USA > Ohio > Montgomery County > Dayton > History of the city of Dayton and Montgomery County, Ohio, Volume I > Part 81
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The cost per capita for maintenance including clothing, hospital expense and so forth, for the year ending June 30, 1909, was one hundred and fifty-four dol- lars and seven cents; the daily cost per capita for food was seventeen cents.
For the same year the total cost for maintenance was six hundred and twenty- seven thousand, eight hundred and twenty-three dollars and eighty-four cents. It may be added that the total amount paid to members of the home in the same year was five hundred and ninety thousand, eight hundred and forty-two dol- lars and eighty-six cents.
General farming on the lands of the home has been discontinued. The lands available for the purpose are now used for grazing, raising fodder and general dairy purposes. A dairy barn was erected in 1904. The average number of cows kept in 1908-09 was eighty-two, and the gallons of milk for one year sixty- one thousand, one hundred and sixty-five.
In consequence of the advancing age of the inmates, the work to be per- formed is being given over in increasing proportion to civilians. There are em- ployed an average of seventy-three and seven-tenths non-commissioned officers at an average of fifty-six cents per day, an average of seven hundred and sixty-six and seven-tenths members at thirty cents per day, an average of one hundred and fifty-eight and two-tenths civilians at one dollar and thirty-three cents per day.
In July, 1909, women were employed to wait on the tables, about seventy in the camp dining hall and twenty in the hospital, in the place of the veterans who had till that time performed that service. The change has already established or reenthroned influences bringing more of a home atmosphere to the institu- tion, bearing the well-worn name, the Soldiers' Home.
Some persons know or judge the soldiers of the home almost altogether by the weaknesses or vices of a small proportion of the inmates. The number of persons offending against the rules, which are of necessity minute and strict, in the year closing June 30, 1909, was one thousand, four hundred and fifty-five.
Drunkenness was the charge in a large number of the cases, but absence without leave was the charge in a larger number of cases.
It was an unspeakable disgrace that in the early years of the home, drinking places of the lowest character surrounded it on all sides. To give some kind of protection to the soldiers, Gov. Patrick, an earnest temperance man, established the beer hall within the home. Later, saloons were by state law excluded for a distance of a mile and a half from the home grounds. And later by a rider to the appropriation bills canteens were banished from all Soldiers' Homes receiving support from the federal government. At the home there is a somewhat evenly divided opinion as to the merits or demerits of this action of congress. One reason why some of the soldiers lamented the departure of the canteen was that while it was in operation it cleared about forty thousand dollars per annum for the post fund from which many improvements at the home were made.
Beautiful features of the home are the two chapels, the Protestant, seating four hundred and fifty persons and the Catholic seating five hundred and fifty persons, the two having an average attendance at regular services of eight hun- dred and fifty. The chaplains visit the sick, minister to the well being of the members of the home, and help in laying away the dead.
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The number of volumes in the library is twenty-five thousand, seven hundred and sixty. The number of books circulated through one year was twenty-one thousand, seven hundred and thirty-eight. The number of papers received is one hundred and sixty-eight, and of magazines, twenty-five. It would seem, therefore, that large provisions are made for the moral and intellectual needs of the members of the home.
When we notice further the provisions for entertainments in Memorial Hall, the concerts on the campus, the unmatched home grounds and the constant stream of visitors, it becomes evident that the aesthetic and social demands are largely provided for.
There are so many ways of reckoning the membership of the home that care must be used or comparisons will be misleading. In tables for the early period the numbers given were for the whole number cared for in a given year.
The following is the present membership reckoning the same in several dif- ferent ways: Officers and men present June 30, 1909, three thousand, seven hundred and fifty-nine; officers and men absent June 30, 1909, one thousand, four hundred and eight; total present and absent, five thousand, one hundred and sixty-seven ; average present and absent during the year, five thousand, two hundred and ninety-two; total cared for during the year, six thousand, six hun- dred and eighty-nine. The total number who served in the Spanish and subse- quent wars only, was three hundred and fifty-one.
There were fewer men at the central branch in 1909 than for twenty years before. This of itself does not necessarily show a decline in membership in all of the Soldiers' Homes. Fluctuations between homes are constantly taking place. Yet taking all of the homes into account the high water mark of attendance was reached in 1908. Principally by deaths, but also by withdrawals due to larger pensions, the membership in the various homes will probably continue to de .. cline. For our soldier population the shadows are becoming long. The average age of those at the central branch who served in the Civil and prior wars is now sixty-nine and sixty-four hundredths; of those who served in the Spanish and subsequent wars, forty-one and sixty-six hundredths; of all, sixty-eight and seventeen hundredths. The number of deaths in the year 1908-09 was four hun- dred and sixty-eight, the death rate being eighty-eight and forty-three hundredths per thousand.
As we look to the westward of the home grounds and think of the westward bound of life, we see the beautiful soldiers' monument looking down upon the sleeping place of the many who have died since becoming members of the home. The monument was unveiled September 12, 1877, by the president of the United States in the presence of twenty-five thousand people. A few are brought to the cemetery who die outside of the home, and about one-fourth who die in the home are claimed by friends and taken away for burial. At this time nine thousand, five hundred and eighty-four members of the home are buried in the home cemetery, their graves being marked by a modest marble slab. Requiescant in pace.
CHAPTER VI. THE BENCH AND BAR OF DAYTON AND MONTGOMERY COUNTY.
BY JUDGE DENNIS DWYER,
EARLY LEGISLATION ESTABLISHING THE COURTS-FIRST COURT HELD IN- DAYTON- THE OLD NEWCOM TAVERN-COMMON PLEAS COURT; PERSONNEL-SUPERIOR COURT ; PERSONNEL-CIRCUIT AND SUPREME COURTS; PERSONNEL-PROBATE COURT ; PERSONNEL-PERSONNEL OF THE COURTS AND BAR.
The congress of the United States on the 30th day of April, 1802, passed an enabling act, authorizing the people of the Eastern Division of the territory of the United States northwest of the Ohio river to form a state government pre- paratory to admission into the union.
In furtherance of this object, a convention assembled at Chillicothe on the first day of the following November to frame a state constitution which was completed and adopted on the 29th day of the same month. The name therein provided for the new state was the state of Ohio. On the 19th day of February, 1803, by an act of congress, the state of Ohio was admitted into the Union.
EARLY LEGISLATION ESTABLISHING THE COURTS.
On the 15th day of April, 1803, the first legislative assembly under the new state government, thus organized, passed an act organizing the judicial system of the state.
By section three of article six of this act, the state was divided into three judicial circuits, the first comprising the counties of Hamilton, Butler, Mont- gomery, Green, Warren and Clermont. In each circuit, it was provided a presi- dent judge should be appointed and in each county of the circuit it was further provided that not less than two and not more than three associate judges should be appointed (not necessarily lawyers), which with the president judge was to comprise the common pleas court in each county.
On the 24th day of March, 1803, by an act of the legislature, Montgomery county (named after Gen. Richard Montgomery, an Irishman of Revolutionary fame), was established, comprising all the territory north of the line of Butler and Warren counties as far as the state line and west to the western boundary of the state. In this was included the present counties of Preble, Darke, Mercer, Allen, Van Wert, Paulding, Williams, Fulton, Henry, Defiance, Putnam, Aug- laise, Shelby and Miami, embracing, perhaps, the finest body of agricultural
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land in the world. The sixth section of the act provided that until permanent seats of justice should be fixed in the several new counties by commissioners appointed for that purpose, the temporary seat of justice and the courts should be held in the county of Montgomery at the house of George Newcom, in the town of Dayton. The time fixed by law for the holding of the court of common pleas in Montgomery county was the fourth Tuesdays in March, July and No- vember, and that for holding the supreme court was the third Tuesday in October in each year.
FIRST COURT HELD IN DAYTON.
On the 27th day of July, 1803, the first term of the court of common pleas for Montgomery county was held in the upper room of George Newcom's tavern which then stood where the Insco building now stands, but which since has been transferred to Van Cleve park and is known as the "Old Log Cabin." This old log cabin was courthouse, tavern, store, postoffice and meeting place for the early settlers, the men who laid the foundation for the present "Gem City." If its walls could speak, what tales it could tell of the early pioneers, of their deliberations, of the expression of their hopes, their aspirations and their pleas- antries which made everyday life under its roof. Before proceeding further with the preparation of my subjet, that honor may be given to whom honor is due, I deem it proper to say that in a history of Dayton, published in 1889, there appears a chapter, up to that date, on the bench and bar of this city and county, from the pen of the late Hon. George W. Houk, one of the best writers this county has produced, which is so complete in all its facts and details of the personnel and history of the bench and bar that of necessity, as it covers the same ground, I am compelled to follow it, and in many instances I expect to copy its language literally, as its history and description of men and times, is superior to any I otherwise could use.
THE OLD NEWCOM TAVERN.
In reference to the old log cabin, Mr. Houk says: "It is the great attraction of the city, is regarded with affectionate reverence for its rare historical associa- tions and as an object lesson of deep significance. It contrasts the simplicity and economy of the early days of the republic when life was a heroic struggle for liberty and independence, with the luxurious ideas of modern times, when the ruling passion seems to be the acquisition of wealth and its extravagant display. Would it not be the gratification of a worthy and noble sentiment for the people of this city and county to preserve this old landmark of our early history with all its deeply interesting historical associations, especially as it stands in the shadow of the splendid monument dedicated to the soldiers of Mont- gomery county, whose valor so largely contributed to the preservation of the blessings of constitutional government. It would not be difficult to secure the necessary legislation to enable either the county commissioners or the city of Dayton to acquire this property and to utilize, as well as preserve it."
Since the foregoing was written, the Dayton Historical Society has taken charge of the old log cabin, had it removed to Van Cleve park, where it is
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being carefully preserved by the society, and used as a museum and building for the storing of the historical relics of the county.
THE COMMON PLEAS COURT.
The first presiding judge of the first judicial circuit was Francis Dunlevy of Warren county. Judge Dunlevy was an able lawyer and an upright, honor- able gentleman. His associates for Montgomery county were Isaac Spinning, who lived east of Dayton, and John Ewing and Benjamin Archer, both of Washington township; all of whom have left numerous descendants in this county.
The first term of the supreme court for Montgomery county was held at the seat of justice (being the house of George Newcom aforesaid), on the third Tuesday of October, 1803. Samuel Huntington and William Sprigg were the associate judges; George Newcom, sheriff; Arthur St. Clair, Jr., prosecuting attorney, and Benjamin Van Cleve, clerk. This court at that time, in addition to its law and equity jurisdiction, had exclusive jurisdiction in divorce cases.
In the courts of common pleas, then, as now, was vested jurisdiction in all civil and criminal cases. The first case tried in the court of common pleas, as the records show, was a charge of assault and battery against one Benjamin Scott, on complaint of one Peter Sunderland, to which the defendant plead guilty.
The first case entered on the docket of the supreme court was an action of divorce brought by one Hannah Burk against her husband, Thomas Burk, for gross abuse. So that it will be seen that the divorce business got an early start in this county.
The state constitution having provided for grand and petit juries, the same as they are today, the first grand jury, after having been empaneled, sworn, and instructed by the court, for want of a more convenient place to deliberate was directed by the judge to withdraw to the secluded shade of a neighboring oak tree for deliberation. There was found and returned an indictment against a luckless culprit for larceny. He was put on trial before a petit jury, and having been found guilty, was sentenced by the court to imprisonment in jail, but as there was no jail, and the law had to be vindicated, a rope was tied around the body of the criminal and he was lowered down into a dry well on the premises of Sheriff Newcom, there to be fed on bread and water during the weary hours of his imprisonment. Such as described was the court house, seat of justice, and jail of Montgomery county a little more than one hundred years ago, where today luxuriant accommodations are found in stately structures of stone, located but three squares away, on ground which was then partially covered by a swamp, but is now worth nearly a million dollars. We can imagine what interest the settlers had in the holding of the first court in the Newcom tavern. The ma- chinery of justice then, as now, had to be invoked, so there was the grand jury solemnly charged by the court to inquire into all crimes and offences committed within the county ; the petit jury to sit in the trial of cases, civil and criminal, and the judges to preside over their deliberations. And we can readily conceive from the high character of the first settlers of Dayton and Montgomery county, that, while the surroundings were primitive, that the proceedings were conducted
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with becoming dignity. Great consideration was then, as now, conceded to the judges and lawyers who were necessarily men of superior knowledge, of espe- cial legal learning and always of high character. The most conspicuous men of the anti-revolutionary era as well as the membership of the colonial legislature, of the continental congress, and afterwards of the convention which framed the constitution of the United States, were lawyers. Of the signers of the Declara- tion of Independence, more than half were lawyers. It was also the same in the history of the progress of constitutional liberty in England. Every protest ever made against the encroachments of arbitrary power were formulated by lawyers. Lawyers were the authors of the great charter which laid the founda- tion of the liberties of England. Lawyers drew the statutes of treason, the habeas corpus act, and the petition of right. After the revolution of 1688, which was a vindication of the power of parliament over the succession of the crown, the great Declaration of Rights was prepared by a committee of which Somers, afterward lord chancellor, was chairman, and was very soon afterward con- firmed by an act of parliament. The lawyers of our revolutionary era and those who were influential in laying the foundation of our judicial system, as well as the framers of the constitution of the state of Ohio, were familiar with these time-honored muniments of English liberty and in many instances their exact phraseology is incorporated into our own bills of rights and constitutions. The early American bar, therefore, was composed of men not only educated in the technical learning of the law, as a profession, but who were conversant with the principles of personal and political liberty and with the history of the strug- gles of the people against the encroachments of arbitrary power.
The organization and faithful administration of the judiciary under our system of government is necessary to domestic tranquility and the promotion of the general welfare; for without the observance of the principles of justice and its enforcement, in all controversies between states and people, governments would be a failure.
The judicial system of this country, with its vast, complex, but harmonious organization, may justly be regarded as amongst the most notable achievements of the human intellect. Through its numerous tribunals of every grade, from that of justices of the peace up to the supreme court of the United States, it takes cog- nizance of every question of constitutional and statutory construction, or of per- sonal and property right, that can arise out of the social conditions and commer- cial activities of an indefinite number of separate communities organized as states, and forming a federal union of the foremost, most progressive, and most liberty-loving nation in the world. The American system of jurisprudence reaches the daily life of the people. It protects the weak against the strong, the orderly and law-abiding against the vicious, the innocent against being wronged, the honest against fraud and the industrious against rapacity. By the universal con- sent of enlightened men, justice is regarded as a divine attribute and such is its essential nature therefore, as to impart dignity and purity to all those who are worthily engaged in its administration. The wise and just judge has, therefore, in all ages and conditions of society, been held in universal esteem. As evidence of what the law requires a lawyer to be: He can only be admitted to practice upon proof of good moral character, and of such proficiency in the knowledge
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of the law as to enable him to render valuable service in the administration of justice. The special law of each state prescribes the character and method of the examination to which each applicant for admission must be subjected, including the length of time he must have devoted to a study of the principles of the law. and the rules of its practice. As the judicial departments of the governments, federal and state, can be administered only by those learned in the law and trained in its principles, the legal profession is the only calling indispensably necessary to the continuation of our constitutional system. Those called to the performance of legislative or executive functions need not necessarily be law- yers. Indeed, many of those who have most acceptably filled the various offices in both have been called from other pursuits. It is different with the judicial department. No man can attain to the dignity of the bench who has not demon- strated hi: fitness and learning at the bar, and who has not displayed in the course of his legal practice, those abilities, correct habits and moral principles that commend him to the endo, ement of his fellow-members of the profession.
PERSONNEL.
JUDGE DUNLEVY. As has already been shown, Judge Francis Dunlevy. of Warren county, was the first president judge of the court of common pleas of Montgomery county. He held the office up to the year 1817, when he was suc- ceeded by Judge Joseph H. Crane, who served until the year 1828.
JUDGE CRANE came to Dayton in 1804 when about thirty years of age, and was the first member of the Dayton bar. He had studied law with Aaron Ogden, governor of New Jersey, an officer in the Revolutionary War, and an able lawyer and distinguished statesman. The federal government had been only fifteen years in operation when Judge Crane came west, then literally a wilderness. He became at once the trusted attorney and legal adviser of Daniel C. Cooper and his associates, the original proprietors and projectors of the town of Dayton. Judge Crane was a man of commanding presence ; was descended from a family identified with the struggle for American independence, his father being an officer in the Revolutionary War, served under Washington, and lost a leg in the battle of Brandywine at the head of his regiment. As a lawyer, Judge Crane was at once recognized, on his arrival in Dayton, for his superior learning and ability. At the first convention to nominate candidates for public office ever held in Montgomery county, in the year 1809, he was nominated for a seat in the general assembly of the state of Ohio, was elected, and rendered valuable service to the state. Was the author of what was termed the practice act, under which legal proceedings in the state were regulated until the adoption of the constitution of 1851.
From 1813 to 1816 he served as prosecuting attorney and in 1817 was ele- vated to the judgeship, which office he held until 1828, when he was elected to congress, where he served eight years, at the expiration of which period he retired from public life and resumed the practice of his profession in Dayton, having for a law partner Gen. Robert C. Schenck, whose life and character will be noticed later. Judge Crane was not only thoroughly read in the law, but he was accomplished in his other attainments, and scholarly in his tastes. He
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was simple and domestic in his habits and to the end of an illustrious and blame- less life was universally venerated in the community with which he had been so long and so honorably identified. His great ability as a lawyer was recog- nized, not only by his associates at home, but by all the most distinguished law- yers and judges throughout the state. He belonged to the class of contemporary Ohio lawyers of which Thomas Ewing, Hocking Hunter, Henry Stanberry, Ebenezer Lane, Judge Burnett, Samson Mason, Charles Hammond. Gustavus Swan, Charles Goddard, Samuel F. Vinton, Peter Hitchcock, John C. Wright, and John McLean were distinguished representatives.
JUDGE HOLT. On the retirement of Judge Crane from the bench in 1828, Judge George B. Holt was elected by the legislature to succeed him. Judge Holt was a native of Connecticut and came to Dayton in 1819. He was a learned and able lawyer, was admitted to the bar in Litchfield, Connecticut, in 1812. In 1824 he was elected a member of the legislature for Montgomery county, was conspicu- ously connected with some of the most important early legislation of the state. In 1828 he was elected to the senate and served in that body. Judge Holt served as common pleas judge until 1836, and afterwards, in the winter of 1842-43, was again elected and served until 1849. He was elected a member of the constitu- tional convention held in 1851 ; was chairman of the committee on jurisprudence in that body, and rendered valuable service therein. He soon after retired from active professional and political life, and died October 30, 1871, at the ripe old age eighty-two years.
JUDGE WILLIAM L. HELFENSTEIN was elected by the legislature to succeed Judge Holt at the end of his first term in 1835, and served as such until 1842, when he was again succeeded by Judge Holt, who was called to the bench a second time. Judge Helfenstein was a painstaking, upright judge and faithfully performed the duties of the office.
JUDGE JOHN BEERS, of Darke county, was elected to succeed Judge Holt, but served only for a short time, when he was succeeded by Ralph S. Hart, who was appointed in 1851, and after the adoption of the new constitution, in 1851, when the office was made elective by the people, he was elected in 1852 for the consti- tutional term of five years. After the end of his term, which was well dis- charged, he removed to St. Louis, where he practiced law until the war of the rebellion broke out, when he received an appointment in connection with the United States treasury department in the south. After the war Judge Hart did not again engage in the practice of the law. He was always esteemed in this community where he had passed the most part of his professional career, and where he spent his last years on a farm north of Dayton, dying at an advanced age.
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