Centennial history of Cincinnati and representative citizens, Vol. I, Pt. 1, Part 78

Author: Greve, Charles Theodore, b. 1863. cn
Publication date: 1904
Publisher: Chicago : Biographical Pub. Co.
Number of Pages: 1020

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prominent men : Joseph Prince, David Kilgour, Elmore Williams, William Lytle and John S. Wallace. Among the petit jurors were Chris- topher Walker, William Cummings, Benjamin Mason, William Burr, James Ilicks, Casper Hop- ple and Jeremiah Reeder. Dr. Daniel Drake was allowed this year the sum of $4 for medical services rendered to a pauper. Moore and Merrie continued as trustees for the following year and John Williamson took the place of Christopher Walker. The clerk and treasurer remained the same .: The following year Adam Moore was reelected trustee and George P. Tor- rence and Jacob Wheeler were associated with him. David E. Wade was one of the overseers of the poor and Culbertson Park, an appraiser of property. William Woodward continued as one of the fence viewers. In 1815 among the names of the jurors appear those of John S. Wallace, Jesse Hunt, William Ramsey, Samuel Stitt, James Ferguson, David E. Wade, William Ruffin, Joseph Ruffner, John H. Piatt, William Barr, Elmore Williams and Martin Baum. Adam Moore, Benjamin Mason and Abraham Ferris became the trustees for 1815; the treasurer was David E. Wade and the clerk, Jeremiah Reeder. Solomon Langdon was an overseer of the poor and William Barr and Culbertson Park, the fence viewers. John Mahard continued as justice of the peace. The first action of this board was the issue of an order for $11 in favor of Archi- bald Holland, being the balance due him for boarding his wife. A little later Samuel Cun- ningham was allowed $10 "for removing fool- ish John out of this township." In 1816 Ben- jamin Mason, George B. Mason and William State became trustees. Jeremiah Reeder was elected clerk but declined serving and Jacob Reeder was selected in his place. The record closes November 30, 1816.

THE COURTS AND THE LAWYERS.

After the burning of the first Court House in 1814, already described by Drake, by reason of the carelessness of the United States troops quartered therein, work was begun to replace the public buildings on the spot formerly occu- pied at the corner of Fifth and Main streets. In the spring of 1815 an agitation arose whose purpose was to locate the buildings at a point which would be more central as the city grew larger. Judge Burnet made an offer to donate to the county as much ground as the public square then occupied and lay out streets 50 feet wide all around the square and give $4,000 be-

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sides if the city would locate the Court House on the block at Seventh and Elm. James Fergu- son also agreed if this offer was accepted to add $1,000 more and bear the expense of moving the foundation already laid at Fifth and Main. A little later Samuel Caldwell and Capt. Edward White offered to donate for the Court House and county buildings two acres of land at the second crossing of Mill creek beyond Carthage and to lay out 40 acres adjoining in town lots around the public square and give the alternate third lot to the county and $2,000 bonus. Jesse Hunt on the next day, 15th of April, having previously offered the lots on Main street to- gether with $3,000 bonus, raised his bonus to $4,000 and added ten feet to each side of the proposed square. The Burnet proposition seemed to be carrying the day and on April 20th, Hunt, William Woodward, John Heighway and Samuel Stitt offered to bear the expenses of the removal of the foundation and pay $1,500 more. This offer was finally accepted on the 20th and as a result the present unfortunate location of the Court House was selected. The old lots, 20 in number, included in the square from Church alley to Fifth street between Main and Walnut, were offered for sale on 99-year leases and re- alized an annual income of six per cent on about $53,000.

In July, 1815, Leavenworth completed a brick house at the southwest corner of Fifth and Walnut and the courts occupied two rooms in the upper story of this building for about one year. In June, 1816, David Thatcher's house on the opposite side of the street was leased.

In the incantime work had been begun on the new building, which had been planned by Jesse Hunt. Flint who was building it did not make the work move forward rapidly enough and on March 12, 1817, he was discharged from the work and John Dodson succeeded him in the con- tract. It was completed in 1819. On January 15, 1815, General Harrison as commissioner of the county received from the United States gov- ernment $16,801 as the value of the property destroyed in the burning of the Hamilton County Court House by the troops. This same year a site for the jail was acquired and the contract for its building after the plan of Jonathan Pan- coast was let to Loftus Keating for the sum of $6,900. In May the following year the pris- oners were removed to this jail and on the 9th of June the bell man went through the town announcing the contemplated sale that evening

of the old log jail. It was sold to Jacob Wolff for $220.

The constitution of 1802 provided for a Su- preme Court of three judges and courts of Com- mon Pleas for each county. The State was divided by law into three circuits, in each of which should be a president judge. In each county there were in addition to be appointed no more than three nor less than one associate judges. All judges were appointed for terms of seven years and by the Legislature. Strangely enough, it is by no means an easy matter at this time to give a list of the judges or their ternis of service. This is true even of the judges of the Supreme Court. Two volumes which par- take somewhat of the nature of official publica- tions,-Taylor's "Ohio Statesman and Annals of Progress" published in 1899 and the revision of the same book published under the authority of the General Assembly in 1901 as the "Ohio Hundred Year Book," -- differ as to the personnel of the highest court of the State. This differ- ence strangely enough is as to members of the court from Hamilton County. As the Supreme Court was required to be held once a year in each county, the personality of that court prop- erly belongs to this history. The court as or- iginally constituted in 1803 was made up of Re- turn Jonathan Meigs, Jr., of Washington County, who had served five years in the Su- preme Court of the Territory, Samuel Hunting- ton of Cuyahoga and William Sprigg of Jef- ferson. Judge Meigs resigned after two years' service and on February 7, 1805, Daniel Symmes at that tinte presiding officer of the Senate and quartermaster-general of the first division of militia was elected to succeed him. Sprigg re- signed in April, 1806, and Governor Tiffin ap- pointed to succeed him George Todd of Truni- bull County. He was afterwards elected to the seat by the General Assembly on January 1, 1807. Judge Symmes resigned Jannary, 1808, to ac- cept the presidential appointment as register of land at Cincinnati, whereupon William Sprigg was again elected to the bench. Return Jona- than Meigs, Jr., had received the vote of the State for the governorship of Ohio but had been declared ineligible to the office and as a result he was reelected as an additional judge of the Supreme Court on the same date, February 13, 1808. Huntington was elected Governor of Ohio and Meigs resigned to become United States Senator. This led to the election on Febru- ary 17, 1809, of Thomas Scott of Ross County. who was chief clerk of the Senate, and Thomas

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Morris, then a member of the House of Repre- sentatives from Clermont County. Morris, how- ever, failed to qualify before the General As- sembly abolished the additional judgeship. In 1810 at the expiration of the first period of seven years, the two houses met on February 10th to elect a new Supreme Court. This court, as generally given, was made up of Thomas Scott, William W. Irwin of Fairfield County, who a few years before had been impeached by the House of Representatives and removed by the Senate as associate judge, and Ethan Allen Brown of Hamilton County. According to Mr. Taylor, the third judge elected was Francis Dun- levy at that time president judge for the circuit which included Hamilton County and this name is carried by Mr. Taylor among the list of Su- preme Court judges up to February 5, 1814, at which time is substituted the name of John S. Edwards. He also states than on February 4, 1815, Ethan Allen Brown was elected by the Legislature judge of the Supreme Court. (Ohio Statesman and Annals of Progress, pp. 60-81.)

The revision of this book and the usual version gives the court as first stated, that, is, Scott, Ir- win and Brown. Scott and Irwin resigned in 1816 and on February 18th there were elected to succeed them Jessup N. Couch of Ross County, previously appointed by the Governor, John McLean of Warren County and Calvin Pease of Trumbull County, who had recently so successfully defended the prerogatives of the judiciary against attempted impeachment pro- ceedings, was elected additional judge. The fol- lowing year January 18, 1817, Brown was re- elected as a consolation for having been defeated as Governor, so that at this time the court was constituted of Judges Brown, Couch, McLean and Pease.

There was also a little confusion and hence a little uncertainty as to the personality of the local courts during the time covered by the first State constitution. The meagreness of the in- formation contained in the newspapers of the day and also in the various official reports and the destruction by fire of the court records make it almost impossible to state positively the names and terms of all the judges. It is not difficult, however, to trace the course of appointments by the Legislature.

On April 1, 1803, Francis Dunlevy (or Dun- lavy) was elected by the General Assembly, pres- ident judge of the Western or Third Circuit, which included Hamilton County, and accord- ing to the best authorities he served in that posi-

tion throughout the whole of the period of Cin- cinnati's town life. It is true that according to Mr. Taylor he was elected judge of the Supreme Court on February 10, 1810, at which time most authorities record the election of Ethan Allen Brown to that position but in all probability Dun- levy (spelled indiscriminately Dunlevy and Dun- lavy) continued to preside in the Court of Com- mon Pleas for a period of from 14 to 16 years.

It was the custom in those days to select the president judge from among members of the bar. This custom, however, did not prevail in the case of the associate judges who sat with the president judge and also as judges of Pro- bate, although many of the associates were law - yers. The first associates for Hamilton County were Michael Jones, Luke Foster and James Sil- vers, elected by the Legislature on April 6, 1803, for the term of seven years. Jones re- signed a couple of years later and Matthew Nimmo was appointed by Governor Tiffin in his place. He was elected by the Legislature to fill the vacancy on February 7, 1805. He in turn resigned and on February 13, 1808, John Matson ( Master) was elected in his place. On February 15, 1810, Stephen Wood, Aaron Go- forth and James Silvers were reelected for the full term of seven years. Goforth was subse- quently elected Senator and on January 27, 1811, James Clark was elected to succeed him on the bench. On the expiration of Silvers' term, he was on January 18, 1817, reelected for another term of seven years. Stephen Wood was suc- ceeded by Othniel Looker at the same time and in the following year, January 27, 1818, Will- iam Burke succeeded James Clark.

A number of other names are given as serving during this time. Ford gives Thomas Gibson as presiding judge in 1803 and Michael Jones in 1804. In 1807 William McFarland is given by him as associate. (Hamilton County, pp. 239- 240.) He is followed in these particulars by Judge Thew Wright in his account of the bench and bar.

During all this period the clerk of the courts was John S. Gano, who served from 1793 to 1818, a period of 25 years. In fact the Ganos, John S. and Daniel, served from 1793 until 1835, at which time William H. Harrison succeeded and remained clerk until his election to the presidency. During the earlier part of this time, Arthur St. Clair, Jr., acted as prosecuting at- torney and was succeeded by Ethan A. Brown, Elias Glover and David Wade, who served from 1812 to 1829. The sheriffs were James Smith,

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who served from 1797 to 1804, and William Mc- Farland, Aaron Goforth, Joseph Jenkinson and John S. Wallace, who each held a two years' term. Daniel Hosbrook was sheriff in 1816, and William Ruffin in 1817. Richard Ayres became sheriff in 1818 and held the office for four years.

Among the lawyers who were active during the life of Cincinnati were of course many of those already referred to in connection with its clays under the territorial government when the courts were the actual authorities of the settle- ment. Judge Burnet, still remained at the head of the bar; William McMillan occupied a most prominent place until his death in 1804. In this same year came Nicholas Longworth, Peyton S. Symmes and George P. Torrence, for so long a time presiding judge of the Court of Common Pleas. James W. Gazlay came in 1813 and Judge David K. Este a year later. William Corry, of course, occupied a position of promi- nence. David Wade was public prosecutor in 1809 and for some years afterwards, while Moses Brooks, at first an innkeeper, practiced law for a tine. Judge Nathaniel Wright did not arrive until 1816 and Judge Bellamy Storer a year later. An active practitioner of the time and afterwards, although no longer prominent at the bar, a leading citizen was Ethan Stone, a man, according to Mansfield, of high intelli- genee, sound judgment and signal integrity, who chose to do right rather than seek popularity by courting the multitude. lle it was who made the contract with the county commissioners to build the bridge over Mill creek which after it had been finished but before it was accepted was swept away by the flood. This loss almost swamped him, but he so retrieved his fortune by many years of industry that he died a wealthy man. "It took twenty years, many of which he passed in comparative obscurity at his cottage in the country, to reestablish himself and he after- wards repurchased a small part of his home- stead for fivefold that for which he had parted with it in payment of debt. He had built for a time an elegant mansion at the corner of Fourth and Vine streets, then a retired situation." (Mansfield's Drake, p. 141.)

Of course many of the list given by the Di- rectory of 1819 were practitioners liere some years before that time. Thomas Clark, who once threatened to fight a duel with Elias Glover, appears in that list, but Glover does not. Others not already mentioned who had achieved some prominence at that time were Elisha Hotchkiss subsequently mayor, Daniel Roe, Nathaniel G.

Pendleton, Nathan Guilford, William M. Worth- ington and Joseph S. Benham. William Henry Harrison was himself a member of the bar but never engaged much in practice. His son of the same name was a man of brilliant promise, whose convivial habits made impossible any great suc- cess. Nicholas Longworth for a time was active.

A celebrated case of which a record has been preserved dating from 1807 gives the ' names of a number of the lawyers at that time en- gaged at the bar. This was the trial of a well known citizen who was charged and finally con- victed of burglary and larceny for stealing from the office of General Findlay, receiver of public moneys for the district of Cincinnati, large sums in specie and bank notes amounting to many thousands of dollars. This case was most bit- terly contested on both sides; a full acount of it was published from the press of David L. Carney in 1807. This book, according to Thompson's "Bibliography," "is written in a malignant spirit and was published by V-'s enemies ; all available copies were destroyed by his descendants." One copy, however, thought to be the only one in existence, is preserved in the library of the Historical and Philosophical Society of Ohio. The prosecution was repre- sented by Arthur St. Clair, Jr., Jacob Burnet, Ethan Stone and Elias Glover and the defense by Nicholas Longworth, Joseph H. Crane; Will- iam Brush and Richard S. Thomas. The de- fondant, who was a man of prominence and whose descendants have been very prominent since, was found guilty as charged and the sentence of the court was as follows: "That he the said pay a fine of one hundred dollars to the use of the State; and sixteen hundred dol- lars to James Findlay, from whom the property was burglariously taken as charged in the first Count of the indictment; and that he be im- prisoned thirty days. And also that he pay a fine, for the larceny, as charged in the second and third counts of the indictment set forth, of one Hundred dollars to the State of Ohio. And that he make restitution to James Findlay, by pay- ing him Ninety-two thousand four hundred dollars and four cents. And also that he be publicly whipped ten stripes on his naked back at ten o'clock in the forenoon, on the 23d day of May next. And that he pay the costs of prose- cution and stand committed until sentence be performed."

According to the chronicler, "In a whimper- ing tone of voice, and with tears in his eyes, the

MARTIN BAUM.

MAJ. DAVID ZIEGLER.

NICHOLAS LONGWORTH.

GEN. JAMES FINDLAY.

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prisoner said :it was a hard sentence upon an innocent Man.' " '" An immediate effort was made to obtain a pardon or at least a remission of the part of the sentence referring to the public whipping, from the acting Governor, at that time Thomas Kirker. The result of this effort is given as follows :

"The thorning of Saturday May 23, on which was to be whipped, had now arrived and rumor said, the acting Governor had sent him a pardon. This gave a spring to the public sensibility.

"The town at an early hour exhibited signs of commotion, and a multitude from various parts of the country, had assembled, unapprized of the rumor, to see punishment inflicted on one, now . the object of general detestation. The corps of Light Infantry turned out, to add solem- nity to a scene, in which all appeared to be inter- ested. At length the convict came forth attended by the sheriff, and took his stand upon the pil- lory the place in Cincinnati where corporal pun- ishment is inflicted. He ascended the platform, amid the execrations of a vast concourse of citizens. The sheriff now produced, and read aloud, a pardon remitting the stripes and signed Thomas Kirker, acting Governor. Mortification and chagrin, were now visible among the multi- tude and found their vent in imprecations. * * *

"No sooner had the sheriff gone through the pardon, than murmurs of uncommon discontent fell from the populace. The prisoner was now taken back to jail, when a cart was drawn up to the pillory, bearing the figure of a man in- tending to represent the acting Governor, upon his breast were these words-

" 'The stripes are now from Charley taken off -myself befitting'-and on his back was another label as follows :

":The acting Governor of Ohio .- Charles -.-

is pardoned. Bank notes and embraces have a powerful effect.' The figure ascended the pil- lory and receiving the stripes, the number de- signed for Charley, it was afterwards burned. Late in the evening another concourse of citizens assembled and moved in tumultuous procession to the whipping post with martial music, playing the Rogue's March .. They bore another figure -meant for In Passing the Bank, the effigy was made to menace it with an attempt to

break in. Parading for some time before the jail and calling on - to look out, the com- pany returned to the whipping post, amidst the noise of drums and loud hussas. A fire was kindled and the effigy committed to the flames

with marked indignity. This was a trying time for ----: who during the whole of it was under serious apprehensions that the enraged multitude would break into jail and destroy him."

The venom of the chronicler and the feeling aroused among the citizens is shown by an extract which in its insinuating style would do credit or discredit to the yellowest of modern journals. It can be said that the statement about the wife of the convict visiting Chillicothe and the reference to her is absolutely untrue.

"And Edward died and Thomas reigned in his stead-

"And it came to pass about those days that Charles, a Gaul by birth, was suspected of having broken the house of James, the Receiver, and taken therefrom much gold and silver and precious paper. And Charles was apprehended and thrown into prison, and they put bars of iron on his legs and on his arms. And they put a guard over the prison, which continued night and day that he should not escape. And when the wise men were gathered together, in the great city of Cincinnati, Charles was brought be- fore them and so strong was the evidence of his guilt that all the people cried out aloud-hang him-hang him. And the wise men sentenced Charles to pay unto James Ninety and four thousand pieces; and into the treasury two hun- dred pieces ; to lie in prison thirty days and re- ceive eleven stripes save one. And the people were exceedingly rejoiced.

"Now Charles was a subtile rogue, and he cast about him, how he should avoid the stripes ; and he said unto James unless you and your friends will petition the chief ruler to omit thie stripes, I will squander my gold and silver and my precious paper which I have taken from you : and you shall become a bankrupt ; but if you and your friends will petition to Thomas the chief ruler for me: then will I pay you, as the wise men have directed. And James consulted with his friends : and they petitioned Thomas the chief ruler according to the wish of Charles : howbeit Thomas would not grant their request- but declared that unless the wise men who had condemned Charles to the stripes would certify that they believed Charles innocent he would in no wise listen to their request.

"And when Pamela the wife of Charles heard this she grieved exceedingly. And she said to Rebecca her handmaid, go to, prepare fine linen and costly apparel per adventure I may find favor in his eyes.

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"And Rebecca did as she was commanded : and Pamela took with her gold and much precious paper : and she went out and came into the house of Thomas: and she decked herself gorgeously, and went in unto Thomas with her gold and her precious paper and all the ornaments wherewith she was ornamented and humbled her- self before the chief ruler : and the woman was lovely in the sight of Thomas, and her offerings were acceptable.

"And Thomas said unto Pamela, tarry here all night and in the morning I will send thee away rejoicing and she did so.

"And Thomas pardoned Charles: And the woman returned to her own house : and when the report thereof went abroad, the people were exceeding wroth. And they made an image and they called it Thomas: and the stripes of which Charles had been pardoned they inflicted there- on : and they burned the image with fire and said 'Thus be it done unto the man who pardon- eth thieves and robbers' and all the people cried Amen."

This book gives a very clear idea of the methods in vogue in the courts of the day, which differ but little from those of the present time. Some of the most distinguished people of the town were witnesses in the case or appeared in it in some connection.

For instance,-Oliver M. Spencer went to V-'s house to the party which V- held the night he is supposed to have committed the rob- bery. He testified that he staid all night. After the ball broke up, he and Kilgour and V- danced together and drank wine. When asked if he was in a condition to know whether or not V- was in or out of the house, "the witness smiled archly and counsel politely declined to press the answer."

Rev. Timothy Flint tells us that at the bar he heard forcible reasonings and just conceptions and discovered much of that cleverness and dex- terity in management which were so common in the American bar in general. There was here, as elsewhere in the profession, a strong appetite to get business and money. It was popular in the courts to be very democratic and while across the river in Kentucky a lawyer was generally a dandy he here affected meanness and 'sloven- liness in dress. The language used at the bar was an amusing compound of Yankee dialect, Southern peculiarity and Irish blarney ; "him and me" said this or that one, "I done it" and various phrases of this sort and images drawn from the measure and location of land purchased,

and figures drawn from boating and river navi- gation were often served up in the speeches of the time.

An extract from the inaugural address de- livered to the Cincinnati Pioneer Association on February 24, 1859, by its president, Nicholas Longworth, gives an insight not only into fees of lawyers in the early days, but as to the local methods and also the values of real estate. Mr. Longworth after some sarcastic comments on lawyers' fees in modern times says that in the earlier days Jacob Burnet "labored to . the best of his abilities for five dollars a case in the Common Pleas, eight dollars in the Supreme Court and in slander suits sixteen dollars with no commission on money collected." He was not always fortunate in collecting even these small fees, as the following story told by Mr .. Longworth will illustrate: "A farmer living near town was indicted for stealing an iron wedge of the value of twenty-five cents, the punishment being thirty' lashes on the bare back which you might call a fraction over one per cent and father severe considering the easy times rogues now have. At the trial Mr. Bur- net had the prisoner's wife seated by him, a gen- teel interesting lady and two of his daughters of great beauty with her. The evidence was positive but Mr. Burnet denied the veracity of the wit - nesses. He told the jury to look at the prisoner, his wife and daughters and asked if it was creditable that a farmer the husband of such a wife and the father of such daughters could be guilty of stealing a twenty-five cent wedge sub- jecting him to public whipping at the post and liis family to everlasting disgrace? This made the wife and daughters shed floods of tears. The hearts of the jury were melted and without leav- ing the box they returned a verdict of not guilty. For his well earned fee, Mr. Burnet took his client's note for ten dollars. After waiting a year for payment, he gave it with other fee notes to a magistrate who was in the office and put in suit. In those days if a defendant denied his signature to a note it must be proved or he would nonsuit you. The farmer denied his signature to the note in question. I was present when this was reported to Mr. Burnet by the magistrate who also informed him that a judg- ment of nonsuit had been entered. 'Nonsnit mie! Denied his signaturel The rascal! I am satisfied now that he stole the wedge.'"

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Centennial history of Cincinnati and representative citizens, Vol. I, Pt. 1, Part 78

Author: Greve, Charles Theodore, b. 1863. cn Publication date: 1904 Publisher: Chicago : Biographical Pub. Co. Number of Pages: 1020

Author: Greve, Charles Theodore, b. 1863. cn
Publication date: 1904
Publisher: Chicago : Biographical Pub. Co.
Number of Pages: 1020