Fayette County, Indiana - Chapter 13: The Bench and the Bar, 1885

Chapter 13: The Bench and the Bar

CIRCUITS AND JUDGES - EARLY PROSECUTING ATTORNEYS - FIRST AND LATER LAWYERS AT THE FAYETTE COURTS - REFERANCE TO THE LAWYERS AND PRACTICE OF EARLY INDIANA - RESIDENT LAWYERS.

IN reviewing the history of the bench and the bar, we have to reach out beyond county limits. At the organization of the county, the Judge traveled the "Whitewater country, extending from the Ohio on the south to the State of Michigan on the north, and from the Ohio line on the east to "White River on the west, a territory probably 200x70 miles. Many of the early lawyers practiced in the courts of the entire region.

A glance at the Whitewater bar reveals the names of an able array of men - men who shone as bright lights in the Senate of the United States, in the Lower House, iu the Cabinet, in the Gubernatorial chair in the Supreme Court, on the field of battle, and in other high official positions.

With the meager data at our command, and limited space, we can only hope to present some facts connected with the legal profession of Fayette

County, and with the circuits of which it has in the past formed a part, not elsewhere recorded. This we shall endeavor to do with some regard to chronological order. Biographies of some of the most distinguished resident members of the legal profession will be found elsewhere in this work.

The legal business of the earliest pioneers of the county for a decade after its first settlement was transacted at the seat of justice of the territory of which they formed a part - Lawreaceburg, and later Brookville, Salisbury and Centerville - owing to the location of their lands and the time of their business prior to the organization of Fayette County.

Circuits And Judges

After the organization of the county it was placed in the Third Judicial Circuit, with which it remained until the spring term of 1830. The President Judges of the Third Circuit during that period were John Watts, who served until the March term, 1S20, when succeeded by Miles C. Eggleston, who served until the March term of court, 1830.

At the March term, 1830, Fayette County became a part of the Sixth Judicial Circuit, over which presided Charles H. Test, whose successor in the spring of 1836 was Samuel Bigger. Judge James Perry was Bigger's successor by appointment, commissioned March 29, 1840; the latter resigned and became Governor. Judge Perry served out the unexpired time of Judge Bigger, and was succeeded by Jehu T. Elliott, who first appeared at the spring term of the court 184:4. Judge Elliott discharged the duties of the ofiSce until 1852, when he was relieved at the spring term of that year by the late Oliver P. Morton.

The following year Fayette County w3s made a part of the Fourth Judicial Circuit, and at the spring term William M. McCarty, President Judge of that circuit, presided at Fayette County. That fall Judge McCarty was succeeded by Judge Reuben D. Logan, who served through the September term of coiu-t, 1865. He was succeeded at the March term, 1866, by Jeremiah M. Wilson. At the March term of court, 1871, William A. Cullen became successor to Judge Wilson.

At the spring term of court, 1873, the county appears in the Eighth Judicial Circuit, over which presided Samuel A. Bonner. In 1883 Fayette was made a part of the Thirty-seventh Judicial Circuit, over which presided Ferdinand S. Swift, who is the present Judge of the Fayette Circuit Court.

The first Judge of the Court of Common Pleas of Fayette County was John S. Eeid, whose name appears for the first time at the January term of the court, 1853. Mi-. Reid ^discharged the duties of this oflSce until the December term of court, 1860, when he w.as succeeded by Jeremiah M. Wilson, who served

' until the spring term of court, 1865, then was suo- I ceeded by John F. Kibby, who performed the duties of the bench until 1873, when the Court of Common Pleas was abolished.

The former was a native of Scotland, and before twenty- four years of age had pursued a course of study at Oxford University. In 1839 he immigrated to America and attended Miami University at Oxford, Ohio. After his graduation he taught some in that vicinity, and in 1840 removed to Liberty, where he also taught school and read law. In 1851 he settled in Connersville, and was soon afterward elected Judge of the Court of Common Pleas, serving from 1853 to 1860. He was a member of the State Constitutional Convention, and subsequently served as State Senator from the counties of Fayette and Union. In 1868 he was the Democratic nominee for Concrress against George W. Julian. Reid's friends claimed his election, and the Judge contested the election, but unsuccessfully. In 1876 he removed to Indianapolis, where he was engaged in the practice of law until his death, which occurred September 5, 1879. He was a man of decided ability and sterling character. He had a taste for literary pursuits and was a poet of some distinction. He published a volume of works.

Judge Wilson is a native of Warren County, Ohio, where his youth was passed on a farm. He read law at Lebanon, the county seat of Warren, with Gen. Durbin Ward, and located at Centerville about 1854, and a few years subsequently settled at Connersville. From 1860 to 1865 he served as. Common Pleas Judge and as Circuit Judge from 1866 to 1871. He represented his district in Congress from 1871 to 1875, after which he settled in Washington, D. C, where he has since been engaged in the active practice of his profession. He is a man of recognized ability.

Eaklt Prosecuting Attorneys

The attorney who prosecuted pleas in behalf of the State for the circuit was appointed by the Governor, and in the early history of the courts of Fayette County the sum of $20 was the usual allowance for the services of a Prosecuting Attorney at a single term. It was necessary at times for the appointment of a County Prosecutor, which was made by the Judge.

In naming some of the men who served in the capacity of Prosecuting Attorney for the circuit or county in its early history, where either can be designated with a degree of certainty, it will be done.

The first to serve as County Prosecutor was William W. Wicks, who was appointed on the first day of the first term of court held in the county. May 3,

1819. Oliver H. Smith was appointed County Prosecutor in 1822, and took the oath of office at the March term of that year. In 1824 he was appointed Circuit Prosecutor by Gov. Hendricks, which position he held two years, resigning in 182(5, during which time, he remarks: " I rode with Judge Eggleston into every county and attended the courts twice a year. Our southern court at that time was held at Vevay, and our northern at Fort Wayne. The Judge was rather delicate, but I had an iron constitution. There were no bridges over the streams, but we rode good swimming horses and never faltered on account of high water, but plunged in and always found the opposite shore somehow. During the two years that I served as Prosecutor, there was not a single court held or a grand jury impaneled in my absence on our circuit. On one circuit I heard nine men sentenced to the penitentiary and four to be hung that I prosecuted."

Mr. Smith's successor was Amos Lane, when served for a time Cyrus Finch and David Wallace, then from December 30, 1828, for a period of three years was appointed Prosecuting Attorney for the Circuit Martin M. Ray. James Perry, William J. Brown (circuit), Samuel W. Parker, David Macy, Martin M. Ray, Samuel E. Perkins and Jehu T. Elliott served in the order given.

At the opening of the court, May 3, 1819, the following-named attorneys were present and admitted to practice in the courts of Fayette County: William W. Wick, James Noble, John Test, William C. Drew, Daniel J. Caswell, James B. Ray, James Rariden, Nathaniel French, and John A. Daily.

In 1820 were admitted Amos Lane, James Giimore, Oliver H. Smith, Moses Fay, David Eaton, Cyrus Finch and George H. Dunn. In 1821, Ozias Hale and Moses Hitchcock. In 1822, Charles H. Veeder, Martin M. Ray, John T. McKinney, William Steele, Vincet Mitchell and Charles H. Test. In 1823, W. R. Morris and David Wallace.

The following list of names was published in the Times in 1879, under the head of attorneys admitted to the Fayette County bar from 1819 to 1854:

Oliver H. Smith, in speaking of the lawyers of early Indiana, says: "Our lawyers were what the world calls self-made men, meaning men who have not had the advantages of rich fathers and early education, to whom the higher seminaries and colleges were sealed books; men gifted by nature with strong, vigorous, clear intellects, fine health, and sound constitutions; men, who like the newlyhatched swan, were directed by nature to their proper elements, their proper professions. Few of them failed of success. Necessity urged to action. With most of them it was 'root or die.' In ninety-nine cases out of every hundred of the failures in the different professions and avocations in life, charged by the world to 'bad luck,' it is nothing more nor less than the selection of a profession, avocation or business that nature never intended you for. The smallest teal, or duck, that swims on the bosom of Chesapeake Bay, would sink and drown in that element the best blooded and finest game-cock that ever old Virginia produced in her most chivalric days; while in the cock-pit, the teal or duck would be nowhere in the fight.

"Our counties furnished too little business for the resident attorneys; we all looked to a circuit practice. Some rode the whole circuit and others over but few counties. We sometimes had a little sparring in our cases in trials, but it ended there, and we stood banded together like brothers. At the Rush Circuit Court my friend Judge Perry bargained for a pony for $25, to be delivered the next day, on a credit of six months. The man came with the pony.

but required security of the Judge for the $25. The Judge drew the note at the top of a sheet of foolscap, and signed it. I signed it; James Rariden signed it and passed it on, and on it went from lawyer to lawyer around the bar, till some twenty of us had signed it. I then handed it up to the Court, and the three Judges put their names to it. Judge Perry presented it to the man he had bought the pony of, but he promptly refused to receive it. 'Do you think I am a fool, to let you get the court and all the lawyers on your side? I see you intend to cheat me out of my pony.' Up he jumped and ran out of the court house on full gallop.

" The great variety of trials and incidents on the circuit gave to the life of a traveling attorney an interest that we all relished exceedingly. There was none of the Green Bay City monotony, no dyspepsia, no gout, no ennui, rheumatism or neuralgia; consumption was a stranger among us. An occasional jump of the toothache, relieved by the turnkey of the first doctor we came to, was the worst. All was fun, good humor, fine jokes well received, good appetites and sound sleeping, cheerful landlords and goodnatured landladies at the head oi the table. We rode first-class horses: Gen. Noble oq 'Wrangler,' for which he gave $60; Drew on 'Drew Gray,' cost $70; Caswell on 'Blue Dick,' cost $65; Rariden on 'Old Gray,' cost $80; John Test on 'Bay Filly,' cost $50; Gen. McKinney on 'McKinney Roan,' cost $45; David Wallace on 'Ball,' cost $40; Amos Lane on 'Big Sorrel,' cost $60; Judge Eggleston on Indian pony, cost $35; George H. Dunn on 'Dancing Rabbit,' cost $40; James B. Ray on 'Red Jacket,' cost $60; Martin M. Ray on 'John,' cost $35; William R. Morris on 'Jacob,' cost $50; Charles H. Test on 'Archie,' cost $40; John S. Newman on 'Clay Bank,' cost $60; and I rode 'Grey Fox,' that cost me $90. These were the highest priceg at that day for the very best traveling horses in the country. They were trained to the cross-pole mud roads, and to swimming.

"Oar attorneys were ready, ofif-hand practitioners, seldom at fault for the occasion. Sometimes we had to meet attorneys from other States, who would fling the Latin and technical terms with a triumphant air, but in most cases they were foiled by the quick retorts of our bar."

Below is set forth the character of some of the non-resident members of the early Whitewater bar, as held by Oliver H. Smith, some of whom sat upon the bench in this county, and others were at times associated in its legal business. (James B. Ray was for a short time a resident of Connersville, and served for a time as Deputy Clerk of the County.)

quick, ready and always prepared. He served two full terms in the Senate; died a Senator, comparatively a young man, and lies entombed in the Congressional Cemetery at Washington.

"James B. Ray succeeded Gov. Hendricks, and was the youngest man who ever occupied the chair at the time of his election. He was a popular itump speaker; was never beaten before the people for Governor, at one time beating Judge Blackford, at another. Dr. Israel T. Canby and Habin H. Moore. He was a zealous lawyer, but entered the political field before his forensic powers were fully developed.

"Gen. McKinney was a fair lawyer, and gave good satisfaction as a Judge, but died before he had reached the meridian of his life, or had been long enough on the bench to fully develop his judicial character.

' 'Among the prominent men of the early White - water bar was Judge Charles H. Test. He was a young man of fine talents and great energy of character. At quite an early age he took a high position among the ablest of the profession.

"James Rariden was one of the strong men of the State. He represented Wayne County many years in both branches of the General Assembly; was a member of the Constitutional Convention of 1850, and served two terms in Congress from his district.

"William J. Brown held the high offices of mem ber of the Legislature, member of Congress and Assistant Postmaster-General. For many years be was one of the most formidable Democratic public speakers in the State.

"John S. Newman was a fine practice lawyer with a head clear as a bell, a remarkably matured judgment at an early day in his profession. His strong vigorous intellect made him a safe counsellor and a valuable co-laborer in heavy cases."

Resident Lawyers

Oliver H. Smith was admitted to the bar at Lawrenceburg, this State, in March, 1820, aad in May of the same year settled in Connersville as a practitioner. At the time of his arrival there was but one lawyer in the village - William W. Wick. Mr. Wick was not long a resident practitioner, as he was soon elected a Judge of the "New Purchase," and from 1825 to 1829 he filled the office of Secretary of State, and subsequently served as a Member of Congress. Charles Veeder, Ozias Hall, Cyrus Finch and Martin M. Ray were among the early resident members of the bar.

nersville with Oliver H. Smith in 1820. " Mr. Sample was no ordinary man, plain, practical in all his acts. He represented his district in Congress with decided ability; was always at his post, among the working men of the body. At the bar and as Presiding Judge of the Circuit Courts he stood high among the most eflScient and able practitioners, and one of the purest Judges that has graced the bench." He died while serving as President of the State Bank at South Bend, Ind.

The resident lawyers of the county at Connersville in 1832 were Oliver H. Smith, Caleb B. Smith, Samuel W. Parker and Samuel C. Sample. William Dail^' was at this time practicing law, and resided five and a half miles southwest of the village.

For a period at this time and just prior thereto the following law firms existed: M. M. Ray, and C. B. Smith (in 1833 Ray was located at Centreville), James Rariden and S. W. Parker. The former's oflBee was at Centreville.

From a published article in 1846 we give the names of the attorneys as therein set forth: Caleb B. Smith, S. W. Parker, Elisha Vance, James A. Fay, Joseph Justice, Lewis C. Fonts, William L. Spooner and William Daily.

The resident attorneys of the county for 1858-59 (as given in a State Directory) were B. F. Claypool, James C. Mcintosh, Joseph Marshall, Samuel W. Parker, John S. Reid, Gilbert Trusler, Nelson Trusler and Elisha Vance.

Ind., in 1823, read law with John A. Matson, in Brookville, and began the practice in Fayette County. In an obituary notice it is stated that " he soon took a leading position in the Whitewater Valley bar, at that time the ranking bar of the State, and meeting such men as Parker and Caleb B. Smith with credit." He was elected to the State Legislature in 1855. From September, 1862, to October, 1863, Mr. Trusler served as Colonel of the Eighty-fourth Regiment Indiana Volunteers: from 1865 to 1869 he served as Secretary of State. He was defeated for Attorney- General in 1870, and in 1872 succeeded Thomas M. Browne as United States District Attorney. On being elected Secretary of State he removed to Indianapolis, where his death occurred in 1880.

Gilbert Trusler, a brother of Nelson, was a native of this county, born in 1830. His name first appeared as an attorney at the bar of Fayette County in 1851. He entered the army in 1861 as Captain of Company H, Thirty-sixth Regiment Indiana Volunteers, and in June, 1863, was commissioned Major of the regiment. At the close of the war he was elected to the State Legislature. In his obituary notice it was stated that " he was a man of rare intellect, keen perceptions and sound judgment."

B. F. Claypool, the oldest and most distinguished member of the bar of the county, now engaged in active practice, read law in the office of the late Hon. Oliver H. Smith, in Indianapolis, being admitted in 1847, and soon thereafter established himself in the practice at Connersville, his native city. His biography, with those of other living attorneys, is found elsewhere in this work.