USA > Ohio > Bench and bar of Ohio; a compendium of history and biography, Vol. II > Part 2
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SAMUEL HUNTINGTON. One of the foremost of the pioneers of the Western Reserve, and who became distinguished in early public life, above all others, was Samuel Huntington, Esq., of Connecticut. He was born in the State of Connecticut in 1765. He was a graduate of Yale College, and subsequently studied law, and was admitted to the Bar in his native State. He engaged in the practice of his profession in that State until 1800, when he came to Ohio, living at different times at Youngstown, Marietta, Cleveland and Painesville. He was a member of the Constitutional Convention of 1802; was a State sen- ator from Trumbull county ; was a judge of the Supreme Court, and while so serving, resigned the judgeship, having been elected governor of the State. He died at Painesville in the county of Cuyahoga, now county of Lake, in 1817. He was the adopted heir of his uncle and namesake, Governor Samuel Huntington, of Connecticut. In the year 1801 he removed from Youngstown to Cleveland, and built himself a spacious block house in what is now the very heart of the city of Cleveland. He had a liberal education and was refined and aristocratic in his habits and manners. He was thoroughly conversant with the French language, and had studied abroad - a very rare accomplishment for a young man of those days. His family consisted of three servants, and his home in the wilderness manifested no small degree of taste and refinement. His first public office was that of a justice of the Quorum, being appointed by Governor St. Clair in 1802. A murder case was tried in Youngstown about that time, before Justice Huntington. It was the case of McMahon, who was charged with murdering an Indian by the name of "Spotted George " at Salt Springs, now in Mahoning county. On that occasion Governor St. Clair paid a visit to the Western Reserve, the first and only time that the territorial gov- ernor so honored that part of Ohio. By common consent Huntington took priority on the Bench of the Court of Quarter Sessions. In November, 1802, he was elected a delegate to the convention, to form the State Constitution, about to assemble at Chillicothe, Ohio. He took a prominent part in the con- vention, and for nearly half the session was the only representative from the large county of Trumbull in the territory. He was active upon the judiciary committee and his influence was felt in this notable body, who laid so well and wisely the foundations of the State in the first Constitution.
There is very little recorded judicial history, in which Judge Huntington participated. It was before the day of the court reporter and stenographer, and the literary remains of such a public man are decidedly meager. The
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legal profession, at that time, was beset with peculiar hardships and dangers. The judges were more in the saddle than upon the Bench. The usual means of transit from place to place was upon horseback. The law libraries were in the saddle-bags, and consisted only of two or three volumes. The judges and the lawyers, out of court, in all their social intercourse, were on an equal foot- ing, and their common experiences and close intercourse engendered a familiar comradeship, the amenities and jovial incidents of which did much to modify the asperities and adversities of their lives.
"The journeys of the Court and Bar, to those remote places, through a country in its primitive state, were unavoidably attended with fatigue and exposure. They generally travelled with five or six in company, and with a pack-horse to transport such necessaries as their own horses could not conven- iently carry, because no dependence could be placed on obtaining supplies on the ronte; although they frequently passed through Indian camps and vil- lages, it was not safe to rely on them for assistance. Occasionally, small quan- tities of corn could be purchased for horse feed, but even that relief was precarious, and not to be relied on.
"In consequence of the unimproved condition of the country, the routes followed by travellers were necessarily circuitous, and their progress slow. In passing from one county seat to another, they were generally from six to eight, and sometimes ten, days in the wilderness ; and at all seasons of the year, were compelled to swim every water course in their way, which was too deep to be forded; the country being wholly destitute of bridges and ferries; travel- lers had therefore to rely on their horses as the only substitute for those con- veniences. That fact made it common, when purchasing a horse, to ask if he were a good swimmer, which was considered one of the most valuable quali- ties of a saddle-horse. Strange as this may now appear, it was then a very natural inquiry." *
Such was the common experience of Judge Huntington, from which none of the jurists of that day were exempt. It is related of Judge Huntington that the most thrilling experience through which he passed in the wilderness, was during a ride through the forest from what was then the village of Painesville, on the lake shore, to Cleveland. At a point now in the heart of the residence portion of the city of Cleveland, he passed through the primeval forest at night and was set upon by a pack of hungry wolves, who had their covert in that portion of the woods, and his life was saved by his beating off the boldest of the pack with his umbrella, which was broken to pieces, and the fleetness of his horse, which took fright and whose speed outstripped the fore- most of the pack, in their race toward the scattered village of Cleveland. There is something characteristic of the man, that his only weapon on that occasion was that necessary adjunct to the equipment of every refined gentle- man, an umbrella.
Samuel Huntington was a learned man, of generous culture and much refinement. No doubt there was something of unyielding sternness in his dis-
* Burnet's Notes on the Northwestern Territory, p. 65.
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position and service as a magistrate, coming to him through his ancestors in Connecticut. Record is made of the fact that one Isaac Huntington, who was no doubt Governor Huntington's ancestor, while a justice of the peace in the State of Connecticut, and administering the " Blue Laws" in all their rigor, disposed of a case thus :
" 1738, July 12. John Downer and Solomon Hambleton for profaning the Sabbath day by oystering, fined five shillings and costs."
This same justice, in 1749, fined a person twenty shillings for playing at cards, and another five shillings for laughing in a meeting.
No doubt the early jurisdiction of the judges of New Connecticut was exercised over cases quite as trivial, if not of the same character, as the above reported cases. But here was a young man who died but little past middle life who had spent years in procuring his education at home and abroad, rising step by step on his merits from the humble office of a justice of the peace to the gubernatorial chair of the State, and yet one has to glean through numerous volumes of obscure history to learn even the simplest outlines of his life. His portrait may be found in the gallery of the governors of Ohio, exhibited in the rotunda of the capitol at Columbus. No one can look upon the refined and delicate lines of his face, his elegant attire, his large, lustrous eyes, without wondering how so refined and cultivated a gentleman could have found congenial life in the unbroken wilderness of northern Ohio.
It has been well said of Governor Huntington that "his character for strict integrity, great executive ability and accomplished scholarship was second to that of no incumbent of the executive chair."*
The first Court of Common Pleas held in Cuyahoga county was held in Cleveland in June, 1810. The population of Cleveland was then fifty-seven. Honorable Benjamin Ruggles was president of the court. The business term embraced. the consideration of five civil suits and three criminal prosecutions. Thomas D. Webb is recorded as the attorney who filed the first precipe for a summons, being the suit of Daniel Humason against William Austin-action for trespass on the case for eleven hundred white fish of the value of $70, which came into the hands of the defendant by " finding," but who refused to give them up on demand, and converted them to his own use. Alfred Kelley appeared for the defendant, denied the force and injury, etc., the plaintiff joined issue and "put himself on the country." At the next term the defendant appeared, by his attorney, "and the plaintiff being solemnly demanded to come into court and prosecute his suit, but came not. Where- upon the court considered that said Daniel take nothing by his bill, but that he be amerced, and that said William go without delay and have execution for his costs and charged by him laid out about his defense, of $9.55."
I am indebted for this record to the Honorable F. T. Wallace, now deceased, in his admirable sketch upon the legal and judicial history of Cleve- land, published in the " Bench and Bar of Cleveland."
* A sketch of the Supreme Court of Ohio, by Edward B. Kinkhead.
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HONORABLE ALFRED KELLEY. This gentleman's name is ineffaceably written and prominent in the early history of Ohio. He also was bred to the law in the State of Connecticut. He was a man of great breadth of states- manship, as well as legal acumen. He was for many years one of the great leaders in framing wholesome laws for the government of the new State of Ohio, and stood at the head of those who founded its commercial and finan- cial institutions. He was a great financier. The Bankers' Association of the State of Ohio recently did tardy justice to the memory of this great man by publishing a memorial paper, prepared by Honorable T. H. Wilson, in their transactions at a recent meeting. He was the father of the banking system of the State of Ohio, and its outgrowth, the State Bank of Ohio, one of the strongest financial institutions of its day, and the progenitor of the National banking system of the United States. His name appears upon all the early records of the courts, of both the northern and middle portion of the State of Ohio. His early residence was Cleveland, and he was justly regarded, in his day and generation, as a leader among men.
JAMES KINGSBURY, EsQ. This remarkable pioneer came upon the Western Reserve with the original surveying party sent out by the Connecticut Land Company, in 1796, and the winter subsequent to his landing upon the shores of Lake Erie, with his young wife and child, was of such severity that to keep his family from starvation he was obliged to start alone through the primeval forests, to reach Buffalo, if possible, to procure provisions. When he returned to his hut, now in the county of Ashtabula, Ohio, he found his child dead, and his wife almost in the last stages of starvation. He was a man of sound judg- ment and of native force of character. In 1802 Governor St. Clair, of the Northwest Territory, appointed him a justice of the Quorum for the county of Trumbull. He was also honored by being elected to the first general assembly of the State. He was an enterprising, progressive and typical pioneer. He built the first frame house for a dwelling, near Cleveland, more than eighty years ago, and the structure still stands as one of the historic landmarks in the suburbs of the city.
HONORABLE BENJAMIN TAPPAN was the first settler in that county of the Western Reserve now called Portage, so named because it occupies territory between the head waters of the Cuyahoga and the Muskingum rivers, which was long used by the Indians as a portage. He was a lawyer of great original force and ability. He was somewhat eccentric and very brusque in his man- ners. His cabin was the first to be erected in the town of Ravenna, which is now the seat of justice in Portage county. In his fortitude and chivalry, no less than in his strong and indomitable will, there was something heroic. He emigrated from Connecticut with his household goods and "gods" transported with a cart and ox-team. Arriving at the mouth of the Cuyahoga, he, together with David Hudson, another pioneer, embarked upon the "crooked river" and paddled their way up stream to a point now in the county of Summit. Here he lived with his family in a tent, and with a hired man and a rude dray, constructed by himself out of poles, to which he had attached his
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ox-team, he broke his way through the wilderness toward his destination. In the midst of the forest one of the oxen became over-heated and died, and he was stranded in the wilderness with only one dollar in his pocket, being one hundred miles remote from any settlement. With his trusty rifle, and a pocket compass, he made his way to Youngstown, and making a favorable im- pression upon Colonel James Hill, who was the leading citizen in that settle- ment, he purchased of Hill an ox on credit, and with his beast of burden found his way back to his lodge in the wilderness, and with this new team pressed on to his future home. Like so many others, coming from the East, and its strict rigorous and conservative religious life, he discarded all external observ- ances of religion and its dogmas, and in the reaction from his former convic- tions, became a pronounced skeptic. It is said of him that, while a man of very generous and kindly disposition, he was once approached by a voluble preacher for a contribution to build a church, and in the exuberance of his appeal, the preacher said that the Lord "owned the cattle on a thousand hills." Mr. Tappan was then a member of the United States Senate. He turned to the preacher with a droll expression on his countenance and said : " Why don't the Lord sell some of those cattle and build his own church ?" He was possessed of a good academic and professional education, and reached a proud eminence as a jurist and statesman, and was elected by the first legislature as one of the first United States senators for the State of Ohio, where he became a conspicuous, as well as useful public servant.
To even transcribe the roll of those who might be deemed worthy of a special sketch, in this fragmentary history of the Western Reserve, would occupy vastly more space than could be allotted to its treatment in this con- nection. These men, whose names I have mentioned, may be taken as typical of the class of pioneer professional lawyers and judges upon the Western Reserve. There are scores of others whose names are worthy of at least men- tion : George Tod was one of the early judges of the Supreme Court from this portion of the State of Ohio. Honorable Reuben Wood, although serving at a somewhat later date, was also a pioneer judge of the Supreme Court, and also filled the gubernatorial chair-a strong and conspicuous minister of justice and statesman. Judge Calvin Pease was also a member of the Supreme Court, from the State of Ohio, under the old Constitution. All these men seemed to be possessed of such qualities of original force and wise foresight as to render their lives and services indispensable in planting judicial institutions, and engendering a love for law and order during the formative period of life and settlement upon the Connecticut Western Reserve.
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THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH DISTRICT.
BY JUDGE WILLIAM H. TAFT.
The task of writing the history and relating the traditions of a court only six years old would seem not to be a heavy one. The Federal Circuit Courts of Appeals historically are now much more interesting in their period of gestation than in their life since birth. The time which it took to create them, after their conception by those interested in reforming the administra- tion of justice, was considerably greater than that which has elapsed since the passage of the act of March 3, 1891, which gave them being. The united and long continued efforts by the Bar and the Bench of the country to rouse Con- gress to the necessity for creating them measure the conservatism which has always characterized that body in its attitude toward the Federal judicial system. When comparison is instituted between the legislation of Congress on that subject since 1800 and the legislation of the British Parliament with reference to the English courts during the same time, it will be found that Congress has been much less disposed to change than its English prototype. This difference, of course, is not wholly due to greater conservatism on the sub- ject. The English system, hoary with the age of half a dozen centuries, was more in need of reform than that system which in 1789 sprang full armed from the brain of Oliver Ellsworth, and it needed many changes before it approximated in simplicity the Federal system as at first established. Then, too, the constitution of the English Parliament is much better adapted to law reforms than that of the American Congress. The chief law officers of the Crown are always members of the Government in the House of Commons and exercise a controlling influence on legislation to be passed for the improvement of courts, while in the House of Lords are usually half a dozen law Lords, including the Lord Chancellor and the Lord Chief Justice, whose experience admirably fits them to prepare and discuss such legislation and who have the strongest motives for making the administration of justice efficient. In Con- gress it usually happens that the judiciary committee of the Senate has upon it some lawyers quite familiar with the practice and needs of the Federal courts, but the same thing is not always true of the judiciary committee of the House. The attorney-general may recommend improvements in the judi- cial system to Congress, but this is very different from the power exercised by his British brother, who may formulate and introduce a bill, argue its merits to the House and marshal in its support the vote of the majority party.
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Whatever the cause of it, in the whole 109 years of the life of the Federal judicial system there have only been three changes which have affected its judicial framework, and one of these was completely repealed fourteen months after its enactment. By the Judiciary Act of 1789 three courts were provided for, the Supreme, Circuit and District Courts. It was the intention of the founders of the system that the District Court, which had but a limited jurisdiction, should be presided over by a single district judge from whose decisions appeals could be taken to the Circuit Court, and that the Circuit Court, in which was vested the widest original juris- diction, should be held by two judges, the supreme justice and the district judge sitting together. Provision was made for the holding of the Circuit Court by either judge, but this was evidently intended to be the exception. On Febru- ary 13, 1801, Congress passed " an act to provide for the more convenient organ- ization of the courts of the United States." The act divided the country into six circuits, the first three of which were exactly the same as to-day, and the sixth of which included all of the present Sixth Circuit except Michigan, which was then a part of the Northwest Territory. The main change in the act was the provision for three circuit judges in each circuit who were to hold the Circuit Court in each district, and two of whom could form a quorum. Even in those days the Sixth Circuit seemed not to have received its share of the judi- cial force of the country, for the law only provided for the appointment of one circuit judge in that circuit, and vested the district judges of the circuit with power to act as circuit judges. It was this law under which the "midnight judges " were appointed by President Adams, and which roused so much crit- icism among the members of the old Republican party. The result was that on March 8, 1802, President Jefferson approved an act repealing the law of 1801 in toto and restoring in every respect the judiciary act of 1789. The question of the power of Congress to abolish the office of a judge whose ten- ure of office by the Constitution was for life was not raised at that time, and it remains still an open question unless the acquiescence in this act can be said to have settled it. The reasoning in the recent decision of the Supreme Court in the income tax cases would seem to deprive such acquiescence of conclusive effect at least. From 1801 until 1869, no change was made in the Federal judiciary. Possibly two or three judges were added to the Supreme Court, and as new districts were organized, new district judges were appointed, but the system still embraced only two grades of judges, supreme and district, and their powers and duties remained practically the same. The jurisdictions of the three courts were enlarged somewhat and the business very greatly increased, but it had to be disposed of in the District and Circuit Courts by then district judges with not a great deal of assistance from the supreme justices on the circuit. In 1866 a bill was introduced in the Senate and reported from the Judiciary Committee providing for the establishment of Federal Courts of Appeals, but it passed neither House. In 1869, it had long been evident that with the increase in the business of the Supreme Court, the work of the supreme justices on the circuits must be nearly nominal and that the only way
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to facilitate business in the Circuit Court was to provide a judge to hold that court, instead of continuing the anomaly of a court which was without its own judge and was administered by judges of other courts. Congress was finally, on the 10th of April, 1869, induced to take action and passed "an act to amend the judicial system of the United States," which provided for the appointment of a circuit judge in each of the then nine circuits and vested him with power to hold the Circuit Court in each district of his circuit alone, or with the circuit justice or with the district judge. The law also contained a provision (now more honored in the breach than the observance), that each of the supreme justices should attend at least one term in two years in each of the districts of the circuit to which he might be assigned. The enactment of the provision suggests, what was doubtless a fact, that even at that time the visits of the circuit justices were quite like those of angels. And it is no wonder, for the business of the Supreme Court had then increased so much that it became a physical impossibility for a justice of the Supreme Court to visit each district of his circuit in the short vacations of his own court. It is interesting to compare the business of the Supreme Court of John Marshall's time and that of the court between 1870 and 1890. From 1801 until 1810 the cases did not number more than twenty-five a year. From 1826 to 1830 their number was about fifty-eight a year. In 1850 the average number of cases dock- eted a year was about seventy. After that the increase was such that in 1880 the number had increased to about 400 cases a year. Under the present methods of business in the Supreme Court, each justice will average thirty opinions a year. In the days of Marshall, fifteen opinions was a goodly number for one judge. In 1819, the court disposed of thirty-three cases, including the Dartmouth College case, McCulloch vs. Maryland, Sturges vs. Crowninshield and Baptist Association vs. Hart's Ex'rs., and of the thirty-three, Marshall announced the opinion in 12, Storey in 9, Johnson in 6, Washington in 2, and Duvall and Livingston each in one. The increase in the business of the Supreme Court had its effect and the court soon began to fall so far behind its docket that a case could not be heard until three years after it was docketed. It would seem that such a condition of affairs would have called for immedi- ate action, but it was more than ten years after the matter was forcibly brought to the attention of the National Legislature before any relief was granted. Mr. Justice Davis resigned from the Supreme Bench to go into the Senate in 1877, and early in his term he developed a plan for the relief of the Supreme Court. In 1880 his bill was reported to the Senate by the Judiciary Committee and passed that body, but it failed to pass the House. Judge Davis's bill provided for an intermediate Court of Appeals in each circuit of five judges, the quorum of the court to be four. The court, when full, was to consist of the circuit justice, the existing circuit judge and two more circuit judges to be appointed in each circuit, and one or two of the district judges to be designated to sit in the court. This court was to have the power of reviewing practically all cases heard in the District and Circuit Courts. Judgments of the intermediate court were to be reviewed in the Supreme
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Court in all cases involving more than $10,000 exclusive of costs, all cases involving constitutional questions and in all patent and copyright cases. It is not too much to say that it was the presence of Judge Davis in the Senate and his prestige as a member of the Supreme Court of long experience which led to the final adoption of a plan something like his for the relief of the Supreme Court. It ought to be added that the public attention was attracted to the growing evils and the best plan to remedy them by an article from the pen of Mr. Justice Strong, then recently retired from the Supreme Court, in which he depicted in strong words the denial of justice in that court due to inevitable delay, and set forth in a most convincing way the advan- tage of the general plan embodied in Judge Davis's bill. The fact that the Court of Appeals system owes its adoption as much to these two justices as to any one, justifies the remark already made that the presence of the great judges of England in the House of Lords is of the greatest assistance in bringing about law reforms. Soon after Judge Davis's bill was introduced and discussed, other bills having the same ultimate object of relieving the Supreme Court, but drawn on very different lines, were introduced in Congress. These bills proposed a division of the Supreme Court into three parts, for the purpose of hearing and disposing of all cases but those cases involving the Constitution or laws of the United States, which were still to be submitted to the whole court in banc. In 1881, the matter came before the annual meeting of the American Bar Association, and a committee of leading lawyers was appointed to make a report on the best plan for the relief of the Supreme Court. At the next year's meeting of the association, in 1882, the committee submitted a majority and a minority report, and a very full discussion followed before the association. The majority of the committee included Governor Stevenson of Kentucky, Henry Hitchcock of Missouri, and Rufus King of Ohio. Mr. Hitchcock acted as their spokesman. They favored a plan like that proposed in the Davis bill, to wit : The establishment of intermediate courts of appeal for each circuit, in which all judgments of the courts of original instance could be reviewed and a limitation in amount involved, and in subject matter upon those cases which could be carried for review to the Supreme Court from the courts of appeal. The majority contended that this was the only feasible plan for the relief sought ; that it provided for a review in every case, and yet reduced the cases to be considered by the Supreme Court to those of sufficient variety and importance to retain for that court its all-important function of maintaining uniformity in the administration of Federal justice throughout the country, and of furnishing to the country and the world decisions of high- est authority on questions of general jurisprudence. The majority of the committee objected seriously to the division of the Supreme Court into parts for hearing and deciding causes, on the ground that such an arrangement would be a violation of the constitutional mandate to Congress that "there shall be one Supreme Court," and that it would be quite as productive of dissatisfaction among unsuccessful litigants denicd access to the full court as a system which made judgments of an intermediate
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