USA > Ohio > Union County > The History of Union County, Ohio, containing a history of the county; its townships, towns military record; > Part 38
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" The Ordinance and the Compact." says Judge Burnet, "which was the constitution of the Territory, contained but little specific legislation. It pre- scribed the rule of descents: the mode of transferring real estate, by deed of lease and release, and of devising or bequeathing it by will. It regulated the right of dower, and authorized the transfer of personal property by delivery; saving always to the French and Canadian inhabitants, and other settlers who had before professed themselves citizens of Virginia, their laws and customs then in force among them, relative to the descent and conveyance of property. In addition to these provisions, the compact ordained that no person demean- ing himself in a peaceable manner should be molested on account of his mode of worship or religious opinions. It also secured to the inhabitants forever the benefit of the writ of habeas corpus, of trial by jury. of a proportionate repre- sentation of the people in the Legislature, and of judicial proceedings, accord- ing to the course of the Common Law."
The Courts of Common Law in the Territory assumed chancery powers as a necessity, as there was no tribunal in said Territory vested with such powers. Several necessary laws were passed at the first session of the Territorial Legis- lature at Cincinnati, but matters regarding courts and their powers were not satisfactorily settled until the adoption of the first State Constitution in 1802. The General Court provided for by the Ordinance of 1787 consisted, as before stated, of three Judges, "appointed by the President, with the advice and con- sent of the Senate: each of whom received a salary of $800 from the treasury of the United States. It was the highest judicial tribunal in the Territory, and was vested with original and appellate jurisdiction in all civil and crimi- nal cases, and of capital cases: and on questions of divorce and alimony its jurisdiction was exclusive. It was, however, a common law court merely, without chancery powers, and it was the court of dernier ressort. It had power to revise and reverse the decisions of all other tribunals in the Terri- tory; yet its own proceedings could not be reversed or set aside, even by the Supreme Court of the United States. It was held at Cincinnati in March, at Marietta in October, at Detroit and in the Western counties a such timo in each year as the Judges saw proper to designate."
The travels of the Judges and members of the bar in those early years, to and from the places of holding courts-Cincinatti, Marietta and Detroit- were attended with difficulties of the most serions nature. The distances were always great. settlements were searce and the way was rough. Their jour- neys were made on horseback. and it was exceedingly necessary that the horses they rode should be good swimmers, for it was in the days before bridges had been thought of, and only the best fording places along the numerous streams were sought out by the tired travelers. Judge Burnet, who knew from ex- perience all the trials of the times, wrote of them as follows:
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"The journeys of the court and bar to those remote places, through a country in its primitive state, were unavoidably attended with fatigue and exposure. They generally traveled with five or six in company, and with a pack-horse to transport such necessaries as their own horses could not conven- iently carry, because no dependence could be placed on obtaining supplies on the route; although they frequently passed through Indian camps and vil- lages, it was not safe to rely on them for assistance. Occasionally, small quantities of corn could be purchased for horse feed. but even that relief was precarious. and not to be relied on. In consequence of the unimproved con dition of the country, the routes followed by travelers were necessarily cir- cuitous and their progress slow. In passing from one county seat to another they were generally from six to eight and sometimes ten days in the wilder- ness, and, at all seasons of the year, were compelled to swim every water- course in their way which was too deep to be forded; the country being wholly destitute of bridges and ferries, travelers had therefore to rely on their horses as the only substitute for those conveniences. That fact made it coinmon, when purchasing a horse, to ask if he were a good swimmer, which was con- sidered one of the most valuable qualities of a saddle horse."
Lynch law was liable to be adopted by the men of the border settlements, and one or two instances of its execution, in the form of public whippings, are known to have occurred; but in August, 1758, a law was published in Marietta establishing a "General Court of Quarter Sessions of the Peace, and County Courts of Common Pleas," and these superseded the lynch code before it had been in operation a year. Mr. McMillan was appointed the Presiding Judge of those courts in the county of Hamilton.
The first Constitution of the State of Ohio, adopted November 29, 1802. contained, in its third article, the following provisions for the judicial gov- erninent of the State:
SECTION 1. The judicial power of this State, both as to matters of law and equity, shall be vested in a Supreme Court, in Courts of Common Pleas for each county, in Justices of the Peace, and in such other courts as the Legislature may from time to time establish.
SEC. 2. The Supreme Court shall consist of three Judges, any two of whom shall be a quorum. They shall have original and appellate jurisdic- tion, both in common law and chancery, in such cases as shall be directed by law; Provided, That nothing herein contained shall prevent the General Assem- bly from adding another Judge to the Supreme Court after the term of five years, in which case the Judges may divide the State into two circuits, within which any two of the Judges may hold a court.
SEC. 3. The several courts of Common Pleas shall consist of a President and Associate Judges. The State shall be divided. by law, into three circuits; there shall be appointed in each circuit a President of the courts, who, during his continuance in office, shall reside therein. There shall be appointed in each county not more than three nor less than two Associate Judges, who, dur- ing their continuance in office, shall reside therein. The President, and Asso- ciate Judges, in their respective counties, any three of whom shall be a quo- rum, shall compose the Court of Common Pleas, which court shall have com- mon law and chancery jurisdiction in all such cases as shall be directed by law; Provided, That nothing herein contained shall be construed to prevent the Legislature from increasing the number of circuits and Presidents, after the term of five years.
SEC. 4. The Judges of the Supreme Court and Courts of Cominon Pleas shall have complete criminal jurisdiction, in such cases and in such manner as may be pointed out by law.
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SEC. 5. The Court of Common Pleas in each county shall have jurisdic- tion of all probate and testamentary matters, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law.
SEC. 6. The Judges of the Court of Common Pleas shall, within their respective counties, have the same powers with the Judges of the Supreme Court, to issue writs of certiorari to the Justices of the Peace, and to cause their proceedings to be brought before them, and the like right and justice to be done.
SEC. 7. The Judges of the Supreme Court shall, by virtue of their offices, be conservators of the peace throughout the State. The Presidents of the Court of Common Pleas shall, by virtue of their offices, be conservators of the peace in their respective circuits; and the Judges of the Court of Com- mon Pleas shall, by virtue of their offices, be conservators of the peace in their respective counties.
SEC. 8. The Judges of the Supreme Court, the Presidents and the Asso- ciate Judges of the Courts of Common Pleas, shall be appointed by a joint ballot of both Houses of the General Assembly, and shall hold their offices for the term of seven years, if so long they behave well. The Judges of the Supreme Court and the Presidents of the Courts of Common Pleas shall, at stated times, receive for their services an adequate compensation, to be fixed by law, which shall not be diminished during their continance in office; but they shall receive no fees or perquisites of office, nor hold any other office of profit or trust under the authority of this State, or the United States.
SEC. 9. Each court shall appoint its own clerk, for the term of seven years; but no person shall be appointed clerk, except pro tempore, who shall not produce to the court appointing him a certificate from the majority of the Judges of the Supreme Court that they judge him to be well qualified to exe- cute the duties of the office of clerk to any court of the same dignity with that for which he offers himself. They shall be removable for breach of good be- havior, at any time, by the Judges of the respective courts.
SEC. 10. The Supreme Court shall be held once a year in each county, and the courts of Common Pleas shall be holden in each county, at such times and places as shall be prescribed by law.
SEC. 11. A competent number of Justices of the Peace shall be elected by the qualified electors in each township in the several counties, and shall continue in office three years, whose powers and duties shall, from time to time, be regulated and defined by law.
SEC. 12. The style of all processes shall be "The State of Ohio;" all prosecutions shall be carried on in the name and by the authority of the State of Ohio, and all indictments shall conclude against the peace and dignity of the same.
The new Constitution of Ohio, adopted June 17, 1851, made considerable changes in the courts, and Article 4, providing for judicial matters in the State, is as follows:
SECTION 1. The judicial power of the State shall be vested in a Supreme Court, in District Courts, Courts of Common Pleas, Courts of Probate, Jus- tices of the Peace, and in such other courts, inferior to the Supreme Court, as the General Assembly may from time to time establish.
SEC. 2. The Supreme Court shall consist of five Judges, a majority of whom shall be necessary to form a quorum or pronounce a decision. It shall have original jurisdiction in quo warranto, mandamus, habeas corpus and pro- cedendo, and such appellate jurisdiction as may be provided by law. It shall hold at least one term in each year at the seat of government, and such other terms at the seat of government or elsewhere as may be provided by law. The
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Judges of the Supreme Court shall be elected by the electors of the State at large.
SEC. 3. The State shall be divided into nine Common Pleas districts, of which the county of Hamilton shall constitute one, of compact territory, and bounded by county lines; and each of said districts, consisting of three or more counties, shall be subdivided into three parts, of compact territory, bounded by county lines, and as nearly equal in population as practicable, in each of which one Judge of Common Pleas for said district, and residing therein, shall be elected by the electors of said subdivision. Courts of Common Pleas shall be held by one or more of these Judges, in every county in the dis- trict, as often as may be provided by law; and more than one court, or sitting thereof, may be held at the same time in each district.
SEC. 4. The jurisdiction of the Courts of Common Pleas, and of the Judges thereof, shall be fixed by law.
SEC. 5. District Courts shall be composed of the Judges of the Court of Common Pleas of the respective districts, and one of the Judges of the Supreme Court, any three of whom shall be a quorum, and shall be held in each county therein at least once in each year; but, if it shall be found inexpe- dient to hold such court annually in each county of any district, the General Assembly may, for such district, provide that said court shall be holden at three annual sessions therein, in not less than three places: Provided, That the General Assembly may, by law, authorize the Judges of each district to fix the times of holding the courts therein.
SEC. 6. The District Court shall have like original jurisdiction with the Supreme Court, and such appellate jurisdiction as may be provided by law.
SEC. 7. There shall be established in each county a Probate Court, which shall be a court of record, open at all times, and holden by one Judge, elected by the voters of the county, who shall hold his office for the term of three years, and shall receive such compensation, payable out of the county treasury, or by fees, or both, as shall be provided by law.
SEC. S. The Probate Court shall have jurisdiction in probate and testa- mentary matters, the appointment of administrators and guardians, the settle- ment of the accounts of executors, administrators and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, administrators and guardians, and such other juris- diction, in any county or counties, as may be provided by law.
SEC. 9. A competent number of Justices of the Peace shall be elected by the electors in each township in the several counties. Their term of office shall be three years, and their powers and duties shall be regulated by law.
SEC. 10. All Judges, other than those provided for in the constitution, shall be elected by the electors of the judicial district for which they may be created, but not for a longer term of office than five years.
SEC. 11. The Judges of the Supreme Court shall, immediately after the first election under this constitution, be classified by lot, so that one shall hold for the term of one year, one for two years, one for three years, one for four years and one for five years; and, at all subsequent elections, the term of each of said Judges shall be for five years.
SEC.12. The Judges of the Courts of Common Pleas shall, while in office, reside in the district for which they are elected; and their term of office shall be for five years.
SEC. 13. In case the office of any Judge shall become vacant, before the expiration of the regular term for which he was elected, the vacancy shall be
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filled by appointment by the Governor, until a successor is elected and quali- fied; and such successor shall be elected for the unexpired term, at the first annual election that occurs more than thirty days after the vacancy shall have happened.
SEC. 14. The Judges of the Supreme Court and of the Court of Com- mon Pleas shall, at stated times, receive for their services such compensation as may be provided by law, which shall not be diminished or increased during their term of office; but they shall receive no fees or perquisites, nor hold any other office of profit or trust, under the authority of this State or the United States. All votes for either of them, for any elective office, except a judicial office, under the authority of this State, given by the General Assembly, or the people, shall be void.
SEC. 15. The General Assembly may increase or diminish the number of the Judges of the Supreme Court, the number of the districts of the Court of Common Pleas, the number of Judges in any district, change the districts or the subdivisions thereof, or establish other courts, whenever two-thirds of the members elected to each House shall concur therein; but no change, addition or diminution shall vacate the office of any Judge.
SEC. 16. There shall be elected in each county, by the electors thereof, one Clerk of the Court of Common Pleas, who shall hold his office for the term of three years, and until his successor shall be elected and qualified. He shall, by virtue of his office, be clerk of all other courts of record held there- in; but the General Assembly may provide, by law, for the election of a Clerk, with a like term of office, for each or any other of the courts of record and may authorize the Judge of the Probate Court to perform the duties of Clerk for his court, under such regulations as may be directed by law. Clerks of courts shall be removable for such cause and in such manner as shall be pre- scribed by law.
SEC. 17. Judges may be removed from office, by concurrent resolution of both Houses of the General Assembly, if two-thirds of the members elected to each House concur therein; but no such removal shall be made except upon complaint, the substance of which shall be entered upon the journal, nor until the party charged shall have had notice thereof and an opportunity to be heard.
SEC. 18. The several Judges of the Supreme Court, of the Common Pleas, and of such other courts as may be created, shall, respectively, have and exercise such power and jurisdiction, at chambers or otherwise, as may be directed by law.
SEC. 19. The General Assembly may establish courts of Conciliation, and prescribe their powers and duties; but such courts shall not render final judgment in any case, except upon submission, by the parties, of the matter in dispute, and their agreement to abide such judgment.
SEC. 20. The style of all process shall be, " The State of Ohio;" all prosecutions shall be carried on in the name and by the authority of the State of Ohio, and all indictments shall conclude, "against the peace and dignity of the State of Ohio."
The following items concerning the courts in the county of Union are compiled from articles written by Judge J. B. Coats, and published in the Marysville Tribune in 1870:
The first court held in Union County was a special term of the Court of Common Pleas, convened at Milford, April 14, 1820. It was held by the Associate Judges, David Mitchell, William Gabriel and Nicholas Hathaway. Thomas Reynolds was appointed Clerk pro tem., and also Recorder of the county. His securities were George Reed, Joel Frankelberger and Joseph S.
James thompson
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Hughs. Reynolds took the oath of office and the court adjourned without day. Mr. Reynolds kept the minutes of this meeting of the court. Judge Coats thinks it probable that this court completed the organization of the county, although there is no entry on the record to show that such steps were taken. The record does not state who was Sheriff at that time, but doubtless James Ewing served in that capacity, as his bond was filed with the County Clerk three days later (April 17, 1820). This term of court was held in one of the rooms of Nathaniel Kazer's tavern, on the ground lately owned by James Fullington and occupied by a large brick building. The old structure is believed to be still standing. The court room was separated from the bar and the people by stretching a rope across the room in which the entire busi- ness was transacted.
The first regular term of the court held in the county convened at Mil- ford, May 15, 1820; present, Hon. John A. McDowell, President Judge, and David Mitchell, William Gabriel and Nicholas Hathaway, Associates. This court was held in the same room and the same manner as the first one. The first Grand Jury was composed of the following persons: Clark Provin, fore- man; David Mitchell, Jr., Allen Leeper, James Bell, Lancelot Maze, Samuel Robinson, J. Boal, Andrew Gill, John Porter, John Gabriel, Joseph Stewart, George Reed, Robert Bronston, James Snodgrass, Alexander Reed. The first order entered upon the record of this term was the appointment of Abraham D. Vanhorn, Prosecuting Attorney. The second was one granting a license to David Davis to keep a tavern for one year at Milford, upon the payment of $10. The next appointed James Townsend, County Surveyor, and the next, Thomas Reynolds, Clerk pro tem. of the court. Among other items furnished by the record of this term is the following: "Ordered by the court that Rhody Stokes be appointed guardian of Hope Stokes, nine years of age; Hiram Stokes, seven years; Maria Stokes, five years; John Stokes, two years, heirs of John Stokes, deceased, upon entering into bonds with James Ewing, David Comer and Alexander Reed, as securities." The Stokes children became well- known residents of the county. The last order issued by the court at this term was the granting of a license to William Burnham to keep a tavern for one year at Milford, upon payment of $10. The term lasted but one day. It is not known positively whether the Grand Jury found and presented any indictments at this term, but it is probable that they did, as the second case upon the docket of the second term was a criminal one.
The second term of court commenced in the court room at Milford, July 10, 1820; present, the full bench as before. The Grand Jurors were Anson Howard, foreman; Thomas McDowell, Allen Leeper, Samuel Kazer, George Brown, George Reed, Andrew Gill, James Cochran, Samuel Kirkpatrick, Rob- ert Snodgrass, John Porter, David Reed, James Townsend, John McDowell, Thomas Reed. George Brown was granted a license to vend goods in Union Township, paying $10 for the privilege. The only civil case on the docket at this term was that of Isaac Johnson vs. Simeon Hager-the first also on the Common Pleas record of Union County -- and it ran through several terms and was finally settled by arbitration. The first criminal case was one for assault and battery-" State of Ohio vs. Stephen Kelsey." The indictment states that the jurors, upon oath, present that "Stephen Kelsey, now or late of said county, on the 24th day of June, 1820, at Milford, in the county aforesaid, with force and arms, to wit: with clubs, sticks and other offensive weapons, in und upon one Philander Crapo, in the peace of the said State then and there being, did make an assault, and him, the said P. Crapo, did then and there beat, wound and evil treat against the peace of the said State, its laws and dignities." The defendant pleaded not guilty, and a jury composed of Will-
1
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iam Burnham, David Bowen, James Biggs, Samuel Reed. B. King, Vandiver Reed, Elias Robinson, Ebenezer Miles, Richard Gabriel, John Parthemore, Isaac Dodd and Robert Branson tried the case and found him guilty as in- dicted. An attempt to arrest judgment was overruled, and Kelsey was fined $10 and costs of prosecution. The second criminal case on the docket tried at this term, and the first indictment found and presented by a Grand Jury in Union County, was that of the State of Ohio vs. Luke Ellison, for grand lar- ceny. Ellison had stolen a bay mare worth $40 and a saddle worth $10, the former from Moses Patrick and the latter from John Mclaughlin. He was tried. convicted and sentenced to the penitentiary for five years. He was a native of Lower Canada, twenty-one years of age, unmarried and without a trade.
At this term, Levi Phelps was appointed County Surveyor for the term of five years, and Ricbard Gabriel, keeper of the seals of standard measures. Abraham D. Vanhorn, Prosecuting Attorney, was allowed $45 for his serv- ices during this and the last term of court.
August 17, 1820, a special term of court was held by the Associate Judges- Mitchell, Hathaway and Gabriel-at which Margaret Mitchell and James Boal were granted letters of administration on the estate of George Mitchell, de- ceased. Samuel Robinson, Thomas Robinson and Samuel Mitchell were appointed to appraise the property of the deceased, and make return to the Clerk's office in three months, according to law.
May 15, 1821, a special term was held at Milford by the Associate Judges, the President Judge being absent. John R. Parish was appointed Prosecut- ing Attorney on behalf of the State. A Grand Jury was appointed, who re- tired for deliberation. There were no criminal cases on the docket and but six civil cases. The jury impaneled for the trials thereof consisted of Will- iam B. Irwin (since of Lebanon, Warren Co., Ohio, and now deceased), Simeon Hager, John Irwin, William Richey, Jr., John Irwin, Jr., Daniel Kent, Jonathan Worthy, Moses Mitchell, Hugh Porter, Augustus Coolidge, Nathaniel Kazer, Moses Patrick. The last will and testament of Joshua Ewing, deceased. was exhibited in open court by Calvin Winget and Elizabeth Gill, two of the subscribing witnesses thereto, and was duly proved and admit- ted to record, and letters testamentary issued to James Ewing, Esq., and Mar- garet Ewing. The Grand Jury then came into court, presented nothing and was discharged. The sum of $15 was allowed John R. Parish for duties as Prosecuting Attorney at this term, and it was "ordered that David Comer be paid $1.50 per day as Director of the town of Marysville, the seat of justice for this county." A special term was held by the Associate Judges June 16, 1821, at which some minor business was transacted.
July 10, 1821, the second regular term for that year was held at Milford; full bench present. " The only business of any importance before the court at this term." says Judge Coats, " was the trial of the case entitled the State of Ohio vs. Seth Chillis, on an indictment for burglary found against the said Seth Chillis at this, the July term of court, in which indictment the said Seth Chillis is charged with breaking and burglariously entering into the still- house of one Jacob Sager, with intent to steal the goods and chattels of said Jacob Sager, there situate and being, feloniously to steal, take and carry away against the peace and dignity of the State of Ohio, and against the statute in such cases made and provided." John R. Parish was Prosecuting Attorney. Defendant pleaded not guilty, but a jury of good and true men found him guilty, and he was convicted and sentenced to two years' confinement in the penitentiary. Chillis was a native of Massachussetts, a resident of Madison County, Ohio, and a farmer by occupation. Among orders issued at this term
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