Gibson County, Indiana - Chapter 13: The Bench and the Bar, 1914

Chapter 13: The Bench and the Bar

Indiana, during the early years of her statehood, was fortunate indeed in tile selection of her judges. Almost an unbroken wilderness, her people immigrants and pioneers, toiling and struggling towards their conquest of the forest, living in daily apprehension of attack and murder, the young state selected for her supreme bench, and in most instances to preside over her inferior courts, men of courage and of marked learning and ability ; and to this day, it is a source of pride to every intelligent citizen that the decisions of her supreme court, made during the first one-third of a century of her history as a state, are recognized among all nglish-speaking peoples as sound, learned and just.

The eight volumes of Blackford's Reports, containing the cases heard and determined between 1816 and 1848, command the highest respect wherever the common law of England is the basis of adjudication, and these volumes set forth the opinions of the earliest Indiana judges.

The first judges of the supreme court of Indiana were James Scott, John Johnson and Jesse L. Holman, men of sound learning and marked ability. Judge Johnson w;as a resident of Vincennes and his practice as a lawyer had brought him not infrequently into the courts of Gibson county. He was the owner of land in this county, near Patoka, and was well known to our people in his day. He was a learned lawyer and an upright judge and the people of Gibson county have been honored by his presence and service among tlieni.

Judge Johnson died in 181 7 and was succeeded in office by Isaac Blackford. Prior to his service on the supreme bench. Judge Blackford resided at Vincennes and served as judge of the southwestern circuit. Pie was the first judge of the Gibson circuit court, and it is needless to add that the office of judge of that court has never had a more worthy incumbent. His long service as a judge of the supreme court, his learning, his soundness of judgment, have made for him a name that is world wide.

The ne.xt circuit judge was William IVincc, a resident of ("lihson county, and a man so much respected and honored by his fellnw citizens that when, in purstiance of law, a seat of justice was established in the county, it was christened "Princeton" in his honor.

Judge Prince was a man of signal abilit\-. but his str\ice on the liench was short, extending only from August. 18U). until March. 1817. He held a number of important po-^ts and. at the time of ItIs death, was the representative of this district in Congress.

David Hart, a resident of Gibson county, and a man of integrity and ability, succeeded Judge Prince in the ofbce of judge of the circuit, and lie in turn was succeeded by Richard Daniel, also a resident of this count}-. Judge Daniel came to the bench in 1819, and .served a little less than one year. He was highly honored by his fellow citizens and in his time played many parts, to the advantage of his neighbors and to his own renown and credit.

In 1820 James R. E. Goodlett became the judge of the circuit, and he continued in office until 1832. It appears that Judge Goodlett was a politician of considerable ability, and tradition has it that he maintained himself in office longer than was enflrely good for the community. He is said to ha\e been a man of strong and violent passions, vindictive and combative. His defeat was brought about by the lawyers of the circuit towards whom he had been unjust and disagreeable in his conduct upon the bench. It is related of Judge (ioodlett that in 1834 his ill-will towards his successor in office was so extreme that during the progress of proceedings in court at Mt. \'ernon he made a personal assault upon Judge Hall while on the liench.

Samuel Hall, the successor of Judge Goodlett, occupied the bench of the circuit until 1835. He was a sound law_\er and a just and able judge. He had cduie to Gibson county as a boy in 1814. His legal education was self acquired, and his success in life he owed solely to his own efforts, his uprightness of character and the soundness of his judgment. He ser\ed his county and the state in a number of responsible offices, and died at Princeton in 1862, in the full enjoyment of the well-earned re'^pect and confidence of a large circle of acc^uaintances.

During a short time, in 1835, the judge of the circuit was Charles I. Battell. Judge Battell was a distinguished leader of the bar and was widely and favorably known as a practitioner in the courts of southwestern Indiana.

over the courts of the circuit lor ten years. He was born in Lincoln county, Kentucky, and was brought to Indiana by his parents while a little boy in 1811. His father, Joshua Embree, died in 1813, leaving the mother and five children but scantily provided for and dependent upon their own exertions. The boyhood and youth of Judge Embree were spent in hard work, with little opportunity for schooling, but in some way he managed to acquire a fair education. He studied law with Judge Hall, became a successful practitioner at the bar, and was an able and popular judge.

Shortly before the end of the career of Judge Embree as judge, there came to Gibson county, on change of the venue from the Vanderburgh circuit court, a case that excited much notice and not a little popular ill-feeling. The title of the case was "State of Indiana v. Romain Weinzorpflin."

In this case the defendant was a priest of the Roman Catholic church. He was a native of France and came to America in company with the late Father Bessonies, of Indianapolis. He Avas charged by a grand jury of Vanderburgh county in three counts with rape, assault and battery and assault.

The trial began in the old courthouse at Princeton on the 5th day of March, 1844, and progressed until Saturday, the 9th day of the same month, when the jury returned a verdict of "guilty" upon the first count, and fixed the punishment of the defendant at imprisonment, at hard labor, for a term of five years.

Judge Embree was the presiding judge at this trial, and Alexander Trippet, Henry Ayres, David Milburn, Hudson Brown, John Ayres, Joseph P. McClure, Stephen Daugherty, James W. Maxam, John King, George Kendel, John Hyneman and John R. Campbell constituted the jury.

The writer has been told by James W. IMaxam, one of the jurors, that during the trial a member of the jury became ill, and it began to he feared that there would be a mistrial. The sick juror lived in Princeton, and he come to the conclusion that he would be able to hold out if he could get away for one night and get a "good night's rest" in his own bed at home.

During the adjournments of the court, the jurors were kept together in a room in the old "Mansion House," a two-story frame building which stood upon the west side of the public square at the place now occupied by the store rooms owned by William D. Downey. The room was on the second floor, and was reached by means of a stairway on the outside of the building. At the top of the stairway the entrance was by a door which led into a small entry from which another door afiforded entrance into the room. In this entry there was a closet.

Judge Eusha Embree

to the room locked, and to lea\e the outside door unlocked. Wlien he would be called upon to carry water to the jury, he would enter the room, get the water l^ucket and depart leaving the door to the room unlocked, but locking the outside door. On his return he would deliver the water, lock the room and depart.

The jury devised a means of escape for the ill juror. They called upon the bailiff for fresh water after nightfall. While he was gone after the water the sick juror concealed himself in the closet in the entn' and w-lien the bailiff locked the room door and left the outside door unlocked, the man in the closet waited until he had gone, when he departed to his own bed.

Before daylight the sick juror was in the closet again and when the bailiff went for water again, Icaxing the door to the room unlocked, the juror returned to his brethren so much rested and refreshed that he was able to continue in service until the return of the verdict. The fact was never discovered; if it had been, the defendant would have been granted a new trial.

At the time of this conviction the sheriff of the county was Joseph J. Kirkman, and it became his duty to convey the prisoner to the state prison at Jeffersonville. There was no railroad service at the time, and Jeffersonville was reached by way of the Ohio river from E\ans\ ille.

It was anticipated that there would 1)e an attempt at livansville either to rescue or to mob the prisoner, but the sheriff was not a man to be intimidated. He armed himself and succeeded in holding the mol) in such awe that no demonstration was made beyond the gathering of a crowd. It may be said in passing, that for an occasion of this sort the county of (;il)son has never had an olhcer better adapted than was josejih J- Kirkman. lie was a man without fear.

The case of Romain Weinzorpllin was appealed to the supreme court, and the judgment of conxiction was affirmed. \\'einzorpfiin v. State, 7 Blackf. 186. The opinion was delivered by Charles Dewew prohalily the greatest judge that has ever graced the supreme bench of Indiana.

Notwithstanding the solemn verdict of the jury, however, andi the afifirmance of the judgment by the supreme court, it was not absolutelv certain that the conviction was just. "But one witness swore positix-ely to the perpetration by the defendant of the crime charged upon him," and this witness was the woman in the case. The subsequent history of the woman indicates that she might not ha\-e been entirely abo\e reproach at the time of the alleged attack upon her.

The jury, however, was made up of honest men. They heard the evidence and saw the witnesses face to face, and if they erred, it may be taken

In 1847 Judge Embree was elected to the national House of Representatives for a term of two years. During his service at Washington he made the acquaintance of Elihu B. Washburn, Horace Greeley and Abraham Lincoln, and friendship continued between him and these distinguished men until the time of his death. In 1849 ^^^^ Whig convention made him tlie nominee of that party for governor of the state of Indiana, but this nomination he declined. In the same year he was defeated in the race for re-election to Congress. Judge Embree died in 1863, respected b}- the people of southwestern Indiana, among whom he was widely known.

The successor of Judge Embree was James Lockhart, who served as judge of the circuit court until 185 1. Judge Lockhart was a resident of Evansville, was a man highly honored by his fellow citizens and held many positions of trust and honor by their suffrage, among them that of representati\'e in Congress.

From 1 85 1 until 1854 Alvin P. Hovey, of Mt. A'ernon, was the circuit judge. The long and distinguished life and public ser\ice of Judge Hovey have become a part of the history of the commonwealth and of the nation. As a lawyer, a judge, a legislator, an executive and a gallant soldier, the record of Gen. Alvin P. Ho\ey is one in which the people of the w-hole state have an interest and justifiable pride.

The bench of the circuit was distinguished, also, by the service thereon for two years of the late William E. Niblack. The residence of Judge Xiblack was at Vincennes, but his public service was to the state of Indiana. He was for many years a member of the lower house of Congress, and during the later years of his life was one of the judges of the supreme court of Indiana.

In 1858 Ballard Smith became judge of the circuit upon the retirement from the ofiice of Judge Niblack, but his service was for one year only.

Judge Smith was succeeded by Michael F. Burke, a native of Ireland, where he had received a classical education. He resided at Washington, Indiana, was a ripe lawyer and a competent judge. Judge Burke died in office and was succeeded in 1864 by John Baker, of Vincennes.

Judge Baker was succeeded by Newton F. Mallott, but his term of service as judge of the Gibson circuit court extended only from 1870 till 1873, when a change of the circuit placed Gibson county in another circuit.

Judg'e JMallott was a resident of \'incennes, and lie remained u]iiin tlic liench until his death, rendering service such as has been equaled but rarely since the judges of the courts in Indiana became elective by the people. He was one of the soundest lawyers in Indiana and, in addition to his learning and distinguished aptitude to judicial service, he was a man above reproach, in whose honesty and conscientiousness all that knew him placed entire reliance. He was a judge of the old school who believed that it was the pro\ince nf the judge to apply the law to the facts and to do justice as the result of tlie application. It occurred to Judge Mallott to act judicially otherwise than as the law commanrled.

Upon the change in the circuit which removed Judge Mallott from the courts of Gibson county, the go\'ernor of the state appointed Oscar M. W'elborn to the judgeship of the eleventh judicial circuit, comprised of the counties of Gibson, Pike and Dubois, and for a continuous period of thirty-six years Judge Welborn presided in the courts of the circuit with distinguished ability and to the entire satisfaction of his constituency. The characteristics of Judge Welborn as a judge, which marked him for success, were the absolute fairness of his judgments, tb.e decorum of his own CDuduct and the conduct of the bar and court officers in pursuance of his requirement and example, and entire absence of every suspicion of either fear or favor as an imjnilse to his action.

From the time that Judge Welborn was elevated to the bench tlie business of the courts of the circuit increased in volume, and in difficulty and importance, at a steady and rapid rate, until after a time it was deemed proper by the General Assembly to make another change in the circuit by cutting off the counties of Pike and Dubois, and adding the county of Posey.

The augmentation of the business of the courts continued, but the industry and constancy of purpose of Judge Welborn enabled him to keep fairly apace with it, and at the end of his service the business was little in arrear.

Judge Welborn declined to stand for re-election in 1908, preferring to retire from public life, and at the end of his term, in 1909, he retired from the bench in possession of the absolute confidence and respect of the people of the circuit. Since his retirement he has devoted his attention to the management of his lands and to the practice of law.

Upon the retirement of Judge Welborn, the people of the circuit chose as his successor Herdis F. Clements, who served as judge of the Gibson circuit court until Gibson county was removed from the eleventh judicial circuit in 191 3. Judge Clements is a resident of ]\[t. Vernon and he is still the judge of the eleventh circuit, which is now constituted of the countv of Posev.

In 1913 the governor of Indiana appointed Simon L. \'andeveer, a sound and capable lawyer, to the judgeship of the new sixty-sixth judicial circuit, constituted of the county of Gibson, and Judge Vandeveer is still in service, rendering to the people efficient return for their confidence in him.

The judges that have presided over the courts of Gibson county in the past live in the history and in the traditions of our people and it is with pride and satisfaction that it is recalled that in their da}s and times they were an important element of our community. There are few counties that ha\e l>eei'[ more fortunate in this respect than Gibson count}- has been, during the nowclosing first century of her existence. Let us hope that the future will deal with us no less favorably than the past has done.

The bar of Gibson county has been as distinguished as the bench, and many have been the contests of skill and eloquence in our temples of justice.

In the old days it was the custom of the lawyers of the circuit to follow the judge from court to court, and by reason of this fact the business of the courts was not conducted by local lawyers to the extent that it is now. Traveling from court to court upon horseback, carrying their libraries, consisting of Blackstone's Commentaries, Chitty on Pleadings, Starkie on Evidence and Tidd's Practice, in their saddle-bags, the bar, in company with the circuit judge, proceeded from county to county, each hoping for employment at each successive county seat. They made a congenial company and entertained one another on the way and at the ta\erns by jokes and stories, such as would be at the command of able and enlightened men isolated as these men were.

The court rooms during the sessions of the courts, plain and not at all commodious, presented a scene of life and interest. The tables were covered with books and the appearance was that there Avas at hand a considerable library, probably as many as sixty volumes. Upon examination of the titles of the volumes, however, it appeared that the library was made up largely of duplicates of the works above enumerated, which had been removed from the saddle-bags and deposited in the court room for u?e during the term.

The terms of court were held twice a year and they lasted usually less than one week. Reports of decisions were few and difficult of access and because of this the successful practitioner was required to draw his inspiration from the texts of the classics of the law, and to place his reliance upon first principles. The result of this was that arguments upon questions of law were more scientific than the usual presentations of the present day. They were built upon the history and the maxims of the law, and in them quickness of perception, soundness of judgment and ability to set forth in clear and intelligible language the reasons for the contention of the advocate, counted fr)r much. The bar generally was made up of men of education, who were students in the sense that thc\' thnuc;ht more than they read, and it is said that in those days the di.scussions in court of a (|uestion of law was usually iirofound and interesting.

The people were without books and newspapers and tlurinj; court week it was their custom to gather at the county seat to listen to the ])roceedings in court, and when they left the court house and gathered together at their - homes and at log-rollings, there were spirited discussions among them upon the relative merits of the lawyers to whom they had listened, and of their several contentions. Court week was a time of popular diversion.

Very able men have conducted causes in the courts of Gilison county. The voice and person of John Johnson were familiar to our people, as were also those of Charles Dewey. The early \olumcs oi the refiorts of the decisions of the supreme court of Indiana are a monument to the Itarning: ami judicial perception of Charles Dewey. He was an educated law_\cr and a judge that would have been not onl\- an ornament but a pillar of strensfth to any court in Christendom.

The late Judge Samuel Hall left among his papers a list of the early practitioners at the Gibson county bar. The date wht-n this list was made is not definitely known, but probably about 1833. It is of historic interest and is here set out, as Judge Hall compiled it :

General W. Johnston for a time resided at Princeton. Lie practiced in the courts of Gibson county and was a man of marked ability. As a member of the territorial Legislature he prepared and presented a report which ranks among the ablest anti-slavery documents of our history.

Robert M. E^vans, one of the chief public men of his day, whcise name is intimately associated with most of the events of orr earl\- local history, was a member of the bar of the Gibson circuit court, and John Law was engaged frequently in the litigation of this county.

Samuel B. Judah, a resident of Vincennes, practiced his profession here and in doing so made cpiite an impression upon our histor\'. During the territorial days of Indiana, Congress, by law, devoted a township of land as an endowment of a seminary of learning within the territory and, pursuant to the enactment, Albert Gallitan, the secretary of the treasury, set apart township number 2 south, of range number 1 1 west, for the purpose. By an act of the territorial Legislature, Vincennes University was incorporated and made the beneficiar}- of the donation. The trustees of the university were duly organized and they established a school at \'incennes, which, after a fitful existence, ceased to be maintained. The matter remained dormant for a number of years, and meanwhile the General Assembly of the state established the State University at Bloomington and by law undertook to divert the nation's gift to that institution. Mr. Judah in these proceedings discovered an opportunity for business. He succeeded in getting together the survivors of the board of trustees of the Vincennes University, caused them to hold meetings and to fill the vacancies in that body and finally to institute in the Gibson circuit court actions of ejectment against the purchasers of lands in township number 2 south, of range 1 1 west, from the state of Indiana.

This was by no means popular among the dwellers within that congressional township and there was great indignation and much threatening of violence. It was found to be inconvenient to prosecute these actions in the Gibson circuit court, and to avoid trouble and probably something worse, Mr. Judah appealed to the Legislature and secured the passage of a law permitting

In the action which followed, the Vincennes University was successful and the state appealed from the judgment to the supreme court nf Indiana, by the judgment of which court the judgment of the Marion circuit court was reversed. This was followed by a writ of error carrying the record to the supreme court of the United States, where the cause was argued on behalf of the Vincennes University by the great Chancellor Kent, of New York. The result of this proceeding was that the supreme court of the United States reversed the judgment of the supreme court of Indiana, holding that the title to the township of lands had vested in the Vincennes University, and that there was no power in the state Legislature to di\est that title.

The next step on the part of Mr. Judah was to realize upon his victor\- and the course he pursued to do this was to procure the passage of an act by the Legislature of Indiana, authorizing the issuing of bonds of the state to raise funds wherewith to pay the judgment.

The bonds were issued and fell into hands of Mr. Judah, whereupon there began a course of interesting legislation whereby the Vincennes University sought to get into its hands the fruits of its \-ictory. Just how much it was able to wrest from Mr. Judah the writer has never learned.

These proceedings have been the basis of the periodical demands that have been made by the Vincennes University for reimbursement by the state for the lands in township 2 south, of range 1 1 west, that were sold many years ago for the benefit of Indiana University. These demands ha\e been fairly successful in the past, but it is hoped that the university w ill not ha\e to be reimbursed again.

Another lawyer of prominence in his day was John Pitcher, a lawyer of the old school and a man of large ability. He lived to a great age and died at his home in Alt. \'ernon, in Posey county, a few years ago. For a period he was judge of the court of common pleas and many were the stories illustrative of his wit and sarcasm both at the bar and while upon the bench.

During his incumbency of the bench there was a lawyer at Princeton named Harry Kiger, a young man of gay spirit and convivial habits. The passages between him and the judge provided stories of interest, some of which are yet current.

It is said that upon one occasion Mr. Kiger left the court room to take an additional inspiration before beginning an address to the jurv. He stayed a little too long and his time to speak came before his return. The weather (13) was warm, and as Mr. Kiger hurried into the court room and toward the bar he was engaged in removing his coat, his neck cloth and collar which, when the judge perceived it, caused him to announce from the bench in an audible voice, "Mr. Kiger kindly keep on your shirt."

On one occasion after Judge Pitcher had decided ad\-ersely to the hope of some members of the bar, the defeated and chagrined lawyers proceeded to leave the court room in a manner somewhat perceptible. As they went towards the door the Judge called out to them, "Yes, yes, gentlemen, adjourn to the nearest tavern and cuss the judge."

A few years ago a volume could have been written of anecdotes such as these relative to Judge Pitcher and Harry Kiger, but the men of their days are gone and the wit, the sarcasm, and the glory of these men have passed into that oblivion which is the goal of the votaries of the law.

A member of the Gibson county bar of signal learning and ability in his day was Alexander C. Donald, a Scot by birth and a man of ripe learning. Mr. Donald was an orator of unusual merit, and his broad Scotch accent and the burr of his r's lent a charm to his delivery which seldom has been equalled. His case was one of buried talent. If Alexander C. Donald had been in a larger community and had had opportunities equal to his talents, there is no way of estimating the height to which he might ha\c ascended in success and fame.

Contemporary with ^fr. Donald was James T. Embree, a classical graduate and an educated lawyer of distinguished power and success. He was born in Princeton and from 1852 until 1861, when he entered the Union army as major of the Fifty-eighth Regiment of Indiana Volunteers, Mr. Embree practiced his profession in the courts of Gibson and neighboring counties. It Avas quite usual for him and Mr. Donald to be upon opposite sides in cases in court, and while their talents were dissimilar, the measure of their success was about equal. A,fter resigning from the army because of failure of health in 1864, Colonel Embree returned to the practice of the law in Princeton, as partners of his brother, David F. Embree. His health did not permit him to continue long, and his career ended in death in 1867, at the age of thirty-eight years.

Another man of prominence at the bar of our county was William M. Land, a man of great cunning in the trial of cases, and a figure in the political and civic life of the community. He was judge of the court of common pleas for a few months immediately before that court was abolished.

A. Buskirk and David F. Emhree, and both took rank at once as leaders of the bar. The\- were men of education and lawyers of more than common strength. In the trial of cases before a jury, Mr. Buskirk was a man of great success; as a technical lawyer Mr. Embree had few superiors. These men were frequently opposed to one another in the trial of cases and though their talents and equipment were in no way the same, it was not oljservable that either one of them had the greater advantage.

David F. Embree had served as a captain of Company E, Forty-second Regiment of Indiana Volunteers, durmg the Civil war, and exposure in that service was the cause of his death in 1877. Mr. Buskirk still survives, but for a number of years he has not pursued his profession.

A member of the Gibson county bar of other days, whose learning antl ability in the conduct of causes demands special mention was William 11. Trippett. i\Iany years ago Mr. Trippett left Gibson county to become a resident of Montana, where he still resides and practices law. He is remembered at Princeton as a capable lawj^er, somewhat inclined to indolence and to a disposition to have a "good time." It took a spur to put him in motion, but when he moved it behooved the other side to keep wide av\ake. The writer remembers well the efficiency of Mr. Trippett in the prosecution of one Ed. Smith, a negro charged with larceny. In the trial of this cause at Evansville, the argument of Mr. Trippett in closing this case for the state was equal to an\' forensic effort the writer has ever heard in more than thirty-si.x \-ears of ser\ice at the bar. Mr. Trijjpctt is still engaged in the iiractice at .-\naconda, Montana.

Nearly fort_\- years ago James E. .McCullough, now the assistant attorney-general of Indiana, came from Petersburg to Princeton and entered upon the practice of law. In the practice, Mr. McCullough was very successful and there have been at the Princeton bar few men who were his equal in keenness and accuracy of legal perception and capacity to impress his views upon the courts. F"or a number of years he has been in the practice at Indianapolis.

There are others deserving of mention, some of them long since passed into the great beyond. There were John C. Schaffer, a good ]aw\er and a kindly gentleman; Martin A\'. iMelds, an advocate of great .skill and a capable lawyer; Richard M. J. Miller, tlie victim of man\- weaknesses, but a man of good ability and native sincerity: David D. Doughty, a matchless player at checkers and a friend of all men. These are gone.

There yet remains Thomas R. Paxton, a graduate of Har\ard law school and a good law}-er, who has forsaken the tribe of the law for the more con- genial business of banking; Thomas Duncan, the chairman of the pubhc utihties commission of Indiana, whose practice at the Gibson county bar was an unbroken chain of success ; Henry A. Yeager and James B. Gamble, survivors of the old school, who still persevere in the practice; Arthur P. Twineham, who has returned to the bar after a considerable period spent in other pursuits; John H. Miller, for manj' years a successful practitioner, but who has Cjuit the law for the farm; Woodfin D. Robinson, ex-judge of the appellate court of Indiana, and William E. Stilwell, one time a state senator, who together are engaged in successful practice at Evansville ; John W. Brady, a lawyer of sound learning and judgment, and a master hand at trial by jury. There is a train of new and younger men who are fast pushing to the front of their profession.

[Not the least deserving of specific mention in this connection is Lucius C. Embree, author of this chapter, and who, during a long, honorable and successful career, has ably sustained the splendid professional record of his family. - Ed.]