did in his selection. They kept him there twenty-one years, three terms of seven years each, and with his consent it is probable that they would have kept him his life time.
The first motion made in court was by Attorney Sullivan in be- half of John Beard, who desired the court to inquire according to law the damage, if any, that would result from building a mill and dam on his land, the southeast quarter of Section 33, Township 14 north, Range 9 west. This is now in Parke county.
Isaac Lambert and John Dickson, by the same attorney, asked for a similar writ, to ascertain the damage in the erection of a mill and dam on the northwest quarter of Section 17, Township 11 north, Range 9 west. This was the first mill erected in Vigo county.
Alexander Barns presented his bond and security as coroner of the county.
Truman Blackman qualified as the first sheriff of Vigo county. He had been appointed to the office by the governor to hold until at the next election, when his successor should be chosen.
This was the total of the court's first day's work, when it ad- journed for the day.
The next day Attorney William P. Bennett appeared, took the oath and was enrolled. The first trial cause at this term of the court was
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Elenor Garber vS. Petition for divorce.
Peter Garber.
This was continued until the next court.
Then James Bennett sued out a writ of ad quod damnum as to the building of a dam and mill on his land, northwest quarter of Section 30, Township 12 north, Range 9 west.
The only other trial cause for this court was that of
Isaac Cottman vS. Trespass vi et armis, damages $2,000.
Abraham Markle, Amos Rice.
A jury was called, the case tried as to Markle, and the jury retired, perhaps to the same log that had been used by the grand jury to consider their verdict, and soon returned and found for the plain- tiff, awarding him 6 cents as against Abraham Markle. There- upon the case as to Rice was dismissed. Markle had confessed, it seems, but stated the circumstances in such a way that the jury was not disposed to bankrupt him. The fact is that in that day the aver- age jury inclined to the belief in letting bygones be bygones in the average scrapping matches. They recognized that they were bound by the letter of the law, but they could get around its spirit.
This was the entire business before the first Vigo circuit court. Thereupon the "court adjourned until court in course." Vigo
county was then a part of the First Judicial circuit.
The second term of the court convened on July 27, following. Present: Hon. Thomas H. Blake, president of the First circuit, and Moses Hoggatt, associate judge.
Blake's commission bears date May 14, 1818, and is signed by Gov. Jonathan Jennings. His term of office to continue with the expiration of the next general assembly.
Judge Thomas H. Blake was sworn into office by Davis Floyd, president judge of the Second circuit.
The sheriff appointed James Cunningham bailiff. The addi- tional attorneys appearing at this term were Gen W. Johnston, William Prince, Lewis B. Lawrence and Charles Dewey. Jona- than Doty was appointed prosecuting attorney.
The third term of the court, February 22, 1819. Present: Hon. Gen Washington Johnston president judge, Hoggatt and Barns associates. Judge Johnston was appointed for the term of seven years.
October term, 1818,Jacob Call, James Nash and James P. Ben- nett were admitted to practice.
May term, 1819, Hon. Jonathan Doty, president judge. His commission to run until the end of the next session of the general
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assembly. Moses Tabbs and George McDonald appeared at Febru- ary court, 1819, as qualified attorneys.
Jacob Call was commissioned president judge of the First Ju- dicial Circuit March 7, 1822. He was sworn into office and held court in Vigo county in March, 1822. Daniel Jenckes was admitted to practice as attorney.
The State at that time was divided into four judicial circuits. This was the First circuit, composed of the counties of Knox, Sul- livan, Daviess, Vigo, Dubois, Lawrence and Monroe. Vincennes was of course the professional and intellectual center of the State when Vigo county was formed.
Judge Jonathan Doty served from the May term, 1819, to the March term, 1822; Judge Jacob Call from 1822 until 1824.
In 1824 John R. Porter was elected president judge, and held his first court at the October term, 1824. Amory Kinney was admitted to the Vigo bar at that term.
Judge John Law succeeded Porter, and served from the Febru- ary term, 1830, until 1831, when he resigned, and Amory Kinney was appointed president judge, who held his first court in October, 1831. He was then elected, and served a full term, until 1837.
Judge Elisha M. Huntington succeeded Kinney, and served until 1841, when he resigned, and was succeeded by Judge William P. Bryant, who served from the November term, 1841, to the May term, 1844.
Judge John Law served from 1844 until 1850.
Judge Samuel B. Gookins held, as the successor of Judge Law, the September term, 1850.
Judge Delana R. Eckles presided from the March term, 1851, to the March term, 1853; Judge James Hughes from 1853 until 1856.
Judge Ambrose B. Carlton, by an appointment from the governor, held the September term, 1856.
Judge James McLane Hanna held part of the September term, 1857, and continued the remainder of the January term, 1858.
Judge Solomon Claypool was appointed in 1858, and held the special term for that year, and was elected to a full term at the next regular election. This was then the Sixth Judicial circuit.
Judge Delana R. Eckles again became president judge in 1866.
On March 1, 1867, the Legislature made new circuits in the State, and this became the Eighteenth Judicial circuit, composed of the counties of Vigo, Parke, Vermillion and Sullivan. The new division created a vacancy in the judgeship, and Hon. R. W. Thomp- son was appointed by the governor judge until his successor should be elected. Sewell Coulson was elected prosecuting attorney.
At the November election, 1867, Chambers Y. Patterson was elected judge. He was re-elected, and died in office in 1881.
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March 29, 1876, Samuel F. Maxwell, in the absence, it is sup- posed, of Judge Patterson, was sworn in as judge. He signed the records for some time, when the regular judge it seems, resumed his place. This lapse is accounted for by the forming of the Forty- third circuit.
At the August term, 1875, Judge Cyrus T. McNutt was presiding judge pro tem.
Judge Harvey D. Scott was appointed to the vacancy caused by the death of Judge Patterson. This was then the Fourteenth Judicial circuit.
At the October term, 1881, the record shows that by reason of sickness Judge Scott appointed Charles Cruft judge pro tem. He held court twenty-one days.
Again, at the October term, 1882, the minutes show that Judge Scott was absent four days at the beginning of that term on account of sickness, whereupon the sheriff, Jackson Stepp; auditor, Andrew Grimes, and clerk, Merrill N. Smith, "by vertue of the statute in such cases made and provided " proceeded to elect Henry C. Nevitt, " as judge to preside until the return of said regular judge."
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