The Bench and Bar of Northern Ohio - 25 same as it does now ; but do you know that if we were to close all of the criminal courts of Cleveland for six months, and that fact shoula be generally known, it would be impossible to live in Cleveland ?" Thoughts on Law, Lawyers and Courts In early life, "in the liquid dew and May morn of youth, when hope is young, and life, itself, is new," we are absorbed completely by things about us. When we reach the meridian of manhood, we stand squarely upon our shadows, with the sun beating upon our heads. But when we pass fifty, the shadows slowly lengthen toward the east, and it is then that the mind becomes a sort of picture gallery of the past, and this is the treasury from which reminiscences must be drawn. I recall very vividly Judge Henry White, for some years probate judge of this county. He was, in some senses, unique. He was like the secretary, he stood alone. To him, for the doing of acts of kindness, all places were temples, and every season summer. To illustrate Judge White's generosity of disposition, I remember that a person from the East End came to me, and said that Judge White had indorsed a note for him, that the note was then due, but that the holder of the note had said that if another indorser besides Judge White could be gotten upon the note, he would extend its payment. Judge White suggested that the maker of the note should get me to join him in indorsing the note. I went to Judge White, and I said "Judge, I am requested to indorse a note for $300.00, which you indorsed, at the time the note was made ; and I have come to see you, as to whether you think I ought to indorse it." He studied a moment, and he said, "Neff, don't do it, because if you do, you will have to pay it." "Oh, but," I said, "Judge you are already bound to the extent of $300.00 on the note, and if I indorse with you, I would divide the burden." "Well," he said, "my advice to you, Neff, is, don't do it !" When I was prosecuting attorney, my office, as prosecutor, was directly across the hall from Judge White's office, as probate judge. People with all sorts of petitions, seekers after subscriptions, would go in there, and the judge would take his pen and subscribe fifty, seventy-five or one hundred dollars without much regard to the merits of the subscription. Then, the parties having his subscription would come directly across to me. Well, I was so poor that I could not afford to give such munificent sums, and so I would put down a small subscription, five or ten dollars. Finally, that thing became so burdensome to me that I went in to the judge's office one day, and said, "Judge, 1 am going to sue out an injunction against you. I am going to enjoin you from your prodigality in subscribing ridiculously munificent sums for all sorts of schemes. I can't afford to give away money in that way, neither can you, but so long as you do it, and I am compelled to give such small sums, I am put to a serious disadvantage before the public, so I have decided to enjoin you from doing that any more." The judge laughed, and said, "Well, Neff, .I see where you stand, and I will try to protect you in the future." But he never did ! I have taken pains, at various times, to inquire into the historical 26 - The Bench and Bar of Northern Ohio origins of various formulas and symbols that prevail in the law, and in that way have run upon matters that I think perhaps will be of interest to members of the professison. I find that the historical origin of the jury—that is, more especially, of the number of jurors—is this : There are twelve signs in the zodiac ; there were, therefore, twelve tribes in Israel ; there were, therefore, twelve apostles ; there were, therefore, twelve men on the jury. The number twelve was a number of magic among the Hebrews. Of course, the origin of trial by jury is well known, and, so far as the common law is concerned, a trial by jury owes its origin and inspiration to an effort on the part of the common people to protect themselves against the aggressions of the baronial lords, and, therefore, a right of trial by jury of one's peers, arose. Of course, the immediate exigency that gave rise to jury trial has long since ceased to exist, but the trial by jury has survived. I think that the concurrence of twelve minds, where the life or liberty of the citizen is involved, is of prime importance, as a matter of protection, but I have never been able to see the propriety of requiring the concurrence of twelve minds in the trial of civil cases. We govern one hundred millions of people by a well ascertained majority of one. A majority-of one is as efficient to give control to one party or the other, as a larger majority is, and it has therefore seemed to me to be the very attar of roses of absurdity, to require the concurrence of twelve minds, to determine an issue involving only rights of property ; but, until very recently we have required unanimity of the jury in all matters involving more than three hundred dollars. Of course, now in Ohio, we have a jury of nine men. This is the entering wedge, in Ohio. We still have the unwieldy jury of twelve men, but only nine need concur in the verdict. But why should nine men be required ? As I say, this is an instrumentality that is both unwieldy and very expensive, and I am unable to see that the mere logic of numbers can be efficient in itself. My deliberate conviction is, that a jury of much less than twelve might properly be substituted for the old, historic twelve of the Hebrews, and I think that the evolution of the future jury will be in the line of the reduction of the number of jurors. The prime source of whatever virtue there lies in jury trials, lies in the fact that the jury, in their findings, are controlled by the inerrancy of instinct or intuition, as distinguished from the more formal processes of reasoning, or induction. I am convinced that if the average jury were called upon to state the reasons upon which their findings are based, very few verdicts would stand. I am heretical enough to believe that our canon which forbids the compelling of any citizen to testify against himself is founded neither in the dictates of reason nor the teachings of experience. I think this canon runs counter to both. More than two thousand years ago Socrates called attention to the fact that it is as much the duty of a citizen to tell of his own offenses, as of the offenses of his neighbor. Practically our system does not produce good results. A man is arrested on a charge of murder, put into a cell, sends for a lawyer, his lawyer tells him, usually, "Say nothing." After considerable delay, a trial is had, and his guilt or innocence becomes manifest. In many parts of Europe, the very reverse takes place. Upon the instant of a man's arrest, he is summoned before a magistrate, subjected to cross-examination, and, if he is innocent, his innocence at once becomes appar- The Bench and Bar of Northern Ohio - 27 ent. They thus avoid the useless, annoying and irksome delays incident to our method of practice. I may be sinning against the ancient and venerable traditions of the common law, but I am convinced that our methods of procedure in this respect are radically wrong. I was much interested, not long ago, to learn that, during the Middle Ages, the money changers of the Rialto bridge, in Venice, sat upon small benches, or "bancos," as they were called, and from that word "banco" we get our modern words, "bank" and "bench.". When a money changer was unfortunate, and he became insolvent, they broke his bench, and he became "banco ruptum," hence our modern word "bankrupt." The history of the bill of exchange is of interest. During medieval times, if a Hebrew wished to transmit money from one country into another he did not take it himself ; he did not dare to, because, if he had, and the authorities of the other country found he had money, they would confiscate it. So, to avoid such disaster, the Hebrew would write a letter to a correspondent, another Hebrew, in another country, deliver the letter to a third person, and, upon presentation of that letter, the amount of money would be paid. This is the origin of the bill of exchange. In swearing witnesses we require them to raise their right hand, with the palm spread out, uplifted. I find that the origin of this custom was that it was conceived that the open palm, thus held up, was a direct appeal to the Deity, and hence the binding obligation of an oath. Our word "indenture," rarely used now, but frequently used in the text books of the law, has an interesting origin. If a person desired to make a draft upon a distant bank, he would go to a local bank, and they would draw the draft, and then cut it in the center, indenting it ; cutting it in a zigzag sort of way. One half they would transmit to their correspondent, and the other they would deliver to the person to whom the money was to be paid. Such person would present it to the bank, and, if his side fitted into the interstices of the half sent to the correspondent, they would pay the draft. The impression is quite general in this country, that in Europe their methods of judicial administration are much slower and more elaborate than ours. Such, however, is not the case. While we were going through the solemn farce of trying Thaw for the murder of Stanford White, a trial which occupied well nigh three months, while that case was in progress, a man went into a drygoods store in London and shot the proprietor, killing him instantly. He was arrested, indicted, arraigned, tried, convicted, and sentenced, the same day ; while we were enacting that solemn farce of the trial of Thaw. In this country, under such circumstances, that case would have occupied the courts, in one way or another, for months ; so that, when we plume ourselves upon our expeditious methods, on this side of the water, and condemn the methods of the older world as effete and outworn, we are, in some instances, at least, reckoning without our host. Some years ago, when in London, I went to the Old Bailey, I found it difficult to get in, the court room being crowded, but I told the guard that I was an American lawyer, and had been reading about the Old Bailey for many years ; and that statement seemed to appeal to the guard, and he said, "I could get you into the witnesss room, and from there you can edge your way into the trial room." A German 28 - The Bench and Bar of Northern Ohio and an American were on trial for obtaining 17,000 pounds, by false pretences from Lord Somebody, and I remember that the florid faces of the young barristers looked almost uncanny under their grey wigs. The trial was presided over by Judge Bosanquet, who had the reputation of being the ablest criminal judge in England. During the course of three hours not a single objection to the admission of evidence was interposed, nor did the court have to pass upon a question of the admission of evidence, and I remember that I was amazed when the venerable judge wheeled in his chair, and, looking toward the witness, who stood in the witness dock, said : "Sir, did you conceive that you had authority to make that representation ?" a question to which instant objection would be made in any criminal court here, and the objection would be promptly sustained. Rome is the mother of law, and, of course, when I. got to Rome, I went to the Roman courts. I went into one room, which would answer to our conception of Room No. 1, where miscellaneous business was transacted. I expected to be subdued by the solemnity and decorum of the court, but imagine my amazement when I found that half a dozen bevies of lawyers were gathered together in different parts of the room, all of them engaged in conversation in the usual tone of voice, and the hubbub was so great that I did not see how it was possible for the court to do business, yet the court did transact business, amid that infinite babel of confused noises of conversation ; so that I had to abandon my preconceived notions of the solemnity of judicial procedure in the "Eternal City." I remember that in Granada, Spain, I spoke to the proprietor of our hotel, and inquired of him where I could find the court house. I was unable to make him understand what I meant. At last his eyes lighted up. "Yes ; yes, sir ;" he said ; "Palacio Justicia (Palace of Justice) !" I went into the courts there. I saw them swearing witnesses upon the crucifix. They invested the administration of the oath with every imaginable religious ceremonial. Some time ago, I delivered an address to the Cleveland Bar Association, parts of which have been incorporated in this article. The close of that address was more or less admired, and I have been requested to include it here : Westward the course of empire takes its way ; The first four acts already past, The fifth shall close the drama with the day ; Time's noblest effort is the last. The fifth shall close the drama with the day ! America holds the key of the future. Gone, and gone forever, is the glory that was Greece ! Gone, and gone forever, is the grandeur that was Rome ! The shuttles of fate ply back and forth through the many colored threads of destiny, weaving out the splendid tapestry of the future, of free institutions in America. "No pent-up Utica confines our powers, but the whole vast continent is ours." "Happy, proud America! The lightnings of heaven yielded to your philosophy ; the temptation of earth cannto seduce your patriotism." The Bench and Bar of Northern Ohio - 29 "America," says Emerson, "is another word for opportunity." The social strata of the old world are like the geologic strata in the formation of the crust of the earth. Way down at the bottom stand the peasant and the laborer, and upon their work-weary, bowed and burdened shoulders rest the other strata—First, that of the artisan and the mechanic, and upon that the merchant and the manufacturer, and upon that the gentry ; and higher still, the nobility, and last, royalty—all resting at last upon the tired shoulders of the bowed and burdened peasant and laborer ; and so hard, granitic, immovable and hopeless are the conditions there that but little hope can be entertained by one in the lowest stratum of their social order ever to rise beyond that caste in which his fortunes may have fallen by the decrees of chance. Here, however, the conditions are reversed ; for here everything is as fluid as the sea, for every drop may rise, and a drop in the profoundest depths of the sea may rise and rise until it sparkles on the crest of the highest wave. Take an illustration : Over in Geauga county a farmer who had cleared a few acres in the wilderness reclaimed it and put upon it the stamp of civilization, a farmer who had a wife and four sons ; he was stricken with sudden illness, and as he lay upon his bed of death, he called his wife and said : "I am dying, Eliza, dying. I have planted four saplings (referring to his four sons) in these woods, and, dying,I leave them to your care." There was a gasp of stifled breathing, a shudder, and the glassy stare of the newly dead, and the brave soul of the man passed to the beyond. Broken-heartedly but courageously, the mother took up the task of rearing those four sons, tending those four saplings in the woods, and by and by people began to say, "Look, see how that sapling is beginning to "grow," and from year to year it waxed stronger and stronger. The milder ministries of nature, sunshine and shadow, the dew and the rain,' touched its leaves to a livelier tint of green, and the harsher ministries, the stress of the tempest, the lash of the tornado, and the pulse of the storm, served only to send its roots deeper and deeper into the soil, until by and by that sapling stood a mighty oak, and seventy millions of the freest people on the great round globe—seventy millions of uncrowned kings—were proud, proud, proud to bask under the name and fame, the genius and the high renown of James A. Garfield of Ohio. OHIO'S FIRST ORGANIC LAW THE ORDINANCE OF 1787 A HISTORY of the Bench and Bar of the Northern District of Ohio has its inception back in that distant past, when the country was inhabited by savages, and was one vast forest dotted here and there with streams well stocked with fish and uncultivated plains that are now either fertile farms or the sites of thriving and prosperous municipalities. Such a history in fact may be said to date back to that memorable date, July 13, 1787, when Congress enacted the law, which we know as the Ordinance of 1787. That measure is further known as "the most notable law ever enacted by the representatives of the American people." It is the first organic law of the Western Reserve ; it has stood the test of time, and still endures in spirit in the constitution of Ohio, and the constitutions of the other states that were carved out of the great Northwest Territory. That ordinance marked the beginning of one of the most extraordinary growths ever known in territorial expansion. The measure is especially noted for three great provisions of all good government—its guarantee of freedom of worship ; its perpetual prohibition of human slavery, and the great prominence given to schools and education in these words : "Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Three more important provisions for the government of mankind could hardly be devised, and it is to be noted that the ordinance settled the slavery question for the Northwest Territory in precisely the same manner that it was settled many years later in the United States, after four years of bitter and destructive warfare. Before the enactment of the Ordinance of 1787, conditions were such as to discourage the hardy settlers of the east from crossing the Appalachian mountains and entering the great primeval country that stretched out for miles to the west. At the close of the French and Indian war, while the outcome of Pontiac's conspiracy was still uncertain, the policy of the English royal government was defined in a proclamation that was designed clearly to placate the Indians, and to prevent the English colonies spreading to the west. Under this proclamation, governments were arranged for Quebec and for east and west Florida, and then. it was announced : "It is our royal will and pleasure that no governor or commander- The Bench and Bar of Northern Ohio - 31 in-chief of our colonies, or plantations in America do presume for the present to grant warrants of survey or pass patents for any lands beyond the heads or sources of any of the rivers that fall into the Atlantic ocean from the west or northwest ; or upon. any lands whatsoever, .which have not been ceded or purchased by us." etc. The American Indians had found the Northwest. Territory a happy hunting ground indeed, and they viewed with alarm and with considerable anger the gradual westward march of Anglo-Saxons despite no general effort on the part of the mother government across the waters to colonize the section. While the first object of the proclamation was to assure the Indian that the royal government did not wish to invade the Indians' happy hunting.. grounds, another design of the government was to maintain the Mississippi valley a wilderness. From other sources it would appear that th.e English govern-. ment desired to curb the roaming instincts of the colonists, and to keep them along the Atlantic Seaboard, where they could be handled with less difficulty than if they were scattered about the length and width of the great American continent. Then was passed the Ordinance of 1787. and the dam, which had stood as a barrier against the whites, broke.- Immediately after. the enactment of the measure The Ohio Company purchased 1,500,, 000 acres of land on the Ohio river from the Muskingum west, and the black, canvas-topped wagons started for the Ohio country. On April 7, 1788 the emigrants landed at the mouth of the Mus- kingum river, pinned a code of laws for the Colony to a tree, and named the settlement Marietta, after Marie Antoinette, one of the last acts of reverence vouchsafed that unhappy queen. That was but the vanguard for a rush of settlers from the east and for hundreds of settlements that combined to make the north and eastern part of Ohio one of the richest and most populous sections of the United States. But this is not to be a history of the settlement of northern Ohio, but rather a story of the development of the Bench and Bar in that territory. Co-related with such a histor y are the organic laws under which the country has been governed since that early day when white men and women flocked into it in such numbers that laws and courts were necessary to obtain justice and fair treatment for all. The very first constitution, so to speak, that Ohio had, was the Ordinance of 1787. The first section of it is the enacting clause and it is well to notice the wording. It does not say "Be it enacted," but it says "Be it ordained by the United States in Congress assembled that said territory, for the purpose of temporary government, be one district; subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient." The section quoted before is the first section of this great state document, and it is followed by thirteen other sections; making fourteen in all. The first twelve of these provide for the conduct of the government of the territory. 32 - The Bench and Bar of Northern Ohio Particular attention was given in the ordinance to property rights and the disposition of estates. If a man died without will, one third of his estate was given to his widow, and the remainder in .equal shares to his children, but if he died without such heirs, the property was divided equally among next of kin in equal degrees. Provisions were made also for the recording of wills and deeds so that legal titles could be established.   Congress was given power to appoint a governor for a term of three years and a secretary for a term of four years. The former must have a freehold estate of 1;000 acres of land, and the latter Of 500 acres, while holding office. The secretary was required to report to Congress every six months 'about conditions in the territory, and he also was obliged to keep a record of all acts and laws passed by the legislature, and all proceedings of the government and his department. A court of three judges was to be appointed by Congress to serve during good behavior. As qualifications for office holding they were required to have residence in the district, and freehold estate of 500 acres of land so long as they were in office. Legislative functions were to be exercised by a general assembly, to be chosen by the people as soon as there should be 5,000 free male inhabitants in the district. The apportionment was one member for each 500 population of free male inhabitants. The governor and the judges had power to select such laws from the original states as might be necessary and administer them in the territory until the legislature provided for was chosen. The general assembly, when it came into existence, after the necessary 5,000 free males had taken up their residence in this wide expanse of territory, was to have authority to alter and eliminate such laws promulgated by the governor and judges. This tribunal of three judges and the governor of the territory, which was known as the territorial legislative council, continued to make laws and the judges to construe them until 1798, when Governor St. Clair issued a proclamation that the territory .contained the requisite number of inhabitants, and called on the people to elect a general assembly. The first legislative body to assemble in the 'state of Ohio came together in the city. of Cincinnati on September 16, 1799 at which time the authority of the governor and judges to promulgate laws ceased. Under the Ordinance of 1787, the representatives for the legislature, as soon as they were chosen, were required to meet and name ten men residing in the district, each owning 500 acres of land, and to report -the names to Congress. From these names five were to be selected by Congress to form a territorial council. The general assembly for the district was to consist of this council, the house of representatives and the governor, and this body had authority to make all laws for the territory and the government of it, provided such measures were not in conflict with the ordinance. The governor's right of veto in Ohio dates back to this ordinance, and although that executive was deprived of it for a while, yet the experience did not prove satisfactory, and the The Bench and Bar. of Northern Ohio - 33 check on legislative function, which was so wisely written into the ordinance, was restored in later years. The Northwest Territory was given representation in Congress, the council and legislature having power to elect a delegate, but the representative had no power to vote, although he could participate in debates. The great purpose of this remarkable state document was thus set forth, after the few necessary matters before related were provided for : "And, for extending the fundamental principles' of civil and religious liberty, which form the basis where these republics, their laws and constitutions, are erected ; to fix and establish those principles as the basis of all laws, constitutions and governments, which forever hereafter shall be formed in said territory; to provide .also for the establishment of states, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with the original states, at as early periods as may be consistent with the general interest ; it is hereby ordained and declared by the authority aforesaid that the following articles shall he considered as articles of compact between the original states and the people and states in the said territory and forever remain unalterable, unless by common con- sent." Article I in substance provided that no one should ever be disturbed or molested on account of his religious belief or mode of worship so long as he conducted himself in a peaceable and orderly mann er. Article II obtained security for property and person for all inhabitants in the territory. The right of habeas corpus was given, and no man could be imprisoned for debt or be imprisoned and refused bail, except in the event that the charge constituted a capital crime. No cruel or inhuman punishment was to be permitted within the territory and all fines for offence were to be moderate. Neither liberty nor property -could be taken from any one within the district except by due process of law and by judgment of his peers. As a further safeguard it was provided that if it ever became necessary in the public interest to take possession of .a man's time or his property, he should have full pay for the same. Article III contained a strong declaration for the, necessity of establishing and maintaining adequate educational facilities for the people. This article also reflected the sense of justice of the men who framed the ordinance, as it provided for the security of the land and property of the Indians and for laws, founded on humanity and right, to protect the Red Men in every way. Article IV made it plain that secession was not to be tolerated, the framers of the ordinance taking the position so staunchly maintained by President Abraham Lincoln many years later. That the indissolubility of the Union was in the mind of the statesmen of those early days of the American Republic is evident from these words quoted from Article IV.: "Shall forever remain a part of the Confederacy of the United States;" the reference being to the states formed out of the territory. At the time this ordinance was adopted the United States 34 - The Bench and Bar of Northern Ohio was then a confederacy operating under the Articles of the Confederation, which, for two years after this period, was the supreme law of the land. The people of the territory were to pay a just portion of the public debt already created, or to be made ; and taxes for this purpose were to be levied by the same measure that was supplied to the original states. To the United States was preserved the right to dispose of the soil, and to give clear title to the same. In the interest of commerce between the states and the public, the Ordinance specifically provided that the navigable waterways should be kept open and free from all taxes or duty to all citizens of the United States, and a prohibition was levied against taxing non-residents more heavily than those who resided within the territory. Article V provided for the formation of states by Congress when the new country had been settled to an extent warranting such action. Provision was made for the forming of three or five states from the Northwest Territory, and Congress even went so far in the ordinance, as to fix the boundary lines of each. The right of statehood was preserved in a clause, which authorized admittance to the Union when any of the -sections bounded in the ordinance should have 60,000 inhabitants, a permanent constitution and state government to be formed ; provided that such government be republican in form and in, conformity to the ordinance. Latitude was given Congress, however, to admit a section of the territory to statehood before the population reached 60,000 if it was deemed wise. Ohio, being the section that lay nearest to the English colonies in the east, settled up quickly and was the first to ask for admission, obtaining statehood before it acquired 60,000 in habitants. Article VI settled the slavery question for all time in the territory by prohibiting every form of human slavery except such as might be imposed as a punishment for crime, for which the party had to be duly convicted. The institution of slavery in the southern states was recognized, however, and it was provided in the ordinance that if a slave should escape from his master and seek refuge in the territory, he might lawfully be reclaimed, and be taken 'to the domicile of his master. Although the ordinance contains many principles that are to be found in the constitution of Ohio and a number of other states, it might be stated that two of the principal features of the measure have been discarded in Ohio—namely, the provision which bestowed extraordinary powers in different ways on the governor, and also that which made property-owning a qualification for holding public office in the territory,- as well as for all who should be allowed, to vote for members of the legislature. The great power of the governor had become obnoxious to the people when the time arrived for the formation of the first state, and the property qualification also was not regarded with popular favor. By the first constitution, that of 1802, the governor was shorn of about all the power he had ever had, and he was left with little but the name and. honor. The property qualification for holding office also was discarded and it has remained a dead issue in this state ever since. THE FIRST COURT IN OHIO THE first court in Ohio was created under a provision of the Ordinance of 1787, the section on this subject reading as follows : "There shall be appointed a court to consist of three . judges, two of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in 500 acres of land, while in the exercise of their offices, and their commissions shall continue in force during good behavior. The governor and judges, or a majority of them, shall adopt and publish in the district, such laws of the original states,. criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress from time to time, which said laws shall be in force in the district until the organization of the general assembly therein unless disapproved of by Congress; but afterward, the legislature shall have authority to alter them as they shall see fit." It will be noted from the above section. that the ordinance did not confer on the governor and the judges authority to enact laws, but to adopt and promulgate measures that were in force in the original states ; but this power in practice really amounted to a grant to legislate and so the judges of the first court in the territory, which embraced Ohio and several others of the present states, in conjunction with the governor, legislated for the country as well as :administered justice. The laws from 1781 to 1799 were thus enacted Acting. under .the provision of the ordinance, Congress; on October 16, 1787; appointed Samuel H. Parsons, John Armstrong and James Varnum, judges for the new territory. Judge Parsons was born in Connecticut and he. was an alumnus of Harvard university. In 1759 he was admitted to. the bar and he became one of the foremost lawyers of his time before he took a seat on.the bench of the new court. Following the course pursued by so many lawyers, Judge Parsons entered politics and he served many years as a member of the Connecticut legislature. In his biography, credit is given him for.having "Originated the plan of forming the first Congress" which was the forerunner of the Continental Congress. In the Revolutionary war he was a conspicuous figure, conducting himself with great gallantry on. the field of battle, and, when he retired at the close of the long struggle, he was a major-general.   The legal talents of Judge Parsons were recognized when it came to the selection of the military court, which tried the notorious Major Andre on the charge of being a British spy. Returning to civil life from the Revolutionary war, Judge Parsons engaged 36 - The Bench and Bar of Northern Ohio in the practice of law, but the government again called him and in 1785 he was appointed by Congress a commissioner to treat with the Miami Indians. His appointment to the new court in the Northwest Territory followed two years later. Judge Armstrong, who was born in Carlisle, Pennsylvania, and was a student at Princeton college at the outbreak of the Revolutionary war, resigned from the court after a few months' service. The judge, then a young man of scholarly attainments, left his studies at Princeton to enter the American army. His military record was marred by the charge that he wrote the famous Newburg letters for the purpose of stirring up and fanning the flame of discontent then existing in the minds and hearts of officers in the American army. The feeling became so widespread and had such a bad influence on the gallant soldiers who were fighting the struggling young nation's battles that it required the personal efforts of the great General Washington to adjust the matter. Agriculture appealed strongly to the judge and after resigning from the bench he spent many years on his farm. Subsequently he was elected a United States senator and chosen minister to France. He was the author of several standard works. Judge Varnum, according to history, was the ablest and most brilliant of the three judges who sat on this first bench. Like his associates on the bench, Judge Varnum was a veteran of the Revolutionary war, a native of Massachusetts, and a graduate of Brown university. Laying aside his musket at the close of the war, Judge Varnum turned to the law and it was not long until he was known as the leading lawyer of this state. His colleagues in the Continental Congress now and then referred to him as a man of ‘`uncommon talents and of most brilliant eloquence."' The truth of this assertion is borne out in a copy of an oration which he delivered at Marietta, Ohio, July 4th, 1788, while he was a member of the first territorial court. This oration sustains fully his reputation as a man of scholarly attainments and one possessing extraordinary oratorical powers. The men who sat on this bench were all scholars. They had been educated in the best universities in the land. They already were known as men of probity and were learned in the law before they went on the bench. No men better equipped for the discharge of their high duties could be found, and it is to be noted that the revolutionary soldiers, like those gallant men who bore arms for their government in subsequent struggles, exercised a guiding, if not controlling, influence in public affairs. Under the judicial system provided for the territory, the supreme court was required to hold a term of court in Marietta, Cincinnati, Vincennes and Detroit, each year. The judges made their journeys on horseback, usually accompanied by members of the bar, and the travelers had some merry times, despite the handi- caps under which they traveled. These journeys served to cultivate intimate friendships and lasting good will. There were few law books in those days, the judges and lawyers carrying most of the law in their heads. Judge Cleves Symmes was appointed by Congress to succeed The Bench and Bar of Northern Ohio - 37 Judge Armstrong. Judge Symmes was a distinguished jurist in New Jersey at the time of his appointment to, the territorial court, and he had served as a delegate to the Continental Congress. He was a native of New York and his educational attainments matched those of his distinguished colleagues on the bench. The first appointments to the bench were, as has been stated, made by Congress, under the, articles of confederation, and the tenure expired upon the election and induction into office of the first president, George Washington. Judge Varnum had died in the meantime, and President Washington re-appointed Judges Parsons and Symmes and chose William Barton to fill the vacancy on the bench caused by the death 'of Judge Varnum. Judge Barton declined the position and George Turner was appointed to take his place. Shortly thereafter, Judge Parsons died, and it was, then that a great revolutionary hero, General Rufus Putnam, was appointed as his successor. The general resigned from the bench after serving several years to become surveyor general, and he was succeeded by Joseph Gillman. The resignation of Judge Turner in 1798 paved the way for the appointment to the court of Return: Jonathan Meigs, a graduate of Yale college, and who subsequently became one of the most illustrious sons of the Buckeye state—in fact his career is one of the most distinguished to be found in the accomplishments of a list of men who made history in the days of the Northwest Territory. Judge Meigs become a judge of the Ohio supreme court when that tribunal came into being after the adoption of the first constitution. He served also as governor of Ohio, United States judge in a Michigan district, a general in the war of 1812, a United States senator and a member of the cabinets of Presidents Madison and Monroe. A county in southern Ohio bears his name, and this man's name has been written into the history of Ohio and the Northwest Territory in deeds the memory of which will never be eradicated. The laws under which the hardy pioneers of this territory lived were drastic and harsh in the extreme. The settlers were a religious people on the whole. They lived plainly and simply and close to nature, and inconsequential fractures of the law or misconduct were, in those days, regarded as much more serious than law violations of equal degree would be in this day. Deeds that were punishable in those days are not now in the criminal codes. Each new generation had certain .new standards and beliefs that it proceeded to have written into law for the courts to construe, and while the pendulum may be said to now and then swing backward and forward, yet in great moral and religious 'movements the advance has been steadily forward. The same has been true of America, and back of this progress can be seen the principle that a great majority of the men and women of this country are well intentioned and right thinking people. That the laws of early Ohio were harsh and severe, that the settlers often took the administration of the law into their own hands can not be held- against the men in those days. The human timber was as good in those days as it is today ; the environment 38 - The Bench and Bar of Northern Ohio. was different. The sparsely settled country, the presence. of Indians, the primeval manner of living and the rough and hardy life were reflected in the harsh and drastic laws. The judges and justices of those early days were, as a rule, men of ability, energy and of profound common sense. In fact the latter quality was needed to a large degree, for with the scarcity of law the justices frequently . had to resort to their sense of right and wrong to settle controversies.. Every justice had to be a sort of traveling Solomon, and the pioneers, with their love of justice and respect for governmental authority, respected and obeyed these curbstone opinions and decisions. The duties of the pioneer judges were arduous and varied, and they were poorly compensated. They shared their discomforts with the lawyers in traveling about by primitive methods from county seat to county seat, and the distances in those days between settlements were far greater than they are today. There were none of the conveniences that have come in later days to comfort the traveler, and the judges had to accept any manner of accommodation that could be found. Law books and precedents were few ; but oratory abounded and it was marked by directness and force, The lawyer was allowed a latitude in his remarks that would not be countenanced today, and the pleas were featured by acting and demonstrations that all tended to develop the individuality: of the lawyer. The successful attorney on account of this latitude became a figure of renown ; he was crowned with a halo and when he came to town he was greeted as an illustrious character. Men and women flocked to the courtroom in those days, when they could spare the time from their work of clearing the forest or tilling the soil, to hear the lawyer talk and the judge expound his theories of jurisprudence. Rough wit and bald logic were relied on largely to win the juries, and results were usually reached much more quickly than today, and with, no doubt, as much justice. This training was exceedingly fruitful of talent and the Bench and Bar of that early period contained names that enriched history and careers were achieved that stand forth as enduring monuments of fame. The territorial court, as it was organized under the provisions of the Ordinance of 1787, endured until 1799, and while many of the acts promulgated in that period were designed to meet the peculiar conditions that existed, yet many of them have been adopted in substance or in toto and today are in the general code of our state or in the constitution. The very first law published by this territorial court bears the date of July 25, 1788, and it was promulgated at Marietta, the oldest city in Ohio. The settlers early recognized the need of .a military force to be available at all times. for the support of organized government. The doctrine of "military preparedness" was indeed an issue in those days and there were no delays or procrastinations in preparing, although the country had just emerged from one long and bloody struggle that tried men's souls and made them weary of warfare. The very first law that was enacted by the territorial court was The Bench and Bar of Northern Ohio - 39 entitled "A law for regulating and establishing the militia in the territory of the United States, northwest of the Ohio river." The measure was enacted at Marietta, Ohio, by Governor Arthur St. Clair, the first executive of the territory, and by the Honorables Samuel Holden Parsons and James Mitchell Varnum, judges of the court. Men of brains and learning in those days had their differences and clashes as they do today, and a difference of opinion arose between Governor St. Clair and the judges concerning the extent of their power in adopting laws. The governor maintained that the council could only adopt such laws as were in effect in other states in the Union, while the judges insisted that their authority was not so limited, and they outvoted the executive. The matter finally was referred to Congress and the governor was sustained. Inferior to the territorial or supreme court were courts of common pleas for each county, and the courts of 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 general quarter sessions of the peace 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. This court had a limited criminal jurisdiction. Single judges of the common pleas and single justices of the quarter sessions were clothed with certain civil and criminal powers to be exercised out of court. In addition to these tribunals, each county had a judge of probate, clothed with the ordinary jurisdiction of a probate court. These courts, the first of the kind in the Northwest Territory and in Ohio also—the ground work on which our whole judicial system was built—were authorized in a law promulgated on August 23, 1788. The first court to function in the territory was the court of common pleas, which convened in Marietta on the first Tuesday of September, 1788. An account is given of this event, as follows, by one who is said to have been an eye witness, of the ceremony of convening court : "On that memorable first Tuesday of September, 1788, the citizens, Governor St. Clair and the other territorial officers and military from Fort Harmar being assembled 'at the Point, a procession was formed, and, as became the occasion, with Colonel Ebenezer Sproat, sheriff, with drawn sword and wand of office, at the head, marched up a path which had been cut through the forest, to the hall in the northwest block house of Campus Martius, where the whole" countermarched, and the judges, General Rufus Putnam and General Samuel Tupper, took their seats on the high bench. Prayer was fittingly offered by, Reverend Manasseh Cutler, who was on a visit to the new colony, after which the commissions of the judges, clerks and sheriff, were read, and the opening proclaimed in deep tones by Colonel Sproat in these words : " 'Oyez ! a court is opened for the administration of evenhanded justice to the poor and rich, to the guilty and the innocent, 40 - The Bench and Bar of Northern Ohio without respect of persons ; none to be punished without trial by their peers, and then in pursuance of the laws and evidence in the case.' " This was the opening of the first court of common pleas in the state of Ohio, and the words are far different from those now used when all present are commanded to arise and the bailiff speaks the words that brings the court to order and opens the session. It will be seen that the people of those days expected much of the court of common pleas. They clothed it with exalted dignity, looked up to, and revered it, as a source from whence would flow justice for all. The Indian chiefs of the territory, who had been invited to the ceremony by Governor St. Clair, were curious witnesses of the establishment of the first court, and, as they are a people who like pomp and ceremony, they undoubtedly were much impressed at this introduction of a strange custom and institution into the territory that had so long been their home. One week later, on the second Tuesday of September, 1788, the first session of the court of quarter sessions was held. According to record that has been left, it was convened in the southeast block house that was occupied by Colonel E. Batelle, a name that is influential to this day in southeastern Ohio. The usual proclamation of the sheriff preceded the opening of the court and the clerk of the court read the commissions of the judges ; General Rufus Putnam and General Samuel Tupper were appointed justices of the quorum, and Isaac Pearce, Thomas Lord and R. G. Meigs, assistant justices. Meigs was clerk of the court. The first lawyer admitted to the practice of law in the Northwest Territory was Paul Fearing, of Marietta, and he also was appointed, by the court, attorney for the United States in Washington county. Although he was at the time without competition in all the territory that at that time made up Washington county he was able to take care of all the business that arose, including private practice and to take care of his duties as legal representative in the county for the United States Government. The ceremony of admission took place at Marietta in 1788. He received a certificate which was signed by Judges Mitchell and Varnum. The following oath was subscribed to by the attorney : "I swear that I will do no falsehood nor do any in the courts of justice ; and if I know of any intention to commit any I will give knowledge thereof to the justices of said courts, or some of them, that it may be prevented. I will not willingly or wittingly promote or sue any false, groundless or unlawful suit, nor give aid or consent to the same, and I will conduct myself in the office of attorney with the said courts according to the best of my knowledge and discretion, and with all good fidelity, as well to the courts as to my clients, so help me, God." The records disclose that Mr. Fearing must have been considerably impressed with the dignity of his profession and the obligations he had assumed, for in his first effort in argument before the supreme court, he said : "May it please your honors—May it please your honors—I have forgotten what I intended to speak." That was the beginning and end of The Bench and Bar of Northern Ohio - 41 his argument, but this unsuccessful attempt at oratory should not be accepted as an indication of his ability as an attorney-at-law. For later Mr. Fearing became a successful lawyer, practicing in all the courts of the territory. He was reliable in his dealings with his clients and opponents. He was known as a safe and conservative man and he was honored several times by the electorate of his congressional district and county. He served in the Ohio legislature in 1799-01 and in 1804 he was elected to Congress. He served one term as a probate judge and in 1810 he was an associate judge. Born in Massachusetts, Mr. Fearing graduated from Harvard, read law in Windham, Connecticut, and he came to Marietta in June, 1788. Then came the empaneling of the first grand jury and although the matters that came to the attention of this first body required but little of the time of the members, yet the jurors were impressed with the dignity of their position and the obligation that rested on them. They listened quietly and intently to the charge that was given with much dignity and propriety by Judge Putnam and at one o'clock the members filed slowly out of the court room to commence their investigation. The court adjourned for a half hour, and at one-thirty o'clock the grand jurors, having completed their investigation, entered the court room and presented to the judges a written report, which, after being read, was ordered filed in the public records. Judge Putnam, after the custom now followed, made suitable reply to the jurors, in the course of which he thanked them for their service. There being no further business the court adjourned sine die. The members of this first grand jury in the state of Ohio were : William Stacy, Nathaniel Cushing, Nathaniel Goodale, Charles Knowled, Aselm Tupper, Jonathan Stone, Oliver Rice, Ezra Lunt, John Matthews, George Ingersol, Jonathan Devol, Samuel Stebbins, Jethro Putnam and Jabez True. One week after the publication of the law creating the court of quarter sessions, the act establishing a probate court was promulgated. On September 6, 1788, there was published a "Law respecting crimes and punishments." That measure presents a study in what is regarded today as curious legislation. The drastic character of the provisions would indicate that while the great majority of the pioneers were respectors of the law, those who stepped outside the bounds of conduct provided by the law were very bad indeed, and that only the most severe laws and forms of punishment would operate to restrain the lawless and careless. One section of this measure provided a fine of $500 and flogging of not to exceed thirty-nine stripes for one who was convicted on a charge of participating in mob violence. The culprit in such cases was placed in a straight-jacket, it would seem, as he was required by law to give security for good behavior, and in default of security he was to be imprisoned in jail for not exceeding three years. Burglary, as it is today, was considered a heinous offense and the law provided that if any violence to the person was committed or attempted in perpetrating the burglary, the offender's property, 42 - The Bench and Bar of Northern Ohio upon conviction, real and personal, was to be forfeited to the territory, the injured person to be recompensed from it, and a jail sentence of not to exceed forty years was added. The law of September 6, 1788, in addition to punishing burglary, provided penalties for murder, manslaughter, treason, arson, riots, robbery, unlawful assemblies, perjury, subordination of perjury and a host of other offenses. Although those were the days when stimulants in the form of alcoholic beverages were passed about at socials and corn huskings, and men at work stopped now and then to take a nip from the jug, drunkenness was punished by a fine of five dimes for the first offense, and for every succeeding offense the sum of one dollar, and "in either case upon the offender's refusal or neglect to pay the fine, he was to be set in the stocks for the space of one hour." Although the pioneers were a hardy lot and lived amidst conditions that brought out the rough side of their natures, an act was published against improper and profane language in the following words : "Whereas, idle, vain and obscene conversation, profane cursing and swearing, and more especially irreverently mentioning, calling upon or invoking the Sacred Name by any of the divine characters in which He had graciously consented to reveal His infinitely beneficient purposes to mankind, are repugnant to every moral sentiment, subversive of every civil obligation, inconsistent with the ornaments of polished life, and abhorrent to the principles of the most benevolent religion, it is expected therefore, if crimes of this kind should exist, they will find no encouragement, contenance or approbation in this territory. It is strictly enjoined upon all officers and ministers of justice, upon parents and other heads of families, and upon others of every description that they abstain from practices so vile and irrational, and that by example and precept, to the utmost of their power, they prevent the necessity of adopting and punishing laws with penalty upon this head. And it is hereby declared that government will consider as unworthy its confidence all those who may obstinately violate these injunctions." The people of these early days were religious, and they spent much more time at church on the Sabbath than do those of the present generation. Evidence of this religious inclination may be gathered from the following act relative to the observance of the Sabbath : "Whereas, mankind in every stage of informed society has consecrated certain portions of time to the particular cultivation of the social virtues, and the public adoration and worship of the common parent of the universe ; and 'whereas, a practice so rational in itself, and conformable to the divine precepts is greatly conducive to civilization and piety, and, whereas, for the advancement of such important and interesting purposes, most of the christian world have set apart the first day of the week as a day of rest from common labor and pursuits, it is, therefore, enjoined that all servile labor, works of necessity and charity only excepted, be wholly abstained from on that clay." The Bench and Bar of Northern Ohio - 43 The building and establishing of a court house, county jail, pillories, whipping post and stocks in every county was among the important acts adopted. Another section, subjecting real estate to execution for debt, was a part of the code of these early days before the state of Ohio was organized. Although the litigants were few in those early days and the dockets were abbreviated, there evidently was considerable demand for elimination of delays in the trials of law suits, for one of the laws promulgated by the legislative council was designed for the purpose of avoiding unnecessary delays in hearing of cases after issues were joined. Still another, limiting the time for commencing civil actions was enacted December 28, 1788. This law was disapproved by Congress, May 8, 1792, and another measure on the same subject that was promulgated in 1795 was repealed by the territorial legislature as unconstitutional. No law on this subject was afterward promulgated until in 1803, when the general assembly of Ohio passed. an act of limitation, and we have since had such measures in operation. Although the conditions were far different in those days under the Ordinance of 1787 than at present, yet a perusal of the pages of history of the distant past reveal that the courts dealt with many subjects that are live issues in these days. For instance, there are sections of our general code that regulate the fees to be charged by attorneys-at-law, and so there were in those days. One act on this subject that was promulgated under the Ordinance of 1787 regulated the fees. of officers of the court, including attorneys.. It allowed a judge of the general court, for allowing a writ of error, sixty-two and a half cents ; for every supersedeas, thirty-seven and one half cents ; the same fee was allowed for taking bail ; for taking an affidavit, twelve and one half cents ; admitting a counselor-at-law, or attorney, one dollar and twenty-five cents ; licensing a counselor-at-law, or attorney, three dollars and seventy-five cents. A retainer fee of three dollars and fifty cents was allowed an attorney in a general court, but where several suits were brought upon one note or bond, no more than one retainer fee was allowed ; drawing warrant of attorney, twenty-eight cents ; drawing of processus and returns, twelve and a half cents ; for argument on special motion, one dollar and twenty-five cents. Attorneys in the court of common pleas were allowed twelve and a half cents for drawing a warrant of attorney ; the fee for drawing each motion was twenty-five cents ; drawing a declaration and other pleadings brought the compensation to twelve and a half cents per sheet, containing seventy-two words, and for every copy thereof, six cents additional was allowed. The attorney in thee days would not be able to make both ends meet under such a schedule of fees, nor would he be able to pay his stenographer or office rent alone were he to make such charges. But wants were simple and there was plenty to be had so that the fees were quite acceptable, for no complaint is registered against them anywhere in the history of those days. The attorney general was allowed these fees : Entering every 44 - The Bench and Bar of Northern Ohio cessal processus or nolle prosequi for each defendant, sixty-two and one half cents ; every indictment per sheet, eighteen cents ; fee on trial, three dollars ; for trial of every capital offense where life was concerned, eight dollars. By the year 1790, the population of the territory had increased to such an extent, and the litigation grown to such a volume, that an act was passed increasing the number of terms of the common pleas court from two to four, and the number of common pleas judges to not less than three or more than seven. It was about this time that the first law was enacted authorizing the judges to divide the counties into townships—the first recognition of that small political subdivision. The granting of divorces was regulated in another measure that was put into the legal code ; the partition of lands was provided and an act regulating marriage also was promulgated. In 1795 the judges and governor undertook to revise the territorial laws and to establish a complete system of statutory jurisprudence, by adoptions from the laws of the original states. They assembled for this purpose in Cincinnati in June and continued their efforts until late in August. Several changes were made in the judicial system and among them are these more important ones. The seat of the general court was fixed at Cincinnati and Marietta, and a circuit court was established with power to try, in the several counties, issues in fact pending before the superior tribunal, where alone causes could be decided finally. Orphans' courts were established, with jurisdiction along the line of that of the probate court. Laws were also adopted to. regulate judgments and executions, for the limitation of actions, for the distribution of intestate estates and for other general purposes. Finally, in order to create some great general reservoir of law and to provide for certain principles and policies that might have been overlooked, the governor and judges adopted a law providing that the common law of England and all general statutes in aid of the said law, prior to the fourth year of James I., should be in full force within the territory. The law thus adopted was an act of the Virginia legislature, passed before the Declaration of Independence, when Virginia was a British colony, and at the time of its adoption had been repealed so far as it related to the English statutes. The other laws of 1795 that were thus enacted at Cincinnati were derived principally from the statute books of Pennsylvania. From this time to the organization of the territorial legislature in 1799, there were no acts of legislation, except ten laws that were adopted in 1798. In the meantime, the population of Ohio had expanded greatly. From Marietta the settlers traveled westward. Thousands came over the Appalachian mountains and took up their abode in the territory that is now the state of Ohio. In October, 1788, John Cleves Symmes, in behalf of himself and associates, contracted with Congress for the purchase of a million acres of land adjoining the Ohio and between the Great and Little Miami rivers. Non-payment of the purchase price caused the land to revert to the government, but the matter was finally straightened out, and a patent was The Bench and Bar of Northern Ohio - 45 issued for 311,682 acres, of which 248,540 acres became the property of the patentees. The residue consisted of grants for various purposes. Not many months later, Symmes sold the site of Cincinnati to Matthias Denman, of New Jersey, who entered into a contract with Colonel Patterson and Mr. Filson, of Kentucky, for laying out a town. Filson, however, was killed by the Indians before he became entitled to any proprietary rights under the contract, which was transferred to Israel Ludlow. On the twenty-sixth of December, Patterson and Ludlow, with a small party, arrived at the site of the projected settlement. In the course of the winter, a town was surveyed and laid out by Colonel Ludlow and the courses of the streets for the future city were laid through the forest. The name, Losantville, was first given the settlement, but afterward it was changed to Cincinnati. From this time on, settlements developed quickly. The region between the Miamis, from the Ohio far up toward the sources of the Mad, river, became chequered with farms, and abounded in indications of the presence of an active and prosperous people. In 1796. Wayne county was established, including all of the northwestern part of Ohio, •a large tract in the northeastern part of Indiana, and the whole territory of Michigan. In July, 1797, Adams county was erected, and it included a large tract of land lying on both sides of the Scioto river and extending northward to Wayne. Other counties were formed out of those already set up. Before the end of 1798, the Northwestern Territory had 5,000 free resident males, and eight organized counties. The time then-1798—appeared to be ripe for the election of a general assembly. The Ordinance of 1787 provided that as soon as it was established that 5,000 free male inhabitants resided in the territory they should be authorized to elect a legislative body. No method being provided for the establishing of proof of the necessary population, Govenor St. Clair isued a proclamation on October 29, 1798, announcing that the territory contained the required number of inhabitants and calling on the people to elect representatives on the third Monday of December, 1798. The proportionment of representatives was one to every 500 voters ; but it was provided that three years' citizenship in the United States and residence in the district should be qualifications of the representatives, and they should each be the owner in fee simple of 200 acres of land in the district. Provision for a general assembly, consisting of a governor, a legislative council and a house of representatives was made in the ordinance. The council was to be made up of five members, who were to hold office for five years, unless removed before that time for cause. The council was selected in the following manner : The representatives, after being elected by the people, met at a designated place and time and nominated ten persons, each of whom also must be a freeholder of 500 acres of land. The names of the ten so nominated were sent to Congress, and the body then selected five men who sat as members of the council. Prior to the assembling of the first general assembly of the territory the representatives chosen by the electors assembled 46 - The Bench and Bar of Northern Ohio in Cincinnati on February 4, 1799, and proceeded to nominate ten men for the legislative council. The names so chosen were submitted to Governor St. Clair, and he forwarded them to the secretary of state, who, in turn, handed them over to President Adams. The latter, with the approval of the senate, appointed the following men to the first legislative council of the first territorial general assembly: Jacob Burnet and James Findlay, of Hamilton county ; Henry Vanderburgh, of Knox county ; Robert Oliver, of Washington county ; and David Vance, of Jefferson county. The first territorial general assembly members assembled at Cincinnati on September 16, 1799, for the first session, but there was not a quorum in attendance, and it was not until eight days later that the two houses organized and were ready for business. On September 16, 1799, the authority of the governor and judges to make laws for the territory ceased, and thereafter the people of the territory were governed by measurs enacted by the territorial legislature. Edward Tiffin, of Ross county, was elected by unanimous vote, speaker of the house of representatives, and Henry Vanderburgh was chosen president of the council. Judge Burnett, of Cincinnati, who was a member of this body, has given to history his impressions of the men who sat in the first legislative body, as follows : "In choosing members to the first territorial legislature, the people, in almost every instance, selected the strongest and best men in their respective counties. Party influence was scarcely felt, and it may be said with confidence, that no legislature has been chosen under the state government which contained a larger proportion of aged, intelligent men than were found in that body. Many of them, it is true, were not acquainted with the forms and practical duties of legislation, but they were strong-minded, sensible men, acquainted with the conditions and wants of the country, and could form correct opinions of the operation of any measure proposed for their consideration." The assembly, as one of its first acts, covered many subjects of neeessary legislation by approving and declaring in force many acts which had been adopted previously by the judge and governor. This legislation was followed by another measure on October 29, 1799, regulating the admission and practice of counselors-at-law and attorneys-at-law. The rule for admission was quite different than at the present time. First, the applicants produced to a judge of the general court a certificate showing that for a period of four years he had diligently and earnestly pursued the study of law under the direction of a general practitioner in the district and then he was examined. If he passed he was given a certificate, signed by two or more judges of the general court, and then he obtained a license to practice from the governor of the territory. Under this he was authorized to appear and practice in all the courts according to the laws and customs and during good behavior. This act, following the outline of that adopted by the judges and governor before set forth, retained the distinction between counselor and attorney-at-law, and their admission to practice at the general court and the court of common pleas. The The Bench and Bar of Northern Ohio - 47 judges of the court of common pleas were given authority to reprimand and punish attorneys and counselors, and every attorney or counselor-at-law, who received money for the use of client and refused to pay the same to the proper person, could be proceeded against summarily by the court. This authority is possessed by the courts today and it is known as disbarment proceedings. The second session of the first territorial general assembly met at Chillicothe, then the seat of the government, on November 3, 1800, and it adjourned on the ninth day of December in the same year. The first session of the second general assembly of the territory was held at Chillicothe on November 23, 1801, and it ended on January 23, 1802. Edward Tiffin was again honored by being elected speaker of the house of representatives and Robert Oliver was chosen president of the legislative council. This assembly adjourned to meet again in the following November, but a second session was not held, because a census was taken of the eastern division of the Northwest Territory embracing the state of Ohio and it was found that the population exceeded 45,000 persons. The sentiment for statehood, on account of differences of certain officeholders with Governor St. Clair about the latter's authority under the Ordinance of 1787, had been growing in the territory. The smouldering flame blazed forth when the governor, on December 19, 1799, addressed the general assembly and announced his dissent to eleven of the acts that had been enacted by that body. The fight continued from that time on until an appeal was dispatched to Congress for authority to call a convention for the purpose of drafting a constitution and taking. other steps necessary for the formation of a new state, and obtaining its admission to the union. Authority of Congress was given in a law entitled, "An act to enable the people of the eastern division of the territory-northwest of the River Ohio to form a constitution and state government, and for the admission of such state into the union on equal footing with the original states, and for other purposes." This measure received the approval of the president and became a law April 30, 1802. UNDER THE CONSTITUTION OF 1802 THE convention which drafted the first constitution of the state of Ohio was a business-like body of men. The members certainly can not be accused of procrastinating, for the delegates met at Chillicothe November 1, 1802, and notwithstanding the importance of the work entrusted to them and the fact that they had to set up an entire new organic law, so expeditiously did the delegates work that they were able to turn aside from their labors and adjourn on the twenty-ninth day of November, just twenty-eight days after the session convened. The constitution was not submitted to the people for ratification. The preparation of the third article of this constitution produced long discussion and may differences of opinion before an adjustment was reached. This article related to the judiciary of the infant state and the original draft came from the pen of Charles Willing Byrd, who was one of the representatives from Hamilton county. He also was secretary of the territory and afterwards the temporary successor of Governor St. Clair. The article provided for the establishment of a supreme court to sit at the capital only. This provision was objected to by delegates, who wanted justice brought to the different counties in the state, and a compromise was reached whereby the supreme court justices were to meet once a year in each county of the state. Such a provision would, under the existing means of transportation, and with the conveniences of the modern day, mean a vast amount of endeavor on the part of the supreme court justices and would cause them to mike many sacrifices in home life ; but it will have to be left to-the imagination for one to estimate the work done and the hardships endured by those early-day supreme court justices as they traveled about the state. The provision did not prove satisfactory in operation for it required the judges to be traveling half of the year, and then in the counties that were far removed from the capital, law books were scarce, and the judges did not have recourse to the decisions and precedents. Members of the court traveled separately and as a result, different decisions were made in different counties on the same points. In 1821, the legislature remedied this situation to a certain extent by, providing for a special session of all judges of the supreme court in the state capitol, at which time cases reserved in the counties were passed upon. One of the weakest points in the Constitution of 1802, was that section which made the judiciary subservient to the general as- The Bench and Bar of Northern Ohio - 49 sembly. Judges of the supreme court, the presidents and associate justices of the court of common pleas were to be elected by joint ballet of the general assembly. The provision was but one of the many manifestations of democracy, with which the people; after the experiences under the rule of England, were strongly imbued. The judges in many instances became the victims of poli- ticians, and the system, in after years, gave rise to scandal and intrigues. Antagonism and rivalry between the legislative and judicial branches of the state government were engendered. After a number of years the people of Ohio saw the need for an independent judiciary and in the Constitution of 1851, provision was made for the election of the judiciary by the people.' The Constitution of 1802, in addition to providing for a supreme court, also decreed that there should be established a court of common pleas for each county in the state, and that justices of the peace be named, and such "Other courts as the legislature may, from time to time, authorize," were provided. The common pleas courts under this constitutional provision were made up of one president judge, and of not less than two or more than three associate judges, who were required to be residents of the county in which they held office. The president judge was a lawyer and was chosen by the electorate of the common pleas district, which was made up of a large number of counties. The associate judges were laymen, and were named for the bench on the theory that they would assist the president judge in arriving at conclusions on facts that were presented, while the president judge, being learned in the law, would determine and apply the law in the case. The system appears unwieldy at this date, but it was continued until the adoption of the Constitution of 1851, when the state was divided into common pleas districts, from which the judges were elected, while the office of associate judge was abolished. The first general assembly, under this constitution, which met at Chillicothe on Tuesday, March 1, 1803, enacted, on April 15th; following, a measure providing for the organization of Judicial courts" and abolishing all courts; which had been established ,during the existence of the territorial government. At this session of the legislature Return Jonothan Meigs, Jr., Samuel Huntington and William Spriggs were chosen justices of the supreme court, and Francis Dunlavey, Wyllys Sillman and Calvin Pease, judges of the district courts. The second general assembly, which convened on December 5, 1803, passed an act regulating the duties of justices of the peace and constables in criminal cases, making their jurisdiction coextensive with their counties in criminal matters and with their townships in civil causes. This measure is still in spirit in our general code. Forms also were prescribed for justices in their practice and with little change, if any, they are still used. A grave conflict between the legislative and judicial branches of the state government created the first serious trouble of the new state, and it was caused by a disagreement about the power of the judiciary to pass on the acts of the general assembly. Men