History of Madison County Ohio: Its People, Industries and Institutions, Part 56

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

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Orris Parish was the next judge of the court of common plens. He was born in Union county. Connecticut, in 1782. and was educated in the common schools of that state. In his early life his father settled in western New York. where he attended the academy in Canandiagun. In 1811 or 1812 he emigrated to Ohio and settled in Franklin county. He was there during the war. and moved to Columbus in 1815, after the capitol was fixed there. He acquired some distinction as a practitioner, especially in jury cases, where his style of oratory was very effective. His services were conse- quently in large demand. and he had a large practice on the circuit, which in those times was traveled on horseback from court to court, even to distant counties, by the jolly lawyers of the olden time among whom he was noted. He was a very eccentric man, and many stories are related of him. His free translation to a jury of the legal phrase rectus in curia, which he gave as "Coming into court head and tail up," was long remembered by the fun-loving generation of that day,' and has descended as a bon mot in the profession. In 1816 he was elected president judge of the court of common pleas in this district. In 1819 charges were preferred against him. calling for an investigation of official conduct. A committee reported in his favor and afterward he resigned and returned to the practice of the law. in which he continued with great success.

Upon the resignation of Judge Parish, Frederick Grimke was appointed to fill the vacancy until the next session of the General Assembly and served throughout 1819, but as Judge Grimke was regularly elected at a later date we will make mention of him further on.

John A. McDowell. in 1820, was elected president judge for this judicial district and died in September, 1823. He was born in Kentucky in 1780, and at an early time came to Columbus and was prosecuting attorney of Franklin county and a member of the Legislature in 1819. He was a fine-looking, handsome man, of great talents and very popular. but his bright future was cut short by his early death.

His successor as judge of this district was Gustavus Swan, who was born at Petersboro. New Hampshire. in 1787. His means of early education were limited, but. (25)

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by his own perseverance and exertion, he obtained an excellent classical, mathematical and scientific course of instruction at Amherst College, New Hampshire. He studied law with Samuel Bell, a celebrated lawyer at Concord, New Hampshire, who was after- ward governor of the state. He first came to Marietta, Ohio, in 1810, remained a year there and was admitted to the bar of Ohio. In 1811 he came to Franklinton, then the county seat of Franklin county, and began the practice of law. His ability and indus- try soon gave him high professional reputation, and he was employed in all the import- ant cases which brought him in contact with many distinguished and able members of the bar who rode the circuit and practiced in the courts held at the capital of the state. Judge Swan, in these legal contests involving nice questions, soon took rank among the first at the bar. He was a diligent student, a fine speaker, having great power with a jury, and his practice extended through Fayette. Madison. Union, Dela- ware, Pickaway and Fairfield counties, where his name is still associated in the tradi- tions of the people with the pioneer lawyers of his day. He was the first representative elected by Franklin county to the Legislature as soon as it was entitled to elect one. He was constantly engaged in the practice of his profession until 1823, when he was appointed by Governor Morrow judge of the court of common pleas in place of McDow- ell and was elected by the Legislature for the term of seven years. In pursuance of a resolution of the General Assembly in 1825, he compiled the land laws of Ohio, includ- ing the state laws to 1815-1816, an invaluable publication to the practitioner. In 1830 he resumed the practice of law in Columbus. He continued from that date in active practice until 1843. doing a lucrative and extensive business and had acquired a large fortune. On the organization of the State Bank of Ohio and its branches in 1845. Judge Swan was elected one of its directors and afterwards president of the State Bank of Ohio, he being considered one of the leading financiers of the state; he then retired from the practice of law. The last time he appeared as counsel in court was in defense of William Clark, a convict in the penitentiary, tried for the murder of Cyrus Sell. one of the guards, by a single blow with a cooper's ax. He was tried at the December term, 1843, of the supreme court of Franklin county, reported in the eighth volume of Ohio Reports, and convicted of murder in the first degree, being hung on February 9. 1844. with a female colored convict. Esther, who had killed another prisoner. The defense was insanity and there was an array of eminent counsel on both sides. Judge N. H. Swayne conducted the prosecution, examining the medical experts for the defense. Judge Swan. who had been generally successful in criminal cases, put forth his full power and confidently remarked that he had never had a client hung in his life, and if Clark was, he would never put his foot in the court house again as a lawyer: he never did, unless on his own business. He died on Novmeber 5, 1859.

Frederick Grimke was elected judge of the common pleas court for this judicial district at the session of 1829-30. He came from the Southern states to Chillicothe early in the last century, and was a contemporary of Ewing, Beecher, Swan and other distinguished lawyers who rode the circuit during those pioneer days. He sat upon the bench but three years of his second term. when he was promoted to judge of the supreme court and was noted for his legal ability and high-toned sense of justice. Like many able men, he was very eccentric on one point-his dislike for women-which he carried to extremes. It is said of him that upon one occasion. while out horseback riding near Chillicothe. he was met by a bevy of young ladies, who. knowing his aver- sion to their sex, mischievously determined to make him speak to them. They joined hands across the road. which was flanked on one side by a fence, while upon the other the bank led down a steep descent toward the Sciotio river. Seeing the trap set for him and divining their intention, he turned his horse's hend and, with the contemptnous

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remark, "What an infernal set of fools," rode in the opposite direction. Judge Grimke was of medium size, possessing a slender figure, and lived and died a bachelor. Joseph R. Swan was next to don the judicial ermine in this district. · He was born in Oneida county, New York, in 1802. His parents were Quakers; the father was a merchant, thrifty, upright and in comfortable circumstances, and he and his family were highly respected in the community. He received an academic education at Aurora, New York, where he commenced the study of law. In 1824 it was decided that he should go to Columbus, Ohio, to enter the office of his uncle, Judge Gustavus Swan, then for many years one of the ablest lawyers in Ohio. With a companion, he drove a team of horses with a spring wagon from Aurora to Columbus. He was soon thereafter admitted to the bar. It is deemed of interest to print herewith an extract from a letter written by Judge Swan in 1883, the year before his death, to his cousin, Edward Brayton, in which he gives a sketch of his school days. He says: "As one grows old (at least I do), one recalls more frequently and vividly the past; the fishing for minnows and trout with your brother; the school house, with its seats made of oak plank or saw logs, the bark adhering to the underside, and the auger holes into which the legs were driven showing on the top; the enormous fireplace in the school room; the air loaded with a smell of bread and butter, brought in baskets made by the Indians, the school house too far from the houses of the children to go home for their dinner. Then the cake, filled with coriander seed, which Messrs, and Ann Floyd gave us when we stopped on our way to school at General Floyd's. The Barlow knife, the gilt-covered primers of the 'House that Jack Built,' and 'Blue Beard' and the red Morocco caps for children-these gave full gratification. Then a great event was a keg of oysters brought by slaves from Albany ; sugar plums, the outside, sugar and beautifully colored, and the inside, sweetened flour and whiting. Barefoot, of course, in summer, but the shoemaker went from house to house in the fall and made our shoes. How pleasant it was to watch the work on our own. shoes and anticipate the time when they would be finished, and then put the precious things under our pillow the first night. Pop guns of alder, whistles of butternut, jew's harps and kites filled the place and were probably quite as enjoyable as the thousand kind of toys of the present. There were eight children in my father's family .then, and my mother made their stockings and winter coats and pants from wool to completion-pretty well for a merchant's wife." Judge Swan was prosecuting attorney of Franklin county from 1830 to 1834. In 1894 he was elected by the Legislature as common pleas judge for the district composed of -the counties of Franklin, Madison, Clark, Champaign, Logan, Union and Delaware, and was re-elected in 1841, and by his satisfactory and impartial discharge of the duties of the office obtained a reputation of being one of the best judges in Ohio.

In 1836 Judge Swan published the treatise entitled. "A Treatise on the Law Relat- ing to the Powers and Duties of Justices of the Peace." which has gone through nine- teen editions. The circulation of this book has been immense among the successive generations of justices of the peace in every township of the state, lawyers, county officers, judges and business men, in other states as well as our own. and has been: a model for similar books elsewhere. He published several other text books besides his well-known Treatise.

On February 23. 1850. the General Assembly passed an act calling a convention to revise or amend the constitution of Ohio. Judge Swan was elected a delegate from the county of Franklin. and was a very able and influential member of that convention. He was elected judge of the supreme court in 1854. and became chief justice of that court and resigned in November. 1859. None of his opinions rendered in that court have ever been reversed. A remarkable case was tried in the supreme court early in 1859 while he was supreme judge. In that year. a party of men, among whom were

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Langston and Bushnell, by force rescued a fugitive slave near Wellington. Lorain county, in defiance of the fugitive slave law of the United States. The "rescuers" were arrested by the United States marshal, the prisoners were taken to Cleveland for trial. and tried before a jury and convicted. Bushnell was sentenced to imprisonment in jail for sixty days and Langston for twenty. Salmon P. Chase was at that time governor. At his instance, application was made to the supreme court of the state of Ohio for a writ of habeas corpus, on the ground that Bushnell and Langston were held in custody in the jail of Cuyahoga county, unlawfully deprived of their liberty.

There was most intense public interest felt in the question whether the supreme court would sustain the writ of habeas corpus or take the prisoners out of the jail of Cuyahoga county. To have attempted to release them would have been but the initiative in secession and rebellion. The whole influence of the governor and his administration was thrown in favor of the release of the prisoners and defiance of federal authority. If the prisoners were set free by order of the supreme court. the governor had determined to support its mandate and resist the re-arrest of the parties with military force. The governor had lately reorganized the militia and appointed a staff entirely subservient to his will. He gave directions to the officers of the militia to be ready for service.

The members of the supreme court of the state were in politics Republican. It was a great trial. Noah H. Swayne, afterward one of the justices of the supreme court of the United States. appeared in behalf of the United States; Christopher P. Wolcott, attorney-general of the state, on behalf of the state of Ohio, appeared at the instance of the governor and made the closing argument, insisting that the relators should be discharged. The governor, accompanied his attorney-general before the court to give the weight of his appearance and official position to the argument made on behalf of the prisoners. The bench stood two for the prisoners, Judges Sutliff and Brinkerhoff, and two against releasing the prisoners. Judges Scott and Peck, leaving the deciding vote in Chief Justice Swan. The American lad. who was taught the rudiments of his learning sitting on "the outside plank of a saw-log, the bark adhering to the under- side," now an American man, held the integrity and destinies of the nation in the hollow of his hand. Had he sided against the federal government, Ohio, not South Carolina, would have been the first state to have seceded from the Union: the North. not the South. would have had to bear the onus of first attempting to destroy the federal compact. He neither faltered, hesitated nor delayed. His decision was lengthy and closed as follows: "As a citizen, I would not deliberately violate the constitution or the law by interference with fugitives from service. But if a weary, frightened slave should appeal to me to protect him from his pursuers. it is possible I might momentarily forget my allegiance to the law and constitution and give him a covert from those who were upon his track. There are, no doubt, many slaveholders who would thus follow the impulses of human sympathy. And if I did it, and was prose- cuted. condenmed and imprisoned, and brought by my counsel before this tribunal on a habeas corpus, and were permitted to pronounce judgment on my own case, I trust I should have the moral courage to say. before God and the country. as I am now com- pelled to say, under the solemn duties of a judge. bound by my official oath to sustain the supremacy of the constitution and the law, the prisoners must be remanded."

This decision defeated his re-nomination for supreme judge. He was afterwards tendered appointment to fill vacancies upon the supreme court of Ohio three times. once by Governor Brough and twice by Governor Hayes. He also declined a nomination afterwards for supreme judge by a Republican convention. It is singular that in the lives of Salmon P. Chase. written by able men, no mention of this incident in Chase's career is made. There is a tradition that in 1862, when Abraham Lincoln wanted to

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dll a vacancy on the supreme bench of the United States, he intended to send to the Senate the name of Swan, instead of Swayne, but the mistake was not discovered until after the confirmation by the Senate, and as Judge Swayne was a very able lawyer nothing was publicly said about it. It was known that President Lincoln was a great admirer of Judge Swan and approved his decision in the case referred to. We have been a little lengthy in regard to Judge Swan, because of his eminent ability and the peculiar incidents connected with his judicial career.

The last to sit upon the bench under the old constitution was Judge James L. . Torbert, who was born in Bucks county, Pennsylvania, in 1796. He was educated at the University of Princeton. He came to Ohio in 1818 and was engaged in educational duties in an academy at Lebanon, Ohio, among his pupils being the distinguished astronomer, Gen. O. M. Mitchell, the founder of the Cincinnati Observatory. Torbert settled in Springfield, Ohio, in 1824, and being a fine linguist, devoted himself, during the first few years there, to giving instruction in the languages. Being admitted to the bar in the meantime, he became associated with Gen. Samson Mason in the practice of law. He was elected in 1846 to succeed Joseph R. Swan as common pleas judge in the district of which Madison was a part, and filled that office until the adoption of the new constitution, holding his last term of court in London in November, 1851. His death occurred very suddenly on the 15th day of May, 1850, on board the steamboat "Tecumseh" on the Mississippi.

JUDGES SINCE 1851.

Article XI. section 12, of the constitution of 1851, apportioned the state into nine judicial districts. Each district was divided into three subdivisions, the counties of Pickaway, Franklin and Madison constituting the third subdivision of the fifth judicial district. At the April term of the court of common pleas for 1852 the Hon. James L. Bates, who had been elected the previous fall, produced his commission, dated January 16th, as judge of the third subdivision of the fifth judicial district. He was born in western New York in 1815, and was educated and a graduate of Geneva College, New York. He came to Columbus, Ohio, in 1895, read law with Orris Parish and N. H. Swayne, and was admitted to the bar in 1836. He commenced practice and formed a partnership with N. H. Swayne in 1837, which continued until he was elected judge in 1851. He was re-elected in 1856 and 1861, the last time without opposition. Judge Rates was a safe and excellent judge, was a sturdy worker, and alone did the business of the three counties satisfactorily, without allowing the docket to accumulate with undisposed business. After he retired from the bench he became active as a business man in the city of Columbus. He was a member of the board of education of that city and a director of the Ohio penitentiary. He was largely engaged in the settlement of large estates. He died in the city of Columbus in 1890.

The second judge under the new constitution was the Hon. John L. Green, a native of Virginia, who located in Circleville about 1830, where he won and retained a large and successful practice. He was elected to the state Senate from Pickaway and Franklin counties, serving in four General Assemblies, from 1837 to 1841. He was a member of the constitutional convention from Pickaway county which framed the con- stitution of 1851. He subsequently removed from Circleville to Chillicothe and was there elected judge of the court of common pleas for that subdivision. Thence he removed to Columbus and, in October, 1866, was elected judge of this subdivision to succeed Judge Bates. He was re-elected in 1871 and again in 1876, his term expiring in February, 1882. He also was a very learned lawyer and a splendid judge.

During the legislative session of 1867-68 an act was passed creating an extra judg- ship for the third subdivision, and in April, 1868, Joseph Olds, of Circleville, was elected

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to fill the position. He was a native of Pickaway county and a graduate of Yale Col- lege. After serving his full term on the bench, he returned to the practice of his pro- fession and became a member of the firm of Harrison, Olds & Marsh, of Columbus, becoming one of the leading attorneys of the city.

PROBATE COURT.

The office of probate judge was created by section 7, article IV, of the constitution of 1851. The probate judge has jurisdiction in probate and testamentary matters; the appointment of administrators and guardians; the settlement of accounts of adminis- trators, guardians and trustees; the issuing of marriage licenses; the appropriation of private property for public use; the trial of certain criminal cases, and in many other matters provided by law.

Nathan Bond was the first person to be elected probate judge of Madison county, and held the office from February, 1852, to February, 1858, two terms. We have searched diligently for information of Judge Bond's life, but regret that we are unable to get it.

Benjamin Franklin Clark was the second person elected to that office. He was born in Deer Creek township, in this county, December 23, 1829, in the neighborhood of which was known as "Limerick," now a part of the Gynne farm, where the first term of court was held in this county. He attended the common schools and when seventeen years of age began to learn the trade of carriage trimmer and harnessmaker at Urbana and Columbus; returning to London, he worked at his trade. He was appointed postmaster for London by President Pierce and held that office until Febru- ary, 1858, when he took his seat as probate judge, having been elected the fall before. He held the office two terms. He studied law in the meantime and was admitted to the bar in 1864. He practiced law here until 1870, when he became teller of the Madison National Bank, and ten years later became cashier of the bank. He died in 1898. Judge Clark was a worthy man and useful citizen and most highly respected. He held many minor positions of trust and responsibility.

John Henry Kennedy was the third probate judge. He was born in Morgantown. West Virginia, in 1800. When about twenty-two years old he came to Ohio and settled in Deer Creek township, in this county, but after a very short residence there he moved to Somerford township, where he resided until 1863, when he came to London to fill the office of probate judge. He held the office from February 9, 1864, to February 9, 1876. He died in London, December 16, 1879. Judge Kennedy was a most friendly and kind- hearted man. a fine conversationalist and a good story teller. It was said of him that he would willingly. if kindly approached, issue a writ of habeas corpus releasing a person from confinement in Hades.

Oliver Perry Crabb was the next probate judge. He was born in Jefferson town- ship, in this county, June 26, 1826. He attended the common schools and an academy at West Jefferson. In 1844 he went West to "grow up with the country," locating in Muskatine, Iowa. He remained there about two years and then returned to West Jefferson and was employed as clerk in a store there. He was township clerk, corpora- tion treasurer and filled other responsible and useful positions. In 1854 he was appointed deputy auditor and served six months; in 1856 was elected county auditor and held that office' three terms of two years each. In 1875 Mr. Crabb was elected probate judge of this county and re-elected for six successive terms, his last term expiring February 9, 1894. Judge Crabb, soon after his retirement from the bench, suffered from failing eyesight and gradually became blind. He resides at London, being in his ninetieth year. Judge Crabb was the last person, so far, to hold that office who was not a lawyer. He had a good mind and sound judgment and was studious and careful. While on the

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bench he acquired a good knowledge of the law, and discharged the duties of the office with ability.

Jacob Leonard Haner was born in Plain City, Madison county, Ohio, September 1, 1866. He attended and graduated from the Plain City high school in the class of 1886. He then entered the Ohio State University and was a student there for three years. He then attended the University of Michigan and graduated from the law department there in 1891. He was admitted to the bar in Ohio the same year, and began the practice of law at Plain City. In 1893 he was elected probate judge, and re-elected in 1898, holding the office until November 1. 1899, when he resigned for the reason that he was then a candidate for representative and could not be voted for legally, being judge. He was elected that year representative and re-elected in 1901. At the expira- tion of his last term as representative, he located in Oklahoma, where he is now practicing his profession.

Corwin Locke was born in Somerford township in 1860. Having attended the common schools until he was about eighteen, he entered the Ohio Wesleyan University, where he was a student for two years. He then attended the law school at DePauw University two years. He was admitted to the bar by the supreme court of Ohio in 1888. That same year he was elected prosecuting attorney and was re-elected in 1891. He was appointed by Governor Bushnell probate judge to fill a vacancy caused by the resignation of Judge Haner, November 1, 1899, which office he held until February 9, 1900. He. then entered the law office of Huggins & Huggins, in Columbus, with a view of becoming a member of that firm. He died in January, 1903. On the death of Corwin Locke the community lost a good citizen and the bar a useful. member. He was scholarly in equipment. His temperament was not especially buoyant, but his conduct was marked by a sincere courtesy.

John M. Boyer was born in Delaware county, Ohio, in 1860. His father resided in ten different counties of the state until John was ten years old. His opportunities for an early education were limited. He studied chemistry and pharmacy and was clerk. in a drug store at Plain City for some time. He came to London in 1880 and read law with Hon. H. W. Smith. He also owned a drug store in London for some time. In 1892 he was appointed by President Harrison postmaster at London and held the office four years. He was admitted to the bar in 1994 and began the practice of law with S. P. Wilson. In 1899 he was elected probate judge of this county and was re-elected in 1902. holding the office until February. 1906. He was soon afterward appointed claim agent in the law department of the Ohio Electric Railway Company. which posi- tion he now holds. and resides in the city of Columbus.

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History of Madison County Ohio: Its People, Industries and Institutions, Part 56

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

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