USA > Ohio > Bench and bar of Ohio; a compendium of history and biography, Vol. I > Part 7
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Putting aside the question of intermediate courts, the judicial system of Ohio is a model for all states where intermediate courts exist, and the practice as now formulated for those courts seems as nearly perfect as possible.
GILBERT H. STEWART.
EARLY COURTS OF THE MAUMEE VALLEY.
A HISTORICAL SKETCH.
BY JUDGE JOHN H. DOYLE, TOLEDO.
No incident or event connected with the early Bench and Bar of Lucas county, or of the northwestern counties of the State, is so old but that it remains vividly in the recollection of members of the profession still living. That is a wonderful thing to contemplate. Lawyers who attended the first courts held under any organized division of the State embracing the territory of the Northwest, are able, with the eyes of the living, to see the magic growth of but little over a half century from swamp and wilderness to a great city, with its numerous thriving neighbors, magnificent farms, and population numbering hundreds of thousands. Lawyers who attended the first courts held in the county at which any business was attempted still attend upon the sessions of the same court, participate in its deliberations, and are able to pass in review every event in its half century's work, from its organization with half a dozen lawyers gathered from different parts of the State, its meager business disposed of in a few days in each of its semi-annual terms, to the overburdened dockets of the multiplied courts, its hundreds of lawyers and perpetual sessions of to-day. To write, therefore, of the early judiciary and of the early history of the Bar is necessarily to write, to some extent, of the living and of events which are within the short span of a man's business life ; and the marvel I speak of is, that in the midst of a great city, the center of a great population surrounding it, and within the memory of its citizens, we can commence our record at absolutely the beginning.
Lucas county was organized in 1835, and became a part of the judicial subdivision then presided over by Judge David Higgins, of Norwalk, the first term of the Common Pleas Court being held on the 7th day of September of that year. The term was held by the associate judges, the presiding judge not being present. Judge Higgins first arrived in Toledo on the morning of April 27, 1836, where he was met by the three associate judges and opened court in a most formal manner. A grand jury was sworn and the men composing it were certainly among the most prominent citizens of the county. It is a fact which every lawyer recognizes, that with the growth of cities, the increase of wealth and business, and corresponding increase in the importance of matters litigated in the courts, the character of juries decreases
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in corresponding ratio. Not because the best citizens are not liable to jury duty. Not because intelligence and responsibility are not sought among the qualifications now, nor because of any fault in the system of the law; but for the reason that business men are not willing to perform this important duty. Every excuse known to the law, and some not thus recognized, are resorted to for escape; and the laxity of the courts in enforcing the law, their willingness to accept excuses from the unwilling, while so many are anxious to serve, has resulted in the growth of a class of "professional " jurors, who are rapidly bringing into disfavor a system, which, in my judgment, is indispensable to free government and the impartial administration of justice through the courts. At the April term, 1836, of the court, the only business transacted of a judicial nature was the following: On return by the grand jury of two indictments for petit larceny against John Wilson, his trial and conviction therefor followed, with sentence in each case to six days' imprisonment in jail. and a small fine. The sheriff, Cornelius G. Shaw, was amerced in the sum of $160 for failure to bring in the body of one Henry Morgan, a defendant in an action of assumpsit, in pursuance of a writ issued and a rule made requiring the sheriff to do so. Andrew Coffinbury, who then lived at Mansfield, was, on the opening of court, appointed prosecuting attorney, and for attending upon the grand jury, preparing the indictments and trying Wilson upon each indictment, he was allowed by the court the sum of $15 00. An entry was made in an ejectment, case substituting Robert A. Forsyth and Smith Daggett as defendants in place of the mythical "Richard Roe."
One of the earliest cases tried grew out of the controversy between Ohio and Michigan over the disputed boundary line. After Ohio had asserted her right to territory to the Harris line, and had organized the territory into a county, an election was required to be held in Toledo, and Benjamin F. Stick- ney, Platt Card, and John T. Baldwin were selected as judges and accepted. This was a violation of a " Pains and Penalties Act" of the Michigan Legis- lative Council, which made it an offense to acknowledge any other authority than Michigan in the disputed territory, and was an overt act against Michi. gan authority. Major Stickney had attended the session of Congress of 1834-5 as an active worker and warm partisan of Ohio, and incurred the enmity of the people of Michigan therefor. In March, 1835, he visited Monroe, when, much to his surprise, he was arrested on a criminal charge, based on his serv- ing as judge of the election a year before under the authority of Ohio, and was thrown into prison. He was detained until he obtained bail, which was required for his appearance at the next term of court. In July of the same year Governor Mason sent a force of 250 men to Toledo to arrest young Two Stickney, a son of the major, who was then in Columbus under the protection of Governor Lucas. They ransacked the major's house, and not finding young Stickney, concluded to arrest the " old rascal," and marched him off to Monroe. This expedition was under the command of Warner Wing, a lawyer who practiced in our courts after the question was settled. Major Stickney was again imprisoned, the charge against him being, after much consultation among
:
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the authorities, that of resisting an officer on the occasion of his former arrest. Bail was again exacted and given, but the major did not return to Monroe at the subsequent or any other term of their court, and his recognizance was forfeited, and judgment entered against his bondsmen. They commenced an action against him in this county, and at the April term of 1838 the case was tried and judgment rendered against the defendant, which was affirmed by the Supreme Court at the term thereof first held in the county, at which Judges Lane and Grimke presided. This much of the business of the court is given as a history of its early work and to give a basis of comparison with the magnitude of the business of to-day. The writer has often heard his father, who had been for some years a resident of the county, say he was one of the many who volun- teered their services to Governor Lucas to protect the boundary by arms, and witnessed many of the exciting incidents of the time. Few of the lawyers whose names appear upon the records, and who attended the early sessions of the courts, were residents of Lucas county. Others came from Maumee, Per- rysburg, Norwalk, Mansfield, Columbus; Wing & McClellan, from Monroe, Michigan. Osborn and Tilden moved early from Norwalk to Toledo, and became prominent in the Toledo Bar. Wade & Giddings, who were interested in some real estate speculations which brought them here frequently from Ashtabula county, had some business in our courts. Ozias Bowen was from Marion. The field of the early lawyers' labors was much broader in area than now. They traveled from county to county in the circuit on horseback or in wagons-for even the stage-coach bad not been introduced in the "Black Swamp region" generally enough to afford reliable means of travel. The law- yer's bag (not always the orthodox green one of the profession) contained his wardrobe, his briefs and his library, the latter consisting mainly of Blackstone, Chitty and some work on pleading and precedents. Equipped with these he started on his pilgrimage. Nearly the same men met in the different counties and fought their legal battles, those associated to-day being pitted against each other to-morrow. They lived in taverns, played cards, enjoyed the usual so- cial pleasures ; discussed over again their cases and questions which arose in the trials; engaged in mental contest of wit and humor; and, obeying an unwritten law that existed and was recognized by every lawyer, were good natured, gentlemanly and courteous to each other, with rare and regretted exceptions.
Judge Ebenezer Lane lived at Norwalk. He was the predecessor of Judge Higgins on the Common Pleas Bench, but had been transferred to the Supreme Court in 1830. Judge Grimke lived in Chillicothe. It is not the purpose of this article to give extended notice of any member of the Bench or of the Bar, and certainly not of those whose long and distinguished service on the Supreme Bench has become a part of the history of the State. The older lawyers speak with enthusiasm of the old Supreme Court, as it traveled over the State with such men as Sherman, Tod, Lane, Grimke and Hitchcock, as judges; and there is an evident sadness in the half concealed regret at the change that was
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wrought under the present constitution, which cannot be understood by the younger members of the profession. Judge Higgins was succeeded in 1837 by Ozias Bowen, of Marion, who held our court for two or three terms, until in the winter of 1838-39, when the legislature made a new judicial circuit of ten of the northwestern counties, including Lucas and Wood, when E. D. Potter was chosen as the president judge. He immediately purchased of Jonathan Neely of Maumee a magnificent horse, on which he rode proudly on his jour- neys through his circuit. He served his term and earned the title of an up- right and honest judge. The salary of the judges was about $1,200 per annum, until 1842, when the legislature reduced the pay to $2.00 per day (Sunday in- cluded), which was the munificent sum for which Myron H. Tilden, in 1844, left his successful practice and became the successor of Judge Potter. Of the five judges who presided in our courts up to about 1850, one is still living. Judge Potter died February 12, 1896; Judge Tilden, who moved in 1851 to Cincinnati, died in 1888, and Judge E. B. Sadler, of Sandusky City, is yet in the active pursuit of his profession. Judge Higgins left the profession in 1846, and moved to Washington, where he took a position in one of the depart- ments, which he held until his death in January, 1874, being then over eighty years of age. Judge Bowen was elevated to the Supreme Bench under the present constitution. served one term with mnch credit and died about 1876.
The judges of the Common Pleas Court, from the retirement therefrom of Judge Tilden down to and including the present occupants of the Bench, have been and are as follows: E. B. Sadler, L. B. Otis, John Fitch, Samuel T. Worcester, S. F. Taylor, Walter F. Stone, William G. Lane, William A. Col- lins, T. P. Finefrock. Reuben C. Lemmon, Joshua R. Seney, James J. French, Charles E. Pennewell, Birdseye W. Rouse, Cooper K. Watson, William F. Lockwood, John Mackey, John H. Doyle, Isaac P. Pugsley, David H. Com- mager, George R. Haynes, Louis H. Pike, C. P. Wickham, J. M. Lemmon, J. L. Dewitt, John L. Greene, Gilbert Harmon, Lindley W. Morris, Charles Pratt and Jason A. Barber. Judge E. B. Sadler was called to the Bench on the resignation of Judge Tilden in the spring of 1847, and was succeeded under the new Constitution in 1851 by L. B. Otis, who served until 1855. Judge Fitch was elected in the fall of 1854, taking his seat on February 9, 1855, under an act providing for an additional judge for the subdivision. He held the office for fifteen years, being succeeded in 1870 by Judge William A. Collins, who served one term of five years. Judge R. C. Lemmon was elected as his successor and served continually until February 9, 1890 (three full terms).
The legislature at its session of 1870-1, provided for an additional judge for the first subdivision of the Fourth Judicial District; and at the spring elec- tion of 1871, Joshua R. Seney was elected to such position. He resigned in November, 1874, when James J. French was appointed by Governor Allen to serve until the next annual election, at which time Birdseye W. Rouse was elected to fill the unexpired term, and also the full term thence ensuing. An additional judge had also been created by statute in 1869, and Judge Charles
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E. Pennewell of Norwalk, and T. P. Finefrock of Freemont had successively held the office, when, in 1879, John H. Doyle was elected to succeed Judge Finefrock, and held the office until 1883, at which time his elevation to the Supreme Bench caused a vacancy, which was filled by appointment of Isaac P. Pugsley, and afterwards by election of Judge Commager. Charles P. Wick- ham, of Huron county, was elected to succeed Judge Rouse, in 1880, and was re-elected in 1885, serving almost wholly in Huron, Erie and Sandusky coun- ties. He resigned in 1886, when he was elected a member of Congress from the Huron district. John M. Lemmon, of Sandusky county, was, by the gov- ernor, appointed to fill the vacancy until the election of 1887, at which time John L. Greene, of Sandusky county, was chosen for the place. In 1878 still another judge was provided for by statute, and William F. Lockwood was chosen. He served five years. At the election in 1883, George R. Haynes was declared elected, commissioned, and served about four months, when, on a contest, the Senate declared Louis H. Pike elected, and he served to the end of the term. Judge Haynes was the following year elected to the new Circuit Court, created by constitutional amendment, and has since been twice re- elected. At the November election, 1887, Judge Pike was a candidate for re- election, with Judge Pugsley as his chief opponent, when the latter was elected, for the term beginning November 6, 1888. Judge Pugsley was re- elected in 1892 for a term beginning November 4, 1893. Gilbert Harmon, of Toledo, additional judge under the act of March 24, 1869, was elected in 1888, and served a term of five years from October 28, 1889. Reuben C. Lemmon was re-elected and served until February 10, 1895, when he was succeeded by Judge Charles Pratt, of Toledo, who still occupies the Bench. Lindley W. Morris, of Toledo, additional judge, commissioned January 11, 1894, entered upon a term of five years in October of that year. Jason A. Barber, of To- ledo, was elected in November, 1896, for a term of five years, beginning Feb- ruary 8, 1897.
I do not intend to write at length of the modern Bench and Bar. I have not space to write at any great length of the earlier members of either. They were, in greater part, men who came here from the East in search of the El Dorado supposed to lie in the vast wilderness of what was then known as " the far West." Educated in eastern schools of learning and morals, they were in the main ambitious, energetic, young, hopeful, vigorous, moral and intelligent men. The county was organized at a period of great specula- tion, nowhere more exciting and extravagant than on the Maumee. Money was poured into the valley by eastern capitalists to buy lands and lay out cities, until the banks of the river became to a great extent a line of towns " on paper." Speculation was at fever heat; prices were regulated only by the amount of advance over the last purchase which the owner would take ; and the lawyer was an essential and tolerably well paid adjunct of this con- dition of things. Benjamin F. Wade once told the writer that, coming from Cleveland to Toledo on a steamer, he found a man, also a passenger, who was on his way from Baltimore to Toledo to sell " River Tract No. 6." Wade's
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solicitude was to get a contract out of him before the boat landed. Unable to get the seller to fix a price, he plumped an offer of $25,000 to him and closed the bargain to their mutual satisfaction, as the last price paid for it was in the neighborhood of $10,000; and Wade more than doubled his money. That tract of land was the subject of litigation for a good part of the time since and until about half a dozen years ago, when, it is to be hoped, the titles were settled forever. This period of speculation, fostered by the " wild cat " banking system in vogue, begat an unhealthy credit system, which made the locality suffer in the succeeding panic that swept over the country; and the business of the lawyer and the dockets of the courts became greatly in- creased thereby. Many lawyers laid the foundations of considerable fortune during this early period, while some were lost in the financial wreck that followed.
A prominent judge of the Supreme Court used to say that it was a pleas- ure to preside over a District Court in Lucas county. The lawyers were bet- ter prepared, presented their cases better, and were more courteous and polite to each other and to the Bench, than those of any other county to which he was called. The example and influence of the prominent among the early lawyers have always been felt in the local Bar. Such men as Morton, Waite and Hill could hardly fail to leave the impress of their character upon the future of the profession. Industry, study, thoroughness and honesty were the lessons taught, and their successors were apt at learning. The early lawyers, of course, had their peculiarities, weaknesses and failings, as have those who are now occupying their places. They were human, but good specimens of humanity. Judge Higgins was austere and seclusive while on the Bench, but impartial and sound. IIe would reprimand a lawyer for trivial departure from the decorum which he exacted during the sessions of court, but would allow his own temper to lead him into absurd extravagances. Judge Bowen, on the other hand, was as mild and even tempered a man as ever wore the ermine; and yet, firm and fearless in the administration of justice, in which he never lost his temper, aud never carried the thinnest mark of severity. George B. Way would fill a court room with a flood of eloquence, carrying jurors and courts with his magic words, and then, as compensation, would desert his office and his law books and give himself entirely up to a luxurious indolence, or the pleasure of purely literary and artistic study. Morton, with his magnificent physique, imposing height and appearance, his thorough knowl- edge of the law, and fluent and matchless address, was the most formidable opponent among the early lawyers. But he was wedded to politics. His great delight was in a political encounter, and he was ambitious to an extreme for political preferment. Hill possessed, more than most of men, the two qualities-intense industry and acuteness. His scent was as keen as a hunter's. His labor and toil in his cases were continuous, and, necessarily, his suc- cess was phenomenal. Outside his profession he had two hobbies, the public schools and the military. In the first he was very useful, and contributed much to the perfection of the matchless schools of Toledo. For the other
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he was not particularly adapted, but freely gave his best ability to his country . during the Rebellion as an adjutant-general of the State and in the field.
Andrew Coffinbury, who bore throughout his life the title of "Count," practiced law continuously from 1813 until his death, May 11, 1856. His sobri- quet was first playfully given him by his associates at the Bar, because of a supposed resemblance to Count Puffendorf, a distinguished German jurist. The " Count " was among the early lawyers who "rode horseback " over the northwestern circuit from Mansfield, where he then lived, and was appointed prosecuting attorney at the term of court in the spring of 1836, held in Lucas county. He was a man of rare attainments, genial and affable at all times, and much beloved by his brethren. He moved to Perrysburg about 1839, and in 1841 entered into a partnership with his son, James M. Coffinbury, who opened the office for the firm's practice at Maumee City. James was elected prosecuting attorney for this county the same year, and held the office for several succeeding years. He moved to Findlay in 1845, and in connection with his practice, edited the Findlay Herald for about ten years. From there he went to Cleveland in 1855. He was severely injured in 1875 by his carriage being struck by a freight train, which resulted in the loss of one of his legs. He was nominated by the Democrats of Cuyahoga county several times for member of Congress and Common Pleas judge. In 1861 he was clected judge of the Court of Common Pleas, and held the office five years.
JOHN FITCH Was born in Schodac, Rensselaer county, New York, February 16, 1806. His ancestors played an important part in American history by having descended from Thomas Fitch, Chief Justice and colonial governor of the colony of Connecticut under George III. His grandfather, Thomas Fitch, was a colonel in the Revolutionary army. He was admitted to the Bar in Albany, New York, after reading in the office of Thomas B. Ludlow of Nassau, in his native county, and of James Lynch, of New York City. In the fall of 1836 he moved to Toledo, and was elected prosecuting attorney the first term at which he appeared as a practitioner in our courts, a position which he held for a number of years. He was a terror to the criminal classes whom he was called to prosecute. A keen, skillful lawyer, he left no loopholes for escape. He rose rapidly to distinction at the Bar, and in 1854 was elected judge of the Court of Common Pleas, taking his seat February 9, 1855, and was twice re-clected, retiring in 1870, after serving with distinction for fifteen years. Like his early associates, Judge Potter and Mr. Young, he lived to a ripe old age.
Of the very earliest residents of Toledo, scarcely one attained to more honorable prominence than did George B. Way. Born in Baltimore, May 5, 1811, he attended both Yale College and Miami University, Ohio; was admit- ted to the Bar in 1832; opened an office at Urbana ; and came to Toledo in 1835, at the solicitation of several parties interested in the placc. Mr. Way, in 1836, took charge of a printing press and materials, which had been pro- vided, and started a newspaper which was named the Toledo Blade, the first number of which was issued in the fall of 1836. At the same time he opened
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an office for practice, which led to early success. During the first three years of the Blade, Toledo was the abode of several gentlemen of fine literary at- tainment, among them Joseph R. Williams and Pierre M. Irving, the latter a nephew of Washington Irving, who contributed to the columns of the newspaper. The credit of conferring the name upon the Blade was claimed for two parties -Mr. Way and Mr. Williams. A writer in Livingston's Law Journal in 1858, in a biographical sketch of Mr. Way, stated that he named the paper; while Mr. Williams, in an article in the Blade of October 17, 1853, claimed such act as his. Soon after his arrival at Toledo Mr. Way formed a partnership with Richard Cooke, a young lawyer from Connecticut, who died in 1839, very highly respected. Mr. Way then entered into like connection with Daniel McBain, subsequently a resident of Chicago, which continued until Mr. Way left Toledo, in 1846. He had been the mayor and a councilman of the city. Going to Defiance, he became a partner with William Sheffield in practice. In the winter of 1847-8 he was elected president judge of Common Pleas Court for the district, and continued as such until the office was abolished by the Constitution of 1851.
In 1838, two young men came from Norwalk to Toledo, and in a card announced their intention there to practice law. They were John R. Osborn and Myron H. Tilden. The firm of Tilden & Osborn at once assumed a promi- nent place in the profession. Mr. Osborn, however, did not remain long here at that time. He had served as clerk of the Senate of the State for the session of 1837-8. In the fall of 1839 he returned to Norwalk. There he entered into a partnership with Courtland L. Latimer, under the firm name of Latimer & Osborn. Mr. Osborn was born at Circleville, Ohio, April 1, 1813. He was the eldest son of Ralph Osborn, who was auditor of State from 1816 to 1833, and quite prominent in State affairs at that period. He was graduated at the Ohio University at Athens in the fall"of 1831, and entered the law department of Transylvania University, at Lexington, Kentucky. He was also a member of the first class of the law school at Cincinnati, under the instruc- tion of Judge John C. Wright and Timothy Walker; was admitted to the Bar at a term of the Supreme Court held in Jackson county, in April, 1834. He moved to Norwalk in the fall of 1835 and there formed a partnership with Orris Parish, then one of the prominent lawyers of Columbus. It was during this time that Mr. Parish and Judge Higgins got into a controversy that resulted in Parish's imprisonment. It arose in a criminal case, and during the day there was a continual friction between the judge and attorney. Just before the evening adjournment, Judge Higgins lost all control of himself and ordered Parish to be imprisoned over night in the county jail. The Bar sympa- thized with the attorney, and in procession marched with him to the jail, spend- ing the night with him in high carnival, and in the morning forming an escort of honor back to the court. Mr. Osborn, as a Whig, took an active part in the Harrison campaign of 1840, was elected to the Senate from the district composed of Huron and Erie counties in 1844, and was elected prosecuting attorney of Huron county for successive terms of about seven years. He was a delegate
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