History of Madison County, Ohio : its people, industries and institution with biographical sketches of representative citizens and genealogical records of many of the old families, Part 55

Author: Bryan, Chester Edwin
Publication date: 1915
Publisher: Indianapolis, Ind. : Bowen
Number of Pages: 1150

USA > Ohio > Madison County > History of Madison County, Ohio : its people, industries and institution with biographical sketches of representative citizens and genealogical records of many of the old families > Part 55

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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, John Turner aud 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, John 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 Monhem, 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 dead. 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 item ou 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 McNutt, 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. Jolm 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, lohn MeNntt and Samuel

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MeNutt. "for riot or conspiracy" against Elias Langham. They were found guilty and tined 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, JJohn Clarnoe, Richard King, Jesse Indicott and Leonard Alkire. Another jury during the session were as follows: Nicholas Moore, Andrew Shields, lohn 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 iu 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 connty seat. was opened. November 18, 1811. by the Hon. John Thompson. president, Samnel Baskerville. David Mitchell and Jolm 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, Ir .. Jolm Kent. Daniel Brown. Poter 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 pleas, 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." Jolm 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 connselors. 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 of 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.

Orris Parish was the next judge of the court of common pleas. 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 Canandiagna. 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- (mently 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 mau, and many stories are related of him. His free translation to a jury of the legal phrase rectus in curie, 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.

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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 Samnel 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 comty 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 MeDow- 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, inchd- 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 hierative 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 conviet. 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. Indge 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. Hle 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 be 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 then. 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 head 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, lie 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 1834 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 cirenlation 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 enstody 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 conrt 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 Sufliff 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. Ilad 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. Ilis decision was lengthy and closed as follows: "As a citizen. I would not deliberately violate the constitution of 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 } 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- ented. 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 Haves. 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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ill 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 achmirer 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.

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History of Madison County, Ohio : its people, industries and institution with biographical sketches of representative citizens and genealogical records of many of the old families, Part 55

Author: Bryan, Chester Edwin Publication date: 1915 Publisher: Indianapolis, Ind. : Bowen Number of Pages: 1150

Author: Bryan, Chester Edwin
Publication date: 1915
Publisher: Indianapolis, Ind. : Bowen
Number of Pages: 1150