Franklin County, Indiana - Chapter 7: The Courts of Fraxklix County, 1915

Chapter 7: The Courts of Fraxklix County

The history of court procedure in Indiana shows that there have been marked changes in court practice from the territorial days down to the present time. There were no less than three kinds of courts from 1S05 to 1816 and the complexity of the legal machinery in those early days was astonishing when it is taken into consideration that so many of the early lawyers had a very limited knowledge of their profession. In the early history of the state the old lawyers delighted in using long Latin expressions and the more cumbersome phraseology tliey could in\ent the better they seemed to be pleased. In fact, there were so many Latin phrases that the Legislature ordered the revised statutes of 1828 to have a glossary at the end explaining them. In this Latin dictionary the embryo lawyer could find out what "qiiare daiisum frcget" meant, as well as simple classical expressions like "jury de meietate lingua."

When Franklin county began its independent career in the spring of 181 1 it had three courts to take care of its business. A county court, a common pleas court, or nisi prius (oyer and terminer), as it was called, and a circuit court. In addition there were a multiplicity of justice of the peace courts. The county court was composed of the associate judges, the auditor and sherifif. and performed practically the same functions as the commissioners' court of today. It went out of existence when the state was admitted to the Union in 18 16.

The first county court in Franklin county met on February 18, iSil, withi Benjamin McCarty, John Templeton and Thomas Brown present:! These men were judges also of the common pleas court. It should be explained here that these same judges really composed both the countv court and the common pleas court, being known as a county court when transacting such business as is now in the hands of the county commissioners. As a county court they fixed th^ tax levy, created townships, laid out roads, or

"cartways" as they called tlieiii, issued tavern licenses, appointed road supervisors, fence viewers, listers, overseers of the poor, election officials, pound keepers and all other appointive officers. They also were empowered to establish the prices which the tavern keeper could charge. For instance, the county court issued a schedule of prices for tavern keepers which allowed them to charge only twenty-five cents for a meal, twelve and a half cents for a half pint of whiskey or brandy, a similar amount for a quart of cider, a quart of beer, a pint of wine, a gallon of corn or gallon of oats. The tavern keeper was allowed to charge only six and a fourth cents for lodging. This schedule of prices was set forth in the county court record of 181 1, and is ample proof that the high cost of living did not worry the people of that day. It is safe to say that more than half of the volumes containing the records of the county court are taken up with petitions for "cartways through the plantations" of the settlers of the county. The use of the word "plantation" is indicative of the southern origin of the settlers. The last session of the county court was held February 5, 181 7, and was recorded in book D, page 146. The associate judges at that time were John Whitworth and William H. Eads.

The constitution of 1816 provided for three commissioners for each county, the same to take charge of the business which had heretofore been performed by the county court. The first meeting of the commissioners of Franklin county under the Constitution of 1816 was held in Brookville on Monday, February 10, 1817, with Samuel Rockafellar and Enoch D. John present as commissioners. James Wilson, the other commissioner, appeared first at the May, 181 7, meeting of the board.

The county commissioners continued the work formerly done by the county court until August 9. 1S24. The Legislature of 1824 made a radical change in the method of conducting the affairs of the counties. By this newact the office of county commissioner was abolished and the affairs of the county entrusted to a board of justices. By this provision the board of justices for Franklin county, which first met September 6, 1824. including no less than se\ enteen men : Henry Jeiikinson, James A. Lowes, Sanford Keeler, John Allen, James McKnight. John Fo.ster. Samuel Murphy. Jacob P. Ervin, Joseph S. Allen, Daniel Ogden, Solomon Allen. William Sims, Urban Edgerton, John Davidson, John Reid, Thomas Flint and Bradbur\' Cottrel. These seventeen pien performed the same duties as three m^n ha^ previously done and continued to do xj until May 8, 1827. The minutes of the meetings of the hoard (jf justices are ffuind in Ijook G. pages I-85.

The Legislature of 1826-27 abolished the hoard of justices and restored the office of county commissi(jner. The first session of the new hoard of commissioners met in Dr(j(jk\ille Xovemher 5, 1827, and since that year the county affairs have been handled Ijy a board of three commissioners. The three commissioners who met at this time were James Webb, George Sutton and John Foster.

The First Co.Mmo.N Pleas Court

The first court of common pleas assembled at Brook\ille on March 4. 1811, and was in charge of Judges Benjamin McCarty, John Tenipleton and Thomas Brown. The clerk, Enoch McCarty. and sheriff. Robert Hanna. were also memliers of the court. The grand jury was sworn in, composed of the following freeholders: John Brown (foreman). William Logan. John Livingston, John Hanna, Robert Templcton, David Bell, Thomas Clark, Conrad Sailor, Solomon Tyncr, Stephen Martin. Britton Gant. James Winchell, William Nicholas, James Xicliolas. William Dubois, John Allen, John Milholland, John Thompson, Jacob Sailors. Allen Ramsey, John Lefforge, Joshua Porter and Robert Glidewell. This grand jury returned onlv a few indictments. James McCoy and Fielding Jeter were indicted for retailing "strong water" and were fined three dollars and tvvelve dollars respectivelv. Samuel Henry was charged with selling cider in quantities of less than two gallons without license and this oversight on his part cost him twelve dollars and costs. This said Henry was granted a license to keep a tavern in his house at this same court, the privilege costing him two dollars. Tames Adair was also granted a tavern license upon the payment of the same sum to the county. Among other items of interest in the records of this first common pleas court may be mentioned the payment of wolf l>3unties. George Frasier and Peter Youngblood were allowed seventy-five cents apiece for killing three wolves each. Stephen Harrell was paid a dollar for killing two wolves imder six months, while William Harrell received the same amount for killing two wolves of the same age.

Five men applied for admission to the bar - Elijah Sparks, James Dill, James Xolile, Stephen C. Stephens and Jesse L. Holman. According to the law in those days, all lawyers practicing in the courts of any countv had to he formally admitted to the practice in that county. This does not necessarily mean that they ever had more than one case in the county.

The First Circuit Court

It has already been mentioned that there was in addition to the county and common pleas courts, a circuit court, which was the forerunner of our present state federal court. The circuit court was presided over by a judge appointed by the United States !^f)vernment. The first circuit court in Franklin county convened on Mondaw June 24, 18. i, and was presided over by Benjamin Parke, who was one of the L'nited States circuit judges for Indiana Territory. The grand jury on this occasion was composed of Patrick McCarty, John 'MWkr. William Crofford, Robert Swan, David Hollingsworth, Daniel Cunningham, John llanna. John Logan. Samuel Ely, Elliott Herndon, Philemon Harvey, James Putnam, John Carson, John Pergit, James McGinnis, Reuben Lines an<l Joseph Rippy. This grand jury returned two indictments, one against Polly Knigte for selling whiskey to the Indians and the other against Stephen C. Stephens for selling a tin pan to an Indian. Just what this latter offense was is not known, but evidently it was not very serious since the indictment against Stephens was (puu^hed. Polly pleaded not guilty and was released on bond in the sum of three dollars and bound over to the next term of court (June 21, 1813), when she was acquitted. This court was in session only one day.

The courts which have been briefly mentioned were conducted by men of sterling integrity, if n(jt of profound legal knowledge. In the early history of the state, and Franklin county was no exception, the associate judges were as liable to be farmers or tavern keepers as lawyers. Justices of the peace (and these custodians of the law were more prominent in the early history of the state than they are now) were nearly always farmers, but they made up in common sense what they lacked in legal knowledge. To the person who reads over the records of the courts in Franklin county there appears to be no appreciable difference between this county and others in the state as far as misdemeanors and felonies are concerned. The commissioners' records show how the early settlers struggled to get their cartways : how they protested against high taxes; how they took care of their poor; what a struggle they had to get the townships organized, and finally, there are scores of pages which list the misdemeanors of our good forefathers. Hundreds of fines were assessed for fighting, drunkenness, gambling, working on the Sabbath, dueling and prcjfanity. The fines were usually one dollar and costs, although there were many instances where it only cost a man fifty cents to whip his neighbor, the crime being listed in the records as "salt and battery."

Franklin Colxty, Indiana

The following list of lawyers is arranged in the order of their admission to the Franklin county bar, and contains many of the most noted lawyers of our state. In this list may be seen United States senators, congressmen, governors, state senators and representatives, members of the supreme court of our state, ministers to foreign countries and scores of lawyers whose names were once known throughout the state. The dates are taken from the court records and indicate when admission to the local bar was granted.