USA > Ohio > Bench and bar of Ohio; a compendium of history and biography, Vol. I > Part 3
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when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved "; and in conflict also with the clause of the State Constitution declaring, "The right of trial by jury shall be inviolate." The House of Representatives, with offended dignity, repaired to the Senate Chamber, December 27, 1808, and the trial was opened by the solemn procla- mation of the Sergeant at Arms : "O yes! O yes! O yes! All persons are to keep silence under pain of imprisonment, while the grand inquest of the State is exhibiting to the Senate of Ohio articles of impeachment against Calvin Pease, president of the Courts of Common Pleas, Third Circuit." There were three charges against Judge Pease, and one against Judge Tod, who at the time of this proceeding was one of the judges of the Supreme Court. The trial lasted several days. The suit was vigorously prosecuted on behalf of the legislature by Judge Thomas Morris, who received his political reward the following year in an appointment to the Supreme Bench. It resulted, not in impeachment, but a vindication of the judges, and established irrevocably the principle of co-ordi- nation of power in the three departments of government. Since that time the right of a State Court to pass upon the constitutionality of any legislative act has not been seriously questioned. In 1812 Judge Pease was elected to the State Senate ; in 1815 and again in 1822 was appointed judge of the Su- preme Court, serving two full terms of seven years each. He possessed a keen sense of humor, was a good story teller and occasionally fond of a practical joke. It is related in history that during the first year of his residence in Warren he coached a young justice of the peace on the marriage ceremony and then accompanied him on foot to Ravenna, twenty-five miles distant, in order to prompt him in case he should blunder while joining a young couple in wedlock. The justice proceeded without embarrassment, pronounced the contracting parties husband and wife, closing with the invocation, " And may God have mercy on your souls." The half suppressed titter of the witnesses suggested to the officiating squire that he had been victimized by his legal ad- viser, but it was passed as a good joke. Judge Pease was a man of great dig- nity and strong convictions. In a reminiscence of his first visit to a court room Judge Thurman says: "There sat, presiding, one of the finest specimens of manhood I ever saw, Calvin Pease, then Chief. Judge of the Supreme Court, dressed in a way that would make a dude faint, the most perfect dress I ever saw on a man, and the nicest ruffles to his shirt bosom, looking the very beau ideal of a gentleman of the olden time. By his side sat Peter Hitchcock. Now what a team that was! Woe unto the man who had a bad cause and tried to palin it off onto them ! What great men they were ! Hitchcock was on the bench much longer than Pease, though Pease achieved a wonderful reputation and a deserved one, so much so that Thomas Ewing once said to me that of all the judges he had ever appeared before, in liis opinion Calvin Pease was the greatest."
JOHN MCLEAN, elected to the Supreme Court from Warren county in 1816, was one of the very eminent jurists of the State. In youth he struggled with poverty, and his professional success was the result of his own purpose and
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energy. No man planned for him or prescribed his course of preparation. He came into the territory of Ohio at the age of twelve from his native State, New Jersey, where he was born March 11, 1785. He worked on his father's farm in Warren county until eighteen, attending the district school a portion of each year; filled a clerical position of subordinate rank in the Hamilton county clerk's office, and at length studied law in the office of Arthur St.Clair, son of the territorial governor. He served in Congress two terms, and on the Supreme Bench from 1816 to 1822, when he resigned to accept the commis- sionership of the general land office. The following year he was appointed postmaster-general. and exhibited surprising executive talent and force in the administration of that most important department of the public service. As Judge McLean's highest judicial reputation was made as a Justice of the United States Court, a more extended biography, together with the estimate of his character, is reserved for consideration in an article relating to the fed- eral judiciary.
JESSUP NASH was appointed one of the judges of the Supreme Court by the governor in 1816 and held the position until death, in 1821. He was a native of Redding, Connecticut, born August 3, 1778, a student from early childhood and a graduate of Yale in 1802. After studying law in his native State he came to Ohio and was admitted to practice in 1805. He was a gen- tleman of literary taste and substantial legal attainments, but died at the age of forty-three, before his intellectual powers had reached their complete devel- opment. He observed throughout life the habits of a student and spent much time in the privacy of his home and the companionship of books. His law library was well selected, while his collection of miscellaneous books was one of the largest and most valuable in the State. The former was bequeathed to his friend, Judge Thompson; the latter to his sister, Mrs. Burr.
PETER HITCHCOCK is a name that reflects luster on the judiciary of the State. His service on the Supreme Bench was longer than that of any other judge, and marked by ability and dignity scarcely excelled by any. He was born in Cheshire, New Haven county, Connecticut, October 19, 1781, the son of a poor man; so that he was obliged to rely mainly upon his own resources for the preparation essential to success in life. He engaged in teaching and with the money thus earned paid his expenses in Yale College, which he entered at the age of seventeen. He was graduated at twenty-one, entered upon the study of law immediately; was admitted to the Bar and settled in his native town for the practice in 1804, when only twenty-three years old. At that time the New West offered a wide field for an ambitious, enterprising young man and attracted many of the most talented and highly educated sons of New England. Young Hitchcock came to Ohio in 1806, entered land in Geauga county, on which he cleared a farm and founded his home. Without capital in money, his life was a struggle for existence while clearing the forests. The fees from law practice in the sparsely settled community were inadequate even for the moderate expenses of a pioneer, and he resorted to teaching school during the winter months. It was not in the nature of things
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that he should remain long in obscurity. He was amply qualified for public service and the State needed such men. In 1810 he was elected to the Lower House of the legislature, and in 1812 was elected to the Senate. His position was that of a leader in both branches of the general assembly. In 1816 he was elected to Congress and three years later was elected judge of the Supreme Court from Geauga. At the close of his first term of seven years he was re-elected, and his second term expired in 1833. After a retirement of two years he was elected a third time in 1835, and ten years later was elected to a fourth term, serving until 1852. His aggregate service on the Supreme Bench of the State covered a period of twenty-eight years, twenty-one of which he was Chief Justice. He possessed unusual capacity for mental appli- cation and physical endurance. Confident of his powers and resources, he was ready to assume any responsibility, and usually acquitted himself with the highest credit. His mastery of the principles of law and familiarity with the statutes led to the manifestation of impatience on the bench sometimes, when counsel sought to convince and overawe the Court by a display of authorities The brusqueness of his manner, however, seldom occasioned offense; and the plainness of his opinion was rather irradiated than obscured by its hasty, impulsive expression.
JACOB BURNET was appointed from Hamilton county in 1821 to fill out the term of Judge Couch (who died in office), and afterwards elected for a full term, but resigned in 1828 to accept the United States senatorship. He was a Jersey boy, born February 22, 1770, and educated in the old Nassau Hall, Princeton. He began the study of law soon after attaining his majority, and received a license from the Supreme Court to practice, at the age of twenty- six. Attracted by the fame of the magnificent country in the Miami Valley, he came west and settled in the straggling village of Cincinnati in 1796. Two years later he was appointed a member of the Legislative Council provided for in the ordinance of '87 as preliminary to a Territorial Legislature. No mem- ber of that body was more active, industrious and zealous than he. His schol- arship and professional acquirements were serviceable in the drafting of bills for adoption by the legislature, and it is stated as a historical fact that most of the territorial statutes were the product of his fertile brain and facile pen. Hle practiced law with marked ability and large success for about twenty years, but had retired before his appointment to the Bench. He was not fond of public office, as was indicated by his public declaration before entering upon the duties of United States senator that he would not be a candidate for re- election, and his subsequent positive refusal to accept a second term. His abil- ity as a lawyer and jurist was recognized by the college which graduated him and the University of Virginia, both of which conferred upon him the honor- ary degree of LL. D. He was the leading counsel of Blennerhasset, alleged to be involved in the treasonable conspiracy with Aaron Burr, vice-president of the United States. Judge Burnet was a strong, stern, self-reliant man, a faithful friend, an open foe. ITis historical notes and recollections are a valu-
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able contribution to the early history of the State. He died at the age of eighty-three.
CHARLES R. SHERMAN Was elected to the court from Fairfield county in 1823 and died in office in 1829. He was an able and learned jurist. For two centuries and a half the Sherman family has been conspicuous in jurisprudence, as well as the political and military history of the American colonies and the United States. The progenitors of the American branch of the family em- igrated from England in 1634. They landed in Massachusetts, but Samuel, the ancestor of Charles R., afterwards moved to the valley of the Connecticut. Their descendants filled many positions of responsibility in New England and were uniformly noted for ability, integrity, patriotism and fidelity in the dis- charge of duty. He studied law with his father, who was both a lawyer and a judge; was admitted to the bar and married in his native State, came west in 1810 at the age of thirty-two and settled in Lancaster. His wife followed the next year, making the entire journey on horseback with her babe, their eldest son, strapped to a pillow in front of her saddle. This infant became Judge Charles T. Sherman, late of Cleveland. Judge Sherman soon established him- self in practice and won a high place among the eminent lawyers who honored the profession in Southern Ohio during the first half of the century. His rep- utation as a citizen and influence in the community equaled his prominence at the bar. The only official position which he held prior to his election as judge was membership in the State legislature. He died suddenly in the prime of life, while holding court at Lebanon, leaving a widow and eleven children, the eldest being only eighteen years of age. Three of these won national renown -Charles R., the judge; William T., the general, and John, the senator.
JOSHUA COLLETT was elected from Warren county in 1829 at the age of forty-eight, and served one full term of seven years. He was a native of Vir- ginia, Berkley county, read law in Martinsburg, and moved to Cincinnati just before the admission of Ohio into the Union: Six months later he settled in Lebanon and was the first lawyer established in Warren county. He was modest, even to diffidence. The self-confidence and independence which are, in popular estimation, attributes essential to professional success on the fron- tier, were wanting in his character. Contact on the circuit with the lawyers who excelled in forcible public speech and scholarship, and who never failed in professional courtesy or the amenities of life, served as a school for the culti- vation of self-reliance; while his learning in the law and studious habits largely compensated for the lack of assurance. He was elected prosecuting attorney for Warren county in 1810, and discharged his official duties with such ability as to establish a high reputation. After serving ten years as prosecutor he was appointed judge of the Court of Common Pleas and reap- pointed at the close of his first term of seven years. While still occupying the Bench of this court he was promoted to the Supreme Court. His service on the Bench and in the office of prosecuting attorney extended over a period of twenty-six years. In 1836 he retired from public office. Throughout life he preserved a character for integrity, virtue and benevolence. In 1836 and
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again in 1840 he was chosen one of the presidential electors on the Whig ticket.
ELIJAH HAYWARD, one of the old lawyers of Cincinnati, was appointed to the court from Hamilton county in 1830. Although he was probably a good lawyer and a reputable judge, history accords to him no special prominence and even the records of the court fail to disclose the time of his service or date of retirement.
JOHN M. GOODENOW, of Jefferson county, was elected judge in 1830 and resigned the following year on account of ill health; subsequently removed to Cincinnati, where in 1833 he became president judge of the Court of Common Pleas. This position he resigned also, because of inability to preserve harmo- nious relations with members of the Bar. Judge Goodenow was a native of Massachusetts, born in 1782, educated in the common schools and also educated in the law before coming west. He settled in Ohio and began the practice at Steubenville, in 1811. While favored with strong intellectual powers and forti- fied by careful reading in the line of his profession, he was unfortunate in dis- oosition -- querulous and faultfinding. His irascibility led him into difficulties and quarrels with lawyers who practiced in his court and with judges before whom he had cases as attorney. One of the bitterest of his controversies was with Judge Tappan, before whom he argued a habeas corpus case involving important questions. He maintained in argument that the Common Law appli- cable to the punishment of crimes had never been in force in Ohio. Judge Tappan held the opposite view and the controversy at length assumed the form of an action for slander brought by the attorney against the judge. Goode- now's conviction as to the merits of his contention led him to write a book in which his views were expressed with clearness and force, under the title " American Jurisprudence in Contrast with English Common Law." The Supreme Court of the State sustained his view in Smith vs. State 12, O. S. 466, and later in Mitchell vs. State 42, O. S., p. 382.
GUSTAVUS SWAN, of Franklin, was appointed by the governor, in 1830, to fill a vacancy expiring in 1831. HENRY BRUSH, JOHN C. WRIGHT, and EBENEZER LANE were elected in 1830. Judge Brush, a native of New York and a lawyer of only moderate ability, had settled in Chillicothe in 1803, served as prosecuting attorney, representative and senator in the Ohio general assembly and representative in Congress-a single term in each office. Judge Lane was born in Northampton, Massachusetts, December 17, 1793, and died in Sandusky, Ohio, June 13, 1866. He was graduated at Harvard in 1811, studied law at Lyme, Connecticut, was admitted to the Bar in 1814, and after practicing in Connecticut three years. moved to Ohio and settled in Norwalk. He was elected judge of Common Pleas in 1824, and was on the Supreme Bench from 1837 to 1845. After leaving the Bench he resumed the practice of law and became engaged in railroad enterprises until 1859, when lie with- drew from business.
Ile was one of the most able men who liave sat in the Supreme Court of Ohio. He had penetrating sagacity and rare intellectual powers, was pro-
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foundly versed in the law, and was an omnivorous reader of literature. On the Bench he shunned display of learning, and was for the most part content with stating the facts and the principles of law which controlled the case ; and his opinions, concise, direct, cogent, are conspicuous in the reports for their simplicity and strength.
JUDGE WRIGHT was a lawyer-editor, and in both capacities was incisive, aggressive, keen-witted and forcible. He was a resident of Steubenville for many years, where he practiced law and filled several county offices, besides serving as a member of Congress three terms. He was managing editor of the Cincinnati Gazette in later life, and a terse, forcible writer. He published the reports of decisions of the Supreme Court during the time he was one of the judges-1830 to 1835. These were the first official reports of legal decisions published in the State. He served with credit in Congress, where he was known as one of the very few men whom John Randolph thought it prudent not to attack.
REUBEN WOOD was elected from Cuyahoga county in 1832, and served one full term. Judge Wood possessed, in a very large measure, those inherent qual- ities and forces which are the foundation of greatness. He was born in Vermont in 1792, and came to Cleveland twenty-six years later with his wife and daugh- ter. He was poor in purse but rich in energy and ambition. His cash capital at the time of settlement on the Cuyahoga river was twenty-five cents ; but his resources were boundless. His education in the law had been obtained in his native State, and now he walked to Ravenna, where the Supreme Court wa's in session, to procure a license to practice. His personal appearance, no less than his learning, served as influence in securing business at first. He was a giant in stature, erect as an Indian, with the presence of a chief and the bear- ing of a soldier. Withal, he was so genial in social intercourse and so engag- ing in manners that he soon had clients and friends. His political ambition outstripped his professional achievements. He served as State senator before he was judge of Common Pleas, and was elected governor ten years after retiring from the Supreme Court. The intervention of the Constitution of 1851 cut off his term almost at the beginning, and he was re-elected in 1852. He manifested to an unusual degree what is popularly termed executive abil- ity - not only in carrying laws into effect, but in the selection of men for places. His administration was highly successful. He was a candidate for President in the Democratic National Convention of 1852, as " The Cuyahoga Chief," and received a very respectable vote. His ability was not inferior to that of his successful competitor in the convention.
FREDERICK GRIMKE was one of the few men of prominence in Ohio whose nativity was in the South. He was born in South Carolina September 1, 1791, graduated from Yale at nineteen, studied law in his native State and practiced there until 1820, when he migrated to Chillicothe. After serving several years as president judge of the Common Pleas he was elected judge of the Supreme Court in 1836 and served one term. He gained some literary reputa- tion by the authorship of two volumes-" An Essay on Ancient and Modern
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Literature," and " Considerations upon the Nature and Tendency of Free In- stitutions." Although he lived to the age of seventy-three, he died a bachelor. Naturally reserved in manner and diffident in the presence of ladies, he prob- ably never found the courage to propose matrimony.
MATTHEW BIRCHARD was elected from Trumbull in 1842 and served one term on the Supreme Bench. He was a man of more than average ability and a judge of more than ordinary attainments. He was born at Becket, Massachusetts, in 1803, and came to Ohio at the age of eight with his parents, who settled in Trumbull county, near the town of Warren. After the pre- paratory course of study he was admitted to the Bar in 1827, and six years later was elected judge of the Common Pleas. He was a Jackson Democrat and interested sufficiently in politics to turn aside from the main drift of his life and leave the judgeship of the Common Pleas circuit to accept the com- missionership of the general land office tendered him by President Jackson. His written opinions are characterized by felicity of expression and perspicuity of thought. His pertinacity has been bluntly denominated stubbornness. It was the same quality which prompts the twelfth juror to hold out against his eleven peers and prevent a verdict, without a suggestion of bribery.
NATHANIEL C. READ, elected to the Supreme Court from Hamilton county, was a man of versatile talents and a lawyer of brilliant power. As a prac- ticing attorney in the trial of cases, a presiding judge in nisi prius courts and the final adjudicator of questions appealed to the court of last resort he was equally successful. He was a man of marked ability, and had a clear com- prehension of the law. He several times dissented from the majority and his dissent was subsequently recognized as the true rule. His usefulness was marred by his personal habits and at the end of five years he resigned and resumed his practice at Cincinnati.
EDWARD AVERY, a man undistinguished in history but respectable in character and talents, was elected to the Supreme Bench from Wayne county in 1846 and resigned in 1851. The offices previously filled by him were those of prosecuting attorney and State senator.
RUFUS PAIN SPAULDING was chosen a member of the court by the legis- lature in 1849, for a term of seven years, which was cut to little more than two years by the operation of the second Constitution of the State. His service might have continued longer had he not declined to be a candidate before the people. He was a native of Massachusetts, born in 1798, son of an eminent physician who removed with his family to Norwich, Connecticut, when this son was only fourteen years of age. His opportunities of acquiring a scholastic and professional education were the best, and he improved them most advantageously. Ile was graduated from Yale at nineteen and read law with Judge Swift, Chief Justice of the State. As a young man he began the practice in Little Rock, Arkansas, but removed thence to the Western Reserve, Ohio, at the end of three years and a half, and lived at Warren sixteen years. Subsequently he resided in Portage, Summit and Cuyahoga counties. Hle represented both Portage and Summit in the general assembly at different
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times, and served one term as speaker of the House. At the close of his judicial service he settled in Cleveland, where he engaged in the practice of law. Thoughtful, capable and successful men are usually moved by strong convictions. It was so with Judge Spaulding. His personal convictions on the subject of slavery fortified him with courage to renounce his allegiance to the Democratic party after he reached the age of fifty. Turning from the partisan associations of half a century, he supported the free-soilers in 1850, and was ready to unite with the incongruous elements and forces, bound together by the single principle of resistance to the encroachments of slavery, to form the Republican party. He became an aggressive member of the new party and was elected to Congress in 1862, where his ability, courage and energy gave him rank among leaders.
WILLIAM P. CALDWELL and RUFUS P. RANNEY connected the old with the new, serving as judges of the highest court under two constitutions. Judge Caldwell was first elected by the legislature in 1849, and elected by the people in 1851. Born in Butler county in 1808, he was the first native of the State honored by an election to the Supreme Bench. He was a farmer's boy, with ambition and energy to desire and obtain an education ; was graduated by Miami University in 1835 ; read law with Judge John Woods of Hamilton, and located for practice in Xenia, but soon removed to Cincinnati, where he became associated in partnership with Honorable Samuel Fenton Carey. After serving a term as prosecuting attorney, he was elected president judge of the Court of Common Pleas in 1842, retaining that office until his promo- tion to the Supreme Court. On resigning, in 1854, he resumed the practice at Cincinnati with great success. Other judges may have excelled Caldwell in the critical analysis of legal principles and logical deductions from established premises ; but none surpassed him in the ability to penetrate the consciousness of men and estimate the motives of human action. He was a mind-reader in the accuracy of his knowledge of human nature. His judgment as to the equities of a cause was true and righteous. He could look through a mask of assumption and deceit with unerring penetration. His intercourse with fellow men was marked by directness of purpose, frankness of manner and imper- turbable good nature.
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