USA > Ohio > Montgomery County > Dayton > History of Dayton, Ohio. With portraits and biographical sketches of some of its pioneer and prominent citizens Vol. 2 > Part 13
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sary legislation to enable either the county commissioners or the city council to acquire this property and to utilize as well as preserve it.
Judge Francis Dunlevy, a learned lawyer and a gentleman of high character, residing in Warren County, was the first presiding judge of the first judicial circuit. His associate judges for Montgomery County were Isaac Spining, who lived a little cast of Dayton; John Ewing, aud Benjamin Archer, of Washington Township, all of whom have left numerous descendants in. the county.
The first term of the supreme court for Montgomery County was held at the same "seat of justice," on the third Tuesday of October, 1803. Samuel Huntington and William Sprigg were the judges; George New- com, sheriff; Arthur St. Clair, Jr., prosecuting attorney, and Benjamin Van Cleve, clerk.
The supreme court at that time, besides its usual jurisdiction in law and equity, provided by the constitution and laws, had exclusive jurisdic- tion in divorce cases.
In the courts of common pleas was vested by statute as now, jurisdic- tion in civil and criminal cases.
The first case tried in the common pleas, as the record shows, was in vindication of the public peace and personal immunity from violence. It was in the form of a prosecution for an assault and battery upon the person of Benjamin Scott, to which one Peter Sunderland pleaded guilty.
Benjamin lived to grow old, and to become one of the notable characters of the village; and to enjoy the unique honor of having been the first man to put in motion the judicial machinery of Montgomery County, which has been moving with accelerated speed and importance ever since. ITe was a faithful patron, especially in the latter years of his life, of the great infant industry of the frontier. I well remember his grizzled image, and his characteristic expression "Plumb as R," in emphasizing the truth of his assertions ..
The first case recorded in the supreme court, was an action of divorce, in which Hannah Burk asked to be released from the obligations of the marriage relation, which had been violated on the part of her unworthy husband Thomas, by gross abuse. Thomas was made an carly example to all undutiful husbands of Montgomery County forever, by the decree of the court compelling him to renounce all claims upon the helpmeet he had falsely vowed to "love, honor and keep," and it was on this occasion doubtless, that the expression originated, "And that was what was the matter with Hannah!"
Laws had already been enacted preseribing the methods of proceeding in civil as well as in criminal cases, pursuant to which grand and petit
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jurors had been summoned, who were in prompt attendance, with the officers of the court, to be instructed in their duties by the presiding judge.
Any person accused of crime then, as now, had the constitutional right (under the sixth amendment to the Federal constitution, as well as the provisions of the State constitution), to "a speedy and public trial by an impartial jury of the State and distriet in which the crime shall have been committed; " could only be held for trial " upon presentment of au indictment by a grand jury," and could not be deprived of life, liberty, or property, " unless by due process of law."
The grand jury being duly impaneled, sworn, and instructed in their duties, for want of a more convenient place to deliberate, were directed to withdraw to the secluded shade of a neighboring oak tree. Having found an indictment against a luckless culprit, for larceny, he was put upon his trial before a petit jury of his "peers," and being found guilty, was sentenced by the court to punishment in jail. He was there- upon let down into an adjacent dry well, in Sheriff Newcom's back yard, there to be "fed on bread and water" during the weary hours of his imprisonment. Such were the courthouse, seat of justice, and jail of Montgomery County, in Dayton, but eighty-five years ago-which to-day find luxurious accommodation in stately structures of stone, located but three squares distant, upon ground which was then partially covered by a swamp, but is now worth more than three quarters of a million of dollars. .
Although these rude surroundings characterized the inauguration of the first tribunals provided for the administration of justice in Mont- gomery County, it must not be inferred that the laws themselves, and the methods of procedure, were in like 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 mankind from a savage to a civilized state, is the substitution of the principle of justice for the use of force, in the adjustment of human controversies. Among the enumerated objeets 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 provisions of the great charter of English liberty, forced from King John by the barons at Runnymede, in 1215, were transplanted to American soil from the mother country, and nurtured by our forefathers until they bore fruit in the Declaration of
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American Independence and the ordainment of our splendid system of American written constitutions.
But long before Runnymede, or even the conquest of England 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 Dillons 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 elementary, statute, common law, and court decisions. This vast ag- gregate was again revised, condensed, and classified into what are known to the profession as " the Code Pandects and Institutes of Justinian."
An 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 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 common law of England, established in the colonies by legislative enactment, or custom, being those principles, rules of action, and usages applicable to the govern- ment and security of person and property, constituted the basis of American jurisprudence, 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 whole adjoining country was an unbroken wilderness. The clearings were few and far between, only some half dozen cabins consti- tuted the little settlement, named in honor of the distinguished senator from New Jersey, Jonathan Dayton; and doubtless the entire population of the county, far and near, comprising but a few hundred, at most, of men, women, and children, together with those who were interested as projectors or proprietors of the new town, were present at the first holding of the court.
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It is to be regretted that even tradition has not transmitted to us any account of this notable occasion. Colonel Newcom had no doubt made suitable preparation for the important event. He must have pro- cured several chairs for the judges and lawyers, whose duty required them to be present, and a table of some sort upon which a record of the proceedings could be written. Benjamin Van Cleve was clerk of the court, and had doubtless provided himself with a sheet of foolscap paper from Cincinnati, to keep his minutes upon. Seats for spectators were probably provided, on benches made of hewed slabs or puncheons. There was no formidable array of statutes or books; such as were absolutely necessary, were brought in the saddlebags of the presiding judge, Dunlevy, who had arrived on horseback the day before from the village of Lebanon, in Warren County.
The conditions of the infancy of an American frontier community 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, cither in rude boats upon the streams, or on foot, with animals, through a tangled wilderness, infested with wild beasts and savage Indians. They came, bringing with them but few of the comforts or conveniences of the older settlements, prepared to encounter all sorts of dangers and privations, 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 expected 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 blessing and abundance out of their labor and privations. The instinct of self-preservation inspired a willingness to assist cach other, and their simple, acquisitions were scarcely of sufficient value to supply a temptation to transgress the tenth commandment. Under such circum- stances, 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 specifically defined, traffic grew more active, and as a necessary result of these better conditions, sources of litigation also increased. " Agriculture, manufac- ture, and commerce slowly but surely began to lay the secure foundations of wealth, growth, and increasing prosperity in the infant settlement.
The very first demand for machinery to supply the wants of the new settlers was for saw and grist-mills. The only practicable power was that of water. Contracts became necessary. Water rights grew important and had to be defined; land boundaries had to be more carefully
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prescribed, and the law of meum et turm better understood and strictly observed.
Gradually the business of the courts increased. Great consideration was conceded to the judges and lawyers, who were necessarily men of superior knowledge, of especial legal learning, often of eloquence and always of high character. The most conspicuous men of the ante-revolu- tionary era, as well as of the membership of the colonial legislature, of the Continental Congress, and afterwards of the convention which framed the constitution of the United States, were lawyers. Of the signers of the Declaration of Independence, more than half were lawyers. It was so also in the history of the progress of constitutional liberty in England. Every protest ever made against the encroachments of arbitrary power was formulated by lawyers. Lawyers were the authors of the " Great Charter," which laid the foundation of the liberties of England. Lawyers drew the "Statute of Treason," the "Habeas Corpus Act," and the " Petition of Right." After the revolution of 1688, which was a vindica- tion of the power of parliament over the succession of the crown, the great " Declaration of Rights" was prepared by a committee, of which Somers, afterward lord chancellor, was chairman, and very soon after confirmed by an act of parliament. . The lawyers of our revolutionary era, and those who were influential in laying the foundations of the judicial system, as well as of the constitution of Ohio, were familiar with these time-honored muniments of English liberty, and in many instances, even their exact phraseology is incorporated into our own bills of rights and constitutions.
The early American bar, therefore, was composed of men, not only educated in the technical learning of the law, as a profession, but who were conversant with the principles of personal and political liberty, and with the history of the struggles of the people against the encroachments of arbitrary power.
The organization and faithful administration of the department of the judiciary, under our system of government, is necessary to that domestic tranquillity and general welfare that can nowhere exist in human societies without the observance of the principles of justice and their enforcement in the settlement of controversies among men.
The judicial system of this country, with its vast, complex, but har- monious 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 constitu- tional construction, or of personal and property rights, that can arise out
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of the social conditions or commercial activities of an indefinite 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 in- dustrious against rapacity. By the universal consent of enlightened 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 administration. 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 cach applicant for admission must be subjected, the length of time he must have devoted to the study of the elementary principles of the law and the system of its practice.
As the judicial department of the governments, 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 necessa- rily be 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 attain 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.
COMMON PLEAS BENCH .-- The first judge of the court of common pleas of Montgomery County, Francis Dunlevy, of Lebanon, presided up to the year 1817, when he was succeeded by Joseph II. Crane, who served until the year 1828, when George B. Holt was elected by the legislature, Judge Crane having been elected as a representative in Congress in the fall of that year.
Judge Holt was a native of Connecticut, and came to Dayton in 1819. He was a learned lawyer, an active, bright, and ambitious man- had been admitted to the bar ini Litchfield, Connecticut, in 1812, and was elected as a member of the legislature of Chio from Montgomery County, in 1824.
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He was conspicuously connected with some of the most important early legislation of the State; served acceptably his first seven years' term on the bench, up to 1836, and afterwards in 1842-1843, and was again elected judge, his last ferm expiring in 1849.
In 1850, he and C. L. Vallandigham, who had then but recently located in Dayton, were rival candidates for the State convention, which was called for 1850, to adopt a new State constitution for Ohio.
Mr. Vallandigham was then quite a young man, although he had served a term in the general assembly of Ohio as a representative from Columbiana County. He was an active politician, and acted as president of the convention called to make the nomination.
Judge Ilolt, however, having a high reputation as a lawyer and judge, and popular among all classes of the people, received the nomina- . tion, very much to Mr. Vallandigham's chagrin, who openly repudiated the action of the convention, and opposed the election of Judge Dolt, who was, nevertheless, successful, and a few years afterwards retaliated by opposing Mr. Vallandigham's candidacy for Congress in a notable paper of the times, entitled, "The Bolter BoMed."
Judge Holt took a prominent part in the labor of the Constitutional Convention, which was composed of many of the ablest men of the State. He soon after retired from active professional and political life, was a strong supporter of the Union during the Rebellion, and died in the year 1871, at the advanced age of eighty-two, at his home in Dayton.
William L. Helfenstein was elected by the legislature to succeed Judge Holt at the expiration of his first term in 1835, and served as judge up to 1842, when, as we have seen, Judge Holt was called to the bench a second time.
In 1849-1850, he was succeeded by John Beers, of Darke County, who served but a short time, when Ralph S. Hart was appointed in 1851; and after the adoption of the new constitution in 1852, under which the judiciary was made elective by popular vote, he was elected for the constitutional term of five years.
After an acceptable service for that term, Judge Hart removed to St. Louis, where he practiced law until the war broke out. He accepted from Secretary Chase some appointment in the Treasury Department in the South, and after the termination of the war, did not again engage in active practice.
Ile was always highly esteemed in this community where he had passed the greater part of his professional life, and retired some years after to the quiet of rural pursuits.
Ile is now, at nearly eighty years of age, one of the only three sur-
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vivors of the original Dayton bar, and is still in the possession of his mental faculties. Rich only in reminiscences and the Christian hope of soon entering upon the enjoyment of a better world than this, he looks out upon the setting sun from the porch of his comfortable farm house in the fertile valley of the Miami.
Judge Ebenezer Parsons, a very respectable lawyer of our neighboring town of Troy, followed Judge Hart upon the bench, continuing until 1861, when he was stricken with a malady that terminated his life a year or two afterwards.
John C. McKemy, of Darke County, succeeded Judge Parsons, and occupied the bench from 1868 until 1872, when he resigned and resumed the practice of his profession. After remaining in Dayton several years in active business, he removed to Hamilton, Butler County, where he contin- ued to practice law until his decease, which occurred within the last year. Judge MeKemy was a man of bright, active mind, very ambitious, of genial disposition, and popular manners.
Ilis successor upon the common pleas bench was Ilenderson Elliott, who was elected in 1871, and has been continued in office ever since.
Judge Elliott's torm of service has been distinguished, not only by its great length, but by the faithfulness and ability which he has uniformly brought to the discharge of his duties. No judge has ever so long continuously discharged judicial functions in Montgomery County sinec its organization.
The judicial qualities of a mind possessing a strong sense and clear perception of natural justice, and well learned in the elementary principles of the law, have been developed by long experience and conscientious devotion to duty into rare excellence.
Judge Elliott's decisions uniformly give evidence of a clear legal mind, great industry and patience in the examination of cases tried before him, and an honest purpose to do no unrighteousness in judgment.
SUPERIOR COURT .- Soon after the adoption of the new constitution, under the authority granted by that instrument, superior courts were established in Cincinnati and Cleveland, and by an act of the General Assembly of March 29, 1856, the superior court of Montgomery County was established in Dayton.
lis jurisdiction was local; similar, however, to that of the court of common pleas, excepting criminal cases, cases on appeal from justices of the peace, and in divorce.
Under the very able administration of Daniel A. Haynes, who was elected its first judge in June, 1856, it soon engrossed the larger portion of the important litigated business of the county. It possessed many 3.1
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advantages in the dispatch of business over the common pleas court. Its terms were monthly or bi-monthly. It was not subject to the interrup- tions of the criminal calendar, nor of appeal or divorce cases. The judge was always to be found here. By the common consent of the bar, Judge Haynes' preeminent fitness for the position of superior judge was con- ceded, and from the start gave a high reputation to the court in the history of the judiciary of Ohio. Daniel A. Haynes was born in the town of Chatham, Columbia County, New York, September 9, 1815. He was educated at Union College, Schenectady, when that institution was under the charge of the celebrated Dr. Eliphalet Nott. Before entering college, he had been a pupil of Mr. E. E. Barney at Lowville Academy. Mr. Bar- ney was also a graduate of Union College, and who came to Dayton in 1834.
Not long after Mr. Haynes' graduation at Union College, in 1835, he came to Dayton at the instance of Mr. Barney, who had taken charge of the Dayton Academy. He was an assistant teacher to Mr. Barney for a year or more, and in 1838 entered the office of Judge Crane as a law student, and was admitted to the bar in 1839. He formed a partnership in the practice, in 1840, with Henry Stoddard and afterward with John Howard. He was elected prosecuting attorney in 1843 and served two terms, and was then elected to the legislature.
One term of service in the house of representatives of Ohio seemed to be sufficient to satisfy his political ambition, and he devoted himself thenceforth to his chosen profession as a lawyer.
Judge Haynes was continuously on the bench of the Superior court from July, 1856, until February, 1870, when he resigned to enter into a law partnership with Hon. C. L. Vallandigham, who had a national reputation politically, and was regarded by those who knew him best, as a lawyer of superior ability.
The untimely death of Mr. Vallandigham in June, 1871, resulting from the accident that cansed a profound sensation throughout the United States, and even abroad, which occurred during his engagement in the celebrated MeGehan murder case at Lebanon, abruptly terminated the existence of the firm of Haynes & Vallandigham, which originated but a brief year before, with such high promise of future distinction.
After an interval of a few years' practice at the bar under the firm of Ilaynes, Howard & Howard, Judge Haynes was again elected to the bench of the superior court, and served another term of five years, from 1876 to 1881.
Upon Judge Haynes' resignation, in 1870, of the supreme court judgeship, Jackson A. Jordan was selected and recommended by the Dayton bar to fill the vacancy through the appointment of the governor.
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Mr. Jordan had been for many years a very active and successful practitioner at the bar, had earned a good reputation and a large practice by hard work, and was very ambitious. He highly appreciated the compliment of being selected by his brethren of the bar to fill the place which had been so long and honorably occupied by Judge Haynes; and seemed fully to realize the amount of diligent labor' it would require of anyone, of even the highest ability, to sustain the high reputation the court had acquired under his predecessor.
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