History of the city of Columbus, capital of Ohio, Volume I, Part 79

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 79

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

At the time this slave girl was abducted from the house of Doctor Coulter by the United States Marshal, a wealthy lady from New England, who happened to be in Columbus at that time, became interested so much in her that upon her return as a free girl she took her, with her full consent, to New England, and had her educated in one of the best seminaries of the country. Rosetta was bright, intelligent and every way deserving of this partiality. In recognition of Mr. Van Slyke's arduous efforts in obtaining the girl's rescue from slavery the colored people of Columbus presented to him a silver pitcher. The ceremony took place at the City Hall and was accompanied by earnest and eloquent addresses, and by songs of rejoicing.

On Saturday evening, May 25, 1855, the following entry appeared on the register of the American Hotel in Columbus: " P. Erican, three ladies, one child and two servants." Mr. Erican was a Frenchman from New Orleans, en route to Europe, and intended stopping over for a day or two in Columbus. On the evening of May 28, C. Langston, a colored resident of this city, made application to Joseph R. Swan, a Judge of the Supreme Court of Ohio, for a writ of habeas corpus, alleg- ing on oath that the two servants were unlawfully deprived of their liberty. The

604

HISTORY OF THE CITY OF COLUMBUS.

writ was issued about midnight to Sheriff Thomas Miller, who proceeded with it to the American Hotel and aroused Mr. Erican from his bed and informed him of the object of his visit. Mr. Erican expressed his readiness to have the case examined into, and it was agreed that the two girls should appear before the Judge the next day. They appeared in conformity with this promise, and on inquiry declared their desire to go with their master, which they were permitted to do. They were escorted to the train by the Sheriff and the costs of the pro- ceeding were adjudged against Langston. L. G. Van Slyke, Doetor J. H. Coulter and H. B. Carrington took an interest with Langston in the case.

The eases entitled " Ex parte Simeon Bushnell" and "Ex parte Charles Langston," reported in 9 Ohio State Reports, 77, were brought on habeas corpus issued on the separate applications of Bushnell and Langston by order of the Hon. Josiah Scott, a Judge of the Supreme Court of Ohio, in May, 1859, directed to David L. Wightman, Sheriff of Cuyahoga County, by whom, as was said, Bushnell and Langston were held in custody in the jail of that county, and there- by unlawfully deprived of their liberty. The writs were returned with the per- sons of Bushnell and Langston before the full bench of judges of the Supreme Court of Ohio at their chambers in Columbus. The bench consisted of the Hon. Joseph R. Swan Chief Justice, and Jacob Brinkerhoff, Joseph Scott, Milton Sut- liff and William V. Peck, Judges. From the return to the writs it appeared that Bushnell and Langston had been severally indicted and convicted in the United States District Court at Cleveland, and sentenced to imprisonment in the jail of Cuyahoga County for violating a provision of the Fugitive Slave Act of 1850 in the rescue of a colored man named "John," claimed to be a fugitive slave whose service was due to his owner, and who was then in the custody of the owner's agent to be returned to servitude. Under the writs the release of Bushnell and Langston from imprisonment was sought on the ground that the Fugitive Slave Act was unconstitutional in specified particulars. Bushnell and Langston being present before the judges, it was insisted by their counsel that they were unlawfully deprived of their liberty and should be discharged. The counsel for the Govern- ment of the United States insisted that the relators should be remanded to impris- onment.

A. G. Riddle made an oral argument on behalf of Bushnell and Langston, and Christopher P. Wolcott, Attorney-General of Ohio, made one on behalf of the State, also insisting on the discharge of the prisoners. Mr. Wolcott's argument, covering eightyfour pages of the report of the case, was at the time and has sinee been regarded as exceptionally able, and was printed in full in the report of the case by special direction of the court. G. W. Belden, United States District Attorney, and Noah H. Swayne, appeared as counsel for the United States Government, and presented a brief of points and authorities, but did not make any oral argument. The day of the hearing was a beautiful one in May, and the spacious Supreme Courtroom in the Statehouse was filled with distinguished lawyers and citizens from all parts of the country, as the contest was deemed to be in some respects one between the State and the National Government, and there was considerable apprehension that this controversy in the forum might end

605

BENCH AND BAR.

in a conflict of arms, as there was in the courtroom a rumor, happily unfounded, that a national armed vessel was ready on the lakes to steam into the port of Cleveland to vindicate the national authority in case of an adverse decision by the judges. In due time after the argument the decision of a majority of the judges was announced by Chief Justice Swan, with whom Judges Peck and Scott concurred, remanding the relators into the custody of the Sheriff of Cuyahoga County. Judge Peck delivered a concurring opinion. Judges Brinkerhoff and Sutliff each delivered dissenting opinions and concurred that the relators should be discharged. Public sentiment was strongly in favor of the discharge of the prisoners, as was wellknown to the judges, but their action was not swayed by it, both the majority and the minority pursuing solely their honest convictions of dnty. In the majority opinions it was held that the provisions of Article 4, Section 2, of the Constitution of the United States, guaranteed to the owner of an escaped slave the right of reclamation, and that a citizen who knowingly and intentionally interfered for the purpose of rescue of an escaped slave from the owner thereof was guilty of a violation of the Constitution of the United States, whether the acts of 1793 and 1850, commonly called the fugitive slave laws, were unconstitutional or not.

The elaborate opinions delivered by the judges, both majority and minority, were at the time and have since been regarded as able presentations of the con- flicting interpretation of the fugitive slave sections of the constitution - interpre- tations influenced on the one side by conservative adherence to the supremacy of law, and on the other by an equally persistent adherence to the dictates of human- ity. Both elasses of interpreters were loyal to the truth as they saw the truth. I well remember the day when those opinions were delivered. The majority opinion was not on the popular side. That fact had no possible effect to weaken the firm purpose of the majority judges to declare the law as they understood it.

In the closing of Judge Swan's opinion he rises to the moral grandeur of a martyr :

As a citizen I would not deliberately violate the constitution or the law by interference with fugitives from service, but if a weary, frightened slave should appeal to me to protect him from bis pursuers it is possible I might momentarily forget my allegiance to the law and constitution and give him a covert from those who were upon his track. There are, no doubt many slaveholders who would thus follow the impulses of human sympathy ; and if I did it and were prosecuted, condemned and imprisoned and brought by my counsel before this tribunal on a habeas corpus and were then permitted to pronounce judgment in my own case, I trust I should have the moral courage to say. before God and the country, as I am now compelled to say under the solemn duties of a judge bound by my official oath to sustain the supremacy of the constitution and the law : " The prisoner must be remanded."

In closing his concurring opinion Judge Peck gave expression to like senti- ments. In Mr. Wolcott's argument reference was made to a possible conflict between the National and State Government in the event of the discharge of the prisoners. " And are you, therefore," said he, " to remand these applicants to an unlawful imprisonment ? If these be the only alternatives, if collision can be avoided only by striking down every safeguard with which the constitution has

606

HISTORY OF THE CITY OF COLUMBUS.

hedged about the liberty of the citizen, let collision come - come now. But there will be no collision. These threats and fears are alike idle."

In reference to that language Judge Peck, deprecating the policy of holding an act of Congress of even doubtful constitutionality invalid, contrary to a long line of decisions by the national courts, and thereby bringing about a conflict of jurisdiction between the national and state courts and possible collision between the national and state government, used these words :

If the revolution alluded to in the argument must come, let it not be precipitated by the courts ! If the arch of our Union is to be broken into fragments, let other heads and other hands than ours inaugurate and complete the Vandal work.

In less than two years from the date of the decision of that case the collision had come, not because of that decision, but in the forward march of the national destiny toward a higher civilization wherein, it may be hoped, such conflicts between law and humanity cannot arise.

Another case worthy of special mention is that entitled " The Bank of the United States v. Ralph Osborn, Auditor of State et al." Under an act of the General Assembly of Ohio levying a tax on all banks and banking associations transacting business in this State without being authorized by its laws, a tax of fifty thousand dollars per annum was levied on each of the two branch offices of discount and deposit of the Bank of the United States established in this State, one at Cincinnati and the other at Chillicothe. In the year 1819, one hundred thousand dollars was levied on these branches and collected by the State Auditor, Mr. Osborn, and an assistant named Harper, by force, under authority of the State law. To recover back this amount the Bank brought an action of trespass in the Circuit Court of the United States at Columbus against the Auditor, his sureties and assistants, for breaking and entering the branch offices and carrying away the money, in disobedience to an injunction theretofore granted by the Cir- cuit Court. In these legal proceedings Henry Clay and Mr. Bond represented the United States Bank, and Charles Hammond, John C. Wright, Gustavus Swan and Mr. Goodenow represented the defendants. The case came to trial in January, 1821, before Justice Trimble, of the Supreme Court of the United States, and Dis- trict Judge Byrd. The court occupied the Representatives' Chamber in Columbus, and was attended by an immense concourse of people. Mr. Clay, on behalf of the Bank, moved the court for an attachment against Auditor Osborn and Harper, his collector, for contempt in disobeying the injunction against the collection of . the tax; and moved against State Treasurer Sullivan to require him to answer a bill in chancery filed by the Bank for sequestrating the tax collected by the Auditor ; but these motions were withdrawn and a compromise was effected by the passage of a bill through the General Assembly, on January 31, 1821, to refund ninety thousand dollars of the sum collected in 1819, the tax being deemed unreasonable and excessive, and the Bank agreeing to submit to a tax of four per cent. on its dividends, and to discontinue its suits.

The first case taken on error to the Supreme Court of the United States from the National court in the District of Ohio, was a case in ejectment brought by Jackson vs. Clark to recover a tract of land lying in the Virginia Military District.

607

BENCH AND BAR.

The counsel in the case were Leonard and Hammond for the plaintiff, and Creigh- ton and Ewing for the defendant. Chief Justice Marshall delivered the opinion of the Supreme Court at the January term, 1828. The case is reported in 1 Peters, 628. The court held that

The United States having received the cession of the land northwest of the Ohio River not only in trust for the Virginia troops on the continental establishment but also for the use and benefit of the members of the Confederation, have the right to prescribe the time within which Virginia military warrants might be located, and to annex conditions to the extension of the time; and that under the act of March 2, 1807 (2 Statutes at Large, 424) defective sur- veys protected the land from being patented under subsequent warrants and surveys by those claiming under the United States.

In thus holding, the Supreme Court affirmed the ruling and decree of the court in Ohio held by Judge Byrd at Columbus, and settled vital questions in regard to land titles in the Virginia Military District. The case is a good specimen of the character of litigation in those early days.

We come now to one of the most interesting and celebrated episodes in the history of Ohio litigation. In December, 1852, upon the affidavit of Sidney C. Burton, a writ was issued for the arrest of Lyman Cole, Amasa Chapin, Lorenzo Chapin, James W. Chandler, Willam F. Kissane and William H. Holland, upon the charge of conspiring to burn and of actually burning the steamboat Martha Wash- ington and her cargo on the Ohio River, on December 15, 1851, in order to defraud certain insurance companies which had written policies on the boat and its cargo. These accused persons were arrested and brought before P. B. Wilcox, a United States Commissioner at Columbus, for a preliminary examination which lasted until January 14, 1853. On January 17, of that year, Commissioner Wilcox held all the defendants to bail to answer in the United States Court, before which tribunal they and others with them were indicted by the Grand Jury in the following May. On this indictment trial took place in October, 1853, Judge McLean presiding. The District Attorney, assisted by Henry Stanbery and by Mr. Ware, of Cincinnati, conducted the prosecution, and Thomas Ewing, Walker & Kebler, George E. Pugh, George H. Pendleton, Ex-Governor Morehead, of Kentucky, R. H. Stone, T. J. Gallagher, D. Brown, Noah H. Swayne and Samuel Galloway conducted the defense. The trial attracted great interest not only by the enormity of the charge against the prisoners but also on account of the eminence and zeal of the counsel engaged. It seems that the court entered an order forbidding the publica- tion of the testimony, and that for a violation of the order Judge McLean, on motion of Mr. Ewing, expelled from the courtroom two reporters for the Cincin- nati Sun. But the order forbidding publication of the testimony was subsequently rescinded.

After a trial lasting many days the testimony was closed, and the District Attorney made before the jury the opening argument for the prosecution, the expectation being that he would be followed by Mr. Ewing and other counsel for the defense, and that Mr. Stanbery would make the closing argument for the Government, but Mr. Ewing, after the District Attorney had concluded his address, declined to argue the case and thereby prevented Mr. Stanbery from making

608

HISTORY OF THE CITY OF COLUMBUS.

the closing argument to the jury, greatly to his disappointment and to the disgust of his friends, who openly charged that Mr. Ewing feared Mr. Stanbery's last appeal to the jury ; whereas Mr. Ewing's friends regarded his submission of the case on the address of the District Attorney as a masterstroke of policy, as the event proved. Judge McLean charged the jury in a remarkably able manner, even for him, drawing tears, it is said, even from the eyes of Mr. Ewing-crocidile tears, as Mr. Stanbery's disgusted friends characterized them. The jury deliberated on its verdict for two days, and when it was announced that a conclusion had been reached and would be presented, intense interest pervaded the crowded eourt- room. The announcement of a verdict of " not guilty " was followed by a shout from the multitude, while the prisoners, with one exception, gave way to their feelings and freely mingled their tears with those of their wives and friends, all of whom united in fervent thanks to the jurymen who had brought deliverance.

In the chapter on Lands and Land Titles, cases involving questions pertaining to those subjects are cited, and will not be repeated here, with a single excep- tion relating to land on East Broad Street, with the litigation respecting the title to which the writer was professionally connected. The case here referred to is that of Margaret H. Pasehall vs. Gottlieb Hinderer, reported in 28 Ohio State Reports, 568, and is one of local interest because of its subjeet matter and the parties involved in it, and further because its final decision by the Supreme Court at its December term, in 1876, settled the title to a parcel of land extending from Broadway to Long Street, between Seventeenth and Eighteenth streets, in Columbus. The place is remembered by many of the older business men of the city as a big field in which stood a little wooden house used by an old German as a shop for the manufacture of baseball clubs and similar articles for the boys of that period, but which is now occupied by numerous elegant residences. The title came in question upon the following facts of a somewhat romantic character :

John George Wheeler, who dwelt with his wife and three infant children in the kingdom of Wirtemberg, Germany, died there in 1829, leaving 854 florins ($341.60) to his children. This money came into the hands of the guardian of the minors to whom it belonged. In 1830 the widow Wheeler was married in Germany to Gottlieb Hinderer, who adopted his wife's children. Desiring to emigrate to the United States, Hinderer applied, in 1831, to the proper court for leave to take the children and their money with him, which was granted on the accepted condition that he would invest the money in land for the benefit of its infant owners. On arriving in Columbus, in 1832, Hinderer purchased the land above mentioned, paid on it $150 of the children's money and $100 of his own, and moved upon and occupied the tract as his home. On July 23, 1834, having made his payments in full, he took the title to the property in his own name. Of the children, Margaret was at that time only five and a half years old, George was a year or two older than she, and John about as much older than George. While quite young these children, the girl as well as the boy, worked hard in the brickyard which Hinderer conducted for some years on this land, and after they got older they and their mother began

609

BENCH AND BAR.

to consider their property rights, and some quarreling ensued between Hinderer and his wife who insisted that he should give to her children their share of the land. Finally the mother left Hinderer and was allowed alimony, which was made a charge on this land by the court.

In December, 1867, Margaret and George brought a suit in the Court of Common Pleas to obtain a decree declaring a trust in their favor against Hinderer in the land to the extent it was paid for with their money, and to require him to convey to them that share of the land, the value of which had by that time greatly increased. Hinderer defended, claiming, first, that all the money of the children was expended in moving from Germany to the United States, and that none of it was used in the purchase of the land; second, that their claim was barred by lapse of time ; and third, that if he was liable to account to the children for their money he was entitled to pay for their support during their minority. L. J. Critchfield and Francis Collins were attorneys for Margaret and George; H. C. Noble and Otto Dresel for Hinderer. The Common Pleas and also the District Court decided on appeal against Margaret and George, on the ground that by lapse of time their claim had become stale and was barred, although it was found that their money had helped to pay for the land. At this point George abandoned further effort, being in good circumstances without the land ; Margaret, however, was not so fortunate, but being more courageous she took her part of the case to the Supreme Court and there succeeded, that court holding that in taking the whole legal title in his own name Hinderer committed a breach of trust, and that to the extent to which the purchase money had been paid out of the money belonging to the children he held the title in trust for them; that his continued possession and use of the land as a home and as a means of support for the family during the minority of the children was not adverse to their rights and equities ; and that their claimn was not stale or barred, he not having denied their rights in the land until after they became of age, and not then twentyone years before snit. After this final decision by the court of last resort, Margaret's interest was set off by Hinderer to her by deed by metes and bounds, and she quitclaimed the residue to him. The German boy George was none other than George F. Wheeler who became a prominent and prosperous merchant of Columbus, the founder of Wheeler's Grocery house at Number 15 North High Street, now conducted by his sons.

The case entitled " The State Ex rel. Flowers v. The Board of Education of the City of Columbus," decided by the Supreme Court of Ohio at its January term in 1880, and reported in 35 Ohio State Reports, 368, was one of very considerable local interest at the time, and presented for adjudication a novel question of parliamentary law in connection with statutory provisions, in a mandamus proceeding in that court. At a regular meeting held August 12, 1879, the Board of Education adopted Harper's geographies as the textbooks on that subject in the publie schools of Columbus, in the place of the Cornell series. That meeting of the Board finally adjourned without any motion to reconsider the vote by which Harper's geographies were adopted. At the next regular meeting held August 26, 1879, the Board by a mere majority vote assumed to reconsider and

610

HISTORY OF THE CITY OF COLUMBUS.

rescind the vote taken at its previous meeting, and to reinstate the Cornell series as the textbooks, and thereafter refused to permit the use of Harper's geographies in the schools, although Mr. Flowers and other parents who had purchased these books desired their children to use them. The Board sought to justify this action on the ground that the vote adopting Harper's geographies had been reconsidered and rescinded. On the other side it was insisted that under Section 52 of the School Law (70 O. L. 209) no change in such textbooks could be made within three years after their adoption without consent of threefourths of the members of the Board, and that as the rescinding vote was only a majority vote and not a threefourths vote, and was given at a subsequent meeting, no motion to reconsider having been made at the meeting at which the Harper geographies were adopted, the rescinding vote could not have that effect, but left the adopting vote in full force and Harper's geographies as the textbooks in the schools. The Supreme Court so decided, and further held that it was the duty of the Board of Education to permit the use of those geographies in the schools, and that such duty could be enforced by mandamus on the application of Flowers, a patron of the schools. The questions raised in this case were somewhat new, and the interest in them, as well as in the outcome of the contest, commonly called " the geography war," was quite general for a time in the city. The case was argued on behalf of Flowers, the relator, by R. A. Harrison, L. J. Critchfield and C. N. Olds, and on behalf of the Board of Education by Lorenzo English, James E. Wright, De Witt C. Jones and Alexander W. Krumm, City Solicitor. It may be supposed that back of the parties on the record were the publishing firms of Harper Brothers, pub- lishers of the Harper Geographies; and Van Antwerp, Bragg & Co., publishers of the Cornell series ; and that these firms took a deep interest in the contest.

In the spring of 1875, Corbin's saloon in Westerville was considerably wrecked by an explosion of gunpowder. For this act Corbin caused seven of the leading citizens and temperance people of the village to be arrested and brought before Justice Remmy, of Columbus, on a charge of riotous destruction of property. The Justice put the arrested persons under bond to appear at the Court of Common Pleas to answer to an indictment that might be presented against them by the Grand Jury. No indictment was found, and the defendants were discharged ; but some of them and others to the number of nine had also been arrested on a peace warrant on Corbin's complaint and brought before Justice Remmy, who put them under bond to answer the complaint in the Court of Common Pleas. On a plea of " not guilty " the defendants came to trial before Judge Edward F. Bing- ham in April, 1876, and after full hearing were discharged with judgment against Corbin for costs. During the progress of this trial one of the attorneys for the prosecution intimated pretty strongly by his questions that one of the defendants, a pronounced temperance man, would himself occasionally take a drink. Finally the time came for this attorney, just after returning from across the street, where he had been "to see a man," as was said, to make a bold charge in the form of this interrogatory : " Now, Mr. - , don't you think that you and I can drink more whisky in a given time than any other two men in the State ?" The court, counsel and large audience were appalled at such a question to such a man, but

Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.

History of the city of Columbus, capital of Ohio, Volume I, Part 79

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