USA > Ohio > Bench and bar of Ohio; a compendium of history and biography, Vol. I > Part 9
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The lawyers in pretty constant attendance at the courts of the three counties above named were Wm. M. Irwin, Thomas Ewing and Charles R. Sherman, of Lancaster; S. W. Culbertson, Wyllis Sillimun, Samuel Herrick, Alexander Harper and Charles B. Goddard, of Zanesville ; William Stanbery, of Newark ; Samuel Mott and Hosmer Curtis, of Mt. Vernon. A little later came into the profession a younger class who followed the same mode of prac- tice as their seniors. Among these were Henry Stanbery and H. H. Hunter, of Lancaster ; Richard Stilwell, George James and David Spangler, of Zanes- ville ; Joshua Mathiott, C. W. Searles, James R. Stanbery, George B. Smythe, H. D. Sprague and S. D. King, of Newark ; the writer and John W. Warden, Ben. S. Brown, C. Delano, John K. Miller and J. C. Hall, of Mt. Vernon ; John M. May, Andrew Coffinberry, Jacob Parker, James Purdy, James Stew- art and Wm. McLaughlin, of Mansfield. And in this connection should also be mentioned Edward Avery, Levi Cox, John A. Holland, Samuel R. Curtis and Ezra Dean, of Wooster, and Orris Parrish, of Columbus. The Bars of these several counties, and especially all the members of our profession above named, more or less generally, but in some counties more than others, met at the different courts and participated in the local retainers and forensic con- tests of the term.
It must not be supposed that because of the rude and primitive character of the civilization of the period, and organization and conduct of the courts, there was any less legal learning or talent on the Bench or at the Bar than the present period gives."On the contrary, there were among those men- tioned, giants of intellect, men of profound learning in the principles of the common law, of great power in oratory, and discriminating legal acumen. Many of the older class of the profession had received their education in the eastern schools of learning, and brought with them to our then young State abilities which had been cultivated under more favored opportunities in the East. Our libraries were small and made up chiefly of English authorities, and our practice and system of pleadings conformed to the common-law rules and precedents.
It may well be supposed that meeting together at some favorite "tavern " (such was the name in those days), the genial members of the profession, com- ing from different counties, would be likely to greet each other with more
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than ordinary warmth and delight. The old " Black Horse," at Newark, kept by that most obliging host, John Cully ; the taverns at Mt. Vernon, kept sev- erally by General Joe Brown and J. B. Plummer, and the old hostelries of John Williams and Mrs. Henderson, at Mansfield, would testify to many gay and happy evenings of social recreation and enjoyment. We were generally thrown together in one common, large sitting-room, and frequently, in a large degree, in a like sleeping-room. Thus conversations and amusements would become common through the whole circle. The profession was rather exclu- sive, and generally protected by the kind landlord from outside intrusion. Hence, returning to our hotel after the quarrels and contests of the court room, and refreshed by a supper now not often seen, we gathered in our big parlor, perhaps around a large, brightly-burning log fire, and were ready for anecdotes, jokes and songs, as the evening and the spirits of the party might invite.
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It would be a mistake to suppose that these convivial scenes were inspired by drinking. It is true that to take a cocktail or other glass of liquor was not in those days regarded as evidence of inebriety ; yet in all these times of which I speak, with one single unhappy exception, I cannot recall a single instance of drunkenness on these occasions, or excess of indulgence in that vice. At Mount Vernon and Mansfield, songs and stories predominating, Spangler, Goddard and others would hold thefolder members spellbound with their fine voices in Tom Moore's Melodies, or Orris Parrish wake the echoes, with a chorus from all the voices, in,
"The Assyrian came down like a wolf on the fold And his cohorts were gleaming with purple and gold,"
and other like exhilarating songs.
Speaking of Parrish, I may remark that he was a man of a high order of forensic oratory ; more distinguished as a jury lawyer than on a demurrer. In his bursts of eloquence and fervid declamation, he would hold in most earnest attention, the jury and audience; and woe be to the party against whom he permitted the freedom of his abuse. In one instance at the Mans- field court, when he had the closing speech for a young female client, in a slander case, and his vials of wrath"against the defendant being full to over- flowing, as his turn approached, he privately requested the presiding judge (we then had associates), on some excuse to leave the bench when he would get into the warmth of his speech. The judge, smiling quietly, assented and, at the proper time, retired from the bench, leaving, for a few moments, the unlearned associates to preside over the proceedings. Parrish took his oppor- tunity, and drawing from his pocket a small pistol as evidence of his ability to defend himself from any personal assault he might provoke from the sturdy defendant sitting in front of him, he turned from the jury and apostrophized the defendant, addressing him by name and pouring down upon his head and shamed face the most denunciatory anathemas and personal abuse his fertile mind could invent, or the free vocabulary of the English language admit of. This episode was about disposed of when the judge resumed his seat, and the
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orator closed his speech with one of his grand and felicitous perorations. Lane, J., gave the law of the case to the jury, who, after a short deliberation, returned with a verdict of exemplary damages for the plaintiff.
On one occasion, a little before my admission to the bar, on a cold day in May, in which snow and rain contested for predominance, I accompanied the party of lawyers on their way to the Norwalk court. There were present of the party, Charles R. Sherman, William Stanbery, Hosmer Curtis and Samuel Mott. We made Trucksville, a small hamlet twelve miles north of Mansfield, the first day. The little log tavern looked dreary and inhospitable, and we were all very wet and cold. There was a large fireplace in a back sitting room and a pile of wood near the front door. Some of the party seized the axe, and lustily applied themselves to cutting the sticks to suitable lengths and others carrying in and building a roaring fire. It will be remembered by some of the older members of the association that Judge Sherman, who was ever the life and animation of whatever company he fell into, had, comparatively, a very long nose. It happened that a stranger guest, who had arrived a little before us, had a like facial characteristic. In the process of passing out, and in the cheerful labor of building the fire, the two met in the doorway. The stranger, instantly seizing his own nose and turning it to one side, said: "Now you can pass!" None enjoyed the wit of the joke better than Sherman him- self. In our journeying the following day, Mott's horse got his foot fast in a "corduroy," and, falling, tumbled the redoubtable "Colonel " his full length into the cold, slimy and stagnant water. Completely soaked, he was obliged to stop at a cabin on the wayside to dry off. At Norwalk there was no tavern. We found stables for our horses and a lunch at a rustic table under a temporary shed, improvised for the accommodation of persons attending court from the surrounding country. The court was the first held in Norwalk, then lately chosen as the spot for the county seat. Two Indians were indicted, at this first term, for robbing and killing an old man of the name of Spicer, in the western part of the county's jurisdiction, then extending to the State line. I well remember the stolidity that sat upon the faces of the Indians as Lane, then prosecuting attorney of the county, read the several formal counts of the long indictment, and the same were interpreted to them. They were after- wards convicted and hung.
Judge Tod, father of our late war governor, was the presiding judge of the court-a most genial and hilarious gentleman of the old school. At the adjournment of the court the judge, and all the foreign members of the Bar, walked about two miles to the comfortable farm-house and home of the Underhills, who hospitably opened their house for the accommodation of " thie court "-which phrase was always understood to include the lawyers. Whit- tlesey, Lee, Foote and others, from Cleveland, or other parts of the "Reserve," Cooke from Sandusky City ("Ogontz"), and some others added to our party, filled the old double-log farm-house pretty full. Beds were improvised on the floor, and with big log fires, our comfort was very well assured. The evenings were spent in characteristic jovial style. To add to the variety a "charge "
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was made against Chief Justice "Lee" (as he was called, for almost all the lawyers had a title), and a court was organized for his trial. After hearing the charge and evidence, and sundry arguments of counsel full of wit and fun, the court held the unlucky defendant guilty and assessed the grog against him for the next day.
At the organization of the circuit embracing the counties of Muskingum, Licking, Knox, etc., William Wilson, of Newark, was appointed presiding judge, and continued upon the bench till about 1824 or '5, when he was suc- ceeded by Alexander Harper, of Zanesville; later, Ezra Dean, of Wooster; Jacob Parker, of Mansfield, and others. On one occasion, at the Newark court, two negroes had been indicted for stealing articles from a clothes line. Searle and the writer, then youngest of the Bar, were appointed to defend them. We did what we could before the jury, but they were found guilty. Our chief ambition was to beat Judge Wilson, who. after succession of Harper, had been appointed prosecuting attorney, and against whom we young lawyers had a good many sores for rough slaps from him, while on the Bench. We carefully examined the indictment and found a flaw, and full of glee at the hope of beating the "old judge," we repaired late to the " potter's field " bedchamber at Cully's, in which common jokes and conversation from bed to bed were yet being indulged; and on our coming in, turned upon our defense of the negroes, and in which we mentioned our intention to move in arrest of judgment.
"Ah," said Judge Harper from his roost, "but you will be too late; no notice of the motion was given, and the rules require that such notice shall be entered the same day the verdict is rendered. "Is that so ?" said one of us, "then we will mend that." Thereupon Searle and his colleague sprang out of bed, then eleven o'clock, and found the clerk still at his books in the court. room, with whom we at once filed our motion in due form. The following day when the case was called we presented our motion and showed the omis- sion in the indictment of the word "feloniously," and supported our motion by cases cited from English decisions, where the omission of the word " burglar- iously " had been held fatal. The old judge was not very good on legal points and but feebly answered our arguments. The court sustained our motion, and the negroes being present, getting the intimation they were free, made a hasty retreat. It was a small thing, but broke the old judge down as public prosecutor.
I was present at the great trial of Jacob Shafer in the Licking Common Pleas in 1824. The defendant was a man of considerable wealth and of good respectability. He had objected to his neighbor erecting a party fence, claim- ing that, as being set, it invaded his premises, and to enforce his objections brought a gun with him. Words and acts followed, and he shot the man. Shafer was indicted for murder. The counsel employed for the defense were William Stanbery, Thomas Ewing and Philemon Beecher, than whom no abler lawyers could probably have been selected in the State. They were giants at the Bar. The case occupied many days, and the arguments for the defense were submitted in the following order: Ewing summed up the evidence in detail,
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and in the most clear and logical manner so presented all the facts as to enforce his deductions with greatest power. He was followed by Stanbery, who dwelt wholly upon the law of the case, and, in an able speech, distin- guished for its force and authority, asserted the justification of the defendant in the act committed ; or, at least his innocency of the crime of murder. Gen- eral Beecher closed the arguments for the defense by a masterly and eloquent speech, in which he dwelt wholly upon the motives of human actions, deduc- ing from the philosophy of the case, and its moral principles, the utter absence of intent on the part of the defendant to commit crime. The defendant was convicted of man-slaughter. The case was distinguised chiefly for the extra- ordinary talent it called forth in the defense. At that time Mr. Ewing was just rising in eminence, and his able speech in this case in a great degree fixed his high position at the Bar.
The appointment by the legislature of Charles R. Sherman to the Supreme Bench was an event hailed by the Bar of central Ohio with great delight. Few lawyers were ever more beloved by their brethren. His remarkably gen- ial, social temperament, united with a fine voice and a happy talent of speech, had won him an enviable position at the Bar, and but for his early death, which occurred in 1829, he would have become equally distinguished as a jurist.
About the same time, perhaps by the same legislature which elevated Sherman to the Bench, Thomas Ewing was elected to the United States Sen- ate. How we missed his genial face and noble bearing in all our social Bar meetings ! Or more especially in the contests and ring of battle in the Com- mon Pleas Courts! In the meantime Henry Stanbery and - Hocking Hunter had grown into power ; the one as the most accomplished lawyer, at all points, of the age; the other, solid, logical, true. These, for a series of years, at- tended our courts, and, until their high reputations drifted them into wider fields, were regarded as of the local Bar of these central counties.
At one of the early terms of court at Mount Vernon, after Ewing had taken his seat in the Senate, in one of our usual hilarious gatherings on the coming together of the scattered members of the Bar of our circuit, the conversation naturally turned on Ewing, whose absence alone was sufficient to make him conspicuous to our minds. Some one said : " We must write him a letter." Another said : "Let it be in rhyme, and set Dave Spangler at it." "Very well," said Spangler; "I will try my hand, and the rest of you must help." And so Spangler, the following morning, produced his letter, with sundry additions contributed by Goddard and others, and being signed by all the members of the Bar present, it was sent to our honorable senator, in token of our common remembrance of him.
At one of our terms in Knox county, during the presidency of Ezra Dean, a man of the name of Houston was indicted for forgery. Delano was then public prosecutor, and Brown and the undersigned engaged for the defense. The defendant was a reputable farmer, against whom no suspicion of crime had ever before been entertained. We made a sturdy defense, but the proofs of guilt were very strong and made it
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uphill work for us. Our points of defense werc, doubts as to the falsity of the paper, and the good character of the defendant. The trial occu- pied several days, and a verdict of guilty was brought in late on Saturday. Judge Dean was a man of more than ordinary ability, and of high moral sense, but on the Bench was noted for severe and incourteous manners toward the Bar. His rulings were usually pronounced in an imperious tone. Counsel for defendant, in this case, gave notice of motion for new trial. The judge was restive to pronounce the decison on our motion, and proceed to the sentence. Such we foresaw would be a long term in the penitentiary. What- ever might be the guilt of the defendant, we knew his condemnation would break the hearts of the members of his worthy and innocent family, and our sympathy for them, as well as professional duty, impelled us to use all legal grounds by which we might hope to avert the blow. We urged a continuance, which the court refused to grant. We argued our motion for a new trial, which was overruled, with imputations that counsel were filibustering for delay, and which were repelled with indignation. It was the last business day of the term, as the court should open on the following Monday in another county. It was already past ten o'clock. The court room was crowded with an interested audience. Counsel advised the court that we had a motion in arrest of judgment which we proposed to argue, and present numerous authori- ties, which could not be finished until some hours into Sunday. Therefore we again urged for a continuance, offering ample bail. The judge was inexorable and ordered us to proceed with the argument. Angry words ensued; allusions were made to the notorious Jeffreys, impatient for the blood of his victims, and with piles of law books before us, and an intimation that the church-go- ing people of the following morning might stop at the court house to hear the conclusion of the case, counsel threw off their overcoats and commenced their argument. On the Bench, in the persons of the associates, were one Methodist preacher and one Presbyterian elder, who had conscientious scruples against the desecration of the Sabbath; and, seeing the way the cat was going to jump, asserted their authority, overruled the president judge, and ordered the case continued, fixing the bail at $800.00, which was promptly given, and the court adjourned a few minutes before the advent of Sunday. I need hardly add that our client forfeited his recognizance and moved "to the West." The question naturally arises, "Why were not counsel ordered in arrest for contempt?" The answer is, we knew the associates would not permit it.
On the fiftieth anniversary of my admission to the Bar, December 9, 1872, I gave a reception and supper to my brethren, and announced my retirement from the further active duties and responsibilities of the profession. Since when, except as "jurist consult" for old friends, have given office and legal services only to my own business.
But I love my profession, and regard it as one in which we can do more good to our fellow-men than in any other. And though no longer accepting retainers, I claim the honors of my commission equally as in "ye olden times." [Mr. Curtis died November 5, 1885.]
THE SUPERIOR COURT OF CINCINNATI.
At an early period in the history of Cincinnati the want of a special court for the disposition of commercial and other business incident to a large mercantile and manufacturing community made itself felt. A court consist- ing of a single judge and called the Superior Court of Cincinnati was created in the year 1838 and continued to exist down to the time of the adoption of the present Constitution of Ohio in 1851. The judges who successively occu- pied the Bench of that court were, David K. Este, Charles D. Coffin, William Johnston, Charles P. James and George Hoadly.
After the adoption of the Constitution the same feeling which had brought the old Superior Court into existence led to the creation of the pres- ent Superior Court of Cincinnati, the Act providing for which is dated April 7, 1854. The territorial jurisdiction of the court was confined to the city bound- aries, and its jurisdiction in other respects was limited so as to exclude crimi- nal, divorce, and other similar business, as well as minor cases coming up on appeal from justices of the peace. The object for which the court was created was to dispose of civil controversies of the larger sort concerning rights of per- son and property, and, on the whole, after an active existence of more than forty years, it seems to have justified the expectations of its founders.
The organization of the new court is said to have been modeled upon that of the King's Bench. It consisted, and still consists, of three judges, each of whom ordinarily sits in separate session, " Special Term," for the hearing and determination of causes both legal and equitable, and with or without a jury. Each judge has the power to reserve questions that may arise before him to the full Beneh in "General Term," where they are heard and decided by all of the judges sitting together. Any party dissatisfied with the judgment of the Special Term is authorized to carry the case by proceedings in error to the General Term for the purpose of reversing the judgment if he can, and the judgments of the General Term are in like manner reviewable by the Su- preme Court of Ohio.
As it was originally organized the Superior Court remains to-day, except that an obvious defect in its organization has been removed by the provision that the judge who decides any case at Special Term shall not sit in review of the same case in General Term, and in order that there may be a full Bench in each case, an Act has been recently passed, providing that the presiding judge of the Court of Common Pleas shall sit with the judges of the Superior Court in General Term for the purpose of deciding cases coming up on error.
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The first election of judges was held on the first Monday of May, 1854, and resulted in the choice of William Y. Gholson, Oliver M. Spencer and Bellamy Storer. By classification by lot among themselves, Judge Gholson received a commission for a full term of five years, Judge Spencer for a term of four years, and Judge Storer for three years. The first term of the Court began under auspicious circumstances. The three judges who then qualified and took their seats on the Bench were lawyers of much more than ordinary reputation and capacity. An event rare in the history of the American judici- ary occurred : the leaders of the Bar gave up practice and consented to take seats upon the Bench. The firm of Storer & Spencer had long occupied a leading place and enjoyed a lucrative practice at the Cincinnati Bar, and William Y. Gholson had achieved a professional reputation hardly second to any lawyer in the State. A Virginian by birth and a graduate of Princeton, Judge Gholson had practiced for a time in the State of Mississippi, but came to Cincinnati while yet a young man. His keen logical intellect, joined to his power of accurate statement, soon made his influence felt at the Bar, and it was not long before he had gathered around him a profitable clientage.
Judge Spencer has been said to have had a genius for the law, and espe- cially for the judicial field. All his contemporaries speak of him in terms of admiration and enthusiasm. He is said to have been especially broad- minded, equitable and considerate, as well as deeply read in the law, and pos- sessed of acute powers of discrimination. He was a native of Cincinnati, his ancestors having been among the first settlers, and one of them is said to have been captured by the Indians in one of their raids upon the infant settlement. Judge Spencer was re-elected a judge of the Superior Court in the year 1859 and died in office in 1861.
Perhaps no man ever sat on the Bench in Hamilton county who made a deeper impression than Bellamy Storer. His long term of service on the Bench, nearly eighteen years, combined with his mental and physical vigor, made him known to the people and the Bar as few other judges have been. Though he has been dead these twenty-five years, there are yet households in Cincinnati where his name is spoken with awe as that of the first of judges. Judge Storer graduated at Bowdoin College and came to Cincinnati in the year 1817, and it is said that the day of his advent was made noteworthy by a physical encounter which he had with an individual who sought to put a slight upon him. Certain it is, that he remained a bold and aggressive opponent to all who encountered him at the Bar. His impetuous temper made him a terror to the foe, as did also his great knowledge of the law, his tenacious memory, and his skill in the application of legal principles to the facts of a case. Com- ing to the Bench in the maturity of his powers, and after a long and varied experience at the Bar, he was prepared to and did render great service, espe- cially in the disposition of the miscellaneous questions that arise in a busy nisi prius court. He was four times elected to the position, and, resigning his office January 1, 1872, died soon afterwards.
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The first of the three original judges to leave the Bench was Judge Ghol- son, who took his departure at the end of his first term of five years. He afterwards served a term as a judge of the Supreme Court of Ohio, and it is but just to say that his reported decisions rank with the best opinions published by that court. Judge Gholson afterwards returned to the practice, in which he continued with much success to the time of his death.
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