Boone County, Indiana - Chapter 9: Bench and Bar, 1914

Chapter 9: Bench and Bar

The memory of the life and work of a lawyer to a great degree passes away with his generation; our great judges are soon forgotten, and their names and work are preserved only in the pages of dry and musty reports of which the average man knows, and cares nothing. The very nature of the work of the lawyer and the jurist insures its speedy oblivion in the midst of the more spectacular achievements of the soldier, the executive, the inventor, the author and the statesman. How many of the citizens of our county can name a half dozen of the early judges and lawyers who were prominent in our county history? And yet they were men famous in their day, looked upon with something akin to awe by the rough makers of our pioneer civilization.

This chapter is written with a desire to do some measure of justice to the men who made the early legal history of the county and whose memories are rapidly fading, even among the members of the profession, and to preserve in a permanent form something of the work of our modern bench and bar which is equally as sure of oblivion in the near future. That this desire -will be satisfactorily fulfilled is not even hoped, but we trust that we may be able to set forth in this chapter some information that will make it of value to both the legal profession and the public generally.

The Hon. O. H. Smith, in his "Early Indiana Trials," gives an interesting description of the typical court room of that day. "The building," he says, "generally contained two rooms, - the court room being the largest, - at one end of which there was a platform elevated some three feet high, for the judges, with a long bench to seat them. These benches were very substantial in general, sufficient to sustain the most weighty judges. The bar had its benches near the table of the clerk, and the crowd was kept back by a long pole fastened with withes at the ends."

The state was divided into judicial circuits, each composed of a number of counties, and each presided over by the circuit, or as he was then called, the president judge. These judges moved about from one county to another in their circuits, holding court at the various county-seats, and Boone was in the twentieth judicial circuit. The president judges were appointed by the legislature and were invariably men well versed with the law, but the most interesting feature of our early judicial organization was the system of associate judges. Two associate judges were elected in each county by the people, and no legal knowledge was required of them ; they sat with the president judge and each of them had equal power with him, a power which they often exercised in overruling his decision. The associates often carried on the business of the court in the absence of the president judge, the records often showing that after important cases had been disposed of he left the bench and they proceeded to the end of the term, ruling on pleadings, the meaning of which they had not the slightest idea. The average lawyer of those days was a man learned not only in the substance of the law, but also in its highly technical language, and the associates were often compelled to appeal to them to learn the meaning of terms used in the arguments and pleadings. Many of our early lawyers were men educated in eastern universities, who brought with them much of culture and refinement entirely foreign to our rude frontiersmen ; they were looked upon as professional men indeed, invariably being the leaders of social and intellectual life of the community. The country was largely virgin forest and the population hardy and rough, and generally reckless. This latter characteristic is amply illustrated by the pages of the early court order books, on which a great amount of space is devoted to indictments for affray, riot, and assault and battery.

The members of our present bar may find it hard to picture in their minds the practice of law under such conditions. The lawyers often traveled about the circuit with the president judge, riding horseback through the forests, fording streams and putting up at rough country taverns, and in spite of the scholastic atmosphere which surrounded the practice of law, it was not a sedentary pursuit by any means and its followers were apt to become physically hardy and vigorous like the people among whom they lived. &

Mr. Smith gives an interesting picture of the early court days. "The 'crowds' at that day thought the holding of a court a great affair. The people came hundreds of miles to see the judges, and hear the lawyers 'plead' as they called it. On one occasion there came to be tried before the jury an indictment for an assault and battery against a man for pulling the nose of another who had insulted him. The court room was filled to suffocation. The two associate judges were on the bench. The evidence had been heard and public expectation was on tip-toe. All was silent as death, when my young friend, then 'squire', afterward Judge Charles H. Test, rose and addressed the court: 'If the court please.' He was here interrupted by Judge Winchell from the bench: 'Yes, we do please; go to the bottom of the case, young man. The people have come in to hear the lawyers plead.' The young squire, encouraged by the kind response of the judge, proceeded to address the jury some three hours in excited eloquence upon the great provocation his client had received to induce his docile nature to bound over all legal barriers and take the prosecutor by the nose. All eyes were upon him, and as he closed, Judge Winchell roared out, 'Capital ; I did not think it wasin him!' The jury returned a verdict of not guilty amid the rapturous applause of the audience. Court adjourned, and the people returned home to tell their children that they had heard the lawyers 'plead.' "

It may be noted that until the constitution of 185 1 the common law of England was largely the law of our state, and that the library of the average "backwoods" lawyers consisted generally of a work on common law pleading, the few Indiana statutes then in force and the volumes of Blackford's reports, all of which were easily carried from place to place.

Courts of law are a necessary adjunct to civilization. There is no civilization without law, and courts are the mediums for the enforcement of law. The first court in Boone was the Probate court. This court had jurisdiction over the settlement of estates of deceased persons and the appointment of guardians for minors. The first term of this court was held at the house of David Hoover, in Eagle township, near the present site of Zionsville. As there was no business to transact they adjourned. The Hoover homestead continued as the home of this court up to the November term, 1832. After this its sessions were held at Lebanon at the residence of A. H. Longley, which was situated on the lot now occupied by the marble front building. To convey an idea of the amount of business transacted by this court it will only be necessary to state that the only record made was the entry of meeting and adjournment up to the eighth term of the court, when one guardian and one administrator were appointed. The judges of this court were: 1830, William Bodman ; 1835, Cornelius Westfall ; 1836, Samuel McLean; 1843, S. Buckles; 1844, William McDaniel; 1844, Jonathan Rose; 1845, William McDaniel; 1846, Samuel McLean. In 1851, James A. Thompson was elected and served until 1852, when the court was abolished and the jurisdiction thereof transferred to the court of common pleas. While the judges of this court may not have been profound lawyers and able to distinguish fine technicalities they were endowed with what is more important, good judgment and common sense.

In 1852 the new constitution of the state was adopted. By its provisions the judicial power of the state was vested in a supreme court, circuit courts and such other courts as the general assembly might establish. It also provided that any person being a voter and of good moral character should be admitted to practice law in all courts of justice, consequently whenever you meet a practicing attorney the presumption is strong that he is a person of good morals, perfectly honest and entitled to your full confidence. With one solitary exception they are the only persons in this state who have to prove a good character before engaging in business.

Under the provision of the constitution above referred to, the court of common pleas was established in 1852 and remained in existence until 1873, when it was abolished and the circuit court took jurisdiction and charge of its business. The first judge of this court was the Hon. Lorenzo C. Daugherty, who served from the date of its organization until i860, a period of about seven years. Judge Daugherty was a fine and able lawyer and not once during his entire term of service was his decision or rulings reversed by the supreme court. After leaving the bench he engaged in the banking business in connection with the late Harvey G. Hazelrigg and continued in that business until a short time before his death in 1876. Hon. John Coburn, of Indianapolis, was the next judge of this court. He served until 1862, when he entered the army and was succeeded by Hon. Charles A. Ray who, in 1865, was succeeded by Hon. Solomon Blair. In 1867, Hon. Thomas J. Cason became judge of this court and served until 1871. As a lawyer, Judge Cason was among the foremost of his day. He served the people in several public positions, being at various times representative, state senator and con-

The Circuit Court

The first term of the circuit court ever held in Boone county was held at the residence of John Galvin in Jamestown in April, 1832. Although at that time Lebanon had been designated as the county-seat, it was a town on paper only, not a house having been built within its limits. The next session was held at Thorntown at the residence of Cornelius West fall on the 1 8th day of October, 1832. Hon. B. F. Morris was the first judge of this court. The next term of the circuit court was held at the home of Rev. A. H. Longley in Lebanon, the court room being an arbor erected in front of his residence on the southwest corner of the public square. Hon. W. W. Wick was the judge and the only attorney in attendance was Calvin Fletcher, who was at the time prosecuting attorney and accompanied the judge as matter of duty. There was no business for either judge or attorney, consequently the term was short.

Hon. Fabius M. Finch was the next person to don the judicial robes and he was succeeded by Hon. William J. Peasly, who dispensed justice with mercy until 1849, when W. W. Wick again became judge. Tn 18^2 Isaac Naylor served as judge until 1853 and was succeeded by W. P. Bryant who served until 1859 when John M. Cowan was elected. Judge Cowan served until 1871, when Hon. T. F. Davidson was elected and served until 1872, when by reason of the change of the boundaries of the circuit he was succeeded by Hon. T. H. Palmer. Judge Palmer was succeeded in 1878 by our fellow townsman, Hon. T. J. Terhune, who resigned in 1888 and John A. Abbott was appointed to the vacancy. Judge Terhune ranks among the foremost judges of the state.

Hon. Stephen Neal donned the judicial ermine in November, 1890, and served acceptably until 1896, when the scales of justice were bv the votes of the citizens of Boone county entrusted to the care of the Hon. B. S. Higgins. The four last named judges were all residents of Lebanon, Judge Terhune being first elected when the circuit was composed of the counties of Boone and Clinton, the others since Boone county was made a separate circuit.

Since his retirement from the bench Judge Terhune has been engaged in the practice of his profession in this city and Indianapolis, and ranks high as a practicing attorney and has the confidence of a large clientage. Judge Abbott is at present a resident of Washington, D. C, and in the employ of a Law Publishing Company as a writer of syllabi of court decisions, a position for which he is well qualified. During the term of service of Hon. Stephen Neal, there was never any delay in the transaction of business in court on account of the absence of the judge.

Judge B. S. Higgins, previous to his election as circuit judge, served for two terms as prosecuting attorney and was regarded as an excellent officer. His record on the bench speaks for itself and will be carried down in Boone county history. He is a man endowed with honesty, integrity and fairness, fearless in the discharge of his duty and carrying with him the honor and dignity attached to his exalted office.

The first attorney in Lebanon was the Hon. Joseph Hackler, who moved to Missouri many years ago. Another early disciple of Blackstone was Jacob Angle. W. B. Beach, a brother-in-law of Captain Bragg, was also one of the first attorneys in Lebanon. He afterward removed to New Jersey, where he filled many positions of honor and trust, one time being lieutenant governor of the state. The other old time attorneys were J. C. Hague and O. S. Hamilton, who was perhaps the most remarkable character of his time. He never studied or paid much attention to a case until it was called for trial and about the only law books he respected were Archibald's pleadings and the statutes of 1843.

The Nestor of the bar is Hon. R. W. Harrison who has been in the practice for nearly forty years. He began as prosecuting attorney, when the circuit was composed of the counties of Boone, Clinton, Fountain, Parke, Warren, Montgomery and Vermilion. During his long service he has been engaged in many important cases both civil and criminal and has acquitted himself with credit. He served during the war as captain of the 116th regi- merit of Indiana Volunteers which was a part of the Persimmon brigade and took part in the battle of Walker's Ford. Captain Harrison has held onlyone other elective office, that of township trustee. He was a candidate for judge in 1890, but went down in defeat with the rest of his party. The other resident members are J. L. Pierce, T. J. Terhune, P. H. Dutch, W. A. Dutch, A. J. Shelby, John Shelby, C. M. Zion, S. M. Ralston, I. M. Kelsey, C. M. Bounell, S. R. Artman, John Perkins, W. O. Darnall, B. F. Ratcliff, H. C. Ulen, Jr., Reed Holloman, H. C. Wills, Oliver P. Mahan, Frank C. Reagan, J. O. Pedigo, Noah Loughrun, Harvey P. New, W. A. Tipton, Mike Keefe, and Joshua G. Adams.

Of the non-resident attorneys of "ye olden time" who practiced in the Boone Circuit Court, were the following: Rufus A. Lockwood, John Petit, R. C. Gregory, James Wilson, G. S. Orth, J. W. Gordon, Daniel W. Vorhees, Benjamin Harrison, Zebulon Baird and others.

Rufus A. Lockwood was for a time a resident of Thorntown, removing from there to Lafayette where he became a partner of the Hon. A. S. White. He left LaFayette, abandoned the practice of law and was next heard of as a sheep herder in Mexico. From there he drifted to San Francisco and encaged as a common laborer or stevedore on the docks. It was while thus 5 igaged that he was employed by Gen. John C. Fremont (the pathfinder), as ~ne of his principal attorneys in the prosecution of his famous Mariposa claims. He afterwards lost his life at sea while on a return voyage from California. It is said he could have saved his life had he consented to abandon the manuscript of a book which he had written. He was last seen standing on the deck of the sinking ship with his. arms folded across his breast, calmly awaiting the inevitable.

Benjamin Harrison, ex-president of the United States, was the principal attorney in the prosecution of Nancy E. Clem for what is known as the Cold Springs murder. Hon. J. W. Gordon and Daniel W. Voorhees were the principal attorneys for the defense in that case. Hon. G S. Orth served during the war and for several years afterwards as representative in congress from this district. He was appointed United States minister to the court at Berlin which position he resigned and was afterwards elected to congress and was a member thereof when he died.

Hon. John Petit was one of the able men of Indiana. During his life he served as judge, representative in congress, United States senator, United

States district judge in Kansas in 1858-9, judge of the supreme court of this state and mayor of the city of LaFayette. He was known politically as the "Old Brass Piece."

Among the later non-resident attorneys who practiced at this bar are C. N. Beamer, Zionsville ; Ira Sharp, Thorntown ; C. D. Orear, Jamestown ; R. P. Davidson, E. P. Hammond, S. N. Caldwell, L. Caldwell, A. A. Rice and others, LaFayette; R. R. Stephenson, T. J. Kane & Son, T. Boyd, A. F. Shirts, Christian & Christian and others, of Noblesville ; John Duncan, Caleb Denny, A. J. Beveridge, Thomas Hanna, Newton Harding and others, of Indianapolis.

In 1886 C. N. Beamer was elected prosecuting attorney, but resigned in the spring of 1889 and C. M. Zion was appointed as his successor. Mr. Zion is spoken of more extendedly in another column.

H. P. New served one term as prosecuting attorney from 1890 to 1892, when he was succeeded by Hon. P. H. Dutch. At the close of his term as prosecutor, Mr. New formed a partnership with Hon. T. J. Terhune and later with J. L. Lewis.

Patrick H. Dutch served as prosecuting attorney from 1892 to 1894. He was a vigorous prosecutor and was instrumental in securing punishment for many criminals. He was succeeded by Noah Loughrun, who served from 1894 to 1896. Mr. Loughrun is a self-made man, having spent the best days of youth in the service of his country as a private in the Tenth Regiment Indiana Volunteers during the war of the rebellion. He was a good soldier, faithful in the discharge of his duty, and beloved and respected by all of his comrades. After the war he lived near and in Zionsville, where he filled the positions of town marshal and justice of the peace. While serving in these capacities he studied law and on his election to the office of prosecutor he removed to this city, where he has since resided. He is now in partnership with Hon. R. W. Harrison.

In 1852 the office of associate judge was abolished and the business went into the circuit court. In 1873 the common pleas court was abolished and the business and books were transferred to the circuit court and given four terms a year. Under the new constitution, the probate court and its judges were abolished and the court of common pleas organized, with probate jurisdiction.

home of David Hoover, then clerk of the circuit court, and was continued to be held at the home of said Hoover up to the November term of 1832. From that date until November, 1833, it was held at the home of Abner H. Longley in Lebanon. From the first term until the seventh term there was no business except to meet and adjourn. At the eighth term the appointment of one guardian and one administrator was all the business transacted.

The first term of the circuit court was held at the home of John Galvin in Jamestown, beginning on Thursday, April 19, 1832, at which time a grand jury was impaneled. Two bills of indictment were found. No civil business was transacted. An order was then made1 for holding the next term of court at the home of Cornelius West fall, in the town of Thorn town, on the 18th day of October, 1832. It was further ordered that the clerk be authorized to keep his office at his residence in Lebanon, except during the sittings of courts.

At the October term, 1832, of said court, an order was made for holding the next term at the home of Abner H. Longley, in the town of Lebanon. At the April term, 1834, said court was held in the court house at Lebanon, David Hoover died in office in January, 1836. Samuel S. Brown was appointed in his place January 4, 1836, and was elected to the following office and continued in the position until 1843.

In 1845 Levi Lane was appointed clerk by the board of commissioners. Henry Shannon died on the evening of March 27, i860, in his office at the court house, it being on the second judicial day of the March term of the circuit court. William C. Rise was appointed clerk in his stead pro tern until the vacancy should be filled. On March 29, i860, Americus C. Daily was appointed by the board of commissioners to fill said vacancy and served until November, i860.

Andrew J. Boone was elected and commissioned August 12, 1841 as auditor and resigned before the expiration of his term of office. He was the first auditor of the county. In the same year James McCann was the first recorder elected. Prior to this date the clerk of the court discharged the duties of these offices. In the same year the office of treasurer was created and J. T. McLaughlin was the first person elected to this office and was so faithful that the people kept him in the position for nine years.

On the 1 2th day of October, 1856, the records of the auditor, treasurer and recorder's offices were destroyed by fire. Andrew J. Boone was ap- pointed a commissioner to take and hear proofs relative to the preparation of the papers and records destroyed by the fire. He entered upon the duties of his commission November 24, 1856, and closed his labors in i860.

Samuel Cason was the last associate judge, having served fifteen years, from 1837 to 1852, when the office was abolished by the new constitution. David M. Burns served as surveyor for sixteen years from i860 to 1876.

A. J. Boone was born in Preble county, Ohio, July 17, 1820. Son of Benjamin Boone, who was born in 1795, in Kentucky. His grandfather, Daniel Boone, was the famous Indian hunter of Kentucky. His father, Benjamin, was an abolitionist, and lived in Union .county, from 1827 to 1834, where there was an underground railroad.

In 1838, A. J. Boone moved to Boone county and settled on a farm. He represented Rush county in the Legislature in 1837-8 and Boone county from 1843 to x844- His early life was devoted to farming and milling. He taught school, .gaining a fine reputation as a teacher, and applied all his leisure hours to the study of law, which he had chosen for his life work. At the age of twenty-one he was elected auditor of Boone county, and served in that capacity until December, 1843. He resigned his office and entered Indiana University in view of better preparation for a professional life. In 1848 he was licensed to practice law in Boone county. From 1849 to 1853 he was assistant clerk in the House of Representatives of Indiana where, by his efficiency he won universal approbation. In April, 18- 1, he was united in marriage to Miss Mary Eliza McLaughlin,, a native of Boone county, and opened a law office in Lebanon. He rose rapidly in his profession, practiced in many of the courts of the state and his name was connected with manv of the principal cases which had been before the sunreme court of the state for adjudication. The work was too much for him and his health failed, causing him to retire to his farm four miles out of Lebanon. He resumed the practice of law in 1867 in partnership with R. W. Harrison. For eight years he walked from his farm to his office for the sake of his health, making the round of eight miles dailv.

As a lawyer, Mr. Boone possessed all the qualities necessary to make a successful attorney. He was a safe and honest counselor and a good pleader, and examined witnesses with skill and ingenuity. He was also a good advocate. Although thoroughly attentive to the duties of his profession, he was at the same time actively identified with the general improvement of his county; and all enterprises having that object in view found in him a general and able advocate and a generous supporter. He advanced the major portion of the amount necessary to establish the Boone county Pioneer, the first newspaper printed in Boone county ; and although not its editor, he wrote its salutatory and many other articles of eminent ability which were copied and approved in high terms by many established and reliable papers throughout the state.

For twenty-five years he was correspondent of the agricultural department at Washington, reporting the resources of his county and their development. He was one of the prime movers in establishing The Agricultural Society of Boone county, and for eighteen years was its secretary and business manager, co-operating with H. C. Hazelrigg, Levi Lane, William Zion, L. C. Daugherty, John Higgins, Thomas R. Cobb, J. M. Ball, Samuel S. Heath, Jesse Neff, Adolphus Wysong, T. J. Cason, W. C. Kise, Jacob Kernodle and others. In politics he was a Democrat, but always very liberal in his views and tolerant and charitable towards those of opposite views. From his earliest manhood he was frequently called upon to fill offices of responsibility. At the urgent request of friends and neighbors, he consented to become a candidate for the State Senate, and was chosen by the united vote of good men irrespective of party. His health became permanently impaired early in the session of the Senate of 1875, and from the effects of the impure air of the old Senate chamber he never recovered. After the sessions were over, he appeared and practiced in the Boone and Clinton circuit courts in May and June. About the first of July he was confined to his bed and died on the 12th day of that month. He was a man of sterling integrity and his counsel was sought by all classes, in matters relating to the farm, the household and the public. He was liberal to a fault and was often known to sacrifice his own convenience and comfort to accommodate a friend and has repeatedly loaned money to poor men on their own note without security or interest. He was a member of the Christian church and as such lived an exemplary life. He was one of the pioneers of Boone county and one of the pioneer lawyers of Lebanon. He witnessed its growth from a backwoods settlement to a cultured and refined community, and has mingled in its achievements, progressing with them and assisting them by his influence and means. He was one of Indiana's best and most reliable men.

Hon. Stephen Neal, Lebanon

The subject of this sketch was born in Pittsylvania county, Virginia, June n, 1817, and moved with his father's family to Kentucky when three years of age. Living remote from any town or village, his educational privileges were limited to a few months, sufficient only to enable him to read. When he had reached his fifteenth year, his mother died and in the following year his father gave him the privilege of choosing a profession for himself. He continued to labor on the farm twTo years longer, when, at the age of eighteen years, he began attending a country school, paying his expenses by his earnings. After attending this school about one year, he entered the academy at Mooresfield, Kentucky. It was at this academy that Mr. Neat acquired a knowledge of the Latin and Greek languages and laid the foundation for his subsequent professional and literary attainments.

He is essentially a "self-made"' man and is indebted, mainly, to his own exertions and indomitable energy for his success in life. His mind naturally studious and contemplative, seemed actuated by a desire to grasp all possible knowledge ; hence, his studies were extended and various, and being blessed with a vigorous constitution, he met with few impediments in the pursuit of knowledge, excepting poverty.

He quit school in his twenty-second year and soon afterward engaged as a school teacher, but while instructing others, did not neglect the culture of his own mind, but was at all times a more diligent student than any of his pupils. During his labors in this capacity, in the year 1839, he married Miss Frances Ann Atkinson, in Nicholas county, Kentucky. Unwilling to accept school teaching as a life-time pursuit, he resolved to enter upon the study of law; but, as his means were limited, continued to teach for a time, improving his leisure time in the study of his chosen profession, reciting occasionally to his preceptor. In the spring of 1841, he removed to Madison, Indiana, where he studied law in the office of Hon. Joseph G. Marshall, returning to Carlisle, Kentucky, in the same year. There he passed an examination, conducted by Judge Reed, of Maysville, and Judge Simpson, of Mount Sterling, Kentucky, and by them was licensed to practice in all the courts of that state. He was first admitted to the bar at Carlisle, Kentucky. During his sojourn in Indiana, he formed the purpose of emigrating to this state and in the year 1843 located at the town of Lebanon, in Boone county.

In 1846-47, he was chosen to represent his county in the state Legislature. In 1 85 1, his wife died and six years later, he was a second time married, choosing for his companion Miss Clara, daughter of Charles Davis, Esquire, of this county. During his practice he has gained as much professional distinction, perhaps, as any member of the bar of Boone county and has always possessed the warmest friendship of contemporaries. It was he who prepared the original draft of the Fourteenth Amendment to the Constitution of the United States, letters acknowledging the receipt and adoption of which were received by him, sent by ex-President Garfield, congressman Godlove S. Orth, congressman Stevens and many others of equal prominence.

In the winter of 1846-47, when a member of the Legislature, Judge Neal introduced a resolution changing methods of granting divorces in the state of Indiana. Up to that time the power of granting divorces resting entirely with the Legislature, but the judge's resolution which became a law, provided for the county courts to act upon divorce matters, taking that power out of the hands of the Legislature. Judge Neal was elected to the Boone county bench, serving out his entire term. He was distinguished in the theory and practice of war and the law and died full of honors and emoluments.