James M. Redwine

Abraham Lincoln

Two Auspicious Days

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The seven day period beginning April 08 and ending April 15 has two important days, one joyous and one sad. April 08 is Peg’s birthday. Please wish her happiness and strength as she deals with having me home a lot more now. As to the other significant anniversary, Abraham Lincoln died on April 15, 1865. As if paying our taxes on April 15 was not already sad enough.

Of course, there is a certain historic connection between federal income taxes and President Lincoln. He helped institute the first federal income tax to pay for the Civil War, which was fought to preserve the Union. However, after the Civil War ended the income tax was also ended until 1916 when it was made permanent by the 16th Amendment to the Constitution.

Kentucky, Indiana and Illinois claim Lincoln for our own but hardly anyone lays claim to the income tax. As Peg and I will wait until 11:59 p.m. on April 15 to pay ours we assume we will have a lot of fellow travelers. It is widely accepted that the major need for America to impose taxes on itself is to pay for wars or the preparation for potential wars. Oh, we expend a lot for various other things too such as salaries and expense accounts for Congress people, Executive Branch workers and judges, health care and the clean up after celebrations such as inaugurations and ticker-tape parades to honor sports teams. I am assured by those involved in these endeavors our hard earned money is well spent.

If you are like me you put Presidents George Washington and Abraham Lincoln in a separate rarified class from other presidents. And while George Washington never visited Posey County, Indiana as did Abraham Lincoln (thanks to my friend and historian Jerry King for this information), I note Washington managed to birth our nation without a federal income tax. Anyway, I forgive Lincoln since he took the time to dedicate a bridge in Savah, Posey County, Indiana in 1844 when he was campaigning for Henry Clay (1777-1852); Clay lost. Maybe those early Hoosiers suspected Abraham Lincoln might someday start an income tax.

Well, income taxes and the Civil War aside, Abraham Lincoln still has much to teach us about humility, compromise, mercy, justice and just plain decency. And as for Peg’s birthday, I am going to celebrate it by thanking you Gentle Readers who have been kind enough to commiserate with her as she has often served as a foil in these articles over the many years!

Hoosiers and Slave Auctions

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Gentle Reader, you will, of course, remember the Gavel Gamut column of December 05, 2005 where one of Posey County, Indiana’s most infamous brawlers was mentioned. One Tom Miller was fond of drink and when drinking was fond of fighting. In the years just before the Civil War old Tom would get liquored up and lick whoever had the misfortune to run into him on the streets of Mt. Vernon, Indiana. As described by John Leffel in the Western Star newspaper Miller would, “Pace the streets of Mt. Vernon with his coat off, sleeves rolled up, his shaggy breast exposed and his suspenders about his waist.” According to the editor, Tom always bellowed the same challenge, “I’m a mean man, a bad man and I orter to be whipped, I know, but whar’s the man to do it?”

Tom Miller was only one small part of our Posey County and new state of Indiana’s reputation for tumultuous living. The sobriquet, “Hoop Pool Township”, was fairly earned by Posey County brawlers who drove visiting boatmen away. And as for frontier justice in Indiana, some experts assert our Hoosier nickname came about from the proclivity of Indiana rowdies to bite off ears and spit them out onto barroom floors.

I am indebted to columnist Erik Deckers who set forth this theory of the origin of the word “Hoosier” in his article contained in the publication Here and Wow, Indianapolis! Vol.1, No. 1, 2018. At page 22 Deckers attributed this possibility to Indiana’s poet laureate James Whitcomb Riley (1849-1916) of When the Frost is on the Pumpkin fame who claimed that early Indiana folks would frequently gouge out eyes or bite off body parts which would litter a barroom floor and when the next day someone would kick the removed piece of fleck they’d ask, “Whose ear?”

If I had not dealt with so many cases in court where the behavior of the combatants resembled such activity I might look askance on such a theory. However, I can see some merit to Riley’s analysis.

Well, onto another topic as discussed in last week’s column. You do remember last week’s column, right? Okay, it involved military service and concentrated on my Great Great Grandfather, John Giggy who was a stone mason and farmer from La Grange, Indiana who fought all four years (1861-1865) in Company H of the famed Iron 44thIndiana Volunteer Infantry.

Before being wounded at both Shiloh and Chickamauga and before he saw his first shot fired he and his outfit witnessed a sad spectacle in Henderson, Kentucky that helped them understand one of the main reasons they went to war. Kentucky did not secede, but it did have legal slavery until 1865. In fact, one reason Tom Lincoln, Abraham’s father, moved his family from Kentucky to Indiana was to avoid competing for work with slave labor. Slavery was part of the legal and social culture of Kentucky. The young Hoosier farm boys from northern Indiana who were used to doing their own labor had not had direct knowledge of The Peculiar Institution until they personally observed a slave auction in 1861 just across the Ohio River as they were making their way south:

“It was a strange pitiful sight that of women and little children standing upon the action block to be sold as human chattles. They came wringing their hands and with tears and sobs, lamenting their cruel fate. The soldiers stood near filled with pity and indignation but restrained by law and discipline. Slavery existed at this point in its mildest form. Here were a dozen or more large tobacco factories. The blacks were required as a daily task to strip 400 pounds under penalty of the rod. Children of ten years were given this task. Work hours extended from 4 a.m. to 8 p.m. In each room was an overseer whose presence was a threat. Some negroes were well dressed, others ragged. Attendance at church was allowed and many were Christians. They regarded the coming of the soldiers as the precursor of their liberty.”

As to the name Hoosier, Posey County’s most famous citizen, Major General Alvin P. Hovey, while in command at Shiloh came across a Union sentry on a dark night who asked for the password. Hovey was just getting his men to that position and had no idea what password was being used. When the sentry asked, “Who goes there?”, Hovey improvised what he hoped would be an acceptable password and responded, “Hoosiers”. The sentry said, “Welcome Hoosiers.” Apparently, we Hoosiers have been welcomed as such for a long time.

A House Divided

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Most of us know of and many can even recite President Abraham Lincoln’s Gettysburg Address delivered during the Civil War on November 19, 1863. And most of us know of and probably sometimes paraphrase his House Divided speech delivered when he was a candidate for United States Senator in Illinois (June 16, 1858). Lincoln lost to Stephan Douglas whom Lincoln later beat for the presidency in 1860.

​The topic might be a little heavy for a short weekly newspaper column but with our country’s birthday this week and the country in a perpetual state of mutual invective I humbly submit it is worth our attention.

​In an attempt to pare down the extremely complex and emotionally charged issues of our country’s Negro slavery, the Civil War, our current status in re civil rights and the cacophony of our public discourse, I will just refer to a few items: (1) The United States Constitution, (2) the Missouri Compromise, (3) the Kansas-Nebraska Act and, (4) the Dred Scott case as decided in 1857 by the U.S. Supreme Court. If you are still with me, I caution it gets worse.

​Originally slavery was recognized as a States Rights issue, i.e., if a state wanted slavery and wanted to be part of the Unionthat was okay. But as a device to apportion the number of a state’s congressmen, the Constitution declared Negroes in eachstate would be counted as 3/5 of a person for census purposes. However, African Americans were not made citizens until the Civil War via the Thirteenth, Fourteenth and Fifteenth Amendments. Of course, Indians were not included, and women of any race could not vote until 1920 via the 19th Amendment to the Constitution.

​Because of the great divide between free and slave states, the Missouri Compromise of 1820 was enacted, although many argued it was unconstitutional. The Missouri Compromise allowed for the admission of Missouri as a slave state and Maine as a free state and prohibited slavery north of a certain parallel (36°30’) but allowed it below that border.

​This worked alright until heightened tensions arose between slave and free states so Senator Stephan Douglas in 1854 got the Kansas-Nebraska Act passed, which allowed for the admission of the states of Kansas and Nebraska to the union with the provision of slavery by popular majority vote of each state’s citizens. Of course, this was not within the spirit or the substance of the Missouri Compromise.

​Then in 1857 the United States Supreme Court decided the Dred Scott case. Scott, was a slave whose owner had taken Scott with the owner to live in a free state then returned with him to Missouri. Scott sued for his freedom claiming that once he was in a free state he was then after always free.

​Precedent as old as a decision from colonial times in 1772, the Somerset case, was clearly with Scott and most legal authorities, including the lawyer Abraham Lincoln, expected the Supreme Court to declare Scott free. How wrong he and many others were.

​Chief Justice Roger Taney a former slave owner and fierce opponent of the Missouri Compromise, ignored established precedent and used Dred Scott’s case to declare no Negro could ever be a citizen of the United States and that the Missouri Compromise was unconstitutional. Taney’s overreaching andpoorly reasoned opinion led directly to the Civil War four years later.

​According to the historian Paul Finkelman who wrote the book Dred Scott v. Sandford, A Brief History with Documents:

“By the 1850s Taney was a seething, angry, uncompromising supporter of the South and slavery and an implacable foe of racial equality, the Republican Party, and the anti-slavery movement.”

See p. 29

​

​Taney declared that Blacks:

“[A]re not included and were not intended to be included, under the word ‘citizens’ in the Constitution… [T]hey were at that time (1787) considered as a subordinate and inferior class of beings….”

ibid p. 35

​

​Stephan Douglas held the position the question of slavery should be a matter of state option. Abraham Lincoln on the other hand foresaw that a nation half-slave and half-free, that is a nation divided against itself, could not survive. We are still working that out after 242 years. Happy Birthday!

The Harder Right

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Gentle Reader do not despair. We have reached the final week of our discussion of the Internet course for Rural Court Judges. You will no doubt recall our previous sessions on the scintillating topics of Rural Court Case and Court Management. Well, the best is yet to come. I only wish we could hear from the student judges from Alaska to Maryland who attended the seven week National Judicial College course that I helped teach. Surely they were filled with the same excitement I felt as an Indiana University freshman law student during Contracts classes, perhaps much as you have been while reading Gavel Gamut the past few weeks. But, all good things must come to an end so let us summarize what we have studied.

We started with the proposition that the most essential criterion for being a Rural Court judge, or any judge, is good character. Intelligence and industry are fine attributes but ring hollow if a judge cannot choose the harder right over the easier wrong. As Socrates told his Athenian judges who tried to have it both ways, “Your job is to do justice, not make a present of it.”

You may remember the prescient observation made by Alexis de Tocqueville (1805-1859) when he wrote of his impressions of America in Democracy in America: “In America practically every political question eventually becomes a judicial one.” Of course, for those questions to be answered properly the judiciary must be fair and impartial and the public must have confidence they are; politics must not enter into a judge’s decisions.

That astute one-time Hoosier Abraham Lincoln who knew a little bit about politics and a lot about judging saw the legal profession’s role as to first be peacekeepers. To keep the peace judges must enjoy the public’s confidence in the absolute impartiality of judicial decisions. Character is the cloak that must robe a judge.

And when a judge is faced with those difficult cases where he or she is tempted to slip off the blindfold and tip the scales of justice, the only refuge a judge has is his or her character. That is what judges heard during our Internet course and what Bobby Kennedy meant when he said, “Some see things as they are and ask, why? I dream what things could be and ask, why not?”

Of course, society often rewards those of weak character and severely punishes those who choose the harder right. But that pressure is what judges must withstand. So where we start and end our course on Rural Court judges is the same proposition: judges must keep the blindfold on and their thumbs off the scale.

Feet of Clay

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Picture by Peg Redwine

William Shakespeare had Marc Antony preach these words at Julius Caesar’s funeral:

“The evil that men do lives after them; the good is oft interred with their bones.”

Act III, Scene 2

Antony went on to list Caesar’s accomplishments in addition to his being ambitious. There was some good, some bad. Perhaps the citizens of Rome should have erected a partial statue of Caesar honoring just the good parts.

This could be a solution to our current controversy over monuments to historic figures. A committee could be composed of people who admire the works of a now dead leader and those who find the figure’s behavior flawed. A few examples might be helpful.

George Washington survived Valley Forge, presided over the Constitutional Convention and refused the opportunity to be named an emperor. On the other hand he owned hundreds of slaves and helped enshrine slavery into our legal system. The Committee might consider cutting the Washington Monument in half.

Thomas Jefferson was responsible for the Bill of Rights that guaranteed individual liberty but only to twenty-one year old white males. He also owned slaves and had children by one of them. Today such an employer/subject relationship would result in severe censure. Perhaps the Committee might recommend the Jefferson Memorial be closed every other week.

As we search for unblemished heroes to honor we could consider Abraham Lincoln who issued the Emancipation Proclamation. However, he at first averred slavery would be preferable to the disintegration of the Union and the Proclamation did not free all slaves just those in the states of the Confederacy. The Committee could maybe have a disclaimer added as a placard around his statue’s neck.

Andrew Jackson committed adultery, captured Seminole Indians under a flag of truce and as president created The Trail of Tears. On the other hand, he was a courageous and victorious military leader. A short bronze bust could replace his heroic sized statue.

As for Mount Rushmore the Committee would have to remove at least 3 of the 4 figures. Of course, Teddy Roosevelt had a penchant for shooting animals which might upset the ASPCA; so all 4 might have to be erased.

Right here in Posey County, Indiana we have a dilemma about what to do with our most famous citizen. Alvin Peterson Hovey was once Posey Circuit Court Judge, a Civil War general for the Union and our only governor. Unfortunately, he also was instrumental in helping to cover up the murders of seven Black men in October 1878. One of those Black men was shot and stuffed into a hollow tree on a farm owned by Hovey. Will the Committee have to remove the glowing patina from Hovey’s bronze in the Indiana State House?

One might look to Jesus as the paragon of virtue but even he got angry and threw the moneychangers out of the temple. He, also, voiced his hope that the cup of his great travail might pass from him. On the other hand, apparently no one knows what Jesus looked like unless one believes the Shroud of Turin is a clue. I guess the Committee would not be able to find any statues of Jesus to modify.

It appears that history has not provided us with any perfect examples to honor. Maybe the Committee will have to suggest that all statues be modified by substituting feet of clay.

Picture by Peg Redwine

Do Right While We Help Ourselves

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If you read last week’s column (hey, I can dream can’t I), you know I am preparing to help the National Judicial College teach Rural Court Judges. Last week we talked about the theory that our law arises from our history and culture, our Volksgeist. Or as Oliver Wendell Holmes, Jr. (1841-1935) put it, “The life of the law has not been logic; it has been experience”.

Posey County, Indiana has produced several influential thinkers on what our law should be and do, that is, what is the proper purpose of our legal system? Our most famous citizen was and still is Alvin P. Hovey (1821–1891). Hovey was an attorney, a Posey Circuit Court judge, a general and the only governor to ever come from Posey County (1889–1891). He also sat on the Indiana Supreme Court when it decided a poor person was entitled to the same protection of our laws as a rich person.

Another of our famous predecessors was the brilliant and courageous Frances (Mad Fanny) Wright (1795–1852) who gave her entire adult life to an effort to free slaves and secure equal rights for women. Unfortunately, her good deeds were often overshadowed by her lifestyle. Still she fought for those who could not fight for themselves.

Frances Wright’s companion and fellow traveler was former Congressman Robert Dale Owen (1801–1877). Owen knew Abraham Lincoln from having served in Congress in 1843–1847 while Lincoln served in Congress 1847–1849. Owen’s 1863 letter to Lincoln urging him to free the slaves is credited with influencing the President to issue the Emancipation Proclamation.

Robert Owen and Alvin Hovey were also Posey County’s delegates to the Indiana Constitutional Convention of 1850–1852 that produced our 1852 Constitution in which our legal system demands fair and equal treatment regardless of a person’s ability to pay. The Preamble sets forth the first principle of our government is to establish justice and, as set forth in Article I, “That all people are created equal”.

Article I, Section 12, guarantees equal justice to rich and poor alike: 

“All courts shall be open and every person for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” 

While there are many reasons we need justice from our legal system, I suggest the two most important areas concern whether our government wants to lock us up or take away our children. Of course, there are many wealthy people who are charged with crimes and even some wealthy people who the rest of us believe should lose their children to state care. However, it is simply a fact that most people who go to jail are poor as are most parents whose children are removed by the courts.

It is usually the poor and powerless who are caught up in the terrifying, confusing and expensive legal system. And frequently these poor people are not highly educated nor do they have friends in high places. They need help and both Indiana and federal law guarantee that help to them, including representation by an attorney. If the rest of us want to lock someone up or take away their children, the least we can do is follow the law ourselves and provide these people with legal assistance as our Constitutions demand. This is not only required by law, fair, just and reasonable, it is good for all of us. If the innocent are not locked up or the guilty are fairly sentenced or children are not removed when unnecessary or when necessary are removed carefully and with efforts to help the children and the parents, such justice is in our own self interest. In other words, not only is it right, it is smart and in the long run saves us money as it helps people recover so they may contribute to society. And it helps families remain united or reunite.

If we can spend trillions on matters beyond our borders, we should not be mean-spirited and self-destructive with our own citizens. Plus, it complies with the law, especially those state and federal Constitutions some of us are fond of saying we revere.