History of the city of Columbus, capital of Ohio, Volume I, Part 78

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 78

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with the lower courts upon the judgments of which the Circuit Court would sit in review.

The first term of the Circuit Court for the Second Circuit, composed of the counties of Franklin, Preble, Darke, Shelby, Miami, Montgomery, Champaign, Clark, Greene, Fayette and Madison, organized under the Constitutional Amend- ment of 1883, and the statutes in aid of it, was held in Columbus, beginning Feb- ruary 23, 1885, the judges present being Marshall J. Williams, Presiding Judge, and John A. Shauck and Gilbert H. Stewart. The court consists of three judges, who are elected for a term of six years, after the first election, by the people of the circuit; and any two of them constitute a quorum. The only change which has taken place in the personnel of the court has been made by the election of Charles C. Shearer in place of Judge Williams elected to the Supreme Bench. The Circuit Court has proved to be very satisfactory, and deserves and receives the confidenee of the bar and the public. Its business in Franklin County is large and increas- ing. At its June term in 1852, the District Court in the county was leisurely occupied only a little over two days in the discharge of its business, whereas the business of the Circuit Court at its January term in 1892, taxed the best energies of its judges for sixtysix days.

Soon after the seat of government of the State was permanently established the General Assembly passed a resolution requesting Congress to transfer the National Courts from Chillicothe to Columbus, and the transfer was made. The first session of these courts in Columbus was held in a brick building subsequently used as a hotel and known as the " Buckeye House," on Broad Street, located at the present site of the Board of Trade Building, which is its immediate successor. In 1821 the General Assembly by resolution authorized these courts to hold their sittings in the hall of the House of Representatives in the first Statehouse. The sittings were accordingly held there until a courthouse " for the reception of said courts " was erected mainly with money contributed by citizens of Franklin County. This was, as we have seen, the first county courthouse erected in Colum- bus. Its location and appearance have been described in a preceding chapter. The National Courts were held in it until their removal to Cincinnati and Cleve- land. After those courts were reestablished in Columbus, on the creation of the Eastern Division of the Southern District of Ohio, in 1880, they were at first held in the Council Chamber in the City Hall, and subsequently and until the comple- tion of the present United States Building, at the southeast corner of State and Third streets, in rooms in the second story of the brick building at the south west corner of State and Fourth streets.

Charles Willing Byrd was the first United States District Judge in Ohio. He was born in Virginia and educated in Philadelphia. After serving as the first Secretary, and for a time as acting Governor, of the Northwest Territory he became, on the admission of Ohio to the Union, a United States District Judge by appointment of President Jefferson. He remained in commission until his death in August, 1828, when President John Quincy Adams nominated as his successor William Creighton, Junior, of Chillicothe, but for partisan reasons this nomination was not confirmed by the Senate. Judge Creighton's services in connection with

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the United States Court at Columbus therefore lasted only from November 1 to December 31, 1828. In March, 1829, President Jackson nominated to the vacancy John W. Campbell, of Brown County, and this appointment was unanimously con- firmed. Judge Campbell accepted the office, and in 1831 removed to Columbus, where he continued to reside until his death in 1833, at Delaware, whither he and his wife had gone to visit the springs for rest and recuperation after exhausting vigils with the sick and dying during the cholera epidemie of that year. Upon the death of Judge Campbell President Jackson nominated Benjamin Tappan, of Steubenville, as his successor. He held court only three days - December 23, 24 and 25, 1833 - the Senate refusing to confirm his nomination. The Tappans were of Massachusetts origin. Benjamin was a brother of Arthur and Lewis Tappan, merchants of New York, both pronounced in their antislavery sentiments. Arthur was the founder of Oberlin College. In 1834 President Jackson followed up the unconfirmed nomination of Judge Tappan by sending in the name of Humphrey H. Leavitt, who was confirmed and continued to serve until his death in 1871, whereupon President Grant appointed Philip B. Swing, of Clermont County, to the vacancy. Judge Swing served until his death in 1882, when William White, of Springfield, was nominated and confirmed as, his successor, but died shortly afterwards and was succeeded by George R. Sage, of Lebanon, Ohio, appointed by President Arthur. Judge Sage took his seat upon the bench in Columbus during the month of June, 1883, and is still in commission.

Pursuant to an act of Congress passed in 1842, the summer term of the National Courts was held at Cincinnati and the winter term at Columbus; finally the removal of these courts from Columbus was made complete, and in 1855 the State was divided by act of Congress into two judicial districts, the counties of Belmont, Guernsey, Licking, Franklin, Madison, Champaign, Shelby and Mercer and all counties south of these to constitute the Southern District with the courts at Cincinnati, and all the counties north of those just named to constitute the Northern District with the courts at Cleveland. Judge Leavitt and his successors were assigned to the Southern District ; Judge Wilson, appointed and confirmed as District Judge for the Northern District, was succeeded by Judges Sherman, Welker, Day and Judge Ricks, the present incumbent.

On February 4, 1880, the President approved an act of Congress reorganizing the Southern District of Ohio in two subdivisions known as the Eastern and Wes- tern, transferring certain counties from the Northern to the Southern District, and providing for eireuit and district courts to be held at Columbus on the first Tuesday in June and December each year, for the Eastern Division, comprising twentynine counties. The first sittings of the courts which took place in pursuance of this act were held in the Council Chamber in the Columbus City Hall on the first Tuesday in June, 1880. The Judges present were Noah H. Swayne, Associate Justice of the Supreme Court of the United States, and Philip B. Swing, District Judge. To signalize this occasion the Columbus Bar, on the evening of June 1, 1880, gave a banquet to the United States Judges and other court officials at the rooms of the Tyndall Association in the City Hall. An address of welcome was delivered by Henry C. Noble, and was responded to by Justice Swayne. In response to toasts,

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addresses were delivered by Judges P. B. Swing, William White and Joseph R. Swan, and by Hon. Richard A. Harrison.

At subsequent terms of the United States Courts at Columbus, no Judge of the Supreme Court was present ; but, in pursuance of an act of Congress creating cir- cuit judges, John Baxter, of Knoxville, Tennessee, was appointed judge for the Sixth Circuit, and was present with the District Judge, as was also Howell E. Jackson, of Nashville, Tennessee, appointed Circuit Judge on the death of Judge Baxter. At the sittings of these courts in Columbus for the June term of the year 1883, George R. Sage, District Judge, was on the bench, as he has been at nearly every subsequent term except as occasionally relieved by exchange with other dis- trict judges. In such exchanges Judges E. Shelby Hammond, of Tennessee, and Henry F. Severens, Henry H. Swan, and Henry B. Brown of Michigan, have occupied the bench in Columbus. Judge Brown is now an Associate Justice of the Supreme Court of the United States.

While it is impracticable and would be unprofitable to burden this chapter with details of court proceedings, some cases of more or less interest may be given, as illustrating the character of litigation at different periods.

Early in the history of Ohio it became very evident that the section of the Constitution of the United States, and supplementary acts of Congress, providing for the reclamation and surrender of fugitive slaves were odious to many persons in this free State, and were really favored by only a small and diminishing minority. Ohio being situated contiguous to the slave sections of the Union, the escape of bondsmen into her territory was easy and frequent, and bitter contests often took place between the claimants and abettors of the fugitives. Columbus being within easy reach of the river border, it was one of the way stations on the " underground railroad " from thence to Canada, and became the scene of many of these contentions. A few of the cases which thus arose and were brought before the courts and judges at the capital may be mentioned :

In February, 1845, Jane Garrison, a colored woman, with her little boy named Harrison, was living as a servant in the family of Mr. Parish, a lawyer of San- dusky, Ohio. A man named Mitchell appeared and claimed the mother and child as fugitive slaves belonging to Driskell, a Kentuckian, and meeting Mr. Parish near his residence, went with him to the house, where Jane Garrison was called out. Mitchell subsequently stated that he insisted npon arresting Jane and the boy on a power of attorney which he held at that time, but that Parish said be should not do so, as it required judicial authority to take them, and that he (Parish) pushed them into the house and went in himself. Parish claimed that he only insisted that the alleged slaves should have a fair trial, and if Mitehell estab- lished his right to take them he could do so; also that Mitehell assented to this and went away without attempting to arrest the alleged fugitives. Driskell brought suit against Parish in the United States District Court, in Columbus, under the Fugitive Slave Law for penalties for harboring, concealing and obstruct- ing the arrest of fugitive slaves. The case was tried before Justices McLean and

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Leavitt, and a jury, in November, 1847. Henry Stanbery and James II. Thomp- son represented Driskell, and Salmon P. Chase and John W. Andrews appeared for Parish. Under the charge of the court the jury found Parish guilty, and the court, refusing to set aside the verdict, entered judgment against him for two penalties of five hundred dollars each, which, with costs, Parish paid.

In March, 1846, William Henderson, Justice of the Peace, had his office in Franklinton. On the twentyseventh of that month, between seven and eight o'clock in the evening, Jerry Finney, a colored man residing with his wife and children in Columbus, brought a trunk to Henderson's office from a hotel in Columbus at the request of Jacob Armitage, upon the representation that a couple were to be married at the magistrate's office that evening, and then leave clan- destinely. On arriving with the trunk Finney found no light in the office except from the stove, but Armitage, William Henderson, Henry Henderson, David A. Potter, Daniel Zinn and John Stephenson were there, and were immediately joined by Alexander C. Forbes. The door being locked, Forbes seized Finney and called for assistance, wherenpon Potter and Stephenson assisted in tying and handeuffing Finney, Forbes taking the handeuffs from under a bed in the office. When Finney was seized he screamed, but his second and subsequent screams were partly smothered by Forbes, who placed his hand over the captive's month. A candle was then lighted, whereupon Finney asked for some water, was told there was none in the room, and was presented by Forbes with a drink of whisky from a bottle taken from under the bed. Finney then asked to see his wife and children, and was told that he was seized for reclamation as a fugitive slave from Kentucky. He then said he wanted a fair trial, and desired to have certain wit- nesses which he named sent for to prove that he was entitled to his freedom. Justice Henderson replied that Forbes had papers sufficient for a trial withont witnesses. Forbes was sworn and Henderson asked him whether Finney was the man he wanted. A few other questions were asked about the captive's identity, and Forbes signed a paper which Henderson retained, and Henderson delivered a paper to Forbes. The papers thus exchanged had been previously prepared. Finney admitted that he had once been a slave in Kentucky, but claimed that he was brought to Ohio by or with the consent of his owner and had thereby become a free man. The office door was then unlocked by Henry Henderson and Finney was taken ont and placed in Zinn's back which, after Forbes and Armitage had also got into it, was driven off. They took Finney to Mrs. Bathsheba D. Long, in Frankfort, Kentucky. Forbes claimed to be Mrs. Long's agent to reclaim Finney and take him back to slavery. He also claimed that his captive had been born a slave and had escaped from his mistress about fifteen years before that date. The next day, in reply to an inquiry as to why witnesses had been refused when Finney called for them, Justice Henderson said that no witnesses were necessary, as Forbes had brought a power of attorney and depositions to show his authority, and prove that Finney was a slave. To the inquiry why it was that Finney had been decoyed to Franklinton at night to have a trial without wit- nesses, and why he was not arrested in Columbus where there were magistrates,

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Henderson said that the Columbus magistrates were "a set of damned aboli- tionists," and would not give Forbes and Armitage justice.

When Finney took the trunk to Henderson's office, a colored boy was with him and is said to have been detained several hours to allow the kidnappers time to escape with their victim and reach the cars at Xenia before they could be overtaken. As soon as the boy was released he gave the alarm and there was great excitement in Columbus. A pursuing party was organized and started on fleet horses, but failed to reach Xenia before the train with Finney and his abductors on board had left there for Cincinnati. The pursuers pushed on to that city but did not reach there until after Finney had been hurried into a mailboat and taken across the river to Kentucky, on the way to Frankfort in that State.

The excitement in Columbus as to the outcome of the pursuit was only excelled by the public feeling against the kidnappers and against Justice Henderson and their other abettors, who were arrested and, after a preliminary examination con- ducted by Aaron F. Perry, then Prosecuting Attorney for the State, and by Fitch James Matthews and Albert B. Buttles for the defendants, were recognized to the Court of Common Pleas, and in default of bail were committed to the county jail. An immense public meeting was held at the Town Street Methodist Episcopal Church, at which spirited addresses were delivered by Samuel Galloway, Rev. Granville Moody and others, and resolutions were adopted fiercely denouncing Finney's abduction and all connected with it, and expressing a determination " to rescue him from the scoundrels who stole him from his family." In the mean time Colonel Miner, of Cincinnati, and Messrs. Cowles and Bartol, of Columbus, at once proceeded to Frankfort to see what could be done for Finney's release. Awaiting the result of their efforts, a purse of five hundred dollars was raised by the citizens of Columbus to be added to a like sum to be offered by the Governor, for the pur- pose of bringing the kidnappers to justice.

It was stated at the time that before taking steps to arrest Finney Forbes applied to Judge Joseph R. Swan, who had resumed the practice of law, for counsel, and had been refused. By affidavit before Alexander Patton, a justice of the peace in Columbus, in April, 1846, Forbes and Armitage were charged with violating the laws of Ohio in forcibly seizing and abducting Finney, and a requisition was issued by Mordecai Bartley, Governor of Ohio, upon the Governor of Kentucky, demand- ing their surrender to William Johnson, Esq., as agent and counsel for Ohio, to be brought back to this State as fugitives from justice. They were arrested on the warrant of the Governor of Kentucky, and brought before Mason Brown, a Circuit Judge in that commonwealth, for inquiry as to their guilt or innocence under the Kentucky statute of 1820 in relation to fugitives from justice, providing that in case of proof of ownership, the persons abducting a runaway slave, whether prin- cipal owners or their agents, shall be discharged from custody. Forbes and Arm- itage were discharged under that statute, although counsel for Ohio contended that the Kentucky statute was contrary to the Constitution of the United States, and that slavery, being contrary to natural law, existed only by municipal law, and being thus local and confined to the territorial limits within which it is sanctioned,

Most truly you've , Richard A. Harrison.

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a slave once free is always free ; and that Finney, having been brought to Ohio by the consent of his Kentucky owner, thereby became a free man.

In July, 1846, the Grand Jury of Franklin County indicted Forbes for the seizure and abduction of Finney without first taking him before a magistrate in the county and establishing his identity and ownership, and the authority of Forbes to act, as required by the laws of the United States and of Ohio. Armitage was also indicted, as were Henderson and others, as aiders and abettors of Forbes. James Cherry was Foreman of the Grand Jury and A. F. Perry Pros- ecuting Attorney. Forbes was never brought to trial, but at a special term of the Court of Common Pleas in September, 1846, Armitage, who had returned to Ohio, was put on trial with Henderson and his other accessories. William Dennison was appointed by the court to assist the Prosecuting Attorney ; Noah H. Swayne, John Brough and Fitch James Matthews represented the defense. Two days were consumed in impaneling a jury. George Riordan was challenged as a juror for suspicion of prejudice because of having expressed the opinion that the Associate Judges had shown partiality and unfairness in overruling the President Judge on some preliminary question, and having said that in case the Associate Judges differed from the President in charging the jury he would follow the President and not the Associates.

The taking of testimony occupied a week or more and the arguments of coun- sel and the charge of the court occupied a day or two. After deliberating seven hours the jury returned a verdict finding Justice Henderson guilty, and acquitting all the other defendants on the ground, mainly, as was said, that those acquitted were ignorant of the law and of the facts as to Finney's freedom. Those acquitted were discharged from custody, but Justice Henderson was committed to jail to await sentence, which was suspended until the next term, when judgment of imprisonment in the Penitentiary was entered against him.

During the trial one of the jurors was excused by consent of parties and the trial went on with the other eleven. A transcript of the docket entries of the pro- ceedings in Finney's case before Justice Henderson was put in evidence by the defense, and a bill of exceptions was taken by him, the State claiming that Hender- son had not acted in good faith. Upon the exceptions Henderson proscented a writ of error before the Supreme Court in banc and the case was there decided in January, 1847. The court, Wood, Chief Justice, reversed the sentence of Hender- son, holding: 1. That a juror could not be withdrawn by consent in a criminal case and the trial proceed. 2. That Henderson, being a justice of the peace, acted in a judicial capacity, and had jurisdiction in the case of an escaping slave, and that consequently his proceedings could not be called in question for not act- ing in good faith, as he would be protected by the doctrine of judicial immunity. 3. That in consequence of this judicial immunity he would not be liable to an indictment, but could be called in question only by impeachment. While Henderson was in jail awaiting sentence, Finney was brought back from Kentucky where he had been confined in the Penitentiary, and was restored to his family in Columbus. His release was obtained by the payment of five hundred dollars con- tributed by citizens of Columbus.

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In March, 1855, Rev. H. M. Denison, desiring to send his slave girl Rosetta from Louisville, Kentucky, to Wheeling, Virginia, entrusted her conveyance to a friend, in whose charge she left Louisville for Wheeling, but the custodian of the girl not finding a boat at Cincinnati, decided, after consultation, to cross the State of Ohio by the Little Miami Railway to Columbus and thence by the Central Ohio Railway through Zanesville to Wheeling. He took that route on a Saturday under the impression that the cars ran directly through. After being on the train some time he was surprised to learn that it would be delayed at Zanesville over Sunday, whereupon, apprehending less trouble from " abolitionists " at Columbus, where he had formerly lived, than at Zanesville, he decided to remain over Sun- day at a private house at the capital, where he hoped to escape observation, but soon after he had taken his lodgings in Columbus some colored women were seen making observations; nor was it long until application was made to Hon. Joseph R. Swan, a judge of the Supreme Court of Ohio, for a writ of habeas corpus to bring Rosetta before him for inquiry into the legality of her detention. The writ was executed by the Sheriff, and it appearing that although a slave in Kentucky she had been brought into Ohio by her owner's consent, Judge Swan held that thereby she became a free person and set her at liberty. The girl being a minor, sixteen years of age, and L. G. Vanslyke having been appointed ber guardian, she was placed in his custody. Rev. Mr. Denison visited the girl at Mr. Vanslyke's house and told her that he had come for her, but that as she was in a free State she could remain if she chose to do so. After brief deliberation the girl concluded to remain in a free State rather than return to slavery. Thereupon Rosetta was placed by her guardian in the family of Doctor J H. Coulter, of Columbus. On March 23, two men called about noon at Doctor Coulter's residence and said they wished to consult him professionally. As they passed through one of the rooms they dis- covered Rosetta, and one of them, whom she recognized as a person she had seen in Louisville, spoke to her, and they had a word of conversation. The other man produced a paper and told Doctor Coulter that it was a warrant issued by a United States Commissioner for the arrest of Rosetta as a fugitive slave, and asked him whether he intended to resist their taking the girl with them. He said he should resist until he had time to consult with his friends, and immediately went to a near neighbor and gave the alarm. As soon as he left the house the two men seized Rosetta, one on each side, and hurried her to a close carriage which stood in waiting. She was not even allowed time to put on a bonnet or a shawl. Just as Doctor Coulter returned, the two men were putting her into the carriage which they had procured at a livery stable. . They then drove hurriedly to the railway station and transferred their captive to the cars which were about ready to start for Cincinnati. Meanwhile the alarm spread and several citizens reached the station before the train started. The men having the girl in possession claimed to have legal process, and by presentation of papers and revolvers showed that they were determined to take her with them. Mr. Van Slyke and Doctor W. E. Ide proceeded to Cincinnati with the girl and her captors, and there defeated their plan to take her at once before United States Commissioner Pendery, who had issued the warrant. This was accomplished by obtaining a writ of habeas corpus in

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pursuance of the counsel of Salmon P. Chase, who had just completed his term in the United States Senate. Upon this writ Rosetta was brought before Judge Parker of the Court of Common Pleas, where Mr. Chase appeared in her behalf, accompanied by Judge Timothy Walker, a distinguished member of the bar, and R. B. Hayes, a promising young lawyer of Cincinnati. George E. Pugh, Mr. Chase's successor in the National Senate, and Judge Jacob Flynn, of Cincinnati, appeared on behalf of Mr. Denison.

After extended argument by counsel Judge Parker held that as Rosetta had been brought from Kentucky into Ohio by her master or his agent she was free and should be delivered to the custody of Mr. Van Slyke, her guardian. To avoid apprehended danger that the girl, if delivered in the courtroom, would be imme- diately seized again by the United States Marshal, Mr. Chase applied to Judge Parker for an order that the Sheriff should protect the girl at some safe place until surrendered to her guardian. The order was made and Rosetta, followed by an immense crowd of people, was taken to the Woodruff House in Cincinnati, and was there restored, amid great excitement, to her guardian, but was soon afterwards rearrested by United States Marshal Robinson and taken before Commissioner Pendery, who, after argument, discharged her from custody, as had previously been done by Judge Swan, at Columbus, and by Judge Parker at Cincinnati. While the hearing was going on before Commissioner Pendery, Judge Walker and Mr. Chase procured process against the Marshal for contempt of court in rearrest- ing the girl, and he was taken into custody by the Sheriff. The Marshal, in turn, applied to Judge MeLean, of the United States Supreme Court, for a writ of habeas corpus, and was discharged from the custody of the Sheriff upon the ground that a state court or judge had no jurisdiction to discharge any person held as a fugitive slave under process authorized by the Fugitive Slave Act. Meanwhile Rosetta was at liberty and remained in the custody of her guardian, Mr. Van Slyke, who brought her back to Columbus.

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History of the city of Columbus, capital of Ohio, Volume I, Part 78

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