History of the city of Columbus, capital of Ohio, Volume I, Part 80

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 80

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not so the gentleman addressed, who, adjusting his spectacles at a proper focus, slowly and deliberately replied to his accuser: "I don't know but that is so, and I wouldn't have to drink any either!" At this reply the whole body of listeners was convulsed with laughter in which the discomfited attorney himself joined.

The following ineident is said to have occurred in the presence of Judge J. R. Swan while sitting on our Common Pleas beneb. Elijah Baekus, then at the bar, presented the application of a native of Ireland to become a citizen of the United States, and requested the court to have the requisite oath to support the Constitu- tion of the United States administered to the applicant, to whom Judge Swan, before swearing him, addressed the inquiry whether he had ever read the Consti- tution. The man replied that he had not, and that he could not read, whereupon the Judge suggested that the proposed oath would not amount to much unless the man taking it should know what he was swearing to support, and that he had better first inform himself as to what the Constitution was. This was shortly before the noon recess, during which Mr. Backus took his client out into the backyard and read the Constitution to him from beginning to end. When the court reconvened in the afternoon Mr. Backus addressed Judge Swan as follows : " May it pleaso your Honor, during the reeess of the court I have read to my Irish friend here the Constitution of the United States from beginning to end, and he seems to be very much pleased with it ! I renew my motion that the requisite oath to support the Constitution be now administered to him, and that he be admitted to citizenship." Judge Swan enjoyed the joke and granted the motion.

Many amusing things ocenr in court proceedings. On a certain occasion one A was on trial for stealing hogs, and in the course of his testimony in his own behalf declared that he bought the hogs of a stranger and gave his note for the purchase price in whole or in part. IIe then left the witness stand with a fair prospect of acquittal, but his counsel had omitted to ask him when he gave the note, and reealled him in order to make inquiry on that point, saying : " Mr. A, I forgot to ask you when it was you gave the note; was it before or after you stole the hogs ?" The answer was, " it was before." The court, counsel and bystanders exploded with laughter, and the jury returned a verdict of " guilty as charged in the indictment."

The Supreme Court some years ago decided a ease in which Chauncey N. Olds presented a printed argument for his client. After due consideration the court decided the ease against Mr. Olds. Soon afterward one of the judges on meeting Mr. Olds referred to the case and the decision against him, and complimented him highly on the "able" argument he had presented ! In his peculiar dry humor Mr. Olds replied : " Yes, my argument was able; I am sorry that its abil- ity didn't get into the decision." The joke was on the judges, and they frequently told it on themselves.

Our courts have tried numerons criminal cases which have attracted public attention, but special mention of them would not be justified by any important questions of law involved, as the controlling questions in such cases are generally questions of fact. Few of our lawyers have made a specialty of criminal practice,

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nearly all of them having devoted their attention to general professional service and having thereby become better and broader in their accomplishments than they could have been as mere specialists in criminal cases. I once heard Judge J. R. Swan speak disparagingly of " criminal lawyers." His remark was that you could take a loud, glib talker and make a " criminal lawyer " out of him in from twenty- four to thirtysix hours. His criticism was made after an oral argument before the Supreme Court in a criminal case brought there by a noted " criminal attorney " who addressed the court loud and long in the style in which he was accustomed to address juries, probably making the same speech before the Supreme Bench which he had inade to the jury in the Common Pleas. Judge Swan's criticism would not apply, of course, to many able lawyers who engage in the trial of erim- inal cases of exceptional importance, wherein the best abilities and all the resources of professional and general learning are required and exerted.

A distinct and interesting phase of professional life at the bar in the earlier his- tory of Ohio may here be briefly referred to. It pertains to what were known as " the lawyers on the circuit." The circuit of the territorial court and bar included Marietta on the southeast, Cincinnati on the southwest, Detroit in the northwest and the vast intermediate region, most of which was an unbroken wilderness during the years of the territorial government, and long afterwards. The mere distances, although great, were not the only or the principal obstacles encountered by the judges and lawyers in making the circuit. The lack of roads, bridges and even ferries made their pilgrimages laborious and dangerous, while the scarcity of supplies for man and beast caused both inconvenience and hardship. Even bridlepaths through the wilderness were not always to be found. In passing from one seat of justice to another, the judges and lawyers traveled in companies of five and six, usually, on horseback, accompanied by packhorses for extra baggage which included a few elementary law books. These parties were often overtaken by storms of rain and snow and also by darkness in the midst of the wilderness, besides being frequently confronted with swamps and swollen streams. In the selection of their horses special importance was attached to the dexterity of the animals in swimming, which accomplishment was indispensable to a good saddlehorse in those days, as was illustrated by many interesting adventures in which the instinct of the borse proved to be superior to the judgment of his master.

This circuit practice continued to a greater or less extent during the first fifty years in the history of the State, but with increasing comforts and diminishing dangers. Only a few of the lawyers of that period now survive, but the older ones of the present generation may remember something of the circuit excursions of their predecessors from county to county, and from court to court with the judges. A list of the names of the earlier and later circuit practitioners would revive many interesting recollections, but space allows the mention of ouly a very few of a typi- cal character, such as Jacob Burnet of the territorial circuit, and Thomas Ewing of the later period. The writer well remembers the first time when he, then a very small boy, saw Mr. Ewing. It must have been fifty years, or more, ago. Mr. Ewing was on his way from Lancaster to Medina to defend a man about to be tried for murder, He traveled on horseback. The horse was a large black one.

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About noon the distinguished lawyer rode into Millersburg, and stopped at the village tavern for dinner. The horse had a swinging gait and carried a stately rider, both impressive to their boy observer, whose impressions of them have sur- vived the lapse of years. The correspondence between the manner of the man and that of the beast which he rode was curious. As a passing observation it may be remarked that the exercise of horseback riding was promotive of clear thinking and of excellent work in court at the end of the journey.

For the privations and dangers which they encountered the circuit practition- ers were not without compensation. Such experiences as they had would be endured only by courageous men more intent on laying deeply and broadly the foundations of free and enlightened commonwealths than on the acquisition of merely personal fortunes, yet it is said that the litigation in the territorial courts was, in many cases, largely remunerative, inasmuch as it often involved property of great value and carried with it large fees. The circuit travelers had in addition to their pecuniary compensation much satisfaction in exploring the primitive for- ests, in learning the habits and studying the character of the aborigines, and in taking part in or observing their amusements. In the settlements where the courts were held, the hardy and adventurous settlers and the official families of the frontier garrison often entertained the judges and lawyers with banquets, dancing and other revelry. Illustrative of these phases of professional life at the bar dur- ing the territorial and earlier state period we have the following interesting reminis- cences of Thomas Ewing from the pen of the late Joseph Sullivant ( Ohio State Journal, October 30, 1871) :

I was born in the old village of Franklinton which was the seat of justice for Franklin County until 1825 or 1826. In my boyhood I was a frequent attendant in the Old Courthouse during the sessions of the court, where was often gathered the best legal talent of the State. Besides the members of our own bar, such as Gustavus Swan, Orris and John Parish, John A. MeDowell. Thomas Backus, David Smith, P. B. Wilcox, James K. Cory and others, there were, from other counties, B. Tappan, Baldwin, Wright, Hammond and Stanbery from the Eastern part of the State ; and Creighton, Scott, Brush and Dick Douglas, from Chillicothe ; John Irwin, Slaughter, Beecher and Thomas Ewing, of Lancaster, and others from Delaware, Zanesville, London and Dayton, who attended at the old Courthouse in Franklinton. I well recollect the first time I saw Thomas Ewing, then a young lawyer not yet having much busi- ness, or making much of a mark. I was struck with his large head, and generally massive and muscular but rather awkward build.

It was summer time, and the court had adjourned early in the afternoon. Several of the lawyers remained, and the conversation turned upon athletic exercises and feats of strength. Among those present was Joe McDowell, a brother of Abram and John. He declared that he was so swift of foot that he had never been beaten in a race of one hundred yards, and he believed he could not be beaten, and offered to bet ten dollars that he could beat any one in the crowd. Finally Orris Parish took him up and they went out on the green.

It was not yet determined who was to be MeDowell's competitor, but when the ground was measured off, Mr. Ewing, who had taken but little part in the conversation, and whose demeanor had been very modest and retiring, offered himself to run the race, and to the sur. prise of all, Ior none supposed he could run. Judges and stakeholders were appointed, and I will never forget the gleam of Ewing's eye or his air of resolution as he stripped off his coat, vest and shoes and took his place. The word go was given, and the young athletes sprang off with an even start ; soon, however, Ewing began to gain and came to the winning

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post well ahead of MeDowell, who was so chagrined at the result that he began to find excuses and said he had tripped and stumbled or otherwise he would have won. Ewing smiled and said : "Well, if you are not satisfied let us try again." They did run again, and McDowell was beaten worse than before.

Other sports and trials were made - standing jumps, running jumps, shoulder stone, throwing the ax and the maul, in all which Mr. Ewing proved his superiority - and finally the high jump over a stretched string was tried; but on this latter, Mr. Ewing made no attempt until Mr. McDowell, who proved to be the best at that exercise, challenged him, to "beat that." Ewing replied, " well, let us see your best," and when McDowell was done, Ewing had the judges put the string four inches higher, then stepping back a few feet he eame at it with a curious sidelong swing and motion, and over he went, amid the cheers of the erowd.

The meeting of lawyers at Columbus, in attendance upon the court, during the greater part of each winter fifty years ago or more became, in effect, a high- school of law and oratory. The men who thus assembled were the flower of the Ohio bar, and in measuring strength with one another in the discussion of causes in court they developed and exhibited the highest intellectual powers of the pro- fession and the best specimens of forensic eloquence. During these discussions the disputants were stimulated to their best exertions not only by the interests at stake, but also by the presence of their professional associates whose habit and pleasure it was to personally attend the discussions. We may readily imagine what deep interest the court and bar as well as the general public would take in these battles of the giants, when, during that early period, the combatants were such men as Burnet, Hammond, Wright and their compeers, with the occasional presence and participation of Doddridge, of Virginia, and Henry Clay, of Kentucky; and when during the later period, Ewing, Stanbery, Corwin, Vinton, Goddard and their associates were in their prime and contended for the mastery. But this distinct phase of professional life has almost entirely disappeared; the winter meetings of lawyers are things of the past; the counsel in cases before our courts arrive by railway instead of on horseback and deliver their arguments, possibly before the judges alone or with judges and jurors and a few attending witnesses and clients as their sole auditors, instead of being listened to by a large number of members of their own profession. Under these changed conditions forensic eloquence has degenerated. It may not be true that the legal profession is less intellectual now than it was during the earlier history of the State, but it has nevertheless been permeated by the commercial spirit of the age. Verdicts and judgments are now contended for because of the dollars rather than the principles at stake in them. The ideal has given place to the practical. In bis devotion to science, Agassiz said he had no time to make money. But in their devotion to money-making many of the brightest minds in the profession of the law practically admit that they have no time to develop the principles of jurisprudence except as expedients for acquir- ing wealth.

In the paragraphs introductory to this chapter the intimate relation which the bench and bar bear to one another, and their necessity to civil government, have been referred to. In concluding the chapter some allusion to the local influence of the legal profession seems to be proper. Authority is always impressive, and

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the power of the courts to declare the law and thereby settle controversies and preserve public order commands both attention and respect. In every civilized community the judicial courts conducted with impartiality and dignity by learned and upright men are sure of the reverence of the people. No other institutions of government are regarded with such veneration as are the judicial courts, and pro- perly so, as they are the last refuge for the security of property, liberty and life. This community, like many others, has been influenced to a very considerable degree in every phase and stage of its existence by the important functions of judicial administration which have here been exercised. The character of both the bench and the bar of Columbus has been good from the beginning. Profes- sional delinquencies have been rare; the judges, as a rule, have been honest and well-behaved, as have also beeu the lawyers. Both have impressed the commun- ity strongly and favorably. The reasons for this are fundamental. On the bench as well as at the bar investigations are made for the attainment of truth, both as to fact and as to principle, and the processes adopted are both intellectual and moral. A body of learned and honest judges and lawyers pursuing their functions before the public thereby become instructors of the people, and a citizen called from his farm or shop to the jury box enters a school in which valuable lessons are imparted. In the peculiar relations which they bear to the general public the courts become fountains of knowledge as well as means of discipline. They illus- trate precepts by examples ; and careful analysis justifies and confirms the convic- tion that their general influence has nowhere been more profound or beneficial than at the capital of Ohio .?

NOTES,

1. In the summer of 1840 the courts and county officers were removed to the then new courthouse on the corner of High and Mound streets. This building, it was considered, con- stituted a firstrate courthouse and jail, but the offices were too contracted ; the cost of which appears to have been about $41,000 exclusive of the ground. The two lots upon which the building stands having been bought by contributions of the citizens of the south end of the town, were donated to the County in the Spring of 1838. Four years after, in 1842, the County Commissioners purchased the third lot so that the county might own the entire block .- Martin's History of Franklin County.

A historial sketch of the present courthouse will be given in a subsequent chapter.

2. In the preparation of the foregoing chapter important facts were obtained from Judge Martin's History of Franklin County, by permission of his son, B. F. Martin, Esq., and from N. W. Evans, Esq., of Portsmouth, in relation to the early United States District Judges; from Judge Burnet's History of the Northwestern Territory; and particularly and largely from notebooks prepared with great research by Hon. Alfred E. Lee. For these valuable aids thanks are due and are cordially given. L. J. C.

CHAPTER XXXII.

LANDS AND LAND TITLES.

BY JOHN E. SATER, ESQ.

It is a fundamental principle in English law that the king is the supreme lord and original proprietor of all the lands within his kingdom. Within his dominion he is the source of all valid titles. It is a principle equally funda- mental in this country "that all valid individual title to land within the United States is derived from the grant of our own local government, or from that of the United States, or from the crown, or royal chartered governments established here prior to the Revolution."" Every valid individual title to lands within the corporate limits of the city of Columbus is derived from some grant of the United States Government. It is the knowledge of this fact which causes the owner of real estate to feel secure in his title, when it is traced back to the government and found free from defects. Such sense of security is fully warranted. For all practi- cal purposes inquiry need not be extended further. It will be proper, however, to state briefly, at least, how the United States acquired title to these lands, and how the French, the English and the Indian titles were extinguished. It may be interesting to trace the conflicting claims made to these lands by the colonics, and how those colonies, when they attained to the dignity of states, prompted by the loftiest patriotism and by a desire for the common weal, made cessions of the western territory claimed by them to the general government. It may be interest- ing to inquire, in treating of Columbus lands, as to the origin of the terms United States Military District, Virginia Military District, Refugee Traet, and Congress Lands, and to note what portion of the territory within the city limits falls within these respective districts or tracts. It will be proper to state how these lands were surveyed, and how the title passed from the United States to individuals. In short, the present chapter, although it is not designed to be an exhaustive treatise of the subject of land titles, may very properly make some mention of matters such as those above named, and should refer to some of the more important state and national legislation and to some of the decisions relating to and affecting the lands under consideration. It will be proper to recite also such faets and incidents of a local character as affect any part of the lands and land titles within the city.

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JE Sauter

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The French were the first civilized inhabitants of the Ohio Valley .? They effected their entrance through Canada. As early as 1535 James Cartier, sailing under a French commission, penetrated that country as far as Montreal.3 He erected a cross bearing the arms of France and an inscription which proclaimed his royal master sovereign of the newly discovered realm. He named the terri- tories so discovered New France. Immediate attempts at colonization were unsuccessful. In 1608, Champlain, " the Father of Canada," founded the first permanent French settlement within the limits of that country, on the present site of Lower Quebec.4 The aggressive and warlike Iroquois, with whom Champlain and the French came in conflict by reason of an alliance with the Hurons and Algonquins, turned the French aside from the south and southwest, from the St. Lawrence and the lower lake regions, to the north and west, to Lake Huron, the Ottawa and the Nipissing.5 The French traded in furs, cultivated favor with the Indians, made explorations and established missions in the upper lake regions long before they knew of the more genial climate and productive soil of the Obio Valley. Of all the five Great Lakes, Lake Erie was the last to be dis- covered and explored.6 Of all the region comprised within the Northwest Territory, Ohio was the last to be discovered." The French reached the Missis- sippi by way of the Illinois and Wisconsin rivers long before they knew of the the shorter ronte by the Ohio.8 Their early acquaintance with the upper lake region is evideneed by the fact that Sault Sainte Marie was founded one hundred and twenty years before the first settlement was made in Ohio at Marietta." But, in 1666, there came to Canada La Salle, the most daring, perhaps, of all the spirits that sought to extend in the New World, at that time, the dominions of France. French explorations had not then extended south of the Great Lakes. La Salle learned from the Iroquois Indians of a river called the Ohio, flowing southward to the sea.10 He believed it to open a way to China. Its discovery beeame to him an absorbing ambition. It now seems to be reasonably well settled that he discovered the Ohio River some time prior to 1670, and possibly descended it to a point in the vicinity of the present site of Louisville.11

Marquette and Joliet, commissioned by the French Governor, Frontenac, for that purpose, discovered, in 1673, the Mississippi River, which they descended to the thirtythird parallel of, north latitude - far enough to determine that the river emptied into the Gulf of Mexico. The discovery of the Mississippi awakened in La Salle a desire to secure to the King of France the great valley drained by that river and its tributaries. Accordingly, in April, 1682, he descended the Mississippi to the Gulf, and a short distance above the mouth of the river erected a column bearing the arms of France and an inscription announcing that in the name of his King he took possession of the entire Mississippi Valley. Says Parkman : "On that day the realm of France received on parchment a stupendous accession. The fertile plains of Texas ; the vast basin of the Mississippi from its frozen north- ern springs to the sultry borders of the Gulf; from the woody ridges of the Alle- ghanies to the bare peaks of the Rocky Mountains, a region of savannahs and for- ests, suncracked deserts and grassy prairies, watered by a thousand rivers, ranged

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by a thousand warlike tribes, passed beneath the sceptre of the Sultan of Ver- sailles ; and all by virtue of a feeble human voice inaudible at half a mile."1?

In honor of his king La Salle named the territory thus acquired Louisiana. It comprised the fairest portion of the western hemisphere ; its area was more than six times that of France; its resources were unbounded. La Salle's discerning mind at once perceived that the seat of future empire was not in Canada, but in those valleys, and that great commercial and industrial advantages must necessa- rily follow their colonization. He recognized the fact that the best route to those valleys lay through the Gulf of Mexico and not through the Gulf of St. Lawrence.

A Spanish sailor, Pineda, discovered the Mississippi as early as 1519.13 De Soto and his adventurers in quest of gold and plunder in 1540, traversed the northern portion of the present State of Mississippi, and touched, at length, the Mississippi River in whose bosom De Soto found his grave. But Spain did not occupy the territory thus discovered. So great was the greed for immediate gain that the thought of founding an empire in the heart of the American Continent seems not to have entered the Spanish mind. La Salle found the Mississippi Valley unoccu- pied. France therefore claimed it not only by right of discovery but by reason of prior occupation. La Salle proposed to occupy the land, to close it against intru- sion by the erection of forts and to restrict English colonies to the Atlantic coast.14 " It was La Salle," says Hinsdale, " who first distinctly conceived the policy that lead on to Fort Duquesne, Braddock's defeat and Forbes's march to the Forks of the Ohio."15 Although he fell a victim to foul assassination long before his plans were executed, in after years a chain of military posts extending from Canada to the Gulf was established by the French Government to protect the French dominions. 16

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History of the city of Columbus, capital of Ohio, Volume I, Part 80

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