USA > Ohio > History of Ohio; the rise and progress of an American state, Volume Five > Part 8
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The second General Assembly held its first session at Chillicothe, commencing on the 23d of November, 1801, and ending on the 23d of January, 1802. Edward Tiffin was again elected Speaker of the House of Repre- sentatives, and Robert Oliver was elected President of the Council. Notwithstanding the Assembly adjourned to meet in November following, a second session was never held, for the reason that soon after the adjourn-
HENRY STANBERY
Born in New York City, February 20, 1803, and removed with his parents to Zanesville, Ohio, in 1814; graduated from Washington College, Pennsylvania; admitted to the bar in 1824, and in his early practice was associated with the elder Thomas Ewing in Lancaster; became Attorney- General of Ohio in 1846; removed to Columbus; member of the Constitutional Convention of 1850; re- moved to Cincinnati, 1852; Attorney-General of the United States under Johnson, 1866-67; resigned that office to serve as counsel for the President in the impeach- ment trial; afterward nominated for Justice of the United States Supreme Court, but not confirmed; died in New York City, June 26, 1881.
THE RISE AND PROGRE
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Sister 3, 1800, the second session of the fire Inl Awmhly met at Chillicothe and adjourned ce Inib I December following.
Twood General Assembly held its first sessic Et CANItrothe, commencing on the 23d of November (b), aud coding on the 23d of January, 1802. Edwar Itin was again elected Speaker of the House of Repr tentatives, and Robert Oliver was elected President on the Council. Notwithstanding the Assembly adjourn to meet in November following, a second session wa never held, for the reason that soon after the adjourn
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ment of the first session a census was taken of the population of the Eastern Division of the Territory, and it was found that it exceeded forty-five thousand persons. Thereupon an appeal was made to Congress that the inhabitants of the Eastern Division be author- ized to call a Convention and form a Constitution with the view of establishing a State Government. Congress passed an act authorizing the Convention to be held, and as the result, a Constitution was adopted and a State formed and admitted into the Federal Union.
The Convention which framed the first Constitution of our State met at Chillicothe on the first Monday of November, 1802. It was expeditious in its work, for on the 29th of the same month it adjourned, having adopted a Constitution without submitting it to the people for ratification. Concerning the judiciary it contained the following clause: "The judicial power of the State, both as to matters of law and equity, shall be vested in a Supreme Court, Court of Common Pleas for each county, in Justices of the Peace, and in such other courts as the Legislature may, from time to time, establish."
It further provided that the Supreme Court should consist of three judges, any two of whom should be a quorum; that they should be appointed by a joint ballot of both houses of the General Assembly, and should hold their office for the term of seven years, if so long they behaved well.
The first General Assembly of the State of Ohio convened at Chillicothe on Tuesday, March 1, 1803. On the 15th of April following, it passed a general act providing for the organization of "Judicial Courts,"
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and abolished all courts which had been established during the existence of the Territorial Government. During the session, the Convention elected the follow- ing State officers: William Creighton, Jr., Secretary of State; Thomas Gibson, Auditor; William McFar- land, Treasurer-while Return Jonathan Meigs, Jr., Samuel Huntington and William Sprigg were elected judges of the Supreme Court, and Francis Dunlevy, Wyllys Sillman and Calvin Pease, judges of the Dis- trict courts.
The second General Assembly met on December 5, 1803. On February 18, 1804, it amended the act of the first General Assembly providing for the organi- ization of the courts. On the same day it passed an act "regulating the duties of Justices of the Peace and Constables, in criminal and civil cases," making their jurisdiction coextensive with their counties in criminal matters, and with their townships in civil causes, which is still the provision of our statutes. It also prescribed the forms which should be used by the justices in their practice, and with little, if any change, they are still used.
The business of the courts kept pace with the rapid commercial development of the new State and the increase in its population. The members of the Supreme Court were required to travel the circuit, and as there were no carriages or railroads they were com- pelled to go on horseback, and in the absence of the modern turnpike or even the old corduroy road, the journey was undesirable and frequently hazardous.
For many years the annual salary of a Supreme Judge was only eight hundred dollars, but neither the cor-
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duroy roads nor the small salary were permitted to stifle the social side of the court, and there is abundant evidence that the good nature of the dignified judges sometimes manifested itself in ways that were calcu- lated to develop social amenities at the expense of judi- cial gravity.
In the preface to Wright's Reports is the following statement made by that excellent judge, relative to the labors of the Supreme Court at that time: "The Supreme Court of Ohio is now composed of four judges, the largest number the Constitution permits. The Constitution requires a court to be holden once a year in each county, and makes any two of the judges a quorum. A legislative act imposes upon the judges the duty of holding every year a court in banc at the seat of govern- *
ment. * * The principal result of this organization of the court is, that the Supreme Court is generally held in the several counties by two judges only. The judges relieve one another to suit their own convenience, so dividing their labor that each may perform one-half of the circuit duty. The duties imposed on this Court are so great as to make this relief necessary, for it would be difficult to find men of sufficient physical ability to participate in all of them. These judges now hold court in seventy-two counties each year, requiring 2,250 miles' travel. The number of cases on their trial dockets in 1834 was 1,459. The judges are occupied in banc from three to four weeks annually. If that time and Sundays are deducted from the year and the usual allowance is made for travel, the Court, to clear its docket, would be under the necessity of deciding,
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on an average, about seven cases a day for each remaining day of the year."
To relieve the pressure upon the courts it became necessary to increase the number of Supreme judges and to create new Courts of Common Pleas. There were thirty judges of the Supreme Court under the old Constitution, which covered a period of forty-nine years. The decisions of the court were not published by legis- lative authority and in permanent form until 1823, when the first volume of the Ohio Reports was issued.
The earlier judges who graced our Supreme bench were Samuel Huntington, Return Jonathan Meigs, Jr., William Sprigg, George Tod, Daniel Symmes, Thomas Scott, William W. Irwin, Ethan Allen Brown, and Calvin Pease, two of whom, Huntington and Meigs, were afterward Governor of the State. Following these were John McLean, afterward a Cabinet officer and a Justice of the Supreme Court of the United States; Jessup N. Couch and Jacob Burnet, who was afterward a United States Senator; and Peter Hitch- cock, who occupied the position for twenty-eight years-longer than any man before or since his time. Then came Charles R. Sherman, the father of the General and Senator, who died while on the bench at the early age of forty-one. Then Gustavus Swan, the uncle of Joseph R. Swan, who was on the same bench under the new Constitution; then Elijah Hay- ward, John Milton Goodenow, Henry Brush, Reuben Wood, and John C. Wright. They were followed by Joshua Collett, Ebenezer Lane, Frederick Grimke, Mat- thew Birchard, Nathaniel C. Read, Edward Avery, Rufus P. Spaulding, William B. Caldwell, and Rufus P.
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Ranney. These were all able judges, but some of them were especially eminent, and their opinions made the court distinguished throughout the entire country. But the reputation of the bar was equal to that of the bench, and many of the greatest lawyers of our State practiced under the old Constitution. Among the earlier names which became illustrious was that of William Creighton, of Chillicothe. He was educated at Dickinson College, where he was a fellow-student of the great Taney, afterward Chief Justice of the United States. He was especially distinguished as a jury lawyer. He served many years in Congress, and was an intimate friend of Daniel Webster. It has been said that if Mr. Webster had reached the Presidency, Mr. Creighton would have been a member of his Cabinet.
Another great member of the Chillicothe bar was Benjamin F. Leonard. He was a man of profound learning in the law and all kindred subjects. Then came a cluster of names which will forever remain unsurpassed for their learning, eloquence and wit, every element, in fact, that enters into consideration in the make-up of a great lawyer. Among them was Samuel F. Vinton. Like others who helped to make our State illustrious, he was born in New England. He graduated at Williams College and settled in Galli- polis in 1816. He was elected a Representative in Congress in 1823 and served for fourteen years. He was again elected in 1843 and served eight years, in all a period of twenty-two years. His greatest legal effort was his argument in the case of the common- wealth against Garner and others, before the Supreme Court of Virginia, in 1845. Peter M. Garner, Mordecai
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Thomas and Graydon J. Loraine were citizens of the State of Ohio, while John H. Harwood resided in Wood county, Virginia, and was the owner of slaves. On the 9th of July, 1845, some slaves, intending to escape from Harwood, crossed over the Ohio River in a canoe to the Ohio shore, where said Garner, Thomas and Loraine met them and were in the act of assisting them from the canoe, and up the river bank, when they were all arrested, taken to Virginia, imprisoned, and subse- quently indicted. As the arrest was made on the Ohio side of the river, the only question in the case was, what was the extent of Virginia's jurisdiction over the river. The case attracted national attention. Mr. Vinton, in his argument, claimed that the jurisdiction of Vir- ginia did not extend on the north side of the river beyond low water mark. He asserted that Virginia never had an ownership in the Northwest Territory, first, because the charter which King James granted in 1609, and which was claimed as the source of Virginia's title, did not include land which lay beyond the Ohio, or west of the Allegheny Mountains; and, second, if the grant was originally broad enough to embrace the land lying within the Northwest Territory, the charter which the king granted to Virginia had been revoked by the Court of King's Bench in 1624, "when a judg- ment was rendered against the corporation, canceling the patent and ordering the franchises of the charter resumed by the crown."
The argument of Mr. Vinton in this case will always be classed among the greatest arguments of the greatest American lawyers. As a historical production it was overwhelming and absolutely unanswerable. It was
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delivered to twelve judges, and by a majority of one the decision was in his favor. Simeon Nash of Galli- polis was also a distinguished lawyer and judge, but his reputation chiefly rests upon being the author of Nash's Pleadings. William Allen of Chillicothe was another man who won his way to distinction at the bar. He after- ward was United States Senator and Governor of Ohio.
Greatest, perhaps, of all, were Thomas Ewing, Henry Stanbery, and Thomas Corwin. Whether their fame rests wholly upon their distinction at the bar or not, it is certain they fill the largest horizon and occu- py the greatest places in history of any lawyers that our State has produced. Each rose from humble birth to a place in the Nation's Cabinet; and, great as they all were, each was without a peer in his especial field.
Ewing's intellect was strong and rugged. He would have been a great natural lawyer had he never seen a law book, a great logician had he never seen a work on logic. Nature made him to be an expounder of the law. If his arguments were somewhat devoid of orna- ment, it was because they needed no ornament; they were too great to be ornate.
Mr. Stanbery was a broader scholar than Mr. Ewing. Mr. Ewing was master of the rough logic of nature, while Mr. Stanbery was always equipped in the armor of the books. He was a thorough student of the law, and always knew the decisions of the courts. Strong as he was in this particular, another element of his strength was his unrivaled eloquence and the purity of his diction.
Mr. Corwin was not the equal of either Mr. Ewing or Mr. Stanbery as a lawyer in the strict sense of that
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ship in the several counties, to continue in office three years. After five years the Legislature was authorized to add a fourth judge to the Supreme Court, and to increase the number of circuits of the Common Pleas. When four Supreme judges should be in office, they might divide the State into two circuits, within which any two judges might hold a court. The Constitution directed the Supreme Court to hold a term once a year in each county. The Common Pleas terms were fixed by the Legislature; three terms each year in each county. The associate-judges could hold special terms at any time for probate business.
In 1804 the Legislature added a fourth judge to the Supreme Court; in 1810 it reduced the number to three; in 1816 again added a fourth judge. The court con- tinued to have that number of judges until on February 9, 1852, a new court, under the Constitution of 1851, began work. The number of Common Pleas circuits was from time to time added to as population increased and new counties were created. There were twenty circuits in 1851.
In December, 1809, the Governor's message urged the Legislature to repeal the act of 1808. He argued that under that act only two judges would sit in each county, and, if they disagreed, the judgment complained of would necessarily be affirmed by the voice of only one judge. In practice this evil seldom, if ever, occurred. When the two judges on a circuit disagreed, on motion of either counsel they reserved the case for hearing and decision by the whole court sitting at the capital "in banc," as it was called, pursuant to a statute enacted by the General Assembly.
EDMOND STAFFORD YOUNG
Born in Lyme, Grafton county, New Hampshire, February 27, 1827; at the age of eight came with his parents to Newark, Ohio; was graduated from Farmers' (now Belmont) College, College Hill, Ohio, in 1847, and from the Cincinnati Law School in 1853; engaged in practice in Dayton, where he resided and was an eminent member of the bar and public-spirited citizen until his death; chairman of the military committee, appointed by the Governor of Ohio in 1861, which had charge of recruiting and military organization in Montgomery county; prominent in connection with the educational and civic interests of Dayton; died in that city, February 14, 1888.
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In 1804 the Legislature added a fourth judge to the Supreme Court; in 1810 it reduced the number to thre in 1816 again added a fourth jodge The court con tinued to have that number of judges natil on Februar 9. 852. a new court, under the Constitution of 185 besin work. The number of Common Pleas circuit wLA from time to time added to as population increased and wew counties were created. There were twents Girls To 1851.
In Deember, 1809, the Governor's message urged the Ungdarum to repeal the act of 1808. He argued that umber charact only two judges would sit in each county hmd, if they disagreed, the judgment complained would necessarily be affirmed by the voice of only or judge. In practice this evil seldom, if ever, occurred When the two judges on a circuit disagreed, on motion of either counsel they reserved the case for hearin and decision by the whole court sitting at the capital "in banc," as it was called, pursuant to a statute enacted by the General Assembly.
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OF AN AMERICAN STATE
The Constitution of 1851 provided for a Supreme Court of five judges, elected by the people, for terms of five years; divided the State into nine Common Pleas districts, later increased to ten; each district, having more than three counties, contained three sub- divisions; each sub-division, by popular vote, chose one Judge of Common Pleas for a term of five years. Under later legislation in each sub-division additional Common Pleas judges were chosen; so that now there are eighty judges of said court.
In each county, each year, one Judge of the Supreme Court with the Common Pleas judges of the district held one term of a "District Court," which took the place of the old "Supreme Court on the Circuit." The entire Supreme Court were required to hold a term beginning each year in January at the capital. A probate judge, elected by the people in each county for a term of three years, took the place of the associate judges.
In 1873 an amendment of the Constitution authorized the Legislature to provide, once in ten years, a Supreme Court Commission of five judges, to be nominated by the Governor and confirmed by the Senate. Governor Hayes appointed the first commission, Josiah Scott, William W. Johnson, D. Thew Wright, Thomas Q. Ashburn, Henry C. Whitman and Luther Day. This commission sat for three years, 1876 to 1879. Governor Foster appointed a second commission of five judges, who sat from April, 1883, to April, 1885. This commission consisted of Moses M. Granger, George K. Nash, Franklin J. Dickman, Charles D. Mar- tin, and John McCauley.
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In 1884 the State was divided into seven circuits, in each of which the people elected three circuit judges for terms of six years. On February 9, 1885, this court took the place of the former District Court. An eighth circuit was added in 1887. In 1892 a sixth judge was added to the Supreme Court; his term, and the term of each judge thereafter chosen for a full term, to con- tinue six years.
Besides the courts named, from 1838 to February, 1853, one judge elected for seven years by the Legisla- ture held the Superior and Commercial Court of Cin- cinnati; from 1848 to February, 1853, a like judge held the Superior Court of Cleveland; from April, 1854, a Superior Court of the city of Cincinnati has been held by three judges chosen by the city voters for terms of five years; from July 1, 1856, to July I, 1886, one judge-chosen by the voters of Montgomery county for a five year term-held the Superior Court of Montgomery county; from March, 1857, to April, 1865, a like judge, chosen by the voters of Franklin county, held the Superior Court of Franklin county; and from March, 1852, to May, 1854, a like judge, chosen by the voters of Hamilton county, held the Criminal Court of Hamilton county.
Besides ordinary probate jurisdiction, the Probate Court in each county had been clothed with power in many cases and proceedings not requiring a jury, with jurisdiction of jury cases for appropriation of property for public use, and with considerable minor criminal jurisdiction.
The act of April 15, 1803, directed the Governor to commission one of the three judges elected by the
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General Assembly "chief judge," and provided that the other two, and all future judges, should have pre- cedence according to the respective dates of their com- missions: when more than one commission was of the same date, the judges to rank according to their respective ages.
The act of February 7, 1831, Vol. 29, p. 56, gave precedence according to date of commission, but provided that any judge reelected for two or more terms in succession, should rank as of the date of his first commission; where two or more held commis- sions of the same date, they took rank according to their respective ages. The judge entitled to precedence over all others to be styled chief judge of said court.
The act of February 19, 1852, Vol. 50, p. 67, provided that the Judge of the Supreme Court having the shortest time to serve (he not holding by appointment or elec- tion to fill a vacancy) should be the presiding or chief judge of said court.
The act of 1892, Vol. 89, p. 318, authorized the Court to divide itself into two divisions, each composed of three judges. The two judges having the shortest time to serve (not holding by appointment or election to fill a vacancy) shall preside in their respective divisions at all terms thereof. In case of the absence of either, the judge holding the next shortest term shall preside. The elder in service of the two chief justices shall pre- side at a sitting of the whole court.
The commissions chose their own chief judges. Judge Josiah Scott, so chosen in February, 1876, de- clined to act. Judge Luther Day served during that year, and Judge William W. Johnson during term from
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February, 1877, to February, 1879. Judge Moses M. Granger, twice chosen by the unanimous vote of his four associates, served from April 17, 1883, to April 17, 1885. As his business required his presence in Zanesville a part of every week, by agreement the second commission took a recess from noon of every Friday until noon of Monday, each judge doing a full week's work.
The statutes now require the Supreme Court to hold an annual term beginning on the Tuesday after the first Monday in January, at Columbus, Ohio. It may hold special or adjourned terms at such times and places as the judges or a majority of them shall, from time to time, determine; but if held elsewhere than in Columbus thirty days' notice of time and place must be published in Columbus newspapers.
It is not now easy to picture for ourselves in thought the Ohio judiciary as they administered justice during the first decades of Ohio life. Many of them had been born and educated in the "Old Thirteen States"; some had graduated at Yale College and studied law at the noted law school of Judge Reeve in Litchfield, Connec- ticut; while others were almost self-made as students of the law. Within all Ohio, in those early years, the aggregate of law books did not number so many as may now be found in each leading law office in our county towns. Every lawyer judge traveled many hundreds of miles each year upon a circuit in which the best roads were very poor, and the most of them often impassable on wheels. The president judge of the Third (then the Eastern) Circuit, began at Warren, Trumbull county, on the second Tuesday in March, and ended at Zanes-
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ville, Muskingum county, as soon after the fourth Tuesday in December as the docket there would per- mit; but next, before going to Zanesville, he had to sit at Marietta. If you look at the map you can trace him from Warren in Trumbull via New Lisbon in Columbiana, Steubenville in Jefferson, St. Clairsville in Belmont, and Marietta in Washington, to Zanesville in Muskingum. Although the Ohio River bounded four of his counties, and a passage by boat was some- times had, the navigation was too irregular to be relied upon. The president judges in the First and Second circuits rode about equal distances. While the Supreme judges numbered only three, their travel carried them once a year to every county in each of the three circuits. Members of the county bar traveled with, or met, the judges and lodged with, or near, them during term. The saddle bags carried Ohio Statutes, then small in bulk, Blackstone's Commentaries; some- times Coke or Littleton; sometimes a volume or two of an English law or equity report; and a small "vade mecum" legal treatise, the name of which is now known to few of our profession.
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