BENCH AND BAR OF OHIO.
THE SUPREME COURT.
A HISTORICAL SKETCH.
EDITED BY GEN. MANNING F. FORCE.
The ordinance of 1787 was the bill of rights for the people of the territory northwest of the Ohio river. It was second in importance only to the Constitution of the United States, adopted during the same year and submitted to the States for ratification. Both were the work of the Continental Congress, and both the result of compromise and concession. The ordinance was a compact between the original States and the people of the territory and the States to he erected therein — a territory vast in extent, embracing the entire area west of the State of Pennsylvania to the Mississippi river and north of the Ohio to the boundary line of Canada. For nearly two centuries it had served as the gift of sovereigns to their colonial subjects and the cause of contention between rival kings. Adverse claims to its possession had been asserted by different colonies; and the savages had occupied it by a right more defensible than the right of discovery. King James had included it in his charter to the London and Plymouth Companies granted in 1606. It was embraced within the chartered limits of Virginia, extending from the Atlantic coast " up into the land throughout, from sea to sea, west and northwest." New York claimed it through the conquest of her Iroquois tribes. Massachusetts and Connecticut preferred jurisdictional claims on grounds more or less tenable. By the treaty between England and France, concluded in 1763, this Northwest Territory was attached to the province of Quebec, and the pretensions of France were restricted to the region west of the Mississippi. The claims of Revolutionary soldiers to the favor of the colonies and the bounty of the continental government influenced the cession of colonial claims for the.common good, in order that a new empire might be opened to settlement by the men who had redeemed the land from tyranny. New York led the way in 1782, and one after another the others followed until all of the area had been ceded, except that Connecticut retained ownership of the land in the Western Reserve, in the northeast corner, and Virginia retained like ownership in the Virginia Military District, between the Little Miami and the Scioto rivers.
The ordinance, or compact, which was the beginning of law in the terri-
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tory, guaranteed the right of religious belief and freedom in worship; the benefit of habeas corpus; the right of trial by jury ; proportionate representation in the legislature; full compensation for property taken or services exacted of the individual for the public benefit in emergency. It inhibited the infliction of cruel or unusual punishments; the depriving a man of his liberty or property except by the judgment of his peers or the law of the land ; the enactment of any law impairing private contracts or engagemerts, bona fide, without fraud. Finally it declared that " neither slavery nor involuntary servitude shall ever exist in the territory, other than for the punishment of crimes of which the accused shall have been convicted." It vas drafted by Nathan Dane, a benevolent and patriotic member of the Congress from Massachusetts, and a jurist of ability, who was assisted in some of the articles by Dr. Manasseh Cutler, agent and director of the Ohio Company. This learned and reverend doctor went to Philadelphia to secure the passage of the ordinance, and labored unremittingly until the final vote on its adoption was taken, July 13, 1787. The men who proceeded to erect a State under its wise provisions were not less remarkable than the ordinances The Ohio Company,
composed of general and line officers of the Revolutionary War, and organized in Boston at the instance of Generals Rufus Putnam and Benjamin Tupper, furnished the settlers. These were New England men of high character, dauntless courage, earnest purpose and noble aspirations. They were men of large intelligence and liberal education, embracing in numerous instances a classical university course. They had enjoyed exceptional social advantages; but their private fortunes had been dissipated by years of patriotic public service in the war for independence. Their minds were pervaded with sentiments of religion and humanity. Most of them possessed a belief in the doctrines of Christianity, and faithfully observed its duties and obligations. They were the personal friends of Washington, bound to him and to each other by common sympathy in the cause of liberty and companionship in its perilous defense. They were men. who could be trusted to supplant barbarism with civilization, and lay the foundations of an ideal commonwealth. The Ohio Company bought one million five hundred thousand acres of land on both sides of the Muskingum river at its confluence with the Ohio, agreeing to pay therefor a million dollars in continental scrip, which was current for two-thirds of its par value. On the 7th day of April, 1788, the Mayflower, a craft less pretentious than its historic
The Congress had made provision for the government of the territory by the appointment of General Arthur St. Clair for governor, Colonel Winthrop Sargent, secretary, and Samuel Holden Parsons, John Armstrong and James Mitchell Yarnum for judges of the Supreme Court. These were clothed with limited legislative power, and the governor was authorized to appoint subordi-
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nate officers in the civil and military service. The governor and judges, although appointed the preceding autumn, had not yet arrived and the young colony had neither laws nor rulers. Colonel Return Jonathan Meigs, Sr., became the lawgiver, pro tempore, by common consent. He drafted a code or system of regulations, on ordinary foolscap, which was carefully tacked up for ready reference on the trunk of a large oak, from which the rough bark had been removed. It is creditable to the self-restraint of the emigrants that history has recorded no infraction of these regulations, which were read and approved by all. Two months later the executive and judicial officers of the territory arrived, except Judge Armstrong, who declined the appointment. He had served with considerable distinction during the Revolution, on the staff of General Gates, and possessed literary as well as legal abilities. He was the author of the sensational "Newburg Letters," which were written to awaken Congress to an appreciation of the services and the destitution of soldiers in the field, and aroused such discontent as required the conservative diplomacy of the Commander-in-Chief to allay. He was a Pennsylvanian and held responsible offices in his State. Judges Parsons and Varnum exercised the supreme judicial power and, with the governor, or in his absence the secretary, performed the functions of a legislature until the arrival in December of John Cleves Symmes, who was appointed in place of Judge Armstrong. The judicial business was light at first, scarcely sufficient for diversion, and so the time of the judges was occupied largely with legislation. They proceeded to enact laws which in their wisdom seemed appropriate, but which Congress declined to approve. The court as a legislative council was empowered only to adopt laws selected from the statutes of the original States, and had no authority to enact new statutes. The Congress assumed that the codes and statutes of the original States were sufficiently comprehensive or elastic to meet all conditions; whereas the experiences of broad-minded, intelligent men encountering the actualities of a new settlement convinced them that original legislation was imperative. It may be regarded as singular in the light of subsequent history that great men in the Congress of the confederacy, who were the especial guardians of the rights of States and the champions of local self-government, should be so careful to reserve for themselves in the general government the prerogative of vetoing or nullifying local legislation by the settlers of the territory; or that they failed to apprehend the marked dissimilarity in the physical conditions and wants of the emigrants in the new territory and those of the citizens of Virginia and Massachusetts. But men of the past were jealous of power and that was a hundred years ago! A law published by the Supreme Court, sitting as a legislature, September 6, 1788, defined numerous crimes and provided penalties. Among these were treason, murder, manslaughter, arson, burglary with theft, burglary with personal violence, burglary with homicide, robbery, riots, unlawful assemblies, perjury, subornation of perjury, obstructing authority, receiving stolen goods, larceny, forgery, usurpation, assault and battery, drunkenness (a penalty of five dimes for first offense, and one dollar for each repetition, and one hour in the stocks
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for neglect or failure to pay the fines). There was an act providing against improper or profane language; another to encourage a religious observance of the Sabbath.
The first duly appointed Court of Common Pleas in the territory held its opening session in Marietta, September 2, 1788, with Generals Rufus Putnam and Benjamin Tupper and Colonel Archibald Crary as the judges. It was an occasion of great interest, attended with pomp and ceremony due an event of such importance. Judges Parsons and Varnum of the Supreme Court graced the occasion by their presence. It was held in the residence of Colonel Battelle, the northwest block house of Campus Martins. The parade included the governor and judges and all the inhabitants, and was observed with interest by the Indians of the neighborhood. The procession was formed at the point, half a mile distant from the block house. As the photographer had not yet arrived with his art, the scene lacks the modern luminous illustration obtained from snap shots of the kodak in the hands of the enterprising amateur; but fortunately the graphic description by the local historian, which has been pre. served and handed down, needs no artistic illustration. The procession was led by the high sheriff, Colonel Ebenezer Sproat, with drawn sword in his right hand, and in his left the wand of his office. He was a commanding figure, six feet four inches in height and symmetrically proportioned. He had borne a conspicuous part in numerous battles of the Revolution, and had the bearing of a soldier. The United States officers from Fort Harmer, with their bright uniforms and glistening swords, added to the martial aspect of the scene. The imposing procession, made up almost entirely of generals and colonels and majors and captains, who had by their courage and patriotism established the right of self-government on this continent, marched to celebrate the dawn of juridical history in the little colony. When all were assembled in the hall the solemn services were opened by prayer by Rev. Manasseh Cutler. The court was organized by reading the commissions of the judges, the clerk and the sheriff, after which the latter, by proclamation, declared it open for business. General Putnam presided and charged the grand jury. The duties of clerk were executed by Colonel Meigs, author of the first laws or regulations governing the settlement.
PAUL FEARING was admitted at this term to practice in the courts of the Northwest Territory, received a certificate from Judges Mitchell and Varnum and subscribed to the following oath, written. by his own hand : " I swear that I will do no falsehood nor consent to doing any in the courts of justice; and if I know of any intention to commit any I will give knowledge thereof to the justices of said courts or some of them, that it may be prevented. I will not willingly or wittingly promote or sue any false, groundless or unlawful suit, nor give aid or consent to the same, and I will conduct myself in the office of an attorney within the said courts according to the best of my knowledge and discretion, and with all good fidelity, as well to the courts as to my clients, so help me God." He was not a ready speaker, or confident of himself, as indicated by his first effort in argument before the Supreme Court :
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" May it please your honors— May it please your honors—I have forgotten what I intended to speak." This was the beginning and the end of his argument. He became a successful lawyer, practicing in all the courts of the territory. He was honest, fair and candid ; substantial and safe rather than brilliant; favored with a cheerful disposition. He was a member of the legislature in 1789-90, and elected to Congress in 1801. He served a term as judge of probate and in 1810 was associate judge. He was a native of Massachusetts, a graduate of Harvard, read law in Windham, Connecticut, and came to Marietta June, 1788. This chronicle is inserted here because Judge Fearing was the first lawyer admitted to practice in the territory.
Settlements between the Miami rivers were effected through the Miami Company, of which Judge Symmes was the promoter and manager. For their government a code of by-laws defining offenses and prescribing penalties, providing for trial by jury and appointing William McMillan judge, was adopted by a public meeting of citizens. The first term of court in Cincinnati, under a general law of the territory, was held in February, 1790. George Turner, one of the associate judges sitting in this session, was appointed judge of the Supreme Court of the territory in place of Judge Barton. He seems to have made little impression on the history of the times or the records of the court.
Prior to the adoption of the Constitution of the United States, the general or Supreme Judges of the territory were appointed by Congress; but when that instrument became operative in 1789, by the ratification of three-fourths of the original States, these judges were nominated by the President and by him appointed, with the consent of the Senate. August 20, 1789, S. 11. Parsons and John C. Symrnes were reappointed, and William Barton was named in place of Varnum, deceased. Judge Barton declined to serve, and the President app inted George Turner. who qualified and served until 1796, when he resigned. Return Jonathan Meigs, Jr., was appointed to fill the vacancy in February, 1798. The successor of Judge Parsons was General Rufus Putnam. Ile was appointed in March, 1790, and served until December, 1796, when he resigned to accept the position of surveyor-general. Joseph Gilman was appointed to the vacant judgeship. Judges Gilman, Semmes and Meigs served until the State was admitted into the Union, in 1803.
JAMES MITCHELL VARNUM, of Welsh descent, was born in Dracut, Massachusetts, 1749; was graduated from Brown University (then Rhode Island College) in 1769, with class honors. After teaching a classical school for a short time he studied law in Providence and settled in East Greenwich, Rhode Island, for practice on the circuit. He served with honorable distinction in the Revolutionary War and attained the rank of brigadier-general. In the practice of law he excelled as an advocate. He was a brilliant orator, a man of large abilities and tender sympathy. He advocated with earnestness and power the ratification of the United States Constitution by his State. His eloquence first charmed the settlers at Marietta in a patriotic oration on the
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Fourth of July, 1788. He possessed that magnetic power which: stirs the. emotions of the multitude, and secures the sympathy of the individual manners were pleasing and his dress fastidious; his tastes literary and sensi-, bilities refined. He died of consumption in January, 1789, after a residence of,. seven months in the: west. A letter addressed to his wife, in contemplation of: death before meeting her again. is full of pathos and, tenderness, while it discloses his spirit of perfect trust in a Higher Power and resignation to his will.
SAMUEL HOLDEN PARSONS was born at Lyme, Connecticut, May 14, 1737. His father, Jonathan Parsons, was a renowned clergyman and his mother a descendant of Henry Wolcott. He was graduated from Harvard at the age of nineteen, studied law with his uncle, Governor Matthew Griswold, and upon his admission to the Bar in 1759 settled in Lyme for practice. He was an original thinker and a man of practical views. He is said to have been first to suggest a colonial congress to confer in regard to the general welfare. This was done in a letter to Samuel Adams dated February 3, 1773, and doubtless influenced the subsequent action. The scheme of seizing Ticonderoga, successfully carried Out by Colonel Ethan Allen, was planned by Judge Parsons, according to a family tradition. It was significant as the first aggressive, hostile act in the Revolution. His services in the war for independence were characterized by ability, courage and lofty patriotism, winning a general's commission. He was a director of the Ohio Company and one of the three original judges of the territory appointed by Congress, was reappointed by Washington and made Chief Judge, serving in that capacity until his death, November, 1789. As commissioner of his native State he went into the interior of the territory to treat with the Indians and extinguish their title to lands in the Western Reserve, and as he was returning to Marietta was drowned in descending the rapids' of Big Beaver river. Judge Parsons was a man of versatile talents—an able jurist, a capable lawyer and a valuable citizen.
JOHN CLEAVES SYMMES was born on Long Island July 21, 1742. In early life he was successively a teacher, surveyor and lawyer. He removed to New Jersey, where he gained a high reputation in his profession. He was a judge and Chief Justice of the Supreme Court and member of the constitutional convention held in that State at the beginning of 1788. He was also an officer in the army and a member of the Continental Congress. His service as a member of the territorial Supreme Court covered a longer period than that of any other judge, and it is quoted as a historical fact that he never missed a term of the Supreme Court of the territory, whether held in Detroit, Vincennes, Cincinnati or Marietta. His training in the law before removing west was more thorough than that of his associates and his judicial experience more extended. In connection with Judge Turner and Secretary Sargent he enacted prohibitory legislation at Vincennes, to suppress gambling and the sale of spirituous liquors; but Congress, declined to approve the act. Judge Symmes died at Cincinnati in February, 1814. His daughter Anna was the wife of General William Henry Harrison.
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JOSEPH GILMAN was the third generation from John, the English emigrant. He was born in Exeter, New Hampshire, 1736. lie was chairman of the committee of safety for his State during the Revolution and proved himself a firm, strong, resourceful man. His private fortune was given freely to equip New Hampshire soldiers and he was reimbursed in worthless paper. He was the unswerving advocate of independence and the staunch friend of Samuel Adams and his compatriots. He was a member of the Ohio Company and settled in Marietta in 1789, with his wife and son, B. Ives Gilman. He was appointed judge of Probate and Quarter Sessions by Governor St. Clair, and while serving in that capacity, was appointed judge of the Supreme Court by the President. He was not a profound lawyer, but a careful, upright judge. He was candid and usually guided to correct conclusions by his strong common sense, industry and desire to be right. He was a student and also possessed admirable social traits. He died in 1806.
RETURN JONATHAN MEIGS, JR., son of the first territorial lawgiver, was born in Middletown, Conn., in 1765, graduated from Harvard at twenty, studied law in his native State, and came to Ohio with his father in 1788. Governor St. Clair appointed him in 1790 a commissioner to the British commander at Detroit, a delicate and responsible mission for a young man of twenty-five years. Ile was an active participant in the Indian wars and served with such distinction as to receive a regular appointment to the rank of lieutenant-colonel. He practiced his profession in the courts until 1798, when President Adams appointed him judge of the territorial Supreme Court. He was elected by the legislature one of the judges and the first Chief Justice of the State of Ohio under the constitution of 1802, and served two years; was then appointed to a district in Louisiana. In 1807 he was appointed judge of the United States District Court of Michigan and soon afterwards elected governor of Ohio. The Supreme Court held that he was ineligible on account of residence in Louisiana and Michigan, but his services were not lost to the State, as the legislature elected him to the United States Senate for the unexpired term of the lion. John Smith, who was charged with complicity in the Aaron Burr conspiracy and resigned to avoid impeachment. At the close of this term, in 1809, Judge Meigs was re-elected for the full senatorial term; but the people of Ohio elected him governor the following year and he served in that capacity until 1814. He was the "war governor" of the State and displayed unusual ability in organizing the militia, fortifying the posts, protecting the settlers and assisting General Harrison. He was appointed Postmaster-General by President Madison, to succeed Gideon Granger, and served from 1814 to 1823, when he retired to private life. Death came to him in his peaceful home at Marietta in 1825. The practical politician of the present age may affirm that the judicial opinion of the ineligibility of Judge Meigs to the governorship is defensible on partisan grounds. Others may believe that the judges rendering the opinion may have been unconsciously influenced by the fact that the politics of the governor did not correspond with their own.
As Governor Meigs was the second generation to bear that peculiar
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Christian name found nowhere in history outside of his family, a reference to its origin in this connection is excusable. His grandfather, Jonathan Meigs, courted an attractive Quakeress near Middletown, Connecticut, and suffered a nonsuit on two occasions. He was a persistent suitor, however, and pleaded earnestly for a new hearing and a reversal of judgment. Again unsuccessful, he had turned from the presence of his idol, mounted his horse and was slowly riding away, when the good spirit moved the heart of the gentle Quakeress to set aside the judgment thrice decreed and grant the prayer of the petitioner. Hastening to the cabin door, she shouted, "Return, Jonathan. Return. Jonathan." The happy lover returned, a marriage followed, and the " Return," prefixed to his own good Bible name " Jonathan;" was applied to their firstborn at his christening and descended with manifest family pride to the second generation and some collateral branches. Few men in the annals of the Ohio Company, or the history of the Northwest Territory and the erection of the Ohio State government; occupied a position of dignity, responsibility and usefulness equal to that maintained by the Meigses, father and son.
GENERAL RUFUS PUTNAM was pre-eminently a soldier. He was educated early to the profession of arms by entering the service of George II. in the colonial war of England against France in 1757, receiving a commission from the governor of Massachusetts colony. His opportunities of acquiring literary education were very meager, although he became a practical surveyor and civil engineer. His skill in the profession secured his appointment as member of a commission in 1772 to survey and allot lands in the southern colonies which had been granted to the provincial soldiers, but the work was cut short by an order of King George III. suspending land grants for the purpose. He volunteered his services among the first patriots of the Revolution, and served until independence was achieved and the army disbanded. At the request of General Washington he constructed the fortifications at Boston, for which he received special commendation of the commander-in-chief. The persona friendship became intimate between Washington and Putnam. The latter was the prime mover and really founder of the Ohio Company. lie was appointed its first manager with plenary powers. He came out to the Northwest Territory with the first colony of settlers, superintended the construction of their de fenses and became identified with the civil history from the beginning. The governor appointed him judge of the first Court of Common Pleas. In 1790 he was appointed judge of the Supreme Court to succeed Judge Parsons anc held the office more than six years, resigning to accept the more lucrative position of surveyor-general of the United States, tendered him by President Washington. Judge Putnam was a born leader. To his English descent may be attributed his firmness of character and resolute determination in the prose cation of a purpose. His inherent love of justice was typified by the balance which he adopted as the emblem of his judicial office. He was born at Sutton Massachusetts, April 9, 1738, and died at Marietta May 4, 1824. His relative General Israel Putnam, was more conspicuous in the country's military his tory, but not more renowned for generous traits and the possession of virtue
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most admirable in man. Judge Putnam's liberal, practical education was acquired by observation and actual contact with the foremost men of the age. He was six feet in height, and stout, but his calmness of demeanor and resolute expression of countenance must be considered in connection with his commanding presence in estimating the qualities which fitted him for leadership. He was a Christian in belief and practice.
Under the judicial system of the territory the calendar of the Supreme Court was arranged so as to hold a term in Detroit, Vincennes, Cincinnati and Marietta each year. The judges made the journeys on horseback, usually accompanied by members of the Bar. The time occupied in these itineraries and the camp life en route tended to the cultivation of good fellowship and gave opportunity for the discussion of legal problems, if not for the judicial consideration of cases. They carried most of the law in their heads, so as to have room in their saddlebags for a change of linen—a fresh dickey or two. None of them indulged in the modern luxury of silk night-shirts. It is worth while to remember that law books were not so numerous then as now. Simeon Greenleaf, author of the Treatise on the Law of Evidence, was only six years of age, and Joseph Chitty was only thirteen. Thomas Chitty was not yet born. The Commentaries of the great chancellor, Kent, were published forty years later. " Story on the Constitution " of the United States ; on Equity Jurisprudence; the Conflict of Laws, and on the Law of Agency came out nearly half a century after these lawyers and jurists rode the circuit in the new Northwest. They did not even have the benefit of the " Newgate Calendar "! Blackstone's Commentaries on the Laws of England were yet very new. It is probable they relied largely upon the Bible for law as well as inspiration, and besides that reveled in the " treasure of learning" found in "Coke upon Littleton," which had been given to the English-speaking race three hundred years before. At any rate they were men learned in the law and accomplished in horsemanship.
The first body of laws for the government of the territory was selected from existing statutes; it was compiled by the governor and judges in 1795, and printed at Cincinnati. At that time the Supreme Court, composed of three judges having a salary of $800 a year, had original and appellate jurisdiction in all civil and criminal cases—exclusive jurisdiction of cases of divorce or alimony. A. legislative assembly chosen by the people met in 1798, and nominated ten men, from whom the President of the United States appointed five to constitute a Legislative Council, in lieu of a Senate. This was the inauguration of the second grade of territorial government. The requisite qualifications of an elector were that he should have a freehold of fifty acres, be a resident of the district and a citizen of some State. A residence of three years and a freehold of two hundred acres qualified a free, white male inhabitant over twenty-one years of age for the office of representative;" while a member of the council was required to own five hundred acres. In 1800 the Northwest Territory was divided, setting off Ohio by two intersecting lines—one drawn due north from the mouth of the Great Miami river, the
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other due east from the most southerly bend of Lake Michigan. Other boundaries, already fixed, were the Ohio river and the west line of Pennsylvania. All of the remainder of the Northwest Territory was organized as the Territory of Indiana. and the judges hereinbefore mentioned were relieved from holding court in Detroit and Vincennes. In 1802 a convention was held for the formation of a Constitution preparatory to the admission of Ohio into the National Union. This convention, composed of thirty-four members, met on the first day of November and concluded its labors on the twenty-ninth day of the same month. It assumed the entire responsibility of adopting a Constitution for the State and made provision for its becoming operative without ratification by popular vote. Whether it was because of any fear that it would be rejected, or because of an assumption that it was no concern of the people; or because the members concluded that ample authority had been delegated to them to adopt, approve and ratify a Constitution, does not clearly appear from the debates. The work of the convention was done promptly and courageously, and Ohio became a State with less than the usual formality. The highest judicial power was by the Constitution vested in a Supreme Court composed of three judges (with peimission for a fourth after five years) elected by joint ballot of the general assembly for a term of seven years; having original and appellate jurisdiction as to matters of law and equity; providing that two of the. judges should constitute a quorum for the determination of cases. The governor was authorized to fill vacancies by appointment when the legislature was not in session. A session of the Supreme Court each year in every county of the State was required, giving it the appearance and some of the functions of a county court. The legislative act organizing the courts and defining their duties gave to the Supreme Court original jurisdiction in all civil cases where the amount in controversy exceeded one thousand dollars, whether the proceeding was at law or equity, and appellate jurisdiction of all actions brought originally in the Common Pleas. It had concurrent jurisdiction in the issuing of writs of error and certiorari. While the system imposed upon the judges a vast amount of labor, it also involved some confusion in the adjudication of cases. The tendency to this was greater because of division of the State into two circuits and the simultaneous holding of court in both. This was done after a second act of the legislature, increasing the number of judges to four and empowering two of them to hear and adjudicate cases, which was in force from 1815 during the life of the Constitution. It was possible without a general conference on each important question to have different constructions and opposite opinions of the law emanating from the Supreme Court of Ohio at the same time. That such conflicts were rare is complimentary to the intelligence, wisdom and sound reasoning of the judges. The necessity or advantage of a court of review and last resort became more real as the years passed, and the legislature enacted a law in March, 1831, providing for a general term of the Supreme Court to be held annually in Columbus, attended by all of the judges. This was the Court in Bank. Its duty was to hear and adjudicate finally the causes which had been reversed by some of
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the judges sitting in the circuit on appeal from the Courts of Common Pleas. It was indeed and solely a reviewing court and a court of last resort in the State. The importance of making official reports of the cases adjudicated and the reasoning by which such a conclusion was reached in each case, for the information and guidance of inferior courts as well as attorneys at law, was recognized, and the system of official reporting inaugurated. Prior to that time no such reports had been published. and in fact, so long as the jurisdiction was divided, or the decisions were subject to review, the necessity was not imperative. The "Old Supreme Court," as that under the first Constitution had been designated, was always respectable and above the suspicion of dishonesty. No member of it was ever impeached. Most of the judges had received not only a liberal education, but the discipline and finish incident to a classical course of study. A majority of them were graduates of Yale or Harvard. They were generally learned in the law, and some of them became eminent, not only in the profession, but in political office. A large preponderance of them were born. reared and educated in New England, where the Ohio Company originated. Of the thirty judges comprising the court during the half century of its existence, the State of Connecticut furnished eleven, Massachusetts seven, Vermont, New Hanipshire and Rhode Island each one; New Jersey three, Virginia three, New York one, Maryland one and South Carolina one. More than two-thirds of the whole number hailed from New England, coming west fully equipped either for the practice of law or judicial service.
SKETCHES OF THE JUDGES.
The judges comprising the first Supreme Court under the State government were Return Jonathan Jr., of Washington county, who had served five years in the Supreme Court of the territory; Samuel Huntington of Cuyahoga and William Sprigg of Jefferson. The first two were appointed by the legislature. March 1, 1803; the third was not appointed until April 2., Judge Meigs resigned after two years of service under this appointment, and was succeeded by Daniel Syrnmes of Hamilton county. Judge Sprigg, concerning whom history has recorded nothing of importance, resigned in 1806, and was succeeded by George Tod of Trumbull county, in February, 1807.
SAMUEL HUNTINGTON was a native of Connecticut, born in Coventry October 4, 1765. He was a nephew of the signer of the Declaration, by whom he was adopted and educated. He studied law, was graduated from Yale in 1785, was admitted to the bar of Norwich in 1793, and practiced in his native State until 1800, when he made a tour of the settlements in the Western Reserve, and went down to Marietta, where he formed the acquaintance of Governor St. Clair. After stopping a short time in Youngstown he settled in Cleveland in 1801, and was soon recognized as a gentleman of broad scholarship and superior talents. He possessed larger wealth than the average frontiersman of the times, and lived in comparative luxury in his smart log dwelling. His
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family comprised a wife and two sons, with a governess brought. with them from New England. He was active, enterprising and thrifty; affable in social intercourse, correct in business methods. He was a member of the constitutional convention in 1802, and immediately afterward a senator representing Cuyahoga county, and was chosen speaker of the Senate. He was ambitious and remarkably well qualified for a public career. After serving four years of his term as judge of the Supreme Court he resigned to accept the governorship of the State, to which he had. been elected. In the office of governor he
displayed rare executive ability. His diminutive stature was supplemented by abundant intellectual force and nervops energy, so that his personality made an impression upon the State during the formative period. He was a just man, whose innate sense of fairness enforced impartial judgment regardless of the wealth or social standing of parties.
GEORGE TOD was a native of Suffield, Connecticut, born December 11, 1773. His advantages in youth were well improved, and he was graduated from Yale in 1795. For a short time thereafter he engaged in teaching at New Haven, in order to obtain ready money to defray expenses while pursuing his legal studies in the school of Judge Reeves at Litchfield. After admission to the Bar, he came to Ohio in 1800, well qualified for practice, and settled in Trumbull county. During the same year he prosecuted the pleas of the United States in the first court of Quarter Sessions held at Warren. He also served for a time as secretary of the territory. In 1802 he was appraiser of taxable property. His scholarship, abilities as a lawyer and prominence in affairs gave him exceptional qualifications for judicial service, and his record as judge during the three years he occupied the Supreme Bench added to his fame. Ile was elected to the State Senate, and after the war of 1812-14, in which, he served with honorable distinction, he was president judge of the Court of Common Pleas and also prosecuting attorney. He was the father Of David Tod; the governor of Ohio during the first years of the war of 1861-5. In politics he was a Whig, and although seventy-seven years of age, was an active supporter of General Harrison's candidacy for President in 1840.
DANIEL SYMMES, who succeeded Judge Meigs, was a nephew of John Cleves, the patriarch of the Miami wilderness." He was born in Sussex-county, New Jersey, in 1772, educated in Princeton College, and came west with the family, among the first settlers in the Miami Purchase. He practiced law in Cincinnati and represented Hamilton county in the State Senate. After the close of his term on the Supreme Bench he was appointed register of the land office at Cincinnati, and held the office about seven years. He died at the age of fifty-five.
THOMAS MORRIS was appointed judge of the Supreme Court in 1809, from Clermont county, under an act of the legislature passed that year increasing the number of judges to four; but as the next legislature repealed the act, his judicial service as a member of the highest court was only nominal. He was a native of Virginia, born in 1776, and came to the territory in 1795, working as a farm hand while he studied law. He was admitted to the bar in 1804 and
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became a very successful lawyer, taking rank with the ablest, lie was a member of the legislature twenty-four years, and in 1832 was elected to represent the State in the United States Senate. He was unalterably hostile to slavery and maintained the right of petition in the Congress of the United States, and the freedom of the press, against such orators as Calhoun. He was aggressive, honest, brave and conscientious; but the Democratic party, to which he belonged, did not sympathize with his intense opposition to slavery, and he was retired at the close of a single term. Two of his sons, Jonathan D. and Isaac Newton, were successful lawyers and both of them served in Congress.
THOMAS SCOTT was first appointed to fill a vacancy on the Supreme Bench in 1809 and reappointed for a full term the following year, but resigned five years later on account of the inadequacy of the salary. He was a native of Allegheny county, Maryland, born in 1772, and descended from Scotch-Irish ancestry on his father's side and Welsh-English on the side of his mother. His experience as a lawyer was peculiar and not altogether agreeable to himself, because of the alleged opposition of his church. He was educated fur the ministry and settled in Kentucky as a circuit-rider in the Methodist Episcopal Church. In 1800, as related in his autobiography, he was admitted to the Bar at Lexington, Kentucky, after a Course of reading under Honorable James Brown, and made his home in Flemingsburg. He was appointed prosecuting attorney for• Fleming county and gained a little practice, but acknowledges that he did not succeed well. He claimed to have studied the elementary textbooks, but never read a " book which treated on practice either in the courts of law or equity." And yet he attributes his want of success to the influence of the Methodist Church, which he asserts was arrayed against him because he had abandoned the ministry for the law. He moved to Chillicothe in 1801, and soon afterwards was appointed to fill the office of clerk of the Courts of Common Pleas, Probate and Quarter Sessions. Subsequently he served as prosecuting attorney for• half a dozen counties, and after his retirement from the Supreme Bench he represented Ross county in the legislature for one term. In 1822 he was a member of a commission of three appointed to revise the laws of the State. Under an appointment of President Jackson, in 1829, he held the position of register of the land office at Cincinnati for more than fifteen years. It would appear from this record that the baleful influence of the church was exhausted in preventing his success as a lawyer and in no wise exerted to interfere with his perennial aspiration to public office.
Wm. R. IRVIN was a native of Albemarle county, Virginia, born in 1778, came to Ohio early, studied law at Lancaster and became a member of the Bar of Fairfield county, whose later fame was hardly surpassed by that of any other in the State. He represented that county in the legislature and was appointed judge of the Supreme Court in 1810. As a Jackson Democrat he was elected to Congress in 1828 and served one term.
ETHAN ALLEN BROWN, appointed to the Supreme Court from Hamilton county in 1810, was a man of high legal and literary attainments. He was
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born at Darien, Connecticut, July 4, 1776, simultaneously with the independence of the American colonies. He enjoyed unusual advantages in education. He was a critical student of language under the tuition of a noted linguist and a student of the law under the instruction of Alexander Hamilton. While engaged in mastering the principles of the law he might easily have become indoctrinated in the system of political economy of which his instructor was the greatest exponent ; but he was a Democrat to the end of his life. In 1802 he settled in Cincinnati, where he soon acquired a large and profitable practice. In 1810 he was appointed judge of the Supreme Court and served the full term. In 1818 and again in 1820 he was elected governor of the State, but resigned soon after his second election in order to accept an election to the United States Senate for half a term. For five years he filled the office of canal commissioner, and in 1830 President Jackson appointed him minister to Brazil for a term of four years and then commissioner of the land office for little more than one year. After his retirement to private life he removed to Indiana and died at Indianapolis in 1852. Judge Brown was a man of large abilities and liberal learning, qualified alike for the honors of his profession and the responsible duties of political office. His conspicuous public career, extending over a period of forty years, left his reputation unclouded.
CALVIN PEASE, appointed judge of the Supreme Court from Trumbull county in 1815, was a noteworthy character in the judicial history of the State. Without the advantages of education and culture possessed by some of his associates, he was not excelled by any of them in the peculiar association of faculties which enables the judge to detect sham and sophistry, and to discern the essence of a controversy or the applicability of a statute. He was transplanted in the vigor of young manhood to " New Connecticut" or the Western Reserve, from the " Land of Steady Habits." His birthplace was Suffield, and the date of birth September 9, 1776. Ile studied law in the office of Gideon Granger, and began practice in New Hartford in 1798. Early in the year 1800 he came to the territory, and when the first Court of Common Pleas and Quarter Sessions was held at Warren, in the new county of Trumbull; in August of the same year, he was appointed clerk. In October following he was admitted to the bar and at once engaged in general practice. His first judicial appointment came in April, 1803, when he was appointed presiding judge of the Third Circuit. After seven years of service on the Circuit Bench he resigned and resumed the practice. An incident of historic interest during his term was the attempted impeachment of himself and George Tod, associate judge of his circuit, for holding unconstitutional an act of the legislature. The lawmakers, jealous of their prerogative, and assuming that Ohio legislative enactments, like those of the British Parliament, were above criticism, sought to discipline the offending judges for their temerity in thus invading their own peculiar domain. The act in question provided that justices of the peace should have jurisdiction in civil cases to the amount of fifty dollars without the right of trial by jury. The judges held it to be in conflict with the Constitution of the United States, which declares, " In suits of common law
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when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved "; and in conflict also with the clause of the State Constitution declaring, The right of trial by jury shall be inviolate." The House of Representatives, with offended dignity, repaired to the Senate Chamber, December 27, 1808, and the trial was opened by the solemn proclamation of the Sergeant at Arms: " 0 yes! 0 yes! 0 yes! All persons are to keep silence under pain of imprisonment, while the grand inquest of the State is exhibiting to the Senate of Ohio articles of impeachment against Calvin Pease, president of the Courts of Common Pleas, Third Circuit." There were three charges against Judge Pease, and one against Judge Tod, who at the time of this proceeding was one of the judges of the Supreme Court. The trial lasted several days. The suit was vigorously prosecuted on behalf of the legislature by Judge Thomas Morris, who received his political reward the following year in an appointment to the Supreme Bench. It resulted, not in impeachment, but a vindication of the judges, and established irrevocably the principle of co-ordination of power in the three departments of government. Since that time the right of a State Court to pass upon the constitutionality of any legislative act has not been seriously questioned. In 1812 Judge Pease was elected to the State Senate ; in 1815 and again in 1822 was appointed judge of the Supreme Court, serving two full terms of seven years each. He possessed a keen sense of humor, was a good story teller and occasionally fond of a practical joke. It is related in history that during the first year of his. residence in Warren he coached a young justice of the peace on the marriage ceremony and then accompanied him on foot to Ravenna, twenty-five miles distant, in order to prompt him in case he should blunder while joining a young couple in wedlock. The justice proceeded without embarrassment, pronounced the contracting parties husband and wife, closing with the invocation, " And may God have mercy on your souls." The half suppressed titter of the witnesses suggested to the officiating squire that he had been victimized by his legal adviser. but it was passed as a good joke. Judge Pease was a man of great dignity and strong convictions. In a reminiscence of his first visit to a court room .Judge Thurman says: " There sat, presiding, one of the finest specimens of manhood I ever saw, Calvin Pease, then Chief Judge of the Supreme Court, dressed in a way that would make a dude faint, the most perfect dress I ever saw on a man, and the nicest ruffles to his shirt bosom, looking the very beau ideal of a gentleman of the olden time. By his side sat Peter Hitchcock. Now what a team that was Woe unto the man who had a bad cause and tried to palm it off onto them What great men they were ! Hitchcock was on the bench much longer than Pease, though Pease achieved a wonderful reputation and a deserved one, so much so that Thomas Ewing once said to me that of all the judges he had ever appeared before, in his opinion Calvin Pease was the greatest."
JOHN MC LEAN, elected to the Supreme Court from Warren counts- in 1816, was one of the very eminent jurists of time Stafe. In youth he struggled with poverty, and his professional success was the result of his own purpose and
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energy. No man planned for him or prescribed his course of preparation. He came into the territory of Ohio at the age of twelve from his native State, New Jersey, where he was born March 11, 1785. He worked on his father's farm in Warren county until eighteen, attending the district school a portion of each year; filled a clerical position of subordinate rank in the Hamilton county clerk's office, and at length studied law in the office of Arthur St.Clair, son of the territorial governor. He served in Congress two terms, and on the Supreme Bench from 1816 to 1822, when he resigned to accept the commissionership of the general land office. The following year he was appointed postmaster-general, and exhibited surprising executive talent and force in the administration of that most important department of the public service. As Judge McLean's highest judicial reputation was made as a Justice of the United States Court, a more extended biography, together with the estimate of his character, is reserved for consideration in an article relating to the fed-. eral judiciary.
JESSUP NASH was appointed one of the judges of the Supreme Court by the governor in 1816 and held the position until death, in 1821. He was a native of Redding, Connecticut, born August 3, 1778, a student from early childhood and a graduate of Yale in 1802. After studying law in his native State he came to Ohio and was admitted to practice in 1805. He was a gentleman of literary taste and substantial legal attainments, but died at the age of forty-three, before his intellectual powers had reached their complete development. He observed throughout life the habits of a student and spent much time in the privacy of his home and the companionship of books. His law library was well selected, while his collection of miscellaneous books was one of the largest and most valuable in the State. The former was bequeathed to his friend, Judge Thompson; the latter to his sister, Mrs. Burr.
PETER HITCHCOCK is a name that reflects luster on the judiciary of the State. His service on the Supreme Bench was longer than that of any other judge, and marked by ability and dignity scarcely excelled by any. He was born in Cheshire, New Haven county, Connecticut, October 19, 1781, the son of a poor man; so that he was obliged to rely mainly upon his own resources for the preparation essential to success in life. He engaged in teaching and with the money thus earned paid his expenses in Yale College, which he entered at the age of seventeen. He was graduated at twenty-one, entered upon the study of law immediately; was admitted to the Bar and settled in his native town for the practice in 1804, when only twenty-three years old. At that time the New West offered a wide field for an ambitious, enterprising young man and attracted many of the most talented and highly educated sons of New England. Young Hitchcock came to Ohio in 1806, entered land in Geauga county, on which he cleared a farm and founded his home. Without capital in money, his life was a struggle for existence while clearing the forests. The fees from law practice in the sparsely settled community were inadequate even for the moderate expenses of a pioneer, and he resorted to teaching school during the winter months. It was not in the nature of things
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that he should remain long in obscurity. He was amply qualified for public service and the State needed such men. In 1810 he was elected to the Lower House of the legislature, and in 1812 was elected to the Senate. His position was that of a leader in both branches of the general assembly. In 1816 he was elected to Congress and three years later was elected judge of the Supreme Court from Geauga. At the close of his first term of seven years he was re-elected, and his second term expired in 1833. After a retirement of two years he was elected a third time in 1835, and ten years later was elected to a fourth term, serving until 185'2. His aggregate service on the Supreme Bench of the State covered a period of twenty-eight years, twenty-one of which he was Chief Justice. He possessed unusual capacity for mental application and physical endurance. Confident of his powers and resources, he was ready to assume any responsibility, and usually acquitted himself with the highest credit. His mastery of the principles of law and familiarity with the statutes led to the manifestation of impatience on the bench sometimes, when counsel sought to convince and overawe the Court by a display of authorities The brusqueness of his manner, however, seldom occasioned offense; and the plainness of his opinion was rather irradiated than obscured by its hasty, impulsive expression.
JACOB BURNET was appointed from Hamilton county in 1821 to fill out the term of Judge Couch (who died in office), and afterwards elected for a full term, but resigned in 1828 to accept the United States senatorship. He was a Jersey boy, born February 22, 1770, and educated in the old Nassau Hall, Princeton. He began the study of law soon after attaining his majority, and received a license from the Supreme Court to practice, at the age of twenty-six. Attracted by the fame of the magnificent country in the Miami Valley, he came west and settled in the straggling village of Cincinnati in 1796. Two years later he was appointed a member of the Legislative Council provided for in the ordinance of '87 as preliminary to a Territorial Legislature. No member of that body was more active, industrious and zealous than he. His scholarship and professional acquirements were serviceable in the drafting of bills for adoption by the legislature, and it is stated as a historical fact that most of the territorial statutes were the product of his fertile brain and facile pen. He practiced law with marked ability and large success for about twenty years, but had retired before his appointment to the Bench. He was not fond of public office, as was indicated by his public declaration before entering upon the duties of United States senator that he would not be a candidate for reelection, and his subsequent positive refusal to accept a second term. His ability as a lawyer and jurist was recognized by the college which graduated him and the University of Virginia, both of which conferred upon him the honorary degree of LL. D. lie was the leading counsel of Blennerhasset, alleged to be involved in the treasonable conspiracy with Aaron Burr, vice-president of the United States. Judge Burnet was a strong, stern, self-reliant man, a faithful friend, an. open foe. His historical notes and recollections are a valu-
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able contribution to the early history of the State. He died at the age of eighty-three.
CHARLES R. SHERMAN was elected to the court from Fairfield county in 1823 and died in office in 1829. He was an able and learned jurist. For two centuries and a half the Sherman family has been conspicuous in jurisprudence, as well as the political and military history of the American colonies and the United States. The progenitors of the American branch of the family emigrated from England in 1634. They landed in Massachusetts, but Samuel, the ancestor of Charles R., afterwards moved to the valley of the Connecticut. Their descendants filled many positions of responsibility in New England and were uniformly noted for ability, integrity, patriotism and fidelity in the discharge of duty., He studied law with his father, who was both a lawyer and a judge; was admitted to the bar and married in his native State, came west in 1810 at the age of thirty-two and settled in Lancaster. His wife followed the next year, making the entire journey on horseback with her babe, their eldest son, strapped to a pillow in front of her saddle. This infant became Judge Charles T. Sherman, late of Cleveland. Judge Sherman soon established himself in practice and won a high place among the eminent lawyers who honored the profession in Southern Ohio during the first half of the century. His reputation as a citizen and influence in the community equaled his prominence at the bar. The only official position which he held prior to his election as judge was membership in the State legislature. He died suddenly in the prime of life, while holding court at Lebanon, leaving a widow and eleven children, the eldest being only eighteen years of age. Three of these won national renown Charles R., the judge; William T., the general, and John, the senator.
JOSHUA COLLETT was elected from Warren county in 1829 at the age of forty-eight, and served one full term of seven years. He was a native of Virginia, Berkley county, read law in Martinsburg, and moved to Cincinnati just before the admission of Ohio into the Union. Six months later he settled in Lebanon and was the first lawyer established in Warren county. He was modest, even to diffidence. The self-confidence and independence which are, in popular estimation, attributes essential to professional success on the frontier, were wanting in his character. Contact on the circuit with the lawyers who excelled in forcible public speech and scholarship, and who never failed in professional courtesy or the amenities of life, served as a school for the cultivation of self-reliance; while his learning in the law and studious habits largely compensated for the lack of assurance. He was elected prosecuting attorney for Warren county in 1810, and discharged his official duties with such ability as to establish a high reputation. After serving ten years as prosecutor he was appointed judge of the Court of Common Pleas and reappointed at the close of his first term of seven years. While still occupying the Bench of this court he was promoted to the Supreme Court. His service on the Bench and in the office of prosecuting attorney extended over a period of twenty-six years. In 1836 he retired from public office. Throughout life he preserved a character for integrity, virtue and benevolence. In 1836 and
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again in 1840 he was chosen one of the presidential electors on the Whig ticket.
ELIJAH HAY WARD, one of the old lawyers of Cincinnati, was appointed to the court from Hamilton county in 1830. Although he was probably a good lawyer and a reputable judge, history accords to him no special prominence and even the records of the court fail to disclose the time of his service or date of retirement.
JOHN M. GOODENOW, of Jefferson county, was elected judge in 1830 and resigned the following year on account of ill health; subsequently removed to Cincinnati, where in 1833 he became president judge of the Court of Common Pleas. This position he resigned also, because of inability to preserve harmonious relations with members of the Bar. Judge Goodenow 'was a native of Massachusetts, born in 1782, educated in the common schools and also educated in the law before coming west. He settled in Ohio and began the practice at Steubenville, in 1811. While favored with strong intellectual powers and fortified by careful reading in the line of his profession, he was unfortunate in dis-oosition--querulous and faultfinding. His irascibility led him into difficulties and quarrels with lawyers who practiced in his court and with judges before whom he had cases as attorney. One of the bitterest of his controversies was with Judge Tappan, before whom he argued a habeas corpus case involving important questions. He maintained in argument that the Common Law applicable to the punishment of crimes had never been in force in Ohio. Judge Tappan held the opposite view and the controversy at length assumed the form of an action for slander brought by the attorney against the judge. Goode-now's conviction as to the merits of his contention led him to write a book in which his views were expressed with clearness and force, under the title " American Jurisprudence in Contrast with English Common Law." The Supreme Court of the State sustained his view in Smith vs. State 12, 0. S. 466, and later in Mitchell vs. State 42, 0. S., p. 382.
GUSTAVUS SWAN, of Franklin, was appointed by the governor, in 1830, to fill a vacancy expiring in 1831. HENRY BRUSH, JOHN C. WRIGHT, and EBENEZER LANE were elected in 1830. Judge Brush, a native of New York and a lawyer of only moderate ability, had settled in Chillicothe in 1803, served as prosecuting attorney, representative and senator in the Ohio general assembly and representative in Congress—a single term in each office. Judge Lane was born in Northampton, Massachusetts, December 17, 1793, and died in Sandusky, Ohio, June 13. 1866. He was graduated at Harvard in 1811, studied law at Lyme, Connecticut, was admitted to the Bar in 1814, and after practicing in Connecticut three years, moved to Ohio and settled in Norwalk. Ile was elected judge of Common Pleas in 1824, and was on the Supreme Bench from 1837 to 1845. After leaving the Bench he resumed the practice of law and became engaged in railroad enterprises until 1859, when he withdrew from business.
He was one of the most able men who have sat in the Supreme Court of Ohio. He had penetrating sagacity and rare intellectual powers, was pro-
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foundly versed in the law, and was an omnivorous reader of literature. On the Bench he shunned display of learning, and was for the most part content with stating the facts and the principles of law which controlled the case ; and his opinions, concise, direct, cogent; are conspicuous in the reports for their simplicity and strength.
JUDGE WRIGHT was a lawyer-editor, and in both capacities was incisive, aggressive, keen-witted and forcible. He was a resident of Steubenville for many years, where he practiced law and filled several county offices, besides serving as a member of Congress three terms. He was managing editor of the Cincinnati Gazette in later life, and a terse, forcible writer. He published the reports of decisions of the Supreme Court during the time he was one of the judges-1830 to 1835. These were the first official reports of legal decisions published in the State. He served with credit in Congress, where he was known as one of the very few men whom John Randolph thought it prudent not to attack.
REUBEN WOOD was elected froth Cuyahoga county in 1832, and served one full term. Judge Wood possessed, in a very large measure, those inherent qualities and forces which are the foundation of greatness. He was born in Vermont in 1792, and came to Cleveland twenty-six years later with his wife and daughter. He was poor in purse but rich in energy and ambition. His cash capital at the time of settlement on the Cuyahoga river was twenty-five cents; but his resources were boundless. His education in the law had been obtained in his native State, and now he walked to Ravenna, where the Supreme Court was in session, to procure a license to practice. His personal appearance, no less than his learning, served as influence in securing business at first. He was a giant in stature, erect as an Indian, with the presence of a chief and the bearing of a soldier. Withal, he was so genial in social intercourse and so engaging in manners that he soon had clients and friends. His political ambition outstripped his professional achievements. He served as State senator before he was judge of Common Pleas, and was elected governor ten years after retiring from the Supreme Court. The intervention. of the Constitution of 1851 cut off his term almost at the beginning, and he was re-elected in 1852. He manifested to an unusual degree what is popularly termed executive ability — not only in carrying laws into effect, but in the selection of men for places. His administration was highly successful. He was a candidate for President in the Democratic National Convention of 1852, as " The Cuyahoga Chief," and received a very respectable vote. His ability was not inferior to that of his successful competitor in the convention.
FREDERICK GRIMKE was one of the few men of prominence in Ohio whose nativity was in the South. He was born in South Carolina September 1, 1791, graduated from Yale at nineteen, studied law in his native State and practiced there until 1820, when he migrated to Chillicothe. After serving several years as president judge of the Common Pleas he was elected judge of the Supreme Court in 1836 and served one term. He gained some literary reputation by the authorship of two volumes—" An Essay on Ancient and Modern
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Literature," and " Considerations upon the Nature and Tendency of Free Institutions." Although he lived to the age of seventy-three, he died a bachelor. Naturally reserved in manner and diffident in the presence of ladies, he probably never found the courage to propose matrimony.
MATTHEW BIRCHARD was elected from Trumbull in 1842 and served one term on the Supreme Bench. He was a man of more than average ability and a judge of more than ordinary attainments. He was born at Becket, Massachusetts, in 1803, and came to Ohio at the age of eight with his parents, who settled in Trumbull county, near the town of Warren. After the preparatory course of study he was admitted to the Bar in 1827, and six years later was elected judge of the Common Pleas. He was a Jackson Democrat and interested sufficiently in politics to turn aside from the main drift of his life and leave the judgeship of the Common Pleas circuit to accept the commissionership of the general land office tendered him by President Jackson. His written opinions are characterized by felicity of expression and perspicuity of thought. his pertinacity has been bluntly denominated stubbornness. It was the same quality which prompts the twelfth juror to hold out against his eleven peers and prevent a verdict, without a suggestion of bribery.
NATHANIEL C. READ, elected to the Supreme Court from Hamilton county, was a man of versatile talents and a lawyer of brilliant power. As a practicing attorney in the trial of cases, a presiding judge in nisi pries courts and the final adjudicator of questions appealed to the court of last resort he was equally successful. He was a man of marked ability, and had a clear coin-prehension of the law. He several times dissented from the majority and his dissent was subsequently recognized as the true rule. His usefulness was marred by his personal habits and at the end of five years he resigned and resumed his practice at Cincinnati.
EDWARD AVERY, a man undistinguished in history but respectable in character and talents, was elected to the Supreme Bench from. Wayne county in 1846 and resigned in 1851. The offices previously filled by him were those of prosecuting attorney and State senator.
RUFUS PAIN SPAULDING was chosen a member of the court by the legislature in 1849, for a term of seven years, which was cut to little more than two years by the operation of the second Constitution of the State. His service might have continued longer had he not declined to be a candidate before the people. He was a native of Massachusetts, born in 1798, son of an eminent physician who removed with his family to Norwich, Connecticut, when this son was only fourteen years of age. His opportunities of acquiring a scholastic and professional education were the best, and he improved them most advantageously. Ile was graduated from Yale at nineteen and read law with Judge Swift, Chief Justice of the State. As a young man he began the practice in Little Rock, Arkansas, but removed thence to the Western Reserve, Ohio, at the end of three years and a half, and lived at Warren sixteen years. Subsequently he resided in Portage, Summit and Cuyahoga counties. He represented both Portage and Summit in the general assembly at different
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times, and served one term as speaker of the House. At the close of his-judicial service he settled in Cleveland, where he engaged in the practice of law. Thoughtful, capable and successful men are usually moved by strong convictions. It was so, with Judge Spaulding. His personal convictions on the subject of slavery fortified him with courage to renounce his allegiance to the Democratic party after he reached the age of fifty. Turning from the partisan associations of half a century, he supported the free-soilers in 1850, and was ready to unite with the incongruous elements and forces, bound together by the single principle of resistance to the encroachments of slavery, to form the Republican party. He became an aggressive member of the new party and was elected to Congress in 1862, where his ability, courage and energy gave him rank among leaders.
WILLIAM P. CALDWELL and RUFUS P. RANNEY connected the old with the new, serving as judges of the highest court under two constitutions. Judge Caldwell was first elected by the legislature in 1849, and elected by the people in 1851. Born in Butler county in 1808, he was the first native of the State honored by an election to the Supreme Bench. He was a farmer's boy, with ambition and energy to desire and obtain an education ; was graduated by Miami University in 1835 ; read law with Judge John Woods of Hamilton, and located for practice in Xenia, but soon removed to Cincinnati, where he became associated in partnership with Honorable Samuel Fenton Carey. After serving a term as prosecuting attorney, he was elected president judge of the Court of Common Pleas in 1842, retaining that office until his promotion to the Supreme Court. On resigning, in 1854, he resumed the practice at Cincinnati with great success. Other judges may have excelled Caldwell in the critical analysis of legal principles and logical deductions from established premises; but none surpassed him in the ability to penetrate the consciousness of men and estimate the motives of human action. He was a mind-reader in the accuracy of his knowledge of human nature. His judgment as to the equities of a cause was true and righteous. He could look through a mask of assumption and deceit with unerring penetration. His intercourse with fellow men was marked by directness of purpose, frankness of manner and imperturbable good nature.
UNDER THE CONSTITUTION OF 1851.
About the middle of the century there was a feeling of unrest and discontent with existing conditions throughout the world. There were revolutions in several of the countries of Europe, and efforts, more or less successful, on the.part of the people to secure for themselves a larger liberty and to restrict the power of rulers. While these manifestations of rebellion and incipient revolution were almost universal in the old world, there was a different kind of activity in the United States. The discovery of gold fields in California gave an impetus to business and commerce, while the growth of new States rendered necessary a change and enlargement of the provisions of their organic
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law. It is a noteworthy fact that about this time each of the four States that had been erected in the Northwest Territory found it necessary to revise their constitutions. Illinois led the way in 1848, Indiana and Michigan followed in 1850, and the convention of Ohio for that purpose assembled in 1851. That convention framed for the State a new Constitution which made some radical changes in the organization of courts. The constitution provided for the election of judges of the Supreme Court by the people instead of by a joint convention of the general assembly. It fixed the number of judges at five, a majority of whom constituted a quorum. The term was fixed at not less than five years, with the provision that a session of the court should be held in the State capital at least once in each year. The number of judges could be increased or diminished by the legislature, but any act reducing the number must not operate to shorten the term for which any judge was elected ; that is, he could not be legislated out of office. The Constitution further provided that when the number of judges should be increased the State might be divided into three circuits, with an assignment of an equal number of judges to each division. The provision empowering the legislature to organize the Supreme Court into separate divisions is an enlargement of Section II., created by amendment adopted October 9, 1883. A majority of the judges sitting as an undivided court could decide causes and pronounce opinions that should be accepted as the expression of the court. In deciding causes heard by a division of the court the opinion must be unanimous. In case of a divided sentiment the question must be referred to the whole court, which also had the exclusive consideration of questions involving the constitutionality of an act of the legislature or an act of Congress. As a relief to the court, when its docket should be overcrowded, a commission of five members was authoized after the year 1876, having the same jurisdiction as the Supreme Court and sitting for a term not exceeding three years, to hear and determine appeals. The provision for a Supreme Court Commission, to continue in existence three years from February 1, 1876, and empowering the legislature upon application the Supreme Court, not oftener than once in ten years, to create a like commission for a term not exceeding two years, was made by amendment adopted . October 12, 1875. The same relief might be invoked at the end of any period of ten years after the first commission. Under the Constitution, as amended, two such commissions have been raised. In case of a vacancy in the Supreme Court occurring thirty days prior to the annual election, the governor was authorized to fill it by appointment until. such election. The judges comprising the first court under the new constitution were William R. Caldwell, of Hamilton county, Thomas W. Bartley, of Richland, John A. Corwin, of Champaign, Allen G. Thurman, of Ross, and Rufus P. Ranney, of Trumbull. It was fortunate for the adjustment of the Constitution to existing statutes that Judges Ranney and Caldwell had served under the former Constitution, as their experience facilitated the business of the new court. Judge Caldwell was chosen Chief Justice, and served until 1854, When be resigned.
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JUDGE BARTLEY was a native of Ohio, born in Jefferson county, February 11, 1812, the son of Mordecai Bartley and Elizabeth Welles. He was educated in Jefferson College, Pennsylvania, studied law in Washington, D. C., and began the practice at Mansfield, in 1834. By natural ability and application he took a leading position at the Bar. He served the State as attorney-general four years and filled the office of United States district attorney for a like period. He was a member of the general assembly several terms, and was acting governor of the State after the resignation of Governor Shannon, in 1844, until the governor-elect was qualified in December of that year. It is worth noting that the governor who succeeded him was his father. After retiring from the Supreme Court he praticed law in Cincinnati for a time, and subsequently removed to Washington. Judge Corwin resigned after serving about half his term, without any credit or distinction to himself, owing to his objectionable personal habits. It is unnecessary to refer to Judges Thurman and Ranney in this connection, as very full biographies of them are found in another part of this work.
ROBERT B. WARDEN, of Franklin county, was appointed by the governor to succeed Judge Corwin, but served only a few months until that vacancy was filled by election. He was only twenty-eight years of age, the youngest man ever appointed judge of the Supreme Court, and was taken from the office of reporter of the decisions of that court. His ability was unquestioned, but his adaptability doubtful. He did not remain long enough in one place to become identified with the community and form the attachments of home and gain the influences of inspiration which come from association by a long, honorable and useful residence in the same locality.
WILLIAM KENNON was appointed in 1854, from Belmont county, to serve until the election of that year, in which he was chosen to serve the unexpired portion of the term of Judge Caldwell. He was born in Pennsylvania in 1798, came to Ohio at the age of six with his parents, who settled in Belmont county, where he continued to reside for more than seventy-five years. He was educated at Franklin College and began the practice of law at St. Clairsville in 1824. At the age of thirty he was elected to Congress and served one term. He was appointed by the legislature president judge of the Court of Common Pleas of Thirteenth District in 1840. He was one of the active members of the constitutional convention of 1851, and the same year was appointed a member of the codifying commission, which prepared the code of civil procedure. He was a man of recognized ability in the profession, and strong in the fiber of his character. He was a powerful speaker, especially in the court room. His impassioned oratory had influence in moving the passion and influencing the judgment of a jury; his logical reasoning convinced the understanding of the judge. He was fond of literature, and it is related that he began the study of the Hebrew language after reaching the age of seventy-five years and became quite proficient in it.
JOSEPH R. SWAN, who was elected in 1854 for the remainder of Judge Corwin's term and served until November, 1859, was an able judge
BENCH AND BAR OF OHIO. - 25
and a man of rare qualities. His biography also appears at length in this volume.
JACOB BRINKERHOFF, of Richland county, was elected in 1855 and re-elected in 1860 and 1865, serving fifteen years. He was a native of New York, born August 31, 1810. He was descended from an old Dutch family, of which the first American representative, Hendrick Brinckerhoff, emigrated from Holland and settled in New Netherlands in 1638. After arriving at school age he attended the district schools until fifteen. In 1825 the family removed to Steuben county, in the same State, where he •worked on a farm until twenty years of age and then began the study of law, after spending some time in the Academy at Plattsburg. His studies were prosecuted with Howell & Howell, at Bath, Rogers & Neaston and Henry Wells, in Pennyan, where he remained until 1835. In 1836 he came to Richland county, Ohio; and located at Mansfield, where he formed a law partnership with Thomas W. Bartley. In 1839 he was elected prosecuting attorney and served four years. Politically he was a Democrat and was elected to Congress by that party in 1843. After serving two terms in the House of Representatives he resumed his law practice. He was a good lawyer, a just judge, an upright man, popular with members of the profession and esteemed by the public. He was opposed to the encroachments of slavery and became a member of the Free-Soil party while serving in Congress. He was the real author of the Wilmot Proviso, popularly attributed to David Wilmot, of Pennsylvania, by whom it was introduced in the House. This proviso " was offered as an amendment to a pending bill appropriating money to enable the President to open negotiations for peace with Mexico. During the progress of the war the United States had obtained military possession of California and New Mexico, and it was the general understanding this acquisition of territory was to be permanent. The slave-holding interests confidently expected to establish slavery therein, and relied upon their representatives in Congress to prevent restrictions. The Free-Soilers, including at the time many Northern Democrats, determined, if possible, to have the newly acquired territory dedicated to liberty. The Whigs, who had opposed the war, were ready for an alliance which would defeat its cherished object. Accordingly Judge Brinkerhoff drew up the proposed amendment providing that neither slavery nor involuntary servitude, except for the punishment of crime, should ever exist in the acquired territory. He submitted this first to his friend, Judge Vinton, a Whig member from Ohio, who promised to rally that party in its support, and then requested Mr. Wilmot, because of his popularity with the administration and the Southern members, to offer the amendment. This was done and it was adopted. Other congressmen had been busy along the same line, including Hale and Hamlin, Grover and Jenkins, Preston King and Rathburn; but the original draft of the " Wilmot" proviso, on file in the Congressional Library, is in the handwriting of Judge Brinkerhoff. His convictions on the subject of slavery were strong and deep. They influenced his independent action in Congress. When it was suggested to him by his relative, Gen. R. Brinkerhoff, that he should continue to act with the Demo-
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cratic party, as he could not otherwise hope for political honors; the antislavery movement was unpopular and he should at least repress his sentiments until more progress was made toward freedom, he replied: " That may do for you, but not for me. I have made my bed and I must lie on it. It is true I do not see any hope for liberty in my time, but as sure as God lives it will come some time, and I would rather my children or grandchildren should remember that I lived in the faith and died in obscurity than to obtain preferment by the abandonment of my convictions or even by silence."
CHARLES CLEVELAND CONVERSE, of Muskingum county, was elected to the Supreme Court in October, 1855, but on account of ill health resigned in February following, before taking his seat. He was a man of scholarly attainments who had the advantage of attending the lectures of Story and Greenleaf while in the Harvard Law School. His parents were members of the Ohio Company and pioneer residents of the Northwest Territory. He had served in the State Senate as its presiding officer, and for one year, beginning in 1854, was judge of the Court of Common Pleas.
OZIAS BOWEN, of Marion county, was appointed in February, 1856, to fill the vacancy occasioned by the resignation of Judge Converse and was elected in October following for the remainder of the term. He was a native of New York, born July 21, 1805, and came to Ohio in boyhood. His literary and professional education was obtained in the State and he located for practice at Marion. The only office which he filled prior to his appointment to the Supreme Bench was that of president judge of the Second Circuit, which he held for two terms. He was gentle and quiet in manner, dignified in bearing and devoted to his profession. His success at the Bar was largely due to the assiduous labor bestowed upon his cases, and the same assiduity was observed in his investigation as a member of the Supreme Court.
JOSIAH SCOTT was elected in 1856 from Butler county. He was re-elected in 1861 and 1866, serving three full terms. Judge Scott was born December 1, 1803, in Washington county, Pennsylvania, was educated in Jefferson College and graduated with class honors in 1823. For some time thereafter he • was employed in teaching, in a classical academy at Newton, Pennsylvania, and afterwards in Richmond, Virginia. He was also employed as tutor in Jefferson College for a year, but at no time did he expect to make the profession of teaching his life work. During all the years after leaving college he had been engaged in reading the textbooks of law, and by this time he was qualified to engage in practice. In June, 1829, he located at Bucyrus, which was then on the border of the Indian reservation. The population of Crawford county at that time contained a large proportion of Wyandot Indians. Judge Scott remained there twenty-one years and gained for himself a high reputation as a lawyer, and considerable popularity in politics. He was elected to the general assembly in 1840. In 1851 he located in Hamilton, Butler county, where he won distinction in competition with the ablest members of that Bar. The attachments formed at Bucyrus during his long residence were sufficient to cause his return to that place while serving as a member of the
BENCH AND BAR OF OHIO - 27
Supreme Court. On his retirement from the Bench he resumed the practice there until appointed by Governor Hayes a member of the first Supreme Coint Commission. He died at the age of seventy-six. He was a thorough scholar, and his interest in literature was continued during the whole course of his life. He was especially fond of the classics in Greek and Latin. It is said that his greatest skill as a practicing lawyer was observed in his adroit method of eliciting testimony on cross-examination. He did not bully a witness, but his insinuating manner and peculiar manifestation of friendliness disarmed the pugnacious and stubborn witness, causing him to disclose the truth unawares. His judicial opinions were expressed with clearness and force unsurpassed by any contemporaneous judge.
WILLIAM SUTLIFF was elected in 1857 to succeed Judge Bowen, re-elected in 1862 and retired in 1868 after a service of ten years. He was one of the six sons of Daniel Sutliff, a Revolutionary soldier, four of whom became lawyer. He was educated in Western Reserve College, graduated in 1834, and the same. year entered upon the practice of law at Warren. In politics he was a pronounced abolitionist with all the moral courage for which the Vanguard of the anti-slavery crusade was noted. He was assailed, but his motives were never impugned or his integrity doubted either as a man or a judge.
WILLIAM V. PECK, of Scioto county, was elected in 1858 to succeed Judge Bartley, and after serving a single term retired in 1864. Owing to impaired health he declined a re-election. He was a sufferer from chronic bronchitis. Judge Peck was a native of Connecticut and received his literary, as well as legal education, in that State, He possessed scholarship of high grade and was well trained as a lawyer. Having been employed for some time in an office at Cincinnati where his duties were chiefly clerical, he became familiar with all forms of legal papers, and as his penmanship was faultless, any pleadings or other papers drawn by him were a source of pleasure to the clerk. He went to Portsmouth from Cincinnati, where he acquired a fine reputation as a practitioner. He never filled any other than a judicial office, having been promoted to the Supreme Court from the Common Pleas judgeship, to which he had been elected in 1848. his perceptions were clear and discriminating as to the interpretation and applicability of the law. His written opinions were noteworthy for felicity of expression and perspicacity. He was remarkably successful as a nisi prius judge, and the Supreme Court, sitting in his district, had no cases for consideration.
WILLIAM Y. GHOLSON, of Hamilton county, was appointed in 1859 to fill the unexpired portion of Judge Swan's term, and elected the same year for the succeeding term ; but resigned in 1863. He was a native of Virginia, educated in Old Nassau Hall, at Princeton, and settled in Cincinnati for practice in early life. He was a lawyer in every aspiration and purpose. He possessed a legal mind of unusual activity, was highly cultivated and deliberate. As a judge, whether on the Bench of the Superior Court at Cincinnati, or on the Supreme Bench of the State, he measured up to the standard of Lord Bacon. Ile knew nothing of the parties but their names on the docket; noth-
28 - BENCH AND BAR OF OHIO.
ing of the cause but from the evidence; nothing of the result and its consequences but the judgment which the law pronounces. He was born in 1807 and died at his home near Cincinnati, September 21, 1870.
HORACE WILDER was appointed by the governor December 12, 1863, in place of Judge Gholson, resigned. In October following he was elected for the remainder of the term expiring in February, 1865. He was a resident of Ashtabula. Judge Wilder was born in Connecticut, August 20, 1802, was graduated from Yale at twenty-one, studied law and was admitted to the Bar in the State of Virginia at twenty-four. He settled in Geauga county, Ohio, in 1827, and the following year was admitted to the Bar. Immediately afterwards he located for practice in East Ashtabula. He was elected prosecuting attorney of the county in 1833, and a member of the legislature the following year. He continued in the practice of his profession, but held no other office until he was elected judge of the Court of Common Pleas, in 1855, to fill a vacancy. He was re-elected the following year for a full term. There are lawyers now living in Ohio who remember Judge Wilder for his kindness and consideration to them when very young and inexperienced in the practice.
HOCKING HUNTER was elected judge of the Supreme Court from Fairfield county in 1863, but resigned before the beginning of the term for which he was elected. He stood in the forefront of the profession, a member of the Bar at Lancaster during the period of its highest celebrity. He was born in the territory of Ohio August 23, 1801, and died at his home near the same spot, February 4, 1872. His father, Captain Joseph Hunter, a native of Virginia, was an officer of the Revolutionary War, and lived in Kentucky after the close of that war until 1798, when he became the pioneer settler of Fairfield. county. His education was limited to the common school branches, but was thorough in the rudiments. After reading law with Judge William W. Irvin, be was admitted to the Bar in 1824. He served as prosecuting attorney of Fairfield county from 1825 to 1831. During the latter year he formed a partnership with Thomas Ewing, the elder, thus organizing one of the strongest firms for the practice of law that ever existed in Ohio. It is a fact somewhat singular among men who have acquired great distinction that Hocking Hunter, during the course of his long, honorable and distinguished career, was never a candidate for office and never held any office but that of prosecuting attorney.
WILLIAM WHITE was first appointed by the governor in February, 1864, to fill the vacancy occasioned by the resignation of Judge Hunter, serving under that appointment until October, when he was elected for the remainder of the term. He was re-elected in 1868, 1873 and 1878, and died in office March 12, 1883. He was a resident of Clark county. Judge White was a conspicuous example of young men who have the aspiration and will to rise superior to their environments. He was a native of England, orphaned in childhood by the loss of both parents, and came to the United States at the age of nine years with his uncle, who settled at Springfield. He was apprenticed under the system of indenture then prevalent, for a term of nine years, to learn the cabinet-
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makers' trade. After six years of service he bought his release from bondage and paid for it with the wages of labor at his trade as a freeman. He educated himself in the high school at Springfield and studied law with William A. Rogers. During the time he spent as student in preparing for the practice of law, he paid his expenses with the wages earned at teaching school. When twenty-four years of age he formed a partnership with Mr. Rogers, his preceptor; afterwards held the office of prosecuting attorney, to which he was elected three successive terms. In 1856 he was elected judge of the Court of Common Pleas, and re-elected in 1861, vacating the office when he accepted appointment to the Supreme Bench. He worked hard and almost incessantly in discharging the duties of judge, so that his health was much impaired, even before his last election. The memorial adopted by the State Bar Association testifies the esteem of the profession: " For his long, faithful and eminent services, as well as for the unsullied purity and uprightness of his personal character, and his excellent qualities of heart; their appreciation of the inestimable value of his inspiring career and his unremitting toil, to the detriment of his pecuniary interests, in the service of the State he loved so well. The loss of such a man from the judicial quorum is irreparable to the public as well as to the Bar."
LUTHER DAY, of Portage county, was elected to the court in October, 1864, re-elected in 1869, and retired at the end of his second term. lie was born in Washington county, New York, July 15, 1813. His academic education was interrupted by the necessities of the family, which recalled him from school to labor on the farm, at the end of one year. Not long afterward the death of his father, whose estate was embarrassed by debt, compelled him to give up the struggle for an education and work for a living for his mother and younger members of the family. Although only sixteen years of age, the sense of responsibility made him a man in discretion, tact and energy. He worked on the farm and in the saw mill to such purpose that the incumbered property was saved and the debt fully paid at the end of six years. Then, at the age of twenty-two, he entered Middleberry College, Vermont, where lie remained two years, and paid his expenses by teaching. Abandoning the purpose to complete his course in college, he settled in Ravenna, Ohio, and took up the study of law in the office of Honorable Rufus Spaulding. He was admitted to the bar in 1840, and formed a partnership for practice with Honorable Darius Lyman, an old lawyer of the place, which was continued for three years. He served as prosecuting attorney for a term, and in 1849 was the candidate of the Democrats for representative in Congress. In 1851 He was elected judge of the Common Pleas Court. His wife was the daughter of Judge Spaulding. The attitude of the Democratic party just prior to the war caused him to form an alliance with the Republican party. In 1863 he was elected to the State Senate as a Republican. He held no other political office, but after his retirement from the Supreme Bench, was appointed, in 1875, a member of the commission to revise the statutes of the State. The following year he was appointed a member of the first Supreme Court Commission.
30 - BENCH AND BAR OF OHIO.
JOHN WELSH, appointed to the court in place of Judge Ranney, February, 1865, was subsequently thrice elected, serving continuously until 1878. He was a native of Ohio, born in Harrison county, October 28, 1805. After preparation by liberal reading and study he was admitted to the Bar in 1833 and began practice at Athens. He enjoyed unusual advantages by association. with lawyers of large experience and ability at the opening of his career. He was intellectually strong and his mind was trained to independent thought. Like Festus, he reasoned well. His sense of what the law ought to be was profound, and he relied upon his power of reasoning to establish his premises .as much as he relied upon the matter printed in the books. His personal popularity, supplementing his undoubted qualifications; occasioned his preferment for political office, and he served with acceptability as State senator and member of Congress. He also was elected judge of the Court of Common Pleas before being called to the highest court. It is said that the opinions written by him contained no excess of verbiage. They were about as nearly :as may be the naked law tersely expressed. He was the author of a digest containing two volumes of Ohio decisions.
GEORGE W. McILVAINE, of Tuscarawas county, was elected a member of the Supreme Court in 1870, re-elected in 1875 and again in 1880, serving for fifteen years. While the biographer is unable to find in the volumes of contemporaneous history, or later collected biographies, anything appertaining to the antecedents or early life of this man, he is remembered by the Bar as a courteous, capable gentleman. The reports of opinions promulgated by the court attest his ability as a lawyer and a judge. He was a quiet, frank, candid judge, who made no pretenses to learning which he did not possess. His associates on the Bench were among the ablest who have held position under the present Constitution.
WILLIAM H. WEST was elected judge of the Supreme Court in 1871 while a resident of Logan county, but resigned after serving two years. It is sufficient to remark in this connection that he was at the time a great lawyer, whose ability had attracted the favorable notice of the profession and whose character commanded the respect of the people. He is one of the few eminent lawyers and orators of the old school yet living and actively engaged in practice. An extended personal biography will be found in this work.
WALTER F. STONE was appointed by the governor in 1873 upon the resignation of Judge West and elected the following October for the remainder of the term. He resigned on the 10th of September, 1874. He was a native of Ohio, born at Wooster, November 18, 1822. His parents had come to the State from Vermont. He was educated at Pittsburgh and read law under Walter R. Lowry, of that city. After admission to the Bar he located at Sandusky City, in 1846. For a time he was associated in partnership with Judge Ebenezer Lane. After twenty years of active practice he was elected judge of the Court of Common Pleas, in 1865, re-elected in 1870, and served until promoted to the Supreme Bench. His resignation was occasioned by ill
BENCH AND BAR OF OHIO - 31
p>health, from which he failed to recover, and his death took place at Oakland, California, in December following
GEORGE REX, of Wayne county, was appointed to fill the vacancy occasioned by the retirement of Judge Stone. He was elected in October, 1874, and served the remainder of the term. He was born at Canton, July 25, 1817, educated in the common schools and in the Capital University; was engaged in teaching for a time, and after a course of reading, was admitted to the Bar in 1842. He located for practice at Wooster, served as prosecuting attorney for Wayne county four years; served as a member of the State Senate and president pro tempore in 1851. Afterwards he served two additional terms as prosecuting attorney, and in 1867 was again elected to the State Senate. Service on the Bench impaired his health so that he declined a re-election and returned to the practice of law, but lived only two years. He was an earnest, conscientious man, public-spirited in the advocacy of popular education. and whatever tended to promote material prosperity. He had strong convictions and undoubted courage.
WILLIAM GILMORE, of Preble county, was elected in 1874 and served one term. He was born in Bedford county, Virginia, April 24, 1821, and came to Ohio with his parents when four years of age. His education was limited to the district school and Hopewell Academy. He studied law with Thomas Milliken, of Hamilton, and was admitted to the Bar in 1847. After practicing one year in Hamilton he removed to Eaton, where he continued to reside until the close of his service upon the Supreme Bench, when he removed to Columbus and re-entered the practice. He held the office of prosecuting attorney of Preble county two terms. In 1857 he was elected to the Common Pleas Bench and held that position by successive elections until 1874. His personal popularity was sufficient to overcome a large adverse majority when the candidate of a political party in his county. He was also popular in the profession, as evidenced by his election to the presidency of the State Bar Association in 1885 and his appointment as delegate to the American Bar Association in 1894.
WASHINGTON W. BOYNTON was elected to the Supreme Court in 1876 from Lorain county, and served one term. He was a native of that county, which continued to be his home until retirement from the Bench, when he located in Cleveland. A full sketch of his life appears elsewhere in this work.
JOHN W. OKEY, of Franklin county, was elected judge of the Supreme Court in 1877, re-elected in 1882 and died in office in 1885. He was one of the strong and capable judges, with the persistence of the English and the firmness of the Scotch, from which he was descended, with a generous vein of Irish blood. He was born in Monroe county, Ohio, and educated in Monroe Academy ; was admitted to the Bar in 1849. For three years, beginning in 1853, he served as probate judge of his county. In 1856 he was elected judge of the Court of Common Pleas and subsequently re-elected. During the whole course of his life he was devoted to the profession of law, exhibiting zeal and industry in whatever he undertook. He served as a member of
32 - BENCH AND BAR OF OHIO.
the codifying commission appointed by the governor to revise and codify the statutes of the State. In connection with S. A. Miller he prepared and published a work on municipal law, in 1869. His qualifications for judge of the highest court were unusually ample by general reading, close application to a study of the principles of the law and long training on the Bench. He appeared to have an intuitive sense of what the law should be, and in the formation of an opinion was guided as much by his inner consciousness as by precedent, or the published opinion of a court. He was careful, cautious, deliberate, conscientious and immovable when his conclusion had been formed. Respectfully considerate of the views of others, he was contented to be guided by his own conscience as to what is right in law as well as in morals.
WILLIAM W. JOHNSON, of Lawrence county, was elected in 1879, re-elected in 1884 and resigned November 9, 1886. He was born in Muskingum county, August 17, 1826. His father was a native of Connecticut and his mother a Virginian, whose father was a Revolutionary soldier. His knowledge of books as a boy was limited to that which he was able to obtain by reading at home after a day's work was done and study during the hours not devoted to hard work on the farm. He was permitted to spend a single term in Muskingum College before entering upon a course of reading in law in the office of Judge Converse at Zanesville. He was admitted to the Bar in 1852 and six years later elected judge of the Court of Common Pleas. By successive elections he served on this Bench for fifteen years and then retired on account of impaired health. He was a hard student all of his life and was thus enabled to cure the defects of an early education. He possessed the judicial traits which weigh carefully any question submitted to the judgment, and a love of justice contributed to his arriving at correct conclusions.
As the judges appointed during the last two decades belong to contemporaneous history, it is sufficient for the purpose's of this article to mention them in chronological order.
Nicholas Longworth, of Cincinnati, was elected in 1881, and resigned in 1883, after serving one year.
John H. Doyle, of Toledo, was appointed March 10, 1883, by Governor Foster, to fill the vacancy thus occasioned, until the election next succeeding.
William Y. Upson, of Summit county, was appointed by the governor March 4, 1883, on the death of Judge White, and served to the close of the term in the December following.
Martin D. Follett, of Washington county, was elected in October, 1883, to serve the remainder of the term of Judge Longworth, which expired in February, 1887.
Selwin N. Owen, of Williams county, was elected in October, 1883, and served one full term. Judge Owen was and is especially gifted in the effective use of the English language. His style is fluent and racy.
Gibson Atherton, of Licking county, was appointed in August 1885, to fill a vacancy created by the death of Judge Okey, serving until December 18th of that year, when he was succeeded by William T. Spear, of Trumbull county,
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who had been elected in October to fill out the term. Judge Spear was elected in 1887 and again in 1892. He was a member of the court at this date.
Thaddeus Minshall, of Ross county, was elected in 1885, re-elected in 1890, and again in 1895. He is still on the bench.
Franklin J. Dickman, of Cuyahoga county, was appointed November 10, 1886, to fill the vacancy created by the resignation of Judge Johnson. In 1889 he was elected for a full term, which expired in 1895.
Marshall J. Williams, of Fayette county, was elected in 1886, and reelected in 1891. His second term expires in 1897.
Joseph P. Bradbury, of Gallia county, was elected in 1888, and re-elected in 1893, for a term that runs until February, 1899.
Jacob F. Burkit, of Hancock county, was elected in 1892, for a term running to 1898.
Jacob A. Shauck, of Montgomery, was elected in 1894, for a term which extends into the last year of the century.
The total number of judges appointed and elected under the Constitution of 1851 is forty-one. Twenty-three of them were born in the State of Ohio. Massachusetts, Connecticut and Vermont each contributed one, New York five, Pennsylvania three, Virginia three, and one was foreign-born.
Any history of the Supreme Court of Ohio which contained no reference to its valuable coadjutor, the Supreme Court Commission, would be manifestly incomplete. The first commission, consisting of five lawyers, some of whom were among the ablest in the State, was created in February, 1876, limited to an existence of three years, and concluded its labors in 1879. The Members originally appointed were Josiah Scott, of Crawford ; William W. Johnson,of Lawrence ; D. Thew Wright, of Hamilton ; Richard A. Harrison, of Franklin ; Luther Day, of Portage, and Judge Whitman, of Hamilton. Judge Whitman, during the first year, resigned, and Thomas Ashburn, of Clermont, was appointed to fill the vacancy. The second commission, appointed in 1883 for a term of two years, consisted of the following able jurists: Moses W. Granger, of Muskingum ; George K. Nash, of Franklin ; Franklin J. Dickman, of Cuyahoga; Charles D. Martin, of Fairfield ; John McCauley, of Seneca. The Codifying Commission, which began its labors in 1875 and completed them in 1879, was composed as follows : Michael A. Dougherty, Fairfield ; John W. Okey, Franklin ; Luther Day, Portage. Judge Okey resigned in 1877 to accept a seat on the Supreme Bench, and was succeeded by his son George B. Okey. Judge Day resigned in 1876 to enter upon his service as judge of the Supreme Court, to which he had been elected. It is creditable to the profession in the State that the Supreme Court has always observed a high standard of morality and integrity ; that it has not, during more than a century of existence in the territory and the State, been liable to an accusation of bribery or corruption ; that its decisions and opinions generally evince learning and wisdom. Its published volumes of reports take high rank among those of other States in the Union, as logical expositions of the law.
THE CIRCUIT COURT OF OHIO.
In order to present a satisfactory account of the establishment and jurisdiction of this court, which gives to the judicial system of Ohio the completeness which satisfies the Ohio lawyer and supplies the model for a perfect judicial system when an intermediate court is to be established, it is absolutely necessary to say something of the establishment and continuance of its predecessors in Ohio.
By the ordinance of July 13, 1787, " for the government of the territory of the United States, northwest of the River Ohio," the wise and beneficent statesmanship of which has been the theme of native and foreign commentators on our system of government and the subject of many oratorical eulogies, it was ordained that " said territory, for the purposes of temporary government, be one district," and that " there shall also be appointed (by Congress) a court to consist of three judges, any two of whom may form a court, who shall have a common-law jurisdiction, and reside in the district, and have each therein a freehold estate in five hundred acres of land, while in the exercise of their offices; and their commissions shall continue in force during good behavior." After the adoption of the Federal Constitution, Congress enacted (August 7, 1789) that all officers in the Northwest Territory which the ordinance of July 13, 1787, had provided should be appointed by Congress should thereafter be appointed by the President of the United States, by and with the advice and consent of the Senate. The governor and judges of the territory were given, by this ordinance, legislative powers, subject to the approval of Congress, until the organization of the general assembly in the district. The first judges appointed were Samuel Holden Parsons, of Connecticut ; James M. Varnum, of Rhode Island, and John Cleve Symmes, Chief Justice of New Jersey. Judge Symmes was appointed in place of John Armstrong, who declined the appointment.
By an act of Congress (May 8, 1792) any one of the judges was authorized in the absence of the other judges to hold court. These judges constituted what was called the General Court of the territory and had the power of reviewing and revising the decisions of all inferior tribunals, and their decision was final. Until the organization of the general assembly the governor had power to appoint all magistrates and to lay out the parts of the territory where the Indian title had been extinguished into counties and townships. After the organization of the general assembly these powers were vested in that body. Under the judicial system established for the territory no court was established between the courts of Common Pleas and the General Court,
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but provisions were made by the governor and the judges, and afterwards by the general assembly, for the holding of Circuit Courts in the various counties by one or more of the territorial judges for the trial of issues of fact joined in cases in the general court or removed by appeal or otherwise from the Courts of Common Pleas, in the counties or districts where the issues arose. The only differences between the provisions in this regard made by the governor and judges and by the general assembly were that the general assembly divided the territory into districts which embraced one or more counties, provided that the sessions of the Circuit Courts should be held once a year instead of twice a year and that the Circuit Courts of Washington and Hamilton counties should not be held by less than two judges of the General Court.
Article III. of the Constitution of 1802 provided that the judicial power of the State, both as to matters of law and equity, should be vested in a Supreme Court, in Courts of Common Pleas for each county, in justices of the peace, and in such other courts as the legislature from time to time might establish. The Supreme Court was to consist of three judges, any two of whom constituted a quorum, vested with such original and appellate jurisdiction, both in law and equity, as directed by law. Power was given to the general assembly to add another judge to the Supreme Court after the term of five years, in which case the State might be divided into two circuits by the judges, within which any two of the judges might hold court. The State was divided into three Common Pleas circuits, in each of which a president of the courts was to be appointed, and in each county not more than three nor less than two associate judges. The president and associate judges in their respective counties, any three of whom constituted a quorum, composed the Court of Common Pleas, having common law and chancery jurisdiction in all cases directed by law. There was also a provision that after five years the general assembly might increase the number of presidents and circuits. The judges of the Supreme Court and Courts of Common Pleas were given complete criminal jurisdiction, in such cases and in such manner as might be pointed out by law. The judges of the Supreme Court, the presidents and associate judges were appointed by a joint ballot of both houses of the general assembly for the term of seven years, "if so long they behave well." This article of the Constitution further provided that the Supreme Court should be held once a year in each county, and the Courts of Common Pleas in each county, at such times and places as prescribed by law.
In this judicial system there was no provision for an intermediate court, but the necessity for such a court soon became apparent and it was indirectly established by the Act of February 17, 1808. This Act provided, agreeably to the provisions of the Constitution, for an additional judge of the Supreme Court, and authorized the judges to divide the State into two districts within which any two of the Supreme Court judges might hold court. The judges of the Supreme Court were required annually to hold an extraordinary session, which it was the duty of at least three judges to attend, within each Common Pleas circuit, for the sole purpose of hearing and determining cases
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reserved by the Supreme Court held in the districts. The counties mentioned in the Act, where these extraordinary sessions were to be held, were Warren, Ross, Fairfield and Columbiana. Thus was established the two branches of the Supreme Court, known under the Constitution of 1802 as the Supreme Court on the Circuit and the Supreme Court in Bank, and gave a dignity and superiority to the Court in Bank which made it seem like another court with superior powers. The cases which came before the Court in Bank were those in which the judges holding the court on the circuit differed on a question of law, or in which a new and difficult question of law arose, or where in the trial of a cause the judges were divided in opinion as to the admission or rejection of testimony and were unable for that reason to decide a motion for a new trial. In such cases the question or questions were postponed, to be decided by the Court in Bank. This law continued in force until February 16, 1810, when it was repealed. By the Act of February 23, 1816, the number of judges of Supreme Court was again increased to four, and by the Act of January 20, 1823, it was made the duty of " all the judges of the Supreme Court to meet annually in the town of Columbus, immediately after the close of the circuit, in order to consult upon and decide " all important or difficult questions either in law or equity arising before the Supreme Court in any county which were reserved by the judges holding that court for decision at Columbus, thus again establishing the two divisions of the Supreme Court and in effect an intermediate court. This Act was repealed by the Act of March 8, 1831, which latter Act took effect June 1, 1831.. March 10, 1831, an Act was passed " to establish a Court in Bank, and to regulate its practice." By this Act all the judges of the Supreme Court (any three of whom constituted a quorum) were required to meet annually in the city of Columbus to hold a Court in Bank for the final adjudication of all such questions of law as might be reserved in any county for decision. The provisions as to the reservation of questions of law were that " when any important or difficult question shall arise in any proceeding at law or equity, pending before the Supreme Court in any county, the judges thereof may reserve the same and all other questions as to which the judges may be divided in opinion, shall, on motion of either party or his-counsel, be reserved for decision, at the term of the. Court in Bank, next thereafter to be holden." This was substantially the same as the Act of January 20, 1823, except that in addition to the power given to the judges on the circuit to reserve important and difficult questions for the decision of the Court in Bank, it gave the parties the right to have all questions as to which the judges were divided in opinion, reserved for hearing before the same tribunal, thus combining the provisions of the Act of February 17, 1808, and of January 20, 1823, in the establishment of this quasi intermediate court and giving the privilege to parties of appealing to the Court in Bank. The Supreme Court held its sessions on the circuit and in bank in accordance with the requirements of this Act until the adoption of the Constitution of 1851.
That Constitution provided that the judicial power of the State should be vested in a Supreme Court, in District Courts, Courts of Common Pleas,
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Courts of Probate, justices of the peace, and in such other courts inferior to the Supreme Court, in one or more counties, as the general assembly might from time to time establish. By its terms the State was divided into nine Common Pleas districts and each district into three parts, in each of which parts a Common Pleas judge was to be elected. Power was given to the general assembly to increase or diminish the number of Common Pleas districts, the number of judges in any district, change the districts or the subdivisions thereof, or establish other courts whenever two-thirds of the members elected to each house concurred therein. District Courts which were given original jurisdiction in quo warranto, mandamus, habeas corpus and precedendo the same as the Supreme Court, and such appellate jurisdiction as might be provided by law, were composed of the Common Pleas judges of the respective districts and one of the judges of the Supreme Court, any three of whom formed a quorum. At least one term of the District Court was required to be held in each county in the district annually. Suits pending in the Supreme Court in Bank were transferred to the Supreme Court, and the District Courts in their respective counties were declared to be the successors of the then Supreme Court on the circuit, and all suits, etc., pending in the Supreme Court in the several counties were transferred to the respective District Courts.
The distrust with which the lawyers regarded this intermediate court made its first appearance in the Act of February 19, 1852, which provided that when an important or difficult question should arise in any proceeding pending before the District Court in any county the judges of the District Court or the judge of the Supreme Court sitting in said district might, on motion of either party, cause the same to be reserved and sent to the Supreme Court for its decision. For the purposes of the District Courts the State was divided into five judicial circuits and it was provided that the judge of the Supreme Court present at the sessions of the District Court should preside. This Act was the first one defining the jurisdiction of the District Court, and gave the District Court, in addition to its original jurisdiction, power on good cause shown to issue writs of error, certiorari, supersedeas, ne exeat and all other writs not specially provided for by statute whenever such writs might be necessary for the exercise of its jurisdiction in the due administration of right and justice throughout the State, and it was given appellate jurisdiction from the Court of Common Pleas in all civil cases in which the Court of Common Pleas had original jurisdiction, which was in all cases where the matter in dispute exceeded the sum of $100. The appeals were to be given, tried, heard and decided in the District Court in the same manner as though the District Court had original jurisdiction of the case and upon the same pleadings, unless for good cause shown amendments were permitted. It was further provided that a judgment rendered or final order made by the Court of Common Pleas; Superior Court of Cleveland, or Superior or Commercial Courts of Cincinnati might be reversed, vacated or modified by the District Court for errors appearing on the record.
By the Act of April 12, 1858, (55 Ohio Laws, 81) the right of appeal to the District Courts was limited so it could only be taken from final judgments,
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orders or decrees in such civil actions as the parties had not the right by virtue of the laws of this State to demand a trial by jury, and this same act provided that a judge of the Common Pleas Court who had decided the case in the Common Pleas should not sit on the review of his own decision in the District Court on error or otherwise when there was a quorum in the District Court without him.
The business of the Court in Bank having increased very rapidly, so as to require the attendance of the judges of the Supreme Court during almost the entire year,' it was provided by Act of March 29, 1865, that the judges of the Supreme Court should be relieved from duty in the District Court in the year 1865, and by the Act of April 2, 1870, that if at the December session of any year the judges of the Supreme Court should deem it for the best interests of the State or that the business of the Supreme Court required that they should remain in session, they might continue in session and should for that year be relieved from attendance at the sessions of the District Court either in whole or in part as they might elect.
In the meantime the Supreme Court had decided in the case of King vs. Safford, 19 0. S., 587, that a District Court held by three or more Common Pleas judges without the presence of a judge of the Supreme Court was a lawful and constitutional District Court. The absence of the Supreme Court judges from the. District Court tended in no small degree to lessen the respect for its decisions which ought to be given to such a tribunal, and the fact that Common Pleas judges were required to hold the District Court in addition to performing their duties as Common Pleas judges without any extra compensation, tended, either because of the lack of time or of inclination, to make their sessions short, prevented them from giving the time necessary to a full examination of the cases submitted to them, and to cause the court to be regarded simply as a necessary stopping place on the way to the Supreme Court. It was sought to remedy this in 1877 by submitting to the voters of the State a Constitutional Amendment providing for an independent District Court composed of certain of the Common Pleas judges who should devote their entire time to the business of that Court; but that amendment was voted down. By the act of May 10, 1878, it was provided that the Supreme Court or a majority thereof should designate three Common Pleas judges in each district to hold the District Courts of such district, and that such judges should not be required to hold Common Pleas Court, but this Act was declared, in the case of "In the Matter of the Appointment of Judges to hold District Court," 34 0. S., 431, to be unconstitutional.
On the 8th of July, 1880, the members of the Bar of the State assembled in convention at Cleveland for the purpose of forming, and did form a State Bar Association, and one of the first matters brought to the attention of the Association was the securing of a plan to facilitate the administration of justice in the State. In the course of the discussion upon that proposition, Judge R. P. Ranney, president of the association, who had been one of the judges. of the first Supreme Court under the Constitution of 1851, and who was one
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of the ablest jurists in Ohio, said : " The framers of our judicial system created an intermediate Appellate Court, called the District Court, but they never contemplated that that court was going to be held exclusively by the very men who had decided the cases in the first instance; that they were going to turn reviewers of themselves. It was an essential feature of their system, without which it never could have passed that convention, that a judge of the Supreme Court, with his knowledge and weight of character, should forever preside in that Appellate Court. What have we realized for years past in practice ? That court is held by the judges that decided in the first instance and Common Pleas judges, doing as well as they can, I admit, but in nowise meeting the public expectation of an Appellate Court to put an end to controversies. The consequence is that cases finding their way into that court go there simply as a stopping place, a necessary resting place, to be crowded into the Supreme Court, and the consequence is that all the important litigation of the State finds its way right through this first Appellate Court into the Supreme Court." This question was referred to the committee on Judicial Administration and Law Reform of the association.
At the meeting of the association held in Columbus in December, 1880, the committee on Judicial Administration and Law Reform, through its chairman, Durbin Ward, submitted a form of amendment to the judicial article of the Constitution. That amendment provided for the abolition of the District Court; for increasing the number of the Supreme Court judges to nine; for the holding of one term in each year of that court at the seat of government ; and for special terms of the Supreme Court to be held by not les§ than two judges in each county of the State at least once in each year, in-effect re-establishing the judicial article of the Constitution of 1802. This plan of the committee was adopted by the association, and the committee on Judicial Administration and Legal Reform commissioned to present the same to the legislature at its next session. That committee presented the same to the legislature and reported to the association at its meeting at Toledo, in 1881, that the legislature had not seen fit to take any action in regard thereto, and the whole matter was again referred to the same committee for further consideration.
At the meeting of the association in Cincinnati, in 1882, the committee submitted the following plan proposing an amendment to the judicial article of the Constitution :
Section 1. The judicial power of the State is vested (1) in a Supreme Court. (2) Circuit Courts. Courts of Common Pleas, Courts of Probate, justices of the peace, and such other courts inferior to the Supreme Court, as the general assembly may from time to time establish. (3) (As amended October 9, 1883; 80 v. 382).
Section 2. The Supreme Court shall, until otherwise provide (provided ?) by law, consist of five judges, a majority of whom competent to sit shall be necessary to form a quorum or to pronounce a decision, except as hereinafter provided. It shall have original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo, (1) and such appellate jurisdiction as may be provided by law. It shall hold at least one term in each year at the seat of government, and such other terms, there or elsewhere, as may be provided by
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law. (2) The judges of the Supreme Court shall be elected by the electors of the State at large, for such term, not less than five years, as the general assembly may prescribe, and they shall be elected and their official term shall begin at such time as may be fixed by law. In case the general assembly shall increase the number of such judges, the first term of such additional judges shall be such, that in each year after their first election, an equal number of judges of the Supreme Court shall be elected, except in elections to fill vacancies and whenever the number of such judges shall be increased, the general assembly may authorize such court to organize divisions thereof, not exceeding three, each division to consist of an equal number of judges; for the adjudication of cases, a majority of each division shall constitute a quorum, and such an assignment of the cases to each division may be made as such court may deem expedient, but whenever all the judges of either division hearing a case shall not concur as to the judgment to be rendered therein, or whenever a case shall involve the constitutionality of an act of the general assembly or of an act of Congress, it shall be reserved to the whole court for adjudication. The judges of the Supreme Court in office when this amendment takes effect, shall continue to hold their offices until their successors are elected and qualified. (As amended October 9, 1883; 80 v. 382.)
Section 6. The Circuit Court shall have like original jurisdiction with the Supreme Court, and such appellate jurisdiction as may be provided by law. Such courts shall be composed of such number of judges as may be provided by law, and shall be held in each county, at least once in each year. The number of circuits, and the boundaries thereof, shall he prescribed by law. Such judges shall be elected in each circuit by the electors thereof, and at such time and for such term as may be prescribed by law, and the same number shall be elected in each circuit. Each judge shall be competent to exercise his judicial powers in any circuit. The general assembly may change, from time to time, the number of boundaries of the circuits. The circuits shall be the successors of the District Courts, and all cases, judgments, records and proceedings pending in said District Courts, in the several counties of any district, shall be transferred to the Circuit Courts in the several counties, and be proceeded in as though said District Courts had been abolished, and the District Courts shall continue in existence until the election and qualification of the judges of the Circuit Courts. (As amended October 9, 1883; 80 v. 382.)
This plan was presented on behalf of the association to the general assembly, and at its 1883 session a joint resolution was adopted to submit this proposition to amend the Constitution to the electors at the October election of that year, and at that election the same was adopted by the people and., became Sections 1, 2 and 6 of Article IV. of the Constitution.
Thus through the efforts of the State Bar Association the Circuit Courts were established, and I do not believe that any of those who worked so hard to procure the adoption of this amendment to the Constitution, or any of those who have ever had occasion to practice before this independent intermediate court, have ever had occasion to regret the change thus made, or to feel otherwise than grateful to those through whose energetic efforts it was brought about. At the next session of the legislature an Act was passed, April 14, 1884, to provide for the division of the State into circuits and the organization of Circuit Courts as follows:
The State shall be divided into seven circuits, of which the counties of
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Hamilton, Clermont, Butler, Warren and Clinton, shall constitute the First Circuit.
The counties of Preble, Darke, Shelby, Miami, Montgomery, Champaign, Clarke, Greene, Fayette, Madison and Franklin, shall constitute the Second Circuit.
The counties of Mercer, Van Wert, Paulding, Defiance, Williams, Fulton, Henry, Putnam, Allen, Auglaize, Wood, Hancock, Hardin, Logan, Union, Seneca, Marion, Wvandot and Crawford, shall constitute the Third Circuit. The counties of Brown, Adams, Highland, Pickaway, Ross, Pike, Scioto, Lawrence, Gallia, Jackson, Meigs, Vinton, Hocking, Athens, Washington and Monroe, shall constitute the Fourth Circuit.
The counties of Morrow, Richland, Ashland, Knox, Licking, Fairfield, Perry, Morgan, Muskingum, Coshocton, Holmes, Wayne, Stark, Tuscarawas and Delaware, shall constitute the Fifth Circuit.
The counties of Lucas, Ottawa, Sandusky, Erie, Huron, Lorain, Medina, Summit and Cuyahoga, shall constitute the Sixth Circuit.
The counties of Lake, Ashtabula, Geauga, Trumbull, Portage, Mahoning, Columbiana, Carroll, Jefferson, Harrison, Guernsey, Belmont and Noble, shall constitute the Seventh Circuit. By that Act it was provided that the Circuit Court should be held by three judges, a majority of whom competent to sit should be necessary to pronounce a decision, enter an order, judgment or decree; that the first election of Circuit Judges should be held at the October election of 1884, at which time three judges should be elected in each circuit; that immediately after the election the governor should determine, by lot, the terms of the judges elected in each circuit, so that one judge should hold office for two years, one for four and one for six years; and the term of office for the Circuit Judges was thereafter fixed at six years. In addition to the original jurisdiction conferred by the Constitution, the Circuit Court was given power to issue writs of superse-deas in any case, and all other writs not specially provided for nor prohibited by statute, when necessary for the exercise of jurisdiction in the due administration of justice, and that two terms of the Circuit Court should be held in each county in each year. All cases in the District Court were to be transferred to the Circuit Court, upon condition, in appeal cases, that a new bond was given, and all the provisions of the statutes as to the District Courts or a judge thereof were made applicable to the Circuit Court and the judges thereof. The result of the election in October, 1884, showed very clearly that the members of the legislature in fixing the boundaries of the different circuits had done so with due regard to the business to be done in each circuit, and without paying any attention to the political complexion of the circuit, as five of the seven circuits elected Republican judges, although the legislature which fixed the boundaries of the circuits was Democratic.
At this first election the following judges were elected in each circuit, their names being given in the order of their terms of office as determined under the provisions of the statute :
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First Circuit. Joseph Cox, Cincinnati ; James M. Smith, Lebanon ; Peter F. Swing, Batavia.
Second Circuit. Marshall J. Williams, Washington C. H. ; Gilbert H. Stewart, Columbus ; John A. Shauck, Dayton.
Third Circuit. Thomas Beer, Bucyrus ; John J. Moore, Ottawa ; .Henry W. Seney, Kenton.
Fourth Circuit. Thomas Cherrington, Ironton ; J. P. Bradbury, Pomeroy; Milton L. Clark, Chillicothe.
Fifth Circuit. John W. Allbaugh, Canton ; Charles Follett, Newark ; John W. Jenner, Mansfield.
Sixth Circuit. William II. Upson, Akron; Charles C. Baldwin, Cleveland ; George R. Haynes, Toledo.
Seventh Circuit. Peter A. Laubie, Salem ; William H. Frazier, Caldwell; Hamilton B. Woodbury, Jefferson.
At the next session of the legislature after the election an Act was passed, February 7, 1885, to revise and consolidate the statutes relative to the organization and jurisdiction of the Circuit and other courts. By this act it was provided that the judges of the Circuit Court should meet once a year in the city of Columbus, to fix the terms of the Circuit Court for the ensuing year and choose one of their number as Chief Justice for the next judicial year, who was to preside at their annual meetings, and who was given power to transfer judges of the Circuit Court from one circuit to another whenever occasion required. It also provided that in addition to the cases and matters specially provided for, an appeal might be taken to the Circuit Court, by a party or other person directly affected, from a judgment or final order in a civil action rendered by the Common Pleas Court and of which it had original jurisdiction, if the right to demand a jury therein did not exist, and from an interlocutory order made by the Common Pleas Court or a judge thereof, dissolving an injunction in a case of which it had original jurisdiction, by causing notice to be entered upon the record and giving a bond in appeal unless the party appealing was acting in a trust. capacity and had given bond in this State. A case on appeal was heard upon the same pleadings as in the court below, unless amendments were permitted or ordered by the Circuit Court. The Circuit Court was also given power to vacate or modify its own judgments or orders after the term at which the same was made, and all rules as to new trials were made applicable to the Circuit Court. Power was given to the Circuit Court or a judge thereof in his circuit to appoint receivers and issue injunctions in any cause pending in the Circuit Court of his circuit upon the proper application; and to issue a writ of habeas corpus in a proper case. It was also provided that 'a judgment rendered or final order made by the Common Pleas Court might bey reversed, vacated or modified by the Circuit Court, for errors appearing on the record. The Circuit Court was required to pass upon all errors assigned in the petition in error, and in every case where the judgment or order was reversed and remanded for a new trial the court was required in its mandate to the court below to state the error or errors found in
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the record upon wiii6 the judgment of reversal was based. The Supreme Court not being required in any case, except cases in which it had original jurisdiction, to pass upon the weight of the evidence, it followed that the Circuit Court was the final arbiter upon all questions of fact involved in cases coming before it, either upon appeal or error.
On the 10th day of February, 1885, the circuit judges met for the first time in the Supreme Court room in the city of Columbus, and Judge Marshall J. Williams, of Washington Court House, was elected Chief Justice in accordance with the provisions of the statute.
After the Circuit Court had been in existence for two years, it was found that the business of the Sixth Circuit was so large that it was necessary to create an additional circuit, and therefore, on March 21, 1887, the legislature amended the Act dividing the State into circuits, so as to provide for eight circuits, the counties of Cuyahoga, Summit, Medina and Lorain being taken from the Sixth Circuit to form the Eighth Circuit, and the counties of Williams, Fulton and Wood being taken from the Third Circuit and put into the Sixth. This Act provided that the circuit judge theretofore elected in the Sixth Circuit and at the time of the passage of the Act residing therein, as ()constituted by the Act, should continue to be judge of this circuit until the end of his term, and that the two judges of the Sixth Circuit theretofore elected therein, but at the time of the passage of the Act resident within the Eighth Circuit, as constituted by the Act, should be judges of the Eighth Circuit until the end of their term, and that at the November election, 1887, there should be elected two circuit judges for the Sixth Circuit, one to serve for five years and one for one year, and there should be elected in the Eighth Circuit one circuit judge for the term of three years.
The Circuit Court of the Sixth Circuit as constituted after the November election, 1887, was composed of Charles S. Bentley, Bryan; George R. Haynes, Toledo; Charles Scribner, Toledo; and the judges of the new Eighth Circuit Court were Charles C. Baldwin, Cleveland; H. J. Caldwell, Cleveland, and William II. Upson, Akron.
No other change has been made in the circuits since their organization, except that the county of Monroe was removed from the Fourth Circuit and placed in the Seventh Circuit by an Act of the legislature passed May 9, 1894. No attempt has been made to change the circuits for political reasons, the only changes being for the better transaction of business.
The circuit judges for the year 1897 are as follows:
First Circuit. Joseph Cox, Cincinnati; James M. Smith, Lebanon; Peter F. Swing, Batavia.
Second Circuit. Charles C. Shearer, Xenia; A. N. Summers, Springfield; Harrison Wilson, Sidney.
Third Circuit. James H. Day, Celina; James L. Price, Lima; Caleb II. Norris, Marion.
Fourth Circuit. Thomas Cherrington, Ironton; David A. Russell, Pomeroy; Hiram I.. Sibley, Marietta.
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Fifth Circuit. J. C. Pomerene, Coshocton ; J. J. Adams, Zanesville ; S. M. Douglass, Mansfield.
Sixth Circuit. E. B. King, Sandusky; George R. Haynes, Toledo ; Robert S. Parker, Bowling Green.
Seventh Circuit. William H. Frazier, Caldwell ; J. B. Burrows, Painesville ; Peter A. Laubie, Salem.
Eighth Circuit. John C. Hale, Cleveland ; Ulysses L. Marvin, Akron ; H. J. Caldwell, Cleveland.
Hon. Charles C. Shearer, of Xenia, was chosen Chief Justice of the Circuit Court of Ohio for the year 1897.
Of the judges who originally constituted the judges of the Circuit Courts of the various circuits, Judge's Marshall J. Williams and John A. Shauck, of the Second Circuit, and J. P. Bradbury, of the Fourth Circuit, have been elected judges of the Supreme Court of Ohio. Judges Charles C. Baldwin, of the Sixth Circuit, and afterwards of the Eighth Circuit, Hamilton B. Woodbury, of the Seventh Circuit, and Charles Scribner, of the Sixth Circuit, have died. The others not now members of the Circuit Court have returned to the practice of the law.
Soon after the establishment of the Circuit Court there was expressed among the lawyers of the State a great desire for the preservation of important decisions of the court, and a series of reports called the Ohio Circuit Court Reports was commenced, which will reach, during the year 1897, thirteen volumes.
The following is a list of all the judges of the Circuit Court from its establishment to the present time, with their terms of service :
Joseph Cox, Cincinnati, Feb. 9, 1885, to present time.
James M. Smith, Lebanon, Feb. 9, 1885, to present time.
Peter F. Swing, Batavia, Feb. 9, 1885, to present time.
Marshall J. Williams,* Washington C. H., Feb. 9, 1885, to Feb. 9, 1887.
Gilbert H. Stewart, Columbus, Feb. 9, 1885, to Feb. 9, 1895.
John A. Shauck,* Dayton, Feb. 9, 1885, to Feb. 9, 1895.
Charles C. Shearer, Xenia, Feb. 9, 1887, to present time.
James I. Allread, Greenville, Feb. 9, 1895, to Nov. 14, 1895.
Augustus N. Summers, Springfield, Feb. 9, 1895, to present time.
Harrison Wilson, Sidney, Nov. 14, 1895, to present time.
Thomas Beer, Bucyrus, Feb. 9, 1885, to Feb. 9, 1893.
John J. Moore, Ottawa, Feb. 9, 1885, to Feb. 9, 1895.
Henry W. Seney, Kenton, Feb. 9, 1885, to Sept. 8, 1896.
*Elected Judge of the Supreme Court.
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James H. Day, Celina, Feb. 9, 1893, to present time.
James L. Price, Lima, Feb. 9, 1895, to present time.
James K. Roth, Tiffin, Sept. 8, 1896, to Nov. 16, 1896.
Ebenezer B. Finley, Bucyrus, Nov. 16, 1896, to Feb. 9, 1897.
Caleb H. Norris, Marion, Feb. 9, 1897, to present time.
Thomas Cherrington, Ironton, Feb. 9, 1885, to present time.
Joseph P. Bradbury,* Pomeroy, Feb. 9, 1885, to Feb. 9, 1889.
Milton I.. Clark,§ Chillicothe, Feb. 9, 1885, to Feb. 9, 1897.
David A. Russell, Pomeroy, Feb. 9, 1889, to present time.
Hiram L. Sibley, Marietta, Feb. 9, 1897, to present time.
John W. Albaugh, Canton, Feb. 9, 1885, to Feb. 9, 1893.
Charles Follet, Newark, Feb. 9, 1885, to Feb. 9, 1895.
John W. Jenna,t Mansfield, Feb. 9, 1885, to Oct. 3, 1895.
Julius C. Ponierene, Coshocton, Feb. 9, 1893, to present time.
John J. Adams, Zanesville, Feb. 9, 1895, to present time.
George E. Baldwin, Canton, Oct. 5, 1895, to Nov. 18, 1895.
Charles H. Kibler, Newark, Nov. 18, 18' 5, to Feb. 9, 1897.
Silas M. Douglass, Mansfield, Feb. 9, 1897, to present time.
William H. Upson,‡:. Akron, Feb. 9, 1885, to Feb. 9, 1888.
Charles C. Baldwin,‡.§ Cleveland, Feb. 9, 1885, to Feb. 9, 1888.
George R. Haynes, Toledo, Feb. 9, 1885, to present time.
Charles S. Bentley, Bryan, Feb. 9, 1888, to Feb. 9, 1895.
Charles H. Scribner, Toledo, Feb. 9, 1888, to Feb. 22, 1897.
Robert S. Parker, Bowling Green, March 11, 1897, to present time.
Peter A. Lanbie, Salem, Feb. 9, 1885, to present time.
William H. Frazier, Caldwell, Feb. 9, 1885, to present time.
Hamilton B. Woodbury, Jefferson, Feb. 9, 1885, to June 19, 1895.
Jerome B. Burrows, Painesville, June 25, 1895, to present time.
Charles C. Baldwin.§ Cleveland, Feb. 9, 1888, to Feb. 2, 1895.
Hugh J. Caldwell, Cleveland, Feb. 9, 1888, to present time.
William H. Upson, Akron, Feb. 9, 1888, to Feb. 9, 1893.
John C. Hale, Cleveland, Feb. 9, 1893, to present time.
Ulysses L. Marvin, Akron, Feb. 16, 1895, to present time.
* Elected Judge of the Supreme Court.
++Changed to new Eighth Circuit.
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The following is a list of the Chief Justices of the Circuit Court, with times of service :
Marshall J. Williams, Washington C. H. 1885 and 1886.
James M. Smith, Lebanon. 1887 and 1888.
George R. Haynes, Toledo. 1889 and 1890.
William H. Upson, Akron. 1891 and 1892
Gilbert H. Stewart, Columbus. 1893 and 1894.
Milton L. Clark, Chillicothe. 1895 and 1896.
Charles C. Shearer, Xenia. 1897.
While the Circuit Court has not, perhaps, realized the hopes of some of its earnest advocates that its existence and high character would prevent many cases from going to the Supreme Court, and thereby lessen the work of this court and enable it to keep up with its work, there is no doubt that this intermediate court is no longer regarded as a mere resting place on the way to the Supreme Court, but being composed of men of such high intelligence and profound legal learning, with ample time to investigate causes submitted to them and with a disposition to devote their time to that purpose, that a case must be of such grave importance as to require the judgment of the highest court of the State upon it, or the litigants must have developed such a spirit during the litigation as that nothing but the decision of a court of last resort could stop their progress, before a case is taken from the Circuit Court to the Supreme Court. The records of the Supreme Court during the existence of the Circuit Court show that very few, comparatively, of the cases which have come to that court have been reversed or modified.
While there are some lawyers in the State who are of the opinion that there should he no intermediate court, this feeling only prevails with a very small number, and with the court, composed as it now is of able and learned judges, independent, removed from local and all other influences, and so long as it shall remain so, if it is given relief whenever the business in any circuit becomes too large for the judges to give it the proper attention, it is and will continue to be an ideal court, and most of the lawyers of the State, unless they change their present opinions, will advise their clients to end all litigation in the Circuit Court.
Putting aside the question of intermediate courts, the judicial system of Ohio is a model for all states where intermediate courts exist, and the practice as now formulated for those courts seems as nearly perfect as possible.
GILBERT H. STEWART.
EARLY COURTS OF THE MAUMEE VALLEY.
A HISTORICAL SKETCH.
BY JUDGE JOHN H. DOYLE, TOLEDO.
No incident or event connected with the early Bench and Bar of Lucas county, or of the northwestern counties of the State, is so old but that it remains vividly in the recollection of members of the profession still living. Tbat is a wonderful thing to contemplate. Lawyers who attended the first courts held under any organized division of the State embracing the territory of the Northwest, are able, with the eyes of the living, to see the magic growth of but little over a half century from swamp and wilderness to a great city, with its numerous thriving neighbors, magnificent farms, and population numbering hundreds of thousands. Lawyers who attended the first courts held in the county at which any business was attempted still attend upon the sessions of the same court, participate in its deliberations, and are able to pass in review every event in its half century's work, from its organization with half a dozen lawyers gathered from different parts of the State, its meager business disposed of in a few days in each of its semi-annual terms, to the overburdened dockets of the multiplied courts, its hundreds of lawyers and perpetual sessions of to-day. To write, therefore, of the early judiciary and of the early history of the Bar is necessarily to write, to some extent, of the living and of events which are within the short span of a man's business life; and the marvel I speak of is, that in the midst of a great city, the center of a great population surrounding it, and within the memory of its citizens, we can commence our record at absolutely the beginning.
Lucas county was organized in 1835, and became a part of the judicial subdivision then presided over by Judge David Higgins, of Norwalk, the first term of the Common Pleas Court being held on the 7th day of September of that year. The term was held by the associate judges, the presiding judge not being present. Judge Higgins first arrived in Toledo on the morning of April 27, 1836, where he was met by the three associate judges and opened court in a most formal manner. A grand jury was sworn and the men composing it were certainly among the most prominent citizens of the county. It is a fact which every lawyer recognizes, that with the growth of cities, the increase of wealth and business, and corresponding increase in the importance of matters litigated in the courts, the character of juries decreases
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in corresponding ratio. Not because the best citizens are not liable to jury duty. Not because intelligence and responsibility are not sought among the qualifications now, nor because of any fault in the system of the law ; but for the reason that business men are not willing to perform this important duty. Every excuse known to the law, and some not thus recognized, are resorted to for escape ; and the laxity of the courts in enforcing the law, their willingness to accept excuses from the unwilling, while so many are anxious to serve, has resulted in the growth of a class of " professional " jurors, who are rapidly bringing into disfavor a system, which, in my judgment, is indispensable to free government and the impartial administration of justice through the courts. At the April term, 1836, of the court, the only business transacted of a judicial nature was the following : On return by the grand jury of two indictments for petit larceny against John Wilson, his trial and conviction therefor followed, with sentence in each case to six days' imprisonment in jail, and a small fine. The sheriff, Cornelius G. Shaw, was amerced in the sum of $160 for failure to bring in the body of one Henry Morgan, a defendant in an action of assumpsit, in pursuance of a writ issued and a rule made requiring the sheriff to do so. Andrew Coffinbury, who then lived at Mansfield, was, on the opening of court, appointed prosecuting attorney, and for attending upon the grand jury, preparing the indictments and trying Wilson upon each indictment, he was allowed by the court the sum of $15.00. An entry was made in an ejectment case substituting Robert A. Forsyth and Smith Daggett as defendants in place of the mythical "Richard Roe."
One of the earliest cases tried grew out of the controversy between Ohio and Michigan over the disputed boundary line. After Ohio had asserted her right to territory to the Harris line, and had organized the territory into a county, an election was required to be held in Toledo, and Benjamin F. Stickney, Platt Card, and John T. Baldwin were selected as judges and accepted. This was a violation of a " Pains and Penalties Act" of the Michigan Legislative Council, which made it an offense to acknowledge any other authority than Michigan in the disputed territory, and was an overt act against Michigan authority. Major Stickney ,had attended the session of Congress of 1834-5 as an active worker and warm partisan of Ohio, and incurred the enmity of the people of Michigan therefor. In March, 1835, he visited Monroe, when, much to his surprise, he was arrested on a criminal charge, based on his serving as judge of the election a year before under the authority of Ohio, and was thrown into prison. He was detained until he obtained bail, which was required for his appearance at the next term of court. In July of the same year Governor Mason sent a force of 250 men to Toledo to arrest young Two Stickney, a son of the major, who was then in Columbus under the protection of Governor Lucas. They ransacked the major's house, and not finding young Stickney, concluded to arrest the " old rascal," and marched him off to Monroe. This expedition was under the command of Warner Wing, a lawyer who practiced in our courts after the question was settled. Major Stickney was again imprisoned, the charge against him being, after much consultation among
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the authorities, that of resisting an officer on the occasion of his former arrest. Bail was again exacted and given, but the major did not return to Monroe at the subsequent or any other term of their court, and his recognizance was forfeited, and judgment entered against his bondsmen. They commenced an action against him in this county, and at the April term of 1838 the case was tried and judgment rendered against the defendant, which was affirmed by the Supreme Court at the term thereof first held in the county, at which Judges Lane and Grimke presided. This much of the business of the court is given as a history of its early work and to give a basis of comparison with the magnitude of the business of to-day. The writer has often heard his father, who had been for some years a resident of the county, say he was one of the many who volunteered their services to Governor Lucas to protect the boundary by arms, and witnessed many of the exciting incidents of the time. Few of the lawyers whose names appear upon the records, and who attended the early sessions of the courts, were residents of Lucas county. Others came from Maumee, Perrysburg, Norwalk, Mansfield, Columbus; Wing & McClellan, from Monroe, Michigan. Osborn and Tilden moved early from Norwalk to Toledo, and became prominent in the Toledo Bar. Wade & Giddings, who were interested in some real estate speculations which brought them here frequently from Ashtabula county, bad some business in our courts. Ozias Bowen was from Marion. The field of the early lawyers' labors was much broader in area than now. They traveled from county to county in the circuit on horseback or in wagons for even the stage-coach had not been introduced in the "Black Swamp region" generally enough to afford reliable means of travel. The lawyer's bag (not always the orthodox green one of the profession) contained his wardrobe, his briefs and his library, the latter consisting mainly of Blackstone, Chitty and some work on pleading and precedents. Equipped with these he started on his pilgrimage. Nearly the same men met in the different counties and fought their legal battles, those associated to-day being pitted against each other to-morrow. They lived in taverns, played cards, enjoyed the usual social pleasures; discussed over again their cases and questions which arose in the trials; engaged in mental contest of wit and humor; and, obeying an unwritten law that existed and was recognized by every lawyer, were good natured, gentlemanly and courteous to each other, with rare and regretted exceptions.
Judge Ebenezer Lane lived at Norwalk. lie was the predecessor of Judge Higgins on the Common Pleas Bench, but had been transferred to the Supreme Court in 1830. Judge Grimke lived in Chillicothe. It is not the purpose of this article to give extended notice of any member of the Bench or of the Bar, and certainly not of those whose long and distinguished service on the Supreme Bench has become a part of the history of the State. The older lawyers speak with enthusiasm of the old Supreme Court, as it traveled over the State with such men as Sherman, Tod, Lane, Grimke and Hitchcock, as judges; and there is an evident sadness in the half concealed regret at the change that was