BENCH AND BAR OF OHIO. THE EARLY BENCH AND BAR OF THE WESTERN RESERVE. BY JUDGE HENRY CLAY WHITE. The marked influence and advanced standing of the people of the State of Ohio is due, in no small degree, to the diversity in the social sentiments and traditions of the early pioneers, at the initial points of settlement. In the southern portion of the State there was a mingling of the Puritan life from Massachusetts Bay, and the generous impulses of the Cavalier spirit from Virginia. In the northern portion of the territory constituting the State, the modified ideas of Puritanism, as it came through the Connecticut colony, found lodgment. This was especially true of that part of Ohio originally claimed by Connecticut. The events involved in the history of the Connecticut Western Reserve retarded the establishment of social government in that part of the Northwest Territory for many years, and when civil government finally became established by the Act of Congress of 1800, the civil institutions came to sudden and permanent maturity. These events grew out of the most peculiar and complicated relation of the State of Connecticut to the United States. The claim of Connecticut was founded upon a patent granted by King Charles II., in which the western boundary of the territory of Connecticut was imperfectly defined. Connecticut claimed not only the right to the soil of her territory in the Northwest, but also the right of jurisdiction. After the sale of the territory constituting the Reserve to the Connecticut Land Company, which was a syndicate of capitalists in the East, Connecticut undertook to convey to this company, not only the title to the soil, but also the "right of jurisdiction." The company at no time considered itself justified in assuming civil jurisdiction, and when it was ascertained that the sale and settlement of the lands was seriously interfered with by the lack of civil government, the Land Company made strenuous appeals to the State of Connecticut to resume jurisdiction. The territory thus reserved by Connecticut in her cession of western lands to the United States, dated September 14, 1786, was to be bounded on the north by the international line, forty-two degrees and two minutes ; east by the western boundary of Pennsylvania ; south by the forty-first parallel, and west by a line parallel with the eastern boundary and distant from it one hundred and twenty miles. The acreage area of this reserved territory was 2 - BENCH AND BAR OF OHIO. supposed to be four millions of acres, but on actual survey proved to be less than three millions. This territory is not at present bounded by county lines. The initial step in defining civil jurisdiction, in all the western cessions made by the States to the Union, was the erection of counties, and the county became the unit of organization in the Northwest, instead of the township, as in New England, and the parish, as in the southern portions of the United States. In the Connecticut Western Reserve, the final division of local government was into counties and townships ; so that the indestructible unit of primary self-government, "The New England Township," finally asserted itself in the institutions of the Western Reserve. The efforts to extend the privileges of civil government in the wilderness of the Northwest Territory, afford a very curious and valuable history. That part of the Northwest Territory now comprised in the boundaries of Ohio, so far as the Indian titles had been extinguished, was erected into two counties—Washington and Hamilton. Washington county was erected by the action of the Territorial government at Marietta in 1788 ; that government, at that time, being the governor, General Arthur St.. Clair, and the three judges appointed by Congress, constituting a Grand Council. Washington county comprised about half of the territory of Ohio, and about half of the Western Reserve, but this immense county was merely a paper government. The actual and immediate jurisdiction, which had found lodgment at Marietta on the Ohio river, had not been extended to the virgin wilds of the Western Reserve. At a later period the attempt of Governor St. Clair, through his fiscal agents, to levy taxes upon the inhabitants of the Western Reserve, led to a slight conflict of authority. The officers of the territorial government never exerted any official control of the settlements made upon the Western Reserve. The deed granting the territory of the Reserve to the Connecticut Land Company, by the State of Connecticut, conveyed all the right., title and interest of the State of Connecticut, " Juridical " and " Territorial." One of the most accurate and painstaking historians of the Western Reserve has said : " So little was known at this time, of the respective powers of the State and of the United States, under the Constitution of 1787, that many of the parties thought the Land Company bad received political authority and could found here a new State. They imagined themselves, like William Penn, to be proprietors, coupled with the rights of self-government." He further says : "Both parties to the transaction imagined that the deed of Connecticut conveyed powers of civil government to the company, and that the grantees might organize a new State." * This assumption of civil authority, when fairly asserted and understood, met with a decided opposition by the United States. It was considered entirely anomalous and unwarranted that a syndicate of land speculators should be allowed to erect a new State within the territory of the Northwest. * Colonel Charles Whittles in " The Early History of Cleveland," page 167. BENCH AND BAR OF OHIO - 3 From this time, until the year 1800, frantic appeals were made by the Land Company to the State of Connecticut, and finally by the State of Connecticut to the United States, and Congress, to solve the problem of civil government on the Western Reserve. A narrative of the various applications made to the general assembly of Connecticut, by the corporate parties interested, would be inconsistent with the purposes of this sketch. The difficulty which confronted the State of Connecticut was, to concede civil jurisdiction to the Federal Union, and still maintain her claim to reserve title to the soil of the territory. On the 18th day of February, 1800, Mr. Brace, of Connecticut, offered in the House of Representatives a resolution to appoint a committee to take into consideration the expediency of accepting the proffered cession of jurisdiction over this territory of the Reserve from the State of Connecticut. It is a remarkable fact that the chairman of this committee was a man of no less distinction than John Marshall, the great jurist, and afterwards Chief Justice of the United States. Mr. Marshall, at this time, was a member of the Federal House of Representatives. He made a lengthy report of the situation, giving a history of all the events leading to the assumption and reservation of jurisdiction by the State of Connecticut, and concluding that Connecticut could set up a government on the Reserve, if she chose to do so, but that it would be far more politic and expedient to merge the jurisdiction in that of the Northwest Territory. This report was finally adopted by Congress, and deeds were repectively made by the Federal government and the State of Connecticut, through and by which the United States confirmed the title to the soil of the Western Reserve, in Connecticut, and Connecticut renounced forever all territorial and jurisdictional claim over such soil; and thus a serious controversy and emergency, which retarded the settlement of this magnificent domain, and had seriously imperiled the relations between the State of Connecticut and the Federal government, was happily composed and averted. The judicial functions and jurisdiction, as it was originally exercised in the territory " northwest of the River Ohio," was vested in judges appointed by the President of the United States ; the original appointment by President Washington being conferred upon the following persons : Samuel Holden Parsons, James Mitchell Varnum and John Armstrong—John Armstrong declining the appointment, John Cleves Symmes was appointed in his place. These judges, or any two of them, constituted a court of common-law jurisdiction. They also had certain legislative functions, which it is not necessary here to define. There was a somewhat serious contention touching the powers of the governor, secretary and judges of the territory to legislate originally for the territory. It was insisted by many that they were simply confined to adopting such laws as might suit the conditions of the new territory, found already enacted in the statutes of the older States. " These judges, appointed by the National Executive, constituted the Supreme Court of the territory. They were commissioned during good 4 - BENCH AND BAR OF OHIO. behavior, and their judicial jurisdiction extended over the whole region northwest of the Ohio. The court thus constituted was fixed at no certain place, and its process, civil and criminal, was returnable wheresoever it might be in the territory. Inferior to this court, were the County Courts of Common Pleas and the General Quarter Sessions of the Peace.' The former consisted of any number of judges, not less than three, nor more than seven, and had a general common-law jurisdiction concurrent in the respective counties with that of the Supreme Court the latter consisted of a number of justices for each county, to be determined by the governor, who were required to hold three terms in every year, and had a limited criminal jurisdiction. Single judges of the Common Pleas, and single justices of the Quarter Sessions, were also clothed with certain civil and criminal powers to be exercised out of court. Besides these courts, each county had a judge of probate, clothed with the ordinary jurisdiction of a Probate Court. Such was the original constitution of courts and distribution of judicial power in the Northwest Territory. The expenses of the system were defrayed in part by the National Government, and in part by assessments upon counties, but principally by fees, which were payable to every officer concerned in the administration of justice, from the judges of the General Court downward. In 1795 this judiciary system underwent some changes. The General Court was fixed at Cincinnati and Marietta, and a Surrogate Court was established, with power to try, in the several counties, issues of fact depending upon the superior tribunal where alone causes could be finally decided. Orphans' Courts, too, were established, with jurisdiction analogous to, but more extensive than that of the judge of probate. Finally, as if with a view to create some great reservoir from which, whatever principles and powers had been omitted in the particular acts, might be drawn according to the exigency of circumstances, the governor and judges adopted a law providing that the common law of England, and all general statutes in aid of the common law, prior to the fourth year of James I., should be in full force within the territory." (Chase's Statutes of Ohio, Vol. 1, Preliminary Sketch, page 26.) A fruitful history might be written upon the origin and evolution of the primitive and historic magistrate, known to the English law as the " Justice of the Peace." Pursuant to the powers conferred upon the governor and judges of the Northwest Territory by the Ordinance of 1787, the territorial government appointed for each county a number of justices of the peace, five of whom, designated by the governor, should constitute what was called " The Quorum." This body of justices were required to meet three times a year at the seats of justice designated, and hence the name of the " Court of Quarter Sessions of the Peace." The meeting of the five justices, who seemed to have pre-eminence under the orders of government, was a meeting of the " Quorum." This may be said to be the primitive court of the Northwest Territory. While single justices may have dispensed a rude justice in the wilderness, previous to the date of August 25, 1800, it was on that date that the first Court of Quarter Sessions for Trumbull county, which comprised BENCH AND BAR OF OHIO - 5 nearly all of the Western Reserve, was held. It was held at Warren, which has since been known as the original " capital" of the Western Reserve. In this court was lodged the entire civil jurisdiction of the county, local, legislative and judicial. The first court opened on the public square or common, in the city of Warren, at four o'clock in the afternoon, under a bower of trees, between two large corn cribs. It continued five days, and the labors it accomplished can be best shown by the following synopsis of the record preserved in the handwriting of Judge Pease : Court of General Quarter-Sessions of the Peace, begun and holden at Warren, within and for said county of Trumbull, on the fourth Monday of August, in the year of our Lord eighteen hundred, and of the independence of the United States the twenty-fifth. Present, John Young, Turhand Kirtland, Camden Cleveland, James Kingsbury, and Eli phalet Austin, Esquires, justices of the quorum, and others, their associates, justices of the peace, holding said court. The following persons were returned, and appeared on the grand jury, and were empaneled and sworn, namely : Simon Persons (foreman), Benjamin Stowe, Samuel Menough, Hawley Tanner, Charles Daly, Ebenezer King, William Cecil, John Hart Adgate, Henry Lane, Jonathan Church, Jeremiah Wilcox, John Partridge Bissell, Isaac Palmer, George Phelps, Samuel Quinby, and Moses Park. The court appointed George Tod, Esq., to prosecute the pleas of the United States for the present session, who took the oath of office. The court ordered that the private seal of the clerk shall be considered the seal of the county, and be affixed and recognized as such till a public seal shall be procured. The court appointed Amos Spafford, Esq., David Hudson, Esq., Simon Perkins, Esq., John Minor, Esq., Aaron Wheeler Esq., Edward Payne, Esq., and Benjamin Davidson, Esq., a committee a to divide the county of Trumbull into townships, to describe the limits and boundaries of each township, and to make report to the court thereof." Thus the institution of civil and judicial government on the Western Reserve was contemporaneous with the beginning of the century, and from that time to this the enlightened administration of justice by the duly constituted tribunals has never been interrupted in that part of the State of Ohio. According to my best information, there never has been a lynching upon the Western Reserve, and with very few exceptions the enforcement of civil order has never been impeded by mob law. The changes made in the erection of counties upon the Western Reserve, and their division and subdivision, affords material for an interesting discussion ; but its consideration would be apart from the purpose of this sketch. The courts to which reference has now been made continued under the territorial government until the admission of the State into the Union, under the Constitution of 1802, when other courts were created somewhat modifying the functions and jurisdiction of the judicial magistrates. The character of rights and remedies with which these early tribunals had to deal, was of course fixed by the social conditions of the community. Abundant litigation, touching land titles, was of later origin, when lands became more valuable. In every new community, courts stood most prominently before the people as conservators of the peace. Nearly, if not quite all, the criminal juris- 6 - BENCH AND BAR OF OHIO. diction exercised by these early magistrates grew out of the conflicts between white settlers and the Indian tribes. It must not be inferred from the fact that the early settlers upon the Western Reserves were without judicial institutions, that there was no need of them, and that, in the conduct of life, these pioneers were so saintly as to be beyond the need of law and civil order. The fact, authenticated by history, is that " the settlement of the Reserve was opened at a time when religion in New England was at a low ebb. Old Connecticut did not at first send, as a rule, what she considered her best elements to New Connecticut. At a later day, the character of the emigration improved in respect to religion and morals but the first emigration was largely made up of men who desired to throw off the heavy trammels of an old and strongly conservative community, where church and state were closely connected, and where society was dominated by political and religious castes. Still further, the East was at this time swept by an epidemic of land speculation while the laxative moral influence of a removal from an old and well-ordered society to the woods produced its usual effects."* And yet, it must be conceded that these pioneers bore with them into the wilderness the intuitive reverence of the Anglo-American race for law and social order. This in-born reverence for the majesty of the law is the most hopeful solvent for all the serious problems of democracy. These men from New England, while not of the choicest of the population, nevertheless exemplified the Puritan spirit of mingled subordination and independence. The Connecticut Western Reserve was the last home of colonized Puritanism. The Puritan always inculcated a righteous sense of justice. He drew his legal inspirations from that ancient people whose code was graven on tables of stone. In his eyes not only crime, but venous sins, were heinous and offensive. This bias can be traced in the early administration of public justice. The first capital case, the trial of which attracted public attention on the Western Reserve, was the case of the State of Ohio against O'Mic, which was tried in the city of Cleveland, in the year 1812. This was an indictment against a young Indian of the Chippewa tribe, for murdering two trappers in the wilds of Ohio, which is now a part of the county of Sandusky. The trial was conducted under a spreading oak tree. The jury were seated upon rude puncheon benches extemporized for the occasion. It was before the erection of a court house and jail, and the prisoner was confined in the loft of the only public house in the village. The presiding judge at this trial was Benjamin Ruggles, and his associates whose names have not been very carefully preserved by the records. After a fair and impartial trial, O'Mic was convicted and sentenced to be hanged upon the public square, and after an execution which was at once primitive, ludicrous and pathetic, paid to the majesty of the law the penalty with his life, and was buried under his gallows. To pursue the history of these causes celebres, would demand too much space. The most populous of the counties upon the Western Reserve, that of Cuyahoga—named from the river which finds its way to Lake Erie through its borders- * Dr. B. A Hinsdale in "Magazine of Western History," August, 1889, page 353. BENCH AND BAR OF OHIO - 7 was erected after the adoption of the first Constitution of Ohio, in the year 1807. The seat of justice, however, for this new county, was not Cleveland, but Chardon, Geauga county. Until January 16, 1810, Cuyahoga county had no judicial institutions of its own. During the territorial period preceding the admission of the State into the Union, Governor St. Clair had appointed James Kingsbury, of Cleveland, a justice of the Court of Quarter Sessions for the county of Trumbull. This statement leads me to group the further discussion of this subject around brief, and necessarily imperfect, sketches of some of the pioneer magistrates and lawyers. SAMUEL HUNTINGTON. One of the foremost of the pioneers of the Western Reserve, and who became distinguished in early public life, above all others, was Samuel Huntington, Esq., of Connecticut. y He was born in the State of Connecticut in 1765. He was a graduate of Yale College, and subsequently studied law, and was admitted to the Bar in his native State. He engaged in the practice of his profession in that State until 1800, when he came to Ohio, living at different times at Youngstown, Marietta, Cleveland and Painesville. He was a member of the Constitutional Convention of 1802 ; was a State senator from Trumbull county ; was a judge of the Supreme Court, and while so serving, resigned the judgeship, having been elected governor of the State. He died at Painesville in the county of Cuyahoga, now county of Lake, in 1817. He was the adopted heir of his uncle and namesake, Governor Samuel Huntington, of Connecticut. In the year 1801 he removed from Youngstown to Cleveland, and built himself a spacious block house in what is now the very heart of the city of Cleveland. He had a liberal education and was refined and aristocratic in his habits and manners. He was thoroughly conversant with the French language, and had studied abroad —a very rare accomplishment for a young man of those days. His family consisted of three servants, and his home in the wilderness manifested no small degree of taste and refinement. His first public office was that of a justice of the Quorum, being appointed by Governor St. Clair in 1802. A murder case was tried in Youngstown about that time, before Justice Huntington. It was the case of McMahon, who was charged with murdering an Indian by the name of " Spotted George" at Salt, Springs, now in Mahoning county. On that occasion Governor St. Clair paid a visit to the Western Reserve, the first and only time that the territorial governor so honored that part of Ohio. By common consent Huntington took priority on the Bench of the Court of Quarter Sessions. In November, 1802, he was elected a delegate to the convention, to form the State Constitution, about to assemble at Chillicothe, Ohio. He took a prominent part in the convention, and for nearly half the session was the only representative from the large county of Trumbull in the territory. He was active upon the judiciary committee and his influence was felt in this notable body, who laid so well and wisely the foundations of the State in the first Constitution. There is very little recorded judicial history, in which Judge Huntington participated. It was before the day of the court reporter and stenographer, and the literary remains of such a public man are decidedly meager. The 8 - BENCH AND BAR OF OHIO. legal profession, at that time, was beset with peculiar hardships and dangers. The judges were more in the saddle than upon the Bench. The usual means of transit from place to place was upon horseback. The law libraries were in the saddle-bags, and consisted only of two or three volumes. The judges and the lawyers, out of court, in all their social intercourse, were on an equal footing, and their common experiences and close intercourse engendered a familiar comradeship, the amenities and jovial incidents of which did much to modify the asperities and adversities of their lives. "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 travelled with five or six in company, and with a pack-horse to transport such necessaries as their own horses could not conveniently carry, because no dependence could be placed on obtaining supplies on the route ; although they frequently passed through Indian camps and villages, 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 condition of the country, the routes followed by travellers were necessarily circuitous, 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 wilderness ; 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; travellers had therefore to rely on their horses as the only substitute for those conveniences. That fact made it common, when purchasing a horse, to ask if he were a good swimmer, which was considered one of the most valuable qualities of a saddle-horse. Strange as this may now appear, it was then a very natural inquiry." Such was the common experience of Judge Huntington, from which none of the jurists of that day were exempt. It is related of Judge Huntington that the most thrilling experience through which he passed in the wilderness, was during a ride through the forest from what was then the village of Painesville, on the lake shore, to Cleveland. At a point now in the heart of the residence portion of the city of Cleveland, he passed through the primeval forest at night and was set upon by a pack of hungry wolves, who had their covert in that portion of the woods, and his life was saved by his beating off the boldest of the pack with his umbrella, which was broken to pieces, and the fleetness of his horse, which took fright and whose speed outstripped the foremost of the pack, in their race toward the scattered village of Cleveland. There is something characteristic of the man, that his only weapon on that occasion was that necessary adjunct to the equipment of every refined gentle- man, an umbrella. Samuel Huntington was a learned man, of generous culture and much refinement. No doubt there was something of unyielding sternness in his dis- * Burnet's Notes on the Northwestern Territory, p. 65. BENCH AND BAR OF OHIO - 9 position and service as a magistrate, coming to him through his ancestors in Connecticut. Record is made of the fact that one Isaac Huntington, who was no doubt Governor Huntington's ancestor, while a justice of the peace in the State of Connecticut, and administering the " Blue Laws" in all their rigor, disposed of a case thus : “1738, July 12. John Downer and Solomon Hambleton for profaning the Sabbath day by oystering, fined five shillings and costs." This same justice, in 1749, fined a person twenty shillings for playing at cards, and another five shillings for laughing in a meeting. No doubt the early jurisdiction of the judges of New Connecticut was exercised over cases quite as trivial, if not of the same character, as the above reported cases. But here was a young man who died but little past middle life who had spent years in procuring his education at home and abroad, rising step by step on his merits from the humble office of a justice of the peace to the gubernatorial chair of the State, and yet one has to glean through numerous volumes of obscure history to learn even the simplest outlines of his life. His portrait may be found in the gallery of the governors of Ohio, exhibited in the rotunda of the capitol at Columbus. No one can look upon the refined and delicate lines of his face, his elegant attire, his large, lustrous eyes, without wondering how so refined and cultivated a gentleman could have found congenial life in the unbroken wilderness of northern Ohio. It has been well said of Governor Huntington that " his character for strict integrity, great executive ability and accomplished scholarship was second to that of no incumbent of the executive chair."* The first Court of Common Pleas held in Cuyahoga county was held in Cleveland in June, 1810. The population of Cleveland was then fifty-seven. Honorable Benjamin Ruggles was president of the court. The business term embraced the consideration of five civil suits and three criminal prosecutions. Thomas D. Webb is recorded as the attorney who filed the first precipe for a summons, being the suit of Daniel Humason against William Austin—action for trespass on the case for eleven hundred white fish of the value of $70, which came into the hands of the defendant by " finding," but who refused to give them up on demand, and converted them to his own use. Alfred Kelley appeared for the defendant, denied the force and injury, etc., the plaintiff joined issue and " put himself on the country." At the next term the defendant appeared, by his attorney, "and the plaintiff being solemnly demanded to come into court and prosecute his suit, but came not. Whereupon the court considered that said Daniel take nothing by his bill, but that he be amerced, and that said William go without delay and have execution for his costs and charged by him laid out about his defense, of $9.55." I am indebted for this record to the Honorable F. T. Wallace, now deceased, in his admirable sketch upon the legal and judicial history of Cleveland, published in the " Bench and Bar of Cleveland." * A sketch of the Supreme Court of Ohio, by Edward B. Kinkhead. 10 - BENCH AND BAR OF OHIO. HONORABLE ALFRED KELLEY. This gentleman's name is ineffaceably written and prominent in the early history of Ohio. He also was bred to the law in the State of Connecticut. He was a man of great breadth of statesmanship, as well as legal acumen. He was for many years one of the great leaders in framing wholesome laws for the government of the new State of Ohio, and stood at the head of those who founded its commercial and financial institutions. He was a great financier. The Bankers' Association of the State of Ohio recently did tardy justice to the memory of this great man by publishing a memorial paper, prepared by Honorable T. H. Wilson, in their transactions at a recent meeting. He was the father of the banking system of the State of Ohio, and its outgrowth, the State Bank of Ohio, one of the strongest financial institutions of its day, and the progenitor of the National banking system of the United States. His name appears upon all the early records of the courts, of both the northern and middle portion of the State of Ohio. His early residence was Cleveland, and he was justly regarded, in his day and generation, as a leader among men. JAMES KINGSBURY, ESQ. This remarkable pioneer came upon the Western Reserve with the original surveying party sent out by the Connecticut Land Company, in 1796, and the winter subsequent to his landing upon the shores of Lake Erie, with his young wife and child, was of such severity that to keep his family from starvation he was obliged to start alone through the primeval forests, to reach Buffalo, if possible, to procure provisions. When he returned to his hut, now in the county of Ashtabula, Ohio, he found his child dead, and his wife almost in the last stages of starvation. He was a man of sound judgment and of native force of character. In 1802 Governor St. Clair, of the Northwest Territory, appointed him a justice of the Quorum for the county of Trumbull. He was also honored by being elected to the first general assembly of the State. He was an enterprising, progressive and typical pioneer. He built the first frame house for a dwelling, near Cleveland, more than eighty years ago, and the structure still stands as one of the historic landmarks in the suburbs of the city. HONORABLE BENJAMIN TAPPAN was the first settler in that county of the Western Reserve now called Portage, so named because it occupies territory between the head waters of the Cuyahoga and the Muskingum rivers, which was long used by the Indians as a portage. Ile was a lawyer of great original force and ability. He was somewhat eccentric and very brusque in his manners. His cabin was the first to be erected in the town of Ravenna, which is now the seat of justice in Portage county. In his fortitude and chivalry, no less than in his strong and indomitable will, there was something heroic. He emigrated from Connecticut with his household goods and "gods" transported with a cart and ox-team. Arriving at the mouth of the Cuyahoga, he, together with David Hudson, another pioneer, embarked upon the " crooked river" and paddled their way up stream to a point now in the county of Summit. Here he lived with his family in a tent, and with a hired man and a rude dray, constructed by himself out of poles, to which he had attached his BENCH AND BAR OF OHIO - 11 ox-team, he broke his way through the wilderness toward his destination. In the midst of the forest one of the oxen became over-heated and died, and he was stranded in the wilderness with only one dollar in his pocket, being one hundred miles remote from any settlement. With his trusty rifle, and a pocket compass, he made his way to Youngstown, and making a favorable impression upon Colonel James Hill, who was the leading citizen in that settlement, he purchased of Hill an ox on credit, and with his beast of burden found his way back to his lodge in the wilderness, and with this new team pressed on to his future home. Like so many others, coming from the East, and its strict rigorous and conservative religious life, he discarded all external observances of religion and its dogmas, and in the reaction from his former convictions, became a pronounced skeptic. It is said of him that, while a man of very generous and kindly disposition, he was once approached by a voluble preacher for a contribution to build a church, and in the exuberance of his appeal, the preacher said that the Lord " owned the cattle on a thousand hills." Mr. Tappan was then a member of the United States Senate. He turned to the preacher with a droll expression on his countenance and said : " Why don't the Lord sell some of those cattle and build his own church ?" He was possessed of a good academic and professional education, and reached a proud eminence as a jurist and statesman, and was elected by the first. legislature as one of the first United States senators for the State of Ohio, where he became a conspicuous, as well as useful public servant. To even transcribe the roll of those who might be deemed worthy of a special sketch, in this fragmentary history of. the Western Reserve, would occupy vastly more space than could be allotted to its treatment in this connection. These men, whose names I have mentioned, may be taken as typical of the class of pioneer professional lawyers and judges upon the Western Reserve. There are scores of others whose names are worthy of at least mention : George Tod was one of the early judges of the Supreme Court from this portion of the State of Ohio. Honorable Reuben Wood, although serving at a somewhat later date, was also a pioneer judge of the Supreme Court, and also filled the gubernatorial chair—a strong and conspicuous minister of justice and statesman. Judge Calvin Pease was also a member of the Supreme Court, from the State of Ohio, under the old Constitution. All these men seemed to be possessed of such qualities of original force and wise foresight as to render their lives and services indispensable in planting judicial institutions, and engendering a love for law and order during the formative period of life and settlement upon the Connecticut Western Reserve. THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH DISTRICT. BY JUDGE WILLIAM H. TAFT. The task of writing the history and relating the traditions of a court only six years old would seem not to be a heavy one. The Federal Circuit Courts of Appeals historically are now much more interesting in their period of gestation than in their life since birth. The time which it took to create them, after their conception by those interested in reforming the administration of justice, was considerably greater than that which has elapsed since the passage of the act of March 3, 1891, which gave them being. The united and long continued efforts by the Bar and the Bench of the country to rouse Congress to the necessity for creating them measure the conservatism which has always characterized that body in its attitude toward the Federal judicial system. When comparison is instituted between the legislation of Congress on that subject since 1800 and the legislation of the British Parliament with reference to the English courts during the same time, it will be found that Congress has been much less disposed to change than its English prototype. This difference, of course, is not wholly due to greater conservatism on the subject. The English system, hoary with the age of half a dozen centuries, was more in need of reform than that system which in 1789 sprang full armed from the brain of Oliver Ellsworth, and it needed many changes before it approximated in simplicity the Federal system as at first established. Then, too, the constitution of the English Parliament is much better adapted to law reforms than that of the American Congress. The chief law officers of the Crown are always members of the Government in the House of Commons and exercise a controlling influence on legislation to be passed for the improvement of courts, while in the house of Lords are usually half a dozen law Lords, including the Lord Chancellor and the Lord Chief Justice, whose experience admirably fits them to prepare and discuss such legislation and who have the strongest motives for making the administration of justice efficient. In Congress it usually happens that the judiciary committee of the Senate has upon it some lawyers quite familiar with the practice and needs of the Federal courts, but the same thing is not always true of the judiciary committee of the House. The attorney-general may recommend improvements in the judicial system to Congress, but this is very different from the power exercised by his British brother, who may formulate and introduce a bill, argue its merits to the House and marshal in its support the vote of the majority party. - 12 - BENCH AND BAR OF OHIO - 13 Whatever the cause of it, in the whole 109 years of the life of the Federal judicial system there have only been three changes which have affected its judicial framework, and one of these was completely repealed fourteen months after its enactment. By the Judiciary., Act of 1789 three courts were provided for, the Supreme, Circuit and District Courts. It was the intention of the founders of the system that the District Court, which had but a limited jurisdiction, should be presided over by a single district judge from whose decisions appeals could be taken to the Circuit Court, and that the Circuit Court, in which was vested the widest original jurisdiction, should be held by two judges, the supreme justice and the district judge sitting together. Provision was made for the holding of the Circuit Court by either judge, but this was evidently intended to be the exception. On February 13, 1801, Congress passed " an act to provide for the more convenient organization of the courts of the United States." The act divided the country into six circuits, the first three of which were exactly the same as to-day, and the sixth of which included all of the present Sixth Circuit except Michigan, which was then a part of the Northwest Territory. The main change in the act was the provision for three circuit judges in each circuit who were to hold the Circuit Court in each district, and two of whom could form a quorum. Even in those days the Sixth Circuit seemed not to have received its share of the judicial force of the country, for the law only provided for the appointment of one circuit judge in that circuit, and vested the district judges of the circuit with power to act as circuit judges. It was this law under which the " midnight judges" were appointed by President Adams, and which roused so much criticism among the members of the old Republican party. The result was that on March 8, 1802, President Jefferson approved an act repealing the law of 1801 in toto and restoring in every respect the judiciary act of 1789. The question of the power of Congress to abolish the office of a judge whose tenure of office by the Constitution was for life was not raised at that time, and it remains still an open question unless the acquiescence in this act can be said to have settled it. The reasoning in the recent decision of the Supreme Court in the income tax cases would seem to deprive such acquiescence of conclusive effect at least. From 1801 until 1869, no change was made in the Federal judiciary. Possibly two or three judges were added to the Supreme Court, and as new districts were organized, new district judges were appointed, but the system still embraced only two grades of judges, supreme and district, and their powers and duties remained practically the same. The jurisdictions of the three courts were enlarged somewhat and the business very greatly increased, but it had to be disposed of in the District and Circuit Courts by-then district judges with not a great deal of assistance from the supreme justices on the circuit. In 1866 a bill was introduced in the Senate and reported from the Judiciary Committee providing for the establishment of Federal Courts of Appeals, but it passed neither House. In 1869, it had long been evident that with the. increase in the business of the Supreme Court, the work of the supreme justices on the circuits must be nearly nominal and that the only way 14 - BENCH AND BAR OF OHIO. to facilitate business in the Circuit Court was to provide a judge to hold that court, instead of continuing the anomaly of a court which was without its own judge and was administered by judges of other courts. Congress was finally, on the 10th of April, 1869, induced to take action and passed " an act to amend the judicial system of the United States," which provided for the appointment of a circuit judge in each of the then nine circuits and vested him with power to hold the Circuit Court in each district of his circuit alone, or with the circuit justice or with the district judge. The law also contained a provision (now more honored in the breach than the observance), that each of the supreme justices should attend at least one term in two years in each of the districts of the circuit to whioh he might be assigned. The enactment of the provision suggests, what was doubtless a fact, that even at that time the visits of the circuit justices were quite like those of angels. And it is no wonder, for the business of the Supreme Court had then increased so much that it became a physical impossibility for a justice of the Supreme Court. to visit each district of his circuit in the short vacations of his own court. It is interesting to compare the business of the Supreme Court of John Marshall's time and that of the court between 1870 and 1890. From 1801 until 1810 the cases did not number more than twenty-five a year. From 1826 to 1830 their number was about fifty-eight a year. In 1850 the average number of cases docketed a year was about seventy. After that the increase was such that in 1880 the number had increased to about 400 cases a year. Under the present methods of business in the Supreme Court, each justice will average thirty opinions a year. In the days of Marshall, fifteen opinions was a goodly number for one judge. In 1819, the court disposed of thirty-three cases, including the Dartmouth College case, McCulloch vs. Maryland, Sturges vs. Crowninshield and Baptist Association vs. Hart's Ex'rs., and of the thirty-three, Marshall announced the opinion in 12, Storey in 9, Johnson in 6, Washington in 2, and Duvall and Livingston each in one. The increase in the business of the Supreme Court had its effect and the court soon began to fall so far behind its docket that a case could not be heard until three years after it was docketed. It would seem that such a condition of affairs would have called for immediate action, but it was more than ten years after the matter was forcibly brought to the attention of the National Legislature before any relief was granted. Mr. Justice Davis resigned from the Supreme Bench to go into the Senate in 1877, and early in his term he developed a plan for the relief of the Supreme Court. In 1880 his bill was reported to the Senate by the Judiciary Committee and passed that body, but it failed to pass the House. Judge Davis's bill provided for an intermediate Court of Appeals in each circuit of five judges, the quorum of the court to be four. The court, when full, was to consist of the circuit justice, the existing circuit judge and two more circuit judges to be appointed in each circuit, and one or two of the district judges to be designated to sit in the court. This court was to have the power of reviewing practically all cases heard in the District and Circuit Courts. Judgments of the intermediate court were to be reviewed in the Supreme BENCH AND BAR OF OHIO - 15 Court in all cases involving more than $10,000 exclusive of costs, all cases involving constitutional questions and in all patent and copyright cases. It is not too much to say that it was the presence of Judge Davis in the Senate and his prestige as a member of the Supreme Court of long experience which led to the final adoption of a plan something like his for the relief of the Supreme Court. It ought to be added that the public attention was attracted to the growing evils and the best plan to remedy them by an article from the pen of Mr. Justice Strong, then recently retired from the Supreme Court, in which he depicted in strong words the denial of justice in that court due to inevitable delay, and set forth in a most convincing way the advantage of the general plan embodied in Judge Davis's bill. The fact that the Court of Appeals system owes its adoption as much to these two justices as to any one, justifies the remark already made that the presence of the great judges of England in the House of Lords is of the greatest assistance in bringing about law reforms. Soon after Judge Davis's bill was introduced and discussed, other bills having the same ultimate object of relieving the Supreme Court, but drawn on very different lines, were introduced in Congress. These bills proposed a division of the Supreme Court into three parts, for the purpose of hearing and disposing of all cases but those cases involving the Constitution or laws of the United States, which were still to be submitted to the whole court in bane. In 1881, the matter came before the annual meeting of the American Bar Association, and a committee of leading lawyers was appointed to make a report on the best plan for the relief of the Supreme Court. At the next year's meeting of the association, in 1882, the committee submitted a majority and a minority report, and a very full discussion followed before the association. The majority of the committee included Governor Stevenson of Kentucky, Henry Hitchcock of Missouri, and Rufus King of Ohio. Mr. Hitchcock acted as their spokesman. They favored a plan like that proposed in the Davis bill, to wit : The establishment of intermediate courts of appeal for each circuit, in which all judgments of the courts of original instance could be reviewed and a limitation in amount involved, and in subject matter upon those cases which could' be carried for review to the Supreme Court from the courts of appeal. The majority contended that this was the only feasible plan for the relief sought ; that it provided for a review in every case, and yet reduced the cases to be considered by the Supreme Court to those of sufficient variety and importance to retain for that court its all-important function of maintaining uniformity in the administration of Federal justice throughout the country, and of furnishing to the country and the world decisions of highest authority on questions of general jurisprudence. The majority of the committee objected seriously to the division of the Supreme Court into parts for hearing and deciding causes, on the ground that such an arrangement would be a violation of the constitutional mandate to Congress that " there shall be one Supreme Court," and that it would be quite as productive of dissatisfaction among unsuccessful litigants denied access to the full court as a system which made judgments of an intermediate 16 - BENCH AND BAR OF OHIO. appellate tribunal final. The minority of the committee included E. J. Phelps and William M. Evarts. They expressed the confident opinion that the constitutional objection to the division of the Supreme Court into parts for all hearings but those in constitutional cases had no weight. They argued strenuously that to entrust to nine different Courts of Appeal final decisions in all cases involving less than $10,000 was to make the Supreme Court the court for corporations and the wealthy, and the Appellate Courts the last resort of the poor man, and was to deny to the latter the benefit of the ability, legal learning and absence of local prejudice which so distinguished the Supreme Court. They expressed grave doubt whether the ability and learning and professional standing of those circuit judges who would sit constantly as members of the Courts of Appeals would be such as to command the greatest respect, and felt much apprehension lest such local Courts of Appeal might be swayed by local prejudice in a manner which it was the very object of the founders of the Constitution in providing for a Federal judicial system to avoid. The minority seemed also to be much impressed with the additional expense involved in the appointment of eighteen new circuit judges required by the Davis bill as a serious objection to its enactment. The association adopted the majority report by a vote of thirty-nine to twenty-seven, and from 1883 until 1891, when the Court of Appeals act was passed, had a standing committee charged with the duty of bringing before each Congress the necessity for the passage of the Davis bill or a similar measure. In 1885, Howell E. Jackson, then a senator in Congress from Tennessee, introduced a bill for the amendment of the Federal judicial system which, actual experience has demonstrated, was in its main features the best solution of the difficulties present in the system as it then existed. It provided for the appointment of two additional circuit judges in each circuit, established a Court of Appeals, to consist of the three circuit judges, and abolished the Circuit Courts, transferring all their jurisdiction and pending business to the existing District Courts. It limited the reviewing power of the Supreme Court as much as did the Davis bill. Before the bill could be passed, its author was appointed to be the United States circuit judge for the Sixth Circuit. In 1887 Congress passed a judiciary act which did not change the judicial system, but which very much cut down the business of the Federal courts by increasing from $500 to $2,000 the minimum limit of the amount which must be involved in a controversy before it can become subject to the Federal judicial jurisdiction. The real necessity for such a change was not apparent, and as no case could be taken to the Supreme Court unless it involved $5,000, the aid which the change afforded to that court was not perceptible. It only cut off from the inferior Federal courts jurisdiction of cases which could not under existing laws be carried to the Supreme Court in any event. The Congress which met for the first time in December, 1889, took up the judiciary problem in earnest, and during the session of 1889-90 the House of Representatives passed what is called the Rogers bill. It was introduced by Mr. Rogers of Arkansas, a Democratic member of the Judiciary Commit- BENCH AND BAR OF OHIO - 17 tee. Mr. Ezra Taylor of Ohio, the chairman of the Judiciary Committee, was understood to have assisted the gentleman whose name the bill bore, in its preparation.. The bill was framed on very much the same lines as the Jackson bill. It established the intermediate Appellate Court in each circuit, to consist of the existing circuit judge and two other circuit judges to be appointed ; it abolished the existing Circuit Courts and transferred their jurisdiction and pending business to the District Courts. It provided for a review of every case in the new District Court by the new Court of Appeal. It made the decision of the Courts of Appeal, final in all cases jurisdiction of which depended on diversity of citizenship, in all patent and admiralty cases and in revenue and criminal cases. It provided for a direct review by the Supreme Court of all cases involving the construction of the Constitution and treaties of the United States and in all questions of the jurisdiction of the District Court. It contained an important provision transferring all the business of the Supreme Court then undisposed of, and which by this act came within the final jurisdiction of the Courts of Appeal, to the docket of the latter courts. When the bill reached the Senate, it was referred to the Judiciary Committee, at the head of which was Mr. Edmunds, who was not very friendly to the general plan and much preferred a division of the Supreme Court into parts. Mr. Evarts was also a member of the Judiciary Committee and to a sub-committee of which he was chairman was referred the House bill for consideration. It will be remembered that Mr. Evarts had signed the minority report of the special committee of the American Bar Association which opposed intermediate Courts of Appeal and favored a division of the Supreme Court. The substitute for the House bill which Mr. Evarts reported from the Judiciary Committee to the Senate, however, did not depart from the general plan of the House bill, but the changes which it made were all for the worse, as the sequel has shown. It provided for only one additional circuit judge in each circuit, instead of two, and it made the Court of Appeals to consist of the circuit justice and the two circuit judges, and in the absence or disability of either a district judge was to be designated to sit. It did not transfer the heavy Supreme Court docket of nearly 1,400 cases to the Courts of Appeal, but left that to be removed by the Supreme Court, so that an interval of seven years was required to elapse before the condition of business in the Supreme Court should be as the bill intended it to be. This latter change has continued the burden upon the Supreme Court, so that the justices have been unable to give more than a few clays in each year to the business of the Courts of Appeals, and has made it necessary to call into those courts different district judges, and to change the personnel of those courts at every session. By another change the absurdity of a Circuit Court and a District Court with distinct organizations in each district has been maintained. By an amendment in the Senate the direct appellate jurisdiction of the Supreme Court was extended to every criminal case involving a possible imprisonment for more than a year, and thus the Supreme Court has come to be a court of crown cases reserved. Action in the Senate upon the Evarts bill 18 - BENCH AND BAR OF OHIO was so long delayed that it became manifest after it passed the Senate and went into conference that unless the House took the bill exactly as it passed the Senate, the bill must fail. But for such an unfortunate condition of affairs the House would certainly have succeeded in modifying some of what may be called the uselessly conservative changes in the bill. As it was, the vote by which the bill passed the House came very near disclosing the lack of a quorum. The Democratic party in the House attempted by filibustering to defeat the bill, but there were enough members of that party, including Mr. Rogers of Arkansas, and Judge Culberson of Texas, to rise above petty party considerations to vote on the question and for a bill, the public necessity for which was a crying one. President Harrison recognized the fact that the bill owed its passage to Democratic support by making two of the nine appointments made necessary by the act from the Democratic party. This is the first instance in the history of the country of a President's crossing party lines to make his judicial appointments. It was not the last for the same president appointed Judge Jackson to the Supreme Bench. It is to be hoped that his example may often be followed. It is not too much to say that most of the changes from the Rogers bill contained in the Evarts bill were the result of that conservative spirit seen so frequently in English reforms, which finds great comfort in maintaining the old forms while the substance is entirely changed. The admission contained in the bill that the Supreme Court needed relief, and the postponement of it for six years by refusing to transfer the congested docket to the Courts of Appeals, was a grudging mode of conferring a benefit and enacting a reform of which many counterparts, can be found in English history. The only reason that ever could have been given for the separate maintenance of the Circuit and District Courts established by the Judiciary act of 1789, was that it was necessary to have an intermediate court to review cases within the exclusive jurisdiction of the District Court, and yet by the Evarts bill all appellate jurisdiction of the Circuit Court was abolished. The clumsiness and the expense of having two such courts with separate court organizations would seem plain enough to any one, while not a single advantage of such a system can be suggested. The reluctance of the Senate, while establishing a new court, to provide judges enough for it, is an instance of that penny wise and pound foolish policy that is sometimes also called conservative. Changes which experience shows to be necessary are being gradually made in the act, and each amendment tends toward the original plan of the Rogers bill. In each of four of the circuits, the 2nd, 7th, 8th and 9th, there are now three circuit judges who hold the Court of Appeals. Bills to increase the number in the other circuits have been recommended by the President and the attorney-general, and have passed the Senate. It is reasonably certain that in the next decade there will be three circuit judges in each circuit to hold the Court of Appeals, as there ought to be. Bills have been introduced to abolish the Circuit Courts and to give all their jurisdiction to the District Courts, and if the views of the present chairman of the Senate Judiciary Committee, Senator Hoar, are any indication, BENCH AND BAR OF OHIO - 19 such a bill is likely to pass. Another provision of the Court of Appeals act which interfered with the main object of the act, to wit, the furnishing of a quick and inexpensive review of cases from the Circuit and District Courts, was that which required the costs in the Courts of Appeals to be the same as those of the Supreme Court. The costs of the latter court were fixed by the court itself at a time when the court was naturally anxious to discourage the increase of business, and were quite heavy. An act has been recently passed which enables Courts of Appeals to fix their own costs at not exceeding the Supreme Court costs. This will much reduce the expense of the litigant in the Courts of Appeals. The clause of the Court of Appeals act which made the Supreme Court a court of criminal appeals has now been amended so that only capital cases go to that court, and the great body of criminal appeals will now go to the Court of Appeals, where they can be quickly disposed of. The main object of a great tribunal of last resort like that of the Supreme Court of the United States is not to give every litigant a chance to have his cause reheard before it. It is to declare in an authoritative way what the law is in cases of a number, variety and importance sufficiently great to cover in a general way the whole field of Federal and general jurisprudence. The individual litigant is quite sufficiently provided for when he has the absolute right to have two impartial courts pass on his case, one in the first instance and the other by way of review. It follows that the only motive the law-maker should have in defining cases which may be appealed to the Supreme Court should be a desire to secure a decision by that court of cases the judgments in which are likely to add something either to the science of jurisprudence and public law or to the certainty in the construction of our Constitution. With the exception of that for appeals in criminal cases, the provisions of the Court of Appeals act in dividing the appellate jurisdiction between the Supreme Court and the Courts of Appeals are admirably adapted to make the Courts of Appeals the courts where reviews are given to prevent individual hardships from judicial errors, and the Supreme Court the tribunal for declaring the law and keeping it uniform for the benefit of the Nation and all the people. There is no money limit to the jurisdiction of the Supreme Court except in a single unimportant instance. It has absolute jurisdiction in constitutional cases, which all will concede should be considered by it, and in cases of jurisdiction which, because they mark the line between the Federal and State judicial power, should certainly be committed ultimately to the decision of the supreme tribunal of the Nation. Cases involving the construction of treaties are of such public moment that no doubt can exist of the wisdom of committing them to the decision of the Supreme Court in every instance. In substantially all other cases of Federal jurisdiction, the Supreme Court may get jurisdiction in one of two ways ; first, by certificate of the Court of Appeals, second, by certiorari by the Supreme Court. In this way every case which is so important and so doubtful that the Court of Appeals finds it difficult to reach a satisfactory conclusion, and every case which the Court of Appeals does not find doubtful but 20 - BENCH AND BAR OF OHIO. the Supreme Court regards as belonging to that class of cases in which it would be well to settle the law more clearly, will reach the Supreme Court, and that court will remain, as it has always been, one of the world's great authorities on commercial and general jurisprudence. By these features, the most serious objection to giving Courts of Appeal final jurisdiction in all cases save those involving jurisdiction, the Constitution and foreign treaties, is removed. It is a favorite argument of those who urge that there should be a review by the Supreme Court of all felony cases that one ought to have the same right to carry to the highest court questions involving his life and liberty as those involving money or property. The answer to this, so far as it concerns the present Courts of Appeals act, is that the act gives no opportunity as of right to carry questions concerning money or property to the Supreme Court, except as the Appellate Court or the Supreme Court may deem them unsettled and of general public importance, and the same thing is true of those criminal cases of which the Court of Appeals has final jurisdiction. On the other hand, before the recent amendment every felony case could be carried as of right to the Supreme Court, and now under the act as amended every capital case can be. Such a provision is imposing a burden on the Supreme Court merely for the purpose of giving another chance to the defeated defendant, and not to sub-serve the proper purpose of such a court to declare authoritatively what the law is on questions of general importance. Because the life or liberty of one charged with crime may be at stake in a cause, it by no means follows that questions upon which the correctness of the trial court's ruling turns are either doubtful or of general importance. One jury trial and one review before three judges of experience and impartiality are all that any practical and useful code of criminal procedure should allow. The opportunities afforded, by overnice and over-technical judges and by emotionally weak legislatures, to hardened criminals to delay the execution of the law upon their crimes have brought the administration of the criminal law in this country into just reproach and should be eliminated as far as possible from Federal legislation. So hasty were the final steps in making the Evarts bill a law, and so necessary did it become not to risk defeat by the delay of amendment, that as it was passed on the 3rd of March, 1891, it provided for the organization of the new Courts of Appeal in the preceding January. It was necessary to avoid several mistakes of this character by a joint resolution, which fixed the 1st day of July, 1891, as the day for the organization of the court and the day after which appeals and writs of error from the Circuit and District Courts should be taken to the Courts of Appeal under the act. In spite of the defects in it, the Court of Appeals act has worked well. The Supreme Court has been much relieved. The docket of that court is becoming less burdened each year, and it is already certain that in less than two years, the cases docketed each year will not be too many for the court to dispose of in the same year. Nor is there any ground for fear that the Supreme Court will run out of work, or that it will lose its importance as the highest tribunal for declaring what the law is in all its branches. The judicious use of the writ of BENCH AND BAR OF OHIO - 21 certiorari, as already explained, will prevent this. Of course litigants and lawyers defeated in the Courts of Appeal are prone to complain of the deficiencies of the Courts of Appeal, and continue to storm the Supreme Court with their grievances rehearsed in motions for certiorari, but that court, following. truly the spirit of those who framed and passed the Court of Appeals act, has refused to hearken to such complaints except in cases in which the principles involved are such that it will serve the public interest to have them stated and expounded by the tribunal of highest authority. In most of the circuits it has become possible, provided counsel wish it and take steps to secure such a result, to have a cause begun in the court of first instance and concluded by a judgment in the Court of Appeals, all in the period of one year. Greater expedition than this in the settlement of important controversies is hardly consistent with careful preparation by counsel :and due consideration of the interests involved by the courts. It may be said confidently that the system inaugurated by the Court of Appeals act is the only satisfactory solution of the difficulties which had become so formidable before its passage. And now as to the Circuit Court of Appeals for the Sixth Circuit, which it is the especial object of this article to discuss. The Sixth Circuit embraces the four great States of Michigan, Ohio, Kentucky and Tennessee. It reaches from Lake Superior to Lookout Mountain and embraces within its jurisdiction nearly all the differing types of American manhood. Its population is great, and its commercial, farming, manufacturing and mining interests are enormous. Though rich in itself, much of the wealth of the Eastern States is invested within its borders, and this circumstance leads to litigation of great magnitude in its Federal courts by reason of their jurisdiction over controversies between citizens of different States. With its extensive shore line on four of the great lakes, the maritime interests within its jurisdiction are very heavy and the admiralty business of its courts is second in importance only to that of the Second or New York Circuit. The manufacturing done in Ohio and Michigan leads to much patent litigation in those States, while the large production of whisky, legal and illicit, and the immense growth and manufacture of tobacco in Kentucky and Tennessee, bring many Federal revenue cases, civil and criminal, into the Federal tribunals of those States. As all cases in the Federal courts of first instance may be reviewed in the Circuit Court of Appeals, it is easy to see why it is that the docket of that court for the Sixth Circuit is considerably heavier than that of any other circuit except the Second or New York Circuit, and the Eighth or St. Louis Circuit. The Circuit Court of Appeals for the Sixth Circuit was organized at Cincinnati on July 1, 1891, in accordance with law. The judges in attendance were Mr. Justice Henry B. Brown, of the Supreme Court, Circuit Judge Jackson, and Judge Sage, district judge for the Southern District of Ohio. Walter S. Harsha, of Detroit, was appointed clerk and Thomas Claiborne, of Tennessee, was appointed marshal of the court. In October, 1891, the court, similarly constituted, met and heard some five cases. In January, 1892, in the necessary absence of Mr. Justice Brown, Judge Swan, the district judge for 22 - BENCH AND BAR OF OHIO the Eastern District of Michigan, was called in and the court was then made up of Judges Jackson, Sage and Swan. In March, 1892, President Harrison's appointments to the new circuit judgeships were confirmed, and William H. Taft, resigning his office as solicitor-general of the United States, became the additional and junior circuit judge for the Sixth Circuit. The Court of Appeals met in June, 1892, with Mr. Justice Brown presiding and Judges Jackson and Taft in attendance. Thereafter, the sessions of the court, because of the increase of business, were lengthened so much that the circuit justice was able to be present at comparatively few of the sittings, and the permanent court came to be made up of the two circuit judges and such one of the seven district judges of the circuit as could absent himself from the court work of his own district. By designation, Judge Ricks of the Northern District of Ohio, and Judge Key of the Middle and Eastern District of Tennessee, have sat as members of the court for one session and in emergencies. In March, 1893, Judge Jackson was appointed and confirmed a justice of the Supreme Court, and Judge Horace H. Lurton, till then Chief Justice of the Supreme Court of Tennessee, was appointed by President Cleveland to succeed him. Since Judge Lurton's appointment, it has been the custom to designate a district judge for a year to sit in the Court of Appeals. Under such a designation, Judge Severens of the Western District of Michigan sat for one year, Judge Hammond of the Western District of Tennessee for another, Judge Sage for a third year, and Judge Clark, the successor of Judge Key, is about beginning a year's work in the court. Judge Severens has done much more work in the Court of Appeals than any other judge except the circuit judges, by reason of having supplied the place of other judges disqualified. After Justice Jackson was upon the Supreme Bench for a year he was assigned to the Sixth Circuit, and Mr. Justice Brown went to the Second Circuit, but owing to his bad health, Mr. Justice Jackson never presided as circuit justice in the Circuit Court of Appeals for the Sixth Circuit, save in one case heard at Nashville. Upon his death in the summer of 1896, Mr. Justice Harlan was assigned to the Sixth Circuit, and still is the circuit justice and presiding officer of the Court of Appeals of that circuit. The dependence of the Court of Appeals upon justices and judges owing their first allegiance to other courts has much interfered with the smooth working of the system. No court can preserve a satisfactory uniformity in its decisions when its personnel is constantly changing, and while the two circuit judges are present in nine-tenths of the cases heard, the variation in one-third of the court is a detriment. More than this, the circuit judges can not fairly invite a district judge to aid them in the Court of Appeals without rendering assistance to him in his circuit court work, and each of them is thus obliged to devote to circuit work time really owing to cases on appeal. Several earnest efforts have been made to secure legislation providing a third circuit judge in this circuit, and though they have thus far failed, there is good reason to believe that this relief will be given at an early day. BENCH AND BAR OF OHIO - 23 The court meets at Cincinnati, where it has a very fine court room and commodious quarters for its judges. Its law library is larger and more conveniently housed than. that of any other Circuit Court of Appeals. For one year the court held one of its three sessions in each State of the circuit, merely to acquaint the Bar of each State with the court, but its home is and is always likely to be in Cincinnati. The court, in its five years of active business, has had before it many cases of great pecuniary magnitude and its members have had to devote much labor to keeping its docket clear. The official reporter has published six volumes of the court's decisions down to July, 1896, and there is material enough for another volume in the decisions rendered between that date and October 1, 1897. The six volumes are the 6th, 16th, 22nd, 31st, 37th and 43rd of the United States Appeals Reports. Of the standing of the court among its brother Courts of Appeals, and with the Bar of the circuit and the country, it is too soon to speak. It takes much longer than a decade before the calm and unbiased judgment of a court's virtues and shortcomings can be had. Of the professional fitness and the personal characteristics of its individual members now living, the writer of this article cannot with propriety say anything. The court and the country suffered a great loss in the death of Mr. Justice Jackson. He was a great judge, and as a man and a colleague was one with whom intimate association was most delightful. He took much pleasure in the working out of the new system which he had foreshadowed so clearly in the bill he had introduced in the Senate when he represented Tennessee in that body. It is not too much to say that his reputation as a jurist gave the Sixth Circuit Court of Appeals a standing at the outset, because it was known that as senior circuit judge he would be a permanent member of the court. One effect of the establishment of the Circuit Court of Appeals has been to form a Bar of the Sixth Circuit. While its members have thus far taken united action only on funeral and festal occasions, the esprit du corps there manifested indicates that should need arise, the Sixth Circuit Bar can be relied on to throw a powerful professional influence in favor of legal reform. In high tone, in legal learning, in forceful argument, in brilliancy of forensic oratory, in real aid to the court, this Bar is second to none in the country. OHIO IN THE FEDERAL COURTS. THE UNITED STATES SUPREME COURT. The Supreme Court of the United States, organized in 1789 under the Constitution of 1787, has always maintained a high standard of respectability. Originally the court was composed of six justices, but in 1863 Congress made provision for an additional member to meet the exigencies on the Pacific coast, which had been populated by Americans after the war with Mexico and the extraordinary gold discoveries. Land titles were complicated by Spanish and Mexican grants, the rights of settlers and the claims of miners. It was deemed expedient to have a member of the court familiar with these complications, and accordingly Stephen J. Field, who had been Chief Justice of the Supreme Court of California, was appointed. It is worthy of record here that his resignation was tendered in April, 1897, to take effect December 1st, and his period of service has been longer than that of any other justice. In 1869 two additional members of the Supreme Court were provided for and appointed in order to secure an opinion of a majority of the judges affirming the constitutionality of the Legal Tender Act. During the one hundred and eight years of its existence the court has had but eight Chief Justices and fifty-one Associate Justices chosen from twenty-one States. Ohio enjoys the unique distinction of being twice honored by the selection of her eminent jurists to fill the office of Chief Justice. A brief general reference is appropriate in this connection. During the eight years of his administration Washington appointed three Chief Justices—John Jay, of New York, in 1789 ; John Rutledge, of South Carolina, in 1795 ; Oliver Ellsworth, of Connecticut, in 1796. John Adams appointed one—John Marshall, of Virginia, who served thirty-four years and achieved imperishable fame. Andrew Jackson appointed Roger Brooke Taney, of Maryland, who, although a good lawyer and a great jurist, is known chiefly in history for his extra-judicial opinion in the case of Dred Scott. Justice Taney served twenty-eight years. Lincoln appointed Salmon Portland Chase, of Ohio ; and Grant appointed Morrison R. Waite, of Ohio ; Cleveland appointed Melville W. Fuller, of Illinois. The State of Ohio has had representation on the Bench of the Supreme Court eighty-two years. No other State has a record equal to this except New York, which has already had a representation in the court for eighty-five years, with Justice Peck still on the Bench. Massachusetts has had a member of the court for seventy-eight years, with Justice Gray still serving. Pennsylvania has had representation sixty-three years, and Justice Shiras now in service. Twenty-nine Justices of the Supreme Court have died in office and fourteen have resigned. Ohio has had