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.
(195)
196 Ohio Arch. and Hist.
Society Publications
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
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
198 Ohio Arch. and Hist.
Society Publications
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.
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.
200 Ohio Arch. and Hist. Society Publications
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.
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.
202 Ohio Arch. and Hist.
Society Publications
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.
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
204 Ohio Arch. and Hist. Society Publications
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.
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.
206 Ohio Arch. and Hist. Society Publications
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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,
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Development of the
Judicial System of Ohio 235
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2. Report of the
Debates and Proceedings of the Conven-
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Con-
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3. Report of the
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7. Burnet, Jacob.
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8. Western
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Cincinnati, 1833. Contains the statutes of
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1. Burnet, Jacob, Notes on the Early
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Northwestern
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Pub-
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