Ohio History Journal

6          OHIO HISTORY

marry, and later live with her family in Columbus, Ohio.² Sardis Birchard,

when twenty-seven years of age, left the Hayes household to become a

pioneer settler, merchant, and later the first banker of the small community

of Lower Sandusky in northern Ohio, near Lake Erie.³

In the ¹⁸³0's, a widow had limited opportunities in Ohio to provide her

children a good education. The Hayes children, Fanny and "Rud" (as he

would be called by intimate friends) , attended the schools available to them

at Delaware. They were eager students, particularly attracted to the roman-

tic stories of Scott. Rud continued his studies at Norwalk Academy, Nor-

walk, Ohio; and then, through the urging of an influential family friend,

Judge Ebenezer Lane of Sandusky, Ohio, was sent to the Isaac Webb Acad-

emy at Middletown, Connecticut, where Judge Lane's son, William, was

attending.⁴ Although the youthful Hayes was agreeable to being educated

in the East, he preferred Ohio; so when his mother, who needed him nearer

home, thought of sending him to Kenyon College after he had finished the

Academy, he encouraged her to decide upon that Ohio college. He entered

the freshman class there in November 1838.5

Hayes's mother and sister were ambitious for him--strongly so; but they

feared that by too much application to his studies he would damage his

health. He had not been robust. They balanced their appeals by words of

caution. As for Hayes, he preferred hunting as much as he could; and when

he thought of the future, it was in terms of being a farmer.⁶

Inevitably, though, the time arrived when he felt the need to decide on a

future. This was in his second year at Kenyon. "What shall I do after leav-

ing college?" he asked his mother. "Now, I . . . have no fears that I shall

starve as long as I have 'teeth and toe nails.' If I could have a good farm, I

would have to be a farmer; but if not, I shall spend all the money I can

lay fingers on to get a good and complete education, and when I am entirely

run out [of money], I will practice law in some little dirty hole out West."⁷

His mother answered him at once, for both she and her brother Sardis

hoped he would choose law. "I do not think you need to feel any anxiety

about what calling you will pursue after you leave college. With good health

and a good education, with good principles, you have nothing to fear.

Thousands of such young men are wanted in every occupation. If you study

law, it will not unfit you for any more favorable pursuit that may offer."⁸

Then she wrote her other brother, Austin, in Vermont: "Rutherford prom-

ised his Uncle Sardis that he would study law, and he intends doing it--but

says, if he don't like it better than he expects, he will be a farmer some

time."⁹

Hayes had some ideas about the legal profession, but he was not sure that

he would be equal to it. One of his tutors at Delaware, Sherman Finch, was

a practicing attorney. His own father's younger brother, William Ruther-

ford Hayes, of New Haven, Connecticut, had graduated from Yale Law

School but had given up practice because of ill health; and there was also

an uncle by marriage, Congressman John Noyes who had been a lawyer as

well as a partner of his father in the mercantile firm of Noyes, Mann and

RUTHERFORD B. HAYES, Attorney at Law                              7

Hayes, in Dummerston. In fact, his Uncle John Noyes had been a tutor of

the great Daniel Webster at Dartmouth.

[In an appraisal made at this time, Hayes said of himself]: I know I

have not the natural genius to force my way to eminence, but if I

listen to the promptings of ambition . . ., since I cannot trust to inspira-

tion, I can only acquire it by "midnight toil" and "holy emula-

tion". . . .10 [He thought about remaining an additional year at Ken-

yon.] I wish to become master of logic and rhetoric, and to obtain a

good knowledge of history . . . .11

If I would attain the eminence in my profession to which I aspire, I

must exert myself with more constant zeal and hearty good will than I

ever have before. The life of a truly great lawyer must be one of se-

vere and intense application; he treads no "primrose path"; every step

is one of toil and difficulty; it is not by sudden, vigorous efforts that he

is to succeed, but by patient, enduring energy, which never hesitates,

never falters, but pushes on to the last. This is the life I have chosen.

I believe it is a happy one.12

Whenever he could find an opportunity, Hayes attended court and lis-

tened to any proceedings which might be in progress. One case which he

witnessed at Gambier involved a school boy who attempted assault on the

mistress of the district school. She sent for the superintendent who whipped

the boy "slightly"; the superintendent was "taken up and tried." The trial

was honored by the presence of all the students," Hayes said. He sketched

the principals involved and reported the proceedings in detail to his sis-

ter. The lawyers, he said, were "O'Neil, . . . easily enraged, irritated"; and

Columbus Delano, "a cool, witty, first-rate man." The justice, "a good

farmer. . . . This trial pleased me so much,"¹³ he confessed. As Hayes ma-

tured, interest in people grew strongly in him, and it would be as a crim-

inal lawyer that he would excel.

While visiting at Columbus during the Christmas holidays, he attended

the United States Circuit Court and listened to arguments of some of the

ablest lawyers in the state. "I never hear a speaker but that I am encour-

aged to renew my exertions," he said.14

The thoughts he had about an extra year at Kenyon did not materialize.

His hard study, though, made him valedictorian of his class. Instead of stay-

ing at Kenyon, he went to Columbus to live with his sister and her family

and to study law under any good lawyer who would help him. Attorney

Thomas Sparrow was recommended. "I went to Mr. S. and have been study-

ing in his office ever since," Hayes wrote his uncle. "I like the study and

am well satisfied with my teacher . . . . He gives me more instruction than

law students usually receive, so that in the minutia of legal practice I have

a better opportunity to learn than I should have with an older and abler

man. . . . I am also studying German," he added. "My legal tuition costs

me nothing; my German, twelve dollars per quarter. The first I consider

cheap; the last, dear."¹⁵ The study with Thomas Sparrow continued be-

tween October 17, 1842, and August 5, 1843, and then Hayes was given an

8                                                OHIO HISTORY

informal certificate certifying that he had "with great dilligence [sic] regu-

larly prosecuted the study of the Law" and that he was "a young man of

good moral character."16

Sardis Birchard in his multifarious operations at Lower Sandusky would

have constant need for legal advice, but he did not think his nephew was yet

adequately prepared for law practice. Since Hayes had elected to enter

upon a career in law, Sardis decided to send him to the leading law school

in the country--the Law School at Harvard University--to study with the

eminent jurists and teachers, Simon Greenleaf and Joseph Story. The chal-

lenge was one that Hayes was glad to accept. He left for Cambridge and en-

tered the term at Harvard commencing on August 28, 1843. "Whatever

resolution and ability I have," he commented, "shall now be brought out."¹⁷

Reporting to his uncle within the month, he wrote: "The advantages of

the law school are as great as I expected, and the means of passing time

pleasantly, even greater. It is full as well, perhaps better, that I studied in

an office before coming. I am occupied but I am not pressed hard. . . . The

instructors I like very much. Our recitations are so interesting that there

is no temptation to neglect them. We are under no compulsion in anything,

except paying our bills."¹⁸ His classroom was more than a recitation hall.

"The first men in the country have been in, so I have a fine opportunity of

seeing the great ones; besides, we often hear them, for Judge Story, being

the Circuit Judge of the United States [as well as professor] is often called

upon to decide cases in his jurisdiction. . . . Judge S. is a very pleasant man

-gets acquainted with the students very quick and is very fond of cracking

jokes with them. In the recitation room he indulges in a great deal of wit

and humor. . . . A more industrious man I never knew. He does an amount

of labor that would startle a young man . . . .

"In [our] Moot Court . . . Judge S. always presides as if in a real court

and gives his decision in due form. Those who are acquainted with our

manner of doing business frequently send, when they have a knotty ques-

tion, to learn if it has been discussed in Moot Court. . . . The Judge is fond

of Styling it the high-court of appeals for the whole world."¹⁹

Hayes remained at the Harvard Law School for three terms of twenty

weeks each, and received his Bachelor of Laws diploma on August 27, 1845.

In addition to his law studies, he had attended lectures and addresses given

by such eminent men as John Quincy Adams, George Bancroft, Richard H.

Dana, Jr., Henry Wadsworth Longfellow, Jared Sparks, and Daniel Web-

ster. For exercise, he had played ball, which he liked especially.²⁰

With his studies now completed, where would he go to begin his law

career? Earlier, he had consulted his professors and members of his family

on this point. His mother, at the time, was living with his sister Fanny and

her family in Columbus. They wanted him to come to the capital where

laws were made, live with them, and be in the midst of legislative life. His

Uncle Sardis was in Lower Sandusky, a small village where, from time to

time, he had need for a lawyer and wanted him to come there. Professor

Greenleaf's advice had been that "the young man who goes into a large

RUTHERFORD B. HAYES, Attorney at Law                              9

place, unless under circumstances peculiarly favorable, commits an error.

If he settles in an obscure place where he is sure of some business, he is

much more likely to reach the ultimate object of his desires." Hayes had

thought so, too; it was what he wanted to do; so he decided upon Lower

Sandusky. "If I do not like my first choice, I can make another," he told

his sister.²¹

The return to Ohio was made early in February 1845. About a month

later, on March 10, at Marietta, he appeared before Justices Matthew

Birchard and Reuben Wood for his bar examination. While preparing for

it, he "had a set-to with the Revised Statutes of Ohio, which occupied my

leisure hours about two weeks. I then hastily reviewed Blackstone, after

which I took up Swan's new book on Practice, and read a few chapters upon

the same subjects with that portion of Chitty which we read with [Simon]

Greenleaf."²² Charles Backus Goddard, of Zanesville, father of a Harvard

classmate, Daniel Convers Goddard, "puffed me [up] a little, got a com-

mittee appointed, who spent an hour or two in asking questions, such as

anyone who has Bl[ackstone] Com[mentaries] and a little practice ought to

be able to answer. The only "dead" [mistake] I made was on some simple

matter in bailments; a title which you know is a hobby at Cam[bridge]

and about which I know more than any other. I became some acquainted

with Goddard and like him much. . . . There were two men examined with

me--one (Akins) a pretty good lawyer about fifty years old; and the other

(a Mr. Evans), a very stupid fellow about thirty.²³ Members of the Ohio

Supreme Court meeting in Marietta at this time were Ebenezer Lane,

Chief Justice, and Justices Reuben Wood, Matthew Birchard and Nathaniel

C. Read. Later, Matthew Birchard would claim relationship.²⁴

The new lawyer arrived at Lower Sandusky about a month following his

admittance to the Ohio bar. In the meantime, he had had a leisurely visit

at Kenyon College, and spent several days in Columbus with his mother

and sister and her family. At Lower Sandusky he settled down in an office,

"a very convenient little tenement about 15 ft. sq.," on the west side of

the Sandusky River. "I know of no person here who will be just the one

for a companion," he wrote his good friend and fellow-lawyer, Will Lane,

at Sandusky. "It is said that two of our lawyers [C. K.] Watson & [B. J.]

Bartlett intend leaving . . . . That would leave but six lawyers in the place,

counting 'the undersigned' as only one."25 To his sister he said, "The law-

yers all treat me kindly and the only ones I could ever think of dreading

are decidedly friendly."²⁶ As Hayes's law career progressed, he would tend

to become more and more a "lawyer's lawyer," in much demand as a con-

sultant and associate in complicated cases.

As for living quarters at Lower Sandusky, Hayes decided to share a room

with a cousin, John Rutherford Pease, a son of his Aunt Linda Hayes

Pease, at Captain Samuel Thompson's tavern on the turnpike, east of the

river, previously known as the "Blue Bull Tavern." His Uncle Sardis had

for many years lived with his friends, the James Vallettes, about two miles

southwest of the center of the village.

10                                                OHIO HISTORY

The dust had barely settled about him before he was given a case. The

State of Ohio, for the use of Alvin Coles, a former partner of his Uncle's,

now Commissioner of Insolvents for Sandusky County, brought an action

against John Strohl, formerly county sheriff, and his sureties, Barnhart

Kline, Hugh Bowland, John Bell, John M. Smith and Isaac Swank, in a

plea of debt. Hayes conducted the suit for the State of Ohio. The back-

ground was that Jacob Strohl, having been elected sheriff of Sandusky

County for two years at the general election in 1844, was bonded on No-

vember 26, 1844, and in the course of his duties was required to execute a

judgment which Alvin Coles had obtained against Edward Wyler for over

$200. He was commanded to levy against Wyler's goods. Accordingly, in

February 1845, the sheriff attached Wyler's property consisting of a number

of horse collars, saddles, bridles, "stoger" boots, calf and deer skins, leather,

and "one chest of Hyson tea." The goods were offered for sale on March 11,

but only a few of the horse collars and bridles were sold, realizing a total

of only $16.18, because of lack of bidders. Thereupon, Sheriff Strohl re-

signed his office on April 3, but failed to deliver the money and property

to the coroner of the county, as required by law. After which Alvin Coles,

in the name of the State, sued the sheriff for $5,000 damages, and the bonds-

men for $15,000, the amount of their bond.²⁷

Hayes told his sister: "I assisted in pettifogging [i.e., conducting unim-

portant law business] a case last week and have hopes of becoming quite a

pettifogger in time. . . . My prospects as to business are better than are

given to most young lawyers. The fact that Lower Sandusky is what it is,

makes it just the place for me. . . . Lower Sandusky is a town in which the

houses, fences &c (with one exception) were built not merely without any

good taste, but with apparent disregard of all taste and comfort." He had

found his "dirty little hole out West.^"28

Before his first case was resolved, he was asked to assist with a criminal

action which excited considerable interest in the county, in which he, him-

self, was one of the victims. Arrest proceedings had been brought against

Albert G. Clark, a young man who, with his recent bride, was staying at the

Tompson Tavern. For the past year Clark had been in the community

studying law with a view of being admitted to the bar. He was indicted for

entering the room shared by John R. Pease and Hayes at the Tompson

Tavern, on the night of May 21, 1845, and stealing Pease's wallet containing

over $100 in cash, three or four hundred dollars in securities, his watch, and

also Hayes's watch (the "one-handed one"). Clark pleaded innocent and

was defended by B. J. Bartlett.²⁹

Lucius B. Otis was the prosecuting attorney, and he was assisted by

Cooper K. Watson and R. B. Hayes in gathering evidence against Clark.

"I have been at Sandusky City, Milan and all about," Hayes wrote his sis-

ter, "hunting evidence to convict a very clever, genteel knave, formerly one

of Herman A. Moore's stewards."30 During Clark's trial before Judge M. H.

Tilden in the Common Pleas Court, it was brought out that Clark had

practiced a "series of impositions upon the unsuspecting" in the commun-

RUTHERFORD B. HAYES, Attorney at Law                            11

ity and neighboring area, and had tried to alibi that he was in Elyria the

night of the robbery. But witnesses placed him in Clyde at 9 P.M. that night,

and the following morning, at an early hour, "he was seen riding at a gal-

lop, about 7 miles from town, going east." He had passed several bills at

different places after the robbery, but on being arrested, nothing was found

on him but "a 10 cent or shilling piece." He did not offer any evidence to

support his alibi but relied on the insufficiency of the prosecutor's testi-

mony to convict him.³¹

The jury, hearing all the evidence, deliberated only a few minutes and

brought in a verdict of guilty. Though it was not brought out during the

trial, Clark had confessed his guilt to his counsel shortly after he was ar-

rested, and had turned over to him the money and watches, except some

money which he had spent, and told where he had thrown the bundle of

notes. The judge sentenced him to serve five years in confinement at Co-

lumbus,32 and Sheriff Daniel Burgner, "a sort of client" of Hayes's, de-

livered the prisoner to the penitentiary along with a personal letter Hayes

wrote to his sister about the case.³³ "The thief," he said, "was a law-student,

a 'genteel good-looking Loco Foco orator' who went about last summer

abusing [Henry] Clay for bad moral character."34

The Supreme Court held a session in Lower Sandusky the week of August

20-25, 1845. "One of my old friends named [Stanley] Matthews, came from

Cincinnati to [be] examined for admission to the bar. I was one of the com-

mittee to examine him. He graduated [from Kenyon] about two years be-

fore I did and was beyond dispute a better lawyer than any of the examin-

ing committee."³⁵ Matthews, since his graduation, had been practicing law

in Tennessee as well as editing the Tennessee Democrat. A few years later

he and Hayes would serve in the same regiment in the Civil War, and

Hayes while President would nominate him a justice of the United States

Supreme Court.

At the end of his first year of practice, Hayes summed up what he thought

about it. "I had often been told when I was studying law that the Study

was very pleasant, but the practice dry and tedious. I have thus far found

the contrary nearer true. The study the first year was certainly the most

vexatious and tedious of anything I ever attempted; the practice . . . is,

upon the whole, quite interesting. Much more so than I ever anticipated.

. . . Judge Tilden and Judge E. Lane both told me . . . that I deserve suc-

cess for the wisdom I had shown, in spite of appearances, in selecting my

location."³⁶

On April 1, 1846, at the onset of his second year as a lawyer, Hayes

formed a partnership with Ralph P. Buckland, whom he considered to be

the leading legal mind in the village. Buckland was to have a distinguished

career as an officer in the Civil War, and after the war both he and Hayes

would serve together in Congress. The partnership came about in this way,

Hayes recalled:

On Tuesday or Wednesday, about the 7th of February, 1846, a

crowded Stage, of the Concord pattern, belonging to the line of Neil,

RUTHERFORD B. HAYES, Attorney at Law                             13

in that way may be of no benefit. Birchard bought the tract at Sheriff's sale

in 1832 when it was sold under a decree rendered in 1826 in favor of Thomas

L. Hawkins against Thos. E. Boswell and others, all the defendants non-

residents of the State, for a large sum of money, over $1,800. The grounds

upon which the claim is now raised are not known, but it is supposed that

they think the Decree void for want of jurisdiction over the parties--that

a money decree against persons, all non-residents, is void. I send you a copy

of the proceedings upon the record. . . . You know, I suppose, where the

tract lies; the south line crosses the Pike a few feet west of Judge [James]

Justice's house at the foot of the hill--Dr. [L. Q.] Rawson's house stands on

it. It is so valuable that Birchard & Dickinson will not give it up without a

fight."⁴⁰

And they did not. Since the litigation was between citizens of different

states, the case went first to the United States Circuit Court and thence to

the Supreme Court. As the case progressed, Henry Stanberry was added to

Birchard's counsel, and he was sent to Washington to present the case to

the Supreme Court. Thomas Ewing assisted as opposing counsel.

During litigation, Rodolphus Dickinson died, and the suit before the

Supreme Court was then entered in the name of his heirs in December

Term, 1849, as Thomas E. Boswell's Lessee, Plff., vs Lucius B. Otis, admin-

istrator, Margaret Dickinson, widow, and Edward F., Julia S., Margaret 0.,

John B. B., Rodolphus, Martha, Jane, and James A. Dickinson, minor chil-

dren of Rodolphus Dickinson, and Their Guardian and Next Friend, by

L. Q. Rawson. The Supreme Court decision was delivered by Justice John

McLean, an Ohioan, in favor of the plaintiffs.⁴¹

The blow was a severe one to Sardis Birchard who was working hard to

develop the town he adopted, loved, and in which he had made his home.

"Watson was here a few days ago," Hayes sent word to his uncle from

Cincinnati, "on his return from a visit to Boswell [in Kentucky]. I saw him

by a mere accident. I think he was not anxious to see me. He says you are

reported to have been a good deal excited when you learned the result [of

the Supreme Court decision] and talked about raising a little army and

making resistence! &c &c. 'Boswell,' said he, 'asked me the value of the

property. I told him I couldn't tell. It would be in litigation for ten years,

see-sawing between the state and federal courts, and no man in Ohio would

dare to buy it.'"42

Even though he had moved to Cincinnati since the case began, Hayes

continued to be his uncle's chief legal adviser on it. In May 1851, Hayes

sent word to Birchard, "I have received a letter from Bartlett today. He

says he has full powers to sell or settle Boswell's claim. Is anxious to do so.

That there is a project on to sell out the claim, a part down and the balance

contingent on the result of the suit; that he don't like the scheme; pre-

fers to settle with us; that we must settle 'soon' if we expect to deal with

him; that the town is injured by the controversy &c &c. and he wishes to

see it ended. In reply to this, I say to him, by this mail, that I prefer settling

with him to anybody else, that I anticipate difficulty by reason of your

14                                               OHIO HISTORY

pride in the matter, that I view it merely as a dollar and cent affair to be

decided by pecuniary interest, that the fight is likely to ruin the property

for all sides for a long while, that a part now is better than the whole here-

after, and that I will come out and talk the matter up with him about the

middle or 20th of June."⁴³

This notation follows in Hayes's Diary: "June 17, 1851--By Railroad to

Shelby and Sandusky; next day to Fremont. There settled with Bartlett

Uncle's intermible lawsuit. Good."

There was another legal battle in which Sardis Birchard became involved,

this time with the Junction Railroad Company. Representing him were

Buckland & Hayes. He sought an injunction against the company in order

to prevent them from building a bridge over Sandusky Bay, as the company

planned to do in extending its lines in northern Ohio. The case was quite

involved, but Sardis believed that a bridge across the Bay would interfere

with ship traffic, making shipping rates higher between Lower Sandusky

and the bridge. The case was of long duration; was carried into the United

States Supreme Court; and Hayes was to continue to work upon it after he

had moved to Cincinnati.⁴⁴

On April 11, 1853, Hayes jotted in his Diary: "Argued my first case in a

court of the United States last week. . . . This was my first oral argument.

Mr. [George E.] Pugh and Thomas Ewing were on the same [our] side.

Judge Lane, Mr. Beecher, and Judge Andrews opposed. The case is one of

great importance, viz, application to restrain the Junction Railroad Com-

pany from crossing Sandusky Bay on the ground, first, that it violates their

charter, and second, that it would obstruct the navigation of the bay.^"45

About a month later the injunction was granted.

Hayes's health usually had been fairly good, but the year 1847 had been

severe on him physically. The first week of the year was a wet, cold one.

"We have had a glorious flood here," he wrote his sister. "The water be-

gan to rise New Year's day and by the night of the 2nd, Pease and myself

could not get to our boarding house, dry shod. I spent the whole forenoon

[next day] building a raft to get over to this (the "Babylon") side to see

the fun. In the afternoon I and Pease got over. We chartered the finest

boat in Lower [Sandusky] and in company with Sarah Bell's husband [John

M. Smith] and went to getting out the women, children, hogs, cows, and

cats. In this way we spent part of Sunday and all of Monday, sailing all the

way to our meals -- over Pease's garden fence and through the tops of apple

trees, beating Vermont snow drifts all to death. It was royal sport. I've not

felt so much like a rowdy boy in a long time. Of course, the damage was

something -- though trifling in comparison to the losses of farmers &c

up about Tiffin . . . But this side of the River did not suffer any; since the

wash many years ago, they have raised it out of the reach of the River."⁴⁶

That spring Hayes was to suffer from a raw throat and could not shake

it off. He told his friend, Will Lane, "at the time of our flood . . . (an era

in the Annals of Lower Sandusky), I took a severe cold which clung to

me so long that a month or two ago it really unfitted me for working or liv-

RUTHERFORD B. HAYES, Attorney at Law                               15

ing within doors. My friends at once became unnecessarily alarmed and

determined that I should quit practice and 'go to grass' for the space of a

year or more . . . I have been taking Dr. Mussey's prescriptions about

three weeks, viz:. daily potations of Snake Root, a sort of fish oil, and

Whiskey well shaken by exercise in the open air. The result is I have re-

covered my usual strength, and color, and though my cracked weasand

[throat] still bleeds occasionally, it is rapidly healing."⁴⁷

He was advised by his physician to leave the office for a while, and he

thought of joining the army as a volunteer for service in the Mexican War.

His landlord, Captain Samuel Thompson, a veteran, was raising a company

for service. Hayes went down to Cincinnati for a physical check-up, carry-

ing with him letters of introductions from Judge Lane and others which

he hoped would help him in getting a commission. Both Dr. Mussey and

Dr. Dresbeck who examined him, agreed that he was not fit to go to Mexico,

and he was forced to change his plans. His sister was elated; she had op-

posed the idea vigorously; so had his mother and uncle, though they were

careful in stating their objections.

Instead, Hayes and his room mate, John R. Pease, went off to New

England, to be gone from July 20 to September 26, 1847. They went to

visit relatives, and Hayes wanted to see a girl, a cousin of Will Lane's, whom

he had met when she was on a visit to Sandusky. He thought a great deal

of her; thought of her, in fact, as a wife. "She is a home body--she is pious

(very) after the Puritanical School (N.B., suits mother); a little--perhaps

a good deal--aristocratic (N.B., suits you)," he wrote his sister about Fanny

Griswold Perkins. "A mixed disposition, half frolicksome--half poetical

(N.B., suits me) a decided taste for reading and music, and I think per-

fectly sincere. Taking all together, that's as good character as could be

desired."⁴⁸

But it was not to be; her mother and sister objected to Fanny's marrying

and living in the West, and Hayes would not live in the East. He did not

press her; they parted friends, but regretfully. ". . . So ends my first love

affair . . ."

Well, let it pass--there's other gals,

As beautiful as she;

And many a butcher's lovely child

Has cast sheep's eyes at me,

I wear no crape upon my hat,

'Cause I'm a packin' sent--

I only takes an extra horn,

Observin' LET HER WENT!49

The trip was beneficial to his health even if he had been disappointed

in love. He returned to his office but there was net much of interest to

do, only routine matters, minor disputes, and collections. His social life

was not particularly stimulating, either; occasionally there was a ball, an

oyster supper, sleigh rides in the winter, and not much else. When court

was in session, there were short-lived flurries of activity. But the routine

16                                              OHIO HISTORY

was beginning to bore him; he was not making the progress he had hoped

for.

"As the period I had fixed for my pilgrimage here is within a year or

two of its close," he wrote his sister in July 1848, "it is about time to de-

termine what community shall be next blessed with my presence . . . I'd

like to live in Cincinnati, if I could get 'a fair start.'"⁵⁰ He had been im-

pressed with the "Queen City"--the largest city in the West, when he

went there to try to join the army for the war with Mexico. "I want to

spend another fortnight in Cincinnati to satisfy myself whether an attorney

of my years and calibre would be likely to get business enough to pay

office rent in that growing village."51

Sardis Birchard's health was especially bad the winter of 1847-1848, but

by the following fall he was able to enjoy stumping Sandusky County with

Hayes in support of Zachary Taylor. After the election both men decided

to spend the winter away from Lower Sandusky by exploring the new

state of Texas and visiting Hayes's Kenyon classmate and lifelong friend,

Guy M. Bryan, of Brazoria. This southern friend and his trip would have

a strong influence later upon Hayes's views regarding the South and its

problems. They left Lower Sandusky on November 21 for Columbus via

Mansfield and Mount Vernon, and arrived in Cincinnati on Friday, De-

cember 8, to board a river boat, the Moro Castle, for New Orleans, and

the ocean steamer Galveston for Texas, arriving at Galveston December

26, 1848. The trip and visit were an exciting adventure, invigorating,

healthy for both.52

Returning with his uncle to Lower Sandusky late in April 1849, Hayes

resolved to "finally dissolve with Buckland preparatory to bidding adieu

to Lower Sandusky." But he was prevented by cholera in Cincinnati from

going there immediately. In the interval he helped his uncle with some

land matters, "being about half enough to occupy my time," did some law

reading, and attempted to put himself in a frame of mind "so as to be

able to survive the two or three briefless years which probably await me

at Cincinnati."⁵3 His mother understood some of his thoughts. "If you

have no business of importance the first year or two, don't be discouraged;

I fear you have not been thrown quite enough upon your own resources

in early life to launch your Barque alone in so large a sea, without some

anxiety to yourself."54

Before departing Lower Sandusky, he conducted one final bit of busi-

ness which would have a permanent effect upon the little community. On

behalf of his uncle and other leading business men, he selected a new name

for the village and presented the petition to the Common Pleas Court for

the change. The name proposed was "Fremont," in honor of the noted

western pioneer.⁵5

Judge E. Lane, the family friend, suggested that Hayes form a partner-

ship in Cincinnati with an established lawyer there. He had in mind a

Swedish Frenchman, James Florant Meline. But the proposed partnership

did not materialize, and Hayes decided to go it alone, as he had expected

RUTHERFORD B. HAYES, Attorney at Law                            17

to do in the first place. In December 1849, just before Christmas, he made

the journey in company with Judge M. H. Tilden, who was also trans-

ferring his business to Cincinnati. As soon as he could after arriving, Hayes

rented for $10 a month the use of one half of an office in the new Law

Building on Third Street in the very heart of the city. He shared an of-

fice with John W. Herron, a young lawyer from Chillicothe, who would

later become the father-in-law of a future President, William Howard Taft.

There was another interest for him in Cincinnati besides starting his

law career over again. In 1847, while Hayes was visiting his mother in

Delaware, he had met at the sulphur spring there a young girl, Lucy Ware

Webb, only sixteen, whom he could not forget. His mother knew her,

and later she would urge his consideration of her as a likely wife. In Cin-

cinnati she was a student at the Wesleyan Female College, shortly to grad-

uate, and was living with her mother and two brothers, who were studying

medicine.

With no business for some weeks, Hayes took every sound avenue to gain

new friends and to become known. He attended lectures, spent one or two

evenings a week with the ladies, attended the Episcopal Church, the gym-

nasium, and became a member of a "delightful little club [the Literary

Club of Cincinnati], composed of lawyers, artists, merchants and teachers,

which meets once a week--for debates, conversations, etc." He also joined

the Odd Fellows in Cincinnati; he had been a member of the order in

Fremont. And he attended the Sons of Temperance meetings and frequent-

ly gave addresses there and elsewhere, seeking opportunities to do so.56

It was during his second month in Cincinnati that he was able to note in

his Diary: "Received my first retainer in Cincinnati--five dollars from a

coal dealer to defend a suit in the Commercial Court."⁵⁷ In another month

he was able to say, "My busiest week . . . I mean, real business, in addition

to the business of 'sparking.' I have had ten new claims in Commercial

Court, one title to examine and make out papers, etc."⁵⁸ But this first

year in Cincinnati was, as he had expected, a dull one in law practice. He

filled his time with social activities, giving talks and circulating among old

and new friends.

The year 1852, when he was thirty, would be a milestone in his life. At

the beginning of the year he would be appointed by the court to handle a

criminal case, and at the year's end he would have a wife. On January 17,

1852, Hayes recorded that he made "in reality my maiden effort in the

Criminal Court." He had been named defense attorney for Samuel Cun-

ningham, a young man of respectable friends in Covington, Kentucky, who

was being tried in the criminal court for grand larceny. Cunningham was

involved with Henry Clifford and Mary Forsha who were charged with

stealing a large lot of dry goods in Covington, Kentucky. Cunningham

had received the goods, knowing them to have been stolen. "There was

really no defense to be made [for him]. . . . I endeavored to make a sen-

sible, energetic little speech in his behalf. He was convicted, but the prose-

cuting attorney paid me some handsome compliments as did also the

18                                                OHIO HISTORY

Court."⁵⁹ Cunningham was sentenced to serve three years in prison. The

other two, Henry Clifford and Mary Forsha, received sentences of five

and three years respectively.⁶⁰

At the close of his plea for Samuel Cunningham, Judge Robert B. War-

den of the Common Pleas Court, appointed Hayes to assist in the defense

of Nancy Farrer, a poisoner of two families. Hayes recognized immediately

the magnitude of the opportunity being offered to him. "It is the criminal

case of the term. Will attract more notice than any other, and if I am well

prepared, will give me a better opportunity to exert and exhibit whatever

pith there is in me than any case I ever appeared in. The poor girl is

homely--very; probably from this misfortune has grown her malignity. I

shall repeat some of my favorite notions as to the effect of original consti-

tution, early training, and associations in forming character--show how it

diminishes responsibility, etc. . . . Study medical jurisprudence as to

poisons; also read some good speeches or poetry to elevate my style, lang-

uage, thoughts, etc., etc. Here is the tide, and I mean to take it at the flood--

if I can. So mote it be!"61

Not only was it the criminal case of the term, as he said; it was to be

for him no doubt the most important case of his law career.

Nancy Farrer⁶² was homely indeed, almost repulsively so. She had been

born in Fannington, Lancashire, England, on July 24, 1832. When she

was about ten years of age, her father with another child, a son younger

than Nancy, emigrated to America, and Nancy with her mother followed

about two years later. Some years prior to leaving England, her mother

had become a Mormon and Nancy was said also to have joined the church.

After his arrival in Cincinnati, her father, too, joined the church, and the

family was said to have lived in Nauvoo about two years. Nancy's mother

considered herself to be a prophetess, imagining that she was the wife of

the Saviour and the mother of all living things. The father was a shoe-

maker, and seemed to have possessed ordinary intelligence, but he took

up drinking and became alcoholic. He tried suicide twice, once by jump-

ing into the Ohio River and again by cutting his throat. He finally died of

drunkenness in the Commercial Hospital of Cincinnati in 1847.

Somehow Nancy had gone to school and had learned to read a little.

She could enjoy reading her hymn book and newspapers and other light

literature. However, she did not appear to know how to write, for she

made a mark when asked to sign the indictment charging her with murder.

In July 1851, Nancy began living with Mrs. Mary Ann Green, who was

recovering from childbirth. Mrs. Green's husband went off on a trip

shortly thereafter, leaving his wife in possession of a considerable sum of

money. In a short time, a friend of the family, John R. Marks, called upon

Mrs. Green; and thinking Nancy not sufficiently intelligent to discharge

the duties of a nurse, he employed a Mrs. Anna Bazley⁶³ to assist her.

Soon, Mrs. Green was attacked with severe vomiting. Ice water which had

been prescribed for the purpose of settling her stomach, seemed rather to

irritate it. In October 1851, she died, the baby having died earlier.

20                                                OHIO HISTORY

child by means of arsenic.⁶⁶ Nancy was arraigned on December 8, 1851,

and tried in the Mayor's Court. Among the witnesses examined were the

husband and father Elisha Forrest, Dr. A. S. Dandridge, Drs. W. and T.

Salter of Salter's Drug Store, Dr. William Carson, and Dr. Schurts. The

latter had attended Mrs. Green and Mr. Forrest's children during their

sicknesses. Dr. Dandridge performed the postmortem examination, and

an analysis of the stomach of the child had been made by Dr. T. Salter,

apothecary.⁶⁷

As the case was picked up by the newspapers, much excitement was cre-

ated. In the preliminary trial before the mayor, Nancy Farrer was repre-

sented by Messrs. John F. Hoy and Israel Garrard; and Andrew J. Pruden,

Prosecuting Attorney for Hamilton County, represented the State. "The

testimony . . . is unfavorable to the accused," a correspondent for the Cin-

cinnati Enquirer noted. "There is something very mysterious to the whole

matter."⁶⁸ Nancy was committed to jail to await trial in the Court of Com-

mon Pleas of Hamilton County.

On January 10, 1852, the grand jury reported a bill of two indictments

against Nancy, and on January 15 she was arraigned in the Common Pleas

Court on two additional indictments for poisoning, charging her with the

murder by poisoning of four persons, James Wesley Forrest, Mrs. Cas-

sandra Forrest, John Edward Forrest, and Mrs. Mary A. Green. However,

she was to be tried in the Common Pleas Court only for the murder of

James Wesley Forest, who died on December 1, 1851.69

The Nancy Farrer case came before Judge A. W. G. Carter on Wednes-

day, February 18, 1852, with Andrew J. Pruden, Prosecuting Attorney for

the County, and P. McGroaty for the State; and John F. Hoy and R. B.

Hayes, who had been appointed to assist Hoy, for the defendant. Witnesses

in this trial were Elisha Forrest, for the State, who related the circum-

stances leading up to the death of his wife and two children; William

Salter, druggist, 60 Broadway; Edward Seandlier, druggist, in Fulton; and

George W. Landrum, druggist, corner of Congress and Butler, all swear-

ing that they had sold arsenic to Nancy; and Dr. H. C. Bone and Dr. S. L.

Green testifying that they had seen Nancy buying arsenic at two of the

drug stores.⁷⁰

Dr. J. R. Buchanan, teacher of the science of medicine, philosophy and

"particularly of the brain," testified as to Nancy's sanity--that "the general

tone and temperament of her brain would favor imbecility. . . . She was

rather a subject for compassion than for punishment."⁷¹

The testimony was concluded on Saturday, February 28, 1852, and Judge

Carter gave his charge to the jury: "The State claims that Nancy Farrer

did commit the crime as charged by the Grand Jury, and is therefore guilty.

The defense claims that the facts testified to in the case are of too uncer-

tain nature; that the evidence is but circumstantial, and points with equal

or more force to some one else as the perpetrator of the act, and that if

the facts should produce the conclusion upon the minds of the jury that

the act was done by Nancy Farrer, even then, says the defense, she is not

RUTHERFORD B. HAYES, Attorney at Law                          21

guilty as charged, because she was and is not a responsible being--that she

did the act through imbecility--from insanity."72

The jury retired to consider the case on Saturday afternoon about 3:00

P.M. After being out two nights and all of Sunday, they came into court the

following Monday at about ten o'clock and sought further instructions

upon the question of imbecility. They then retired, and remained in session

until about 6 o'clock, Tuesday afternoon, March 2, bringing in a verdict

of guilty of murder in the first degree.73

Before sentencing Nancy, Judge Carter tried her accomplice, Mrs. Anna

Bazley, who had been found and indicted with the girl for murder of Mrs.

Mary Ann Green by poisoning.⁷⁴ Before Mrs. Bazley's trial, Nancy had

been quite confidential with her young counsel, Hayes. She had told him,

"I did not poison Mrs. Green; she did it; she showed me how to do it.

She taught me." "Will you swear to this, Nancy?" asked Hayes. "I will, for

it is God's truth." But on the witness stand, when questioned, she com-

pletely exhonorated Mrs. Bazley of all knowledge of the presence of arsenic

in the water drank by Mrs. Green. The jury, without retiring from the box,

returned a verdict of not guilty. When Hayes asked her after the trial

why she had lied to him, she said, "Oh, well, one woman is enough to hang

for murder, and I didn't mean to hang Mrs. Bazley."⁷⁵

Hayes spent two days before the Court arguing for a new trial for Nancy,

but his motion was overruled. Judge Carter then proceeded to pronounce

the sentence of the Court: Nancy Farrer, "to be conveyed from this place

to the jail of Hamilton County, thence to be conveyed to the place of exe-

cution in the yard of said jail, and then between the hours of eleven o'clock

in tle morning and one in the afternoon, be hanged by the neck until

dead."⁷⁶

Thereupon, Hayes appealed to the District Court, which met on April

21, 1852, for a new trial, basing his appeal upon a writ of error, enumerat-

ing six points of error. He applied, too, to the Court to have the sentence

suspended until after the meeting of the Supreme Court of Ohio at Colum-

bus, so that an appeal might be made to that body upon a writ of error.

This motion was granted.⁷⁷

On learning of Nancy Farrer's sentence, Hayes's mother sent word to

him: "If the Governor pardons her it will be because she is a woman. Is

not that degrading to the female sex? . . . I should like to know a good

reason why a woman should be acquitted when the same crime would con-

demn a man. They are as capable of knowing right and wrong as any man.

They have no more temptation to sin than men, and they should be as

severely punished, for an example to others. Women ought to be better

than men; they have too powerful an influence over mankind to be allowed

to be worse.^"78

At the December 1853 term, the Ohio Supreme Court heard Hayes's

argument for a new trial for Miss Farrer. Opposing argument was pre-

sented by George E. Pugh, Attorney General. After reviewing the case in

its entirety, three of the justices ruled for a new trial--Justices John A.

22                                               OHIO HISTORY

Corwin, Allen G. Thurman, and Rufus P. Ranny; but Chief Justice

Thomas W. Bartley did not concur. The judgment of the Common Pleas

Court was reversed, and a new trial ordered.⁷9

The next step for Hayes was to argue the case before Judge John B.

Warren in the Probate Court on an inquest of lunacy, in December 1854.

Hearing the case as jurors were John M. Miller, W. F. Brackett, Richard

P. Spader, Noble Veazy, Samuel Johnston, Benjamin Urmston, John T.

Snodgrass, David Lemmon, Edward Boyle, Jared Cloud, John Huff, and

Ara Banning, three of whom resided in the city. The jury deliberated over

night, arriving at a verdict the next morning at 10:30. They found Nancy

Farrer of unsound mind.⁸⁰

"I succeeded in finally getting an acquittal of my first life case which

has been a pet case so long and to which I owe so much," Hayes sent word

to his Kenyon classmate, Guy M. Bryan, of Texas.⁸¹

The trial verdict in the Probate Court was referred to Judge James

Parker of the Common Pleas Court, who issued an order for the sheriff

to "deliver Nancy Farrer into the custody of such officer as may be required

by the order of the said Probate Court." Nancy was taken to the Lick Run

Asylum and afterwards was transferred to Longview.⁸²

Later, Judge Carter recalled having seen Nancy in the neighborhood of

Lick Run Asylum and he stopped to talk with her:

"Hello, Judge, how are you? I'm glad to see you. Well, you didn't

hang me after all?"

He could not help smiling at the salutation and nonchalant manner

of Nancy. "Oh, no, Nancy, I should hate terribly to be the means of

hanging a woman, no matter how much she deserved it. But what are

you doing here? . . ."

"Well, I'm one of the keepers at the Asylum; I takes out the patients

and airs them. See, yonder, my pets," [and she pointed to a group of

poor imbeciles in the woods adjoining, some of whom were singing

songs, some culling flowers, some lying down on the green grass, and

others suspiciously walking about.] . . .

"Yes," said Nancy, "these are my pets; I take care of 'em."

One day Nancy went out and her memory failed her; that is, she

forgot to return, and . . . to this day no one knows where she went.⁸³

In summing up what he had earned with his work on the Nancy Farrer

case, Hayes found that he had won acclaim and recognition as a capable

lawyer; seventy-five dollars from the Common Pleas Court as fee; and a

box, delivered to his office one morning in July 1852, containing "two very

nice neck chokers [ties], blue as the sky, and around them a nest of Mor-

mon prose and poetry . . . independent of every connexion except paste,"

sent by Nancy's mother.⁸⁴

In September 1852, there were three prisoners in the Hamilton County

jail under sentence of death--Nancy Farrer, James Summons and Henry

Lecount-and the defense attorney for all three was young Rutherford B.

Hayes who, the previous year, was hardly known at all in Cincinnati. He

had suddenly emerged into the limelight of publicity.85

RUTHERFORD B. HAYES, Attorney at Law                            23

The Court asked Hayes to assist Colonel F. T. Chambers in the defense

of James Summons in the District Court before Presiding Judge Allen G.

Thurman and Judges Stanley Matthews and Donn Piatt. The case was a

notorious one, having been tried several times and would be tried several

times more. In July 1849, James Summons had been arraigned upon two

indictments of murder in the first degree, poisoning by arsenic the tea

which his parents--his father was a river captain--and other relatives drank

at supper, killing two of them: Mrs. Electa Reeves and Henry Armstrong.

His parents survived. At the time, the captain's family consisted of him-

self, his wife, their two sons, William and James; a daughter and son-in-

law, Henry Armstrong; a grandson, Paul Huston; Mrs. Electa Reeves;

and a servant girl, Mary Clinch. At his trial, the chief witness against him

was the servant girl; it was conceded that without her testimony, no con-

viction could have been had.⁸⁶

The prisoner's trial in the Supreme Court of Hamilton County in May

1850, which extended through seven days, resulted in a mistrial--the jury

could not agree on a verdict. Summons was tried a second time late in May

1850, before another jury in the same court, and on June 1, 1850, after

ten days of examination, the jury again failed to agree. The servant girl,

Mary Clinch, again appeared and testified against him. A third trial was

held about a year later. In the meantime, on August 11, 1850, the prose-

cution witness, Mary Clinch, had died. In this trial her testimony was sup-

plied by a witness, Thomas A. Logan, who was a student and law clerk

of Judge Timothy A. Walker, counsel for the State in the trial. Logan

undertook to give Mary Clinch's testimony from memory, aided by notes

he had taken at the former trials. Again, the jury disagreed and was dis-

charged--a mistrial. Hayes was present at all the trials, and was impressed

by the prosecution's handling of the case.⁸⁷

The fourth trial started on April 22, 1852, and was conducted in the

District Court, before Judge Allen G. Thurman, presiding, and Judges

Stanley Matthews and Donn Piatt. At this point in the proceedings, Hayes

entered the case to assist the defense counsel, F. T. Chambers, having "con-

ducted the Nancy Farrer case with ability." He was appointed by the Court.

Summons' first defense counsel, Judge Nathaniel Read, had carried a

bond appeal for him to the United States Supreme Court, but had lost.⁸⁸

Hayes was given a chance to address the jury in Summons' defense, which

he did on April 27.89 The following day the jury retired to consider the

case, and returned the next morning with a verdict of guilty of murder in

the first degree of Mrs. Electa Reeves.⁹⁰

The motion for a new trial was decided on Friday afternoon, April 30,

and the Court denied the trial.⁹¹ Sentencing took place on Saturday morn-

ing, May 1, before a large crowd. Judge Thurman asked the prisoner if

he had anything to say. "I am not guilty. I am satisfied that if all my wit-

nesses were here, I could have changed the verdict of the Jury. I beg mercy

of the Court and ask a new trial." He was then sentenced to be hanged

on the third day of February 1853, between the hours of 9:00 A.M. and

4:00 P.M.⁹²

RUTHERFORD B. HAYES, Attorney at Law                            25

Dr. Joseph T. Webb of Cincinnati, Hayes's brother-in-law, did not think

much of Summons' innocence, and gave Hayes his unsolicited opinion: "I

do not wish you any harm but I certainly do not wish you [to] clear Jim

Summons. If there is a wretch unhung on this Earth, it is your client."⁹³

It was now Hayes's lot to draw up a Bill of Exceptions and argue for a

new trial. When he went to Columbus to make the appeal, he was on his

honeymoon, and in a happy frame of mind. "The greatest triumph of my

professional life, viz, arguing my first case orally in the Supreme Court of

the State--'State of Ohio v. James Summons,' "⁹⁴ he said. To his Uncle

Sardis at Fremont, he wrote: "Got through with my argument in the Sum-

mons case in a very satisfactory style, had a large audience of lawyers, was

congratulated by [Thomas] Ewing, Hunter, [Henry] Stanbery, and 'sich-

like' lawyers."⁹⁵

The Court was evenly divided in the opinion, and Hayes argued the

case a second time before the Supreme Court on a writ of error, in De-

cember 1856. The decision was in favor of the State of Ohio; only one

justice dissented; and Summons was scheduled to be executed on April 17,

1857.96

"You know my Summons case was decided against me," Hayes wrote his

Uncle Sardis. "Judge [Ozias] Bowen who dissented from the rest of the

Court says that after the argument a majority was in our favor, but [Thomas

J.] Bartley's obstinancy finally triumphed. The Governor will I think com-

mute the sentence to imprisonment for life."⁹⁷ Governor Salmon P. Chase

did so on March 10, 1857.98

The third murder case that Hayes handled as defense attorney was that

of Henry Lecount, who fatally assaulted one William Clinch on May 4,

1852, on the corner of Canal and Vine Streets, Cincinnati. The attack grew

out of jealousy on the part of Lecount which was caused by the acknowl-

edged intimacy of Clinch with his wife, and some testimony given by

Clinch, said by Lecount to have been false, which had sent the latter to

prison. Clinch was struck upon the head with a dray pin, cutting a severe

gash from which he died on May 8. Inquest was held by A. L. Patterson,

Coroner, on May 9,99 and two days later Lecount had an examination be-

fore the mayor; and on June 7, his trial began in the Criminal Court be-

fore Judge Jacob Flinn. Hayes and O. Brown were appointed by the Court

to defend the prisoner who had no means; and A. J. Pruden appeared for

the State.¹⁰⁰

Hayes's pleadings in defense lasted only two days, the jury returning a

verdict of guilty of murder in the first degree. Lecount was immediately

sentenced to death by hanging, on "Friday next, between the hours of

10:00 A.M. and 12 noon." There was no basis for an appeal for Henry

Lecount. Witnesses had seen him strike the fatal blow. Governor Reuben

Wood was appealed to for commutation of the sentence, but he did not

act.¹⁰¹

At the appointed time, on Friday, November 26, 1852, about 3:00 P.M.,

Henry Lecount was hanged, the first such execution in Cincinnati in many

26                                               OHIO HISTORY

years. Hayes was present as a witness. "I regarded it my duty to be present

at his execution," he noted on the pass which the Court had given him.

"He seems hardly conscious of what was passing. It was a shocking sight,

. . . no doubt legally right."102

These were the only murder cases handled by Hayes as an attorney at

law, two of which he argued in the Ohio Supreme Court. Later, he was to

argue other cases--civil cases--before the Supreme Court, either independ-

ently or as a member of a law firm.

While enroute to Columbus to represent one of his cases before the

Ohio Supreme Court, Hayes told his wife about an incident which hap-

pened to him on the train:

Had an adventure and scene on the cars in which I figured "some."

At the town before Charleston--Selma--a constable came aboard with

a Warrant for our Conductor, Mr. Osgood, for stealing a boy's hat. It

seems he had taken a boy's hat from his head for not paying fare. Judge

[John A.] Corwin [on the train] referred the conductor to me for legal

advice. I tried to induce the constable to take security money, watches,

or what not, that Osgood would appear at Charleston on Monday to

answer the charge; but the constable "knew his duty," "must have the

body," &c., &c., and so keep Mr. O. in the jug over Sunday. I then ex-

amined his warrant: found it was very defective; accordingly advised

the conductor that he had a right to resist the arrest. On reaching

Charleston, a large number of the passengers crowded to each door

(officer Bruen at the head) and kept Mr. Constable from taking Mr. 0.

out of the car. In the mean while a mob of (a great crowd) rowdies

in waiting at Charleston, tried to break into the cars and rescue their

man and capture ours, but they were knocked and pushed off until

the whistle sounded and on we shoved amid all sorts of imprecations

and threats. It was now our turn. I told the conductor he had a right

to demand fare, and if refused to put the Constable off between

stations.

The official melted rapidly into an ordinary human being. "Didn't

wish to make trouble"; "Would have offended all his neighbors if

he hadn't attempted to serve the warrant," &c, &c. Finis. [We] let him

off at London and promised that Osgood would stop over on Mon-

day.¹⁰³

On the day after Christmas 1853, Hayes and his Kenyon College class-

mate and friend, William K. Rogers, joined the firm of Corwine, Smith

and Holt, succeeding Caleb B. Smith and R. S. Holt in that firm, to be-

come the firm of Corwine, Hayes & Rogers. Originally the firm was Spen-

cer, Smith & Corwine; then Smith & Corwine & Holt. "The new firm,"

Hayes wrote his Uncle Sardis, "is in this wise: Caleb B. Smith and Mr.

Holt, both fine lawyers, go out of the practice, and Billy Rogers and my-

self take their places. Smith has done little or nothing for ten months past,

being President of two R.R. Co's, and now gives his whole time to that

business. Mr. Holt goes South. Rogers and myself pay $1,200 to Holt and

Smith for one half of all the business pending in the office. . . . The pend-

RUTHERFORD B. HAYES, Attorney at Law                            27

ing business . . . is probably, as near as we can guess it, worth or will pay

us for our share eventually as much as $1,800. We pay $600 down and the

balance when we can. The profits of the new business the first year go, 1/2

to Corwine, 1/3 to me, and 1/6 to Rogers. . . . The work is to be done

chiefly by myself, Rogers, and an English attorney's clerk [John A. Lynch].

The office has always had good lawyers in it, and we shall try to keep its

business and standing."104

The next two years found Hayes quite busy with his firm's affairs, and

with several personal interests, including the purchase and remodeling of

a home for his family at No. 383 Sixth Street. He was pleased with the firm.

"The business is large and very varied. I attend to the litigated business

exclusively," he told his uncle.¹⁰⁵ His mother, on a visit at the new home,

wrote a cousin: "I went to Cincinnati in November, 1854, spent ten weeks

very pleasantly with my son's family. Week days I saw him only at his

meals; he was busy at the court house or his Office all the time."l⁰⁶ To

her brother, she said "We only see him at his meals; he is constantly busy;

has no time for letter writing. . . . Rutherford has not time to provide

any thing but money for his family. It is a good thing that Lucy has broth-

ers to pay some attention to her and her friends; her husband is so much

engaged."¹⁰⁷

In March 1855, Hayes was associated with Salmon P. Chase and Timothy

Walker in a case being tried under the Fugitive Slave law. A slave girl

named Rosetta Armstrong had been entrusted by her master, Rev. Henry

M. Dennison of Louisville, Kentucky, to a friend to be taken to Richmond,

Virginia. On the way, the friend went by way of Ohio through Columbus,

where he and Rosetta were detained. In Columbus, Rosetta was brought

before the Probate Court on a writ of habeas corpus and was adjudged to

be free. The Court appointed Lewis G. Van Slyke as her guardian. Mean-

while, Mr. Dennison appeared and had a talk with Rosetta. He gave her

a choice of returning with him, or being set free. She chose the latter.

Whereupon, Dennison obtained a warrant for her arrest from United

States Commissioner John L. Pendery of Cincinnati, where she was brought

by the marshal. Her guardian obtained a writ of habeas corpus from Judge

James Parker of the Court of Common Pleas of Hamilton County, and af-

ter arguments by Messrs. Chase, Walker, and Hayes for Rosetta, and Messrs.

Pugh and Flinn for Mr. Dennison, she was set free. Thereafter, she was

immediately re-arrested on the warrant issued by Commissioner Pendery,

who now heard argument on the whole question. Popular sentiment ran

high and the courtroom was filled. In this instance, the chief legal argu-

ment was made by Hayes, who Mr. Chase said, "acquitted himself with

great distinction."108

A correspondent of the Columbus Columbian commented on the case:

Mr. Van Slyke speaks in enthusiastic terms of the masterly effort

of R. B. Hayes, Esq., the chief counsel for Rosetta before the Commis-

sioner. Mr. Hayes is a young man, and was formerly a resident of our

city, where he has relatives residing. He was recommended to Mr. Van

28                                                OHIO HISTORY

Slyke by a friend who appreciated his clear head and good heart, hid,

in a measure, from public observation, by retiring manners and modest

demeanor. Mr. V. found at once that "his heart was in the right place,"

and had good reason to rejoice that he had fallen in his way. To his

eloquent and masterly closing speech before the Commissioner, he

thinks it very likely Rosetta is indebted, mainly, for the allowance of

her freedom under U. S. Law. The appreciation of it by the great aud-

ience in attendance, was manifest from their breathless silence during

its delivery, their unrestrainable applause at its close, and the congrat-

ulations which the young orator received from a large number of his

brethren of the bar, at the close of his effort.¹⁰⁹

It would follow that Hayes would be active with fugitive slave matters,

and, recalling later, "My services were always freely given to the slave and

his friends, in all cases arising under the Fugitive Slave Law from the time

of its passage." Such in fact was true.110

William K. Rogers' health was poor, and in 1856 he left the law firm

for Minnesota. Thinking to be away only a few months, he failed to re-

turn at all. For a while his partners retained his name and kept him in-

tormed of cases handled, but finally he was dropped and the firm con-

tinued as Corwine & Hayes.

The senior partner, Richard M. Corwine, had been active with outside

interests including railroads, politics and others; and more and more, Hayes

found himself also drawn into political activities. By 1856 he was actively

involved and campaigned enthusiastically for John C. Fremont, and in

1858 was strongly identified with the activities of the Republicans. His ef-

forts in politics caused him to consider becoming a practicing politician

himself. The opportunity was presented when the City Solicitor of Cncin-

nati, Samuel Hart, died. The city council met on December 9, 1858, at

7:00 P.M. to elect a successor after conducting the regular business of the

evening.111 Considerable interest in the vacancy was evident, and the

strongest candidate was Caleb B. Smith, who was later to be in President

Abraham Lincoln's Cabinet.

There were seventeen wards in the city, each ward being represented by

two councilmen. Number of votes required to elect was a simple major-

ity, or eighteen votes. The councilmen present that evening were Messrs.

Baum, Bates, Benjamin Eggleston, F. Hassaurek, G. W. Hollister, Pearce,

William Perry, A. Tafel, Thomas H. Weasner, and Wisnewski, Republi-

cans; Messrs. Davis, Theophilus Gaines, Hambleton, Higbee, Joseph S.

Ross, Runyan, R. M. Bishop and Theodore Marsh, Americans [Know-

Nothings]; Messrs. T. M. Bodley, J. H. F. Groene, Daniel Hannon, John

Hawkins, Samuel Hirst, F. Maurer, G. L. Myers, J. M. Noble, Henry Put-

hoff, Charles Rule, Schaeffer, and Dennis J. Toohey, Democrats; and

Messrs. John F. Torrence and Hezekiah Keirsted, Independents. Absent

were: Skaats, Republican, and Green, American.

The Council did not get around to balloting until 9:30 P.M. The aud-

ience was rather large and interested. The first ballot showed the initial

strength of the candidates, with this result:

RUTHERFORD B. HAYES, Attorney at Law                                     29

Caleb B. Smith       ..............................13

William  Disney ...................................12

R. B. Hayes        .................................3

Thomas C. Ware       ...............................1

Washington Van Hamm  ...............................1

Little or no change occurred on the second balloting. The third ballot

showed Disney losing ground, Smith holding steady.

Caleb B. Smith                         ............................... 13

----- Forrest                               ..................................8

William Disney                ..................................4

R. B. Hayes                        ..................................4

Thomas C. Ware                ..................................2

Blank      ........................................1

On the fourth ballot there was a decided shift which continued to hold

through the sixth ballot:

R. B. Hayes        ...............................14

Thomas C. Ware                      ...............................11

Caleb B. Smith                  .................................4

William Disney               ...................................2

The seventh balloting brought fourth the following results:

R. B. Hayes        ...............................17

Thomas C. Ware                      ...............................12

William  Disney              ..................................3

An analysis of the balloting on this ballot showed that Hayes received

the following votes--Republicans (10): Messrs. Baum, Bates, Eggleston,

Hassaurek, Hollister, Pearce, Perry, Tafel, Weasner, and Wisnewski--

Americans (7): Messrs. Davis, Gaines, Hambleton, Higbee, Ross, Runyan,

and Bishop. Thomas C. Ware's vote was--Democrats (10) : Messrs. Bodley,

Groene, Hawkins, Hirst, Maurer, Myers, Noble, Puthoff, Rule, and Schaef-

fer--Americans (1) : Marsh--Independents (1): Torrence. William              Disney's

vote was--Democrats (2): Hannon and Toohey--Independents (1) : Keir-

sted.

The eighth ballot decided the election. A lone Democrat, Dennis J.

Toohey,112 shifted his vote from     William   Disney to Hayes, giving the latter

the election:

R. B. Hayes      ....................................18

Thomas C. Ware                ....................................12

William Disney              .....................................2

Rutherford B. Hayes became City Solicitor of Cincinnati, his first pub-

lic office, by just one vote, the vote of a Democrat!

When he took his oath of office, one newspaper reporter observed: "He

is evidently not a hack about the Council Chamber. Though ten years

[eight] in the city, Mr. Hays [sic] was never in the Chamber of the City

Fathers until the day after his election."113

Hayes decided to give up his partnership with Richard M. Corwine. "A

30                                                OHIO HISTORY

notice of dissolution . . .  will appear tomorrow," he sent word to his Uncle

Sardis, December 31. "I ought to get out of the concern several thousand

dollars but it is by no means certain that I shall [get] more than two or

three and possibly not that much. However, ending as it does, I am a

gainer by having formed the connection. I leave it with such a position as

will insure me a fair living practice either alone or otherwise."114

As City Solicitor, Hayes did a good job. He rendered careful opinions

when called upon by the mayor or city council, and reported to the council

regularly. He handled a number of litigations for the city with consider-

able success. One case involved a street railway. He mentioned it to his

uncle when he wrote on June 24, 1859: "You saw my R R trial against

Judge Gholson & Judge Matthews--lasted eight days. A verdict in our

favor of $250,000; good luck, very."115

The term for which he was elected expired in April 1859. The preced-

ing month a nominating convention was held, about which he wrote his

uncle: "Our city convention went off harmoniously. For the principal offices

the best men as well as the most available were nominated. [R. M.] Bishop

(American) was nominated by a large majority over [Benjamin] Eggleston

(Republican) [for Mayor]. This prevents all difficulty on account of the

large preponderance the Republicans would otherwise have had of the

leading offices. [Richard M.] Corwine was badly beaten by [George] Hoad-

ley, about 85 to 27. C[orwine] bears it well--attributes it to combinations,

treachery &c &c.; says he will never be a candidate for anything again. My

nomination was done handsomely by acclamation. Our side now entertain

no doubt of an easy victory. Of course, elections are always uncertain, but

I shall be much surprised if we do not succeed. . . .¹¹⁶ We elected our whole

ticket yesterday (April 4) by an average majority of about 1,500. The

Mayor had 1,950; my majority is 2,200, being the largest given for any of

the more important offices . . . . All passed off pleasantly; a very large vote

and entire good feeling in all the wards."¹¹⁷ To his mother he sent word:

"I hope you are not cast down about the election here. . . . It will I hope

not prove my ruin."118

The next few months were very busy ones as well as happy ones for the

young lawyer. He was making, as he had hoped, a fine record as City

Solicitor. In addition, he kept a strong interest in local politics. His term

as City Solicitor came to an end on April 8, 1861; election day was April

fourth. Although Hayes offered himself as a candidate for reelection, he

had little hope for success, since he could see that the political combina-

tions were against the Republicans. He sensed a defeat for his party. Just

before the election he wrote his Uncle Sardis: "You are . . . anxious that

I should be reelected. . . . I philosophise in this way: I have got out of the

office pretty much all the good there is in it--reputation and experience.

If I quit now, I shall be referred to as the best, or one of the best, Solicitors,

the city has had. If I serve two years more, I can add nothing to this; I

may possibly lose. I shall be out of clients and business a little while, but

this difficulty will perhaps be greater two years hence; so you see it is no

great matter; still, I should prefer" to win.¹¹⁹

32                                                 OHIO HISTORY

All of the Republicans were defeated, and he went down with them. It

was small consolation that his defeat was by the smallest margin.120

Hayes lost no time in making new arrangements for the future. He had

cultivated an acquaintance with Friedrich Hassaurek who had served as a

member of the city council, and represented a strong German element in

Cincinnati. President Buchanan had just appointed Hassaurek as Minister

to Bolivia. He was giving up a good law practice, largely among the Ger-

mans. Hayes made arrangements to take over this practice in partnership

with Hassaurek's brother-in-law, Leopold Markbreit, "a bright gentle-

manly, popular young German."¹²¹ The day his public office ended, he

moved into the partnership office at No. 2 Debolt Building, southeast cor-

ner of Court and Main Streets. He started immediately to work, trying two

cases in the next two days.¹²²

The new partnership was to be of short duration. National events were

now to bring about a great change in the young lawyer's life. On April 12

and 13, Fort Sumter in South Carolina was assaulted by troops of the new

Confederate States government; and on Sunday evening, April 14, Presi-

dent Lincoln called for 75,000 volunteers. War fever reached a high pitch.

Mass meetings supporting the Union were held in Cincinnati, and at one,

Hayes as chairman of the resolutions committee, wrote the principal reso-

lution "upholding the flag of the Union."123

Hayes was nearly overcome by patriotism. He joined a volunteer home

company consisting largely of fellow-members of the Literary Club of

Cincinnati, to learn the manual of arms.¹²⁴ As for legal matters, he wrote:

"My new business arrangements and my prospects, bad as times are, are

evidently good. Whenever other lawyers have business, I shall easily make

all [the money] that is needed.^"125

But he could not get the war out of his mind. Weighing the matter care-

fully, considering every angle and consulting his friends and acquaintances,

he finally made up his mind to take an active role in it. "Judge [Stanley]

Matthews and I have agreed," he recorded in his Diary, "to go into the

service for the war; if possible, into the same regiment.¹²⁶ . . . If a fair

chance opens, I shall go in; if a fair chance don't open, I shall, perhaps,

take measures to open one."127

He took the necessary measures. After talks with Governor William Den-

nison, Jr., in Columbus, his opportunity came. Both Hayes and Matthews

were appointed to the same regiment, the Twenty-Third Ohio Volunteer

Infantry--the first regiment to be mustered for the war and the first whose

officers were appointed by the Governor.¹²⁸

The firm of Hayes & Markbreit, Attorneys at Law, was dissolved; and

Hayes was out of law practice--to which he would never return.

THE AUTHOR: Watt P. Marchman is

Director, Rutherford B. Hayes Library and

Museum.

NOTES                                                                            185

44. See Junction Railroad Company case, ibid.

45. Hayes, Diary and Letters, I, 448.

46. Hayes to Fanny Platt, January 6, 1847, Hayes Papers.

47. Hayes to Lane, June 26, 1847, (copy), ibid.

48. Hayes to Fanny Platt, August 8, 1847, ibid.

49. Hayes to Fanny Platt, October 1847, ibid.

50. Hayes to Fanny Platt, July 9, 1848. ibid.

51. Hayes to Fanny Platt, ibid.

52. Hayes, Diary and Letters, I, 235-268.

53. Hayes to Fanny Platt, September 23, 1849, Hayes Papers.

54. Sophia Hayes to Hayes, December 31, 1849, ibid.

55. Hayes to Henry Howe, January 22, 1889, ibid.

56. See Barnard, Rutherford B. Hayes and His America, 167-173.

57. Hayes, Diary and Letters, I, 283.

58. Ibid., I, 288-289.

59. Ibid., I, 407.

60. Cincinnati Enquirer, January 31, 1852, and Cincinnati Gazette, November 3, 1851.

61. Hayes, Diary and Letters, I, 407.

62. For background of Nancy Farrer, her life and her crime, see J. J. Quinn, M.D.,

"Homocidal Insanity - The Case of Nancy Farrer," Western Lancet (Cincinnati), XVI,

(November 1855), 643-669; L. R. Johnson, M.D., "Moral Insanity and Its Legal Rela-

tions," The American Psychological Journal (Cincinnati). I, (January 1853), 16-26:

and "Nancy Farrer v. The State of Ohio," in 2 Ohio State Reports 54-82.

63. Anna Bazley's name varies in different accounts. Earliest contemporary accounts

have been followed. Newspaper reports identified her as Mrs. Anna Bardsley (Cincin-

nati Gazette, March 4, 20, 1852); Judge A. W. G. Carter in his book of recollections,

The Old Court House; Reminiscences (Cincinnati, 1880), gave her name as Mrs. Anne

Brazilli. Charles Theodore Grove in his Centennial History of Cincinnati and Repre-

sentative Citizens, I, 724-725, identifies her as "an Italian woman, Mrs. Brazilli."

64. Johnson, "Moral Insanity, and Its Legal Relations,"18.

65. News reports of the case were published in the Enquirer, December 5, 1851,

through February 19, 1852.

66. Ibid., December 5, 1851.

67. Gazette, December 9, 1851.

68. Enquirer, December 11, 1851.

69. Ibid., January 16, 1852.

70. Ibid., February 19, 1852.

71. Ibid., February 26, 1852.

72. Gazette, March 1, 1852.

73. Ibid., March 2, 1852 and Enquirer, March 3, 1852.

74. Gazette, March 20, 1852.

75. Carter, The Old Court House; Reminiscences, 447, 448.

76. Enquirer, April 2, 1852.

77. Newspaper clipping from Cincinnati Times, April 1852, in Nancy Farrer Case

file, Hayes Papers.

78. Sophia Hayes to Hayes, April 3, 1852, ibid.

79. "Nancy Farrer v. The State of Ohio," in 2 Ohio State Reports 54-82.

80. Hayes Scrapbook, II, 6-7, Hayes Papers.

81. Hayes to Guy M. Bryan, January 22, 1855, ibid.

82. Hayes Scrapbook, volume 2, page 7, ibid.

83. Carter, The Old Court House; Reminiscences, 445-446.

84. W. K. Rogers to Hayes, July 19, 1852, Hayes Papers.

85. Enquirer, September 23, 1852.

86. See ibid., April 23 through May, 1852;Hayes Scrapbook, volume 6, page 70; and

extensive manuscript notes prepared by Hayes, in James Summons Case file, Hayes

Papers. See also, "James Summons v. The State of Ohio," 5 Ohio State Reports 325-360.

87. Hayes, Diary and Letters, I, 354.

88. Enquirer, April 27, 1852.

89. Ibid., April 28, 1852.

90. Ibid, April 30, 1852.

91. Ibid., May 1, 1852.

186                                                         OHIO HISTORY

92. Ibid., May 2, 1852.

93. Joseph T. Webb to Hayes, January 22, 1853, Hayes Papers.

94. Hayes, Diary and Letters, I, 438.

95. Hayes to Birchard, January 13, 1853, Hayes Papers.

96. "James Summons v. The State of Ohio," in 5 Ohio State Reports 325-360.

97. Hayes to Birchard, February 22, 1857, Hayes Papers.

98. Hayes Scrapbook, volume 2, page 57, ibid.

99. Enquirer, May 9, 1852.

100. Ibid., June 8, 1852.

101. Ibid., November 24, 1852.

102. Hayes Scrapbook, volume 6, page 75, Hayes Papers.

103. Hayes to Lucy Webb Hayes, December 4, 1853, ibid.

104. Hayes to Birchard, December 25, 1853, ibid.

105. Hayes to Birchard, January 22, 1854, ibid.

106. Sophia Hayes to a cousin, February 15, 1855, Sophia Birchard Hayes Papers.

107. Sophia Hayes to Sardis Birchard, January 4, 1855, Sardis Birchard Papers.

108. R. B. Warden, An Account of the Private Life and Public Services of Salmon

Portland Chase, (Cincinnati, 1874), 345.

109. Hayes Scrapbook, volume 6, page 70, Hayes Papers.

110. C. R. Williams, The Life of Rutherford Birchard Hayes (Boston, 1914), I, ⁹5n.

111. See Cincinnati Times, December 9, 1858, in Hayes Scrapbook, volume 6, page

67a, Hayes Papers.

112. Cincinnati Times, December 16, 1858, in Hayes Scrapbook, volume 6, page 68,

ibid.

113. Cincinnati Occasional, December 10, 1858, in Hayes Scrapbook, volume 6, page

68a, ibid.

114. Hayes to Birchard, December 31, 1858, ibid.

115. Hayes to Birchard, June 24, 1859, ibid.

116. Hayes to Birchard, March 29, 1859, ibid.

117. Hayes to Birchard, April 5, 1859, ibid.

118. Hayes to Sophia Hayes, April 5, 1859, ibid.

119. Hayes to Birchard, March 29, 1861, ibid.

120. Hayes Scrapbook, volume 6, page 69, ibid.

121. Hayes to Birchard, April 10, 1861, ibid.

122. Hayes to Birchard, April 10, 1861; also calling card, ibid.

123. Hayes Scrapbook, volume 6, page 34a and page 38. Newspaper clipping, and

original draft of the resolution in Hayes's autograph, ibid.

124. Hayes to Birchard, April 20, 1861, ibid.

125. Hayes to Birchard, May 16, 1861, ibid.

126. Hayes, Diary and Letters, II, 17.

127. Hayes to Birchard, May 16, 1861, Hayes Papers.

128. Telegrams, Governor William Dennison to Hayes, June 6 and June 9, 1861, in

Hayes Scrapbook, volume 6, pages 61a and 63, ibid.

LUCY WEBB HAYES AND HER FAMILY

1. R. B. Hayes to Lucy Webb Hayes, August 4, 1851. Hayes Papers, Rutherford B.

Hayes Library.

2. Laura Platt Mitchell, "Lucy Webb Hayes: Reminiscences for Her Grandson by

One of Her Nieces" (53 page typewritten account, [1890]), 2-5, ibid.

Ohio Wesleyan was chartered in 1842 and opened first as a preparatory school.

The college department was organized in 1844. Francis P. Weisenburger, The Passing

of the Frontier, 1825-1850 (Carl Wittke, ed., The History of the State of Ohio, Co-

lumbus, 1941, III,) 178.

3. Term Report for Lucy Webb Hayes, Ohio Wesleyan University. 1845, Haves

Papers.

4. Sophia Hayes to Sardis Birchard, September 2, 1847, ibid.

5. Hayes to Fanny Platt, July 19, 1847, ibid.

6. Hayes to Sophia Hayes, October 16, 1847, ibid.

7. Hayes Diary, January 1, 1850; R. B. Hayes to W. A. Platt, January 14, 1850, ibid.