USA > Ohio > History of Ohio; the rise and progress of an American state, Volume Five > Part 10
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CALVIN PEASE
Born in Suffield, Connecticut, September 9, 1776; admitted to the Connecticut bar in 1798 and to the Ohio Territorial bar at Marietta in 1800; president Judge of Common Pleas for the third circuit, 1803-10; Supreme Judge, 1816-30; died in Warren, Ohio, September 17, 1839.
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n xnetained. When court open o the affer So, Tu . Horatio J. Cox gave an opini against the motion co quash. Judge Wilkin Reed the dil the Wis Judge Searle then said, "The Coun Wang aviled in opinion, the motion is overruled Mesring En, Judge Jacob P. Springer added, "I agro with the associate-judges." Judge Searle docket the decision, and soon after declared the court adjourn. sine die; and the old court, with the old Constitutio www dend. The question involved survived. Jud Richard Stillwell, during his first term under the new Constitution, derided as the associates had done, but the Supreme Court, three judges concurring, agre with Judge Seath and reversed Judge Stillwell.
The list of auneiate-judges contains the names many men well known for their experience, good sena good judgment and integrity. For forty-nine year they administered the laws regulating the administr tion of entates, partition of lands, etc., sensibly an justly.
The decisions of Judges Pease, Tod and Huntington as already stated, made our State Constitution safe from injury at the will of bare legislative majorities. The unfortunate blunder made by the refusal of the Consti- tutional Convention to vest in the Governor a qualified veto power, compelled the courts to determine countless questionings about legislative action. The number
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of statutes and parts of statutes, denied validity by Ohio courts within the century, may be computed by the hundred. As no court could interfere to protect the citizen until action duly brought and submitted, the people of Ohio have been wronged by so-called statutes. It became a well known and recognized usage for judiciary committees in each House to report "without recommendation" bills whose uncon- stitutionality was evident, and for the House to pass them, leaving the courts when duly invoked to prevent further injury to the people.
Another question of vast importance was presented to the Ohio judiciary. "By what tribunal, if any, could final decisions be made between state and national authority?"
In the Constitutional Convention of 1787, a Virginia member offered a resolution reading:
"A national judiciary ought to be established with jurisdiction to hear and determine cases in which foreigners and citizens, a citizen of one State and a citizen of another State, may be interested; cases which respect the collection of the national revenue, impeach- ments of national officers, and questions which involve the national peace and harmony."
The Convention adopted it by a unanimous vote, and so worded Article III. of the National Constitution as to vest "the judicial power of the United States in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish"; and to provide that "The judicial power shall extend to all cases, in law and equity arising under the Consti- tution, the laws of the United States, and treaties made,
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or which shall be made under their authority; to all cases of admiralty and maritime jurisdiction; to con- troversies to which the United States shall be a party; to controversies between two or more states; between a State and citizens of another State; between citizens of different states; between citizens of the same State, claiming lands under grant of different states, and be- tween a State, or the citizens thereof and foreign states, citizens, or subjects; in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such excep- tions and under such regulations as the Congress shall make."
The Eleventh amendment to the National Constitu- tion provided :
"The judiciary power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted, against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State."
By express provision the National Constitution extended the jurisdiction of the national courts to all cases and controversies above enumerated, except suits brought against any State by citizens of another State, or by citizens or subjects of any foreign State; and also by express provision authorized Congress to regulate the "Appellate jurisdiction of the Supreme Court."
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Unless an act of Congress should provide for bring- ing the final judgment of a State Court, rendered in any of said enumerated cases, or controversies, into the national Supreme Court for review, much of Article III. would be made of no effect.
Therefore, Congress made what is now Section 709, Revised Statutes of the United States, a law "of the land."
A final judgment, or decree, in any suit in the highest court of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitu- tion, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty, or statute of, or commis- sion held or authority exercised under, the United States and the decision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such Constitution, treaty, statute, commis- sion or authority, may be reexamined, and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed, in a court of the United States; and the proceeding upon the reversal shall be the same, except that the Supreme Court may, at their discretion, proceed to a final decision of the case and award execution, or remand
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the same to the court from which it was removed. The Supreme Court may reaffirm, reverse, modify or affirm the judgment or decree of such State court, and may, at their discretion, award execution or remand the same to the court from which it was removed by the writ.
In Woodward vs. Dartmouth College, 4 Wheaton R. 518, the Supreme Court of the nation held that "the charter of a private corporation is in nature of a contract between the State and the corporation, and no material change can be made in such act of incor- poration, unless with the assent of the corporation, unless said power of change was reserved." In Ohio vs. Commercial Bank of Cincinnati, 7 Ohio (Hammond) Part I, page 125, Ohio Supreme Court, by the voices of Chief Justice Peter Hitchcock and Justices Ebenezer Lane and John C. Wright (Judge Joshua Collett dis- senting), followed the ruling of the United States Supreme Court, and adjudged that the State could not collect from the bank a larger tax than its charter reserved. This was "Ohio Doctrine" until Bank v. Knoup, Treasurer, I Ohio State Rep. 603, decided in 1853 by Judge John A. Corwin, Chief Justice William B. Caldwell, and Judges Thomas W. Bartley, Allen G. Thurman, and Rufus P. Ranney concurring, over- ruled the old court. The last case was taken to the Supreme Court of the United States, which, in 1856, by the voices of Chief Justice Roger B. Taney and Jus- tices John McLean, James M. Wayne, Samuel Nelson, Robert C. Grier, and Benjamin R. Curtis (Justices John Catron, Peter V. Daniel, and John A. Campbell dissenting), reversed the Ohio Court of 1853 and approved the old case in 7 Ohio Rep.
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Pursuant to the act of Congress the national Supreme Court issued to the Ohio Supreme Court a mandate reversing the judgment of 1853 and ordering that court to enter and enforce said decree of reversal.
A motion to enter said mandate was submitted at December term, 1856. Judge Joseph R. Swan, having been of counsel for the bank in the case prior to his election as judge, did not sit. Judge Josiah Scott, with whom concurred Judges Jacob Brinkerhoff and Ozias Bowen, held:
"The questions arising in this case, and the opinion of this court upon them, were such as to bring it within the cognizance and jurisdiction of the Supreme Court of the United States, unless we assume that that tri- bunal has no jurisdiction to review any decisions what- ever of the State Courts, or questions relating to the conflict of a State law with the Constitution of the United States.
"The theory upon which such a position must rest a majority of this court is not prepared to adopt. We do not mean to say that in case of clear usurpation by the Supreme Court of the United States, of an authority and jurisdiction wholly unwarranted by the Federal Constitution, it would not be competent for this court, as a court of last resort in a sovereign state, to decline obedience to a mandate issued in the exercise of such usurped jurisdiction. But no such case is before us. On the contrary, the jurisdiction here claimed has been constantly exercised by the Supreme Court of the United States ever since the organization of the general govern- ment, with the general acquiescence of the State courts.
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In conformity, then, with what has heretofore been the uniform practice in this State, we direct the mandate to be entered."
Judge Thomas W. Bartley, on pages 343 and 344 of 6th Ohio State Reports, worded the syllabi of his dis- senting opinion thus:
"The provision of the Constitution of the United States expressly conferring appellate jurisdiction on the Supreme Court does not authorize the exercise of appellate power to that tribunal over the State Courts, but extends simply to appeal from the subordinate Federal courts.
"There is no provision in the Constitution from which a supervising power in the Supreme Court of the United States over the State courts can be derived by way of incident or implication.
"The Supreme Court of the United States has not been constituted the exclusive tribunal of last resort, to determine all controversies in relation to conflicts of authority between the Federal Government and the several states of the Union.
"The State courts and the Federal courts are coordi- nate tribunals, having concurrent jurisdiction in numer- ous cases, but neither having a supervising power over the other; and where the jurisdiction is concurrent, the decision of that court, or rather of the courts of that judicial system, in which jurisdiction first attaches, is final and conclusive as to the parties."
Judge Bartley filled Volume 6 of Ohio State Reports from page 343 to page 448 in an attempt to support his said syllabi.
JOSEPH ROCKWELL SWAN
Born in Oneida county, New York, December 28, 1802; admitted to the bar in Columbus, Ohio; Prosecuting Attor- ney of Franklin county, 1830-34; president Judge of the twelfth circuit, 1834-45; member of the second Ohio Constitutional-Convention; Judge of the State Supreme Court, 1855-60; notable legal author; died in Columbus, December 18, 1884.
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Tudge Bartley filled Volume 6 of Ohio State Reporte Dimo jagc 349 to page 448 in an attempt to support
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But he does not attempt to explain how the judicial power of the United States can be made to extend to and include all cases enumerated in Article III. of the national Constitution, unless its courts can draw to them and reexamine judgments and decrees of State courts that deny to citizens of the United States some right given or secured by that Constitution; or attempt to enforce some State enactment that is in violation of the Constitution.
Happily, the majority of the court maintained the true doctrine and held Ohio firmly within constitutional moorings. If the dissenting judge could have had his way, five years before South Carolina led the way into insane civil war, our State would have forbidden the enforcement within her limits of all United States laws and judgments not approved by a majority of our State Supreme Court.
Three years later-at Columbus in May, 1859-the Ohio Supreme Court, amid intense popular excitement, once more saved our State.
Paragraph 3 of Section 2 of Article IV. of the National Constitution reads:
"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such serv- ice or labor may be due."
To enforce this constitutional provision Congress passed the act of February 12, 1793, approved by Presi- dent Washington, and the act of September 18, 1850, approved by President Fillmore. The Supreme Court
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of the United States, in Prigg. v. Pennsylvania, 16 Peters 539, in 1842, unanimously decided that the law of 1793 was constitutional; and in 1858, in Ableman v. Booth, 21 Howard, U. S. Reports 506, held the act of 1850 constitutional in all of its provisions, the whole court concurring. On April 15, 1859, Simon Bushnell was found guilty under an indictment framed under the act of 1850, and was sentenced by the United States District Court at Cleveland, Ohio, to sixty days' im- prisonment in the jail of Cuyahoga county from and after May II, 1859, and to pay a fine of $600 and the costs of prosecution.
Counsel for Bushnell applied to the Ohio Supreme Court at Columbus, and a writ of habeas corpus brought the case and the accused before that tribunal, "to inquire into the cause of such imprisonment."
A long line of decisions had defined the limits within which the inquiring court could act, and an Ohio statute read:
"If it appear that the person, alleged to be restrained of his liberty, is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate has jurisdiction to issue the process, render the judgment, or make the order, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order."
If the so-called "Fugitive Slave Act," passed Sep- tember 18, 1850, was constitutional, all admitted that the prisoner was legally held under the sentence, judg- ment, and writ of the United States District Court at Cleveland. No one disputed the fact that the
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Supreme Court of the United States had unanimously, within the year, decided that said law was constitutional in all of its provisions. Chief Justice Joseph R. Swan, and Judges Josiah Scott and William V. Peck held that, on such a question, the decision of the national Supreme Court was binding upon the State Court, and they remanded the prisoner to the Cleveland jail. Judge Jacob Brinkerhoff thought that the indictment was defective, and for that and for some other reasons favored a discharge of the prisoner. Judge Milton Sutliff refused to be bound by the repeated and unani- ous decisions of the Supreme Court of the United States as to the constitutionality of the Fugitive Slave Law, decided for himself that said act was unconstitutional and invalid, and voted to discharge the prisoner.
If a majority of the Ohio Court had concurred with him, if either Peck, Scott, or Swan had voted with Brinkerhoff and Sutliff, Governor Salmon P. Chase held himself ready to use the Ohio militia in resistance to the United States authority, and to prevent the enforcement of the decree of the United States Court. This would have placed Ohio in June, 1859, where South Carolina and her allies were in 1861, so far as concerned constitutional principles.
Judge Joseph R. Swan had been elected in 1854 by more than 77,000 majority. On May 1, 1859, he was expecting renomination and reelection. The intense anti-slavery feeling prevalent in Ohio later in that month assured him that, unless he would join in defying the Supreme Court of the United States, and in pre- venting the enforcement within Ohio of the Fugitive Slave Law, he could neither be renominated nor
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elected. The same feeling assured Judges Scott and Peck that their concurrence with Chief Justice Swan would make improbable their own renomination in succeeding years. Grandly did they maintain judicial independence and integrity. Bravely did they do their whole duty. They firmly held Ohio to her place in the Union.
On September 15, 1858, in his debate with Stephen A. Douglas, at Jonesboro, Illinois, Abraham Lincoln said:
"Let me ask you why many of us, who are opposed to slavery upon principle, give our acquiescence to a fugitive slave law? Why do we hold ourselves under obligations to pass such a law, and abide by it when it is passed? Because the Constitution makes provi- sion that the owners of slaves shall have the right to reclaim them. Now, on what ground would a member of Congress, who is opposed to slavery in the abstract, vote for a fugitive slave law, as I would deem it my duty to do? Because there is a constitutional right which needs legislation to enforce it. And, although it is distasteful to me, I have sworn to support the Constitution; and having so sworn, I cannot conceive that I do support it if I withhold from that right any legislation to make it practical."
Amid the excited feeling of 1859, Chief Justice Swan was retired to private life because he so bravely did his duty. But Abraham Lincoln's teaching so far cor- rected party sentiment that he was chosen President in 1860, and Judge Josiah Scott reelected in 1861.
Each of the three judges, who so bravely, nobly and effectively served their country, should ever be held in most honorable memory by our people.
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Joseph Rockwell Swan was born December 28, 1802, in Oneida county, New York. He received a classical education at Aurora in that State, and there began to study law. He came to Columbus, Ohio, in 1824, and continuing study in the office of his uncle, Judge Gustavus Swan, was soon admitted to the bar. He was prosecuting attorney of Franklin county from 1830 until in 1834 the Legislature elected him president judge of the Twelfth Circuit, then consisting of Champaign, Clark, Delaware, Franklin, Logan, Madison and Union counties. He was reelected in 1841, but resigned in 1845; formed the noted law firm of Swan and Andrews (John W. Andrews being the junior member) and practiced with energy and success until 1854. The repeal of the Missouri Compromise, passed in May of that year, aroused the country. Although Ohio, in October, 1853, had chosen William Medill, Democrat, Governor by a plurality exceeding 61,000 votes, in October, 1854, Judge Swan-Republican or "anti- Nebraska candidate"-,was elected Supreme Judge by a majority of more than 77,000 votes.
"On the bench of the Supreme Court" (I quote from John W. Andrews, Allen G. Thurman and R. A. Harri- son) "he fully sustained his earlier reputation as a judge and probably held as high a place in the estimation of the bench, the bar and the public, as has ever been reached by any one of the many distinguished men who have adorned our judicial history. Wise, patient, firm, impartial, courteous, he never lost sight of the dignity of his high office, to which he brought unusual native vigor of mind, large stores of learning, untiring
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industry, and the most conscientious regard for the rights of litigants, and abhorrence of all injustice and wrong."
We have seen how and why unusual political excite- ment prevented his renomination and election. Its injustice did not disturb him. Not long afterward an appointment to fill a vacancy on the Supreme bench, and also a Republican nomination as a candidate there- for, were tendered him. But after leaving the bench in February, 1860, he never renewed the active practice of his profession, nor accepted a judicial position. In 1836 he published the treatise entitled, "A Treatise on the Law Relating to the Powers and Duties of Justices of the Peace, etc.," of which eleven editions were issued during his lifetime and a twelfth prepared by him. That was published after his death. Ohio editors have since prepared and published other edi- tions. Quoting again from Andrews, Thurman and Harrison: "This has probably proved to be the most useful book ever published in Ohio. Its circulation has been immense among the successive generations of justices of the peace in every township in the state, lawyers, county officers, judges and business men, in other states as well as our own; and it has been a model for similar works elsewhere. The influence of such a book, circulating in every neighborhood and among all classes, in shaping the characters of the people and incul- cating a reverence for law, can hardly be overestimated."
In 1850-51 Judge Swan represented Franklin county in the second Constitutional Convention of Ohio, and rendered valuable service as a member of the committee on the judicial department, and of the committee on
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public debts and works. An act relating to the settle- ment of estates of deceased persons, and another relat- ing to wills, passed by the General Assembly of Ohio in 1840, were drafted by Judge Swan. But few amend- ments of these statutes have been found necessary.
Four general revisions of Ohio Statutes were made by Judge Swan. Of these the code commissioners of 1880 wrote: "Perhaps no other man, with the material before him, and in the absence of all power to change it, would have been able to produce a collation of our statutes so admirable in all that pertains to the work of an editor as Swan's statutes of 1841. In 1854-55, 1860, and 1868 he performed the same task of collating and arranging the statutes in force."
In 1843 he published his "Guide to Executors and Administrators; Swan's Pleading and Precedents"- pone volume in 1845, a second in 1850. In 1860 appeared 'Swan's Pleadings and Precedents under the Code." Of this Andrews, Thurman, and Harrison wrote: "The bench and bar of Ohio were largely influenced by it, and led to construe the code in the spirit of the code itself; and as a consequence questions of pleading and practice brought before the Supreme Court of Ohio under the code, which in the State of New York fill many volumes, would not altogether make one volume of the size of the Ohio State Reports. *** His private life was in all respects in keeping with and worthy of the place which he held in the estimation of the public. In every station, and always, he was the same quiet, upright, conscientious, patriotic, Christian man, loving home, friends, neighbors, and country, and finding in them and the duties claimed by them a means of
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preparation for and foretaste of that life to come which Christianity reveals. His name will live in our history; and as long as the Common Law of England shall constitute the basis of our jurisprudence Joseph Rock- well Swan will be held in grateful remembrance by the bar and people of Ohio."
He died at his home in Columbus on December 18, 1884.
Josiah Scott was born in Washington county, Penn- sylvania, on December 1, 1803, on his father's farm, about three miles from Cannonsburg-the seat of Jeffer- son College, where he was educated under the celebrated Dr. McMillen. He lived at home, walking to and from college. In 1821 he graduated with the highest honors of his class. For a time he taught a classical school in Richmond, Virginia. Later he returned to Cannons- burg and acted as a tutor in the college while he studied law. In 1830 he moved to Bucyrus, Ohio, and there began to practice law. In 1840-41 he represented Crawford, Delaware and Marion counties in the Ohio House of Representatives. In 1851 he made his home at Hamilton, Butler county, and practiced there until in October, 1856, he was elected a Judge of the Supreme Court for the term that began on February 9, 1857. His predecessor, Judge Ranney, having resigned after October II, 1856, Governor Chase named Judge Scott for the vacant place. He was reelected in 1861 and 1866, but declined to be again a candidate in 1871. In 1872 he resumed practice at Bucyrus, but accepted from Governor Hayes a seat on the first Supreme Court Commission, where he served until February, 1879. In February, 1876, his associates elected him chief judge,
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