USA > Ohio > History of Ohio; the rise and progress of an American state, Volume Five > Part 7
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The second article is by the Hon. Moses M. Granger, born in Zanesville, Ohio, in 1831, a graduate of Kenyon College, a lawyer and judge of high standing in his profession. He served in the Civil War with conspicuous ability and gallantry, for which he was promoted through the successive ranks to Colonel. He was Chief Justice of the Supreme Court Commission from 1883 to 1885, and is author of "Washington vs. Jefferson," 1898, and several other publications of a legal and historical character .- THE EDITORS.
BY DAVID K. WATSON
A PROPER study of the early judicial system and early laws of our State carries us to a period when, as a part of the great Northwest Ter- ritory, we were under control of the Federal Government.
On the 13th day of July, 1787, the Congress of the United States passed the Ordinance for "The Govern- ment of the Territory of the United States, Northwest of the River Ohio." Relative to the judiciary, the Ordinance provided: "There shall be appointed a Court to consist of three Judges, any two of whom to form a Court, who shall have a common law jurisdic- tion, and reside in the district, and have each therein a freehold estate in five hundred acres of land, while in the exercise of their offices, and their commissions shall continue in force during good behavior. The Governor and Judges, or a majority of them, shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress, from time to time, which laws shall be in force in the district until the organiza- tion of the General Assembly therein unless disapproved of by Congress; but afterward the Legislature shall have authority to alter them as they shall see fit."
The Ordinance conferred no authority on the Gover- nor and judges to make laws, but only to adopt and publish such of those in force in the original states as might be necessary and suitable to the circumstances of the district. Acting under the provisions of the
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Ordinance, Congress on the 16th day of October, 1787, appointed Samuel H. Parsons, John Armstrong, and James M. Varnum judges for the new Territory.
Judge Parsons was a native of Connecticut, and a graduate of Harvard University. He was admitted to the bar in 1759, and afterward served many years as member of the Connecticut Legislature. His bi- ography credits him with the distinction of having "originated the plan of forming the first Congress," which was the forerunner of the Continental Congress. He was a conspicuous figure in the Revolutionary War, attaining the rank of Major General. He was also one of the military court which tried Major Andre on the charge of being a spy. At the close of the war he resumed the practice of his profession. In 1785 he was appointed by Congress a Commissioner to treat with the Miami Indians, and two years later was appointed one of the judges of the new Territory.
Judge Armstrong resigned after a few months' service on the bench. He was born in Carlisle, Pennsylvania, and at the beginning of the Revolutionary War was a student at Princeton College, which he left to join the American Army. It is charged that while he was in the army he wrote the celebrated Newburgh letters for the purpose of increasing the discontent already exist- ing among the officers, and which had grown to such proportions that it required the personal efforts of General Washington to quell it. After resigning his judicial position, he retired to his farm, and for many years devoted himself to the pursuit of agriculture. He was subsequently United States Senator and Minis- ter to France, and the author of several standard works.
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Perhaps the most able and brilliant of the three judges, who first presided over the courts of the North- west Territory, was Judge Varnum. He was a native of Massachusetts and a graduate of Brown University, and, like his associates on the bench, was a soldier of the Revolution. At the close of the war he resumed the practice of his profession and became the leading lawyer of his State. He was a member of the Conti- nental Congress, and was recognized by that body as "a man of uncommon talents and most brilliant elo- quence." There is a published oration which he delivered at Marietta on the 4th day July, 1788, while a member of the Territorial Court, which fully sustains his reputation as an orator, and shows him to have been of scholarly and historical attainments. No fact concerning the judicial history of the Northwest Terri- tory is more clearly established than that the judges who constituted its first court were men of classical education and recognized ability as lawyers, and thoroughly equipped for the discharge of their judicial duties.
Upon the resignation of Judge Armstrong, Congress appointed John Cleves Symmes his successor. He was a native of New York, served as a delegate in the Continental Congress, and was a distinguished judge in New Jersey at the time of his appointment on the Territorial bench. As the appointments which had been made by Congress, under the Articles of Con- federation, expired upon the election of a President, Washington, after his election to that position, reap- pointed those persons who had previously been ap- pointed by Congress. Consequently Judges Parsons and
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Symmes were reappointed Territorial judges. At the same time William Barton was appointed to the posi- tion made vacant by the death of Judge Varnum. Judge Barton declined the position and George Turner was appointed to take his place. Shortly thereafter Judge Parsons died, and Rufus Putnam, so well known in American history as General Rufus Putnam, was appointed his successor. He held the position for several years, and then resigned to accept the office of Surveyor General. He was succeeded on the bench by Joseph Gillman. In 1798 Judge Turner resigned and Return Jonathan Meigs was appointed his succes- sor. He was a native of Connecticut, and a graduate of Yale College. His career was the most brilliant and eventful in the cluster of names which adorn the history of the Northwest Territory. He afterward became a Supreme Judge of Ohio, Governor of the State, United States Judge in Michigan, a General in the War of 1812, a United States Senator, and a member of the Cabinets of Presidents Madison and Monroe.
The Territorial Court, as organized under the pro- visions of the Ordinance of 1787, lasted till 1799. While some of the acts adopted during this period were designed to meet the peculiar demands of those early times, many of them embodied the principles of a permanent and enduring judicial system.
The first law was passed by Governor St. Clair and Judges Parsons and Varnum, and was entitled, "A law for regulating and establishing the militia in the Territory of the United States, Northwest of the River Ohio, published at the City of Marietta on the 25th of July, in the Thirteenth year of the Independence of
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the United States, and of our Lord, 1788, by His Excel- lency, Arthur St. Clair, Esquire, Governor and Com- mander-in-Chief, and by the Honorable Samuel Holden Parsons and James Mitchel Varnum, Esquire, as Judges."
A difference of opinion arose between the Governor and judges concerning the extent of their powers in adopting laws, the Governor maintaining that they could only adopt such laws as were in force in some State; but the judges out-voted the Governor and the matter was subsequently referred to Congress, which sustained the Governor's opinion. The second law which was passed provided for establishing county courts of Common Pleas, and the power of single judges to hear and determine upon small debts and contracts, and for establishing the office of sheriff; and that there should be created in each county a court styled the General Quarter Sessions of the Peace, which was to be held four times a year in each county. The act also provided that a number of suitable persons, not exceeding five nor less than three, should be appointed in each county and commissioned by the Governor under the seal of the Territory, to hold and keep a court of record, to be styled the County Court of Common Pleas, and that said court should be held at two fixed periods in each county in every year and at the same places where the general courts of Quarter Ses- sions were held. This law was promulgated on the 23d of August, 1788, and the first court in the Northwest Territory was the Court of Common Pleas, which com- menced on the first Tuesday of September of the same
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year. The following interesting account of the opening of this court purports to have been given by one who witnessed the ceremony:
"On that memorable first Tuesday of September, the citizens, Governor St. Clair and other Territorial Officers and Military from Fort Harmar being assembled at the Point, a procession was formed, and, as became the occasion, with Colonel Ebenezer Sproat, Sheriff, with drawn sword and wand of office at the head, marched up a path which had been cut through the forest, to the hall in the Northwest Block House of Campus Martius, where the whole counter-marched, and the Judges, Putnam and Tupper, took their seats on the high bench. Prayer was fittingly offered by our friend, the Rev. Manasseh Cutler, who was on a visit to the new colony, after which the commissions of the judges, clerk, and sheriff were read, and the opening proclaimed in deep tones by Colonel Sproat, in these words: 'O, yes! a court is opened for the administration of even-handed justice to the poor and the rich, to the guilty and the innocent, without respect of persons; none to be punished without trial by their peers, and then in pursuance of the laws and evidence in the case.' This was the opening of the Court of Common Pleas. The Indian chiefs who had been invited by Governor St. Clair to attend the convention, were curious witnesses of this impressive scene."
On the second Tuesday of the same month was held the first session of the Court of Quarter Sessions, of which Hildreth says: "Court was held in the South- east Block House, occupied by Colonel E. Battelle. It was opened with the usual proclamation of the sheriff,
PETER HITCHCOCK
Born in Cheshire, Connecticut, October 19, 1781; admitted to the bar, 1804; removed to Burton, Geauga county, Ohio, 1806; elected to the Ohio House of Repre- sentatives, 1810, and to the Ohio Senate, 1812 and 1814; member of Congress, 1817-19; Judge of the Ohio Supreme Court, 1819-33; again State Senator, 1833-35, and again Supreme Judge of Ohio, 1835-42 and 1845-52; died in Painesville, Lake county, Ohio, March 4, 1854.
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year. HOTIH HAAGOunt of the openin
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;A18I bas SI81 ,9tsh92 oiNO SHt of Dnb :0181 ,25vitsfist ember. esday assemblee
Colonel Ebenezer Sproat, Sheriff
wish Anne and wand of office at the head maxchul up a pathy which had been cut through th forem, to che hail in the Northwest Block House of Campus Martiur, where the whole counter-marched and the Judges, Putnam and Tupper, took their seat on the high bench. Prayer was fittingly offered by our friend, the Rev. Manaweb Cutler, who was on ville tor this new colony, after which the commission of the ludres, clerk, and sheriff were dead, and the Mimed in deep tones by Colonel Sproat wmds: 'O, yes! a court i opened for th whatyou of even-handed justier to the poor and Dir al in the guilty and the innocent, without respect il pownc sione to be punished without trial by thei pers and then in pursuance of the laws and evidenc This was the opening of the Court of Commom Bas. The Indian chiela who had been invited by Governor St. Clair to attend the convention were cunjous witnesses of this impressive scene."
On the second Tuesday of the same month was held the first section of the Court of Quarter Sessions, o which Hildreth says: "Court was held in the South east Block House, occupied by Colonel E. Battelle. I was opened with the usual proclamation of the sheriff
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but not until the commission of the judges had been read by the clerk. General Rufus Putnam and General B. Tucker were appointed justices of the quorum, and Isaac Pearce, Thomas Lord, and R. J. Meigs, assist- ant-justices. Meigs was clerk. Paul Fearing was admitted as an attorney to plead in all the courts in Washington county, being the first lawyer ever admit- ted to practice in the Northwest Territory. He was also appointed by the Court attorney for the United States in Washington county. The Grand Jury con- sisted of the following persons: William Stacy, Nath- aniel Cushing, Nathaniel Goodale, Charles Knowles, Anselm Tupper, Jonathan Stone, Oliver Rice, Ezra Lunt, John Matthews, George Ingersol, Jonathan Devol, Samuel Stebbins, Jethro Putnam, and Jabez True. William Stacy was made foreman. The charge to the jury was given 'with much dignity and propriety by Judge Putnam.' At one o'clock the Grand Jury retired and the Court adjourned for thirty minutes. At half past one the Court again opened, when the jurors entered and presented a written address to the Court, which, after being read, was ordered to be kept on file. Judge Putnam made a reply to the address. There being no suits before the Court, it was adjourned without day. This closed the first Court of Quarter Sessions in the new territory."
One week after the publication of the law creating the Court of Quarter Sessions, the act establishing a Probate Court was promulgated. On the 6th of Sep- tember, 1788, there was published "a law respecting crimes and punishments." It defined and provided the punishment for treason, murder, manslaughter,
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arson, burglary with theft, burglary with personal violence, burglary with homicide, robbery, riots and unlawful assemblies, perjury, subornation of perjury, punishment for obstructing authority, receiving stolen goods, larceny, forgery, usurpation, assault and battery, and drunkenness, the penalty for the last offense being a fine in the sum of five dimes for the first offense, and for every succeeding offense the sum of one dollar, and "in either case upon the offender's neglecting or refusing to pay the fine, he was set in the stocks for the space of one hour."
The act also contained the following provisions con- cerning the use of improper and profane language:
"WHEREAS, Idle, vain and obscene conversation, profane cursing and swearing, and more especially the irreverently mentioning, calling upon or invoking the sacred and Supreme Being, by any of the divine charac- ters in which He hath graciously consented to reveal His infinitely beneficent purposes to mankind, are repugnant to every moral sentiment, subversive of every civil obligation, inconsistent with the ornaments of polished life, and abhorrent to the principles of the most benevolent religion. It is expected, therefore, if crimes of this kind should exist, they will find no encouragement, countenance or approbation in this terri- tory. It is strictly enjoined upon all officers and minis- ters of justice, upon parents and other heads of families, and upon others of every description, that they abstain from practices so vile and irrational; and that by example and precept, to the utmost of their power, they prevent the necessity of adopting and publishing laws, with penalties, upon this head. And it is hereby
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declared that government will consider as unworthy its confidence all those who may obstinately violate these injunctions."
And the following relative to the religious observance of the Sabbath:
"WHEREAS, Mankind in every stage of informed society, have consecrated certain portions of time to the particular cultivation of the social virtues, and the public adoration and worship of the common parent of the universe; and whereas, a practice so rational in itself, and conformable to the divine pre- cepts, is greatly conducive to civilization and piety; and whereas, for the advancement of such important and interesting purposes most of the Christian world have set apart the first day of the week as a day of rest from common labor and pursuits, it is, therefore, enjoined that all servile labor, works of necessity and charity only excepted, be wholly abstained from on that day."
Among other important acts which were adopted was one directing the building and establishing of a courthouse, county jail, pillory, whipping-post, and stocks in every county.
Another subjected real estate to execution for debt. In Chase's Statutes appears this footnote: "These laws from Chapter 37 to Chapter 74, inclusive, have been commonly known to the profession as the 'Max- well Code.' They were adopted and published in Cincinnati in 1795 by Governor St. Clair and Judges Symmes and Turner."
Another was a law to prevent unnecessary delays in causes after issue joined. Still another, limiting
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the time of commencing civil actions and instituting criminal prosecutions, was passed December 28, 1788. "This law," says Chase, "was disapproved by Congress May 8, 1792." Another law on the same subject was adopted in 1795, which was repealed by the Terri- torial Legislature as unconstitutional. No law on this subject was afterward enacted until 1803, when the State Legislature passed an act of limitation.
An act of special interest to the legal profession of the present day regulated the fees of the officers of the court, including attorneys. It allowed a judge in the general court, for allowing a writ of error, sixty-two and one-half cents; for every supersedeas, thirty-seven and one-half cents; the same for taking bail; for taking an affidavit, twelve and one-half cents; admitting a counsellor-at-law, or attorney, one dollar and twenty- five cents; licensing a counsellor-at-law, or attorney, three dollars and seventy-five cents.
The following were some of the fees allowed the Attorney-General: Entering every cessal processus or nolle prosequi, for each defendant, sixty-two and one- half cents; every indictment, per sheet, eighteen cents; fee on trial, three dollars; for trial of every capital cause where life was concerned, eight dollars.
To attorneys in a general court, it allowed for a retainer fee, three dollars and fifty cents, but where several suits were brought upon one note or bond, no more than one retainer fee was allowed; drawing war- rant of attorney, twenty-eight cents; drawing of proces- sus and returns, twelve and one-half cents; for argument on special motion, one dollar and twenty-five cents; while to attorneys in the Court of Common Pleas it allowed
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the following: Drawing warrant of attorney, twelve and one-half cents; every motion, twenty-five cents; drawing a declaration and other pleadings, per sheet containing seventy-two words, twelve and one-half cents, and every copy thereof, six cents per sheet.
This act distinguished between counsellors-at-law and attorneys-at-law, and between the practitioner at the General Court and the Common Pleas Court. By the year 1790, the business of the courts had grown to such an extent that an act was passed increasing the number of terms of the Common Pleas Court in each year from two to four, and the number of Common Pleas judges to not less than three or more than seven.
Other important acts were adopted, such as the act regulating marriage, a law for the partition of lands, a law respecting divorce, a law authorizing the judges to subdivide the counties into townships; and here we find for the first time in our judicial history a recog- nition of those small political subdivisions.
The Ordinance of 1787 provided that as soon as it was proven that there were five thousand free male inhabitants of lawful age in the district, they should be authorized to elect representatives to the General Assem- bly. How the proof was to be made does not appear, but in 1798, Governor St. Clair issued his proclamation that the Territory contained the requisite number of free male inhabitants, and called upon the people to elect representatives, the proportion of representatives being one to every five hundred voters; but no one could be a Representative unless he had been a citizen of the United States for three years and a resident of
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the district, or unless he had resided in the district for three years, and in either case he must own in fee simple two hundred acres of land within his district.
The General Assembly consisted of the Governor, a legislative Council, and a House of Representatives. The Council consisted of five members, who held their office for five years, unless sooner removed. They were selected in the following manner: The representa- tives who were elected by the people met at the time and place designated by the Governor, and nominated ten persons, each of whom was required to be a resident of the district and possess a freehold estate in five hundred acres of land, and the names of these ten per- sons were sent by the representatives to Congress, and Congress selected five out of the ten and appointed them to serve as members of the Council. The members of the Council and House of Representatives met at Cincinnati on the 16th of September, 1799, and organ- ized the first General Assembly of the Northwest Terri- tory, at which time the authority of the Governor and judges to adopt and promulgate laws ceased, and the Territory was thereafter governed by laws passed by the Territorial General Assembly. Edwin Tiffin was elected Speaker of the House of Representatives and Henry Vanderberg was elected President of the Council.
In commenting upon the character, ability, and general worth of the men who constituted this General Assembly, Judge Burnet, in his notes on the Northwest Territory, says: "In choosing members to the first territorial legislature, the people in almost every instance selected the strongest and best men in their respective counties. Party influence was scarcely felt,
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and it may be said with confidence that no legislature has been chosen under the State government which contained a larger proportion of aged, intelligent men than were found in that body. Many of them, it is true, were unacquainted with the forms and practical duties of legislation, but they were strong-minded, sensible men, acquainted with the condition and wants of the country, and could form correct opinions of the operation of any measure proposed for their considera- tion. "
One of the most important duties which devolved upon the Assembly was to elect a Representative of the Territory to the national Congress. William Henry Harrison and Arthur St. Clair, junior, were the candi- dates. The former received twelve votes, while the latter received ten. Mr. Harrison was accordingly declared elected.
The first act passed at this session of the General Assembly was one approving and declaring to be in force certain acts which had previously been adopted by the judges and the Governor.
The second act passed-which was on the 29th of October, 1799-was one regulating the admission and practice of attorneys and counsellors-at-law, the first section of which provided for the applicant obtaining a license to practice, from the Governor of the Territory, which admitted him to practice as an attorney-at-law according to the laws and customs of said Territory, during his good behavior, and authorized him to receive such fees as might be established; and required all judges, justices, and others concerned to respect him accordingly; but he could not receive such license from
1
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the Governor until he had obtained a certificate signed by two or more of the judges of the General Court, setting forth that he had been regularly examined; but before he could be examined, he was required to produce a certificate that he had regularly and atten- tively studied law under the direction of a practicing attorney, residing within the territory for the period of four years. This act, like the one adopted by the Governor and judges, retained the distinction between counsellor and attorney-at-law, and their admission to practice at the general term and Court of Common Pleas. It gave the judges of the General Court, and of the several Common Pleas courts, power to punish in a summary way, according to the rules of law and the usages of the courts, any and every attorney or counsellor-at-law who should be guilty of any contempt in the execution of his office, and every attorney or counsellor-at-law who received money for the use of his client and refused to pay the same when demanded, could be proceeded against in a summary way, on motion.
On November 3, 1800, the second session of the first General Assembly met at Chillicothe and adjourned on the 9th of December following.
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