USA > Ohio > Hamilton County > Cincinnati > The old court house : reminiscences and anecdotes of the courts and bar of Cincinnati > Part 15
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exclaimed : "You know gentlemen of the jury, as well as the court, that the law is the perfection of reason as the old legal writers have it-the perfection of reason !"
"Stop, counsellor," blandly said the court, " stop a minute, and we will consider about that. This court does not know, and cannot agree with the learned counsel, that the law is the perfection of reason, though many legal writers have been pleased, and vain enough to say so. We think it, however, much better to say that the law is not the perfection of reason, but of reasoning, which we take it, makes a mighty deal of difference ! Reason is one thing. Reasoning is quite another.
Reasoning upon the subject very carefully, we think the judge was quite right, in his wise and nice discrimin- ation, and, we are glad to say, that, the earnest advocate thinking considerately a moment, wisely accepted of the court's amendment, at the time.
FANNY WRIGHT ON THE BENCH IN THE OLD COURT ROOM.
It was, I think, in the fall of 1834, that the celebrated Fanny Wright, from England, made her first appearance on the public rostrum in the city of Cincinnati. She had lectured in New York, Boston, and Philadelphia on her peculiar views of matters and things, and then she came to the West, and first to Cincinnati. When she came, she was welcomed by a good many infidel citizens and those of a free and liberal turn; and they procured the old court room of the old court house for her to deliver her speech in, and extremely well did she do it, too. It was on a Sunday morning, and the old court room was crammed with fellow-citizens, and Fanny Wright spoke from the bench of the judges, and she spoke with great eloquence and was frequently unanimously applauded.
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I remember points of her lecture, for, boy as I was, I was there to hear the first woman I ever heard speak in public. Fanny was certainly the first woman who ever dared speak in public here. I remember her lecture was mostly devo- ted to free-thinking, and against all religions and super- stitions, and she spoke most earnestly and eloquently about woman, and her equal legal and political rights among men. Thus we see that the woman's rights move- ment was commenced in Cincinnati away back in 1834, and if the women of this country ever get their rights, and particularly the right of suffrage, they may thank their stars, and the chief star of all, the luminous Fanny Wright, for first twinkling in their behalf, in this country, and in the old court house.
CURIOUS STORY OF THE SINGULAR DOG, AND THE SINGULAR DOG CASE.
I remember a most curious case involving the identity and ownership of a big Newfoundland dog, occurring in the old court times. The case came up to the Court of Common Pleas, from the judgment of a justice of the peace. It was a suit of replevin for the ownership of the dog. There were about sixteen witnesses who swore that the dog belonged to the plaintiff, and his name was Yacob; and there were about seventeen witnesses who swore that the dog belonged to the defendant, and his name was Carlo. The plaintiff and the defendant were both lager beer saloon keepers, and it was abundantly in proof, that the dog was seen and known as much at one saloon as at the other. The parties were Germans, and all the witnesses on both sides, were Germans, and there was no telling from the testimony of the many credible witnesses, to whom the dog did really belong. At length
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a lucky thought as was supposed at the time, struck the mind of the presiding judge, and he ordered the plaintiff who then had possession of the dog by virtue of his writ of replevin, to bring the dog into court, and make profert, or market overt, of him to the jury.
The plaintiff did so, he went away, and returned with the big, black and white, curly-haired dog, and exhibited him to the jury and the court. And now there came the funny time. The defendant called the dog by the name of Carlo, and the dog went immediately to him, and delighfully shaking his tail, received his caresses. The plaintiff then called the dog by the name of Yacob to him, and the dog immediately turned round with and in haste, leaped upon the lap of the plaintiff, and with his delighted tail received the plaintiff's caresses. The defendant called Carlo again, and again Carlo went to him as before, and the plaintiff called Yacob, and Yacob leaped upon the plaintiff, and this sort of thing was repeated again and again, and involved the singular case as to ownership, in more singular mystery than ever. The judge of the court then called Carlo, and Carlo leaped upon the bench, and upon the judge, and then one of the jurymen ventured to call Yacob, and Yacob leaped from, and left the bench and the judge, and ran to the knees of the juryman, and there was a great laugh, very much hilarity in court. What-what was it all- who could solve the riddle of ownership? The matter was left to the jury, and the jury disagreed, and could not agree upon a verdict, and agreed to disagree, standing exactly divided as to the ownership; six jurymen being for the plaintiff, and six jurymen for the defendant, and no change from that being possible, they were discharged by the court, from further consideration of the case, and
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there was an end, for a time. But the next term of the court the case was tried again, and the jury again failed to agree as to the ownership of the dog, and were discharged. At a subsequent term of the court, the case was a third time tried, but with no verdict; and at last the parties themselves getting tired and sick of the repeated trials about the dog, gave up in despair and would have no more trials, and we suspect that the case of the Newfoundland dog is still to be found on the court docket, untried and unsettled. In the meantime the dog was allowed to live his usual life, first in one saloon, and then in the other, and may be so living to-day. The costs of the case still unpaid. because the case being unsettled, there is no telling who is to pay them, became enormous, amounting at last accounts, to over six hundred dollars, a dozen times or more, the value of the dog. This was a singular and curious dog, and a singular and curious dog case in court.
THE LAWYER AND THE ACTOR IN THEIR CUPS, AND THE CHRISTMAS TOAST.
I once knew a lawyer of the old court house, and a celebrated actor of the old People's Theatre merging their minds and souls in glasses of Bourbon and pots of ale. The lawyer, when expostulated with, would refer to Sir Toby Belch, in the "Twelfth Night," and would exclaim with much gusto: "Dost think because thou are fartuous we'll have no more cakes and ale!" and the actor, when spoken to, would strike a tragic attitude and bawl out: "Thou canst not say I did it-never shake thy gory locks at me!" They were convivial and jovial and jolly fellows together, and they went from saloon to saloon, and became quite mellow and very frisky. It was
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Christmas day, and at length they brought up together at the old Produce Exchange, opposite the old court house, and in they went together and called for some old Bour- bon ; and their glasses being filled, the lawyer said to the actor :
"Now, I will give you a fit and appropriate toast for this Christmas day."
" Hear," said the actor, "hear ! hear!" and him- self and all the guests of the house about the bar, were attentive.
"I give you," said the exhilarated lawyer, " The hero of the day we celebrate !"
"Down goes the hero of the day we celebrate !" said the actor, and down went their bumpers of old Bour- bon, to the infinite amusement of the hearers gathered about and around, and to the evident satisfaction and gratification of both the maudlin actor and lawyer, who ended with a hurrah, and infinite applause of themselves.
THE SINGULAR STORY OF THE MURDERER AND THE FLIES.
In the July term, A. D. 1847, of the old Court of Common Pleas, a man by the name of Ferdinand Seitz was indicted and tried for the murder of one John Addam. The criminal murderer was a German, and murdered his victim, in the middle of the day, in an open, newly- ploughed field of a farm in Anderson township, Hamil- ton county, by shooting him with a pistol first, and then, proceeding in his escape across the ploughed field, he came across an old, decayed plough, and breaking the beam from it, he went back and beat out his victim's brains with it, and then hurriedly made his escape. But after he had got some two or three miles off from the scene
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of the terrible tragedy, being tired and foot-sore, he sat down upon a pile of lumber near a new frame house being builded by some workmen. Some of the workmen com- ing near him, in the warm summer's day, began to talk to him, and one of them, to his surprise, observed that clumps or clusters of flies gathered upon his knees and thighs on the outside of his pantaloons. Just at this time a hue and cry had been raised in the neighborhood of the diabolical murder, the corpse of the victim having been timely discovered, and some of the pursuers of the escaped murderer came along where the workmen were engaged in conversation with the strange man, and told the story of the murder to the workmen and the strange man sitting on the pile of lumber. So soon as the story of the murder was told, the workman who observed the different and various clusters of flies upon the strange man's legs, exclaimed, pointing to the man, "That fellow there, must be the murderer! See-see how the flies gather upon his pantaloons in clusters ; - there must be blood where those flies are-there must be spots of blood there !" And sure enough -they took the man, ex- amined him, pulled off his pantaloons-there on his white drawers, beneath his dark-colored pantaloons, were great, red gouts of blood. He was immediately taken into safe custody, consigned to the hands of the constable of the township, and brought to the city and lodged in jail. Then he was indicted for murder in the first degree, and tried, and convicted by the jury of murder in the second degree, and sentenced by the court to the peni- tentiary at Columbus for life, where, we are told, he is yet confined, having been there now thirty-three years. This murderer then was discovered and detected by harm- less though ravenous flies, who, in their greediness,
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assembled in clusters upon his legs to devour the coagu- lated blood-yet in spots-remaining-of the murderer's victim. It is a very singular and curious incident, that FLIES should assume the place and office of detectives, and make known to the world, and to justice the murderer of a fellow-man. Surely the flies are deserving of a place in our reminiscences and "it is recorded." This is cer- tainly a very strong illustration of the truth of that trite axiom, "Murder will out," and, we see, and may add, even tell-tale flies will bring it out.
STEALING AN UMBRELLA-NO LARCENY. A SMART LAWYER'S DEFENCE.
I remember on one occasion when I was State's attorney, there was a low fellow indicted for petit larceny -stealing an umbrella of the value of five dollars, of the goods, chattels and property of lawyer Telford. It seemed on the trial by the evidence, that the thief went into the lawyer's office, which, as is often the case, he found open, and it being a rainy day, he took a brand- new silk umbrella which he saw standing in a corner and made off with it. Soon lawyer Telford came in, and about going to court, missed his umbrella and started off in the rain without it. Going along up Main street, he espied his lost umbrella in the hands of a loafer or tramp, going leisurely along, and having the umbrella hoisted, to keep off the rain. He caught the fellow and handed him over to a police officer, and, of course, got his umbrella. The young smart lawyer defending the prisoner, made a smart and novel defence. He solemnly insisted before the court and the jury, that the taking of an umbrella was no larceny-no stealing-that umbrellas were common property, especially when it was raining-
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as was the case at bar. Like dogs, umbrellas had no value in the eyes of the common law. It was not larceny to take and carry away a dog by the English common law. It was not larceny to take and carry away an umbrella on a wet day, by the American common law. He cited Iago's speech to Othello, paraphrasing it a little in conclusion :
" Who steals my umbrella steals trash-'t is something, nothing,
'T was mine, 'tis his, and has been slave to thousands."
But the court and jury did not agree with the smart young lawyer, and his client was readily found guilty, and sentenced to six months on the chain-gang.
THE DIFFICULTIES OF THE PROSECUTING ATTORNEY AGAINST PUBLIC SENTIMENT IN A .
MURDER CASE.
In the year 1849-a very celebrated murder case was tried in the old Court of Common Pleas-Judge Charles H. Brough presiding with his three associates in the old court room. The prisoner on trial was the famous or infamous Margaret Howard, for the murder of the mis- tress of her husband, Captain Howard, as he was called, and known from Cincinnati to New Orleans as a most polished gentleman. Difficulties had transpired between his wife and himself, and they had separated, and had been separated for a long time, during which the gay and festive Captain kept a mistress and furnished her with beautiful lodgings on Fifth street, in this city. One morning, early, Mrs. Howard knocked at the door of the house in which the mistress lived, and the summons of the knock- ing was obeyed by the mistress of the Captain. Mrs. Howard, in excitement, asked her if Captain Howard was in. The mistress replied : "No, he was not, but
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that she was Mistress Howard, and she would attend to any thing for him." At this, in'a whirl of paroxysm, the real Mrs. Howard plunged a butcher-knife which she had purposely sharpened to kill the Captain, her hus- band, into the bosom of the ill-fated mistress, and the poor woman fell a corpse, weltering in her blood. Mrs. Howard, in her insane rage and excitement, left the door, with bloody knife in hand, concealed under her shawl, and pursued her way through the streets, and was arrested at the corner of Fourth and Walnut streets, lodged in jail, and indicted by the grand jury then in session, for murder in the first degree, on the evidence presented before them by the State's attorney.
On the tidings of the murder, the whole city was in a blaze of excitement, and next morning, all the daily newspapers had long editorial notices of the murder, uni- versally sympathizing with the wife against the mistress and her husband, and emphatically declaring that the victim of Mrs. Howard's sharp knife had been rightly served, but expressing regret that it was not the husband, instead of the mistress upon whom the smarting ven- geance of the wife was accomplished. From this begin- ning, all the people of the city-men, women and chil- dren, were on the side of the wife, and no one but police officers, who knew Mrs. Howard well, and State officials were against her. She was arraigned, and her lawyer, Judge Timothy Walker, put in a plea of "not guilty," and insisted upon a speedy trial, desiring of all things to take advantage of the almost universal sentiment in her favor. The prosecuting attorney earnestly opposed set- ting the cause for trial during that term, in the hope and expectation that delay would produce a second sober thought in the minds of the people, and justice would be
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better done at some future time, when all excitement was over ; but the judges of the court, seemingly sympathiz- ing too with the poor woman, overruled the State's attorney, and the case was set for trial for an early day in the term.
The day of trial arrived and the old court room, gallery and all, were crowded with people, a great portion of whom were sympathizing women. At last a jury was procured and was sworn, and the witnesses were called and sworn, and made out a plain case in fact of murder in the first degree-a murder of revenge on the mistress of the husband. But the defence was insanity, and a host of witnesses were called, doctors and all, to prove this defence ; and, plainly to speak, the defence, as a mat- ter of fact, was not made out. But what of this? The people of this city had resolved that Margaret Howard should be acquitted, and the very atmosphere of the court room, was loaded down with acquittal. The State's attorney felt this oppressively, and well knew it, and arising in his place to make the opening speech or argu- ment to the jury, he said : "May it please the court, and gentlemen of the jury, I feel like one who stands alone to resist a great avalanche of public opinion and expres- sion ; I can not do it, and I shift the responsibility from me to you, and submit the case on the testimony to you, without another word."
At this, there was a tremendous thunder of applause from the great crowd of the court room, which was silenced by the sheriff at his desk. and the court pro- ceeded to charge the jury quite in favor of the prisoner, and the jury retired, and having been gone about fifteen minutes, returned to the court room and rendered their verdict-"not guilty, by reason of insanity "-and oh !
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what a shout went up from that crowded auditory of the old court room. It made the welkin ring, and ring again, and then the people crowded around the acquitted pris- oner and followed her and the jury and the sheriff to the hotel, on the corner of Ninth and Sycamore streets, where a great anticipated dinner was prepared, and the sheriff' and the prisoner and her lawyer, and her jury of twelve men sat down and broke bread together, while the people outside, hurrahed and huzzaed for her, and after dinner escorted her to the jail. She was afterward pro forma put into the lunatic asylum, but of course as she was not insane, she was soon discharged therefrom, and with her four children moved out of the city and State, to Michigan, I believe.
This, then, was the celebrated case in the annals of crime of Cincinnati, of Margaret Howard, and if ever a State official experienced trouble and difficulty in the per- formance of his sworn official duty, it was in this case. Why, from the very first he had "no show" at all ; every- body except the police officers, was against him, and he had to move and do his sworn duty against all this oppo- sition, and he might well ask the conundrum, as he did, cui bono ?- and repeat it, cui bono ?- and again repeat it.
A JACKSON FEAT, (AND NO DEFEAT), ON THE PINNACLE OF THE STEEPLE OF THE OLD COURT HOUSE.
In the great log cabin and hard cider political cam- paign of 1840, of course, "Tippecanoe and Tyler too" were most popular in Cincinnati, near where the candi- date for President lived in his "log cabin" at North Bend. The lawyers of the old court house were all up in arms in the contest, and there was not a one of them, who was not engaged more in politics than the practice
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of the law, for the exciting time being. Some of them became much interested in having a Tippecanoe and Tyler banner hung out to the breeze, not on the outward walls of the old court house, but from the very pinnacle of its high steeple ; and the thing was, to get a man to do the thing. The pinnacle was just one hundred and sixty feet high, and the pole of the steeple must have been at least sixty feet in perpendicular length. Hunting and hunting around the city, at last an old salt sea sailor by the name of not Andrew-though quite as indomitable- but John Jackson, was found, and he promised to climb the steeple, and pin the banner on the pinnacle. A day and particular time was appointed, and a great whig mass meeting was held in the old court room, and around and about the old court house ; and after the speaking of the politician lawyers was through, the sailor, John Jack- son, with great banner in hand, appeared upon the roof of the old court house amid the wildest acclaims of the vast multitude of whigs and democrats. He went into the cupola-appeared again with banner on its roof, with the same wild applause from the multitude, and started to climb, and did climb to the very pinnacle of the steeple, and pinned the flag there, and there left it, floating in proud triumph, to the winds ; and oh ! what a shout, what a shout ! Jackson descended, and, with the old court house, became-in glory-immortal as the hero of New Orleans !
HABEAS CORPUS AND THE ASSOCIATES.
I want to tell an incident that occurred in the old court, particularly in reference to Judge Bob Moore, of Green township, and the prosecuting attorney in the old court house. For some long course of time during my
15
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first term in office as State's attorney, I was much troubled and vexed by the number of prisoners let out of jail, who had been committed there by the justices of the peace of the city and various townships of the county, and the mayor of the city, for offenses and misdemeanors, to await the action of the grand jury on their cases, on pro- ceedings in habeas corpus, the great constitutional writ of right and liberty. But it used to be most terribly abused by two of the associate judges particularly, and some- times the three, and persons were let go who were not morally, justly, or legally entitled to the benefits of the writ. They were sometimes released on the most tech- nical flimsiness, and the fact used to occasion the prose- cuting attorney a great deal of trouble and vexation. Moore, Wiseman, and Saffin used to be the associate judges of the court, and, being paid no regular salary, they were allowed so much per day, a small sum, for every day of the year that they were engaged in actual service on the bench. In cases of habeas corpus, by a foolish law passed by our legislature, in every case of habeas corpus where the defendant, or rather the appli- . cant for the writ, was set at liberty, they could get a six- dollar fee, which was generally paid in advance to the judge by the applicant, in full conviction that he would not be convicted, but would be let go, scot-free. This payment of fee so large, in advance, perhaps was attrac- tive to the poorly-paid associates, and they were sure to pay immediate attention to any case of habeas corpus that might be instituted before them, and were pretty sure, also, to let the applicant go out of prison if there was any possibility of excuse, legal or otherwise, for it. In this way many prisoners were let out of jail, who were after- wards indicted by the grand jury, and when the prosecu-
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ting attorney called upon the sheriff or jailor for them, they were not to be found-non inventi sunt. The habeas corpus, as conducted before the associate judges used to be an entirely ex parte proceeding and the prosecuting attorney was seldom or never informed of it, either before, by way of notification, or when the matter was going on. Judge Bob Moore was distinguished for letting prisoners go out of jail on habeas corpus, and the State's attorney frequently expostulated with him, in court and out of court about it, but it made no difference-apply to Judge Moore for a writ of habeas corpus, and pay him the ad- vance fee, and the writ would be sure to go, and the pris- oner, too, and the judge, three.
One day, in the first of the term of court, the grand jury having made a report of a batch of indictments, the prosecuting attorney was proceeding to duly arraign the prisoners who had been indicted, to have their several pleas entered of "guilty " or " not guilty." Some eight or nine prisoners had been arraigned in the prisoner's box for various offenses, and had entered their pleas of "not guilty," when the prosecuting attorney came to an im- portant indictment against Edward Manly for forgery and counterfeiting, and he said to the sheriff, "Call up Edward Manly."
Sheriff-"Edward Manly, stand up."
But no Edward Manly stood up. There was no Edward Manly there, to stand up.
Prosecuting Attorney-" How is this? Mr. Sheriff, where is Edward Manly?"
Sheriff-" He is out on habeas corpus, as I am in- formed by the clerk of the court." (The clerk did so inform the sheriff, in his-the dilemma. )
Prosecuting Attorney-"What judge of this court
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let him out, Mr. Clerk, on habcas corpus, if you please?" Clerk-"Judge Robert Moore."
At this, Judge Moore, with the presiding judge and his brother associates on the bench, looked as if he was somewhat-some little-embarrassed, but he imperturba- bly said aloud : "I released the prisoner yesterday on proceedings in habeas corpus, instituted by and before me, as I was legally bound, in justice and in law, to do."
Prosecuting Attorney-" Will your Honor, or Judge Moore, please signify to the State's attorney the reason of the discharge of the prisoner from the jail, on habeas corpus?"
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