Ohio History Journal

THE DEVELOPMENT OF THE JUDICIAL

SYSTEM OF OHIO

 

By PROF. F. R. AUMANN, Ohio State University.

 

Before Statehood.--Any attempt to discuss the

growth of the judicial system of this State would carry

us back to the time when Ohio as a part of the North-

west Territory was controlled by the Federal Govern-

ment. On July 13, 1787, the Congress of the United

States passed the "Ordinance for the Government of the

Territory of the United States Northwest of the River

Ohio." Although this government applied to the whole

Northwest Territory, its first actual test was in the Ohio

country.

As provided for by the Ordinance, government was

a rather simple affair. Executive power was vested in a

governor; judicial power in a general court, composed of

three judges; and legislative power in the governor and

judges, acting as a legislative council. The Ordinance

also provided for the establishment of tribunals, inferior

to the general court, and for the appointment of subordi-

nate officers.¹

The General Court merits immediate attention as it

was the highest judicial tribunal in the Territory. It was

composed of three judges, appointed by the President,

with the advice and consent of the Senate.² These judges

1 Burnet, Notes on the Early Settlement of the Northwestern Terri-

tory, (1847), p. 38.

2 Prior to the adoption of the Constitution of the United States, the

judges of the territory were appointed by Congress; but when that instru-

ment became operative in 1787, they were appointed by the President with

the consent of the Senate.

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were commissioned during good behavior and received

a salary of $800, from the Treasury of the United

States.³ Their judicial powers extended over the whole

region northwest of the Ohio. The court thus consti-

tuted was fixed at no certain place, and its process, civil

and criminal, was returnable wheresoever it might be in

the Territory.

It was vested with original and appellate jurisdiction

in all civil and criminal cases, and of capital cases. On

questions of divorce and alimony, its jurisdiction was ex-

clusive.⁴ It was a strictly common law court and had no

powers in chancery. It was authorized to revise and re-

verse the decisions of all other tribunals in the Territory.

It was held at Cincinnati, in March; at Marietta, in Oc-

tober; and at Detroit,⁵ and in the western counties, at

such time in the year as the judges might designate.⁶

 

3 In general the judicial system of the territory was supported par-

tially by the National Government and partially by assessments levied upon

the counties. Its principal means of support, however, was a compre-

hensive system of fees which were payable to every officer concerned with

the administration of justice, from the judges of the General Court on

down. For the details of this fee system see Randall and Ryan, History of

Ohio, vol. V, p. 96.

4 Under the Constitution of 1802, the Legislature dealt with this prob-

lem.

5 "A reference to the map of the Territory, showing the relative posi-

tion of the seats of justice of the different counties, as they were at that

time, separated from each other by extensive tracts of wilderness; stretch-

ing from a hundred and fifty to two hundred miles, without roads, bridges,

or ferries, would lead to the opinion that the legal business of each county

was done exclusively by those professional men who resided at its seat

of justice. This, however, was not the case. From the year 1796, till the

formation of the State Government in 1803, the bar of Hamilton County

occasionally attended the General Court at Marietta, and at Detroit, and

during the whole of that time, Mr. St. Clair, Mr. Symmes, and Mr.

Burnett never missed a term in either of those counties."  Burnet, op. cit.,

pp. 64-65.

6 "The journeys of the Court and Bar to these remote places, through

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Development of the Judicial System    of Ohio        197

The judicial business of the General Court was very

light at first and the judges were largely occupied with

their legislative duties. Acting in conjunction with the

Governor,⁷ they constituted the legislative body of the

young country. Needless to say, they had much to con-

cern themselves with. This legislative council had no

authority to enact new laws, but was authorized to adopt

laws selected from the statutes of the original states.

They were required to report all laws adopted, to Con-

gress for its approval. If so approved they became the

laws of the Territory. In a short time ten chapters of

territorial laws were published.⁸ As there was neither

press nor printed in the Territory, they were issued in

writing, certified by the governor and judges and circu-

lated by copies.⁹

 

a country in its primitive state were unavoidably attended with fatigue and

exposure. They generally traveled with five or six in company, and with

a pack-horse to transport such necessaries as their own horses could not

conveniently carry, because no dependence could be placed on obtaining

supplies on the route; although they frequently passed through Indian

camps and villages, it was not safe to rely on them for assistance.... In

consequence of the unimproved condition of the country, the routes followed

by travellers were necessarily circuitous, and their progress slow. In pass-

ing from one county-seat to another, they were generally from six to

eight days in the wilderness . . ." Burnet, op cit., p. 65.

7 In the absence of the Governor, the Secretary of the Territory

served on this legislative council.

8 In October, 1787, the territorial government was organized. In the

following summer Governor St. Clair and Judges Varnum and Parsons

met at Marietta to legislate for the Territory.

9 "Those which were issued prior to January 1, 1792 were collected

and printed that year at Philadelphia. A second volume of the laws pub-

lished between July and December, 1792, was printed at Philadelphia in

1794. In 1796, a third volume was printed by William Maxwell at Cin-

cinnati, and hence styled the 'Maxwell Code,' probably the first book printed

in the Northwest Territory. The fourth and last volume of the laws of

the governor and the judges was printed at Cincinnati in 1798, by Edward

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Some of the laws passed by the judges and the gov-

ernor, as a legislative council, were of more than passing

importance. Among this number is one establishing "A

General Court of Quarter Sessions of the Peace and

County Courts of Common Pleas." This act was passed

on August 23, 1788.10 The Common Pleas Court con-

sisted of from three to seven judges, for each county. In

its own county this court had a general common law

jurisdiction concurrent with the Supreme Court. The

court of "General Quarter Sessions of the Peace" con-

sisted of a number of justices for each county. It had a

limited criminal jurisdiction and held three terms a

year.11 It was the primary court in territorial days. In

it was lodged the entire jurisdiction of the county, local,

legislative and judicial.12      The first court of this kind

met on August 25, 1800, at Warren. This was the Court

 

Freeman. The laws subsequently enacted by the territorial assembly made

three additional volumes." Rufus King, Ohio, First Fruits of the Ordi-

nance of 1787, pp. 237-238.

10 When settlements were made around Marietta in 1788, no provisions

were made for courts. This situation became intolerable and the people

assembled to devise a plan for their common safety. The result was: a

code of by-laws were adopted; penalties were prescribed; and a court and

jury system established. To these regulations all agreed, and each gave a

solemn pledge to aid in carrying them into effect. This system was termi-

nated shortly by the passage of the law establishing Common Pleas Courts,

referred to supra.

11 For an interesting account of the earliest meetings of these courts,

see David K. Watson, "The Early Judiciary, Early Laws and Bar of Ohio,"

Ohio Arch. & Hist. Pub., Vol. III, p. 145.

12 Its organization was very simple. A number of justices of the peace

were appointed for each county. Five of this number designated by the

governor, made up "the Quorum." This body met three times a year at

the seat of government.

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Development of the Judicial System of Ohio        199

of Quarter Sessions for Trumbull County, which com-

prised nearly all of the Western Reserve.¹³

Besides the Common Pleas Court and the Quarter

Sessions Court, each county was provided with a Probate

Court, possessing the usual probate jurisdiction. As

there was no intermediate court established between the

Common Pleas Court and the General Court,¹⁴ this last

named court completed the judicial system of Ohio.¹⁵

As time passed and the population increased, the need

for more courts arose.¹⁶ Whenever necessary the Gov-

ernor organized new counties; in each of which, Courts

of Common Pleas, and General Quarter Sessions of the

Peace, vested with civil and criminal jurisdiction, were

established.17 Due to the rapid influx of settlers, the

13 In September, 1788, there was a meeting of Court of Quarter Ses-

sions held at the Southeast Blockhouse in Washington County.   There

being no suits before the court it was adjourned sine die. The first meeting

of a Common Pleas Court in the State was held the same day at the

Northwest Blockhouse in Washington County. David K. Watson, op. cit.,

p. 145.

14 However, a circuit court was held in 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.

15 In 1795 some further changes in the judicial organization were made.

An Orphan's Court and a Surrogate Court was established.

16 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

judges to not less than three nor more than seven.

17 The first working unit under the territorial system was the county

instead of the township as in New England, or the parish, as in some parts

of the South. The township, however, soon appeared in the Connecticut

Western Reserve. The first two counties established were those of Wash-

ington and Hamilton. Washington County comprised about half the terri-

tory of Ohio and about half of the Western Reserve. For some time,

however, this immense tract was served by a mere paper government;

actual jurisdiction being exercised only in the more settled areas.

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Territory was entitled to enter upon its second stage of

government by 1798.18 The people were now permitted

to have a Legislature of their own choosing and the Gen-

eral Court was permitted to confine itself to its judicial

duties.

On September 23, 1799, the first Legislature met. Its

second enactment regulated the admission and practice

of attorneys and counsellors-at-law.   On November 23,

1801, the second and last Territorial Legislature met at

Chillicothe. Shortly afterwards the demands for state-

hood made by the inhabitants of the Eastern Division of

the Northwest Territory (Ohio) proved successful. A

convention was soon held, a constitution adopted, and on

March 1, 1803, Ohio was admitted into the Union as a

state.

Summary.--The court system of the Territory, like

the other branches of its government was not a complex

affair. At the top of the system was the General Court

composed of three judges. This court was concerned at

first largely with non-judicial matters.  When its legis-

lative functions were detached, however, it worked hard,

travelling from place to place on its judicial business. Be-

low this court in the judicial hierarchy was the County

Court of Common Pleas and the General Court of Quar--

ter Sessions of the Peace. These courts, with the Pro-

 

18 In July, 1800, the Western Reserve was formed into Trumbull

County; in December, 1800, Clermont and Fairfield Counties were estab-

lished; and in September, 1801, Belmont County was established. Alto-

gether, ten counties were established in territorial days to form the basis

of the State of Ohio. The counties were Washington, Hamilton, Jefferson,

Adams, Wayne, Ross, Trumbull, Clermont, Fairfield and Belmont. Annals

of Congress, Sixth Congress, (1799-1801), p. 1498.

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Development of the Judicial System of Ohio        201

bate Courts and Orphan's Courts and the Justices of the

Peace constituted the simple court system of the Terri-

tory.

The Constitution of 1802.--The Convention which

framed the first Constitution of Ohio met at Chillicothe

on November 1, 1802. It was in actual session twenty-

five days and cost the State $4,556.75.19 The Constitu-

tion became operative without the formality of submit-

ting it to the vote of the people. In the main it was a

comparatively brief statement of basic principles. Some

of its provisions, however, were altogether too specific.²⁰

The evils of putting specific details in the fundamental

law of a young and growing commonwealth soon became

obvious. The provision establishing the judiciary was

particularly ill-adapted to conditions as events proved.

By the terms of this provision the judicial power of

the State both in law and equity, was vested in a Supreme

Court, in courts of common pleas for each county, in jus-

tices of the peace, and in such other courts as the Legis-

lature might establish from time to time.²¹ The Supreme

Court was made up of three judges, chosen by the Legis-

lature for seven years, "if so long they behave well."²²

 

19 C. B. Galbreath, Constitutional Conventions of Ohio, 1911, p. 52.

20 Thomas Jefferson criticized the Ohio Convention severely for putting

too much detail into the Constitution. He thought it was an excellent

document, save for this defect.

21 From 1838 to 1853, a Superior and Commercial Court functioned

at Cincinnati and from 1845 to 1853, a similar court was held in Cleveland.

In both cases they were presided over by a judge chosen by the Legislature

for seven years.

22 On March 1, 1803, the first General Assembly of the State of

Ohio convened at Chillicothe. On April 15, it passed a general act for the

organization of the courts and abolishing those of the Territory.

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Any two of the judges constituted a quorum, vested with

such original and appellate jurisdiction as was directed

by law. The Legislature was authorized to add a fourth

judge after five years,²³ 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 Supreme Court was required by the Constitution

to hold a term once a year in each county.²⁴ This require-

ment kept the judges on horseback half the year and com-

pelled them to give opinions in frontier towns where no

law books were available. As the same judges were not

always present, a given point of law was sometimes set-

tled differently in different counties. To remedy this evil

the Legislature passed a law directing a special meeting,

of all the judges of the Supreme Court, to be held at the

seat of government, once a year, to consider and decide

questions reserved in the counties, and sent up by order

 

23 In 1808, the Legislature added a fourth judge to the Supreme Court;

in 1810, it reduced the number to three; in 1816, it again added a judge.

The court continued to have that number till February 9, 1852, when a

new court under the Constitution of 1851, began work. There were thirty

judges altogether under the old Constitution, which covered a period of

forty-nine years.

24 This provision was the result of a controversy and compromise in

the Constitutional Convention. When Chillicothe was chosen as the tem-

porary seat of government, the delegates from some of the more populous

counties, located at a distance from Chillicothe objected to a Supreme

Court which would be held exclusively at the seat of government, with

courts of Nisi prius, for the trial of issues of fact. They were unable

to get the court located in one of their counties, so the unique plan of

holding the Supreme Court in each county was adopted. Burnet, op. cit.,

p. 356; Debates, Ohio Convention, 1850, p. 597.

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Development of the Judicial System      of Ohio        203

of the Court. Some of the confusion in the law was re-

moved by this practice,25 but not all of it.²⁶

As organized under this Constitution, the Supreme

Court was largely a county court. It had original juris-

diction in all civil cases in law or equity, above $1,000;

appellate jurisdiction of all actions originally brought in

the Common Pleas Court; and concurrent jurisdiction in

the issuing of writs of error and certiorari. It could issue

other necessary writs also. The judges of this court also

had an extensive criminal jurisdiction.

Next to the Supreme Court came the Court of Com-

mon Pleas. For the purposes of this court the State was

divided into three Common Pleas circuits."²⁷          In each cir-

cuit there was a president of the court, and in each

county there were two or three associate judges.²⁸ The

25 In discussing this phase of the Supreme Court's work, Jacob Burnet,

who had close personal contact with its operations, said: "The indulgence

of local pride, which led to this result, was truly unfortunate, and subjected

the administration of justice to difficulties and embarrassments, the evil

consequences of which cannot be estimated. None but the judges and

members of the bar, can form an adequate idea of the hurry, confusion,

and at the same time, delay, which has been caused in the administration of

justice, by the anomalous plan resorted to, as a substitute for the system

proposed, which was a Supreme Court at the seat of government, with

Circuit Court powers." Burnet, op. cit., p. 357.

26 During most of this time there were but four judges on the Supreme

Court. When on circuit, two judges were required to constitute a quorum

to do business. Sometimes these two disagreed on a point of law. In

such an event, no decision could be made. In the same manner, when all

four of the judges were together in Columbus holding their Court in

Bank; if two were of one opinion, and two of another, on any question

before them, no decision could take place.

27  After five years the Legislature was authorized to increase the

number of judges and circuits. As the population increased and new

counties were created, the number of circuits was increased. By 1851

there were twenty circuits.

28 This system was adopted from Pennsylvania and was used in Ohio

from  April, 1803, to February, 1852. The president-judge of Common

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Legislature appointed all of these officials for seven-year

terms. The president and associate judges, any three of

whom constituted a quorum, composed the Court of Com-

mon Pleas, which had common law and chancery juris-

diction in all cases directed by law. Like the judges of

the Supreme Court, the Common Pleas judges had com-

plete criminal jurisdiction       as prescribed by law.         The

terms of the Common Pleas Court were fixed by the

Legislature.     Three terms were held annually in each

county.²⁹ The associate judges of the court, however,

could hold special terms at any time.

In addition to the Common Pleas Court the constitu-

tion provided for the election of a number of justices of

 

Pleas in each county was usually a lawyer; the associate judges not in-

frequently were laymen. They were an important part of the court at all

times and as a general thing transacted all business relating to an Orphan's

or Probate Court. Like the president-judge, they were elected by the

Legislature for seven years.

29 Judge Moses M. Granger in describing the operation of this system

said: "Every lawyer-judge travelled many hundreds of miles each year upon

a circuit in which the best roads were very poor, and most of them almost

impassable on wheels. The president-judge of the third (then the Eastern)

Circuit, began at Warren, Trumbull County, on the second Tuesday in

March, and ended at Zanesville, Muskingum   County, as soon after the

fourth Tuesday in December as the docket there would permit; but next,

before going to Zanesville, he had to sit at Marietta. If you look at the

map you can trace him from Warren in Trumbull via New Lisbon in

Columbiana, Steubenville in Jefferson, St. Clairsville in Belmont, and

Marietta in Washington, to Zanesville in Muskingum. Although the

Ohio River bounded four of his counties, and a passage by boat was some-

times had, the navigation was too irregular to be relied on. The president

judges in the First and Second Circuits rode about equal distances.... Mem-

bers of the county bar travelled with, or met, the judges and lodged with,

or near, them during term. The saddle-bags carried Ohio Statutes, then

small in bulk, Blackstone's Commentaries; sometimes Coke or Littleton;

Sometimes a volume or two of an English law or equity report; and a

small "vade mecum" legal treatise, the name of which is now known to few

of our profession." Randall and Ryan, op. cit., Vol. V, pp. 114-115.

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Development of the Judicial System of Ohio     205

the peace in the township.30 Although no intermediate

court was provided for by the Constitution of 1802, one

was indirectly established in 1808 by the statute permit-

ting the Supreme Court to divide the State into two dis-

tricts for the purposes of its work. In each district two

of the four judges held court and in each Common Pleas

Circuit an extraordinary session was held.31 At least

three of the judges were required to be present at the

hearing, to hear and determine cases reserved by the Su-

preme Court held in the district.

The effect of this law was to establish two branches

of the Supreme Court, one the Supreme Court on Cir-

cuit; the other, the Supreme Court in Bank. 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 ques-

tion of law arose, or where in the trial of a cause the

judges were divided in opinion as to the admission or re-

jection of testimony, and were unable for that reason to

decide a motion for a new trial. This law was repealed

on February 16, 1810.

In 1823, the two divisions of the court were reestab-

lished, one of which was in effect an intermediate court.

By the terms of this law all of the Supreme Court judges

were required to meet annually in Columbus after the

Circuit was over, to decide all questions arising on cir-

 

30 On February 4, 1804, the second General Assembly 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 township in civil causes. The forms

prescribed are still used, with little, if any, change.

31 The counties of Warren, Ross, Fairfield, and Columbiana were the

places of meeting.

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cuit, which were reserved by the judges for decision in

Columbus.32

In 1831, this act was repealed and a new act "to es-

tablish a Court in Bank and to regulate its practice" was

passed. While substantially the same as the act of 1823

there was one important difference. Not only were the

judges on circuit permitted to reserve questions for the

Court in Bank, but parties before the court were also

given the right to have all questions on which the judges

were divided, reserved for the Court in Bank. The pro-

visions of the Acts of 1808 and 1823 were combined in

the establishment of a quasi-intermediate court and in

granting parties the privilege of an appeal to the Court

in Bank. The annual meetings of the Court in Bank un-

der this new law were also held at Columbus.³³ From

 

32 Clement Vallandigham in discussing this plan said: "To avoid the

consequences of a division among the judges upon the circuit, and to

secure something like uniformity and weight in their decisions, the Legis-

lature, some years ago, devised an annual session of all the judges, to wit:

four, at Columbus, to compose what is called a Court in Bank. . . . Four

judges composing the court, the same quality of division may arise, with

this super-added evil, that two upon a side instead of one, stand arrayed

against each other, while the unfortunate litigants, meantime, after years

of litigation, at the cost, perhaps, of half their fortunes, are compelled

at last, either to arbitrate their disputes, or to wait till the expiration of

the term of service of one of the judges, or perchance his death, or what is

still less probable, his resignation . . . for 'few die and none resign' . . .

may afford a chance for a rehearing of the cause, and another division of

opinion to be terminated, or protracted it may be, after the same fashion."

"Remarks of Mr. Vallandigham of Columbiana in the House of Representa-

tives of Ohio on January 16, 1847," The New Constitution, 1849, p. 196.

33 Mr. Vallandigham gives us a picture of the plan in action: . . . This

court convenes in the month of December. So that these same judges,

after nine long months of session as a Supreme Court, and of fatigue and

travel and mental harassment . . . are hurried away in a whirlwind of judicial

activity, to find themselves transformed suddenly into a Court in Bank,

with one hundred and half as many cases more, to sit just four weeks,

for the purpose of revising their own decisions, made in . . . the course of

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Development of the Judicial System     of Ohio         207

1831 till the new constitution was adopted in 1851, the

Supreme Court held its sessions in the circuit and in bank

in accordance with this law.

From the foregoing description we can gather some

impression of the general features of the judicial system

of Ohio between 1802 and 1851.³⁴ The practical results

of this form of organization we shall have occasion to

examine more carefully in due order.

Summary.--The Constitution of 1802 provided for

a supreme court of three members; which number could

be increased to four after 1807. The judges had orig-

inal and appellate jurisdiction in common law and chan-

cery, as directed by law; conserved the peace throughout

 

nine months . . . Fatigued and exhausted by their labors, beyond en-

durance, the judges of the Supreme Court are convened at the very

close of their labors, and without a moment's respite, to begin the in-

vestigation of a hundred and fifty cases, enveloped amid a mass of

written or printed arguments . . . Now I beg to know, sir, if it be within

the limits of possibility to obtain, in such a condition of things, such

decisions as alone become the oracles in the last resort, of the law? Who

that has spent a moment in reflecting upon the nature and effect of judi-

cial adjudications, but must know that they ought to be the work of leisure

and deliberation, and pronounced upon a full knowledge only, of the

law and the facts;--since, if by an unjust decision, my property, my liberty,

or my life is taken away, the consequences are none the less calamitous to

me, that if they had been brought about by the arm of despotism . . . But

upon the circuit, there is neither time nor opportunity for the acquisition

of this knowledge, and in Bank, the case is, perhaps, worse." The New

Constitution, p. 196.

34 It might be of interest to note at this point that Ohio made no

provision for publishing reports of cases decided in her courts until about

1824. The first official volume,--First Hammond (Ohio) Reports,--pub-

lished in 1824, begins with a case decided on the circuit in August, 1821,

and contains only a few cases decided prior to the December term, 1823.

However, Benjamin Tappan, president-judge of the Fifth Circuit from 1816

to 1823, later published a small volume, referred to in the Ohio Digests

as "Tappan's Report." See remarks by Judge Moses M. Granger, Randall

and Ryan, op. cit., Vol. V, p. 117.

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208       Ohio Arch. and Hist. Society Publications

the State and held court once a year in each county. Pro-

vision was also made for courts of common pleas. The

State was divided into three circuits, with a president-

judge in each. Not more than three nor less than two

associate judges were chosen in each county. A presi-

dent and not less than two associate judges constituted

a quorum for the transaction of business in the common

pleas court. Justices of the peace were selected for the

townships and in the towns and cities the mayors were

vested with the judicial functions of a justice of the

peace. All judges were chosen by the Legislature,

and the road to judicial preferment was not infrequently

through that body.³⁵ During this time serious conflicts

between the judiciary and the Legislature terminated

successfully for the judiciary and its coordinate position

in the government of Ohio was recognized from this time

on.

Dissatisfaction with the Court System    under the

Constitution of 1802.--The population rapidly increased

during this period and the courts were soon behind in

their work. It became apparent that the judicial article

in the Constitution of 1802 was poorly drawn.³⁶

In 1809 Governor Huntington found it necessary to

call attention to some of the defects in the system and to

urge their remedy.³⁷   Governor Worthington in 1817

suggested calling a constitutional convention to correct

matters. In 1818, Governor Brown renewed the sugges-

tion, and in 1819, in his annual message to the Legis-

35 Chase, Statutes of Ohio, I, p. 33.

36 Thomas Jefferson criticized this article as the weakest provision

in the whole Constitution.

37 House Journal (1808-1809), pp. 196-199.

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Development of the Judicial System of Ohio         209

lature strongly urged a complete revision of the judicial

system. The proposal made to call a constitutional con-

vention in 1819, was decisively defeated by the people.

The chief criticism made of the court system was di-

rected to the Supreme Court. It was not confined to that

court, however, as the arrangement of the Common

Pleas Court proved to be expensive and inconvenient as

well.³⁸ The requirement that there should be at least two

associate judges in each county, insured the presence of

a layman on the court. This was opposed by many mem-

bers of the bar. It was also the opinion of the bar, gen-

erally, that the judges of the Supreme Court, and the

Presidents of the Courts of Common Pleas, ought to

have been appointed during good behaviour. "Serious

fears were entertained that the short term of their office

would lead to a want of stability and uniformity in deci-

sion; and might bring them under the influence of lead-

ing political men. . . . Fears were also entertained, that

in the time of high party excitement, judges would be

selected, rather for their political opinions, than their

legal acquirements."39

38 Burnet, op. cit., pp. 357-368.

39 "Having pointed out briefly, the two great opposite evils of our

system, namely, haste and delay, as exhibited in the Supreme Court, I

pass to the Common Pleas. And here it need hardly be remarked, that not

a few of the evils spoken of flow necessarily from the organization of

these courts also . . . to them in the first resort is committed almost the

entire mass of judicial business in the State, both at law and in chancery;

requiring, therefore, in the judges of these courts, an extent of ability

and learning, and of aptitude for the office of judge, which is given chiefly

to the Mansfields, the Eldons, and the Marshalls of this profession to boast

of. The great fault then, of the Common Pleas, consists in the constitutional

necessity for having not less than two associate judges for each court.

Usually there are three, and these are almost always men of no legal

knowledge or education whatever--frequently of no knowledge or educa-

tion at all, and who are rarely consulted, upon law points, or if consulted,

Vol. XLI--14.

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210         Ohio Arch. and Hist. Society Publications

When the proposed constitutional convention was re-

jected in 1819, the great majority of the people were

strangely apathetic in the matter. Most of them had

little occasion to go to the higher courts. Consequently

they were little concerned with the imperfections of its

organization, or the inadequacy of its achievement. If

the people at large were indifferent, those who had busi-

ness with the courts were not, and an insistent movement

to reorganize the courts was instituted.⁴⁰

In 1841, a series of communications appeared in the

Ohio Statesman from        the pen of Thomas L. Hamer, a

well-known lawyer, urging a constitutional convention to

reform the judiciary. This aroused interest in the sub-

ject which was discussed with renewed hope in private

circles and by members of the bar, until the legislative

session of 1843-1844, when Governor Shannon in his

message to the General Assembly, urged upon that body

the proposition of submitting to the people the question

(and then only for form's sake,) acquiesce readily in the opinion of the

presiding judge . . ., I have seen associates now and then, whose natural

dignity and good sense, made them in all but the forms and niceties of

the law, an overmatch for the lawyer who had been elevated, unhappily to

a seat upon the bench. But these are exceptions, and even if they were

found in every court, they could not make the system much the less

defective. For of what use are these men, not learned in the law? except

indeed, in the mere formal business of probate and administration, or in

the granting of licenses to keep tavern. At best they are but an un-

necessary incumbrance, and if erected into an Orphan's Court, with the

powers now exercised chiefly by them in the Common Pleas, apart from

the president judge, might very easily and to much advantage, be dis-

pensed with." Speech of Clement Vallandigham on "Judicial System of

Ohio" before Legislature, January 16, 1847, The New Constitution, p. 197.

40 At that time the State had not ventured upon her internal improve-

ments program, including a system which drained the treasury and threat-

ened bankruptcy. Consequently the people did not feel the urgent necessity

of calling a constitutional convention in 1819, as they did some years after-

wards.

• 16
 

Development of the Judicial System     of Ohio        211

of calling a constitutional convention for the purposes

of correcting the evils of the judicial system. "The only

defect in the Constitution as applicable to our present

condition," he said, "which. . . .could justify a call of

a convention to alter or amend it, consists in the defective

organization of our judicial system and a total inability

of our Supreme Court, under the existing form of the

Constitution, to transact the mass of business brought

before it."⁴¹

Governor Shannon thought that it would not be diffi-

cult to prove that the existing organization of the Su-

preme Court made it the most expensive judicial system

in the country. "The amount of costs," he said, "that

are annually thrown upon litigants by reason of the con-

tinuance of causes for the want of time to try them,

would, in the aggregate, far exceed the amount paid in

any state in this Union to maintain its entire judicial

system. It is not only an expensive system," he con-

tinued, "but, in its practical bearings, produces, in most

cases, a delay, and in many, almost a denial of the ad-

ministration of justice."

 

41 In explaining his reasons for criticising the judicial organization

established under the Constitution of 1802, Governor Shannon said: "The

Constitution limits the number of judges of the Supreme Court to four,

and requires two to constitute a quorum to do business, and directs that

the Supreme Court shall be held once a year in each county in this State.

. . . The statute has given to this tribunal an extensive original and ap-

pellate jurisdiction; the consequence is, it has become so loaded down

with business as to render it impossible for the judges, with all their

known industry and talents, to dispose of it in a manner satisfactory to

themselves, or with due regard to the legal rights of parties. They are

forced to continue causes after they have been prepared by the parties

for trial, for the want of time to hear them; thus throwing on one or the

other party a heavy bill of costs, which might be entirely avoided under

a judicial system differently organized." The New Constitution, p. 74.

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212         Ohio Arch. and Hist. Society Publications

The truth of the matter is that the State of Ohio had

ougrown its judicial system. When it was established in

1802 it was adequate to the wants of the people. Rap-

idly changing conditions made it inadequate. When the

Constitution of 1802 was adopted there were but nine

counties in the State, with a population of less than fifty

thousand. When Governor Shannon spoke in December,

1843, there were seventy-nine counties in the State,⁴² con-

taining a population of almost two millions. Trade, com-

merce, manufacturing, and wealth in the State had in-

creased in like ratio.⁴³

By 1847 a fairly definite feeling had arisen in the

State that judicial reforms should be made and without

further delay. Mr. Clement Vallandigham of Civil War

fame voiced the sentiment of the bar and press of the

State in a speech made before the House of Representa-

tives at Columbus on January 16, 1847. In a lengthy

disquisition permeated with the flowing rhetoric of the

time, he pointed to the evils of the existing system and

made recommendations for a number of changes, includ-

ing popular election of judges, which was then having a

great vogue.⁴⁴

 

42 In each of which the Supreme Court was required to hold an annual

session.

43 Compare statements of Governor Shannon in 1843 and Clement

Vallandigham in 1847 in this regard. The New Constitution, pp. 74 and 194.

44 "Now the number of counties--and they are rapidly increasing--

is eighty-two; so that those four judges are required to hold no less than

eighty-two separate courts in each and every year, flying for that purpose

over the whole vast territory of Ohio. Only think, sir, of your Supreme

Court, the last depository of the tremendous powers and possibilities of

the judiciary, turned into a flying express and running a tilt against the

wind on a trial of speed; today at Cleveland on the lake, tomorrow in

Cincinnati." "Remarks of Mr. Vallandigham of Columbiana," The New

Constitution, pp. 195-202. The New Constitution was a volume published

• 18
 

Development of the Judicial System of Ohio.      213

The Constitution of 1851.--As the century neared its

half-way mark the movement for judicial change was

supplemented by a growing demand for a complete con-

stitutional revision. A number of factors contributed to

this movement. This was a period of general unrest

throughout the world. In 1848, revolutionary stirrings

were felt in different parts of Europe where vigorous

attempts were made by the people to throw off some of

the political and social restrictions under which they la-

bored. At home a condition of ferment existed but from

different causes. These were "boom days" in the United

States, particularly in the newer regions where a period

of tremendous growth was in progress.⁴⁵

In Ohio, roads had been hewn out of the forests;

navigable streams improved; a state system of canals

inaugurated. In the 'thirties and 'forties a vast system

of public improvements was carried on. The State sub-

scribed for stock in railroads, turnpikes, plank roads and

private canals. The canals of the State cost over fifteen

millions of dollars.    While this far-flung system     of in-

ternal improvements quickened the development of the

State, it brought with it a burden of debt. The State

owed nearly twenty millions of dollars, the interest of

which almost a million dollars a year, was paid to foreign

 

by Samuel Medary for the purpose of developing public sentiment for a

constitutional change; expounding the evils of the old system; and sug-

gesting plans for a new one.

45 In 1800, the population of the Northwest Territory, including the

present states of Ohio, Indiana, Illinois, Michigan, Wisconsin and a por-

tion of Minnesota, was only 45,365. The census of 1810 showed for Ohio

alone a population of 230,760, a tremendous increase. The following

decades continued to show a substantial growth. The population of Ohio

in 1820 was 581,295; in 1830, 937,903; in 1840, 1,519,467; in 1850, 1,980,329.

C. B, Galbreath, op. cit., p. 14.

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214        Ohio Arch. and Hist. Society Publications

bondholders and foreign creditors. Despite this fact, the

State was fairly bursting with energy. Between 1840

and 1850, (the "fabulous 'forties") business and com-

merce flourished. The discovery of gold in California

served further to stimulate business.

With everything growing, conditions on all sides con-

tributed to the feeling that a change and enlargement of

the organic law was necessary.46 Favoring such a change

were: (1) those who believed that there should be some

limitation placed on the power of the State to incur state

debts; (2) those who believed that the power of the

Legislature in this matter as well as other matters should

be definitely curbed; (3) those who believed that the ex-

isting judicial system could be materially improved; (4)

those who believed that all officers, legislative, judicial

and executive should be elected directly by the people;

(5) those who believed that biennial instead of annual

sessions of the General Assembly would better serve the

interests of the State and at less expense. The greatest,

single source of dissatisfaction, however, was with the

provisions relating to the judiciary.

The net result of this general agitation was a new

Constitution. The second Constitutional Convention of

Ohio, which framed it, was composed of 108 delegates.

It met in Columbus May 6, 1850, and recessed July 9,

46 During this period no less than four states of the Old Northwest

found it necessary to revise their Constitutions. In 1848, Illinois led the

way, overhauling her Constitution of 1818 in vigorous fashion. The situa-

tion there was quite similar to the one in Ohio. The State was heavily in

debt due to its unfortunate banking experience and internal improvement

schemes. The Legislature was blamed for much of this. Distrust of the

Legislature resulted in limitations on that branch in practically all of the

constitutions adopted during this period. In 1850, Indiana and Michigan

followed Illinois in establishing new constitutions.

• 20
 

Development of the Judicial System of Ohio  215

1850. On December 2, 1850, it reconvened in Cincinnati

and adjourned March 10, 1851. It was in actual session

135 days and cost the State $95,464.29.⁴⁷

Some radical changes in the organization of the

courts resulted. The new Constitution vested the judicial

power of the State in a Supreme Court, in District

Courts, Courts of Common Pleas, Courts of Probate,

Justices of the Peace, and in such other courts inferior

to the Supreme Court, in one or more counties, as the

Legislature might from time to time establish.

Popular election of Supreme Court judges supplanted

election by the Legislature. The number of judges was

fixed at five, a majority of whom constituted a quorum.

The term was fixed at no less than five years. The en-

tire Supreme Court were required to hold a term begin-

ning each year in January at the State Capital. In each

county, each year, one judge of the Supreme Court with

the Common Pleas judges of the district, held one term

of a "District Court" which took the place of the old

"Supreme Court on the Circuit."

The Common Pleas Court remained the central

agency in performing the judicial business of the State.

By the terms of the new Constitution, the State was di-

vided into nine common pleas districts, and each district

into three judicial subdivisons. The voters in each sub-

division elected for five years a common pleas judge. The

judges of each district meeting together, fixed the annual

calendar for three terms of court for each county in

their district, and held court separately in the counties

of their respective subdivisions. The jurisdiction of the

court was limited to the county in which it was in session,

47 Randall and Ryan, op cit., Vol. IV, pp. 103-116.

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216         Ohio Arch. and Hist. Society Publications

and was both civil and criminal in nature. It had orig-

inal jurisdiction in civil cases involving a sum of more

than $100, and also in criminal cases. Its appellate juris-

diction extended to all cases carried up from the probate

or other lower courts.⁴⁸ The Legislature was authorized

to increase, diminish, or change the number of common

pleas districts, or its subdivisions, or the number of

judges in a district,⁴⁹ or establish other courts.⁵⁰ A two-

thirds vote of each house was required for activity of

this kind.

Under the Constitution of 1802, probate matters

were disposed of by the judges of the common pleas

courts. Under the new Constitution, provision was made

for a separate probate court.⁵¹ This Court had jurisdic-

tion over the estates of deceased persons; it probated

wills; appointed administrators, executors and guard-

ians, and examined their accounts. It aso settled the ac-

counts of insolvent debtors and authorized the commit-

ment of insane persons to places of safe-keeping.⁵²

The justices of the peace continued to function under

the new Constitution as before. In the towns and cities

they were supplemented by the mayor's courts and police

 

48 In Hamilton County, the Superior Court established in 1854 was

supplementary to the Common Pleas Court.

49 As time passed changes were made. Eventually Hamilton County

was organized into a separate district.

50 Insolvency courts were afterwards created by the Legislature under

this provision for Cuyahoga and Franklin Counties.

51 The Courts of Insolvency created for Hamilton and Cuyahoga

Counties, were authorized to relieve 'the Probate Court in a few matters.

52 That the administration of the new Probate Court did not prove

altogether satisfactory may 'be inferred from the debates on this subject

in the Constitutional Convention of 1873. The fee system was particularly

criticized. Debates Ohio Convention, (1873) Vol. I, pp. 630-635. et seq.

• 22
 

Development of the Judicial System      of Ohio       217

courts.⁵³ As time passed, further changes in the judicial

system became necessary. Two branches of the system

in particular, as provided for by the Constitution of

1851, proved unsatisfactory. The two branches in ques-

tion were the District Court and the Supreme Court.⁵⁴

The District Courts, as noted, were composed of the

Common Pleas judges of the respective districts and one

of the Supreme Court judges, any three of whom              formed

a quorum. They were required to hold at least one term

in each county of the district annually.         They were given

original jurisdiction in quo warranto, mandamus, habeas

corpus and procedendo, the same as the Supreme Court,

and such appellate jurisdiction as the Legislature might

53 Cleveland set up such a Court in 1853. A number of special courts

were also set up about this time. In 1854, a Superior Court was estab-

lished. It was made up of three judges, elected for five years. In 1856,

a Superior Court for Montgomery County was established. This Court,

which lasted until 1886, had one judge elected by the people of that county,

for five years. In 1857, a similar Court was created for Franklin County.

This Court continued to function until 1865. From 1852 to 1854, a judge

elected by the voters of Hamilton County, held the Criminal Court for

that county.

54 Sherlock Andrews discussing this situation in the Constitutional

Convention of 1873, remarked: "And now, sir, what are the difficulties,

which we have experienced under the old Constitution?  What is the posi-

tion of the judicial business of the State of Ohio today, which we have

been compelled to look in the face? Why, sir, we find our Supreme Court,

with a docket of more than four hundred cases undisposed of at this hour;

with a general docket at the beginning of their last term of 537 cases,

and some 230 cases upon their motion docket; and now when their work

for the year is done, after they have faithfully and unremittingly labored

here, from the first of December until the last of June, when they ad-

journed, we find there are more than 400 cases on the general docket, and

some 150 upon the motion docket, undisposed of. What is the cause of

all this? What is the difficulty? Flow does it happen that this vast

accumulation of the business of the State has been brought about? . . .

Why, every case that went to the District Court simply rested there . . .

and then travelled on to the Supreme Court." Debates, Ohio Convention,

(1871), Vol. I, p. 622.

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218         Ohio Arch. and Hist. Society Publications

provide. Suits pending in the Supreme Court in Bank

were transferred to the Supreme Court, and the District

Courts in their respective counties were the successors

of the "Supreme Court on Circuit" and took over all the

cases pending in that court.

On February 19, 1852, an act was passed which had

considerable effect on the jurisdiction of the District

Court. This measure provided that when an important

or difficult question should arise in a proceeding in the

District Court of a county, the judges of that court, or

the judge of the Supreme Court sitting in that court,

might, on motion of either party cause the question to

be reserved and sent to the Supreme Court for its deci-

sion. For District Court purposes, the State was divided

into five judicial districts, and it was provided that the

Supreme Court judge present at the sessions of the Dis-

trict Court should preside. This act gave the District

Court an extensive jurisdiction and strengthened it gen-

erally.⁵⁵

In 1858, the right of appeal to the District Court was

limited so it could only be taken from final judgments,

orders, or decrees in civil actions where the parties did

not have a right to trial by jury. The same act provided

that a Common Pleas judge who had decided a case in a

 

55 It was given power to issue writs of error, certiorari, supersedeas,

ne exeat, and all other writs not specially provided for by statute, when-

ever necessary. It was also given appellate jurisdiction from the Common

Pleas Court in all civil cases over $100.00 in which that court had original

jurisdiction. Appeals in the District Court were decided in the same man-

ner as though it had original jurisdiction of the case and upon the same

pleadings, unless amendments were permitted for good cause. A judgment

rendered, or a 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 appear-

ing on the record.

• 24
 

Development of the Judicial System of Ohio  219

Common Pleas Court should not review his own case on

error, or otherwise in the District Court, when there was

a quorum in the District Court without him.

As time passed the business of the Supreme Court

sitting "in bank" at the State Capital increased rapidly,

requiring the services of its judges during the greater

part of the year. It simply had too much to do at the

Capital to permit it to go out on the circuit. Relief meas-

ures were demanded. In 1865, an act was passed by the

Legislature, exempting the judges of the Supreme Court

from duty in the District Court during that year. In

1869, the Supreme Court decided that a District Court

held by three Common Pleas judges sitting without a

Supreme Court judge was a valid court.⁵⁶ In 1870, an-

other act was passed making it optional for the Supreme

Court to attend District Court sessions during that year.

This system was far from satisfactory. Respect for

the decisions of the District Court was considerably les-

sened by the absence of the Supreme Court judges, and

the Court came to be looked upon as a mere stopping-

place on the way to the Supreme Court.⁵⁷ A considerable

hardship was worked on the common pleas judges as

well, inasmuch as they were required to hold the District

Court in addition to their regular duties, with no addi-

tional compensation. The sessions of the District Court

became short, so short, in fact, that the judges were un-

able to give the time necessary for a satisfactory exami-

nation of a case.

 

56 King v. Safford, 19 Ohio Rep., 587 (1869).

57 Address of Rufus P. Ranney before the First Convention of the

Ohio State Bar Association at Cleveland, Ohio on July 8, 9, 1880. Ohio

State Bar Assoc. Reps. (1880), p. 66.

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220         Ohio Arch. and Hist. Society Publications

In 1877, a constitutional amendment was submitted

to the people, providing for an independent District

Court, composed of certain Common Pleas judges, de-

voting their full time to this work. This proposal was

defeated by the people. In 1878, an act was passed au-

thorizing the Supreme Court, or a majority of that body,

to designate three Common Pleas judges in each district

to hold the District Court of that district. These judges

were exempted       from   their regular duties as Common

Pleas judges. This act, however, was immediately de-

clared unconstitutional.58

On July 8, 1880, the State Bar Association was

formed at Cleveland.       In discussing plans for improving

the administration of justice in Ohio, the District Court

came in for much criticism.⁵⁹ A committee was appointed

to study the matter.⁶⁰ At the December meeting of the

 

58 In the Matter of the Appointment of Judges to hold District Court,

34 Ohio State, 431 (1878).

59 Report of the First Convention of the Ohio State Bar Ass'n., pp.

33, 35.

60 Rufus P. Ranney, the first President of the Bar Association, was

among those who criticized the District Court. Judge Ranney was one of

the ablest jurists in the State. He was a member of the Constitutional

Convention in 1851, and was one of the first judges to serve on the Supreme

Court, after the adoption of the Constitution of 1851. In view of his wide

experience his words deserve consideration. Among other things, he 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 this system, without which

it could never have passed the Convention, that a judge of the Supreme

Court, with his knowledge and weight of character, should forever pre-

side in that Appellate Court. What have we realized for years past in

practice? That Court is held by the judges that decide in the first in-

stance, the Common Pleas judges--doing as well as they can, I admit,

• 26
 

Development of the Judicial System     of Ohio       221

Association held at Columbus, this committee reported

in the form of an amendment to the judicial article of

the Constitution. This plan provided for the abolition

of the District Court; for increasing the number of Su-

preme 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

less than two judges in each county of the State at least

once in each year. This plan had the effect of reestab-

lishing the judicial article of the Constitution of 1802.61

It was adopted by the association which presented it to

the next Legislature but with no success.⁶² At the To-

ledo meeting in July, 1880, the question was referred

back to the Committee for further consideration. After

some study a new amendment was suggested.⁶³ This

proposal was made at Cincinnati in 1882.64  It was pre-

sented to the Legislature in due time and in 1883, that

body adopted a joint resolution submitting this propo-

 

but in no wise 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 . . . to be

crowded into the Supreme Court. What is the consequence then? A docket

lying by of 700 or 800 cases undecided, the last of which there is no hope

can ever be reached and finally determined, short of six or seven years

from this time." Report of the First Annual Convention of the Ohio State

Bar Ass'n., July 8, 9, 1880, Cleveland, Ohio, p. 66.

61 The details of the plan can be found in the "Report of the Com-

mittee on Judicial Administration and Legal Reform" made through Durbin

Ward, its chairman. Ibid. Adjourned meeting, Dec. 28, 29, 1880, p. 13.

62 "Report of the Committee on Judicial Administration and Legal Re-

form," Ibid., July 20, 1881, Toledo, Ohio.

63 Ohio State Bar Assoc. Third Annual Convention. Rept., Dec. 27,

28, 1882.

64 Mr. M. A. Daugherty, in behalf of the Franklin County Bar Assoc.,

introduced a substitute measure.

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222         Ohio Arch. and Hist. Society Publications

sition to the people. It was adopted and became Secs.

I, II and III of Art. IV of the Constitution.⁶⁵

The net result of this amendment was to establish

an independent, intermediate court called the Circuit

Court which was given the same original jurisdiction

as the Supreme Court and such appellate jurisdiction

as might be provided for by law. The Legislature was

also empowered to organize the Supreme Court into

 

65 Mr. C. B. Galbreath in discussing the ease with which the amend-

ment was adopted, says: "The amendment was but little discussed in the

campaign of 1883. Popular interests centered in two other amendments,

relating to the prohibition and regulation of the liquor traffic, and yet

the amendment relating to the judiciary carried easily, while those relating

to the liquor traffic failed. The following extract from an editorial in

the Ohio State Journal explains why the judiciary amendment had such

"plain sailing":  "The constitutional amendment proposing a change in

the State judiciary has had pretty plain sailing thus far, and arrangements

having been made whereby 'Judicial Amendment, Yes,' appears on the

ticket of both parties, it will doubtless be adopted. The State Bar Asso-

ciation, after a discussion of the proposed measure, decided to adopt it

and advocate it, and lawyers generally have pronounced in favor of it,

as far as they have taken any position at all in regard to it.

This reveals the plan to catch the indifferent and uninformed voter

at an election, before the modified Australian system was adopted. In-

stead of writing on the ballot

Judicial Amendment, Yes

Judicial Amendment, No

and permitting the voter to express his preference by striking out one of

the two, by mutual arrangement the political parties placed on each ballot

Judicial Amendment, Yes.

For obvious reasons, this plan was about as effective as that authorized by

the Longworth act. The scheme was exposed and denounced by the vene-

rable Judge Rufus P. Ranney in a letter to the Cleveland Leader a few

days before the election . . . .

The revelation of the clever arrangement of the political leaders did

not affect the result of the election, and the judicial amendment easily pre-

vailed . . . " C. B. Galbreath, History of Ohio, (1925), v. II, pp. 91-92.

• 28
 

Development of the Judicial System of Ohio        223

divisions.⁶⁶ Sec. II of Art. IV, providing a five-year

term for Supreme Court judges was also annulled.⁶⁷

On April 14, 1884, the Legislature passed an act

dividing the State into Circuits and organizing the Cir-

cuit Courts.⁶⁸ Seven Circuits were established.⁶⁹ In

each circuit three judges were elected for six-year

 

66 A majority of the judges sitting as an undivided court could decide

cases and pronounce opinions that should be accepted as the expression of

the court. In deciding cases heard by a division of the court, the opinion

was required to be unanimous. In cases of a divided sentiment the question

was 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.

67 This amendment was criticized by Judge Rufus P. Ranney on the

ground that it destroyed the independent position of the Supreme Court, as

well as the courts it created. "Among the most effectual means of securing

this independence," he said, "a fixed term and compensation have always

been regarded as indispensable, while in the scheme proposed everything is

set afloat and the Legislature is at liberty to make the terms of the supreme

judges five years or twenty, the circuit judges one year or twenty as they

see fit or the exigencies of political parties require."

The Legislature, however, did not abuse the power conferred on it

and the judicial system was made so flexible that it could be adjusted to

meet new demands without calling a convention to revise the Constitution.

This was a distinct improvement. Demands for alterations in the judicial

system were instrumental in raising a demand for a constitutional conven-

tion in both 1851 and 1873, but after the amendment of 1883, there were

practically no further demands for a change in this department until the

Constitutional Convention of 1912.

68 All cases pending in the District Court were transferred to the Cir-

cuit Court upon condition, in appeal cases, that a new bond was given. All

provisions of existing statutes relating to the District Court and its judges

were made applicable to the new court and its judges.

69 Political considerations seem to have been forced into the background

in creating the new court. In fixing the boundaries of the different circuits,

the business to be done in each circuit seems to have been the determining

factor rather than the political composition of the circuit. At any rate in

the election of October, 1884, five of the seven circuits elected Republican

judges, although a Democratic Legislature fixed the boundaries of the cir-

cuits.

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224       Ohio Arch. and Hist. Society Publications

terms.⁷⁰ One judge was to be elected every two years.

In addition to the original jurisdiction conferred by the

Constitution, the Circuit Court was given power to issue

writs of supersedeas in any case and all other writs not

specially provided for nor prohibited by statute, when

necessary for the exercise of jurisdiction.⁷1 It was re-

quired to hold two terms in each county every year.

On February 7, 1885, another act was passed revis-

ing and consolidating the statutes relative to the organi-

zation and jurisdiction of the Circuit Courts and other

Courts as well. This act provided that the judges of

the Circuit Court should meet once a year in Columbus,

to fix the terms of the court for the ensuing year and

choose one of their number as Chief Justice for the

same period. The Chief Justice was given power to

transfer judges of the Circuit Court from one circuit

to another when the occasion demanded. This statute

was of considerable importance to the Circuit Court.

Ultimately the intermediate court system, under the

Constitution of 1851, was one in which there were eight

circuits, each with three judges, one chosen every two

years for a term of six years. An annual meeting of

the circuit judges was held, at which time their calendar

was arranged for the holding of two terms in each

county of their respective circuits. It had original and

appellate jurisdiction. It had original jurisdiction with

the Supreme Court to try actions in quo warranto, man-

damus, habeas corpus, and procedendo, but only in its

70 On March 21, 1887, the Legislature passed an act increasing the

number of circuits to eight.

71 A short time after this court was established, a series of reports

called The Ohio Circuit Reports was commenced at the request of the law-

yers of the State.

• 30
 

Development of the Judicial System       of Ohio        225

own    circuit.    By   virtue   of its appellate jurisdiction it

could review cases brought on error from the Common

Pleas Courts of its circuits, and also judgments of in-

ferior courts in criminal cases.

The problems raised by the intermediate court sys-

tem were not the only ones which appeared to worry

those who were concerned with administering justice

under the judicial system provided in 1851. The in-

ability of the Supreme Court to perform the many duties

imposed upon it in that instrument soon became appar-

ent.⁷² It got further and further behind in its work.⁷³

 

72 Mr. Morrison R. Waite who was later on the United States Supreme

Court, was president of the Constitutional Convention in 1873. In discuss-

ing the delay in the Ohio Supreme Court he said: "Up to 1845, Mr. Chair-

man, neither the Supreme Court or any appellate court of this state, had

power to review upon error decisions of an inferior court upon mere ques-

tions of fact. In 1845, there were on the general docket of the Supreme

Court, 84 cases. Everyone of these was disposed of during the term. In

1846, there were 143 cases. Every one of these was disposed of during the

term. After this time until 1852, the law of 1845, which did give the power

of taking a case to the Supreme Court for a review of the decisions of the

inferior court was in active operation. I have not had the means of ascer-

taining what was the condition of the docket between 1846 and 1852; but I

do know that at the December term, 1854, there were on the docket 314

cases. The new Supreme Court had been in operation from March, 1852.

There must have been, therefore, a considerable accumulation between 1846

and 1852. Of these 314 cases, 141 were actually disposed of, and the court

went over the docket during the term   to No. 189. In 1855, there were

upon the docket, 319 cases, and during the term the court went as far as

No. 187. There were at that term upon the motion docket 112 cases. In

1856, the docket was reduced to 254 cases, with 111 disposed of during the

term. In 1857, there were 383 on the general docket, and 187 disposed of,

with 153 on the motion docket. In 1858, 430 cases were upon the general

docket. Now from 1845 to 1852, the power of review upon error by the

appellate court, of the decisions of inferior courts upon mere questions of

fact, existed. It was taken away in 1852 by the Code. From 1852 to 1858,

there was no such power. In 1858, it was restored, and from that time,

save and except during the war, there has been a constant and steady in-

Vol. XLI--15.

• 31
 

226        Ohio Arch. and Hist. Society Publications

Some relief became necessary. It was thought that it

would be obtained in the proposed Constitution of 1873-

'74. The defeat of that Constitution left the court in a

hopeless condition. Up to this time no separate amend-

ment to the Constitution of 1851 had been adopted.

There seemed little prospect for relief from that source.

However, the need was so apparent, that the Legislature

once more submitted an amendment to the Constitution.

This amendment provided for a Supreme Court

Commission of five members, appointed by the Gover-

nor for three years, "to dispose of such part of the busi-

ness then on the docket of the Supreme Court as shall

by arrangement between said Commission and said

Court be transferred to such Commission." This Com-

mission was to have the same jurisdiction as the

Supreme Court. The Legislature was also given the

crease of the docket of the Supreme Court. And we are called together

now, Mr. Chairman, more than anything else, because this court needs re-

lief from the pressure of its business." Debates, Ohio Convention, (1873),

vol. I, p. 724.

73

Year                                  Cases on Docket              Cases Disposed

1845                                 84                                                                                                        84

1846                                 143                                                                                                     143

1854                                 314                                                                                                     141

1855                                 319                                                                                                     187

1856                                 254                                                                                                     111

1857                                 383                                                                                                     187

1868                                 286 General Docket

117 Motion Docket                                                                       9

1869          447 General Docket                                                                                             121

266 Motion Docket

1870          453 General Docket )

185 Motion Docket

1871          496 General Docket                  118

268 Motion Docket

• 32
 

Development of the Judicial System of Ohio,  227

power to create a similar Commission once every ten

years which served for two years for a similar purpose.

Supported by the two major political parties and

practically all of the newspapers of the State, the amend-

ment was adopted on October 12, 1875, and now ap-

pears as Art. IV, Sec. 21 of the Ohio Constitution. On

February 1, 1876, the first Commission began opera-

tions. It continued till 1879. In 1883, a second Com-

mission of five judges was appointed which served till

1885. This was the last time such a body was set up.

With the establishment of the Circuit Court a heavy

burden fell from the docket of the Supreme Court and

the need for such a body was not as great.

The adjustments made in connection with the Dis-

trict and Supreme Courts represent the big changes

made in the judicial system under the Constitution of

1851. These changes were caused by the same factors

which brought changes to the judicial system established

under the Constitution of 1802. The State had grown

in population and business far beyond the dreams of the

Constitution-makers of 1851. The provisions made at

that time for a Supreme Court and for a District Court

proved inadequate. The judicial business of these courts

steadily increased and courts fell behind in their work

until they were altered.⁷⁴ With the growth of popula-

tion, necessary additions and alterations were made to

the various parts of the judicial system.⁷⁵

 

74 The body of law to be considered and applied was also on the in-

crease. In 1875, a codifying commission began operations to bring some

system into this field. It completed its task in 1879.

75 For example, in 1904 a juvenile court law was passed providing the

regulation, treatment, and control of dependent, neglected, and delinquent

children under sixteen years of age.

• 33
 

228      Ohio Arch. and Hist. Society Publications

Summary. -- Under the Constitution of 1851, the

judicial power of the State was vested in a Supreme

Court, in District Courts, Courts of Common Pleas,

Courts of Probate, and in such other courts as the Legis-

lature specially provided for from time to time, such as

Superior Courts, Insolvency Courts, Juvenile Courts,

etc. Popular election of judges supplanted election by

the Legislature. The provisions of the Constitution

providing for an intermediate appellate system proved

inadequate and some very important changes were made

in the Ohio judicial system, resulting in a new inter-

mediate court, the Circuit, and an improved condition

for the Supreme Court.

The Constitution of 1912.--The Constitution of

1851 provided that every twenty years the people should

vote upon the question as to whether or not a constitu-

tional convention should be held. In 1871, there was a

vote in favor of such a convention. But when the pro-

posed constitution was submitted to the people, they re-

jected it. In 1891, the question of a convention came

up again and once more the people rejected it. In 1911,

the vote was in favor of a constitutional convention, and

in the next year this body assembled.

Strictly speaking, this Convention did not frame an

entirely new constitution. Instead, it drew up forty-

two amendments and submitted them to the people. Of

this number, thirty-four were ratified and eight were re-

jected by the people. In many cases the changes made

were highly important and in some cases fundamental

in character. In consequence the amended Constitution

virtually amounted to a new Constitution which ac-

curately reflected the temper and trend of the times.

• 34
 

Development of the Judicial System of Ohio       229

In 1912, the movement towards social democracy

was at high tide. The political philosophy of this move-

ment had a very important effect on the character of the

work of the Ohio Constitutional Convention of that

year. Certainly the changes made in the judicial or-

ganization of Ohio may be largely ascribed to these in-

fluences. Although judicial revision was not the pri-

mary cause for calling the Constitutional Convention

in 1912 as it was in 1851, questions involving the judi-

ciary were given high consideration, by a Convention

which was concerned with a multitude of pressing

problems.76 The judicial organization of the State came

out of the Convention very materially changed.77

The Circuit Court was made a Court of Appeals of

three judges and its judgment in ordinary cases was

made final.78 This prevented an appeal in such cases to

the Supreme Court. This change shortened the chain

of litigation and relieved the Court of last resort of an

overcrowded docket and consequent delay. Where con-

stitutional questions are involved, it was provided that

cases might be carried directly from the Court of Ap-

peals to the Supreme Court; the latter, however, could

not reverse the finding of the former and hold a statute

unconstitutional if more than one of its judges objected.

A judgment of the court below, holding a statute uncon-

 

76 Theodore Roosevelt appeared before the Convention on February

21, 1912, and placed squarely before it the proposition of limiting the power

of the judiciary in our scheme of government. Ohio Constit. Convention

(1912), Proceedings and Debates, v. I, pp. 378-387.

77 For a discussion of the debate upon this change and other suggested

changes to the judicial system, see Ohio Constit. Convention (1912) Pro-

ceedings and Debates, vol. I, pp. 1025-1081; also Ibid, vol. II, pp. 1087-1165.

78 Ohio Constit. Convention (1912) Proceedings and Debates, v. II,

pp. 1833-1834.

• 35
 

230         Ohio Arch. and Hist. Society Publications

stitutional might be affirmed, however, by a mere ma-

jority of the Supreme Court.

This provision has been frequently critized by com-

mentators on the Ohio system.⁷⁹ It is often assumed

that it requires the concurrence of all but one of the

Supreme Court judges to hold a law unconstitutional.

This is true, however, only in the reversing of the judg-

ments of the Court of Appeals. If in the judgment of

the Court of Appeals a law is constitutional it requires

at least all but one of the Supreme Court judges to re-

verse this judgment and hold the law unconstitutional.

On the other hand, if the Court of Appeals holds a law

unconstitutional, then the concurrence of a mere ma-

jority of the Supreme Court is required to affirm this

judgment and hold the statute unconstitutional. In other

cases, judgments are by a majority of the judges of the

Supreme Court. The general effect of this provision is

 

79 In 1919, the Illinois Legislative Reference Bureau collecting data

for the Constitutional Convention examined the Ohio plan and found it

wanting for several reasons: (1) It placed upon two or three judges in an

inferior appellate court the power to declare laws unconstitutional subject

to a majority support of the Supreme Court; (2) it gave greater authority

to the decisions of the lower court; (3) the lower courts might be expected

to resolve all doubts against the statute and leave the Supreme Court power

to declare the statute void by majority action; (4) it created difficulties in

connection with conflicting decisions of courts of appeals on, the constitu-

tionality of the same statute.

Illinois critics examined the Ohio experiences under the amendment

and found that the Ohio Supreme Court was almost as active in declaring

laws unconstitutional in the six years after 1912, as they were during the

six years preceding that date. There were only one or two cases where the

amendment applied. In most cases there was not more than one dissent.

There was one case at least 98 Ohio Reports, 446 (1918) in which the

court declared a law constitutional although four of the seven judges re-

garded it as unconstitutional. There seems some basis for the view that

the court makes an effort to come to a unanimous opinion if possible upon

constitutional matters.

• 36
 

Development of the Judicial System     of Ohio       231

to strengthen the presumption that an act of the General

Assembly is constitutional.80

Provision was also made for a chief justice of the

Supreme Court which was formerly provided for by

statute. There are now seven Supreme Court judges,

one of whom is elected Chief Justice. The new Consti-

tution also affected the justice of the peace. Art. IV,

Sec. I of the Constitution of 1851 provided that "the

judicial power of the State shall be vested in a Supreme

Court, in district courts, courts of common pleas, 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 may from time to

time, establish.81 The same article as revised in 1912

provided that "the judicial power of the State is vested

in a supreme court, courts of appeals, courts of common

pleas, courts of probate, and such other courts inferior

to the courts of appeals as may from time to time be

established by law." In other words, the justice of the

peace was abolished as a constitutional officer.82

80 See Ohio Constit. Convention (1912), Proceedings and Debates,

proposals 63, 80, 137, 142, 146, 184, 276.

81 Amended, October 9, 1883; Laws of Ohio, vol. LXXX, p. 382.

82 A special committee was appointed by the Convention to frame a

statement to be sent to each justice of the peace in the State explaining the

effect of this change. Their statement attempted to show that the justices

of the peace would continue to hold office and function just the same as

before the amendment. It pointed out to these officers that provision is

made in the General Code for justices of the peace, as well as their election

and duties, in sections 1712-1806, inclusive, and for their jurisdiction and

powers in sections 10223-10491, inclusive; and none of these statutes will

be repealed by the adoption of any of the constitutional amendments pro-

posed. Ohio Constit. Convention (1912), Proceedings and Debates, vol. II,

p. 2117. Note debate on this subject on pp. 2086-2092.

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232      Ohio Arch. and Hist. Society Publications

The provision in the Constitution of 1851 referring

to the Common Pleas Court was also somewhat modi-

fied by the new instrument.⁸³ That provision, as will

be remembered, divided the State into nine common

pleas districts and each district into three parts, in each

of which parts a Common Pleas Judge was elected for

five years. The new Constitution provided for the elec-

tion of one resident Common Pleas Judge for each

county and such additional judge or judges as might be

provided by law. It further provided that any Common

Pleas Judge might temporarily preside and hold court

in any county; and until legislative action was taken

the chief justice of the Supreme Court could pass upon

the qualification or disability of any common pleas judge

and assign any judge to any county to hold court. The

term of office for the Common Pleas Judge was changed

from five to six years at this same time.

The provisions of the Constitution of 1851 concern-

ing the Probate Court were also modified somewhat in

1912.84 The 1851 instrument provided for the establish-

ment of a probate court in each county, held by one judge

elected by the votes of the county. This officer held

office for a three-year term. His compensation was by

payment from the County Treasury, or by fees, or both.

The 1912 provision changed the term to four years and

omitted the provision for fees. It simply provided for

compensation out of the County Treasury. It further

provided that any county having a population of less

than 60,000 might abolish the probate court and confer

its duties on the Court of Common Pleas.

83 See Ibid., proposals 69, 80, 142, 225, 303.

84 See Ibid., proposals 142, 225, 304, 120, 303, 315, 120.

• 38
 

Development of the Judicial System of Ohio       233

Summary--Under the Constitution of 1912, the

judicial power of the State was vested in a Supreme

Court, a Court of Appeals, a Common Pleas Court, a

Probate Court and such inferior courts as might be

established by the Legislature. The justice of the peace

was abolished as a constitutional officer by this instru-

ment but continued to flourish as the chief judicial

officer of the township. In the cities he was sup-

plemented by the Mayor's Court, Police Court and Mu-

nicipal Court. The jurisdiction of the Supreme Court

and the Court of Appeals was affected by the New Con-

stitution.

Remarks.--The importance of the early formative

period in the future judicial history of Ohio is quite

apparent. The general system of government that Ohio

was to have for over one hundred years was largely de-

termined during this period. Practices and devices were

adopted in response to the needs and conditions of the

scattered frontier population which carried on in Ohio

government when altogether different conditions of life

had arisen. Certain it is that during this first decade of

Ohio's statehood the future judicial organization of Ohio

was molded and the relationship of the courts to the

other branches of the government was quite generally

determined.85

 

85 Dean Roscoe Pound in speaking of this period of American judicial

history said: ".... the chief problem of the formative period of our

American legal system was to discover and lay down rules, to develop a

system of certain and detailed rules which on the one hand would meet the

requirements of American life and, on the other hand, would tie down the

magistrate by leaving as little to his personal judgment and discretion as

possible; would leave as much as possible to the initiative of the individual

and would keep down all governmental and official action to the minimum

required for the harmonious coexistence of the individual and of the whole.

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234         Ohio Arch. and Hist. Society Publications

During the early period it was necessary to bring

justice to every man's door. Travel was slow and com-

munication was difficult.⁸⁶ To set up a centralized court

would entail intolerable hardships to litigants,   Ac-

cordingly a number of local courts of general jurisdic-

tion at law and in equity were devised and our policy

has been one of multiplication of courts ever since. If

one word were used to describe the judicial system set

up during this time that word would be "decentralized".

If any trace of this "decentralized" condition exists to-

day it can be definitely ascribed to our tenacious adher-

ence to the form of judicial organization which was set

up for the pioneer, rural communities of early Ohio.

 

...... A second problem in the formative period of American law was

to decentralize the administration of justice so as to bring justice to every

man in a sparsely settled community." The Spirit of the Common Law,

pp. 119-120.

86 In 1834, the number of cases on the trial docket of the Supreme

Court was 1,459. The judges were occupied en bane from three to four

weeks annually. Court was held in seventy-two counties, requiring 2250

miles' travel. The best roads were very poor, and most of them impassable

on wheels. It was most frequently travelled on horse back unless passage

by boat could be made, which was not often. The saddle-bags of the judge

carried his meagre legal library. This difficult schedule could not have been

accomplished without a division of labor among the four judges of the

Supreme Court. Such a division fortunately could be made under the exist-

ing law, as the constitutional provision requiring the Supreme Court to hold

court once a year in each county also provided that a meeting of two judges

would constitute a quorum. The judges took advantage of this provision

and relieved one another at their own convenience. Judge John C. Wright,

who was on the court at that time, thought that if this necessary relief were

not provided, it would have been difficult to find men of sufficient physical

ability to participate in all of the circuit duty of the Supreme Court. See

Preface, Wright's Reports of Cases at Law and in Chancery, 1835.

• 40
 

Development of the Judicial System of Ohio     235

 

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3. Report of the Proceedings and Debates of the third

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1.  Burnet, Jacob, Notes on the Early Settlement of the

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Boston and New York, Houghton, Mifflin and Co., 1903.

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236       Ohio Arch. and Hist. Society Publications

 

4. Watson, David K. "The Early Judiciary, Early Laws and

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5. Galbreath, C. B. Constitutional Conventions of Ohio. Co-

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12. Joseph H. Hixson. The Judicial Veto in Ohio. (Master's

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14. Haines, Charles G. The American Doctrine of Judicial Su-

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• 42