USA > Ohio > Darke County > History of Darke County, Ohio, from its earliest settlement to the present time, Volume I > Part 39
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Fackler and O. E. Lucas in 1865. From 1848 to 1869 fifty- four physicians were enrolled as members of the association, of whom seventeen died during that period.
The society today is active and well organized and stands in the front ranks of similar associations in Ohio. Meetings are held monthly. The present officers are: President, J. C. Poling ; vice-president, G. W. Burnett ; secretary-treasurer, J. E. Hunter ; delegate, J. E. Monger ; alternate, M. M. Corwin ; legislation, A. W. Rush : censors. H. A. Snorf, J. S. Niederkorn and O. P. Wolverton. Public health. W. T. Fitzgerald, J. E. Hunter and E. G. Husted.
The membership is forty-six, viz .: J. C. Poling and C. I. Stevens, Ansonia : P. W. Byers, I. H. Hawes and W. A. Jones, Arcanum: A. M. Brandon, Beamsville: Louis Bigler and J. W. Van Lue, Gettysburg ; L. R. Emerick, Ithaca ; J. M. Ander- son, G. W. Burnett, W. T. Fitzgerald, W. E. Guntrum. J. E. Hunter, E. G. Husted. S. A. Hawes, Win. Lynch, B. F. Met- calf, J. E. Monger, D. Robeson. A. W. Rush, H. A. Snorf. C. G. Swan, R. H. Spitler, A. F. Sarver. O. P. Wolverton, Green- ville : J. E. Detamore, Hill Grove : G. W. Harley. A. W. Meek, W. D. Bishop, Hollansburg : H. C. Reigle, Lightsville ; J. T. Patton, New Weston; E. A. Hecker, New Madison ; J. D. Hartzell, North Star; W. A. Cromley, Palestine : C. F. Puter- baugh, Painter Creek: J. O. Starr, Pittsburg; E. H. Black and J. M. DeFord. Rossburg: M. M. Corwin, Savona; J. B. Ballinger, W. C. Gutermuth, J. S. Niederkorn, E. G. Reprogle, C. F. Ryan, Versailles : E. A. Fisher, Yorkshire.
CHAPTER XXII.
BENCH AND BAR.
(By George A. Katzenberger, Attorney.)
The judicial system of this country, with its vast com- plex, but harmonious organization, may justly be regarded as among the most notable achievements of the human intellect. Through its numerous tribunals of every grade, from that of the supreme court of the United States to local justices of the peace, it takes cognizance of every question of constitutional construction, or of personal and property rights, that can arise out of the social conditions or commercial activities of an in- definite number of separate communities, organized as states, and forming a federal union-the foremost nation of all the world. It reaches the daily life of the people. It protects the weak against the strong, the peaceable against violence, the innocent against wrong, the honest against fraud, the indus- trious against rapacity. By the universal consent of enlight- ened men, justice is regarded as a divine attribute, and such is its essential nature, therefore, as to impart dignity and purity to all those who are worthily engaged in its adminis- tration. The wise and just judge has, therefore, in all ages and societies, been held in universal esteem.
The American lawyer can only be admitted to the practice of the profession upon proof of good, moral character and of such proficiency in knowledge of the law as to enable him to render valuable service in the administration of justice. The special law of cach state prescribes the character and method of the examination to which each applicant for admis- sion must be subjected, the length of time he must have de- voted to the study of the elementary principles of the law and the system of its practice.
As the judicial departments of the government, federal and state. can be administered only by those learned in the law and trained in its practice, the legal profession is the one only calling, indispensably necessary to the continuation of our constitutional system. Those called to the performance of legislative or executive functions need not necessarily be
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lawyers. Indeed, many of those who have most acceptably filled the various offices in both, have been called from other pursuits. It is different with the judiciary. No man can at- tain the dignity of the bench who has not demonstrated his fitness and learning at the bar; and who has not displayed in the course of his legal practice those abilities, correct habits, and moral principles that commend him to the endorsement of his fellow-members of the profession for promotion.
As is generally known, the first legislature, which assem- bled under the new state government of Ohio, passed an act on the 15th of April, 1803, organizing the judicial courts of the state. A presiding judge of the court of common pleas was required to be appointed in each circuit, who, together with three associate judges (not necessarily lawyers) consti tuted the courts of common pleas of the respective coun- ties. Montgomery county then comprised all the territory north of the line of Butler and Warren counties as far as the state line, and west to its western boundary, thus including Darke county. The same act provided that until permanent seats of justice should be fixed in the several new counties, by commissioners appointed for that purpose, the temporary seat of justice, and the courts, should be held in the county of Montgomery, at the house of George Newcom, in the town of Dayton.
The time fixed by the statutes for holding the court of com- mon pleas in Montgomery county was the fourth Tuesdays in March, July and November ; and that fixed for holding the supreme court was the third Tuesday of October. thus estab- lishing and pereptuating among us the custom of court terms, which still generally prevails, and which originated centuries before in England, under widely different conditions, when the sovereign, with a retinue, passed from county to county to dispense justice to his subjects. This persistent survival of institutions, long after the conditions in which they had their origin seem almost entirely obliterated, is one of the most suggestive phenomena of civilization. The president and associate judges in their respective counties, any three of whom formed a quorum, had common law and chancery juris- diction.
Although rude surroundings characterized the inauguration of the first tribunals provided for the administration of jus- tice in Montgomery county, it must not be inferred that the laws themselves, and the methods of procedure, were in like
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manner rudimental. On the contrary, the establishment of regular tribunals to hear and determine matters in dispute, had been from time immemorial characteristic of all phases of civilization. The first step, indeed, in the advance of man- kind from a savage to a civilized state, is the substitution of the principles of justice for the use of force, in the adjustment of human controversies. Among the enumerated objects for which the federal government itself had been organized but a few years before, the second in importance was declared to be "to establish justice."
The principles of the English common law constituted a well defined system long before the colonization or even the discovery of the American continent, and many of the pro- visions of the great character of English liberty, forced from King John by the barons at Runnymede in 1215, were trans- planted to American soil from England and nurtured by our forefathers until they bore fruit in the Declaration of Amer- ican Independence and the ordainment of our splendid system of American written constitutions.
But long before Runnymede. or even the conquest of Eng- land by William of Normandy, back in the sixth century, a celebrated Roman emperor, named Justinian, the son of an illiterate savage, descended from one of the conquered tribes that had yielded reluctant obedience to the yoke of imperial Rome, at the instance of the David Dudley Fields, Judge Dil- lons and other learned jurists of his day, had ordered a com- mission, composed of the most eminent lawyers of the age, to codify the existing common and statute laws of the expiring empire.
The immense body of jurisprudence, which had resulted from the varied conditions of that wonderful people through the experiences of a thousand years, commencing with the twelve tables of the Decemvirs, and including the successive revisions that had been made from time to time embraced a monstrous and unwieldy mass, corresponding to our elemen- tary, statute, common law, and court decisions. This vast aggregate was again revised, condensed and classified into what are known to the profession as "the code, Pandects and Institutes of Justinian."
A historical sycophancy has thus ascribed immortal honor to a titled monarch of ordinary capacity and gross passions which the world will forever owe to a body of illustrious lawyers (most of whose names are long since forgotten), with
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the celebrated Tribonian at their head, who, by the diligent labor of years, achieved this mighty work, and rescued from the debris of a perishing empire what is known as "the civil law," the priceless legacy of the dying mistress of nations to the modern world.
This "civil law," together with what is known as the com- mon law of England, established in the colonies by legisla- tive enactment, or custom, being those principles, rules of action, and usages applicable to the government and security of person and property, constituted the basis of American jur- isprudence as it existed when the first courts were organized and held in Montgomery county in the year 1803, in the upper room of the log tavern of George Newcom, in the infant town of Dayton, Ohio.
The adjoining country was an almost unbroken wilderness. The clearings were few and far between. It is to be regretted that even tradition has not been transmitted to us a descrip- tion of the occasion of the early holding of court in Dayton. There must have been several chairs for the judges and law- yers, whose duty required them to be present and a table of some sort upon which a record of the proceedings could be written. The clerk of court doubtless provided himself with sheets of foolscap paper purchaseable at Cincinnati to keep minutes upon. Seats for spectators were probably provided on benches made of huge slabs or puncheons. There was no formidable array of statutes or books; such as were abso- lutely necessary were brought in the saddle bag of the pre- siding judge.
The conditions of the infancy of an American frontier com- munity in the beginning of this century were vastly different from those existing now. Then emigrants came singly or in very small parties, by slow and toilsome journeyings, either in rude boats upon the streams, or on foot, with animals, through a tangled wilderness, infested with wild beasts and inhabited by savage Indians. They came, bringing with them but few of the comforts or conveniences of the older settle- ments, prepared to encounter all sorts of dangers and priva- tions, until their own patient labor should supply them in their new homes. None but the more courageous, frugal and hardy would venture upon an enterprise so daring. Few ex- pected that even during their own lives they would reap the reward of their toils, but were cheered by the hope that to their children and their children's children would come bless-
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ing and abundance out of their labor and privations. The in- stinct of self-preservation inspired a willingness to assist each other, and their simple acquisitions were scarcely of sufficient value to supply a temptation to transgress the tenth .com- mandment. Under such circumstances, there was but little of course to submit to the adjudication of judicial tribunals- still the courts were regularly held, as prescribed by law, and as immigration increased, subsistence became less precarious, property rights and land boundaries more important and spe- cifically defined, traffic grew more active, and as a necessary result of these better conditions, sources of litigation also in- creased.
One of the most ancient memorials relating to civil or crim- inal procedure in Darke county is the judgment of Enos Terry, rendered as a justice of the peace, against a stray negro, who was arrested, arraigned and tried before him for stealing a brass watch from a soldier of the Greenville garrison in 1812. On the conviction of the negro, a sentence was pro- nounced by Terry unknown to the books, and not set down or nominated in the statutes. The negro was required to sub- mit to one of two penalties at his own option. Either to bear the infliction of the Mosaic lashes, save one, or be stripped stark naked and climb a thorn honey locust before Terry's door. Abe Scribner, who was present when the trial came off and sentence was pronounced, made a lifelong enemy of Terry by suggesting to him that his two daughters (one of whom afterwards married John Mooney, and the other Bill Scott) in case the negro chose to climb the thorn, should as- sist him up the locust.
Subsequently, John Purviance, David Briggs and Terry were justices of the peace of Greenville township, which, as yet, was co-extensive with the entire county, no other di- visions being made until after the organization of the county, pursuant to an act of the general assembly of December 14, 1816. At a later period. Samuel McClure, who lived on Whitewater, and Jacob Carlaugh, who resided at Stillwater, were commissioned justices.
To pursue the civil history of the township of Greenville whilst it embraced the entire county and remained as a mere appanage of Miami county, and to know who were trustees or constables, would but little interest the reader of these pages, and for that reason the further reference to that matter is omitted. But it may as well be stated here as elsewhere.
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that from the first setting-up of a civil policy in Greenville township, when it was co-extensive with the county, until a county organization took place under the act of December, 1816, no dismemberment took place, and until a cutting-up under the authority created and set in motion by that act, it remained entire. On perfecting the new county organization, its dimensions were considerably reduced, and subsequent changes in its limits were made from time to time until 1828, since which time its boundaries have been unchanged.
Between the signing of the treaty of 1814 and the organiza- tion of the county in the spring of 1817, under the law of the preceding winter, the emigration to the township, as well as to the residue of the county, had increased the population more than three-fold.
The lots in the town of Greenville were yet the joint property so far as the legal title was concerned, of John Devor and the heirs of the deceased Mrs. Armstrong : prior to her death, contracts for several of them had been made with par- ties who had paid for and were living on them, but as yet had 110 paper title. Devor, soon after the treaty, moved up to Greenville from Montgomery county ; he had now purchased two additional sections, twelve hundred and eighty acres or more of land, part near to and other portions more remote from Greenville, and for the advancement of the town it was necessary not only to perfect to the purchasers the title of the lots already bargained, but to dispose of the residue, as well as secure to the county the title of the one-third given as an inducement to secure the location of the county seat.
Legal proceedings to accomplish the desired ends were in- stituted in the court of common pleas of Miami county, to which Darke, not yet organized, was attached. Under these proceedings the selection of the lots for Darke county was made, decrees for title of those contracted away taken, and the proper conveyances executed and an appraisal of the resi- due of the lots; as well as adjacent lands of the half section, was made, and a sale by the sheriff of Miami county ordered. A public sale by the sheriff was had at Greenville on the 11th day of June, 1816, when more than fifty lots were sold to purchasers on the usual terms of partition sales, part cash and part in deferred installments. One tract of the adjoining land was sold, but the residue, some two hundred acres, was bid in by Devor to prevent what he considered a sacrifice, and
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some years afterwards became the subject of another suit in partition in the court of Darke county.
The organization of the county, under the act of December 14, 1816, may in some particulars be said to have a place in the annals of the town and township of Greenville, and of some of those particulars only will mention here be made. The same general assembly that passed that act, elected Joseph H. Crane, president judge of the first judicial circuit, a position for which he was eminently fitted, and worthily adorned until his election to congress in October, 1826; and also elected John Purviance, Enos Terry and James Rush as- sociate judges of the court of common pleas of Darke county. The appointment of clerk of that court, and of the county recorder, devolved upon the court. It was intended that Beers should be chosen to the first of these positions, but he wanted a few weeks' residence of the prescribed time to ren- der him eligible, and Linus Bascom was chosen as clerk pro tem : until a subsequent term, and before that subsequent term intervened Beers had "lost his grip" and Eastin Morris was duly chosen to that office for the term of seven years. The associate judges had met in special term to appoint a county recorder. There were two candidates, James Montgomery and Abraham Scribner. Montgomery was a fair penman and Scribner's chirography was, in after years, aptly compared, by David Morris, to a furrow drawn by a shovel plow through a newly cleared field of beech land. The judges were at a stand, and appointed a committee of two to report to an adjourned session on the qualifications of the candidates. Neither meal- ber of the committee could have claimed "benefit of clergy." if his neck had been in jeopardy, for neither could read nor write a word. Scribner made so much sport of the appoint- ment, that at the adjourned session, the court, to stop his mouth, gave him the appointment, which he held until his resignation in 1822, and during his whole term, not a single word was ever written by him in the books of his office, the entire clerical labor being performed by Dr. Briggs and Eastin Morris.
The board of county commissioners selected Beers as their clerk, which position he held until the legislature created the office of county auditor in 1821 or 1822. It may as well be stated here that in 1829, upon the death of David Morris, Beers obtained the office of clerk, which he held until 1850. when he was chosen president judge of the first circuit, which
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he held until he was superseded under the new dispensation brought in by the constitution of 1851. He also held for a number of years the position of prosecuting attorney and jus- tice of the peace. He was a sound and an able lawyer, re- garded as an oracle in legal matters by all his acquaintances yet he never appeared to advantage as an advocate before a jury, nor in an argument to a court. His decease occurred about 1862.
Soon after the organization of the county, the commission- ers took measures for the erection of a jail, and one of very humble character was erected on the north part of the public square, not more than thirty feet from the north corner of the city hall. It was constructed with two apartments each about fifteen feet square, the outside walls made of two thick- ness of sound timber, hewed one foot square, set on a double platform on the ground, of the same material, and overlaid by another of the same character upon which the roof was raised ; the apartments were separated by a partition similar to the walls. To one apartment was a door, andone window about two feet square ; in the partition was another door lead- ing to the other apartment, which had no other opening, either door or window. When it had inmates in cold weather, the outer room was warmed by a kettle of charcoal, the fumes of which escaped through the window and crevices between the logs of walls and ceiling.
One of the timbers forming the floor was once cut in two, being severed by an auger furnished to a prisoner through the window by a friend outside ; the piece thus cut off was pushed from under the wall, and the party confined escaped. The piece of timber was replaced and fastened, but some years later was, by a prisoner, loosened and removed, but in en- deavoring to escape he got wedged fast in the opening, and could neither get out nor get back. The sheriff found him in the morning and with some effort released him from what was close confinement. This structure was burned down by an incendiary on the morning of Sunday, May 2. 1827. It was erected by Matthias Dean at a cost of about $200.00 in county orders that would then bring them only about sixty per cent. of their face in money. In 1827-28, a new structure for a jail and jailer's residence of brick was erected on the lot occupied by the new building of Matchett, Wilson & Hart. This was a less secure building than the old log jail. Very shortly after it was completed a noted thief named Jonathan
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Bayles, who had been committed for horse-stealing, got out of it so mysteriously that the jailer, William Rush, was indicted and tried for aiding his escape ; the jury before whom he was on trial, after the case was left to them, deliberated for sixty hours without meat or drink (it was not then allowed to feed a jury at the expense of the county), and being unable to agree, were with the assent of the defendant, discharged, and before another term came on, the statement of Bayles, who had been arrested and committed at Fort Wayne for other offenses, explained the manner of his escape, and so com- pletely satisfied every one that Rush had no hand in it that the prosecuting attorney entered a nolie.
It may as well be stated here that this second jail was de- molished about 1840, on the erection of another on the south- eastern part of the same lot, that is now superseded by the fourth jail of Darke couunty. About a year after letting the contract for the first jail, John and James Craig erected the first court house of the county, a frame structure of two stor- ies, about twenty-two by twenty-eight feet, the upper story of which was reached by a stairway from the court room which occupied all the lower story and was divided into a clerk's office and jury room. If two juries were in deliberation at once, as was sometimes the case, the second was sent to some private house. This building was erected on the south part of the public square, diagonally across Broadway and Main street from the old log jail. In it courts were held until the summer of 1834, when it was removed, and with alterations and addi- tions, was converted first into a dwelling house, and lastly to a whisky saloon on Third street, southwest of and next to Odd Fellows hall.
The second court house, built by James Craig, who has been named as one of the builders of the first, was located in the center of the public square. Craig took the contract at so low a figure that he lost from $1,500 to $2,000 in his un- dertaking. On the erection of the present court house, the second one was demolished to make room for the city hall, a building that neither for convenience nor as an ornament is any improvement upon the old structure. It may also. in this connection, be noted that no place of business was pro- vided for any county officer, save the clerk, until the erection of the second court house, and in that for only part of them. The auditor. recorder, treasurer, tax collector and sheriff each had to furnish his own quarters, at his own expense. The
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commissioners first quartered themselves on their clerk, after- ward, when the office of auditor was provided for, on him. It may further be stated here, that from 1822 to 1826, the po- sition of collector of the tax was sold at public auction to the highest bidder. This statement requires an explanation.
County orders were at a discount in these years of from thirty-seven and one-half to sixty-two and one-half per cent., the treasury generally being without funds, they could alone be passed at their face to the collector in payment of the county taxes levied on chattel property ; for the tax denomi- nated the state tax, cash or coined money, or what was its equivalent, notes of the bank of the United States, was re- quired; yet in the annual settlement, a proportion of the land tax was set off to the county, and this proportion the collector could discharge by turning over to the county treasurer the orders at their face value, which he had bought at thirty-five to sixty-five cents on the dollar. This chance of making a little money enabled the collector to give a bonus for the office. For several years, county orders were a special cur- rency of inferior value. If you wanted to buy a horse or a cow, ten bushels of wheat or forty acres of land, the price was named as so much in cash, or a different value in county orders.
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