Ohio History Journal

MAJOR CALEB STARK IN OHIO.

 

 

GEORGE H. TWISS.

A biography of Governor Lucas and the outlining of an im-

portant and fiercely contested case through the Courts of Ohio,

in the form of a petition to the legislature, by the plaintiff, Major

Caleb Stark, appears in this issue of the Quarterly. They appear

in conjunction, since they both came from the same source, and

are unquestionably of the same authorship. The unique character

and vigorous ability, the distinguished and valuable service for

the State of Ohio by Governor Lucas, in this campaign paper

by a close and intimate friend, in full sympathy with his political

views, by a man trained to accuracy and fidelity to truth in state-

ment, -was never better set forth, or safer to be drawn from

by future historians.

Our attention was first called to this law case by a former

Judge of the Supreme Court of Ohio, referring to it as one of the

leading and important cases, decided by a Court of distinguished

ability and legal acumen, determining rights of property of great

value to Ohio, and accepted as authority since then by rulings of

other courts in numerous cases that have arisen in other States

and Territories.

On consultation with the State Law Library, it was found,

that the only record of this case, preserved by the State, was the

following brief synopsis:

John Stark's Lesses vs. Smith:-

Fifth Ohio Report Supreme Court, pp. 455.

Land granted A. and taken possession by B. whose possession is not

protected by the statue of limitations: Proof that B. purchased the

warrents of A. before their location, located them and paid taxes not

admissible to raise the presumption of a conveyance from A. to B.

Inquiry for further details in the case, in the form of peti-

tions, answers, etc., placed on file in such cases, developed the

fact that they were all lost by the burning of the "Old State

House."

(150)

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Major Caleb Stark in Ohio.            151

 

Being a kinsman and fellow townsman of the plaintiff in the

case was sufficient stimulus for hunting in every direction, that

time and means would admit, at odd hours and vacations, as

opportunity occurred, until a full history of the case was found

and obtained, all the details of which would require too much

space and introduce too much personal in its nature in this

connection.

The records of all proceedings in the lower courts at New

Philadelphia were most kindly and courteously placed before me,

old citizens who had vivid recollections of the excitement oc-

casioned, but from age at the time being in noway participants,

rendered every assistance in their power. Especially Dr. A. M.

Beard of New Comerstown, who is thoroughly familiar with

boundaries of the "Stark Claim" as it is known, and all the

residents living upon it, when my mission was made known,

hurriedly completed his rounds of visits to his patients, took me

in his buggy, pointed out the boundaries, embracing a tract of

country beautiful for situation and rich in its resources, went

with me to persons who were born and have always lived there,

but all their recollections were of too recent date to add much

vital to the records of the case.

The visit, however, did result in obtaining the fact that a

son of Hon. B. M. Atherton, Stark's Attorney, and a man eminent

in his profession, resided in St. Louis. But correspondence with

him, added only to previous disappointments, for the son wrote

that he had heard his father many times speak of this case and

refer to it as "the great effort of his life," but that all his papers

relating to his professional business were lost or destroyed.

Subsequent correspondence with the owners of the Stark

estate in Dunbarton, N. H., finally brought the information, that

filed away with other papers there were some relating to the Ohio

lands.

A journey to the Stark residence was met with a most kindly

and appreciative reception by Mr. and Mrs. Frederick Morris

Stark, to whom this most beautiful and interesting estate has come

by inheritance, and by them presided over with a grace, charm

and diligent care that makes admission to the grounds and home

a delight.

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152      Ohio Arch. and Hist. Society Publications.

The Stark Mansion, built nearly a century and a quarter

ago, remains without change or modification, filled with relics

of Colonial and Revolutionary times, preserved and kept in a

manner not paralleled in this country. A good sized trunk or

chest, filled with papers, documents and letters, was brought

down from the attic with full permission to spend the day in

looking them through to cull out and separate from them, all

that should be found to have relation to the Ohio lands. Here

was the lost treasure, searched for a decade, all preserved in such

detail as I could not have anticipated. A quick and ready recog-

nition these papers would secure safe keeping and an availability

to those naturally most interested they gave them over without

reserve to the care and custody of Ohio. They have all been

chronologically arranged and carefully mounted by the Archaeol-

ogical and Historical Society so as to be available for study by

law students or Ohio historians.

The collection shows clearly all the phases of a legal and

personal battle extending over a period of thirteen years, in-

volving destruction of property, vile personal abuse, menaced

attempts of assassination terminating at last in sacrifice of life by

the man contesting the case.

The courts finally secured to him a title in the land in ques-

tion but possession was gained with a severer struggle still. Ohio

has never known a contest like this or has a citizen rendered a

higher or nobler service to it. He left his beautiful home in

New England, a large family and a large and extended business,

and came to Ohio with the same high sense of duty as he had

entered into and fought through the American Revolution, in his

early life.

Major Stark, born with a rich inheritance of Puritan ob-

stinacy, Scotch pugnacity tempered by Quaker philanthropy-

the blood of Whittiers coursing his veins -a diligently acquired

education of the Lincoln type, was wonderfully well equipped

for the contest on which he entered to defeat and bring to naught

a combination of "land grabbers" organized in and of the Pennsyl-

vania type, bent and succeeding in seizing upon some of the most

valuable lands in Ohio, by the most unscrupulous means. He

fought not so much for himself and his posterity as to smash the

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Major Caleb Stark in Ohio.             153

 

machine in Ohio and practically terminate the execution of still

more extended designs in other States and Territories. To no

single man do the people of Ohio owe a larger debt of gratitude.

Overshadowed by the glamour of his father's military career

the valuable achievements of the son have been overlooked in our

historical annals and the Nation has failed to recognize the service

he rendered, both in military and civil life. If only what is here

presented, shall serve to stimulate any one in the future, to bring

before the country the strongest and best character in this family,

what he was and what he did - all the effort will be amply re-

paid for bringing before this Society his services for this State.

To the Hon. General Assembly, State of Ohio:

The petition and complaint of Caleb Stark respectfully shows

that he finds himself greatly aggrieved by the unprecedented in-

terference of the Court of Common Pleas for the county of Tus-

carawas in arresting and nullifying a judicial decree of the su-

preme court in his favor, and the same decree confirmed by the

court in bank, after solemn argument in both courts, as will be

seen by the report and order accompanying this Complaint No. 1.

In order that this honorable assembly may the more readily

comprehend the causes of complaint, it becomes necessary to ac-

company it with a brief statement of facts. Know, then, that the

congress of the U. S. granted to John Stark, for military services

850 acres of land; and to his son Archibald, 200 acres, who dying

without issue, John became his heir, and owner of the land, say

1,050 acres. James E. Smith, and James Johnson, pretending a

purchase, entered the same in August, 1801. Your petitioner was

ignorant of the transaction, till sometime in the year 1816; when

the Hon. Dudley Chace, a senator in Congress got some clue to

the transaction, and wrote on the subject: about the same time a

Mr. Lofland, (then of this place) wrote a similar letter: these were

followed by many other applications on the same subject. I im-

mediately returned answer to Mr. Lofland (who appeared an

agent for Col. Johnson) that if there was any sale or evidence of

conveyance, I would make them a title; but the whole tenor of the

answers left no doubt of fraud in the pretended purchase. Some

two or three years afterwards Mr. James E. Smith came from

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154      Ohio Arch. and Hist. Society Publications.

Philadelphia to my house in New Hampshire (as he said) pur-

posely to treat with me for a title. I answered him as I had

written--Show   me anything in the form   of a title, deed,

or conveyance and I will complete it. I further offered to go

with him to the house of General Stark (then alive) and only

eight miles distant, and if we could find any information that he

had ever sold his land or certificates, I would make him a title;

he declined going, although I offered him a conveyance, but ac-

cepted an invitation to dinner, tarried one and a half or two days

and returned in the stage as he came. In the meantime letters

continued pouring upon me from several quarters till 1824, when

I left my camp in N. H., came into this State, went on the land,

tarried about two hours and returned by way of Philadelphia,

where I saw Mr. Smith, who threatened me with the horrors of

a bill of chancery, unless I would make him a title: being a

stranger to a chancery process, I had not learned fear from men-

ace, and unfortunately spurned the threat, relying on the whole-

some laws of my country to save me from an unlawful demand;

and the following year, 1825, he put his threat in execution, by

notification in a New Philadelphia paper, and I might have been

ignorant of it until default, had not a gentleman of high standing

in this State, and the United States (to me a stranger), sent a

paper directed to him, by which I learnt the sender. I took

measures to obtain a copy, make an immediate answer and or-

der it removed to the circuit court U. S. It was so removed.

This was followed by a succession of continuances at the com-

plainant's desire until July, 1828, when the complainant "discon-

tinues his bill" without any attempt for trial. See U. S. Court

No. 2.

As twenty-four years had been allowed to procure testimony

and nearly four years in court, none being produced, the non-

suit was supposed to end the dispute. Not so, the trespassers

refused to quit the premises, an ejectment was brot against

them in common pleas, November term, 1828. Smith vouched

himself to defend the suit, and by various delays in the several

courts; sometimes want of evidence that was never produced,

and other frivolous pleas till September term of Supreme Court,

1832, when after full argument, the case was decided by a ver-

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Major Caleb Stark in Ohio.              155

 

dict in our favor. From this court it was carried to the court in

bank, the case reargued, and by the whole court the verdict was

confirmed, and an order issued to the court of Com. Pleas to

carry the judgment into execution - No. 3.

At the April term 1833, com. pleas by virtue of the above

order a Hab. fac. pos. was issued in favor of plaintiff on the ₄th

of April and put into the hands of the levying officer, he had pro-

ceeded to dispossess several of the trespassers, when on the 5th

the same court, issued an injunction to stay proceedings, and an

order to re-establish the trespassers in possession, and thus the

case now stands. See No. 3.

In issuing this order we contend that the com. pleas have

overleaped their authority by granting an injunction, for the

causes alleged in the complaint; because by taking the allegation

of the complainant, he has no legal title to the premises but is in

fact a trespasser: the legal owners have brot an action at Law,

& recovered accordingly before the supreme judiciary of the State.

By reference to the reports of the Supreme Court, we find

the following judgments applicable to this case, viz, Ohio reports

vol. 2, 268, 4, 5, 6. "Equitable title, cannot be set up against a

legal title and court necessary to determine if legal or equitable."

Vol. 2, 234, 5 "The laws of every well regulated State, provide

some way of conveying real property. I am aware that every

solemnity required by law, either in the contract or sale of land,

or in the deed for conveyance must be observed."

Vol. 3, 268. "Case fully tried at law, not relievable in equity

and in the same case court refused an injunction, or to sustain

the position and complainant. Reynolds vs. Reynolds."

Vol. 4. 492. Case of Leiby vs. Heirs of Ludlow. "Whether

the court at law erred in opinion, is not a subject of enquiry for a

Court of equity, nor whether a fair and impartial trial was had

at Law, unless the complainant can shew to the court that he

had a good defence at Law, and was prevented to avail himself of

it, by fraud, or pure accident."

Nothing of this kind is pretended in the complaint: Nothing

to shew even a shadow of title, conformably to law or equity. A

more tyrannical mandamus, nullifying the solemn decision of the

supreme court, confirmed by the court in bank after solemn argu-

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156      Ohio Arch. and Hist. Society Publications. ment on both sides:--see decree of the court, No. 1. Thus we are left after thirty years of preparation, and more than eight years in Law; one chan. bill, almost verbatim like the present,

abandoned without trial, when it could no longer be kept back; a verdict by a court of Law, confirmed by the court in bank, and we are now thrown back to the same position that we were in eight years ago.

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Major Caleb Stark in Ohio.             157

 

I cannot pass un-noticed one plea that is made in this same

chancery bill, that we think very extraordinary to be offered as a

title to land in the republican State of Ohio, Viz. see ₃d page

chancery bill; that the said John Stark, "having been very poor

for many years before his death," again page ₇.X "What were

the circumstances in life of said General Stark, for many years

before his death?" XX "Was he not very poor?" These are

doubtless the most powerful reasons that are offered for the

equitable title to the land. John Stark "was poor," yea, "very

poor," ergo the rich James E. Smith has an equitable title to his

military lands. This is a claim in equity, that we can neither

find precedent in the books, nor can we form any plea to rebut,

altho we believe that several such cases have taken place, but

they are not reported.

I have consulted several respectable attornies, and to further

my information, I laid the case before the court in bank, but none,

have known a similar case of an inferior court, in opposition of

Law, & legal reports, refusing to carry an order of the court in

Bank into execution.

Admitting this doctrine a correct rule, a case never can be

brought to issue. The supreme court in bank issues an order to

com. pleas, they refuse to carry the order into execution.

Thus a wealthy trespasser can drive a "poor, very poor"

owner out of court, if he can by any means gain the good will of

the Com. pleas.

But before I "give up the Ship," I must revert once more to

Constitutional ground. I find in the Constitution of this State:

-Sec. 8. Art. 7. "That all courts shall be open and every per-

son for any injury done him in his lands, goods, person, or repu-

tation shall have remedy by due course of Law, and right and

justice administered without denial or delay." Art. 8. "The

right of trial by Jury shall be inviolable." Art. 9. "That no

power of suspending the laws shall be exercised unless by the

legislature."

In the Magna Charta of our nation, (Declaration of Inde-

pendence) are found among the complaints against King George,

"He has obstructed the administration of justice," and again

"For depriving us in many cases of the benefits of trial by Jury."

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158      Ohio Arch. and Hist. Society Publications.   It will be seen by this transaction, that the powerful Tyrant and the impotent one are the same in practice; the people took arms to right themselves: to I peaceably appeal for the faithful ad- ministration of the Laws. Here the right of trial by jury has been violated, the law and that prompt justice required in the 7 article of the constitution effectually superseded. The vital importance of an honest, upright, & wise judiciary is acknowledged by all writers on Liberty & the rights of man as the guardian Palladium of their dearest & most important priv- ileges: and as liberty can only be preserved by a watchful vigi- lence of the conduct, and just judicial administration of our pub-

lic functionaries; it appears proper that every one should be re- strained within their legal and legitimate sphere of action. The false pride (or some other cause) of Judges to seek jurisdiction has rarely been known, but to seize it in this anomolous manner, is believed without precedent, in books or practice in Law. Admitting this principle & practice correct the common and Statute Laws becomes worse than a dead letter, because after a solemn trial, complying with all the rules of Law, in comes a chancery, and by the sovereign will of the judges of Corn. pleas, nullifies the eight years labor, learning and wisdom of the high- est judiciary of the State. If the suit had been intended for any other purpose than delay, it would doubtless have been brought

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Major Caleb Stark in Ohio.              159

 

to the Supreme Court, who are in possession of all the facts &

Laws-but the complainant & his counsel have avoided that court,

least a more summary decision should attend that course.

The case presents one of two theorems, either the supreme

court have erred in their official reports, or the Com. pleas have

usurped an authority beyond their province: but relying on the

superior wisdom, and legal attainments of the supreme court. I

therefore charge the com. pleas court with an unlawful and op-

pressive exercise of authority in refusing to execute the decree

and order of the court in bank.

On the justice of this hon. Legislature, I lean in expecta-

tion that they will extend their protection to the Law, to me -

and will that justice be done.

If the land is not ours let it be so determined, if it is, let us

be restored to our birthright, a birthright acquired in the tented

field fighting for the liberty that you now enjoy.

CALEB STARK.

No. 4. Bill chancery. 5. Ans. 6. Injunction bond.

ADDITIONAL REMARKS.

The foregoing petition and memorial being only designed to

call the attention of the legislature, to a consideration of the sub-

ject, not in expectation of judicial redress from it, but to enquire

if it is, or was, the intention of the law that the Corn. pleas should

interfere in a case like this, and nullify the doings of your highest

tribunal.

If they have this right, the Sup. Court in bank are wrong in

their decisions, and each Court may nullify the proceedings of

the other, and a perpetual controversy the result; or the property

left with the owner of the fullest purse.

On my application to the Court in Bank, after full delibera-

tion, they observed, "If they should grant a Quo Warranto, it

would be attended by injurious delay, as their Court had but one

session in a year; but that the legislature, was the proper tribunal,

as they could call for a summary hearing and correct the Com.

pleas (if found wrong) by a radical reform; whereas the Sup.

Court only pass and inflict a cin cure for contempt, and even the

extent of that not defined by law."

C. STARK.

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