USA > Ohio > Bench and bar of Ohio; a compendium of history and biography, Vol. I > Part 4
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UNDER THE CONSTITUTION OF 1851.
About the middle of the century there was a feeling of unrest and dis- content with existing conditions throughout the world. There were revolu- tions in several of the countries of Europe, and efforts, more or less successful, on the part of the people to secure for themselves a larger liberty and to re- strict the power of rulers. While these manifestations of rebellion and incip- ient revolution were almost universal in the old world, there was a different kind of activity in the United States. The discovery of gold fields in Califor- nia gave an impetus to business and commerce, while the growth of new States rendered necessary a change and enlargement of the provisions of their organic
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law. It is a noteworthy fact that about this time each of the four States that had been erected in the Northwest Territory found it necessary to revise their constitutions. Illinois led the way in 1848, Indiana and Michigan followed in 1850, and the convention of Ohio for that purpose assembled in 1851. That convention framed for the State a new Constitution which made some radical changes in the organization of courts. The Constitution provided for the elec- tion of judges of the Supreme Court by the people instead of by a joint con- vention of the general assembly. It fixed the number of judges at five, a ma- jority of whom constituted a quorum. The term was fixed at not less than five years, with the provision that a session of the court should be held in the State capital at least once in each year. The number of judges could be increased or diminished by the legislature, but any act reducing the number must not operate to shorten the term for which any judge was elected ; that is, he could not be legislated out of office. The Constitution further provided that when the number of judges should be increased the State might be di- vided into three circuits, with an assignment of an equal number of judges to each division. The provision empowering the legislature to organize the Su- preme Court into separate divisions is an enlargement of Section II , created by amendment adopted October 9, 1883. A majority of the judges sitting as an undivided court could decide causes and pronounce opinions that should be accepted as the expression of the court. In deciding causes heard by a divi- sion of the court the opinion must be unanimous. In case of a divided senti- ment the question must be referred to the whole court, which also had the ex- clusive consideration of questions involving the constitutionality of an act of the legislature or an act of Congress. As a relief to the court, when its docket should be overcrowded, a commission of five members was authoized after the year 1876, having the same jurisdiction as the Supreme Court and sitting for a term not exceeding three years, to hear and determine appeals. The provision for a Supreme Court Commission, to continue in existence three years from February 1, 1876, and empowering the legislature upon application of the Supreme Court, not oftener than once in ten years, to create a like com- mission for a term not exceeding two years, was made by amendment adopted October 12, 1875. The same relief might be invoked at the end of any period of ten years after the first commission. Under the Constitution, as amended, two such commissions have been raised. In case of a vacancy in the Supreme Court occurring thirty days prior to the annual election, the governor was au- thorized to fill it by appointment until such election. The judges comprising the first court under the new constitution were William B. Caldwell, of Ham- ilton county, Thomas W. Bartley, of Richland, John A. Corwin, of Champaign, Allen G. Thurman, of Ross, and Rufus P. Ranney, of Trumbull. It was for- tunate for the adjustment of the Constitution to existing statutes that Judges Ranney and Caldwell had served under the former Constitution, as their ex- perience facilitated the business of the new court. Judge Caldwell was chosen Chief Justice, and served until 1854, when he resigned.
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JUDGE BARTLEY was a native of Ohio, born in Jefferson county, February 11, 1812, the son of Mordecai Bartley and Elizabeth Welles. He was educated in Jefferson College, Pennsylvania, studied law in Washington, D. C., and began the practice at Mansfield, in 1834. By natural ability and application he took a leading position at the Bar. He served the State as attorney-general four years and filled the office of United States district attorney for a like period. He was a member of the general assembly several terms, and was acting governor of the State after the resignation of Governor Shannon, in 1844, until the governor-elect was qualified in December of that year. It is worth noting that the governor who succeeded him was his father. After retiring from the Supreme Court he praticed law in Cincinnati for a time, and subsequently removed to Washington. Judge Corwin resigned after serving about half his term, without any credit or distinction to himself, owing to his objectionable personal habits. It is unnecessary to refer to Judges Thurman and Ranney in this connection, as very full biographies of them are found in another part of this work.
ROBERT B. WARDEN, of Franklin county, was appointed by the governor to succeed Judge Corwin, but served only a few months until that vacancy was filled by election. He was only twenty-eight years of age, the youngest man ever appointed judge of the Supreme Court, and was taken from the office of reporter of the decisions of that court. His ability was unquestioned, but his adaptability doubtful. He did not remain long enough in one place to become identified with the community and form the attachments of home and gain the influences of inspiration which come from association by a long, hon- orable and useful residence in the same locality.
WILLIAM KENNON was appointed in 1854, from Belmont county, to serve until the election of that year, in which he was chosen to serve the unexpired portion of the term of Judge Caldwell. He was born in Pennsylvania in 1798, came to Ohio at the age of six with his parents, who settled in Belmont county, where he continued to reside for more than seventy-five years. He was edu- cated at Franklin College and began the practice of law at St. Clairsville in 1824. At the age of thirty he was elected to Congress and served one term. He was appointed by the legislature president judge of the Court of Common Pleas of Thirteenth District in 1840. He was one of the active members of the constitutional convention of 1851, and the same year was appointed a mem- ber of the codifying commission, which prepared the code of civil procedure. He was a man of recognized ability in the profession, and strong in the fiber of his character. He was a powerful speaker, especially in the court room. His impassioned oratory had influence in moving the passion and influencing the judgment of a jury ; his logical reasoning convinced the understanding of the judge. He was fond of literature, and it is related that he began the study of the Hebrew language after reaching the age of seventy-five years and became quite proficient in it.
JOSEPH R. SWAN, who was elected in 1854 for the remainder of Judge Corwin's term and served until November, 1859, was an able judge
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and a man of rare qualities. His biography also appears at length in this volume.
JACOB BRINKERHOFF, of Richland county, was elected in 1855 and re-elected in 1860 and 1865, serving fifteen years. He was a native of New York, born August 31, 1810. He was descended from an old Dutch family, of which the first American representative, Hendrick Brinckerhoff, emigrated from Holland and settled in New Netherlands in 1638. After arriving at school age he attended the district schools until fifteen. In 1825 the family removed to Steuben county, in the same State, where he worked on a farm until twenty years of age and then began the study of law, after spending some time in the Academy at Plattsburg. His studies were prosecuted with Howell & Howell, at Bath, Rogers & Neaston and Henry Wells, in Pennyan, where he remained until 1835. In 1836 he came to Richland county, Olio, and located at Mans- field, where he formed a law partnership with Thomas W. Bartley. In 1839 he was elected prosecuting attorney and served four years. Politically he was a Demoerat and was elected to Congress by that party in 1843. After serving two terms in the House of Representatives he resumed his law practice. He was a good lawyer, a just judge, an upright man, popular with members of the profession and esteemned by the public. He was opposed to the encroachments of slavery and became a member of the Free-Soil party while serving in Con- gress. Ile was the real author of the Wilmot Proviso, popularly attributed to David Wilmot, of Pennsylvania, by whom it was introduced in the House. This "proviso" was offered as an amendment to a pending bill appropriating money to enable the President to open negotiations for peace with Mexico. During the progress of the war the United States had obtained military pos- session of California and New Mexico, and it was the general understanding this acquisition of territory was to be permanent. The slave-holding interests confidently expected to establish slavery therein, and relied upon their rep- resentatives in Congress to prevent restrictions. The Free-Soilers, including at the time many Northern Democrats, determined, if possible, to have the newly acquired territory dedicated to liberty. The Whigs, who had opposed the war, were ready for an alliance which would defeat its cherished object. Accordingly Judge Brinkerhoff drew up the proposed amendment providing that neither slavery nor involuntary servitude, except for the punishment of crime, should ever exist in the acquired territory. IIe submitted this first to his friend, Judge Vinton, a Whig member from Ohio, who promised to rally that party in its support, and then requested Mr. Wilmot, because of his popu- larity with the administration and the Southern members, to offer the amend- ment. This was done and it was adopted. Other congressmen had been busy along the same line, including Hale and Hamlin, Grover and Jenkins, Preston King and Rathburn; but the original draft of the " Wilmot " proviso, on file in the Congressional Library, is in the handwriting of Judge Brinkerhoff. His convictions on the subject of slavery were strong and deep. They influenced his independent action in Congress. When it was suggested to him by his relative, Gen. R. Brinkerhoff, that he should continue to act with the Denio-
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cratic party, as he could not otherwise hope for political honors; the anti- slavery movement was unpopular and he should at least repress his sentiments until more progress was made toward freedom, he replied: "That may do for you, but not for me. I have made my bed and I must lie on it. It is true I do not see any hope for liberty in my time, but as sure as God lives it will come some time, and I would rather my children or grandchildren should remember that I lived in the faith and died in obscurity than to obtain prefer- ment by the abandonment of my convictions or even by silence."
CHARLES CLEVELAND CONVERSE, of Muskingum county, was elected to the Supreme Court in October, 1855, but on account of ill health resigned in February following, before taking his seat. He was a man of scholarly attain- ments who had the advantage of attending the lectures of Story and Green- leaf while in the Harvard Law School. His parents were members of the Ohio Company and pioneer residents of the Northwest Territory. He had served in the State Senate as its presiding officer, and for one year, beginning in 1854, was judge of the Court of Common Pleas.
OZIAS BOWEN, of Marion county, was appointed in February, 1856, to fill the vacancy occasioned by the resignation of Judge Converse and was elected in October following for the remainder of the term. He was a native of New York, born July 21, 1805, and came to Ohio in boyhood. His literary and professional education was obtained in the State and he located for practice at Marion. The only office which he filled prior to his appointment to the Supreme Bench was that of president judge of the Second Circuit, which he held for two terms. He was gentle and quiet in manner, dignified in bearing and devoted to his profession. His success at the Bar was largely due to the assiduous labor bestowed upon his cases, and the same assiduity was ob- served in his investigation as a member of the Supreme Court.
JOSIAH SCOTT was elected in 1856 from Butler county. He was re-elected in 1861 and 1866, serving three full terms. Judge Scott was born December 1, 1803, in Washington county, Pennsylvania, was educated in Jefferson Col- lege and graduated with class honors in 1823. For some time thereafter he was employed in teaching, in a classical academy at Newton, Pennsylvania, and afterwards in Richmond, Virginia. He was also employed as tutor in Jefferson College for a year, but at no time did he expect to make the profes- sion of teaching his life work. During all the years after leaving college he had been engaged in reading the textbooks of law, and by this time he was qualified to engage in practice. In June, 1829, he located at Bucyrus, which was then on the border of the Indian reservation. The population of Craw- ford county at that time contained a large proportion of Wyandot Indians. Judge Scott remained there twenty-one years and gained for himself a high reputation as a lawyer, and considerable popularity in politics. He was elected to the general assembly in 1840. In 1851 he located in Hamilton, Butler county, where he won distinction in competition with the ablest members of that Bar. The attachments formed at Bucyrus during his long residence were sufficient to cause his return to that place while serving as a member of the
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Supreme Court. On his retirement from the Bench he resumed the practice there until appointed by Governor Hayes a member of the first Supreme Court Commission. He died at the age of seventy-six. He was a thorough scholar, and his interest in literature was continued during the whole course of his life. He was especially fond of the classics in Greek and Latin. It is said that his greatest skill as a practicing lawyer was observed in his adroit method of eliciting testimony on cross-examination. He did not bully a witness, but his insinuating manner and peculiar manifestation of friendliness disarmed the pugnacious and stubborn witness, causing him to disclose the truth unawares. His judicial opinions were expressed with clearness and force unsurpassed by any contemporaneous judge.
WILLIAM SUTLIFF was elected in 1857 to succeed Judge Bowen, re-elected in 1862 and retired in 1868 after a service of ten years. He was one of the six sons of Daniel Sutliff, a Revolutionary soldier, four of whom became lawyers. He was educated in Western Reserve College, graduated in 1834, and the same year entered upon the practice of law at Warren. In politics he was a pro- nounced abolitionist with all the moral courage for which the vanguard of the anti-slavery crusade was noted. He was assailed, but his motives were never impugned or his integrity doubted either as a man or a judge.
WILLIAM V. PECK, of Scioto county, was elected in 1858 to succeed Judge Bartley, and after serving a single term retired in 1864. Owing to impaired health he declined a re-election. He was a sufferer from chronic bronchitis. Judge Peck was a native of Connecticut and received his literary, as well as legal education, in that State, He possessed scholarship of high grade and was well trained as a lawyer. Having been employed for some time in an office at Cincinnati where his duties were chiefly clerical, he became familiar with all forms of legal papers, and as his penmanship was faultless, any plead- ings or other papers drawn by him were a source of pleasure to the clerk. He went to Portsmouth from Cincinnati, where he acquired a fine reputation as a practitioner. He never filled any other than a judicial office, having been promoted to the Supreme Court from the Common Pleas judgeship, to which he had been elected in 1848. His perceptions were clear and discriminating as to the interpretation and applicability of the law. His written opinions were noteworthy for felicity of expression aud perspicacity. He was remarka- bly successful as a nisi prius judge, and the Supreme Court, sitting in his dis- trict, had no cases for consideration.
WILLIAM Y. GHOLSON, of Hamilton county, was appointed in 1859 to fill the unexpired portion of Judge Swan's term, and elected the same year for the succeeding term ; but resigned in 1863. He was a native of Virginia, edu- cated in Old Nassau Hall, at Princeton, and settled in Cincinnati for practice in early life. He was a lawyer in every aspiration and purpose. He pos- sessed a legal mind of unusual activity, was highly cultivated and deliberate. As a judge, whether on the Bench of the Superior Court at Cincinnati, or on the Supreme Bench of the State, he measured up to the standard of Lord Bacon. Ile knew nothing of the parties but their names on the docket ; noth-
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ing of the cause but from the evidence; nothing of the result and its conse- quences but the judgment which the law pronounces. He was born in 1807 and died at his home near Cincinnati, September 21, 1870.
HORACE WILDER was appointed by the governor December 12, 1863, in place of Judge Gholson, resigned. In October following he was elected for the remainder of the term expiring in February, 1865. He was a resident of Ashtabula. Judge Wilder was born in Connecticut, August 20, 1802, was graduated from Yale at twenty-one, studied law and was admitted to the Bar in the State of Virginia at twenty-four. He settled in Geauga county, Ohio, in 1827, and the following year was admitted to the Bar. Immediately after- wards he located for practice in East Ashtabula. He was elected prosecuting attorney of the county in 1833, and a member of the legislature the following year. He continued in the practice of his profession, but held no other office until he was elected judge of the Court of Common Pleas, in 1855, to fill a vacancy. He was re-elected the following year for a full term. There are lawyers now living in Ohio who remember Judge Wilder for his kindness and consideration to them when very young and inexperienced in the practice.
HOCKING HUNTER was elected judge of the Supreme Court from Fairfield county in 1863, but resigned before the beginning of the term for which he was elected. He stood in the forefront of the profession, a member of the Bar at Lancaster during the period of its highest celebrity. He was born in the territory of Ohio August 23, 1801, and died at his home near the same spot, February 4, 1872. His father, Captain Joseph Hunter, a native of Vir- ginia, was an officer of the Revolutionary War, and lived in Kentucky after the close of that war until 1798, when he became the pioneer settler of Fair- field county. His education was limited to the common school branches, but was thorough in the rudiments. After reading law with Judge William W. Irvin, be was admitted to the Bar in 1824. He served as prosecuting attorney of Fairfield county from 1825 to 1831. During the latter year he formed a partnership with Thomas Ewing, the elder, thus organizing one of the strong- est firms for the practice of law that ever existed in Ohio. It is a fact some- what singular among men who have acquired great distinction that Hocking Hunter, during the course of his long, honorable and distinguished career, was never a candidate for office and never held any office but that of prosecuting attorney.
WILLIAM WHITE Was first appointed by the governor in February, 1864, to fill the vacancy occasioned by the resignation of Judge Hunter, serving under that appointment until October, when he was elected for the remainder of the term. He was re-elected in 1868, 1873 and 1878, and died in office March 12, 1883. He was a resident of Clark county. Judge White was a conspicuous example of young men who have the aspiration and will to rise superior to their en- vironments. He was a native of England, orphaned in childhood by the loss of both parents, and came to the United States at the age of nine years with his uncle, who settled at Springfield. He was apprenticed under the system of indenture then prevalent, for a term of nine years, to learn the cabinet-
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makers' trade. After six years of service he bought his release from bondage and paid for it with the wages of labor at his trade as a freeman. He educated himself in the high school at Springfield and studied law with William A. Rogers. During the time he spent as student in preparing for the practice of law, he paid his expenses with the wages earned at teaching school. When twenty-four years of age he formed a partnership with Mr. Rogers, his pre- ceptor ; afterwards held the office of prosecuting attorney, to which he was elected three successive terms. In 1856 he was elected judge of the Court of Common Pleas, and re-elected in 1861, vacating the office when he accepted appointment to the Supreme Bench. He worked hard and almost incessantly in discharging the duties of judge, so that his health was much impaired, even before his last election. The memorial adopted by the State Bar Association tes- tifies the esteem of the profession: " For his long, faithful and eminent ser- vices, as well as for the unsullied purity and uprightness of his personal char- acter, and his excellent qualities of heart; their appreciation of the inestimable value of his inspiring career and his unremitting toil, to the detriment of his pecuniary interests, in the service of the State he loved so well. The loss of such a man from the judicial quorum is irreparable to the public as well as to the Bar."
LUTHER DAY, of Portage county, was elected to the court in October, 1864, re-elected in 1869, and retired at the end of his second term. He was born in Washington county, New York, July 15, 1813. His academic educa- tion was interrupted by the necessities of the family, which recalled him from school to labor on the farm, at the end of one year. Not long afterward the death of his father, whose estate was embarrassed by debt, compelled him to give up the struggle for an education and work for a living for his mother and younger members of the family. Although only sixteen years of age, the sense of responsibility made him a man in discretion, tact and energy. He worked on the farm and in the saw mill to such purpose that the incumbered property was saved and the debt fully paid at the end of six years. Then, at the age of twenty-two, he entered Middleberry College, Vermont, where he remained two years, and paid his expenses by teaching. Abandoning the pur- pose to complete his course in college, he settled in Ravenna, Ohio, and took up the study of law in the office of Honorable Rufus Spaulding. He was ad- mitted to the bar in 1840, and formed a partnership for practice with Honora- ble Darius Lyman, an old lawyer of the place, which was continued for three years. He served as prosecuting attorney for a term, and in 1849 was the candidate of the Democrats for representative in Congress. In 1851 he was elected judge of the Common Pleas Court. Ilis wife was the daughter of Judge Spaulding. The attitude of the Democratic party just prior to the war caused him to form an alliance with the Republican party. In 1863 he was elected to the State Senate as a Republican. IIe held no other political office, but after his retirement from the Supreme Bench, was appointed, in 1875, a member of the commission to revise the statutes of the State. The following year he was appointed a member of the first Supreme Court Commission.
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JOHN WELSH, appointed to the court in place of Judge Ranney, February, 1865, was subsequently thrice elected, serving continuously until 1878. He was a native of Ohio, born in Harrison county, October 28, 1805. After preparation by liberal reading and study he was admitted to the Bar in 1833 and began practice at Athens. He enjoyed unusual advantages by association with lawyers of large experience and ability at the opening of his career. He was intellectually strong and his mind was trained to independent thought. Like Festus, he reasoned well. His sense of what the law ought to be was profound, and he relied upon his power of reasoning to establish his premises as much as he relied upon the matter printed in the books. His personal popularity, supplementing his undoubted qualifications, occasioned his prefer- ment for political office, and he served with acceptability as State senator and member of Congress. He also was elected judge of the Court of Common Pleas before being called to the highest court. It is said that the opinions written by him contained no excess of verbiage. They were about as nearly as may be the naked law tersely expressed. He was the author of a digest containing two volumes of Ohio decisions.
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