USA > Ohio > Ross County > Chillicothe > Ohio centennial anniversary celebration at Chillicothe, May 20-21, 1903 : under the auspices of the Ohio State Archaelogical and Historical Society : complete proceedings > Part 30
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The commissions chose their own chief judges. Judge Josiah Scott, so chosen in February, 1876, declined to act. Judge Luther Day served during that year, and Judge William W. Johnson during term from February, 1877, to February, 1879. Judge Moses M. Granger, twice chosen by the unanimous vote of his four associates, served from April 17, 1883, to April 17, 1885. As his business required his presence in Zanesville a part of every week, by agreement the second commission took a recess from noon of every Friday, until noon of Monday; each judge doing a full week's work.
The statutes now require the Supreme Court to hold an annual term beginning on the Tuesday after the first Monday in January, at Columbus, Ohio. It may hold special or adjourned terms at such times and places as the judges or a majority of them shall, from time to time, determine; but if held elsewhere than in Columbus thirty days notice of time and place must be published in Columbus newspapers.
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SALARIES PAID.
Section 19, Article I, Constitution of 1802, forbade payment - before 1808-of more than 1,000 dollars per year to any judge of the Supreme Court, or more than 800 dollars per year to any president judge of the Court of Common Pleas. The act of 1803 made said salaries 900 and 750 dollars, respectively.
The act of March 2, 1837, Vol. 35, p. 17, made the salaries of each judge of the Supreme Court 1,500 dollars per year ; and that of each president judge of Common Pleas, 1,200 dollars.
The act of May 1, 1852, Vol. 50, p. 221, made the respective salaries 1,700 dollars and 1,500 dollars.
The act of January 24, 1867, Vol. 64, p. 9, made them 3,000 dollars and 2,500 dollars.
The act of March 18, 1887, made the respective salaries $4,000 and $2,500; the act of April 10, 1900, made then $5,000 and $2,500 ; and that of February 7, 1902, made them $6,000 and $2,500.
It is not now easy to picture for ourselves in thought the Ohio judiciary as they administered justice during the first de- cades of Ohio life. Many of them had been born and educated in the "Old Thirteen States ;" some had graduated at Yale College and studied law at the noted law school of Judge Reeves in Litch- field, Connecticut ; while others were almost self-made as students of the law. Within all Ohio, in those early years, the aggregate of law books did not number so many as may now be found in each leading law office in our county towns. Every lawyer judge traveled many hundreds of miles each year upon a circuit in which the best roads were very poor, and the most of them often im- passable on wheels. The president judge of the Third (then the eastern) Circuit, began at Warren, Trumbull County, on the sec- ond Tuesday in March, and ended at Zanesville, Muskingum County, as soon after the fourth Tuesday in December, as the docket there would permit; but next before going to Zanesville, he had to sit at Marietta. If you look at the map you can trace him from Warren in Trumbull via New Lisbon in Columbiana, Steubenville in Jefferson, St. Clairsville in Belmont, and Marietta
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in Washington, to Zanesville in Muskingum. Although the Ohio River bounded four of his counties, and a passage by boat was sometimes had, the navigation was too irregular to be relied upon. The president judges in the First and Second Circuits rode about equal distances. While the supreme judges numbered only three, their travel carried them once a year to every county in each of the three circuits. Members of the county bar traveled with, or met, the judges and lodged with, or near, them during term. The saddle bags carried Ohio Statutes, then small in bulk, Black- stone's Commentaries ; sometimes Coke or Littleton ; sometimes a volume or two of an English Law or Equity report ; and a small "vade mecum" legal treatise, the name of which is now known to few of our profession.
Such a life made these judges thinkers. If riding alone, each had ample time and temptation to beguile the tedium of slow travel by putting to himself legal cases, questions and problems, and solving them upon principle. If in company of other judges. or lawyers, each would try to test or puzzle his companions, or to find entertainment, or profit, in discussing legal difficulties in which he, or his clients, were interested.
Out of this life those who were blessed with legal ability and judicial minds, grew to be great judges ; during many years upon the bench caused right and justice to prevail within their jurisdictions, and left behind them, among lawyers and people, high reputations for ability and integrity.
Time here permits only mention of one of these. On Feb- ruary 10, 1810, when thirty-five legislative votes re-elected Francis Dunlevy, president judge of the First, or Cincinnati Circuit, of the Common Pleas, John McLean had thirty-three votes. On February 17, 1816, he was chosen, by the Legislature, one of four supreme judges, and sat upon our Ohio State Bench until 1822. Then President Monroe asked him to be the commissioner of the general land office. In 1823 the same president made him postmaster-general, in which office President John Quincy Adams continued him until 1829. Then President Jackson nominated him a justice of the United States Supreme Court. His great service there for thirty-two years was ended by his death in 1861 ;
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it is well known to you all. He was one of those to whom I have referred as almost self-made lawyers and judges.
He was born in Morris County, New Jersey, on the eleventh day of March, 1785. In 1789, his father, a poor man with a large family, removed to the West, stopping first in Morgantown, Va., thence going to Nicholasville, Kentucky, and finally, in 1799, set- tled on a farm in Warren County, Ohio. John worked on the farm until sixteen years old; then received private instruction in the classics for two years, and, at eighteen, went to Cincinnati to study law. Meanwhile he supported himself by writing in the county clerk's office. In 1807 he was admitted to the Bar, and began practice at Lebanon, Warren County. From 1813 to 1816, he represented the Cincinnati District in Congress. In the latter year, at the age of thirty-one, he took his seat on the Supreme Bench of Ohio.
My study of the courts of those days was embarrassed by the fact that Ohio made no provision for publishing reports of cases decided in her courts until about 1824. The first official volume - First Hammond (Ohio) Reports - published in 1824, begins with a case decided on the circuit in August, 1821, and contains only six cases decided prior to December term, 1823. Benjamin Tappan, who was then president judge of the then Fifth Circuit from 1816 to 1823, afterwards published a small volume now known and referred to in our Ohio Digests as "Tap- pan's Report."
However, public records and a few references by one or two Ohio writers of history, enable me to tell you how, in its earliest years, the judiciary of Ohio maintained its constitutional position as a department of the state government, and thereby preserved the constitution itself from being converted into a cypher.
At the session begun in December, 1805, our Legislature passed an act relating to justices of the peace. Its fifth section so far extended their jurisdiction that no party to a suit in which more than twenty and not more than fifty dollars was in dispute could obtain a trial by jury. The twenty-ninth section provided that if any plaintiff suing on original writ in the Common Pleas did not recover more than fifty dollars, he must pay his own costs. In 1807, Calvin Pease, sitting as president judge in the Common
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Pleas in Belmont and also in Jefferson, held said provisions of said sections unconstitutional and declared them null and void, because Section 8, Article 8, Ohio Constitution read "the right of trial by jury shall be inviolate." In the Supreme Court, to which one or more of said cases had been duly carried, the voices of Samuel Huntington and George Tod, judges, affirmed the rul- ings made by Judge Pease. When the General Assembly met at Chillicothe in December, 1807, the then acting governor (Thomas Kirker, the speaker of the Senate) in his message related said ciecisions and recommended that the Legislature make suitable provision for the trial of actions in which the issues concerned values between $20 and more than $50. The House at once re- ferred the matter to a special committee. On January 4, 1808, it passed a resolution reported by said committee, reading thus :
Resolved, That the judges of the state are not authorized by the con- stitution to set aside an act of the Legislature by declaring the same uncon- stitutional and void.
The vote was ayes 18, noes 12. Although the committee continued to consult no further action was had at that session. On December 23, 1808, the House adopted resolutions impeach- ing Judge Pease by a vote of 35 to II ; and on the next day sim- ilar ones impeaching Judge Tod by 34 to 9. Judge Huntington, in October, 1808, had been elected governor, and had resigned his judgeship in order to enter upon his new office ; so no resolution against him was presented.
The House directed Thomas Morris, Joseph Sharpe, James Pritchard, Samuel Marrett and Othniel Looker to act as man- agers of the prosecution during the trial before the Senate. Judge Pease at once filed answer admitting his decisions ; aver- ring that they were fully supported by constitutional law, and that it was his official duty to decide and adjudge as he had done, and pleading "not guilty." Judge Tod did the like. The Senate sat as a court of impeachment from within the last week in, December until the end of the first week in February, 1809, but not continuously, nor for a whole day at a time, and then ac- quitted both judges.
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The question involved was new to lawyers and people. Be- fore 1630 in England, Lord Chief Justice Coke had said: "When an act of Parliament is against common reason, or repugnant, or impossible to be performed, the common law controls it, and adjudges said act to be void"; and about 1690, Lord Chief Justice Holt, quoting this, added, "Lord Coke said not an extravagant but a reasonable saying." These utterances had remained buried in old, seldom examined books. Few men living and acting in English America between 1775 and 1808, had any knowledge of them. Happily Judge Pease was among those few. The gen- eral impression was that an act of Parliament or of a Legislature overrode the courts and could only be neutralized by amendment, repeal or revolution. The Supreme Court of the United States, prior to 1807, had decided cases in each of which the constitu- tionality of a statute of the United States or of the state of Con- necticut, had been questioned, but had adjudged said statutes constitutional. At February term, 1808, in the case of the United States vs. Judge Peters, 5 Cranch's Reports, pages 115 to 14I, Chief Justice Marshall, the entire court concurring, adjudged an act passed by the Legislature of Pennsylvania in April, 1803, unconstitutional and void. The case will interest you while con- sidering the Ohio impeachment cases of 1808-9. In January, 1803, Richard Peters, United States district judge for Pennsyl- vania, in a suit fully within the jurisdiction of his court, had made a decree distributing the proceeds of a judicial sale of the cargo of the ship Active. In 1803, the Legislature of Pennsyl- vania passed an act declaring the decree so made by the United States Court, invalid, and directing the attorney general of the state to require payment of said sale moneys into the state treas- ury, and in case of refusal, to sue for them in a state court. Said act also "authorized and required the governor of Penn- sylvania to protect the just rights of the state, in respect of the premises, by any further means and measures that he may deem necessary for the purpose, and also to protect the persons and properties of the defendants, Elizabeth Sargeant and Esther Waters, from any process whatever issued out of any Federal Court in consequence of their obedience to the requisition, so as aforesaid directed to be made to them by the attorney general
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of this commonwealth." The moneys ordered distributed by Judge Peters' decree were in custody of said two ladies as exec- utrixes of their father, David Rittenhouse. The persons en- titled, under said decree, to said moneys, applied to Judge Peters to issue the proper process to enforce payment according to his decree. This he declined to do. Then they applied to and ob- tained from the Supreme Court of the United States a mandamus to compel said judge to issue said process. Judge Peters, in his answer to said writ, said: "From prudential more than other motives, I deemed it best to avoid embroiling the government of the United States and that of Pennsylvania (if the latter govern- ment should choose to do so), on a question which has rested on my single opinion, so far as it is touched by my decree ; and under the influence of this sentiment, I have withheld the process re- quired. I entertained a hope that a Legislature succeeding that by which the act before mentioned was passed, would, under a more temperate view of the subject, have repealed it, and enabled and directed the executive of the state, or some other authority, to put this case in legal train of investigation; so that the final judgment and decree of the superior tribunal of the United States might have been in a proper course obtained."
The timidity of Judge Peters had delayed for five years the enforcement of a valid judicial decree. As the opinion of the Supreme Court of the Nation was not delivered until after Jan- uary, 1808, the Ohio judges acted in 1806 and 1807 without its aid. In August, 1806, in an infant state, amid the yet thinly settled woodlands of Eastern Ohio, Calvin Pease, holding Com- mon Pleas Court at St. Clairsville and at Steubenville, far from libraries, thought out the question. In 1807 Huntington and Tod affirmed his judgment. Notwithstanding excitement, the House consulted for almost one year before reporting articles of. impeachment, although three-fourths of the body thought the judges guilty. The Senate gave more than one month to hearing and consideration. Itself a member of the legislative body, it in effect decided that the judicial power could annul a statute be- cause it contravened the constitution.
The leaders in the attempt to impeach Judges Tod and Pease were among the ablest of the Ohioans of that time. One of the
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managers, Thomas Morris, was subsequently elected a supreme judge; later a United States senator. Thomas Worthington, an earnest supporter of the charges, served for years as United States senator, and later as governor of the state. During 1807- 8-9-10, the excitement in political quarters was intense. The im- peaching resolutions were voted for by more than three-fourths of the House. The acquittal did not for more than a year destroy this intense feeling. Although the supporters of impeachment did not elect as large a majority in the House of 1809-10 as they held in that of 1808-9, they were able in January, 1810, to pass what was known as "The Sweeping Resolution." This vacated the offices of all the then judges of the Supreme Court, all presi- dent judges of the Common Pleas Circuits ; and all the associate judges of Common Pleas in every county. It also vacated the offices of secretary of state, the auditor of state, and the treas- urer of state. Another act provided for the election of new justices of the peace in every township.
This exercise of legislative power evidently "relieved the pressure." How did the people treat the accused judges? In October, 1808, the people elected Judge Huntington governor of the state ; in October, 1810, Trumbull County sent Judge Tod to the State Senate ; in February, 1810, the Legislature gave 28 votes for Judge Tod for president judge of Common Pleas, and in 1816 and 1823 elected and re-elected him to that office, in which he served for 14 years; in 1812 Trumbull County sent Judge Pease to the State Senate; and the State Legislature in 1815 and 1822 elected and re-elected him a judge of the Supreme Court, where he served for 14 years.
Ohio should always be proud of the conduct of her sons in the controversy I have now related to you. But she should award the laurel for that battle to her judiciary. They preserved the state constitution. Unless the courts can make null a legislative act not authorized by the constitution, that constitution would be valueless, because its provisions could not be enforced against the will of a bare majority in each house of the Legislature. I assume that a brief sketch of each of the three judges who so served our state, will interest you.
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Calvin Pease was born in Suffield, Connecticut, September 9. 1776; studied law with Gideon Granger (who was postmaster- general from 1801 to 1814), and married his preceptor's sister ; was admitted to the Connecticut Bar in 1798, and to our Terri- torial Bar at Marietta in October, 1800, where and when George Tod and Samuel Huntington were also admitted. On April IO, 1803, the Legislature elected him president judge of Common Pleas for the Third Circuit. He served until March 4, 1810, when he resigned. As already stated, he sat as a supreme judge of Ohio from 1816 to 1830, maintaining and deserving high repu- tation for ability, integrity and knowledge of legal principles. In person he was tall and well-made; in temperament, cheerful and agreeable. Tradition tells that he was noted also for his wit.
George Tod was born in Suffield, Connecticut, December II, 1773; graduated at Yale in 1795; studied law at Judge Reeves' famous school in Litchfield, Connecticut, and became a member of the Bar of that State. He came to Ohio, and was, as already stated, admitted to the Bar at Marietta in October, 1800, and at once became prosecuting attorney of Trumbull County. He served as state senator from Trumbull County in 1804-5; and as supreme judge from 1806 to 1810; again as state senator in 1810-II. Was major and later colonel of the 19th Ohio Militia regiment in 1812-13-14, and served with credit at Fort Meigs and at Sackett's Harbor ; sat as president judge of Com- mon Pleas in the Third Circuit from 1815 to 1829. He died October II, 1841. He was the father of David Tod, the war governor of Ohio, who was elected by 55,223 majority in Octo- ber, 1861, and effectively supported President Lincoln during his entire term.
Samuel Huntington was born in Norwich, Connecticut, in 1765 ; graduated at Yale in 1795; practiced law at Norwich; was sent by owners of Western Reserve lands to examine their prop- erty; decided to live in Ohio; was admitted to the Bar at Mari- etta in 1800; represented Trumbull County in the constitutional convention of 1802; represented the same county in the State Senate 1803-4; was elected supreme judge April 2, 1803, and served until the fall of 1808, when he resigned in order to qualify
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as governor of the state, in which high position he served two years. He died in February, 1817, at Painesville, Ohio. His family was old and of high repute in Eastern Connecticut. He was worthy of his parentage, and deserved and faithfully dis- charged the trusts awarded him by clients, by his fellow legis- lators, and by the people.
For almost half a century, from April, 1803, to February, 1852, beside each lawyer president judge of Common Pleas in each county, sat two or three "associate judges"- laymen - elected by the Legislature for terms of seven years. This office had been adopted from Pennsylvania. These associate judges formed a necessary part of the court at all times, and alone - as a general thing - transacted all business pertaining to an Orphans' or Probate Court. Each of them had a right to vote upon every decision - each of their votes being equal to that of the lawyer president judge.
In 1847 the president judge of the Muskingum Circuit was disabled by sickness for a full year. He wished to resign, but the Bar insisted that he should continue in office. So for that year the associate judges held all the terms. As there was only one lawyer judge in each circuit, no substitute for Judge Richard Stillwell could be obtained. The associates also sat alone in cases in which the president judge had been of counsel, or was otherwise interested.
At the last term in Muskingum, under the old constitution, in January, 1852, a question arose that resulted in an over- ruling of the opinion of the president judge by his associates. Numerous indictments under the liquor law of 1851 had been presented by the Grand Jury. The prosecuting attorney, who for many subsequent years was a distinguished lawyer, and served a full term as judge, had omitted a certain negative averment. Judge Corrington W. Searle, deciding a motion to quash one of said indictments, and following what had become a custom when such a question had been submitted, announced an opinion sustaining the motion as the judgment of the court without consulting either of his associates; and the noon hour having arrived, ordered a recess. The question involved, had been much discussed, not only in court, but among the people,
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and temperance men were anxious that the prosecutions should be sustained. When court opened, in the afternoon, Judge Horatio J. Cox gave an opinion against the motion to quash. Judge Wilkin Reed then did the like. Judge Searle then said, "The Court being divided in opinion the motion is overruled." Hearing this, Judge Jacob P. Springer added, "I agree with the associate judges." Judge Searle docketed the decision, and soon after declared the court adjourned sine die; and the old court, with the old constitution, was dead. The question in- volved survived. Judge Richard Stillwell, during his first term under the new constitution, decided as the associates had done, but the Supreme Court, three judges concurring, agreed with Judge Searle, and reversed Judge Stillwell.
The list of associate judges contains the names of many men well known for their experience, good sense, good judgment and integrity. For 49 years they administered the laws regulat- ing the administration of estates, partition of lands, etc., sensibly and justly.
[The foregoing was read on May 20, 1903, at Chillicothe, Ohio, as a part of the proceedings at the Centennial Celebration conducted under the management of the Ohio State Archaeological and Historical Society. Pursuant to the request of that Society, I now add the following pages in completion of my paper on "The Ohio Judiciary-1803-1903."]
The decisions of Judges Pease, Tod and Huntington, as already stated, made our state constitution safe from injury at the will of bare legislative majorities. The unfortunate blunder made by the refusal of the constitutional convention, to vest in the governor a qualified veto power, compelled the courts to de- termine countless questionings about legislative action. The number of statutes and parts of statutes, denied validity by Ohio courts within the century, may be computed by the hundred. As no court could interfere to protect the citizen until action duly brought and submitted, the people of Ohio have been wronged - beyond my power to compute - by so-called statutes. It became a well known and recognized usage for judiciary com- mittees in each House to report "without recommendation" bills whose unconstitutionality was evident, and for the House to pass
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them :- leaving the courts when duly invoked-to prevent further injury to the people. In November, 1903, the people can, if they will, well begin our second century by correcting the error of 1802, and securing the aid of the governor before any effect can be given to invalid legislation.
Another question of vast importance was presented to the Ohio judiciary. "By what tribunal, if any, could final decisions be made between state and national authority?"
In the constitutional convention of 1787, a Virginia member offered a resolution reading :
A national judiciary ought to be established with jurisdiction to hear and determine cases in which foreigners and citizens, a citizen of one state and a citizen of another state may be interested; cases which respect the collection of the national revenue; impeachments of national officers, and questions which involve the national peace and harmony.
The convention adopted it by a unanimous vote, and so worded Article III of the national constitution as to vest "the judicial power of the United States in one Supreme Court, and in such inferior courts as Congress may from time to time or- dain and establish"; and to provide that "The judicial power shall extend to all cases, in law and equity arising under the constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party ; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grant of different states, and be- tween a state, or the citizens thereof and foreign states, citizens or subjects ; in all cases affecting ambassadors, other public min- isters and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have ap- pellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make."
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