Ohio History Journal

The Early Judiciary of Ohio.          141

 

 

THE   EARLY    JUDICIARY, EARLY LAWS AND BAR

OF OHIO.

 

A proper study of the early judicial system and early laws

of our State carries us to a period when, as a part of the great

Northwest Territory, we were under control of the Federal

Government.

On the 13th day of July, 1787, the Congress of the United

States passed the ordinance for "The Government of the Terri-

tory of the United States, Northwest of the River Ohio."

Relative to the judiciary, the ordinance provided, "There shall

be appointed a Court to consist of three Judges, any two of

whom to form a Court, who shall have a common law jurisdic-

tion, 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 dur-

ing good behavior. The Governor and Judges, or a majority of

them, shall adopt and publish in the district, such laws of the

original States, criminal and civil, as may be necessary, and best

suited to the circumstances of the district, and report them to

Congress, from time to time, which laws shall be in force in the

district until the organization of the General Assembly therein

unless disapproved of by Congress; but afterward, the Legisla-

ture shall have authority to alter them as they shall see fit."

The ordinance conferred no authority on the Governor and

Judges to make laws, but only to adopt and publish such of

those in force in the original States, as might be necessary and

suitable to the circumstances of the district. Acting under the

provisions of the ordinance, Congress on the 16th day of Octo-

ber, 1787, just one hundred and three years ago yesterday, ap-

pointed Samuel H. Parsons, John Armstrong and James M.

Varnum, Judges for the new territory. Judge Parsons was a

native of Connecticut, and a graduate of Harvard University.

He was admitted to the bar in 1759, and afterward served many

years as a member of the Connecticut Legislature. His bi-

ography credits him with the distinction of having "originated

the plan of forming the first Congress," which was the forerun-

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ner of the Continental Congress. He was a conspicuous figure

in the Revolutionary war, attaining the rank of Major-General.

He was also one of the military court which tried Major Andre

on the charge of being a spy. At the close of the war he re-

sumed the practice of his profession. In 1785 he was appointed

by Congress a Commissioner to treat with the Miami Indians,

and two years later, was appointed one of the Judges of the

new territory.

Judge Armstrong resigned after a few months' service on

the bench. He was born in Carlisle, Pennsylvania, and at the

beginning of the Revolutionary war was a student at Princeton

College, which he left to join the American Army. It is

charged that while he was in the army he wrote the celebrated

Newburg letters for the purpose of increasing the discontent

already existing among the officers, andwhich had grown to

such proportions that it required the personal efforts of General

Washington to quell it. After resigning his judicial position,

he retired to his farm, and for many years devoted himself to

the pursuit of agriculture. He was subsequently United States

Senator and Minister to France, and the author of several

standard works.

Perhaps the most able and brilliant of the three Judges,

who first presided over the courts of the Northwest Territory,

was Judge Varnum. He was a native of Massachusetts and a

graduate of Brown University, and like his associates on the

bench, was a soldier of the Revolution. At the close of the

war he resumed the practice of his profession and became the

leading lawyer of his State. He was a member of the Conti-

nental Congress, and was recognized by that body as "a man of

uncommon talents and most brilliant eloquence." There is a

published oration which he delivered at Marietta on the 4th day

July, 1788, while a member of the Territorial Court, which

fully sustains his reputation as an orator, and shows him to have

been of scholarly and historical attainments. No fact concern-

ing the judicial history of the Northwest Territory is more

clearly established, than that the Judges who constituted its first

court, were men of classical education and recognized ability as

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The Early Judiciary of Ohio.           143

 

lawyers, and thoroughly equipped for the discharge of their

judicial duties.

Upon the resignation of Judge Armstrong, Congress ap-

pointed John Cleves Symmes his successor. He was a native

of New York, served as a delegate in the Continental Congress,

and was a distinguished Judge in New Jersey at the time of his

appointment on the territorial bench.  As the appointments

which had been made by Congress, under the Articles of Con-

federation, expired upon the election of a president, Washing-

ton, after his election to that position, reappointed those persons

who had previously been appointed by Congress. Consequently,

Judges Parsons and Symmes were reappointed Territorial

Judges. At the same time William Barton was appointed to

the position made vacant by the death of Judge Varnum. Judge

Barton declined the position, and George Turner was appointed

to take his place. Shortly thereafter, Judge Parsons died, and

Rufus Putnam, so well known in American history as General

Rufus Putnam, was appointed his successor. He held the posi-

tion for several years, and then resigned to accept the office of

Surveyor General. He was succeeded on the bench by Joseph

Gillman. In 1798, Judge Turner resigned and Return Jonathan

Meigs was appointed his successor. He was a native of Con-

necticut, and a graduate of Yale College. His career was the

most brilliant and eventful in the cluster of names which adorn

the history of the Northwest territory. He afterward became a

Supreme Judge of Ohio, Governor of the State, United States

Judge in Michigan, a General in the war of 1812, a United States

Senator and a member of the Cabinet of Presidents Madison and

Monroe.

The Territorial Court, as organized under the provisions of

the ordinance of 1787, lasted till 1799. While some of the acts

adopted during this period were designed to meet the peculiar

demands of those early times, many of them embodied the prin-

ciples of a permanent and enduring judicial system.

The first law was passed by Governor St. Clair and Judges

Parsons and Varnum, and was entitled, "A law for regulating

and establishing the militia in the Territory of the United

States, Northwest of the River Ohio, published at the City of

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Marietta on the 25th day of July, in the Thirteenth year of the

Independence of the United States, and of our Lord, 1788, by

His Excellency, Arthur St. Clair, Esquire, Governor and Com-

mander-in-Chief, and by the Honorable Samuel Holden Parsons

and James Mitchel Varnum, Esquire, as Judges."

A difference of opinion arose between the Governor and

Judges concerning the extent of their powers in adopting laws,

the Governor maintaining that they could only adopt such laws

as were in force in some State; but the Judges out-voted the

Governor and the matter was subsequently referred to Congress,

which sustained the Governor's opinion. The second law which

was passed, provided for establishing county courts of Common

Pleas, and the power of single Judges to hear and determine

upon small debts and contracts, and for establishing the office of

Sheriff; and that there should be created in each county a Court

styled the General Quarter Sessions of the Peace, which was to

be held four times a year in each county. The act also provided

that a number of suitable persons, not exceeding five nor less

than three, should be appointed in each county and commis-

sioned by the Governor under the seal of the territory, to hold

and keep a court of record, to be styled the County Court of

Common Pleas, and that said court should be held at two fixed

periods in each county in every year and at the same places

where the general courts of Quarter Sessions were held. This

law was promulgated on the 23rd of August, 1788, and the first

court in the Northwest territory was the Court of Common

Pleas, which commenced on the first Tuesday of September of

the same year. The following interesting account of the open-

ing of this court, purports to have been given by one who wit-

nessed the ceremony:

"On that memorable first Tuesday of September, the citi-

zens, Governor St. Clair and other Territorial Officers and Mili-

tary from Fort Harmar being assembled at the Point, a proces-

sion was formed, and, as became the occasion, with Colonel

Ebenezer Sproat, Sheriff, with drawn sword and wand of office

at the head, marched up a path which had been cut through the

forest, to the hall in the Northwest Block House of Campus

Martius, where the whole counter-marched, and the Judges,

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The Early Judiciary of Ohio.           145

 

Putnam and Tupper, took their seats on the high bench.

Prayer was fittingly offered by our friend, the Reverend Manas-

seh Cutler, who was on a visit to the new colony, after which

the commissions of the judges, clerk and sheriff were read, and

the opening proclaimed in deep tones byColonel Sproat, in these

words: '0, yes! a court is opened for the administration of

even-handed justice to the poor and the rich, to the guilty and

the innocent, without respect of persons; none to be punished

without trial by their peers, and then in pursuance of the laws

and evidence in the case.' This was the opening of the Court

of Common Pleas. The Indian Chiefs, who had been invited by

Governor St. Clair to attend the convention, were curious wit-

nesses of this impressive scene."

On the second Tuesday of the same month was held the

first session of the Court of Quarter Sessions, of which Hildreth

says: " Court was held in the Southeast Block House occupied

by Colonel E. Batelle. It was opened with the usual proclama-

tion of the sheriff, but not until the commission of the judges

had been read by the clerk. General Rufus Putnam and General

B. Tucker were appointed justices of the quorum, and Isaac

Pearce, Thomas Lord, R. G. Meigs, assistant justices. Meigs

was clerk. Paul Fearing was admitted as an attorney to plead

in all the courts in Washington county, being the first lawyer

ever admitted to practice in the Northwest Territory. He was

also appointed by the Court attorney for the United States in

Washington county. The Grand Jury consisted of the follow-

ing person: William Stacy, Nathaniel Cushing, Nathaniel Good-

ale, Charles Knowles, Aselm Tupper, Jonathan Stone, Oliver

Rice, Ezra Lunt, John Matthews, George Ingersol, Jonathan

Devol, Samuel Stebbins, Jethro Putnam and Jabez True. Wil-

liam Stacy was made foreman. The charge to the jury was

given "with much dignity and propriety by Judge Putnam."

At one o'clock the Grand Jury retired and the Court adjourned

for thirty minutes. At half past one the Court again opened,

when the jurors entered and presented a written address to the

Court, which, after being read, was ordered to be kept on file.

Judge Putnam made a reply to the address. There being no

 

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suits before the Court, it was adjourned without day. This

closed the first Court of Quarter Sessions in the new territory."

One week after the publication of the law creating the Court

of Quarter Sessions, the act establishing a Probate Court was

promulgated. On the 6th of September, 1788, there was pub-

lished " a law respecting crimes and punishments." It defined

and provided the punishment for treason, murder, manslaughter,

arson, burglary with theft, burglary with personal violence,

burglary with homicide, robbery, riots and unlawful assemblies,

perjury, subornation of perjury, punishment for obstructing

authority, receiving stolen goods, larceny, forgery, usurpation,

assault and battery, and drunkenness, the penalty for the last

offense being a fine in the sum of five dimes for the first offense,

and for every succeeding offense the sum of one dollar, and " in

either case upon the offender's neglecting or refusing to pay the

fine, he was set in the stocks for the space of one hour."

The act also contained the following provisions concerning

the use of improper and profane language:

"WHEREAS, Idle, vain and obscene conversation, profane

cursing and swearing, and more especially the irreverently men-

tioning, calling upon or invoking the sacred and Supreme Being,

by any of the divine characters in which He hath graciously

consented to reveal His infinitely beneficent purposes to man-

kind, are repugnant to every moral sentiment, subversive of

every civil obligation, inconsistent with the ornaments of pol-

ished life, and abhorrent to the principles of the most benevolent

religion. It is expected, therefore, if crimes of this kind should

exist, they will find no encouragement, countenance or approba-

tion in this territory. It is strictly enjoined upon all officers and

ministers of justice, upon parents and other heads of families,

and upon others of every description, that they abstain from

practices so vile and irrational; and that by example and pre-

cept, to the utmost of their power, they prevent the necessity

of adopting and publishing laws, with penalties, upon this head.

And it is hereby declared that government will consider as un-

worthy its confidence all those who may obstinately violate these

injunctions."

And the following relative to the religious observance of the

Sabbath:

"WHEREAS, Mankind in every stage of informed society,

have consecrated certain portions of time to the particular culti-

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The Early Judiciary of Ohio.           147

 

vation of the social virtues, and the public adoration and wor-

ship of the common-parent of the universe; and whereas, a

practice so rational in itself, and conformable to the divine pre-

cepts is greatly conducive to civilization and piety; and whereas,

for the advancement of such important and interesting pur-

poses, most of the Christian world have set apart the first day

of the week as a day of rest from common labor and pursuits, it

is, therefore, enjoined that all servile labor, works of, necessity

and charity only excepted, be wholly abstained from on that

day.

Among other important acts which were adopted was one

directing the building and establishing of a court house, county

jail, pillory, whipping-post and stocks in every county.

Another, subjecting real estate to execution for debt. In

Chase's Statutes appears this foot note:  "These laws from

Chapter 37 to Chapter 74, inclusive, have been commonly known

to the profession as the 'Maxwell Code.' They were adopted

and published in Cincinnati in 1795 by Governor St. Clair and

Judges Symmes and Turner."

Another was a law to prevent unnecessary delays in causes

after issue joined. Still another, limiting the time of com-

mencing civil actions and instituting criminal prosecutions, was

passed December 28, 1788. "This law," says Chase, "was dis-

approved by Congress, May 8, 1792." Another law on the same

subject was adopted in 1795, which was repealed by the terri-

torial legislature as unconstitutional. No law on this subject

was afterward enacted until 1803, when the state legislature

passed an act of limitation.

An act of special interest to the legal profession of the

present day regulated the fees of the officers of the court, in-

cluding attorneys. It allowed a judge in the general court, for

allowing a writ of error, sixty-two and one-half cents; for every

supersedeas, thirty-seven and one-half cents; the same for taking

bail; for taking an affidavit, twelve and one-half cents; admit-

ting a counselor-at-law, or attorney, one dollar and twenty-five

cents; licensing a counselor-at-law, or attorney, three dollars and

seventy-five cents.

The following were some of the fees allowed the Attorney-

General: Entering every cessal processus or nolle prosequi for

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each defendant, sixty-two and one-half cents; every indictment

per sheet, eighteen cents; fee on trial, three dollars; for trial of

every capital cause where life was concerned, eight dollars.

To attorneys in a general court, it allowed for a retainer fee,

three dollars and fifty cents, but where several suits were

brought upon one note or bond, no more than one retainer fee

was allowed; drawing warrant of attorney, twenty-eight cents;

drawing of processus and returns, twelve and one-half cents; for

argument on special motion, one dollar and twenty-five cents,

while to attorneys in the Court of Common Pleas, it allowed the

following: Drawing warrant of attorney, twelve and one-half

cents; every motion, twenty-five cents; drawing a declaration

and other pleadings, per sheet, containing seventy-two words,

twelve and one-half cents, and every copy thereof, six cents per

sheet.

This act distinguished between counselors-at-law and at-

torneys-at-law, and between the practitioner at the General

Court and the Common Pleas Court. By the year 1790, the

business of the courts had grown to such an extent that an act

was passed increasing the number of terms of the Common

Pleas Court in each year from two to four, and the number of

Common Pleas judges to not less than three or more than seven.

Other important acts were adopted, such as the act regulat-

ing marriage, a law for the partition of lands, a law respecting

divorce, a law authorizing the judges to subdivide the counties

into townships; and here we find for the first time in our judicial

history a recognition of those small political subdivisions.

The ordinance of 1787 provided, that as soon as it was

proven that there were five thousand free male inhabitants of

lawful age in the district, they should be authorized to elect rep-

resentatives to the general assembly. How the proof was to

be made does not appear, but in 1798, Governor St. Clair issued

his proclamation that the territory contained the requisite num-

ber of free male inhabitants, and called upon the people to elect

representatives, the proportion of representatives being one to

every five hundred voters; but no one could be a representative

unless he had been a citizen of the United States for three years

and a resident of the district, or unless he had resided in the

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The Early Judiciary of Ohio.         149

 

district for three years, and in either case he must own in fee

simple two hundred acres of land within his district.

The general assembly consisted of the Governor, a legisla-

tive council, and a House of Representatives. The council con-

sisted of five members, who held their office for five years, unless

sooner removed. They were selected in the following manner:

The representatives who were elected by the people met at the

time and place designated by the Governor, and nominated ten

persons, each of whom were required to be a resident of the

district and possess a freehold estate in five hundred acres of

land, and the names of these ten persons were sent by the repre-

sentatives to Congress, and Congress selected five out of the ten

and appointed them to serve as members of the council. The

members of the council and house of representatives met at Cin-

cinnati on the 16th of September, 1799, and organized the first

general assembly of the Northwest territory, at which time the

authority of the Governor and judges to adopt and promulgate

laws ceased, and the territory was thereafter governed by laws

passed by the territorial general assembly. Edwin Tiffin was

elected Speaker of the House of Representatives and Henry

Vanderberg was elected President of the Council.

In commenting upon the character, ability and general

worth of the men who constituted this general assembly, Judge

Burnett, in his notes on the Northwest Territory, says: "In

choosing members to the first territorial legislature, the people

in almost every instance selected the strongest and best men in

their respective counties. Party influence was scarcely felt, and

it may be said with confidence, that no legislature has been

chosen under the State government which contained a larger

proportion of aged intelligent men, than were found in that

body. Many of them, it is true, were acquainted with the forms

and practical duties of legislation, but they were strong-minded,

sensible men, acquainted with the condition and want of the

country, and could form correct opinions of the operation of any

measure proposed for their consideration.

One of the most important duties which devolved upon the

assembly was to elect a representative of the territory to the

National Congress. William Henry Harrison and Arthur St.

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Clair, junior, were the candidates. The former received twelve

votes, while the latter received ten. Mr. Harrison was accord-

ingly declared elected.

The first act passed at this session of the general assembly,

was one approving and declaring to be in force, certain acts

which had previously been adopted by the Judges and the Gov-

ernor.

The second act passed-which was on the 29th of October,

1799-was one regulating the admission and practice of attor-

neys and counselors-at-law, the first section of which provided

for the applicant obtaining a license to practice, from the Gov-

ernor of the territory, which admitted him to practice as an

attorney-at-law according to the laws and customs of said terri-

tory, during his good behavior, and authorized him to receive

such fees as might be established; and required all judges, jus-

tices, and others concerned to respect him accordingly; but he

could not receive such license from the Governor until he had

obtained a certificate signed by two or more of the judges of the

general court, setting forth that he had been regularly examined;

but before he could be examined, he was required to produce a

certificate that he had regularly and attentively studied law

under the direction of a practicing attorney, residing within the

territory for the period of four years. This act, like the one

adopted by the Governor and Judges, retained the distinction

between counselor and attorney-at-law, and their admission to

practice at the general term and Court of Common Pleas. It

gave the judges of the General court, and of the several Com-

mon Pleas courts, power to punish in a summary way, according

to the rules of law and the usages of the courts, any and every

attorney or counselor-at-law who should be guilty of any con-

tempt in the execution of his office, and every attorney or coun-

selor-at-law who received money for the use of his client and re-

fused to pay the same when demanded, could be proceeded

against in a summary way, on motion.

On November 3, 1800, the second session of the first gen-

eral assembly met at Chillicothe and adjourned on the 9th of De-

cember following.

The second general assembly held its first session at Chilli-

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The Early Judiciary of Ohio.          151

 

cothe, commencing on the 23rd of November, 1801, and ending

on the 23rd of January, 1802. Edward Tiffin was again elected

Speaker of the House of Representatives, and Robert Oliver

was elected President of the Council.  Notwithstanding the

assembly adjourned to meet in November following, a second

session was never held, for the reason that soon after the

adjournment of the first session, a census was taken of the

population of the Eastern Division of the territory, and it was

found that it exceeded forty-five thousand persons. Thereupon,

an appeal was made to Congress, that the inhabitants of the

Eastern Division be authorized to call a convention and form a

constitution with the view of establishing a State government.

Congress passed an act authorizing the convention to be held,

and as the result, a constitution was adopted and a State formed,

and admitted into the Federal Union.

The convention which framed the first Constitution of our

State met at Chillicothe on the first Monday of November, 1802.

It was expeditious in its work, for on the 29th of the same

month it adjourned, having adopted a Constitution without sub-

mitting it to the people for ratification. Concerning the judiciary

it contained the following clause: "The judicial power of the

State, both as to matters of law and equity, shall be vested in a

Supreme Court, Court of Common Pleas for each county, in

Justices of the Peace, and in such other courts as the Legislature

may, from time to time, establish.

It further provided, that the Supreme Court should consist

of three judges, auy two of whom should be a quorum; that

they should be appointed by a joint ballot of both Houses of the

General Assembly, and should hold their office for the term of

seven years, if so long they behaved well.

The first General Assembly of the State of Ohio convened

at Chillicothe on Tuesday, March 1st, 1803.  On the 15th of

April following, it passed a general act providing for the organi-

zation of "Judicial Courts," and abolished all courts which had

been established during the existence of the Territorial Govern-

ment. During the session, the convention elected the following

State officers: William Creighton, jr., Secretary of State;

Thomas Gibson, Auditor; William McFarland, Treasurer, while

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Return Jonathan Meigs, jr., Samuel Huntington and William

Sprigg were elected Judges of the Supreme Court, and Francis

Dunlavey, Wyllys Sillman and Calvin Pease, Judges of the Dis-

trict Courts.

The second General Assembly met on December 5th, 1803.

On February 18, 1804, it amended the act of the first General

Assembly providing for the organization of the courts. On the

same day it passed an act " regulating the duties of Justices of

the Peace and Constables, in criminal and civil cases," making

their jurisdiction co-extensive with their counties in criminal

matters, and with their townships in civil causes, which is still

the provision of our statutes. It also prescribed the forms which

should be used by the Justices in their practice, and with little,

if any change, they are still used.

The third General Assembly began its session on December

3, 1804. The first act which it passed related to crimes and pun-

ishments. On the 12th of February, 1805, a general act was

passed defining the duties of Justices of the Peace and Con-

stables, and repealing all former laws in force on that subject.

Among other things, this act provided that Justices should have

jurisdiction in civil cases to the amount of fifty dollars without

the right of jury trial.  Subsequently, Judges Huntington

and Todd of the Supreme Court, and Pease of the Common

Pleas Court, who afterward was on the Supreme Bench, held

this provision of the law to be in conflict with that section of the

Federal Constitution, which provides that " in suits at common

law when the value in controversy shall exceed twenty dollars,

the right of trial by jury shall be preserved." The court also

held the act to be in conflict with that clause of the State Con-

stitution providing that "the right of trial by jury shall be in-

violate." Out of this decision arose a most interesting and ex-

citing proceeding.  The indignation of the public toward the

Judges who rendered the decision, was violent and almost unre-

strained. It was asserted that the judicial branch of the gov-

ernment was invading the domain of the legislature, and assum-

ing legislative powers, and such conduct was not to be tolerated

even from the Supreme Court. In consequence of the bitter

feeling among the members of the General Assembly, that body

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The Early Judiciary of Ohio.          153

 

undertook to impeach the Judges who had rendered the decision.

The records of the proceedings show that on December 24, 1808,

the following message was sent from the House of Repre-

sentatives:

"The House of Representatives having instructed the man-

agers appointed to conduct the impeachment against Calvin

Pease, Esquire, President of the Third Circuit of the Court of

Common Pleas of this State, to proceed to the bar of the Senate

with the articles of impeachment against the said Calvin Pease,

Esquire, and there demanded that the said Calvin Pease, Es-

quire, be put to answer the said articles of impeachment ex-

hibited against him." Committees were then appointed to pre-

pare and report the method of proceeding in the conduct of

the trial. On December 27, the Managers on the part of the

House, took seats assigned them  within the bar, and the

Sergeant-at-Arms made proclamation of the trial in the follow-

ing words: "0, yes! 0, yes! 0, yes! all persons are commanded

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 of the Third Circuit." The articles were then

read. In the course of the trial, the Sergeant-at-Arms was

directed by the Speaker to call Calvin Pease, Esquire, three

several times in the following manner, to appear and answer:

"Hear ye, Hear ye, Hear ye, Calvin Pease, President of the

Court of Common Pleas of the Third Circuit, come forward and

answer the articles of impeachment exhibited against you by the

House of Representatives." Articles were drawn up against

each of the Judges. The one against Pease contained three

distinct charges, while that against Todd contained but one.

Judge Harrington in the meantime had been elected Governor,

and for that reason the charges against him were not pressed.

The accused were each furnished copies of the charges and then

filed their answers. Several days were spent in the trial. In the

Senate Journal of 1808-9 appears this short, but interesting

record: "High Court of Impeachment, Monday, February 6th.

The State of Ohio vs. Calvin Pease." The court was opened

by proclamation. Ordered, that the Clerk notify the House

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of Representatives that the Senate is in their public chamber

and ready to proceed farther with the trial of impeachment of

Calvin Pease, President of the Courts of Common Pleas of the

Third Circuit of this State. The Managers accompanied by the

House of Representatives, attended. The respondent with his

counsel also attended on the first article of impeachment.

The clerk took the opinion of the members of the court,

respectively, in the form following: Mr. -, how say you,

is the respondent, Calvin Pease, guilty or not guilty, of the

high crime or misdemeanor as charged in the first article of

impeachment?" The respondent was unanimously acquitted on

the first charge. The Clerk then took the opinion in the same

way of each member on the second article of impeachment.

Fifteen members voted "guilty " and nine "not guilty". Where-

upon, the Speaker declared that "Calvin Pease, President of the

Courts of Common Pleas of the Third Circuit of this State, is

acquitted of all the charges contained in the articles of impeach-

ment exhibited against him by the House of Representatives,"

and the court adjourned without day. The proceedings against

Judge Tod were then commenced and lasted several days, the

vote standing as it did in the case of Judge Pease.

The business of the courts kept pace with the rapid com-

mercial developments of the new State and the increase in its

population. The members of the Supreme Court were required

to travel the circuit, and as there were no carriages or railroads,

they were compelled to go on horseback, and in the absence of

the modern turn-pike or even the old corduroy road, the journey

was undesirable and frequently hazardous.

For many years the annual salary of a Supreme Judge was

only eight hundred dollars, but neither the corduroy roads nor

the small salary were permitted to stifle the social side of the

court, and there is abundant evidence that the good nature of

the dignified judges sometimes manifested itself in ways that

were calculated to develop social amenities at the expense of ju-

dicial gravity. I am indebted to Senator Sherman for the follow-

ing incident, who recently related it to me and authorized its use

in this connection. Judge Hitchcock had often said that circum-

stantial evidence was stronger than direct evidence, for the rea-

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The Early Juniciary of Ohio.          155

 

son that " witnesses will lie and you can not prevent it, but cir-

cumstantial evidence never lies." It was one of the Judge's

peculiarities that he was greatly averse to card playing. Once

when the Judges were holding court in Columbus, they all occu-

pied one room at the hotel. One evening after Judge Hitchcock

had retired, several members of the bar called, and "old sledge"

and "whiskey poker" were indulged in until a late hour. When

the callers had departed, one of the judges opened Judge Hitch-

cock's valise, and taking out a soiled garment wrapped it around

a well-worn pack of cards, and then replaced it in the valise.

The next day the judges went to their homes, when Mrs. Hitch-

cock (as the Judge afterward told the other members of the

court) opened his valise for the purpose of getting his wash, and

was horrified at discovering the pack. She was convinced that

the Judge had learned to "play," and in great distress went to

him and said: " Peter, Peter, what have you been doing? It is

too bad, and I never would have thought it of you; see what I

have found in your shirt!" At the same time exhibiting the

cards. Judge Hitchcock told it to the other judges as a joke,

when one of them remarked that it might have been a joke, but

the circumstantial evidence seemed complete. The judge saw

the point and thereafter had less to say about the weight of such

testimony.

In the preface to Wright's Reports is the following state-

ment made by that excellent judge, relative to the labors of the

Supreme Court at that time: " The Supreme Court of Ohio is

now composed of four judges, the largest number the Constitu-

tion permits. The Constitution requires a court to be holden

once a year in each county, and makes any two of the judges a

quorum. A legislative act imposes upon the judges the duty of

holding every year a court in bane at the seat of government.

* * * The principal result of this organization of the court

is, that the Supreme Court is generally held in the several coun-

ties by two judges only. The judges relieve one another to suit

their own convenience, so dividing their labor that each may per-

form one-half of the circuit duty. The duties imposed on this

Court are so great as to make this relief necessary, for it would

be difficult to find men of sufficient physical ability to partici-

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156       Ohio Arch. and His. Society Publications.  [VOL. 3

 

pate in all of them. These judges now hold court in seventy-

two counties each year, requiring 2250 miles travel. The num-

ber of cases on their trial dockets in 1834 was 1459. The judges

are occupied in bane from three to four weeks annually. If that

time and Sundays are deducted from the year and the usual

allowance is made for travel, the Court, to clear its docket,

would be under the necessity of deciding on an average, about

seven cases a day for each remaining day of the year."

To relieve the pressure upon the courts it became necessary

to increase the number of Supreme Judges and to create new

Courts of Common Pleas. There were thirty Judges of the

Supreme Court under the old Constitution, which covered a

period of forty-nine years. The decisions of the Court were not

published by legislative authority and in permanent form until

1823, when the first volume of the Ohio Reports was issued.

The earlier judges who graced our Supreme bench were

Huntington, Meigs, Sprigg, Todd, Symmes, Scott, Morris,

Irwin, Brown and Pease, two of whom, Huntington and Meigs,

were afterward Governor of the State. Following these were

McLean, afterward a Cabinet officer and a Justice of the

Supreme Court of the United States; then Couch, and Burnett,

who was afterward a United States Senator; and Hitchcock, who

occupied the position for twenty-eight years-longer than any

man before or since his time. Then came Sherman, the father

of the General and Senator, who died while on the bench, at the

early age of forty-one. Then Gustavus Swan, the uncle of Jos-

eph R. Swan, who was on the same bench under the new Con-

stitution; then Hayward, Goodenow, Brush, Wood and Wright.

They were followed by Collet, Lane, Grimke, Birchard, Read,

Avery, Spalding, Caldwell and Ranney. These were all able

judges, but some of them were especially eminent, and their

opinions made the Court distinguished throughout the entire

country. But the reputation of the bar was equal to that of the

bench, and many of the greatest lawyers of our State practiced

under the old Constitution. Among the earlier names which be-

came illustrious was that of William Creighton, of Chillicothe.

He was educated at Dickinson College; where he was a fellow-

student of the great Tanney, afterward Chief Justice of the

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The Early Judiciary of Ohio.          157

 

United States. He was especially distinguished as a jury law-

yer. He served many years in Congress, and was an intimate

friend of Daniel Webster. I have heard it said that if Mr. Web-

ster had reached the Presidency, Mr. Creighton would have been

a member of his Cabinet.

Another great member of the Chillicothe bar was Benjamin

F. Leonard. He was a man of profound learning in the law and

all kindred subjects. Then came a cluster of names which will

forever remain unsurpassed for their learning, eloquence and

wit, every element, in fact, which enters into consideration in

the make-up of a great lawyer. Among them was Samuel F.

Vinton. Like others who helped to make our State illustrious,

he was born in New England. He graduated at Williams Col-

lege and settled in Gallipolis in 1816. He was elected a Repre-

sentative in Congress in 1823 and served for fourteen years. He

was again elected in 1843 and served eight years, in all a period

of twenty-two years. His greatest legal effort was his argument

in the case of the commonwealth against Garner and others, be-

fore the Supreme Court of Virginia, in 1845. Peter M. Garner,

Mordecai Thomas and Graydon J. Loraine were citizens of the

State of Ohio, while John H. Harwood resided in Wood county,

Virginia, and was the owner of slaves. On the 9th of July,

1845, some slaves, intending to escape from Harwood, crossed

over the Ohio River in a canoe to the Ohio shore, where said

Garner, Thomas and Loraine met them and were in the act of

assisting them from the canoe and up the river bank, when they

were all arrested, taken to Virginia, imprisoned, and subse-

quently indicted. As the arrest was made on the Ohio side

of the river, the only question in the case was, what was the

extent of Virginia's jurisdiction over the rivers.  The case

attracted national attention. Mr. Vinton, in his argument,

claimed that the jurisdiction of Virginia did not extend on the

north side of the river beyond low water mark. He asserted

that Virginia never had an ownership in the Northwest Terri-

tory, first, because the charter which King James granted in

1609, and which was claimed as the source of Virginia's title,

did not include land which lay beyond the Ohio, or west of the

Allegheny Mountains; and, second, if the grant was originally

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158       Ohio Arch. and His. Society Publications.  [VOL. 3

 

broad enough to embrace the land lying within the Northwest

Territory, the charter which the King granted to Virginia had

been revoked by the Court of King's Bench in 1824, " when a

judgment was rendered against the corporation, canceling the

patent and ordering the franchises of the charter resumed by

the crown."

The argument of Mr. Vinton in this case will always be

classed among the greatest arguments of the greatest American

lawyers. As an historical production it was overwhelming, and

absolutely unanswerable. It was delivered to twelve judges,

and by a majority of one, the decision was in his favor. Simeon

Nash of Gallipolis was also a distinguished lawyer and judge,

but his reputation chiefly rests upon being the author of Nash's

Pleadings. William Allen of Chillicothe was another man who

won his way to distinction at the bar. He afterward was United

States Senator and Governor of Ohio.

Greatest, perhaps, of all, were Ewing, Stanbury and Corwin.

Whether their fame rests wholly upon their distinction at the bar

or not, it is certain they fill the largest horizon and occupy the

greatest places in history of any lawyers which our State has

produced. Each rose from humble birth to a place in the Na-

tion's cabinet; and great as they all were, each was without a

peer in his especial field.

Ewing's intellect was strong and rugged. He would have

been a great natural lawyer had he never seen a law book, a

great logician had he never seen a work on logic. Nature made

him to be an expounder of the law. If his arguments were

somewhat devoid of ornament, it was because they needed no

ornament; they were too great to be ornate.

Mr. Stanbury was a broader scholar than Mr. Ewing. Mr.

Ewing was master of the rough logic of nature, while Mr. Stan-

bury was always equipped in the armor of the books. He was

a thorough student of the law, and always knew the decisions

of the courts. Strong as he was in this particular, another ele-

ment of his strength was his unrivaled eloquence and the purity

of his diction.

Mr. Corwin was not the equal of either Mr. Ewing or Mr.

Stanbury as a lawyer in the strict sense of that word. Neither

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The Early Judiciary of Ohio.           159

 

were either of them his equal in his special adaptation. It is

questionable if he ever had a superior as an advocate before a

jury. The burning eloquence and impassioned oratory with

which he swayed a popular audience - at one time making his

hearers weep, in the next convulsing them with laughter, and

then in an instant filling them with awe at the grandeur and

sublimity of his rhetoric-was always at his command in the

trial of a jury cause.

Among the many members of the legal profession who came

in an early day to our young State and made it their future home

and afterward became famous lawyers, Salmon P. Chase was the

most conspicuous. His edition of the Revised Statutes of Ohio

was an invaluable compilation, and could not have been prepared

by any but the most careful and thorough lawyer. It contains a

preliminary history of Ohio which is the best ever written. The

career of this great man fully sustained the promise of his early

life. He was a member of President Lincoln's Cabinet, and for

many years was a conspicuous figure in the Republic, and died

as the Chief Justice of its Supreme Court, the peer of his illus-

trious predecessors.

It would be interesting to mention the great judges who

have adorned our Supreme Bench under the present Constitu-

tion, among whom Ranney and Thurman would be entitled to

special notice; and also interesting to dwell at length on the

many lawyers who have risen to eminence and fame since the

adoption of that instrument; among whom are Stanton, Waite,

Swayne, Matthews, Groesbeck, Perry, Hoadly, Pugh, Hunter,

Taft, Harrison, Boynton, Shellebarger, Hutchins, West, Ambler

and others; but my theme relates to our early judiciary and early

bar, and precludes me from coming beyond the adoption of the

present Constitution. Much as Ohio has to be proud of, and

great as her position is in the National Union, nothing has con-

tributed more to her greatness and the permanency of her insti-

tutions, than her early judiciary and early bar.

DAVID K. WATSON.

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160       Ohio Arch. and His. Society Publications.  [VOL. 3   Following Mr. Watson's address, several short speeches were made, after which Mr. Graham repeated somewhat briefly his illustrated address on the " French Discoveries and Claims in America." This done, a reception was held, and the exercises for the day closed. The next day, the Sabbath, the Centennial day, was properly and fittingly observed in all the churches. In the afternoon, in the opera house, Rev. Washington Gladden preached the anniversary sermon. This sermon, as well as ab- stracts of those preached in the pulpits of the city churches, conclude this part of the volume.

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