USA > Ohio > Greene County > History of Greene County, Ohio: its people, industries and institutions, Volume I > Part 60
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The commissioners and auditor proceeded to estimate the annual income of the prac- ticing lawyers and physicians, and to charge a tax upon each; which tax is attached to their respective names on the lists returned by the assessor to the auditor.
As far as is known this law was in force until the constitution of 1851 became operative, but the list of lawyers taxed in 1831 is the only one which has been found among the county records. This list included John Alex- ander, William Ellsberry, Aaron Harlan, Thomas Coke Wright, Joseph Sexton and Cornelius Clark.
JUDICIAL SYSTEM PRIOR TO 1851.
The first judicial system of the state of Ohio was provided for by the legislative act of April 15, 1803, this act being based upon the constitution which had been adopted the previous year. With such modifications as the General Assembly was privileged to make, the system then put into operation continued in use until 1851, when the whole system was changed by the new constitution of that year.
During these years the state was divided into a number of judicial circuits, over each of which presided a so-called president judge elected by the Legislature. These districts, composed of a number of counties as they were, were constantly changing due to the annual addition of new counties to the rapidly growing state. Other districts had to be added from time to time, but, in the main, little change was made in the judiciary prior to 1851. Each county, in turn, was allowed to have three judges of its own, at first elected by the Legislature, however, and these local judges, could, in the
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absence of the president judge, hold court. The associates were not required to have any knowledge of law; it was the exception if they had. Some wise man has said that the reason why Justice was represented as a blind-folded woman was because she feared to look upon the men who were to dispense the justice she was supposed to typify. Be that as it may, the associate judges of Greene county between 1803 and 1851 really served their constituents as faithfully and efficiently as if they had been skilled in the law. After all, if twelve men can determine the merits of a case, whether it be the value of a dog or a human life, it is not too much to assume that the untrained judges of the olden days were competent to sit upon any and all cases which might come before them.
THE FIRST COURT OF GREENE COUNTY.
The history of the early courts of the county may be traced in the musty volumes which make up the records of their proceedings. There were two courts which came into touch with the pioneers of the county-the supreme court and the court of common pleas. The supreme court, a state court, was what was frequently known as a "traveling" court; that is, its judges and prosecutor moved from one county to another, the length of its sessions in each county being dependent upon the amount of business which might come under its jurisdiction.
The first session of the supreme court in Greene county convened on the fourth Tuesday in October, 1803, the day happening to fall on the 25th of the month. The record of this first session is well preserved and its pro- ceedings, in the bold hand of John Paul, the clerk, are still legible. The court convened at the house of Peter Borders, a pioneer who had settled on Beaver creek, with Samuel Huntington and William Spriggs as judges. Will- iam Maxwell, later a well-known printer of Cincinnati and now buried in Greene county, was sheriff, while Arthur St. Clair, Jr., a son of the former governor of the Northwest Territory, was the prosecutor. Paul was the clerk of the court, and the record notes that he gave bond in the sum of two thousand dollars for the faithful performance of his duties, Benjamin White- man, one of the associate judges, and Josiah Grover being his bondsmen.
Then came a grand jury, to-wit: Andrew Read (foreman), James Snodon, Joseph C. Vance [the director of the county seat, and later serving in a similar capacity for Champaign county], William Allen, John Marshall, John McKnight, Samuel Brewster, John McClain, James Snodgrass, John Judy, Robert Lowry, Thomas Frean and Samuel Freeman.
After being sworn in the grand jury was ordered to retire from the court and consider any possible indictments which might be presented to it. But it seems that no one within the extensive limits of the county had transgressed
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any of the few statutes of the state, or, if they had, there was no one to report them. At least, the first grand jury of Greene county soon filed into the humble court room (the living room of pioneer Borders) and reported that they had nothing to bring before the court. After admitting Richard L. Thomas to the bar, the "court adjourned until court in course." Thus ended the first session of the supreme court in Greene county.
The statute provided that this court should hold an annual session in each county, and at such times as the court itself might determine. A perusal of the proceedings of this court in the county indicates that it handled only a few cases and most of these were of minor importance. The second session convened on October 3, 1804, and the grand jury completed all of its work in a short time in the morning and was immediately discharged. The record shows that the first case to come before this court was that of the state vs. Archibald Dawden and Robert Reneck, charged with the murder of "Betty George or otherwise Kenawa Tuckaw," the indictment being the work of the second grand jury. The defendants did not elect to stand trial and the court admitted them to bail in the penal sum of two thousand dollars, Simon Ken- ton being one of Dawden's bondsmen. The case was set for the next annual session of the court, at which session, held on November 11, 1805, the case was venued to Champaign county, the Greene county record stating that the case was to be tried at Springfield, Champaign county, which town, at that time, was the county seat of the newly organized Champaign county. No further reference is made to the case in Greene county, and therefore the Champaign county records would have to be searched to ascertain its final disposition.
The supreme court record of the county up until 1851 is filled with a mul- titude of petty cases, largely of assault and battery, or minor infractions of the criminal statutes. Here is a typical case: Nimrod Haddox, one of the more prominent old pioneers, seemed to have got into some kind of an altercation which brought him before this tribunal. On being placed on the witness stand and asked whether he was guilty, this doughty pioneer plead "not guilty." And the ancient volume which tells of his indictment goes on with his story. "Therefore," says the record, "let a jury come." It came, it tried him, found him guilty as charged, fined him in the sum of five dollars and costs, and committed him "till performance." It takes a chirographic expert to decipher some of these century-old proceedings, and, once deciphered, it would take a lawyer well versed in ancient legal phrase- ology to tell exactly what is meant by some of the curious expressions which found their way into the record.
John Paul was not quite equal to the task of getting all of the Latin phrases correctly spelled. One of his records says that the court adjourned
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"si no dy." However, Paul evidently improved in his knowledge of Latin, since some of his later records show that the court very properly adjourned "sine die." In the main, the supreme court records of the county are well kept, and the student of criminology can here find much valuable material for a thesis on the early depravity of the first settlers of the county. During the first quarter of the century men were frequently arrested for swearing, for betting on the elections, for fighting, for fast driving, and such petty mis- demeanors, many of which are passed by in 1917 without an officer of the law even knowing that the law is being violated.
THE COMMON PLEAS COURT.
Greene county came into existence the same year the state was admitted to the Union-1803-and the same year saw seven other counties make their initial appearance. The legislative act of April 16, 1803, made it man- datory upon the associate judges of each of the counties to meet on the 10th of the following month and "lay" their respective counties into a "suitable number of townships." For at least a year after Greene county was organ- ized these associate judges performed all the functions of the later county commissioners. The present set of officials known as "county commissioners" were created by an act of the General Assembly, passed on February 14, 1804. In Greene county the first election for these commissioners was held on the first Monday of the following April, but it was not until June 20, 1804, that the associate judges turned over to the commissioners that part of their duties which the statute had placed under their jurisdiction. Hence, it is seen that the first court of common pleas was a far different court from what it later became. In fact, as long as the old judiciary was in existence, that is, up to 1851, the court of common pleas handled some of the business which subsequently was turned over to the county commissioners. As previously stated, the associate judges met on May 10, 1803, to divide the county into townships and at the same time they determined the number of justices of the peace which should be allotted to each township.
An explanation is necessary at this point to show the peculiar status of these associate judges. When acting in the capacity above mentioned. although they were called a "court," yet it is not technically correct to call them a "court of common pleas." It was a court for the transaction of executive business, not in any sense a court for judicial purposes. When they met for such business as was later taken over by the county commissioners it is improper to call their session a meeting of the court of common pleas. However, this dual set of functions, as before noted, came to an end when the county commissioners began their legal existence on June 20, 1804.
The first meeting of the court of common pleas as a judicial body con-
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vened at the house of Owen Davis (then occupied by Peter Borders) on August 2, 1803, with Francis Dunleavy as president judge and associate judges, Benjamin Whiteman, William Maxwell and James Barrett. Daniel Symmes was prosecutor ; John Paul, clerk; and Nathan Lamme, sheriff. The grand jury was composed of the following men, "tried and true": William J. Stewart ( foreman), John Wilson, William Buckles, Abram Van Eaton, James Snodgrass, John Judy, Evan Morgan, Robert Marshall, Alexander C. Arm- strong, Joseph C. Vance, Joseph Wilson, John Buckhannon, Martin Menden- hall and Harry Martin. These were the men who had charge of the first court in Greene county, all of them being residents of the county except the president judge and the prosecutor.
One hundred and fifteen years have elapsed since this first court con- vened in Greene county. Could the men who foregathered in the one small room in the Davis cabin on that memorable day in August, 1803, drive into Xenia in an automobile in the spring of 1818, it would be hard to convince them that they were on the same planet where they inaugurated a government for a civil county more than a hundred years ago. Scarcely a thing they might see would be familiar to their eyes, and scarcely a sound would be familiar to their ears. And the score of officials? What did they look like? How were they dressed? What an interesting photograph they would have made, but that was long before the day even of the daguerreotype. But we can conjure up a picture, which will be fairly life-like. They were sober- faced men, these sturdy forefathers. Some would have been dressed in homespun, some in skins ; some with moccasins, some with home-made boots, some with no footgear at all; some with well-oiled queues and some with close-cropped hair ; some with curious felt hats, or hand-made straw hats, or none at all; some with a long hunting shirt, fringed and bedecked, and with leather breeches; but not a man with the long trousers as we now know this nether garment-but every man, no matter how dressed, was deeply intent upon the performance of such duties as the law assigned him.
This first court performed but little business. After the grand jury received its instructions from the judge, it retired to the little log cabin which was near the Davis house, mention of which is made in the chapter on the court houses of the county, and there proceeded to hear the testimony of some seventeen witnesses. The strange thing about the first court day in Greene county was that all of these witnesses, and all the indictments which were subsequently returned, arose from a series of fistic encounters which were staged around this primitive court house after court convened on this particular morning in August, 1803.
To read between the lines, it would seem that the fact that the first session of the Greene county court was to be held on this day had been
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widely advertised throughout the county. At least, on the appointed day, there was a large crowd on hand, and the presence of the tavern of Borders, with its ample supplies of whiskey, fully accounts for the numerous personal combats which soon were in action. Consequently, after the grand jury was in session, it began to get cases right from the yard immediately sur- rounding the cabin in which they were holding their deliberations. In all, no fewer than seventeen witnesses were called, with a resulting total of nine bills of indictment for such misdemeanors as affrays, assaults, batteries, etc. The reading of the record of the day's proceedings shows that it must have indeed been a red-letter day in the history of the infant county.
In addition to the assessing of a number of fines against the belligerent pioneers, the court found time to do a few other things. On the first day of the session it appointed James Galloway, Jr., as the first surveyor of the county, a position which he held until 1816. On the second day, August 3, the court appointed Joseph C. Vance director of the county, and authorized him to survey the county seat and lay it off into lots preparatory to placing them on sale.
These two days, August 2 and 3, 1803, were taken up with the session of the common pleas court sitting as a judicial body. The statute of April 16, 1803, made it mandatory on the associate judges to hold a court for the transaction of "county business" on the day following the adjournment of the court as a judicial body. In accordance with this provision, the associate judges convened on Thursday morning ( August 4, 1803) for the transaction of such so-called county business as might properly come before them. They had little to do. First, they appointed James Galloway, Sr., treasurer of the county. They then granted three licenses for the keeping of taverns. One of these tavern licenses was issued to Peter Borders, in whose house the court was sitting, the court room presumably being the bar room. The other two licenses were issued to Griffith Foos and Archibald Lowry, both of whom were living in the village of Springfield. Borders paid four dol- lars for his permit, while the other two were compelled to pay twice as much, a fact which seems to indicate that Springfield was the more important trad- ing center of the county at this time.
The act establishing the county had provided that the court of common pleas, sitting as a judicial body, should convene on the first Tuesdays in April, August and December. The August session was the first in Greene county, since the first Tuesday in April had passed before the enactment of the law. When the time for the second session of the court arrived there was again very little business to come before it; in fact, for several years the court found comparatively few cases coming before it for hearing. This second session indicted and found guilty one Thomas Davis, a justice of the
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peace, for "misconduct in office" ; just what the said misconduct was, the record failed to state. The state demanded one dollar of him for his miscon- duct and furthermore ordered him to "stand committed until performed." This second session also witnessed the first civil case in the county, an action brought by one Wallingford against one Vandolah for slander. The de- fendant had called the plaintiff a liar, or at least, so Wallingford alleged. A jury heard the evidence, decided that Vandolah had so denominated the plaintiff, and ordered the guilty wretch to pay the maligned plaintiff dam- ages in the amount of twenty-five cents. Thus was justicc dealt out in those early days.
SOME COURT CASES OF GREENE COUNTY.
There was a time in Greene county when men were imprisoned for debt, although to the present generation it is a matter of wonder how a man could be expected to meet an obligation while languishing in jail. The early records also tell of whipping as a punishment, and Greene county has few cases of this kind on record. Swearing and gaming were frequent causes which found their way into court, and although both misdemeanors are still recognized as such, yet it has been many a year since the last man was ar- rested for swearing. But in the days of our forefathers they never arrested a man for spitting on the sidewalk, or exposing to dust the food offered for sale in his grocery, or allowing his pigs to run loose in the streets, or whip- ping his horse, or putting water in his milk. In this generation a different view of the purpose of laws is held. Formerly they were merely to punish the unfortunate victim, with no idea of trying to make the punishment fit the crime, and certainly with no idea of attempting to help the man to a better view of life. Such a thing as kindness to a prisoner was not to be thought of under the regime of the judges of a hundred years ago; they were criminals before the bar, and criminals they must remain. Justice tempered with mercy is a thing of the last half century. We are attempt- ing now to adjust our laws to man in such a way that he is made a better man for having come in contact with them, instead of sending him headlong into a criminal life from which there is hardly any possibility of escape. Hence, we have abolished imprisonment for debt ; we have abolished public whipping ; we are gradually abolishing capital punishment ; we are no longer treating the first infraction of a law with the severity we mete out to a con- firmed violator.
The first jails of Ohio were invariably fitted out with what was called a debtor's room. Some debtors were confined to the room all the time; others were allowed the liberty of the jail grounds; still others were allowed the privilege of wandering considerable distance from the jail-over the county seat itself in some instances. For, be it known, there was a so-called
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"prison bounds," a term long since dropped from the statutes of Ohio. The General Assembly of Ohio, with the act of January 12, 1805, entitled "An act regulating prison bounds," provided that every person imprisoned for debt should be permitted the privilege of what were designated as prison bounds. These "bounds" were limited to an area defined by a radius of not more than four hundred yards surrounding the jail. Any prisoner to have the privilege of the bounds had to give a proper bond before he could exer- cise the freedom of the bounds. At no time and under no circumstances was the debtor to go beyond the bounds, and, in case he did, his bond was for- feited and he was committed to close confinement.
This act, with some few modifications, continued on the statute books until abolished with the act of March 19, 1833. In 1833 the law was changed to make the prison bounds co-extensive with the limits of the county in which the prisoner lived. There were many arrests and convictions in the early history of Greene county for debt. Some had friends to come to their rescue after they had been convicted, and thereby escaped the fateful room. Others were found to have sufficient property to liquidate the debt, but in case the court found that the debtor had nothing, or not enough to satisfy the judgment, he was brought before the commissioner of insolvents (there was such an official in the early history of the county) and dis- charged. In any case the unfortunate man had to lay in jail a while, pend- ing the disposition of his case. By the thirties cases of this sort were infre- quent and the General Assembly finally abolished imprisonment for debt with the act of March 19, 1838.
THE PROBATE COURT.
There was no separate probate court under the first constitution of Ohio, all probate matters coming under the jurisdiction of the common pleas court. The office of probate judge as now constituted was created by the constitution of 1851 (Art. IV, Sec. 7), the section in question providing that "There shall be established in each county, a Probate Court, which shall be a court of record, open at all times, and holden by one judge, elected by the voters of the county, who shall hold his office of three years, and shall receive such compensation, payable out of the county treasurer, or by fees, or both, as shall be provided by law."
Subsequent constitutional changes and statutory enactments have changed the tenure, defined the jurisdiction of the court and made it an efficient working arm of the judiciary of the state. The jurisdiction of the court extends to all probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators, and guardians, the issuing of marriage licenses, the sale of
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land by executors, administrators, and guardians, and "such other juris- diction as may be provided by law." The court also has cognizance of all matters relating to the care and protection of children. In effect, therefore, the court is a juvenile court. It also appoints the board of visitors ; has gen- eral charge of the administration of the mothers' pension act. and deter- mines commitments to the insane asylum, children's home, poor farm, etc.
The constitution does not specify any qualifications for the office of pro- bate judge, and there has been no statutory legislation touching this im- portant point. As far as the law is concerned, the judge is not required to read and write. He may have never opened a law book .of any kind before entering the office; in fact, there have been judges of probate of this kind in Greene county in the past. Within recent years, however, there has been a demand for probate judges with previous legal training.
James W. Harper, the first probate judge of the county, and an incum- bent of the office longer than any other judge, was born in Rockbridge county, Virginia, August 4, 1809. He came to Ohio and located in Greene county with his widowed mother and other children of the family in 1834. He followed the trade of cooper in the county for sixteen years after locat- ing here. He was married on March 29, 1839, to Jane Shields and they became the parents of three children, John, Lavina and William. He served as justice of the peace, and in 1841 became county recorder for a three-year term. He was the first probate judge elected for Greene county after the adoption of the constitution of 1851, and served continuously until 1861. He was again elected to the same office in the fall of 1867 and was re-elected from term to term, serving until 1885, thus being in the office for a total of twenty-eight years. He died on Christmas Day, 1893, and is buried at Xenia.
Charles W. Dewey, the second probate judge of the county, serving from 1861 to 1864, was a practicing lawyer of the county for several years. Thornton Marshall, judge from 1864 to 1867, was not a lawyer. J. Harvey Cooper, who served two terms beginning in 1885, was a drygoods merchant at Xenia when he was elected to the office. James M. Stewart, who fol- lowed Cooper in. 1891 for two terms, had been a dry-goods merchant at Yel- low Springs, and had served as deputy under Cooper for six years. Since 1897 the office has been filled with lawyers. The list of probate judges fol- low : James W. Harper, 1852-1861 ; Charles Dewey, 1861-1864; Thornton Marshall, 1864-1867; James W. Harper, 1867-1885; J. Harvey Cooper, 1885-1891 ; James M. Stewart, 1891-1897; Joseph N. Dean, 1897-1906; Marcus Shoup, 1906-1909: Charles F. Howard, 1909-1917, and J. Carl Mar- shall, 1917-1921.
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THE SUPERIOR COURT OF GREENE COUNTY.
The present generation of lawyers of Greene county have little knowl- edge concerning a special Greene county court which flourished more than forty years ago. In the early part of the '7os the regular common pleas court, which handled all of the business of the county, became so clogged with cases that it was deemed advisable to ask the General Assembly of the. state to create a special court to relieve the congested condition. The Legis- lature was appealed to for relief, a bill for a special court was prepared, and on February 20, 1871, an act was passed creating what was called "The Superior Court of Greene County" (Laws of Ohio, Vol. 68, pp. 22-27).
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