USA > Ohio > Bench and bar of Ohio; a compendium of history and biography, Vol. I > Part 15
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was too large and too just a man to be wanting in courtesy to a member of the Bar. The youngest lawyer who argued a motion before him, uncertain as to his position, timid sometimes in the assertion of his rights, always felt sure of the friendship and assistance of the court. He was so well established in the principles of the law and so clear in his perceptions of justice as not to be overawed by a display of authorities. Mere dictum, even though in the form of an opinion expressed by a higher court, must be reasonable in order to have binding force as a precedent. Whilst he was not deficient in respect for the learning and the authority of the highest court, he was brave and independent enough to make a precedent in his nisi prius court, when the "authorities" submitted appeared to work an injustice between the parties litigant. A decision must be founded upon sound reasoning and fulfill the requirements of justice in order to command his approval. He was firm and impartial in the discharge of official duties, unmoved by popular clamor, uninfluenced by favor- itism or prejudice. He was endowed with that penetration and clearness of vision which enabled him to go straight to the marrow of a subject and reject whatever was irrelevant. His vigorous, logical mind arranged and classified facts rapidly and reached a conclusion without circumlocution. His thorough understanding of a case preceded his judgment thereon. In every exercise of the judicial function he was both conscientious and scrupulous, during the period of eleven years that he occupied the Bench of the Common Pleas Court. Judge Swan resigned in 1845 and resumed the practice in partnership with John W. Andrews at Columbus, which was continued with unqualified success until 1854, when he was elected judge of the Supreme Court of the State. He was admirably qualified by natural abilities, by temperament and judicial training for the duties and responsibilities of this exalted office. The high reputation which he had created was sustained and advanced in the Supreme Court. His accession to this tribunal was about the time when the contention between the defenders and the opponents of slavery was most bitter, and public opinion was much inflamed. Judge Swan was elected in 1854 by a combination of the ele- ments of opposition which crystallized in the formation of the Republican party. The fugitive slave law was extremely odious to his supporters. It had been held constitutional by the Supreme Court of the United States, and yet there was in Ohio, as in many of the free States, a deep-seated hostility to its enforce- ment. The issue was presented to the State Supreme Court in the case Ex parte Bushnell, wherein it was sought by a writ of habeas corpus to liberate a prisoner confined under a judgment of the United States District Court for the Northern District of Ohio. The State Court was relied upon by the majority of electors for judicial nullification. The excitement was intense, and the expectancy of a clash between the State and Federal authorities was painful. In such a crisis marvellous self-control was required, even in a strong man, to preserve an equable temper so as to consider argument dispassionately and reach a conclusion by the slow process of reasoning. Judge Swan, as chief justice of the court, prepared and delivered the opinion, in which he held that a State court could not interfere with the orderly action of the United States
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courts within recognized constitutional limits. He was expected to decide as a partisan, but he decided as a lawyer and a judge, with the same calmness and the same deliberation that marked his entire career. He held the law to be authoritative and its administration a matter of conscience and duty, whether he approved the terms of the law or not. For this firmness in adher- ing to principle, even to the alienation of political friends, he was defeated for nomination in the convention of his party, and retired forever from public life at the close of his first term. He was great enough to decline an appointment to the State Supreme Bench, and to decline another nomination for the office, both of which were subsequently tendered. Nor did he resume the general practice of his profession. In 1860 he was chosen president of the Columbus & Xenia Railroad Company, and while serving as head of the executive department, was also the chief legal adviser, both of that company and the Lit- tle Miami. In 1869 he was appointed general solicitor of the Pittsburg, Cincin- nati & St. Louis Railway Company, and held the position ten years, until failing health impelled his resignation. There was an expression of the highest confidence and sincerest regret placed on record by the directors in accepting his resignation. It was declared: "The officers of the company have one and all been deeply penetrated by a sense of the legal learning, sound judgment, large experience, strict integrity and unbounded kindness and courtesy, which have ever marked his course with his associates and the discharge of his official duties." Judge Swan was a member of the constitutional convention of 1850, elected as a delegate from Franklin county. The proceedings show, what might have been expected, that he was one of the ablest, most influential mem- bers of that body. In the committees on the judicial department, public debts, and public works, he rendered efficient service, as well as in the debates. Here, as on the Bench and in private life, his con- victions and sense of right controlled his action. The legislative acts of 1840 relating to the settlement of decedents' estates and to wills, as well as other important statutes, owe their origin to him. In 1836 he prepared and published " A Treatise on the Law Relating to the Powers and Duties of Jus- tices of the Peace," which is regarded one of the most useful books ever pub- lished in the State, having passed through eleven editions. In 1843 he pub- lished " A Guide of Executors and Administrators." In 1845 and 1850 he published "Swan's Pleadings and Precedents," in two volumes. In 1860 he published " Swan's Pleadings and Precedents under the Code," which so clearly interprets its provisions and so wisely suggests rules of construction, as to avoid carrying to the Supreme Court questions arising under the code. Judge Swan was the author of four general revisions of the statutes of Ohio, and his work is pronounced admirable. His taste for general literature was marked, the range of his reading was vast, and his capacity for work was mar- vellous. Upon the announcement of his death the Bar Association of Franklin county adopted a memorial presented by a committee of the Bar, of which J. W. Andrews was chairman, and R. A. Harrison, Allen G. Thurman, C. N. Olds, H. B. Albery, J. H. Outhwaite, E. F. Bingham and H. C. Noble were
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members. While the biographical sketch herein presented is based upon the memorial of that committee, the essence of the report adopted is found in the first resolution : " The members of the Bar sincerely lament the death of Judge Joseph R. Swan, and express the high consideration they entertain of his in- tegrity, his ability, his learning, his impartiality, his industry, his dignity, his love of justice, his moral courage, and his fidelity to every trust and duty, whether public or private, which marked his career as a judge and public man and his character in private life." Similar action was taken by the Bar of the Supreme Court, by the railroad companies with which he was connected, by the Starling Medical College, in which he was a lecturer, and by the corpora- tions which he served as director. Judge Swan had five children, three sons and two daughters, all living at the date of his death in 1884. Frank Swan, the eldest, is now a retired manufacturer, living at Stamford, Connecticut. He is married and has one son, a student at Dane Law School, Cambridge, Massa- chusetts. Maryette Andrews Swan, the second child, married A. C. Neave, of Cincinnati, and resided at Clifton until her decease, in 1885 ; she left two sons, Joseph R. and Charles Neave. The third child, Ann Floyd Swan, married (in 1860) Major Robert S. Smith, an officer in cavalry service of the regular army, who, after the war was over, resumed the practice of law ; who now re- sides in Columbus and is treasurer of the Columbus & Xenia Railroad Com- pany. Mr. and Mrs. Smith have one daughter, who is married to Rutherford H. Platt, a nephew of President Hayes. Joseph R. Swan, Jr., the fourth child of Judge Swan, is a lawyer in practice, married and resides at Utica, New York ; has three children, two daughters and one son, all living. He has become the successor of his father as the editor and reviser of "Swan's Treatise " since his father's death, and has issued several new editions of the work. The youngest child is James Andrews Swan, married to Jane Parsons, and residing at Newport, Rhode Island. They have no children. In his capacity for original, independent thought, in the strength of his personality, and in the character of his service to the State as a member of its highest court, probably no jurist who has lived in the commonwealth excels the subject of this biography. A very intimate friend of the late Judge adds :
" Judge Swan was the most reticent man I ever knew-a characteristic that came chiefly, I think, from his bashfulness and retiring disposition. His integrity of character was so firmly fixed that no personal interest could swerve him from the path he believed to be right. Therefore he passed through life leaving an impress upon his generation and upon history which time cannot efface. His name is indelibly written in the laws and statutes of our State-a name that stands for truth and justice, integrity and honor. A delightful memory of him lives in the hearts of all whose good fortune it was to meet and know him in his daily life. He was a model citizen, a model husband, a model father, and withal, he was great in the simplicity of his character."
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BELLAMY STORER, late of Cincinnati. Bellamy Storer was born at Port- land, Maine, on March 26, 1796. He was prepared for Bowdoin College by Dr. Edward Payton and Ebenezer Adams, formerly a professor at Dartmouth, and displayed such aptitude for learning and such thoroughness of study as to be able to enter college in August, 1809. He did not graduate, however, but began the study of law in Boston under the direction of the celebrated Chief Justice Parker, and in 1817 he was admitted to the Bar in that city. In the same year he removed to Cincinnati and was admitted to the Bar of the State of Ohio and at once began the practice of the law. Ina very short time he became known as a leader among the young men of his profession and also achieved a prominent position in the business and political life of the city. In 1824 he advocated the election of John Quincy Adams to the Presidency, editing The Crisis, the organ of his party. He was the candidate of the Whig party, then in the minority, for member of Congress from the first Ohio district in 1834, and after a most spirited canvass defeated the administration candidate, Rob- ert T. Lytle, by a fair majority. In Congress his high character, directness of method and vigorous eloquence gave him a high standing and he was urged to accept the renomination, but declined it, preferring to return to the practice of his profession. He was a vigorous supporter of the Presidential candidacy of his friend, General William Henry Harrison, and in 1844 he was Presiden- tial elector on the Whig tieket, easting his vote for Mr. Clay. In 1852 he was nominated, against his desire, for the Supreme Beneh of Ohio, but was defeated, although he ran ahead of his ticket several thousand votes. In 1854 he was elected judge of the Superior Court of Cincinnati, having as his colleagues in this distin- guished court, Judges O. M. Spencer and W. Y. Gholson. Storer drew the short term, but he was kept on the Bench by subsequent re-elections until 1872, when he resigned to engage once more in the practice of his profession, taking as his partner his son, Bellamy, the present minister to Belgium, who had been admitted to the Bar in 1869. This court, composed of Storer, Spencer and Gholson, has been regarded as the strongest court in the history of the Cin- cinnati Beneh, and its reported decisions, while those of a court not of the last resort, are as much respected as those of any court in the country. Judge Storer brought to the Bench great knowledge of the law, as well as great love of its study, unremitting zeal in the performance of his judicial duties and eminent fairness of mind and temperament. Although quite compan- ionable by nature and of a most lovable disposition, he was the personifica- tion of judicial dignity and uprightness when on the Bench. Always conseious of the elevated character of his position, he impressed the same consciousness on all who approached his court room, without being in any degree austere or severe. His uniform courtesy to all, his straightforward methods and his unquestioned learning gained for him remarkable popu- larity both with his profession and with the publie at large. He was very popular with the younger members of the Bar, and many of the lawyers of the present day, grown old in the profession, look baek with grateful remem- brance upon words of encouragement given them years ago by Judge Storer.
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In 1855 he became a professor in the Cincinnati Law School, which position he held until 1874, when he became professor emeritus. Throughout his life Judge Storer was a very successful speaker at both political and religious meetings. In his early life he was active in a band of young men called "Flying Artillery," who went from town to promote religious revivals. In 1862, when the city was threatened by the Confederate invasion, he shouldered his musket and marched as a private in defense of the city which had honored him. Kenyon College and Bowdoin College, of which latter institution he was for many years trustee, each bestowed upon him the degree of Doctor of Laws. He died June 1, 1875, leaving a name, as a lawyer and man, that after a lapse of almost a quarter of a century, is a familiar synonym for learning and virtue.
GENERAL TIIOMAS EWING, A. M., LL. D. (1829-1896), was born August 7, 1829, in Lancaster, Ohio. He was a son of Senator Thomas Ewing, the famous lawyer and statesman. His mother, through whom he was related to James Gillespie Blaine, was Maria Wills Boyle, a granddaughter of Neal Gillespie, who emigrated from County Donegal, Ireland, and became a man of eminence in western Pennsylvania in the latter part of the last century. His mother's father, Hugh Boyle, also a native of Donegal, took active part in a political conspiracy and, in 1791, was forced to flee to America, where for forty years he was clerk of the Supreme Court of Ohio for Fairfield county. At nineteen Mr. Ewing was a private secretary to President Taylor. In 1852 he entered Brown University, where he was popular with faculty and students. Those who knew him then recall his splendid physique ; his intellectual, trans- parent countenance ; his genial temper ; his strong anti-slavery feeling, and his hatred of injustice in every form. The warm admiration which the presi- dent, the illustrious Dr. Wayland, showed for him was one of the pleasant recollections of his life. From Brown University he went to Cincinnati and entered the law office of the Honorable Henry Stanbery, and the Cincinnati Law School. In 1855 he began practice in Cincinnati. Soon after he was employed by Mr. John W. Andrews, a prominent lawyer of Columbus, to assist in defending three actions at law in the United States Circuit Court, for infringement of "Parker's Patent Reaction and Percussion Water Wheel." Success in these led to his being retained to defend over fifty other cases brought on the same patent. In most of these he pleaded the Ohio statute of limitations, the patent having expired six years before the suits were com- menced. The plea was sustained. Upon this point the Circuit Courts were divided for many years, but the Supreme Court in 1895 decided that State statutes apply in such cases. On January 18, 1856, Mr. Ewing was married to Miss Ellen Ewing Cox, daughter of the Rev. William Cox of. Piqua, Ohio, a minister of the Presbyterian Church distinguished for zeal and eloquence. Though Mr. Ewing was reared a Catholic, he did not accept the doctrine of infallibility. By mental constitution he was unable to limit Christianity to
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any denomination, but he believed in Jesus Christ as his divine Master and Savior. Early in 1857 he removed with his family to Leavenworth, Kansas, where he formed a partnership with his brother, Hugh Boyle Ewing, for the practice of law. Later the firm included William Tecumseh Sher- man, who was married to his elder sister, Ellen Boyle Ewing, and Daniel McCook. In the Civil War, three members of the firm attained the rank of brigadier general, and the fourth became the great hero of Atlanta and the march to the sea. During the famous struggle which resulted in the ad- mission of Kansas as a free State, Mr. Ewing rendered a service to free- dom of much historic interest. The administrations of Presidents Pierce and Buchanan favored the pro-slavery party, which, until the fall of 1857, controlled the Territorial government. In the summer of that year a con- vention was elected to frame a Constitution under which the Territory might be admitted. The free-state party, knowing that its votes would not be counted, took no part in the election of members of this conven- tion. It met in the fall, and was presided over by John Calhoun, the United States surveyor-general. It framed the " Lecompton Constitution," and sub- mitted to popular vote, not the entire Constitution, but only the question whether the Constitution should be adopted with or without provision for slavery. Even if slavery were rejected, the slaves then in Kansas would remain slaves. A separate election was ordered, to be held after that on the Constitution, for choosing officers under it. The convention appointed the judges of both elections, and directed Calhoun to canvass all returns. The free-state party declined to participate in the first election, and the Constitu- tion was adopted with slavery. The pro-slavery party hoped that the free- soilers would also ignore the election of officers, in which event the Democratic Congress and President would admit Kansas as a slave state completely offi- cered by pro-slavery men. In this condition of affairs a free-state convention met to determine the party policy. The radical free-state leaders in the con- vention were determined on the adoption of what was called the "non-voting" policy, because they opposed any recognition of the Lecompton Constitution and therefore opposed participation in the election of officers under it. And the followers of old John Brown opposed all peaceful measures and sought to provoke war with the National authority in the Territory, hoping that, once started, it would result in the destruction of slavery in the United States. The conservative men in the convention, including Mr. Ewing, encouraged by the fact that the free-state party had recently gained control of the Territorial legislature, advised the " voting-policy." They knew their party largely out- numbered the pro-slavery party, and hoped that, with the aid of the legisla- ture, they could enforce a fair election, and choose frec-soilers to all the State offices. Then if the State should be admitted under the Lecompton Constitu- tion, the State government, which could act without Congressional supervision, could call a new convention to adopt a Constitution prohibiting slavery. After a protracted debate, the " voting policy " was about to be adopted by the con- vention, when suddenly E. B. Whitman, one of the radical opponents of that
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policy, strode into the convention hall, booted and spurred and covered with mud, and in a violent speech asserted that battle was joined between free- soilers and Federal troops at Sugar Mound, eighty miles away, whence he had come to call the people to arms. The excitement which followed was furious. Mr. Ewing vehemently denounced Whitman's statement as false; but despite his efforts the trick, for trick it was, succeeded. The convention declared for the "non-voting" policy. This declaration created the final crisis in the strug- gle for freedom in Kansas. The situation was desperate. The date was Decem- ber 24th. The election was set for January 4th. The settled portion of the Territory was larger than the State of Ohio, and without a railroad. Mr. Ewing's temperament qualified him to meet the situation. He was effect- ive in emergencies. Now, when most of his party associates were disheartened, he bolted the convention, though only fifteen or twenty out of the hundred and twenty-nine delegates followed. The bolters nominated a full ticket, can- vassed the territory, sending newspapers and ballots by couriers to every set- tlement, and, in spite of bitter opposition from radical leaders and press, brought most of the free-state party to the polls. Mr. Ewing contributed to this canvass all the money he had and could borrow, amounting to over one thousand dollars. The pro-slavery leaders, finding themselves outvoted, resorted to enormous frauds in the count, and Calhoun officially proclaimed the election of the pro-slavery candidates. Thereupon Mr. Ewing procured the appointment of a commission by the Territorial legislature to investigate the election returns. The investigation, which he mainly conducted, resulted in the discovery of the original returns, buried in a candle-box under a wood- pile, on the premises of the surveyor-general at Lecompton. They were full of plain forgeries. The Democratic party in Congress, and the Buchanan administration abandoned the attempt to admit the Territory under the Lecompton Constitution, which fell covered with execration and infamy. This closed successfully the long struggle against slavery in Kansas. Early in 1858 Mr. Ewing's father, who, with full knowledge of the sentiment in Wash- ington, had been his constant and wise adviser, wrote to him :
" I am much pleased with the course you have taken, and borne through, in what is justly considered the crisis of the day, involving the fate of Kansas and the present peace of the Union. It was fortunate for you that the occasion offered, and having made the most of it you have done more to give yourself a desirable reputation than, under other circumstances, you might have been able to do in a well spent life."
When, in January, 1861, Kansas was admitted under a free Constitution, Mr. Ewing, then but thirty-one years of age, was elected Chief Justice of the Supreme Court. He served less than two years, but established a high reputa- tion as a jurist. With him " the law stood for justice and the judge for right- eousness." In September, 1862, he resigned the chief-justiceship to enter the Union army, and recruited the Eleventh Regiment Kansas Volunteer Infantry, of which he was elected colonel. For gallant conduct at Prairie Grove, one of the fiercest battles of the war, he was commissioned a brigadier general on March 13, 1863, by special order of President Lincoln. He was assigned to
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the " District of the Border," comprising the State of Kansas and the western portion of Missouri - a " hornets' nest of a district," as he called it. This com- mand, for which his acquaintance and influence especially fitted him, he held from June, 1863, to February, 1864. While in command of this district, on August 25, 1863, he issued an order known as " Order No. 11," directing the depopulation of large portions of four border counties of western Missouri. By the order the loyal inhabitants were required to remove to the military posts, the disloyal to remove out of the counties. It was a severe measure, but the only way of surmounting the difficulties to be overcome. These counties, after having suffered much from Kansas Redlegs under Jennison and other predatory leaders, whom Gencral Ewing suppressed with a strong hand, had become the base of operations of about a thousand Missouri guerrillas, under Quantrill, who incessantly raided southern Kansas. Speaking of the issuance of the order, General Ewing, at a reception tendered him in Kansas City in 1890, said :
"I remember when I came here, that on my trip to Independence, along a road by which I had once seen beautiful farm houses so thickly located as to make it almost seem a great long street, I saw, with but one exception, only the monuments which Jennison left, blackened chimneys. But one house between Kansas City and Independence was inhabited. About that time I went to Nevada, which I had remembered as a pretty town. Arriving there, I did not find a human being in the place-it was entirely deserted-not even a cat, dog or domestic animal of any kind could be seen, save some cows that had taken up their abode in the court house, which had been left in ruins, the records being trampled beneath the hoofs of the cows.
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