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 31
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The Eleventh amendment to the national constitution pro- vided,
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The judiciary power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted, against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state.
By express provision the national constitution extended the jurisdiction of the national courts to all cases and controversies above enumerated, except suits brought against any state by citizens of another state, or by citizens or subjects of any foreign state; and also by express provision authorized Congress to regu- late the "Appellate jurisdiction of the Supreme Court."
Unless an act of Congress should provide for bringing the final judgment of a state court, rendered in any of said enumer- ated cases, or controversies, into the National Supreme Court for review, much of Article III would be made of no effect.
Therefore, Congress made what is now Section 709, Revised Statutes of the United States, a law "of the land."
A final judgment, or decree, in any suit in the highest court of a state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the constitution, or any treaty, or statute of, or commis- sion held or authority exercised under, the United States, and the de- cision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such constitution, treaty, statute, com- mission or authority, may be re-examined, and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed, in a court of the United States; and the proceeding upon the reversal shall be the same, except that the Supreme Court may, at their discretion, proceed to a final decision of the case and award execution, or remand the same to the court from which it was removed. The Supreme Court may re-affirm, reverse, modify or affirm the judgment or decree of such state court, and may, at their discretion, award execution or remand the same to the court from which it was removed by the writ.
In Woodward vs. Dartmouth College, 4 Wheaton R. 518, the Supreme Court of the nation held that "the charter of a
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private corporation is in nature of a contract between the state and the corporation, and no material change can be made in such act of incorporation, unless with the assent of the corporation, unless said power of change was reserved." In Ohio vs. Com- mercial Bank of Cincinnati, 7 Ohio (Hammond), Part I, page 125, Ohio Supreme Court, by the voices of Chief Justice Peter Hitchcock and Justices Ebenezer Lane and John C. Wright, (Judge Joshua Collett dissenting), followed the ruling of the United States Supreme Court, and adjudged that the state could not collect from the bank a larger tax than its charter reserved. This was "Ohio Doctrine" until Bank v. Knoup, Treasurer, I Ohio State Rep. 603, decided in 1853, by Judge John A. Corwin, Chief Justice William B. Caldwell, and Judges Thomas W. Bart- ley, Allen G. Thurman and Rufus P. Ranney concurring, over- ruled the old court. The last case was taken to the Supreme Court of the United States, which in 1856, by the voices of Chief Justice Roger B. Taney, and Justices John McLean, James M. Wayne, Samuel Nelson, Robert C. Grier and Benjamin R. Curtis (Justices John Catron, Peter V. Daniel and John A. Camp- bell dissenting), reversed the Ohio Court of 1853 and approved the old case in 7 Ohio Rep.
Pursuant to the act of Congress the National Supreme Court issued to the Ohio Supreme Court a mandate reversing the judg- ment of 1853 and ordering that court to enter and enforce said decree of reversal.
A motion to enter said mandate was submitted at December Term, 1856. Judge Joseph R. Swan, having been of counsel for the bank in the case prior to his election as judge, did not sit. Judge Josiah Scott, with whom concurred Judges Jacob Brinker- hoff and Ozias Bowen, held :
The questions arising in this case, and the opinion of this court upon them, were such as to bring it within the cognizance and jurisdiction of the Supreme Court of the United States, unless we assume that that tribunal has no jurisdiction to review any decisions whatever of the state courts, or questions relating to the conflict of a state law with the con- stitution of the United States.
The theory upon which such a position must rest a majority of this court is not prepared to adopt. We do not mean to say that in case of clear usurpation by the Supreme Court of the United States, of an
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authority and jurisdiction wholly unwarranted by the federal constitu- tion, it would not be competent for this court, as a court of last resort in a sovereign state, to decline obedience to a mandate issued in the exer- cise of such usurped jurisdiction. But no such case is before us. On the contrary, the jurisdiction here claimed has been constantly exercised by the Supreme Court of the United States ever since the organization of the general government, with the general acquiescence of the state courts. In conformity, then, with what has heretofore been the uniform practice in this state, we direct the mandate to be entered.
Judge Thomas W. Bartley, on pages 343 and 344 of 6th Ohio State Reports, worded the syllabi of his dissenting opinion thus :
The provision of the constitution of the United States expressly conferring appellate jurisdiction on the Supreme Court does not author- ize the exercise of appellate power to that tribunal over the state courts, but extends simply to appeals from the subordinate Federal courts."
There is no provision in the constitution from which a supervising power in the Supreme Court of the United States over the state courts can be derived by way of incident or implication.
The Supreme Court of the United States has not been constituted the exclusive tribunal of last resort, to determine all controversies in re- lation to conflicts of authority between the Federal Government and the several states of the Union.
The state courts and the federal courts are co-ordinate tribunals, having concurrent jurisdiction in numerous cases, but neither having a supervising power over the other; and where the jurisdiction is concur- rent, the decision of that court, or rather of the courts of that judicial system, in which jurisdiction first attaches, is final and conclusive as to the parties.
Judge Bartley filled Volume 6 of Ohio State Reports from page 343 to page 448 in an attempt to support his said syllabi.
But he does not attempt to explain how the judicial power of the United States can be made to extend to and include all cases enumerated in Article III of the national constitution, un- less its courts can draw to them and re-examine judgments and decrees of state courts that deny to citizens of the United States some right given or secured by that constitution; or attempt to enforce some state enactment that is in violation of said con- stitution.
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Happily, the majority of the court maintained the true doc- trine and held Ohio firmly within constitutional moorings. If the dissenting judge could have had his way, five years before South Carolina led the way into insane civil war, our state would have forbidden the enforcement within her limits of all United States laws and judgments not approved by a majority of our State Supreme Court.
Three years later - at Columbus in May, 1859-the Ohio Supreme Court - amid intense popular excitement - once more saved our state.
Paragraph 3 of Section 2 of Article IV of the national constitution reads :
No person held to service, or labor, in one state, under the laws thereof, escaping into another, shall, in consequence of any law, or regu- lation, therein be discharged, from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.
To enforce this constitutional provision Congress passed the act of February 12, 1793, approved by President Washington, and the act of September 18, 1850, approved by President Fill- more. The Supreme Court of the United States, in Frigg. v. Pennsylvania, 16 Peters 539, in 1842, unanimously decided that the law of 1793 was constitutional ; and in 1858, in Ableman v. Booth, 21 Howard, U. S. Reports 506, held the act of 1850 con- stitutional in all of its provisions, the whole court concurring. On April 15, 1859, Simon Bushnell was found guilty under an indictment framed under said act of 1850, and was sentenced by the United States District Court at Cleveland, Ohio, to sixty days imprisonment in the jail of Cuyahoga County from and after May II, 1859, and to pay a fine of $600 and the costs of prosecution.
Counsel for Bushnell applied to Ohio Supreme Court at Co- lumbus and a writ of habeas corpus brought the case and the accused before that tribunal, "to inquire into the cause of such imprisonment."
A long line of decisions had defined the limits within which the inquiring court could act, and an Ohio statute read :
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If it appear that the person, alleged to be restrained of his liberty, is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate has jurisdiction to issue the process, render the judg- ment or make the order, the person shall not be discharged by reason of any informality, or defect in the process, judgment, or order.
If the so-called "Fugitive Slave Act," passed September 18, 1850, was constitutional, all admitted that the prisoner was legally held under the sentence, judgment and writ of the United States District Court at Cleveland.
No one disputed the fact that the Supreme Court of the United States had unanimously, within the year, decided that said law was constitutional in all of its provisions.
Chief Justice Joseph R. Swan, and Judges Josiah Scott and William V. Peck, held that, on such a question, the decision of the National Supreme Court was binding upon the state court, and they remanded the prisoner to the Cleveland jail.
Judge Jacob Brinkerhoff thought that the indictment was defective and for that, and for some other reasons, favored a dis- charge of the prisoner.
Judge Milton Sutliff refused to be bound by the repeated and unanimous decisions of the Supreme Court of the United States as to the constitutionality of the Fugitive Slave Law; de- cided for himself that said act was unconstitutional and invalid, and voted to discharge the prisoner.
If a majority of the Ohio court had concurred with him; if either Peck, Scott or Swan had voted with Brinkerhoff and Sut- liff, Governor Salmon P. Chase held himself ready to use the Ohio militia in resistance to the United States authority, and to prevent the enforcement of the decree of the United States Court. This would have placed Ohio in June, 1859, where South Caro- lina and her allies were in 1861, so far as concerned constitutional principles.
Judge Joseph R. Swan had been elected in 1854 by more than 77,000 majority. On May 1, 1859, he was expecting re- nomination and re-election. The intense anti-slavery feeling prevalent in Ohio later in that month, assured him that, unless
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he would join in defying the Supreme Court of the United States, and in preventing the enforcement within Ohio of the Fugitive Slave Law, he could neither be re-nominated nor elected. The same feeling assured Judges Scott and Peck, that their con- currence with Chief Justice Swan would make improbable their own re-nomination in succeeding years.
Grandly did they maintain judicial independence and integ- rity. Bravely did they do their whole duty. They firmly held Ohio to her place in the Union.
On September 15, 1858, in his debate with Stephen A. Douglas, at Jonesboro, Illinois, Abraham Lincoln said :
Let me ask you why many of us, who are opposed to slavery upon principle, give our acquiescence to a fugitive slave law? Why do we hold ourselves under obligations to pass such a law, and abide by it when it is passed? Because the constitution makes provision that the owners of slaves shall have the right to reclaim them. Now, on what ground would a member of Congress, who is opposed to slavery in the abstract, vote for a fugitive slave law, as I would deem it my duty to do? Be- cause there is a constitutional right which needs legislation to enforce it. And, although it is distasteful to me, I have sworn to support the consti- tution; and having so sworn, I cannot conceive that I do support it, if I withhold from that right any legislation to make it practical.
Amid the excited feeling of 1859, Chief Justice Swan was retired to private life because he so bravely did his duty. But Abraham Lincoln's teaching so far corrected party sentiment that he was chosen president in 1860, and Judge Josiah Scott re-elected in 1861.
Each of the three judges, who so bravely, nobly and effect- ively served their country, should ever be held in most honorable memory by our people.
JOSEPH ROCKWELL SWAN was born December 28, 1802, in Oneida County, New York. He received a classical education at Aurora in that state, and there began to study law. He came to Columbus, Ohio, in 1824, and continuing study in the office of his uncle, Judge Gustavus Swan, was soon admitted to the bar. He was prosecuting attorney of Franklin County from 1830 until in 1834 the Legislature elected him president judge of the Twelfth Circuit then consisting of Champaign, Clark, Delaware,
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Franklin, Logan, Madison and Union Counties. He was re- elected in 1841 but resigned in 1845; formed the noted law firm of Swan and Andrews (John W. Andrews, the junior mem- ber) and practiced with energy and success until 1854. The repeal of the Missouri Compromise passed in May of that year aroused the country. Although Ohio, in October, 1853, had chosen William Medill, Democrat, governor by a plurality ex- ceeding 61,000 votes, in October, 1854, Judge Swan - Repub- lican - or "anti-Nebraska candidate," was elected supreme judge by a majority of more than 77,000 votes.
"On the bench of the Supreme Court" (I quote from John W. Andrews, Allen G. Thurman and R. A. Harrison) "he fully sustained his earlier reputation as a judge, and probably held as high a place in the estimation of the bench, 'the bar and the public, as has ever been reached by any one of the many dis- tinguished men who have adorned our judicial history. Wise, patient, firm, impartial, courteous, he never lost sight of the dig- nity of his high office, to which he brought unusual native vigor . of mind, large stores of learning, untiring industry, and the most conscientious regard for the rights of litigants, and abhor- rence of all injustice and wrong."
I have told you how and why unusual political excitement prevented his renomination and election. Its injustice did not dis- turb him. Not long afterwards an appointment to fill a vacancy on the supreme bench, and also a Republican nomination as a candidate therefor was tendered him. But after leaving the bench in February, 1860, he never renewed the active practice of his profession, nor accepted a judicial position. In 1836 he published the treatise entitled, "A Treatise on the Law Relating to the Powers and Duties of Justices of the Peace, Etc.," of which eleven editions were published during his life time and a twelfth prepared by him. That was published after his death. Ohio editors have since prepared and published other editions. Quoting again from Andrews, Thurman and Harrison, I add : "This has probably proved to be the most useful book ever pub- lished in Ohio. Its circulation has been immense among the successive generations of justices of the peace in every town- ship in the state, lawyers, county officers, judges and business
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men, in other states as well as our own; and it has been a model for similar works elsewhere. The influence of such a book, cir- culating in every neighborhood, and among all classes, in shap- ing the characters of the people, and inculcating a reverence for law, can hardly be overestimated."
In 1850-51 Judge Swan represented Franklin County in the second constitutional convention of Ohio, and rendered valuable service as a member of the committee on the judicial depart- ment, and of the committee on public debts and public works. An act relating to the settlement of estates of deceased persons, and another relating to wills, passed by the General Assembly of Ohio in 1840, were drafted by Judge Swan. But few amend- ments of these statutes have been found necessary.
Four general revisions of Ohio Statutes were made by Judge Swan. Of these the code commissioners of 1880 wrote, "Per- haps no other man - with the material before him, and in the absence of all power to change it, would have been able to pro- duce a collation of our statutes so admirable in all that pertains. to the work of an editor, as Swan's statutes of 1841. In 1854-55, 1860 and 1868 he performed the same task of collating and arranging the statutes in force."
In 1843 he published his "Guide to Executors and Admin- istrators; Swan's Pleading and Precedents" - one volume in 1845, a second in 1850. In 1860 appeared "Swan's Pleadings and Precedents Under the Code." Of this Andrews, Thurman and Harrison wrote: "The bench and bar of Ohio were largely influenced by it, and led to construe the code in the spirit of the code itself ; and as a consequence questions of pleading and prac- tice brought before the Supreme Court of Ohio under the code, which in the state of New York fill many volumes, would not altogether make one volume of the size of the Ohio State Re- ports." I continue quoting: "His private life was in all re- spects in keeping with, and worthy of the place which he held in the estimation of the public. In every station, and always, he was the same quiet, upright, conscientious, patriotic, Christian man, loving home, friends, neighbors and country, and finding in them and the duties claimed by them, a means of preparation for, and foretaste of that life to come which Christianity reveals.
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His name will live in our history; and as long as the Common Law of England shall constitute the basis of our jurisprudence Joseph Rockwell Swan will be held in grateful remembrance by the bar and people of Ohio."
He died at his home in Columbus on December 18, 1884.
JOSIAH SCOTT was born in Washington County, Pennsylva- nia, on December 1, 1803, on his father's farm, about three miles from Cannonsburg - the seat of Jefferson College where he was educated under the celebrated Dr. McMillen. He lived at home, walking to and from college. In 1821 he graduated with the highest honors of his class. For a time he taught a classical school in Richmond, Va. Later he returned to Cannonsburg and acted as a tutor in the college while he studied law. In 1830 he moved to Bucyrus, Ohio, and there began to practice law. In 1840-41 he represented Crawford, Delaware and Marion Coun- ties in the Ohio House of Representatives. In 1851 he made his home at Hamilton, Butler County, and practiced there until in October, 1856, he was elected a judge of the Supreme Court for the term that began on February 9, 1857. His predecessor, Judge Ranney, having resigned after October II, 1856, Governor Chase named Judge Scott for the vacant place. He was re- elected in 1861 and 1866, but declined to be again a candidate in 1871. In 1872 he resumed practice at Bucyrus, but accepted from Governor Hayes a seat on the first Supreme Court Com- mission, where he served until February, 1879. In February, 1876, his associates elected him chief judge, but he declined to accept it. Being in feeble health when his term on the Com- mission ended he did not resume practice ; and died on June 15, 1879. He was twice married, and was survived by his widow and by a son and two daughters, all children of his first wife. The life of Judge Scott was active and useful; and was dis- tinguished for its purity. He possessed remarkable traits of character ; was a profound thinker, and an able jurist. He was noted for his mathematical attainments, and his hours of recre- ation were frequently spent in solving abstruse problems in the higher mathematics. His judicial opinions are in Volumes 5 to :21, inclusive, and in Volumes 27, 28, 30, 32 and 33, Ohio State
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Reports. I have quoted freely from a sketch prepared by his; brother judges.
WILLIAM VIRGIL PECK was born at Cayuga, New York, on April 16, 1804. His father died in the following September, and in October his mother returned to their former home in Litch- field, Connecticut. He there attended the common schools; then Pierce Academy and later South Farms Academy, until, at twelve years of age, he was employed as a clerk in a store. In 1824 he entered the famous law school at Litchfield, then con- ducted by Judge Gould, and graduated in 1826. He then went to Cincinnati, Ohio, and entered the office of Judge Bellamy Storer. In 1827 he opened his own office in Portsmouth, where, on June 8, 1830, he married Miss Mary Ann Cook. He soon acquired high reputation and a profitable practice. In February, 1847, Ohio Legislature elected him president judge of the Court of Common Pleas for the Seventeenth Circuit. In October, 1851, at the first election under the second constitution, the voters of the second sub-division of the Seventh Judicial District, composed of Jackson, Lawrence, Pike, Scioto and Vinton Counties, made him its sole judge. They re-elected him in 1856 for a five-year term, but he resigned and took his seat on the supreme bench in February, 1859, having, in October, 1858, defeated Judge Thomas W. Bartley. In 1863 he declined to be a candidate for another term. In 1864 he returned to Portsmouth, but did not resume practice. He died there on December 30, 1877 ; his wife - the mother of his many children, - having preceded him on the eleventh day of the same month. The History of Scioto County, by Captain N. W. Evans, tells us that "of his contem- poraries at the bar none ever spoke of him as a lawyer and a judge except in terms of highest commendation. As a common. pleas judge he was considered the superior of all who came before; and since his time there has not been his equal." His opinions as a supreme judge are in Volumes 8 to 14, both in- cluded, of Ohio State Reports.
The limits of my paper will not permit special notice of all' Ohio supreme judges, but I will select a few. One of these is. CHARLES ROBERT SHERMAN, whose sons - WILLIAM TECUM- SEH, as a general, and JOHN, as a statesman, attained the highest
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rank in both state and nation. The judge was born in Nor- walk, Connecticut, September 26, 1788. He received the best educational advantages of his day; studied law under his father, Taylor Sherman, and Judge Chapman, and was admitted to the Connecticut bar in 1810. He married Mary Hoyt in May of that year; traveled via Pittsburg, Wheeling and Zanesville to Lancaster, Ohio; decided to settle there; and in 1811, with wife and infant child, rode on horseback through the wilderness to their new home. The war with England began in 1812, and he, as major of the Fairfield regiment, was active in filling the county quota for the army at Detroit. An old lawyer, who knew him well, wrote: "Established permanently at Lancaster he rapidly rose to eminence as a polished and eloquent advocate, and as a judicious, reliable counselor at law ; few men were his equals, and fewer still his superiors, in Ohio or out of it." The same lawyer wrote of early Ohio practice thus: "During the pioneer years of Ohio its lawyers were obliged to make extensive circuits; they were accustomed to accompany the courts from county to county. They rode together in primitive style; their saddle-bags stuffed with papers, documents, briefs, law books, clothing and peradventure some creature delectation also. They were exposed to the same inclemencies and impediments in travel ; they lodged together at the same inns, or taverns, messed at the same table, slept in the same rooms, and were not unfrequently coerced by twos into the same bed. Free, jovial, genial, manly and happy times they were, when after a hard-fought field-day of professional antagonisms in court, the evening hours were crowded with social amenities, and winged with wit and merri- ment, with pathos, sentiment and song." "At these symposiums of recreation - and they were held wherever the courts used to meet - Charles R. Sherman was always the most welcome of companions. Thus endowed and so associated he became known as a leading and popular people's lawyer from the Ohio to Lake Erie."
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