History of Cincinnati and Hamilton County, Ohio; their past and present, Part 24

Author: Nelson, S.B., Cincinnati
Publication date: 1894
Publisher: Cincinnati : S. B. Nelson
Number of Pages: 1592

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precision and strength. They commanded acquiescence, they challenged opposi- tion, when to obtain assent was difficult, and to provoke hostility dangerous."

Judge Burnet says of him: "He possessed an intellect of a high order, and had acquired a fund of information, general as well as professional, which qualified him for great usefulness in the early legislature of the Territory."

But not much of written history remains of these pristine lights of the profes- sion. We can only glean here and there an item of information which at best is uncertain and unsatisfactory.

The first Constitution of the State of Ohio does not seem to have been particu- larly adopted by anybody, in the sense in which that word is now used. It was prepared by the Constitutional Convention, signed by the members thereof on the 29th day of November, 1802, and appeared to go into operation of its own motion. It was not submitted to the People for ratification or approval by them, though for many years they appeared to be satisfied with it. There is a curious uncertainty about the date of admission of Ohio, under this Constitution, into the Union. As many as seven different dates are assigned, by as many different publications. April 30, 1802, has been given by the editor of the "United States Statutes at Large," in Volume I. This was the date of the passage of the enabling act of Congress, authorizing the people to form a Constitution, and for the admission of the State into the Union. But as the date of the enabling act of other States has not been regarded as the date of admission, there is no reason for making an excep- tion with regard to Ohio. June 30, 1803, is said to be the time, in the report of the Ninth Census. But as Congress was not in session that day, having adjourned in May; this is evidently an error. November 29, 1802, being the day the Consti- tutional Convention signed the Constitution and adjourned, is held by many to be the proper date. Hildrethi's "History of the United States" gives it as March 1, 1803, being the time when the first General Assembly met in accordance with the provisions of the Constitution. Another authority states March 3, 1803, that being the date of an act of Congress assenting to certain modifications proposed by the convention, relating to reservation of lands for public schools. Atwater's "History of Ohio," Mansfield's "Political Grammar, " and others, give February 19, 1803.

The enabling act, as said, was passed April 30, 1802, under which the Constitu- tional Convention proceeded with its work, and the Constitution, with certain prop- ositions relating to laws within the State, was laid before Congress, for its action. Committees were appointed in both Houses to whom the papers were referred. The Senate resolution was, that a committee be appointed to inquire whether any legis- lation was necessary, and if so what, for the admission of the State of Ohio into the Union and for the extending to that State the laws of the United States. On the 19th of January, 1803, the committee reported that under the enabling act, the peo- ple had formed a Constitution and State Government, Republican in form, and in conformity with the principles of the Ordinance of 1787, and that it was necessary now to establish a District Court within the State, to carry into complete effect the laws of the United States within the same. On this report a bill was presented and passed February 7; the House took up the bill, and passed it February 19. This was the first law of Congress recognizing the new State. There seems to have been no formal act of admission at any time. There is, however, a collection of charters and constitutions compiled by order of the United States Senate, and printed in 1877. In this work, the Constitution of the State follows the enabling act, and is then fol- lowed by the act of admission. In this publication, the Constitution of Ohio is fol- lowed by the act of February 19, 1803, under the heading "An act recognizing the State of Ohio." The inquiry, probably, is of but little consequence now, its chief interest is the puzzling nature of the question.

Under the Constitution of 1802, the judicial power of the State of Ohio was vested in a Supreme Court, Courts of Common Pleas, Justices of the Peace, and

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such other Courts, as the Legislature might see fit to establish. The Supreme Court at first consisted of three judges, but was afterward increased to four. Courts of Common Pleas were composed of a presiding judge and associates. The president judge, being a member of the Bar, was supposed to be learned in the law; the sup- position did not, however, prevail as to his associates, who were not lawyers. They, however, acted as probate judges, and most of them were competent to hear the probate of wills, appoint executors and administrators, and review accounts current and final. A list of the presiding judges of the Court of Common Pleas under the old Constitution is as follows, as far as can be ascertained: Thomas Gibson, in 1803; Michael Jones, in 1804; from 1805 to 1819, Francis Dunlevy; from 1819 to 1832, George P. Torrence; from 1832 to 1835, John M. Goodenow; from 1835 to 1838, David K. Este, who then went upon the Bench of the Superior Court of Cincinnati, organized that year. Este was succeeded by Oliver M. Spencer. Spencer was suc- ceeded by Nathaniel C. Reed, who went upon the Bench of the Supreme Court of the State, being succeeded by Timothy Walker in 1841. William B. Caldwell was the next presiding judge, who also became a judge of the Supreme Court in 1850. Charles Brough and Samuel M. Hart were upon the Bench in 1850, and Robert B. Warden was the last presiding judge prior to the adoption of the new Constitution. Of the associate judges of the Court of Common Pleas, James Silvers served for three terms; Luke Foster, from 1803 to 1810; Matthew Nimmo, from 1804 to 1806; William McFarland in 1807; John Matson, from 1808 to 1810; Stephen Wood, from 1810 to 1816; James Clark, in 1811; Othniel Looker, in 1817; William Burke, in 1818, and also John C. Short. During 1820 and 1822 Othniel Looker, James Silver and Peter Bell were judges. In 1823 and 1824 Samuel R. Miller; in 1825-26, Patrick Smith and Ben Piatt; Peter Bell, Patrick Smith, and John Jolly, from 1825 to 1829; in 1829 and 1831, Enos Woodruff; Samuel Rees, in 1831; Thomas Hender- son, in 1831 and 1836. Jonathan Cilley and John Burgoyne, in 1834 and in 1836, and Joseph Brown and Richard Ayers, in 1839 and 1840. Henry Moore, in 1839 and 1845. Israel Brown and Robert Moore served from 1845, and with James Saf- fin and John A. Wiseman were the last associates under the old system. It is impracticable to give the exact time of service of these various gentlemen, and it is possible the list is not complete, but the sources of information are meager, and the fact that the courthouse in this county has been twice burned deprives us of those records which in law impart absolute verity.

Although Judge George P. Torrence served for a longer time than any presiding judge except Dunlevy, the record of early days show that he assumed his political functions under circumstances that occasioned considerable comment, principally of an unfavorable nature. The Legislature of 1818 appointed him, then a sitting member of that body, presiding judge of the Ninth Circuit, Hamilton county. This Circuit was created at the same session and a few days before the appointment. The appointment was claimed to be unconstitutional under the clause:

No senator or representative shall during the term for which he shall have been elected be appointed to any civil office under the State which shall have been created, or the emolu- ments of which shall have been increased during such term.

This appointment created great excitement, it being claimed to be a flagrant viola- tion of the fundamental law, and a judicial consideration of the question would seem to indicate that the objection was well taken. The matter was brought before the Supreme Court on quo warranto, but was dismissed for want of jurisdiction, any expression of opinion in favor of the appointment being carefully avoided. The Legislature then endeavored to exterminate the obnoxious judicial existence, by abolishing the Ninth Judicial Circuit. The Senate passed a bill for that purpose, but the House, after considering the matter several times, refused to concur, by the close vote of thirty six to thirty-two. Nothing, however, seems to have disturbed

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the placidity of the judge's nature. He held on to his office with an aggravating persistency, and a serene indifference to fate that was a discomfiture to the evil-minded. He lived to a green old age. He was a man of amiable, jovial nature, with a kind word for every one, and he retained the respect of the entire community.

Courts and judges, in the earlier days of jurisprudence, seem to have had their own private troubles, although, to consider them in this retrospect of fifty years, they bear somewhat of resemblance to the tempest in the teapot. John M. Goode- now came to Cincinnati from Steubenville in 1832, to enter upon the practice of the law. It appears according to his own statement that he was at once solicited and urged by personal and political friends to become a candidate for presiding judge of the Court of Common Pleas of Hamilton county. Affairs in the olden times were not different from the present day, as no man was ever known to seek office purely of his own volition. There are always admiring and disinterested friends who insist upon his sacrificing himself upon the altar of public welfare, although the lamb is generally led to the slaughter without voeiferons remonstrance. He was chosen judge, January, 1833. One of the first duties of Judge Goodenow .was to partici- pate in the appointment of the clerk of the court, vice Daniel Gano. There were a number of candidates for the position, and the four judges differed as to the merits of the various individuals proposed. Two of the judges, after acrimonious discussion, announced that they would vote for a certain one, and no other, and the other judges might contemplate the situation from any standpoint they saw fit, with the largest liberty to do so indefinitely. The consequence was that no clerk was appointed for nearly a year. In December, 1833, the Bar took the matter up and urged that an appointment should be made. In February, 1834, Judge Goodenow and two of his associates, John Burgoyne and Jonathan Cilley, agreed upon Samuel H. Goodin, whereupon the Bar held a meeting and requested that the appointment should not be consummated. A public meeting denounced. The newspapers had a few remarks to make, it being alleged that there was bribery and corruption in the case. One of the judges stated that Mr. James Goodin, brother of the inchoate clerk, had offered to him, the judge, $1,000 lawful currency of the realm if he would vote for and secure the appointment of Samuel H., as clerk. There was much vir- tuous indignation. The morality of the community was shocked. Committees inves- tigated, as they do now-a-days and will do to the end of time. Cards were pub- lished. Everybody made a statement over their respective signatures. The state- ment of the judge, Enos Woodruff, was that James Goodin offered him the money point blank and had the checks with him as evidence thereof. James Goodin's statement averred, that it was a mistake all round, that he simply offered to bet Judge Woodruff, that if he, Woodruff, would vote for his, Goodin's, brother, and secure the appointment, he, Woodruff, should be re-elected judge. Verily! it hath "a very ancient and fish-like smell," hath Goodin's statement. And yet it seems remarkable that for many months Judge Woodruff should give his colleagues no intimation of this dire attempt to soil the purity of the ermine, if such attempt had actually been made. Mr. Goodin, however, never exercised his high vocation of clerk. Two of the associate judges, Henderson and Burgoyne, without the knowl- edge of the presiding judge or third associate, and by what must be considered as an instance of sharp practice, made an entry appointing Gen. William H. Harrison. This action was acquiesced in by the Bar and community, and Warsaw was quiet.

This conduct of his colleagues, as well it might, gave mortal offense to Judge Goodenow. He declared, that under the circumstances he could not longer hold his judicial position, and did resign in November, 1834, a consummation devotedly wished, no doubt, by Judge Henderson, who had asserted, with much vehemence, that Goodenow should be "driven from the Bench."

The county of Hamilton continued to grow in population and importance. In 1790 it had about two thousand inhabitants; in 1840 it had over eighty thousand.

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HISTORY OF CINCINNATI AND HAMILTON COUNTY.

As business increased and the affairs of men multiplied, it was found that the supply of courts was not equal to the demands made upon them. The Superior Court of Cincinnati was therefore organized by the act of March 15, 1838. It had concur- rent jurisdiction with the Court of Common Pleas, of all civil cases in law and chan- cery, wherein that court had original jurisdiction. It was held by a single judge whose salary at first was $1,200 per year, which in 1846 was reduced to $1,000, by the provisions of an act, facetiously entitled an "Act to provide adequate compen- sation for judges, etc.," the same act giving judges of the Supreme Court, $1,300, and the presiding judge of the Common Pleas Court, $1,000. The first judge of the Superior Court was David K. Este, who had formerly presided in the Court of Common Pleas from 1838 to 1845. The following gentlemen succeeded Judge Este: Charles D. Coffin, who during his life was a leading member of the Bar ; William Johnston, who served from 1847 to 1850; Charles P. James, from 1850 to 1851, and George Hoadly, who was the last judge upon the Bench. This brief notice does not do justice to the usefulness of the old Superior Court. It relieved the pressure upon the existing tribunals of the county. For many years lawyers were able to dispatch business without having a lawsuit a synonym for Eternal Justice. For similar reasons, the Commercial Court was organized by the act of February 4, 1848. It was held by a single judge, the court having concurrent jurisdiction with the Court of Common Pleas of all civil cases at law, founded on contract and of all cases in chancery. This court, during the period of its existence was presided over by Judge Thomas M. Key, an eccentric but able man. He was a Kentuckian by birth, but came to this State early in life. During the Rebellion he was judge advocate on the staff of that military Puss in Boots, George B. Mcclellan. In the latter part of 1861 the writer visited the city of Washington as it was all "quiet on the Potomac." At that time, it will be remembered, Mr. Lincoln was President. But there was a greater than Lincoln, and his name was Mcclellan, and when we happened to encounter the judge advocate, it occurred to us, that now was the opportunity of dis- covering how the problem of the war was to be solved, and we, therefore, ventured a leading question as to the existing status. Those who knew Key will remember how solemn and portentous his manner always was. But now his manner was more solemn and more portentous than ever. In the profoundest depths of a melancholy confidence, and speaking unutterable thoughts in a terrible whisper, he said: "If you have no business imperatively detaining you here, I advise you to get out of this town as fast as you can. Beauregard is lying over the river with 125,000 men, and he can walk into this city, whenever he chooses." The awful gravity of the statement, enhanced as it was by the blood-curdling way of putting it was over- whelming. After events disclosed the fact that the rebel army consisted of some twenty or thirty thousand ragged chivalry. They were, however, backed up by a supply of Quaker guns, and the young Napoleon was terrified in his heart.

Key was the reputed author of the celebrated Harrison's Landing letter, in which McClellan undertakes to instruct Mr. Lincoln as to his military and civil rights, duties and obligations. As a specimen of pure unadulterated impudence, there never was anything like it in the world, and Key had an ability of impudence, which was a talent amounting to genius, and if he did not write the paper in question, he was quite equal to doing it.

Early in 1861 Mcclellan sent Key to interview Gen. W. T. Sherman, to see if Sherman really was crazy, it having been authoritatively stated that such was the fact. Key performed his mission and reported to the effect, that there was a screw loose somewhere, and that, in his judgment, Gen. Sherman was not fit to be entrusted with the command of a large army. The keenness of this witticism can only be dis- covered as the light of history falls upon the army of the West moving from Chat- tanooga by way of Atlanta, Ga., and the sea, to the downfall of the Rebellion and the final triumph of the Flag.

O Thew Might

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CRIMINAL COURT.

In speaking of the administration of justice, in Hamilton county, the Criminal Court should not be forgotten, for there was a Criminal Court. In was created by the act of March 12, 1852. The people were able to stand it for two years, when its existence was terminated by the act of May 1, 1854. The inherent defect in its condition was its judge, Jacob Flinn. He was one of the first experiments of an elective judiciary, and, so far from being a success, his court was abolished to get rid of him. A complete biography of him can not be written, for research has failed to discover material facts. This county is supposed to have been his birthplace, and he was bronght up on a farm. He probably had the rudiments of an early educa- tion, though there is no evidence of the fact. It is certain that he studied law, for he was admitted to the Bar, and the law at that time required a probationary period of educational discipline before being sworn in. As a lawyer he was a very large man with an avoirdupois approximating three hundred pounds. He was very dainty in his dress, and his personal appearance, in point of elegance, might be regarded as phenomenal. As a judge, he tried many criminals and hnng one or two, very suc- cessfully. Such was the general not to say the universal estimate of his talents, his learning and his integrity, that when a too critical legislature decapitated so to speak, not to put too fine a point upon it, his eccentric judicial career, without com- pensation for losses sustained, the entire Bar, and the community, quite as entirely were enabled to regulate, if they could not wholly suppress, the public grief.

THE NEW CONSTITUTION.

The new Constitution was adopted in 1851, and the following were the judges of the Court of Common Pleas: A. G. W. Carter; Stanley Matthews, Robert B. Warden. They were elected for a term of five years, which expired in January, 1857, the sal- ary being $1,500 per year. Warden resigned, and Donn Piatt was appointed to succeed him April 3, 1852. Judge Piatt did not long remain upon the Bench. In 1855, the judges were Carter, Nelson Cross and James Parker. Judge Cross was succeeded by Washington Van Hamm in 1856. In 1856 the judges elected were Carter, Patrick Mallon, and M. W. Oliver. Upon Judge Oliver's resignation Will- iam M. Dickson was appointed by Governor Chase, in 1859, serving till November 7th, of that year, when he was succeeded by Isaac C. Collins. Then followed Nicholas Headington, Charles C. Murdock, Edward Woodruff, M. F. Force and Joseph Cox .. Judges Force, Murdock and Cox were elected for a term beginning February 12, 1872, and ending February 12, 1877. The number of judges having been increased, Jacob Burnet and William L. Avery were elected for a term which began November 6, 1871, ending November 6, 1876. For the term beginning February 12, 1877, · and ending February 12, 1882, William L. Avery, Joseph Cox and Nicholas Long- worth were elected; Robert A. Johnson and Jacob Burnet, for the term beginning November 6, 1876, ending November 6, 1881. On May 10, 1878, the legislature authorized the election of two additional judges of the Court of Common Pleas, their terms to begin on the first Monday of December following their election; the term five years. Under this act Fayette Smith and Fred W. Moore were elected judges, their term beginning December 2, 1878, ending December 3, 1883. Robert A. Johnston, S. N. Maxwell, John S. Connor, M. L. Buchwalter and William L. Avery were elected for the term beginning February 9, 1882, ending February 9, 1887; Judge Avery resigned and was succeeded by A. B. Huston. Samuel R. Matthews and Charles D. Robertson were elected for the term beginning December 3, 1883, ending December 3, 1888. Phillip H. Kumler, Jacob Schroeder, S. N. Maxwell, Charles Evans and M. L. Buchwalter were elected for the term beginning February 8, 1887, and ending February 8, 1892. Matthews and Robertson were succeeded by Miller Outcalt and Clement Bates, whose term began the first Monday 11

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of December, 1888, continuing five years. Phillip H. Kumler, M. L. Buchwalter, Charles Evans, M. F. Wilson and John R. Sayler are now judges of the Court of Common Pleas holding office from February, 1893, for a period of five years. At the election held November 7, 1893, Howard Hollister and Dan. Thew Wright were elected to succeed Judges Outcalt and Bates. The term of office of the judges elect beginning the first Monday of December, 1893.

Under the constitution of 1851 the District Court was composed of Common Pleas judges, and a judge of the Supreme Court. For a period of some years a judge of the Supreme Court did attend the sessions of the District Court, but this practice was finally abandoned, on account of the great pressure of business in the court of last resort. The organization of the District Court was not satisfactory to the Bar, it being a fundamental error that judges should sit to review their own decisions, and, in 1885, the Circuit Court was created, Hamilton county being the first circuit. It is a Court of Error, composed of three judges elected for six years. The first judges were Joseph Cox, whose term was from February 9, 1885, to February, 1887. James M. Smith, from February 9, 1885, to February, 1889; Phillip B. Swing, from February 9, 1885, to February, 1891. Judge Cox was elected in 1886 to serve until February, 1893, being again re-elected and now in office. Judge Swing was also re-elected, his term expiring in 1897.

The judges of the Superior Court of Cincinnati were as follows: Oliver M. Spencer from 1854 to 1861; William Y. Gholson, 1854 to 1859; Bellamy Storer, 1854 to 1871; George Hoadly, 1860 to 1865; Charles D. Coffin, 1862 to 1863; Stanley Matthews, 1863 to 1865; Charles Fox, 1865 to 1868; Alphonso Taft, 1866 to 1871; M. B. Hagans, 1869 to 1873; J. L. Miner, and J. Bryant Walker, in 1872; Alfred Yaple, 1873 to 1878; T. A. O'Connor, 1873 to 1877; W. H. Tilden, 1874 to 1878; Manning F. Force, 1877 to 1887; Judson Harmon, 1878 to 1887. J. B. Foraker was elected in the spring of 1876; he resigned in 1882 and was succeeded by Judge William Worthington, who was in turn succeeded by Hiram D. Peck, elected in 1884 serving until May, 1889. William H. Taft's first term expired in May, 1888, and he was re-elected, but resigned and was succeeded by Samuel F. Hunt. Edward F. Noyes succeeded Judge Peck, being elected in 1889. Upon his death he was succeeded by John R. Sayler. The present incumbents are Samuel F. Hunt, Rufus B. Smith and F. W. Moore.

The Probate judges of the county were the following: John B. Warren, from February 9, 1852, to February 15, 1855; John Burgoyne, February 15, 1855, to Feb- ruary 9, 1858; George H. Hilton, February 9, 1858, to February 9, 1861; Alex. Paddack, February 9, 1861, to February 9, 1864; Edward Woodruff, February 9, 1864, to February 9,1867; Edward F. Noyes, February 9, 1867, to February 9, 1870; George T. Hoeffer, February 9, 1870, to February 9,1873; William Tilden, Febru- ary 9, 1873, to August 20, 1873; Albert Paddack, August 20, 1873, to November 1, 1873; Isaac B. Matson, November 1,1873, to February 9, 1885; H. P. Goebel, Feb- ruary 9, 1885, to February 9, 1891. Howard Ferris went into office February 9, 1891, and is the present incumbent, having been re-elected November 7, 1893.

COURTHOUSES.

The first courthouse was upon the corner of Fifth and Main streets. A feature of the locality was the contiguous swamp and frog pond, and the frogs of 1790 must have been more than ordinarily musical, as all the books of early times have some- thing to say of the noises they made. Adjacent to the frogs was the public whip- ping-post, a feature of gentility which adorned the courthouse of every county. Our ancestors appear to have been of opinion that the sparing of the rod was a proverb not exclusively applying to the early years of human existence.

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History of Cincinnati and Hamilton County, Ohio; their past and present, Part 24

Author: Nelson, S.B., Cincinnati Publication date: 1894 Publisher: Cincinnati : S. B. Nelson Number of Pages: 1592

Author: Nelson, S.B., Cincinnati
Publication date: 1894
Publisher: Cincinnati : S. B. Nelson
Number of Pages: 1592