USA > Ohio > Hamilton County > Cincinnati > The old court house : reminiscences and anecdotes of the courts and bar of Cincinnati > Part 19
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"You d-d, old, red-haired son of a gun, I am as good as you are, any day," roughly and loudly growled the sentenced convict, mad as he could be.
Court-"Hayman, you are a very wicked man, and the court now changes your sentence and will give you five years more for your insult and blasphemy upon the court ; so that we sentence you to ten years at hard labor in the penitentiary, and the clerk of the court will so record it, instead of the five years we just gave you !"
In the excitement of the moment, this change of sentence seemed but just, fair, and proper to the lawyers, the officials of court, and the audience, and all concerned ! But after it was over, men-and particularly, lawyers- began to reflect ; and soon it was concluded that Judge Headington had no right to give that fellow five long years more in the penitentiary for merely insulting the court and it's dignity. There was no law or statute for it anywhere, and so the newspapers next morning took the matter up, and there was general condemnation of the action of the judge, and his re-election as judge coming on soon before the people, he was defeated, and all be- cause of this unjudicial exhibition of personal resentment and revenge from the bench upon a poor, defenceless prisoner, though evidently a very bad and wicked man. The judge was rightly served by the people, and this
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should be a distinctive lesson to all merely personal judges.
OTHER LIKE INSTANCES OF CONVICTS.
I remember other like instances of sentenced prison- ers answering back, and insulting the court-but none in this city-when they were punished with longer terms of years in the penitentiary by the sentencing judge for it. I, myself, as judge of the Common Pleas, was once insulted grossly by a prisoner who had been convicted of murder in the first degree, and should have been con- victed of murder in the second degree, if the law on the evidence, had prevailed with the jury. When I, in my official duty, without any lecturing comment, sentenced this fellow, Augustus Ward, to the penitentiary for life, he most wickedly threatened me with the direst vengeance and called me all sorts of wicked names, but personally or officially, I took no notice of them further than to order the sheriff to take him out of court, to jail, for I thought that my official duty had nothing to do with lecturing or punishing the sentenced offender for any insult to me personally, or even any contempt of court, especially con- sidering that he had to go immediately to the penitentiary for life. Other judges besides myself have been insulted by criminals in like circumstances, but no other instance that I wot of, has occurred here, where the judge took personal and official vengeance upon the poor devil pris- oner, than that of Judge Headington.
I know of an instance in New York city, occurring with that personal and official tyrant, Recorder Hackett, who had sentenced a prisoner to Blackwell's Island for three years for the crime of bigamy, and, because he spoke back to the recorder, and grossly insulted one of his wives as he was going out of the court room in the
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custody of the sheriff, the recorder told the sheriff to bring him, the prisoner back, and then added, and gave the al- ready penitentiary victim, three years more at hard labor. This was nothing more or less than the act of a judicial tyrant and personal avenger, without justice or law, and deserved impeachment, but there was nobody found to take the poor helpless prisoner's part, much less a legis- lator to impeach the judge, and the vulgar tyrant con- tinued on the bench-until he died !
THE WICKED SMYTH MAYTHES AND THE COURT !
One of the wickedest-indeed the wickedest man we ever had in Cincinnati, was Smyth Maythes. He lived away long back, and committed all sorts of crimes, from murder down the catalogue, He was hung at last by lynch law over in our neighboring State of Kentucky, for murdering an inoffensive man in cold blood, and the old citizens of Cincinnati were right glad to get rid of him, even in that way. On one occasion, somewhere in year 1832, when Judge John M. Goodenow was presiding on the bench of the old Court of Common Pleas, the rascal Smyth Maythes was tried and convicted for steal- ing a horse, and sentence day coming on, he was told to stand up in the prisoner's box, and he was asked if he had anything to say why the sentence of the law should not be pronounced upon him. He surlily replied " noth- ing." The judge then sentenced him to five years in the penitentiary at hard labor ; when he immediately slung his old hat around which he had in his hands, and to the astonishment and amazement of everybody, yelled out in huzzaing tones : "Our country ! Hail Columbia, happy land. If I don't break penitentiary, and steal another horse before six months, Judge, may I be damned," and
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he then sat down in triumphant glow and glory over his bravado, and complete serio-comic victory over law, prisons, judges, prosecuting attorneys, jurors, sheriffs, jailors-everybody. But the good judge did nothing further with him, did not punish him for this, for he was wise, and knew well that he was but a judge of the law. As for Maythes, he was as good as his brazen word. He did break penitentiary, and did steal another horse before six month elapsed from the day of his sentence !
APROPOS ! !
A reflection or two right here, perhaps would not be out of place, as to the right and authority and propriety of criminal judges going out of their way and lecturing, moralizing and preaching to prisoners at the time they sentence them. This thing would be " more honored in the breach than the observance." A judge is sworn to administer justice according to the law, and he does his duty according to his oath when he merely and only sentences a convicted criminal according to the statute ; and if he does anything more than this, he steps quite out of the line of his judicial duty, and he, himself, should be condemned for it, in public opinion. A judge is not a lecturer, a moralizer, or a preacher, and he is not placed upon the bench to lecture, or moralize, or to preach, and if he does so, he mistakes his vocation, and his occupa- tion should be gone. How often is it the case, that in cases of sentencing to be hanged, we hear, or hear of, or read a long, untimely, and inappropriate lecture from the judge to the poor devil murderer upon the enormity of his crime and the depravity of himself. What right or authority or privilege has a judge, by law, or in his
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judicial capacity, to speak to a mean, condemned criminal in this sort of manner? Is not the terrible sentence of death sufficient ? Is not hanging quite enough, and shall the poor creature be harassed and harrowed by the pro- longed, personal, impudent, and impertinent remarks of the judge? Forbid it, Law; forbid it, Justice ; forbid it, the People! For the sake of all, let this ugly, improper thing be reformed altogether, and at once !
APROPOS, TOO, OF PROSECUTING ATTORNEYS ! A PLEA FOR THEM !
Prosecuting attorneys are generally considered most hard hearted, and some of them, perhaps, deserve this unenviable distinction. But, as the expressive slang has it, " I have been there," and "I know how it is, myself." But their feelings of mercy and kindness-and after all they have within their full bosoms much of the "milk of human kindness"-are generally brought to bear and be in effective play among the secrets of the grand jury room. A good State's attorney will not have any person indicted for offense or crime by the grand jury, whom he believes he could not have convicted on trial in court. Even if he has reasonable doubt in his own mind about the guilt of a prisoner investigated by the grand jury, in his official capacity as their legal adviser, he will give it to the pris- oner and advise them of the law, and the fact, and prevent, if practicable, an indictment being found. Many are the indictments that State's attorneys are the means of having ignored in the grand jury room by proper and timely legal advice and feelings of mercy. It is there, that the good and blissful prosecuting attorney fully appreciates, with Shakespeare, that-
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"The quality of mercy is not strained ; It droppeth as the gentle rain from heaven Upon the place beneath : it is twice blessed ; It blesseth him that gives and him that takes : "Tis mightiest in the mightiest : it becomes The throned monarch better than his crown."
And, he will add, it becomes prosecuting attorneys better than the mere applause of people for efficient performance of duty against poor, frail victims of criminal law !
Now, this being the case, nobody being indicted but those whom the State's attorney believes to be guilty, he comes into court to try the indicted prisoners with know- ledge or full belief of their guilt, and then, in obedience to the law and his duty, he pursues, relentlessly perhaps, with all his energy and ability, to convict them ; and, with all his efforts, it may be truly said, that some guilty ones escape, on account, chiefly, of the laws regulating evi- dence-first-rate laws in themselves, but very bothersome, sometimes, to prosecuting attorneys. There is no doubt, though, that a prosecuting attorney long in office, becomes so habituated to the State's side of viewing things, that he will become hard-hearted, and in some instances most hard-hearted, and the best way for the virtuous people to do, is not to elect any prosecuting attorney for more than two terms. This advice we emphatically and somewhat peremptorily, though gratuitously, give to the people- No third term for State's attorneys!
The prosecuting attorneys of the old court house, as I have them in memory, were the following, some of whom were hard-hearted, and others not :
David Wade, Daniel Van Matre, Thomas J. Strait, Nathaniel C. Read, William B. Caldwell, Jacob T. Crap- sey, 'Charles H. Brough, A. G. W. Carter, and A. J. Pruden.
Assistant prosecutors whom I remember in the old court room were :
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Peter Zinn, Stanley Matthews, George E. Pugh, Timothy Walker, Thomas Powell, and Patrick McGroarty. These latter were appointed only for terms of court ; there were no regular assistants in those days, as it seemed they were not required as in these times of villainy !
APROPOS, NOW, OF GRAND JURIES.
In my long and extended experience, I have found the grand jury of the county a very useful, patriotic and wise institution. I am aware that the institution has met and does meet with much opposition from discreet and intelligent people, and some good lawyers are quite antag- onistic to it. It is regarded as a sort of noxious and ob- noxious star chamber affair among some of the people, and the lawyers think and say that it is cumbersome and useless-that all that it does might better be performed by the State's attorney, himself, and thus a great deal of court costs, and taxation of the people be avoided. But, notwithstanding, it has the confirmation of centuries of existence for its propriety and practicability in England and America, and it is now as useful as it ever was. No prosecuting attorney that ever I knew would like to take upon himself the burdensome duties of the grand jury. No State official, singly and alone, could ever stand it to be State informer! No! the State's attorney for all the accusations and charges, and indictments which he pur- sues and prosecutes after they are found and preferred and presented, wants the grand jury to stand between him and the people, and the prisoner, and take the great responsibility of accusing. And then that responsibility becomes quite light when shared among fifteen citizens constituting the grand jury. And there is this great im- portant other thing in this matter of the grand jury : it
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requires citizens to take part in the due administration of justice and law by the courts ; it requires fellow-citizens to belong to the courts of justice, and become a part and parcel of them ;- and this is the reason that I called the grand jury a patriotic institution-and it is so, indeed ;- I have found it so ; I know it so, and it should never- never be abolished among a free, liberty-loving, and enlightened people.
There is no danger to innocent citizens in being falsely and maliciously indicted by our grand juries. It takes at least twelve citizens out of the fifteen to find a true bill, and it was never known that twelve false or bad men got upon a grand jury. The thing is quite imprac- ticable. Once in a while, one or two bad men may, by hook or crook, get to be grand jurors, under the system of empanelling them in our courts, but even this occurs very seldom. I once knew of a fellow who got upon the grand jury by feeing a deputy sheriff, for the purpose of pre- venting a bill of indictment from being found against a friend of his who had been committed for crime by a magistrate, and was out on bail. But he was found out by the report of some of his fellow jurymen to the court, and the facts being disclosed by proper evidence, the false grand juror was summarily dealt with by the court. He was dismissed from the grand jury, and was sent to jail for contempt of court-for interrupting and obstructing the due administration of justice. I do not remember any other instance of fraud and falsehood with the grand jury. I once knew a grand jury in the old court times, in great temperance excitement, to adjourn their daily sittings for two weeks, that each one of them might hunt up cases of selling liquor without license, to report to their own body, and find indictments. But this high proceeding was put
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an end to, by the prosecuting attorney's calling the atten- tion of the court to the fact, and the grand jury was called into court and given plainly to understand that it was by no means their business to go around town to hunt up cases, but to stick to their room and hear cases presented to them by the State's attorney.
If that temperance grand jury had had their own way, they would have indicted all the saloons and coffee- houses perhaps in the city, and given the State's attorney, the sheriff, the clerks, and the courts very endless trouble and botheration, but grand juries, though an independent body as juries, are, by the law, under the direction and control of the court, and thus we have another provision of safety in the action of grand juries. The conclusion, then, undoubtedly is, that our grand jury system is a good and useful one, in every proper view we may take of it, and any saying, and any body to the contrary. It is wise and patriotic and should be preserved as an institution to preserve the liberties and freedom of the citizens of the republic, and without which our criminal courts of justice could not get along at all. It is one of the institutions that experience has again and again affirmed and con- firmed, and there is great wisdom to be had from long experience. We do not rest its usefulness and propriety, however, alone upon experience, for all the reason and reasoning that we can command, assent and consent to, and approve of grand juries. We should endeavor to keep them pure and undefiled, and every official and every citizen should be on the lookout, and report any derelic- tion or falsehood or fraud which may possibly occur in the making-up and empanelling of grand juries. They should always be made up of our wisest, most prudent and, best citizens, and so constituted that none of us need ever
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have any fears of grand juries, but the bad and wicked and crimeful who infest the purlieus of our cities and the hiding-places of the country. And so be it !
THE PORK HOUSE COURT HOUSE! AND LAWYER COMMENTS THEREON.
We have once said that Cincinnati has always been celebrated for pork and, on account of this fact, has frequently taken the sobriquet of Porkopolis, as well as the more beautiful name of the "Queen City of the West." Well, in compliance with, and obedience to, her porky traditions, after the burning of the old court house in July, 1849, the porcine and porcupine (for they had dreadful pens and quills in those days,) county commissioners prepared and fitted up the second and third- floors of a large and extensive pork house on the north side of Court street, between Main and Walnut streets, for all the purposes of a court house. The two buildings for county offices, which we have long ago referred to in our first description of the old court house were not destroyed by fire, so they were continued as county offices ; but all the courts and their belongings, -then consisting of the Court of Common Pleas, with four judges, (the president and his ass-ociates,) the old Superior Court, one presiding judge, and the Commercial Court, one presiding judge, -were transferred bodily, soon after the conflagration, to their new, porcine quar- ters, where they remained until the new Constitution of Ohio, of 1851, took effect and put an end to, and a lasting quietus upon them all. By that time, the present new court house got under way, and the new constitution courts occupied their rooms in it, though not very satis- factorily, at first, for they were small and bad rooms in
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the first story, just built up, and illy fit for courts, or peo- ple, or anything. But the county commissioners ordered it so, peremptorily.
The accommodations for the courts and the grand jury and prosecuting attorney and the lawyers and the people in the pork house court house were very commo- dious and convenient, bating their high elevation and the continued and continuous smell of pork about and around, which sometimes disturbed the olfactory nerves of the judges and the lawyers and the juries. On one occasion a facetious lawyer remarked in the presence of the open court :
" Fee, fi, fo, fork, I smell the fumes of freshest pork. Fee, fi, fo, fog, I smell the blood of Cincinnati hog."
And another, perhaps more facetious and humorous, declaimed and proclaimed in open court, on a trial of a client for stealing hogs, "May it please the court and gentlemen of the jury, we are engaged in a hog case, and it is very fit and appropriate that we should be so engaged in this place, this pork house, this pork house court house, where we have hogs below us and hogs above us, and hogs all around us ; - but comparisons are 'odorous' and I will make no odious illusions or al- lusions !"
The old court, sitting silently in conscious dignity, did not stop the lawyer, for-aware that, in days agone, they had been dubbed with great success and with im- punity, too, the Demerara Team, -they took it good- naturedly to be numbered among their fellow-citizens of Porkopolis ! Better porkers, perhaps, in Cincinnati, than a mule and asses !
But the pork house court house was, after all, a good
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one, as old lawyers will well remember. Its court rooms were quite large and commodious, and convenient in their arrangement ; and the big grand jury room and the prosecuting attorney's room were really superb. The county commissioners were not to be blamed at all, for fitting up, after the fire, a pork house for a court house in Cincinnati.
THE EXPEDITIOUS REMOVAL OF THE COURT HOUSE BY PEREMPTORY ORDER OF THE COURT.
By the way, I must tell a good story of how the court house was expeditiously removed by the peremptory order of the court, though it occurred quite after the times of the old court house. The fact of the transfer of the new constitution courts from the porcine court house to the first story of the new court house then building by the arbitrary and peremptory order of the county commission- ers, has already been referred to. Well, the new courts obeyed very reluctantly the foolish order of the county commissioners, considering that, by the law providing that the aforesaid commissioners should provide court houses for the courts, perhaps, they were obliged to sub- mit and succumb to them. The judges got into little brick and stone, cold rooms, on the ground floor, on the north side and south side of the now one-story court house building-no more fit to hold court in than pig pens-not beginning to be so fit and commodious as the former large hog pens that they had left in the pork house ; and these rooms were very dark and cold-so dark that, for two- thirds of the time, gas had to be resorted to, to light up, so as to permit judges and lawyers and parties concerned to see at all. The judges submitted to these rooms and the tyrannical county commissioners, for a good, long
.
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while, until one of the judges was afflicted with sore eyes, and he was advised by his physician that his affliction was occasioned by his court room. Now, it happened that the District court, consisting of one of the supreme judges and the three Common Pleas judges, was going to hold a term pretty soon, and this court was to hold its sessions in the aforesaid sore-eyed court room. Well, the judge who was afflicted with the aforesaid sore eyes, by dint of curing perseverance and staying at home, away from his court room, got well, and he was emphatically determined that he would hold court no more in that court room, the county commissioners to the contrary, notwithstanding ; and so soon as the supreme judge arrived, he went to him privately at the Burnet House where he stopped, and conveyed to his personal ear the total unfitness of the court room for holding the District Court, and all his own grievances, and advised the supreme judge that the first and the very best thing that could be done, on Monday morning next, at the opening of the session of the court, was to make a recorded, peremptory order to the sheriff to remove the court house to other quarters. The aggrieved judge also took timely occasion to consult with his other brother judges, and when Monday morning came the four judges were together upon the bench in the little brick- stone court room lighted with gas, and all the lawyers were there, and a big audience of people,-as many as could crowd into the little, abominable court room. "Open court, Mr. Sheriff," said the presiding supreme judge ; and the sheriff duly opened the District Court of and for Hamilton county, and, "Now," said the judge, " before this court proceeds to transact any business at all, it must have a good and proper place to do business in, for this horrid place is not fit for a hog pen, much less a court
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room ! The sheriff of the county is therefore peremptor- ily ordered to remove the court house of the county to some other, better, larger, and more commodious and convenient place. The clerk of the court will record this order and the sheriff will now proclaim, that this court is adjourned, until a new court house is found and provided." The sheriff duly obeyed, and adjourned the court, and everybody went away from that court room-lawyers and all, astonished, amazed, and confounded, not knowing what was coming next, and what would, might, or could occur to the county commissioners, and what they could, would, or might do. Gassaway Brashears was the good and dutiful sheriff, and he had been well posted by one of the judges-he that had had the grievous sore eyes, and he immediately set about obeying the peremptory order of the court, without a word of consultation with the county commissioners ; and he hired and rented from lawyer Henry Snow, the then owner, the large, extensive building on the north east corner of Walnut and Ninth streets, for the purposes of a court house. Going to work with his hired artisans, the sheriff fitted up court rooms in the rented building in the course of a few days, and reported all his doings to the court-or the judges thereof -who immediately gave public notice, that the District Court of and for Hamilton county, would hold court in the new court house provided by the sheriff, on a day certain. The day and the hour came, and the judges of the court, and the lawyers of the bar, and the suitors, and the wit- nesses, and the interested people assembled in the new quarters, and at 10 o'clock, A. M., precisely, the presid- ing Supreme judge ordered the faithful sheriff to open court, and he did so, and the regular business of the court went on for a long term, from day to day, and ever after
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that until the second story of the new-building court house was finished, and good court rooms provided, were the courts of the county held in the rooms of the great build- ing on Walnut and Ninth streets ; and, more than that, the county commissioners, at last yielding to the action of the courts and the wise opinion of the people, footed all the bills of the new court house. Thus it was, and this is how, the court removed expeditiously the court house ! A case of judges vs. county commissioners !
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