History of the city of Columbus, capital of Ohio, Volume I, Part 77

Author: Lee, Alfred Emory, 1838-; W. W. Munsell & Co
Publication date: 1892
Publisher: New York and Chicago : Munsell & Co.
Number of Pages: 1202

USA > Ohio > Franklin County > Columbus > History of the city of Columbus, capital of Ohio, Volume I > Part 77

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The Mayor of Columbus exercised police jurisdiction during the years previous to the creation of the office of Police Judge by the legislative act of March

* illy recollection is suit was not brought. Who their refusal to let him keep the seat inside , to which he had a right. Dared fewthings potencia horn, buggy and dire to take Douglas to famille, where the west Lecture the new orting, and presented the bill to Mr. Kosher, who paid 'is at once.

Iste. Frederick Douglass had been advertised to lecture here, and very much to the surprice of his prins. The Democratic Houve had granted ana the use of the house, but during the day, is because whispered about that some young rowdies. their lead. was belonging to use of the wealthy families of the city were arranging to present the lecture. During the day, Show room, then Audition of thate, came to the with, and said Douglas must have a fair hear. ing, and the selected about a dozen young men to see that he had it, Those who remember the red state Home will recall the little dark gallery at its south side, over the main door. Into that, when the meeting convened, had wide the disorderly clement. The House was lighted only by aform, ir aterie candles, hoods and his men were seated together , and as rom as Arreglar was introduced , wferron was com - minced in the gallery, How's Rayed a candle, ( there was no light in the galling) and we all followed det, and started w/ the writing It air way, Just as Me- hosts reached the top a grat was made for his couble, but instead of the couble , Wood fist was neet, with you Hochquan, he quier will throw you over theat racing, A little to our surprise, they all helt quiet, and heart the lecture; There was some timalt outside, but not enough to intercept the lectica.

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2, 1891. Under that aet Matthias Martin was elected Police Judge for the prescribed term of three years, and is now in commission. His administration of the office is characterized by legal acumen and good sense, promotive of public order and safety without infringing upon the just rights of the individual.

The Probate Court is provided for in the Constitution of 1851, and its juris- diction is regulated by statute. To that jurisdiction are committed vast property interests in the matter of estates and trusts, in which widows, children and others are vitally interested. This court is always open and accessible. The Probate Judge is elected by the voters of the county for a term of three years. In the forty years of the existence of this court its duties have been discharged by seven judges in the following order : William R. Rankin, William Jamison, Herman B. Albery, John M. Pugh, John T. Gale, Charles G. Saffin, and Lorenzo D. Hagerty, the present ineumbent.

The ancient and useful tribunal of the people known as the Court of Common Pleas has been familiar to our judicial system from the time of its origin. Follow- ing territorial precedents in order to meet primitive conditions, the earlier legis- lation of the State imposed miscellancons duties not of a judicial character upon the judicial branch of the government, and particularly upon the Court of Com- mon Pleas or its judges. Among these duties was the appointment of the Sheriff, Recorder, Treasurer and Surveyor of the county and of the collectors and asses- sors or " listers of taxable property" for the townships; also the establishment and opening of roads, together with other duties now discharged by the County Com- missioners. These and other executive functions, such as granting licenses to keep houses of public entertainment, gave the early courts and particularly the Associate Judges, employment suited to their qualifications, to the great conven- ience and benefit of the people.

The advance of the State in population was attended by a corresponding increase in the judicial and nonjudicial business of the courts. The judicial system of the Constitution of 1802 was not adapted to this enlarged demand upon it, and the Court of Common Pleas especially seemed to be beyond relief by legisla- tion. The circuits of that court, although increased in number as new counties were created, remained too large for the President Judge, who, alone of the judges, was a lawyer, and upon whom the judicial business rested. The Associate Judges, generally most excellent citizens and intelligent men, were not educated in the law and therefore not able to assist the presiding judge in the discharge of strictly judicial functions. In probate matters and the numerous executive duties hereto- fore mentioned, the Associato Judges rendered important service. The system was found to be confused and inadequate. It was better that much of the executive business should be vested in the board of county commissioners, the probate busi- ness in a probate court, and the judicial functions of the Common Pleas in a single judge learned in the law.

By the act of April 15, 1803, "organizing the judicial courts," the State was divided into three circuits, of which the counties of Hamilton, Butler, Mont- gomery, Greene, Warren and Clermont composed the first ; the counties of Adams, Scioto, Ross, Franklin, Fairfield, and Gallia, the second ; and the counties of

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Washington, Belmont, Jefferson, Columbiana and Trumbull the third. The act provided that " a president of the courts of common pleas shall be appointed in each circuit, as the constitution directs, who, together with three associate judges, to be appointed in each county as aforesaid, shall compose the court of com- mon pleas of each county, any three of whom shall be a quorum, and where they are equally divided in opinion, the president shall have the casting vote." The act also fixed the times of holding the Court of Common Pleas in the several counties. In Franklin County the first terms were appointed for the first Tuesday of May, September and January. The appointments of judges have been elsewhere mentioned. The records of these courts show, as is characteristic of the ruder state of society, that frequent acts of violence "against the peace and dignity of the State," required prosecution and punishment on the criminal side of the court, and that actions for trespass vi et armis for the same violence took their places upon the civil docket along with ordinary actions for debts, damages and the like. Questions as to land titles were numerous in the first settlement of the country, and for decades afterward. This was especially true in the Virginia Military District. Actions of ejectment were common in Franklin County, as elsewhere. Many such causes are found upon the court records of this county during the first fifty years of its history. The character of litigation changes in harmony with the progressive development of the country, the ever-multiplying employments of the people, and the ever-changing methods and agencies of business. During the early settlement of the country the business pursuits were few and primitive, but as society became more mature and trade more abundant and farreaching through the agency of improved roads and transportation, legal questions call- ing for adjudication became accordingly more important and complicated. This fact is reflected in the court records. While general legal principles remained unchanged, their application to new conditions imposed upon the judiciary new and more difficult duties.

The first session of the Court of Common Pleas of Franklin County was held in the town of Franklinton "on the first Tuesday in May, and on the third day thereof," as the record states it. The year is not given, but it was 1803. The court was held by the Associate Judges. The record runs as follows: "John Dill, David Jamison and Joseph Foos, Esquires, having been duly commissioned by his Excellency, Edward Tiffin, Esquire, Governor of the State of Ohio, as Associate Judges of the Court of Common Pleas for the county of Franklin, and having first taken the oaths of allegiance, as also the oath of office, assumed their seats. The court then proceeded to appoint their clerk, whereupon Lucas Sullivant was appointed Clerk pro tempore, who also took the oath of office." It seems that Benjamin White was Sheriff, and that no lawyers were in attendance. The record shows that the first and only judicial act of this first term of the court was an order, emblematic of the transitory nature of human interests, granting " the application of Joseph Foos and Jane Foos, widow and relict of John Foos, deceased, for letters of administration on his estate." The court then adjourned until the first Tuesday of the ensuing September, the date fixed for its next term.

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The Common Pleas record of the September term, 1803, reads thus :

At a court of common pleas begun and held in the town of Franklinton, on the first Tuesday in September, in the year of our Lord one thousand eight hundred and three, and of the State the first, before the Honorable Willys Silliman, Esquire, President, and David Jamison and John Foos, Esquires, two of the Associate Judges of said court, John S. Wills, Michael Baldwin, Philemon Beecher, William W. Irwin and Jonathan Reddick, intending to appear as attorneys in this court, took the oath of fidelity to this State, the oath to support the Constitution of this State, and the oath of an attorney-at-law, [and] they are severally admitted to practice as attorneys therein.

On the same day of the term the three commissioners -Jeremiah MeLene, James Ferguson and William Creighton - appointed by the General Assembly to fix the permanent seat of justice of the county, reported to the court that they had selected the town of Franklinton. The report was ordered to be recorded and the commissioners were allowed for their services - six days -the sum of twelve dol- lars, Jeremiah MeLene being allowed three dollars "additional for writing and cireulating the notices required by the law." As a further specimen of the com- pensation paid for public service at that time the following entry on the docket is here copied : "Ordered, that there be paid out of the county treasury unto John S. Wills, Esq., the sum of ten dollars as a compensation for his services as prosecuting attorney for the county during the present term." Probably that fee corresponded with the hotel bills of that early time.

The first regular business of the court at the September term, 1803, was to charge the Grand Jury, which " withdrew from the bar, and after some time returned into court" and made a presentment. It seems that in the preeed- ing June, Usual Osborn had committed an assault and battery upon Joseph Story " contrary to the laws of this State in such case made and provided." This indict- ment was signed by John S. Wills, Prosecuting Attorney pro tem. At the next term of the court, held in January, 1804, the Prosecuting Attorney refused to pros- eeute further on the indictment, probably on account of defects in it, and a new one was presented by the Grand Jury. The new indictment was " nol pros'd," in accordance, probably, with the terms of a settlement of a pending civil action for the same assault shown by the following entry on the record, the orthography, but not the italies being the same as in the original :

John Story, Plaintiff, against Usual Osborn, Defendant. In trespass vi et armis. This suit being agreed by the parties - It is ordered that their agreement be made the judgment of the court, which said agreement is in the words and figures following, to wit : "This is to surtify that John Story and Usual Osborn has settled thare sute themselves on these condi- tion. - Osbourn agreese to pay the cost of the Ritt and of three Supenes and half the court and Clarks fees, and John Story pays the balance of the cost. Given under our hands this 4th day of January 1804-we agree to here set our hands and seals.

JOHN STORY. [L. S.] ESUAL OSBOURN. [L. S. ]

Among the orders entered at this January term (1804) was the following : "Ordered, that there be paid unto Adam Hosack, Sheriff of this county, the sum of one dollar and fifty cents for summoning the grand jury for January term, 1804."

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It may be assumed, without entering into detail, that the routine business of the Court of Common Pleas of Franklin County continued from term to term and year to year in its ordinary course, except as now and then marked by cases of exceptional character. After the lapse of nearly ninety years we now find the same court continuing its sessions with two thousand cases on its docket and three judges on its bench - Eli P. Evans, Thomas J. Duncan and David F. Pugh ; occa- sionally assisted by Isaac N. Abernethy, all excellent judges.

The Superior Court of Franklin County was established by an act passed in 1857 and was abolished by law in 1865. The object of this court was to relieve the Court of Common Pleas, which had a larger docket than it could readily dispose of. But such courts being exceptional, and not in direct line with the other tribunals in the judicial system of Obio, they have not always been regarded with public favor, although conducted by able judges. Such was the case with the Superior Court of Franklin County. Two excellent lawyers successively occupied the bench of that court, the first being Fitch James Matthews, elected in 1857 and reelected in 1862, each time for a term of five years, but was obliged by failing health to resign in February, 1864. Judge Matthews was succeeded by J. William Baldwin, who was appointed by the Governor to fill the vacancy, and who served until the court was abolished about one year later. Noah H. Swayne, then a resident lawyer of Columbus, was a candidate at the first election for Judge of the Superior Court against Matthews and came within a few votes of being elected. Swayne's defeat was probably the greatest good fortune that ever happened to him except his appointment in January, 1862, by President Lincoln as an Associate Justice of the Supreme Court of the United States, a position to which he would probably never have acceded had he been elected to preside over the Franklin County Superior Court.

All the judges of the conrts under the Constitution of 1802 were elected by joint ballot of both houses of the General Assembly " for the term of seven years, if so long they behave well." Vacancies were filled by appointment by the Gov- ernor. Under the Constitution of 1851, all the judges are elected by the people for specified terms, the Common Pleas judges by the electors of each judicial sub- division for a term of five years, the Probate judge by the electors of the several counties, for a term of three years. Vacancies are filled by executive appointment and subsequent election by the people.

The City of Columbus is in the Common Pleas subdivision consisting of the counties of Franklin, Madison and Pickaway.

Wyllis Silliman, the first President Judge of the Franklin County Common Pleas, presided for the first time at the September term in 1803, and after his retirement resided at Zanesville, where he engaged in the general practice of law. When the writer was a small boy in Holmes County, Judge Silliman, then in advanced age, attended the courts there, and is remembered as a venerable gentle- man of fine presence and elegant manners. He was reputed to be an able and accomplished lawyer.

Without departing from the plan of this chapter, or making any formal attempt to write biography, mention may be made of three additional Common Pleas judges who lived and died in Columbus, viz .: Joseph R. Swan, James L.

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Bates, and John L. Green. Judge Swan's most useful and distinguished judicial service, was, perhaps, that which he performed on the Common Pleas bench dur- ing the fourteen years extending from 1834 to 1848 In the lower court in an extended circuit he was nearer to the people and the lawyers than he could be on the Supreme Bench to which he was promoted. His administration of the law in the Common Pleas was performed with such rare ability, impartiality and dignity as to produce respect for the courts, and it is no exaggeration to say that his judi- cial service honored his profession not only within the limits of his cirenit but far beyond them.

In 1851 James L. Bates was elected as the first Common Pleas judge in Frank- lin County under the Constitution of 1851, and was reelected without opposition in 1856, and again in 1861. His judicial service for fifteen consecutive years was efficient, impartial, conscientious and satisfactory to the people. He will long be remembered as an able and npright judge.

John L. Green succeeded Judge Bates by election in 1866, and was reelected in 1871 and 1876 for terms of five years each. He was a cultured gentleman, a good lawyer in all branches of jurisprudence, and adorned the Common Pleas bench with rare learning and ability.

Brief mention may be made also of the two judges of the Superior Court. Fitch James Matthews, the first judge of that court, is remembered as a good lawyer, an able and impartial judge and a good citizen. His successor, J. William Baldwin, served only about one year, but in a manner eminently satisfactory to the bar and the public. On the bench, as in the practice of his profession, he maintained a reputation for great learning in all branches of the law, but particularly in equity jurisprudence and the law of real property, in which he was more of a specialist than any of his contemporaries. His opinions in these branches were generally accepted as authority.

The difference between the Supreme Court in banc and the same tribunal on the circuit, during the first year or two in the history of this branch of our local jurisprudenec, is not easy to determine. The record in the first order book of the Supreme Court of " December term, 1810," in the Statehouse, shows that "at a Supreme Court of the State of Ohio, holden in the town of Franklinton, for the county of Franklin, on Monday the twentyfourth day of December, 1810, and ninth year of the State, the Honorable Thomas Scott, William W. Irwin and Ethan Allen Brown severally produced to the clerk commissions from his Excellency Samuel Huntington, Governor of this State, appointing them Judges of the Supreme Court of this State, and it appearing that they had regularly qualified thereto, they took their seats on the Bench . . . Thomas Scott, Chief Judge, and William W. Irwin and Ethan Allen Brown Judges of said court." The court was in session three days, and "appointed Lyne Starling Clerk of the Supreme Court for the county of Franklin for the term of seven years," and, " on motion of Charlotte Smith by John S. Wills, her attorney, her petition for a divorce was withdrawn." On a writ of error the court reversed a judgment of the Franklin County Common Pleas, and ordered to be entered and certified back to the Clerk of the Supreme Court of the counties five cases adjourned from Fairfield, two from Muskingum and one from

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Washington ; and it was further " ordered that this court be adjourned until court in course." A record is made of the same " December term, 1810," in the County Clerk's office. The next " court in course " for the county of Franklin was begun and held in Franklinton on November 29, 1811 ; present, Thomas Scott, Chief Judge, and William W. Irwin, Judge, as appears from Order Book Number One, in the Clerk's office in the Statehouse, but according to the recordIs in the County Clerk's office a term was begun and held " for the county of Franklin at Franklin- ton on the ninth day of December in the year of our Lord one thousand eight hundred and eleven, and tenth year of the State;" present, Thomas Scott, Chief Judge, and William Irwin and Ethan Allen Brown, Judges. The apparent confusion arises from the probable fact that the terms of the Supreme Court held at Franklinton in 1810 and 1811 were terms of the Supreme Court in banc as well as on the circuit, if any such distinction was then made.

There were seventeen cases, all told, on the docket of the Supreme Court at its December term in 1810. The last term of the Supreme Court on the circuit in Franklin County, under the Constitution of 1802, was that of November, 1851. It began November 27, of that year, and adjourned withont day, January 15, 1852; present, William B. Caldwell, President Judge ; Rufus P. Ranney, Judge ; and Lewis Heyl, Clerk. Yearly terms of the Supreme Court on the circuit, beginning in 1810, ended in 1852, when that court on the circuit and in banc, and the judicial system of which it was a part, were superseded by the District and Supreme courts provided for by the Constitution of 1851. The first term of the Supreme Court under that constitution was that of March, 1852, and was held in Columbus ; pres- ent, William B. Caldwell, Chief Justice, and Allen G. Thurman, Thomas W. Bart- ley, John A. Corwin and Rufus P. Ranney, Judges. Under successive judges this court has continued to be held in Columbus until the present time as the court of last resort in the State. Such has heen the increase of its business, in conformity with contemporary growth in the population and wealth of the State, that, at the beginning of its January term in 1892 there were over one thousand cases on its docket, an impressive showing when compared with the docket numbering only seventeen cases at the December term in 1810.

To relieve the congested state of business in the Supreme Court, a commis- sion of five members, each to serve three years, was appointed in 1876, and in 1883 a similar commission was appointed, the members of which were each to serve for a term of two years. The sessions of these commissions were held in Columbus.

The first case reported in the first volume of the Ohio Reports was that entitled " Lessee of Moore v. Vance," and was decided by the Supreme Court on the circuit held in Franklin County by Judges McLean and Hitchcock. It was an action of ejectment involving the title to a body of land in the Virginia Military Distriet, and the controversy related to the validity of a deed executed without attesting witnesses under the laws of the Territory and acknowledged outside of the Territory by one of its judges.

Of the thirty judges of the Supreme Court of Ohio under the Constitution of 1802 not one survives, Judge Rufus P. Ranney who recently died being the last of

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the number. Of the five judges who constituted the court at its first session under the Constitution of 1851, the sole survivor at the present time is Judge Allen G. Thurman, the " Nestor of the Ohio Bench and Bar." Of the successors of those first five judges, numbering thirtythree in all, only ten, including the five now in com- mission, are yet living. The writer would deem it a labor of love to recall many of these eminent jurists by name and characterize their abilities and virtues in affectionate terms, but this is not the place for eulogy. "They have ceased from their labors, and their works do follow them." The present Supreme Court is con- stituted as follows: William T. Spear, Chief Justice ; Joseph P. Bradbury, Frank- lin J. Dickman, Thaddeus A. Minshall and Marshall J. Williams, Judges.

The first case decided by the Supreme Court of Ohio, held by all its judges, sitting as a court in banc, was disposed of at a special session held at Columbus in December, 1823. It was entitled " Luckey v. Brandon and others," and is reported in 1 Ohio, 50. It was reserved from Stark County and relates to a debtor imprisoned within jail limits under statutes authorizing imprisonment for debt. The court humanely decided that the debtor thus imprisoned might go into private houses or labor ou private grounds, within such limits, without being guilty of an escape. In the progress of civilization in this State, imprisonment for debt and other relies of barbarism have happily disappeared, in obedience to an enlightened and humane public sentiment.

Under the Constitution of 1851, a District Court was provided for each county, to be held by a judge of the Supreme Court and three judges of the Court of Com- mon Pleas of the judicial district, any three of these functionaries to constitute a quorum. The first district court in Franklin County was beld in June, 1852. It was formally opened June 15, and there were present James L. Bates, Sheppard F. Norris, and John L. Green, judges of the Court of Common Pleas. The first order entered was, that H. B. Carrington, E. Backus, N. H. Swayne, Henry C. Noble and John W. Andrews, or any three of them, be appointed a committee for the examination of applicants for admission to the bar. On the next day, June 16, 1852, the court met pursuant to adjournment, there being present Thomas W. Bartley, a judge of the Supreme Court, and the same judges as the day before. The term ended on the third day by a sine. die adjournment. For some succeed- ing years the District Court of the county was composed of a judge of the Supreme Court and judges of the Court of Common Pleas, but the docket of the Supreme Court increased so rapidly that the judges of that court could not meet its require- ments and also attend the district courts ; consequently, contrary to the intention of the constitution, the district courts were left in charge of the judges of the Court of Common Pleas; and, whether with or without good reasons, became unsatisfactory. One of the chief objections urged against the District Court as held by the Common Pleas judges, was that in the District Courts they sat in judg- ment on their own rulings in the Court of Common Pleas ; and although attempts were made by legislation to obviate that objection, the District Court came more and more into disfavor until it was superseded by the Constitutional Amendment of 1883, providing for a Circuit Court composed of judges having no connection

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History of the city of Columbus, capital of Ohio, Volume I, Part 77

Author: Lee, Alfred Emory, 1838-; W. W. Munsell & Co Publication date: 1892 Publisher: New York and Chicago : Munsell & Co. Number of Pages: 1202

Author: Lee, Alfred Emory, 1838-; W. W. Munsell & Co
Publication date: 1892
Publisher: New York and Chicago : Munsell & Co.
Number of Pages: 1202