History of Madison County Ohio: Its People, Industries and Institutions, Part 55

Author: Chester E. Bryan
Publication date: 1915
Publisher:
Number of Pages: 1207

USA > Ohio > Madison County > History of Madison County Ohio: Its People, Industries and Institutions > Part 55

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of a common pleas court in all criminal cases might be taken to the supreme court on error, the former final clause being repealed. The court of common pleas was to consist of a president and three associate judges and was to have original jurisdiction in all civil cases at law and equity where the sum or matter in dispute did not exceed one thousand dollars. It also had appellate jurisdiction from the decision of justices of the peace. It had exclusive power to bear and determine all causes of probate and testamentary nature, to take the proof of wills, grant letters of administration, appoint guardians, etc. Also exclusive cognizance of all crimes and offenses, the punishment of which was not capital, and then, if the defendant so desired. In 1816 the power of trying the latter class of cases was taken from the court of common pleas, and by many subsequent acts their powers were defined and regulated. In 1831 this court was given exclusive cognizance of all crimes and offenses, the punishment of which was not capital; also original and concurrent jurisdiction with the supreme court of all crimes and offenses the punishment of which was capital. Thus the judiciary remained with immaterial changes until the adoption of the new constitution, at which time the courts were again reorganized.

JUSTICES OF THE PEACE.

When the state was organized. a law was passed, April 16, 1803, providing for the election in every township of justices of the peace, the number to be determined by the court of common pleas. The official term was three years, and many subsequent acts were passed defining and regulating the duties and powers of this court. Under the constitution of 1851 a competent number of justices was authorized to be elected in ench totwnship, the term of service being the same as under the old constitution, The jurisdiction of justices is fully established by law and will be found further along in this chapter. Although the office of justice of the peace is generally looked upon as an insignificant one, yet it has done its share in molding the law-abiding sentiment of every community and causing evil doers to respect the power and majesty of the judiciary.

CIRCUITS.

Under the old constitution. the state, as already mentioned, was divided into judicial circuits, which were increased and changed from time to time, as necessity and the growing population demanded. The territory composing Madison county was then a portion of Franklin, and belonged. of course, to whatever circuit the latter county was in. It will, therefore, be proper to give the organization of the circuits into which this county was thrown from 1803 until 1852. In 1803, the second circuit was composed of Adams, Scioto, Ross, Franklin. Fairfield and Galia counties, to which Muskingum was added in 1804. In 1808 the state was divided into four circuits, the second being Adams, Highland, Scioto, Galia, Ross, Franklin and Delaware counties. In February, 1810, the counties forming the second circuit were Ross, Pickaway. Madison. Fayette, Highland, Clermont, Adams. Scioto and Galia. The following year the circuit was again changed and comprised the counties of Pickaway. Franklin, Madison, Fayette. Highland, Clermont. Adams, Scioto, Galia and Ross. On the 27th of February. 1816, the state was divided into six circuits and this county became a part of the sixth, to wit, Clermont, Clinton, Greene. Champaign, Delaware, Franklin. Madison and Fayette. In January, 1818, the seventh circult was created, leaving the following counties com- prising the sixth, viz: Franklin, Delaware, Madison, Clark, Champaign, Logan, and Fayette. Upon the erection of Union county in 1820, the sixth circuit contained Dela- ware, Franklin, Fairfield. Perry, Pickaway, Madison and Union. Thus it remained for four years, when another change occurred, and the following counties composed the sixth circuit: Madison, Fayette, Ross, Pickaway, Hocking. Fairfield and Franklin. In

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January, 1834, the state was divided into twelve circuits, this county forming a part of the twelfth, viz: Clark, Madison, Franklin, Delaware, Union, Logan, Harding and Champaign, and thus it remained until 1851 when the new constitution was adopted.

JUDICIARY SINCE 1851.

The constitution of 1851 provided for the reorganization of the judiciary, to consist of the supreme court, district courts, courts of common pleas, probate courts, justices of. the peace and such other courts inferior to the supreme court as the Legislature may from time to time establish.

SUPREME COURT.

This tribunal consisted of five judges, to be chosen by the electors of the state at large and whose official term was five years. Its sessions were held in Columbus and its original jurisdiction was limited to quo warranto, mandamus, habeas corpus, pro cendendo and such appellate jurisdiction as provided by law, extending only. to the judg- ments and decrees of courts created and organized in pursuance of the constitutional provisions. It had power when in session to issue writs of error and certiorari . in criminal cases and super cedeas in any case, and all other writs which may be neces- sary to enforce the due administration of justice throughout the state. It had also power to review its own decisions.

COURT OF COMMON PLEAS.

The new constitution provided for the division of the state into judicial districts, and each district into subdivisions; in each sub-division, one common pleas judge, who must be a resident of said subdivision, was to be chosen by the qualified electors therein, but the Legislature could increase the number of judges whenever such becomes neces- gary. The state was divided into nine judicial districts. The counties of Adams, Brown and Clermont formed the first subdivision ; Highland, Ross and Fayette, the second, and Pickaway, Franklin and Madison, the third subdivision of the fifth judicial district. On the 29th of March, 1875, a law was passed cutting the third subdivision in two and thus creating an extra subdivision of the fifth judicial district; but the act was subse- quently declared unconstitutional by the supreme court, although the judge elected under said act was allowed to serve his full term. In May, 1878, an act was passed redistricting the state into five judicial districts, but the same decision of the supreme court applied to this act and it never took effect. The constitution confers no jurisdic- tion whatever upon the court of common pleas, in either criminal or civil cases, but it is made capable of receiving jurisdiction in all such cases, yet can exercise none until conferred by law. It has original jurisdiction in all civil cases, both at law and in equity, where the sum of matter in dispute exceeds the jurisdiction of the justices of the peace. and appellate jurisdiction from the decision of county commissioners, justices of the peace and other inferior courts of the proper county in all civil cases; and also of all crimes and offenses, except in cases of minor offenses, the exclusive jurisdiction of which is invested 'in the justices of the peace, or that may be invested in courts inferior to the common pleas. It also has jurisdiction in cases of divorce and alimony. Three terms of the court of common pleas are usually held in each county annually.,

ASSOCIATE JUDGES. .

. Under the territorial government in 1788, the office of associate judge was estab- lished. At that time a law was passed by which not less than three nor more than five justices were to be appointed -by. the governor in each county, and known as the county court of common pleas. The law, as amended in 1790, made the number not less than three nor more than seven, and these Judges transacted the minor law business of the

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county. By the Constitution of 1802 it was provided that not more than three nor less than two associate judges should be appointed in each county, and they must be residents thereof, should be elected by joint ballot of the General Assembly, fixing their official term at seven years. In 1810, the number of associate judges in each county was permanently fixed at three, who, together with the presiding judge of the circuit, constituted the court of common pleas. The associates also had power to hold special sessions, try cases and transact the legal business of the county in the absence of the presiding judge. Under the Constitution of 1851, the judiciary was re organized, the office of associate judge abolished, and it was never again established.

The following is a list of those who filled the office of associate judge in this county from the time of the erection of Madison county, in 1810, until the adoption of the new constitution of 1851 : 1810, Isaac Miner, Samuel Baskerville, David Mitchell (Isaac Miner resigned and was succeeded by John Arbuckle) ; 1811-16, John Arbuckle, Samuel Baskerville, David Mitchell ; 1817-19, Samuel Baskerville, David Mitchell, James Curry (James Curry was elected representative and resigned) ; March, 1820, the associate judges were Samuel Baskerville, Isaac Howsman, Thomas Gwynne, the two latter being only temporary, and, in November, Isaac Howsman was re-appointed, while William Lewis and Samuel Culbertson succeeded Baskerville and Gwynne; in the following year, Will- iam Lewis was elected to the Legislature, and was succeeded by John Arbuckle as judge; 1821-23. Isaac Howsman, Samuel Culbertson, John Arbuckle; 1824-35, Isaac Howsman, George Linson, John Arbuckle; 1836-37, Isaac Howsman, George Linson, Nathan Bond; 1838-39, Isaac Howsman, Nathan Bond. William Blaine; 1840, Isaac Howsman, William Blaine. Isaac Jones; May, 1841, William Blaine, Isaac Jones, Thomas Jones; October, 1841, Isaac Jones, Thomas Jones, James Rayburn; 1842, Isaac Jones, Thomas Jones, Jacob Garrard; March, 1843, Thomas Jones. Jacob Garrard, James Rayburn; May, 1843- 44, Thomas Jones, Jacob Garrard, William T. Rowe; 1845-49, Thomas Jones, William T. Rowe, Patrick McLene; January, 1850. Thomas Jones, Patrick McLene, John Rouse; April, 1850-51, Thomas Jones, Edward Fitzgerald, John W. Simpkins. The latter three men were the last to sit on the associate judges' bench in this county. Isaac Howsman served the longest term of years, with Isaac Jones and Samuel Baskerville tied for second honors. Howsman served twenty consecutive years. while Jones and Baskerville served ten years each.

DISTRICT COURTS.

The district courts were composed of the judges of the court of common pleas of their respective districts and one of the supreme judges, any three of whom was a quorum. For the purposes of the district courts, the nine judicial districts were divided into circuits. Its sessions were held once a year in each county, but the judges had power to appoint special terms for good cause. This court had original jurisdiction with the supreme court and appellate jurisdiction from the court of common pleas of all cases in equity in which the parties had not the right to demand a trial by jury : the district courts had power in certain cases to allow injunctions and to appoint receivers and also to review their own decisions.

JUSTICES OF THE PEACE.

The jurisdiction of justices of the peace in civil cases, with a few exceptions. is limited to the townships in which they reside: they have, however, authority co-ex- tensive with their respective counties. among other things. to administer oaths. to take acknowledgment of instruments of writing, to solemnize marriage. to issue subpoenas for witnesses in matters pending before them. to try actions for forcible entry and detention of real property, to issue attachments, and proceed against the effects and goods of debtors in certain cases. and to act in the absence of the probate judge in the

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trial of contested elections of justices of the peace. Under certain restrictions, justices of the peace shall have exclusive jurisdiction of any sum not exceeding one hundred dollars, and concurrent jurisdiction with the court of common pleas in any sum over one hundred dollars and not exceeding three hundred dollars. Justices are conservators of the peace and may issue warrants for the apprehension of any person accused of crime, and require the accused to enter into a recognizance with security, or, in default of bail. commit him to jail to answer before the proper court for the offense. Persons accused of offenses punishable by fine or imprisonment in the jail, brought before the magistrate on complaint of the injured party. and who pleads guilty, may be sentenced by the magistrate or be required to appear before the proper court for trial.

PIONEER COURTS OF MADISON COUNTY.

Pursuant to an act of the General Assembly, passed on the 16th of February, 1810, establishing the county of Madison, Isaac Miner, Samuel Baskerville and David Mitchell met at the house of Thomas Gwynne. on Deer creek, the temporary seat of justice of said county, April 6, 1810, and produced their commission from the governor of Ohio as associate judges of Madison county. The oath of office was administered to them by Jonathan Minshall, a justice of the peace of said county. whereupon the judges pro- ceeded to advertise the time and place for holding an election for the purpose of elect- ing the following county officers, viz: Sheriff. coroner and three county commissioners. Robert Hume was elected by the judges, clerk and recorder pro tem. This completed the business for which the court met. On the 17th of May, 1810, the associate judges opened court at the same place. Letters of administration were granted to Ziba Win- gett on the estate of Luther Wingett, deceased. Ziba Wingett executed a bond, together with Luther and Abijah Cary, as security in the penalty of seven hundred dollars, and court thereupon appointed said Cary and Thomas Gwynne appraisers of said estate. This was the first probate business executed in Madison county.

The first regular session of the court of common pleas was opened at the house of Thomas Gwynne, Monday, July 30, 1810; present, Hon. John Thompson, president, Isaac Miner and Samuel Baskerville, associates. The following grand jurors were empaneled : Elias Langham, foreman, Andrew Cypherd, Hugh Montgomery, Curtis Ballard, Charles Atchison, Paul Adler, Thomas Foster, Nicholas Moore, William Blaine, John McDonald, Nehemiah Gates, William Gibson, Andrew Shields, Phillip Lewis and John Arbuckle. The court then appointed Ralph Osborn as prosecuting attorney and Robert Hume as clerk for the constitutional term of seven years. On the following day the court met pursuant to adjournment, the president and three associates being present. Its first act was accepting and ordering to be recorded the will of John Blair, deceased, Samuel Blair and Samuel McNutt being the executors of the same. This was the first will ever admitted to record in Madison county. Elias Langham, having been appointed to examine applicants for the office of county surveyor, recommend Patrick McLene, whom the court appointed 'to the position. The first indictment at this session was against George Blair for assault and battery, who pleaded guilty and was fined one doliar and costs. Indictments were found against Phillip Cryder, John Graham and Nathan Frakes. and the causes continued. It is a well-authenticated tradition that the first grand jury held its session in a hazel thicket on what is now the Gwynne farm. about half way between the Gwynne house and the village of Lafayette. Ralph Osborn was allowed twenty-five dollars as compensation for his services as prosecuting attorney. and after some other business all cases on the docket were continued and court adjourned until the next November term. The next term of the court of common pleas began on November 19, 1910, with John Thompson, president. Samuel Baskerville and David Mitchell, associates. The grand jurors were. Jonathan Minshall. foreman, David Groves.

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John Timmons, John Simpkins, Daniel Wright, John Shields, John Blair, Charles Atchi- son, Paul Alder, Calvin Cary, Jr., Frederick Sager, William Ware, Patrick McLene, Jobn Turner and Elias Brock. The first case was against John Graham for retailing spirituous liquors without license. He was found guilty in two cases and fined five .dollars and costs in each case. The jury in the trial of Graham were, David Bradley, Abram Johnson, David Harris, Henry Robey, Jacob Johnson, Peter Paugh, William Jamison, William Chard. John Scott, John Beetley, Johr Wilson and Frederick Loyd, which is the first petit jury that appears on record. Phillip Cryder was arraigned at this session for assault and battery on John Sutherland, pleaded guilty, and was fined six dollars and costs.

One of the most noted cases during this early period was the trial of Tobias Bright for killing Nicholas Monbem, an Indian. The story goes that Bright, with one of his neighbors, both residents of Jefferson township, went up Little Darby on a hunting expedition, and, toward evening, called at the camp of two Indians at the noted camp- ing ground, near the "big mound," close to the junction of Spring Fork and Little Darby. After remaining a short time, they started for home, but, when a few rods' distant, Bright wheeled around and, without any provocation, shot one of the Indians dend. This treacherous act caused great indignation, both among the whites and Indians, and nearly led to more bloodshed, but during the summer of 1810 the excite- ment died away through the prompt arrest of the murderer. In connection with this act we find the following itein on record: "Ordered, that Peter Paugh be allowed the sum . of three dollars for making one pair of handcuffs and fetters for the use of the county to put on Tobias Bright." On the second day of this session, the case came to trial, Bright pleading "not guilty." The jury were Jacob Johnson, Abram Johnson, David Bradley, Andrew Shields, Charles Ewing, William Ross, John Graham, John MeNutt, Samuel Blair, James Barr, Isaac Williams and George Blair. It is not strange, considering the feeling against the Indians during the pioneer days, that Bright was acquitted. During this session John McNutt was fined six dollars and costs for an assault and battery on James Blair. For this and all future terms, it was ordered that Ralph Osborn be allowed thirty-three and one-third dollars for his services as prosecuting attorney during each term.

At the next term of the common pleas court, held at the same place and beginning March 18, 1811, with Hon. John Thompson, president, Samuel Baskerville, David Mitchell and John Arbuckle. associates. the following grand jurors were returned : Philip Lewis, foreman, Jacob Vandevender, Jonathan Minshall. William Frankabarger. William Jamison, John Phoebus, Enoch Thomas, Curtis Ballard, John Kelso, Daniel Taylor, Henry Shover, Michael Dickey, Abijah Cary, Charles Atchison and John Wilson. A number of indictments were found. the majority of which were for assault and battery. Nathan Frakes. John Murfin and Samuel McNutt were each fined six dollars and costs for this latter offense.

A special session of the associate judges was held on May 27. 1811, to try Usual Osborn, charged with "bantering one John Davis to fight a duel." Osborn pleaded "not guilty" and was acquitted.

On the 19th of August, 1811. the court of common pleas began its next session. with Hon. John Thompson, president, Samuel Baskerville, David Mitchell and John Arbuckle, associates. The grand jury were. Joshua Ewing. foreman. James Robinson. John Tay- lor. Jacob Vandevender, Peter Cutright. Nathan Lowe. John Mozier, Reason Francis, Levi H. Post. John Cowan. William Ware. Samuel Taggart. James Graham. Samuel Mitchell and Peter Paugh. The three latter jurors not appearing. the sheriff was ordered by the ourt to summon a talesman at once: thereupon Isaac Miner was returned. The first case tried at this session was the State vs. Samuel Blair. John McNutt and Samnel

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McNutt, "for riot or conspiracy" against Ellas Langham. They were found guilty and fined twenty-five dollars, fifteen dollars and six dollars, respectively, and bound over to keep the peace for one year. The names of the jury in this case were, Jonathan Alder, Frederick Lloyd. John Johnston, Jacob Coon, John Beetley, Hezekiah Bayliss, Garrison Waddle, Thomas Mullin. John Clarnoe, Richard King, Jesse Indicott and Leonard Alkire. Another jury during the session were as follows: Nicholas Moore, Andrew Shields, John Wilson, David Foster. John Blair, John Ross. William Jamison, Thomas Foster, James Marks. Charles Dickinson and Richard King. The case they tried was Isaac Williams vs. John Graham, for assault and battery, the latter being found guilty and fined ten dollars and costs. Simon Shover and William Kirkley served on a jury in this session, taking the places of Richard King and Jesse Indicott. all the balance of the jurors being the same as the first chosen in the session.

The first term of the court of common pleas held in London, the newly-laid-out county sent. was opened. November 18. 1811, by the Hon. John Thompson. president, Samuel Baskerville. David Mitchell and John Arbuckle, associates. The following were the grand jurors impaneled at this term: James Withrow. foreman, Curtis Ballard. Richard Brock. James Pringle. Philip Cryder. Calvin Cary, Jr .. John Kent, Daniel Brown, Peter Helphenstine. Samuel Timmons. John Shields, Charles Atchison and Philip Lewis. The petit jury were. Thomas Pattison, Robert Soward, Nicholas Moore. Dennis Lane, Joseph Powell. Christopher Ladd. William Hume, James Criswell, James Barr. John Blair, David Bradley and John Kelso.

We have now run through the two first years of the court of common plens, and the reader will notice that the majority of the cases tried were those in which muscular development took the leading part. The early settlers were in the habit of taking the law into their own hands. They were. as a rule, peaceable. yet ever ready to assert their personal prowess, or resent an insult. and woe betide the man who showed "the white feather." John Graham was considered the "best man" of his locality during the pioneer days of Madison county. and throughout these two first years of the county's careers we find his name figuring at every term of court in an assault and battery case. and in every instance he was found guilty as charged. Our object in giving the list of jurors for 1810-11 is to transmit to these pages the names of many worthy pioneers who have long since been lost sight of. some of whom were prominent in enforcing civil law at that early day. Doubtless. each had a record worthy of preservation, and while the history of many will be found elsewhere in this work, some there are of which nothing can be gleaned but their names to rescue them from oblivion. We have, how- ever, culled from the musty records of bygone days, "dimmed by the dust of the years rolled away." names and events which we believe can properly be given a modest place in the pages of history.

PERSONNEL. OF THE COURTS.

The Madison county bar has from its beginning numbered among its members able jurists, talented advocates and safe counselors. Here, many eminent lawyers from the surrounding counties have appeared and practiced in our courts.

It will not be inappropriate to recall the names of the judges of the court who sat in early days and dispensed justice with impartial hand. Material changes have been made since the first court was opened in Madison county, both in the organization of the court and in the general practice of attorneys; but as the different changes in the state judiciary has been given before, we will here confine ourselves to a record of presiding judges under the old constitution and those who have sat upon the bench in London since the adoption of the new.

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PRESIDENT JUDGES.

Hon. John Thompson comes first in the order of time. We have been unable to find anything further regarding the life of Judge Thompson than that he lived in Chillicothe, and occupied the bench in this county from 1810 to 1815, inclusive. Old settlers tell us that he was a small, compactly-built man. a' good judge and a well-read lawyer. In August, 1811, he adopted the following rules for the government of those practicing law in the courts of Madison county : First, attorneys and counselors shall never make a motion unless they ask the court if it would hear such, and shall always stand in the place appointed for them; second, they shall be orderly and treat each other with respect at the bar. make no noise or contradict any gentleman addressing the court or jury unless moving the court to interfere, and if the gentleman thus contradicted talk back. he shall suffer suspension at discretion of the court; third, no gentleman is to interfere with the papers of the court or clerk; fourth, counsel shall consult and agree on separate and distinct points of law and fact. otherwise only one on each side will be permitted to speak: fifth, only one counsel shall be admitted on each side to examine and cross-examine witnesses; sixth. in all causes one counsel, before the introduction of testimony, shall open the nature of the issue and the testimony to be offered. Similar rules were laid down by Judge Thompson for the guidance of the prosecuting attorney and other officers of the court. Judicial business in those early days was insignificant compared with the present. but with passing years it gradually increased and. the duties of the judge became more arduous.

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History of Madison County Ohio: Its People, Industries and Institutions, Part 55

Author: Chester E. Bryan Publication date: 1915 Publisher: Number of Pages: 1207

Author: Chester E. Bryan
Publication date: 1915
Publisher:
Number of Pages: 1207