50 - The Bench and Bar of Northern Ohio who sat in the latter body were jealous of their authority, and they argued that if the courts could pass on the constitutionality of legislative enactments, the judges would be supreme to the members of the general assembly. The crisis in the disagreement came in 1805, when the general assembly enacted a measure defining duties of justices of the peace and constables and repealing all former laws in force on that subject. Among other things, the act provided that justices of the peace should have jurisdiction in civil cases to the amount of fifty dollars without jury trial. The constitutionality of this act was before several courts of the state and the matter aroused great interest throughout Ohio, as well as in the other sections of the new commonwealth. The court of common pleas for the third circuit, of which Calvin Pease was the presiding judge, and Judges Huntington, of Cuyahoga county, and George Tod, of Trumbull county, constituting a majority of the supreme court of the state, in different cases, decided that the section of the law giving justices of the peace jurisdiction in cases exceeding twenty dollars without jury trial and that the part of the twenty-ninth section preventing plaintiffs recovering costs in actions commenced by original writ from the court of common pleas for amounts between twenty and fifty dollars were unconstitutional. The opinion was received with much opposition on the part of members of the general assembly, and the flames of opposition were fanned by the fact that the Jeffersonian idea of vesting the power of the people in the legislature was the chief idea of the constitution. So pronounced became the feeling against the ruling that at the next session of the general assembly, in 1807-08, a resolution for the impeachment of the offending judges was offered. in the house of representatives, but it was not acted upon before adjournment. Judge Huntington was elected governor of Ohio before the next general assembly convened and he resignd his judicial seat before the law-makers reassembled. The impeachment proceedings were not allowed to drop, - however, and shortly after the general assembly re-convened; a committe was appointed to inquire into the official conduct of Judges Huntington, Tod and Pease, with authority to return impeachment proceedings, or to report otherwise. This committee reported articles against Judges Tod and Pease. Against Judge Pease the three charges in substance were : First : That on appeal from the judgment of a justice of the peace for a sum exceeding twenty dollars, he had reversed the judgment on the ground that the justice was without constitutional authority in such a case. Second : That he had allowed the plaintiff his costs in an action- for a sum between twenty and fifty dollars commenced on original writ from the court of common pleas upon the plaintiff's recovering, judgment. Third : That sitting as presiding judge he had on several occasions ruled that the court had authority to pass on the constitutionality of acts of the general assembly and that he had set The Bench and Bar of Northern Ohio - 51 aside and rendered null and void a section of the act regulating the duties of justices of the peace. The articles against judge Tod contained a single charge—that in substance made in the first charge against Judge Pease. Both jurists were summoned before the bar of the senate and forced to plead on the issues joined. The records show that on December 24, 1808, the following message was sent from the house of representatives : "The house of representatives having instructed the managers appointed to conduct the impeachment against Calvin Pease, Esquire, president of the third circuit court of the court of common pleas of this state, to proceed to the bar of the senate with the articles of impeachment against the said Calvin Pease, Esquire, and there demand that the said Calvin Pease, Esquire, be put to answer the said articles of impeachment exhibited against him." Committees then were formed to prepare and report the method for proceeding in the conduct of the trial. On December 27th, the managers having taken the seats within the bar of the senate, that were set aside for them, the sergeantat-arms made proclamation of the trial in the following words : Oyez, Oyez, Oyez, all persons are commanded to keep silence under the pain of punishment, while the grand inquest of the state is exhibiting to the senate of Ohio, articles of impeachment against Calvin Pease, president of the court of common pleas of the third circuit. The articles were read next, and in the course of the trial, the sergeant-at-arms was directed to call Calvin Pease, Esquire; three times in the following manner, to appear and answer : "Hear ye, Hear ye, Hear ye, Calvin Pease, president of the court of common pleas of the third circuit, come forward and answer the articles of impeachment exhibited against you by the house of representatives." Several days were spent in the trial, while the people of the state who were without news of the proceedings except such as was brought in by horseback by men who had been in attendance, awaited eagerly for the outcome. In the senate journal of 1808-09 appears this short but interesting record : "High court of impeachment, Monday, February 6th. The state of Ohio vs. Calvin Pease. The court was opened by proclamation. Ordered, that the clerk notify the house of representatives that the senate is in their public chamber and ready to proceed further with the trial of impeachment of Calvin Pease, president of the courts of common pleas of the third circuit of this state. The managers accompanied by the house of representatives, attended. The respondent with his counsel, also attended on the first article of impeachment. The clerk took the opinion of the members of the court, respectively, in the following form : "Mr. , how say you, is the respondent, Calvin Pease, guilty or not guilty of the high crime of misdemeanor as charged in the first article of impeachment ?" The respondent was unanimously acquitted on the first charge. The clerk then took the opinion in the same way of each member of the second article of impeachment. Fifteen members voted "not guilty," Whereupon the speaker declared that "Calvin Pease, president of 52 - The Bench and Bar of Northern Ohio the courts of common pleas of the third circuit of this state, is acquitted of all charges, contained in the articles of impeachment exhibited against him by the house of representatives" and the court adjourned without delay. The proceedings against Juge Tod were conducted with the same formality and dignity and he also was acquitted. This conflict was by no means ended with this formal proceeding which ended in a victory for the judges. Under the constitution, the term of office of the judges was fixed at seven years. That period had elapsed since the first session of the general assembly under the new constitution and now the argument was advanced that the time had come for a new general election of judges. Under this argument it was held that the judges who had been elected to fill vacancies could only serve out the residue of the original term of seven years, and the argument was used to enable the general assembly to make a clean sweep of the judiciary and to fill the offices with men of their own choosing. The plan was opposed by many strong men of the state as be ing arbitrary and revolutionary, as well as violent. They contended that every judge elected to fill a vacancy was chosen in effect to serve a full term of seven years. In support of this construction the law regulating commissions was cited, and by it it was proven that it was customary to commission newly elected judges for a full term. Members of the general assembly were not to be denied, however, and on January 18, 1810, a resolution was adopted that declared all judicial places vacant and the same pronouncement was made with respect to the secretary of state, treasurer of state and auditor of state. Thus by this single measure the most important office holders in the state government were removed, and in the same session another act was passed, which vacated, the offices of justices of the peace and provided for the election of their successors. The measure that brought about this drastic exercise of authority was called the "Sweeping Resolution" and the whole state was -thrown into confusion. Some of the judges declined to relinquish their offices on the theory that the general assembly's construction of the constitution was wrong ; others who held unexpired commissions and had again been elected refused to accept their new commissions and claimed their seats under the old ones. Respect for law was decreased ; administration of justice was delayed and the whole proceedings had a most demoralizing effect. Probably the most serious phase of the whole controversy was the attempt that was made to intimidate the judiciary by impeachment. The legislature did not retrace its steps, however, and elected new judges of the supreme court and common pleas courts. In time acquiescence in the revolution thus produced became general. Plainly stated, the question was : The federal constitution guaranteed trial by jury in cases involving more than twenty dollars, while the Ohio general assembly provided by law that there should be no jury trial unless the amount involved exceeded fifty dollars. There was no question about the facts, and the duty of the court appeared to be plain. The right of the judiciary to The Bench and Bar of Northern Ohio - 53 pass on the constitutionality of legislative acts had been established by the United States Supreme Court in 1803, five years before the impeachment proceedings were started. Chief Justice Marshall wrote the decision in the case of Marbury vs. Madison and it is one of the most learned and masterly pronouncements handed down by that former great jurist. The new state expanded rapidly before 1810. Settlements had been commenced on the Maumee river, near its mouth, over ,.which the government of Michigan claimed and exercised jurisdiction, though they were within the boundary of the state as described by the constitution. The Ordinance of 1787 had provided that Congress might erect one or two states north and east of the west line to the southern bend of Lake Michigan ; but this provision did not definitely establish that line as a southern boundary. The convention of the eastern division of the Northwest Territory assembled at Chillicothe and it was ordained" that, with the consent of Congress, a line drawn from the southern extremity of Lake Michigan to the northern cape of Maumee bay, should be established as the northwestern boundary of the new state. The assent of Congress was not given and this caused a notable controversy before the boundary was finally established. The courts kept progress with the development of the state. Many problems created disputes between the settlers, and the courts were kept busy. The members of the state supreme court in those days were required to travel about the state, and the position meant much hard work and many sacrifices. The steam locomotive was not dreamed of. The justices were required to travel about from county to county on horse-back, and so were the early-day lawyers. There were no systems of highways, in fact the routes frequently traveled or laid out were but mere trails. Good roads were unknown, and as a result, the travels of the supreme court justices were undesirable and frequently hazardous. The annual salary of the supreme court judges was $800 for many years, and neither the small compensation nor the rigors- of travel quite extinguished the social side of the court. There is plenty of evidence, on the contrary, that judicial dignity and the lofty position that the justices held in the new commonwealth were not permitted to retard the development of friends nor to hold back prankish desires. In the year of 1816, the seat of government was established permanently at Columbus. In the course of the legislative session, commenced in December, 1816, an appropriation for contingent expenses was placed at the disposal of the governor and with a part of this that executive laid the foundation for the state library by purchasing a large number of books. In 1819, the general assembly, in response to popular clamor, undertook to impose a tax upon branches of the national bank. The statute provided for a tax of $50,000.00 on each branch of the national bank established in Ohio and under authority of this act, the officer of the state entered the vaults of the branch at Chillicothe, levied a tax, of $100,000.00 and deposited the money in the 54 - The Bench and Bar of Northern Ohio state treasury at Columbus. The act was held unconstitutional, finally; and the money was restored. In January, 1817, the general assembly first considered the development of the canal system between Lake Erie and the Ohio. Many measures were adopted on this subject, surveys and estimates were made and finally, in February, 1825, an act was passed providing for the internal improvement of the state of Ohio, by navigable canals. A canal board of seven members was created and it had authority to do the necessary construction work. In the preface to Wright's reports is the following statement made by that judge, about the labor of the supreme court of these early days : "The supreme court of Ohio is now composed of four judges, the largest number the constitution permits. The constitution requires a court to be holden once a year in each county, and makes any two of the judges a quorum. A legislative act imposes upon the judges the duty of holding every year a court in banc at the seat of government. The principal result of this organization of the court is that the supreme court is generally held in the several counties by two judges. The judges relieve one another to suit their own convenience, so dividing their labor that each may perform one half of the circuit duty. The duties imposed on this court were so great as to make this relief necessary, for it would be difficult to find men of sufficient physical ability to participate in all of them.. These judges now hold court in seventy-two counties each year, requiring 2,250 miles to travel. The number of cases. on their 'trial dockets in 1834 was 1,459. The .judges were occupied in banc from three to four weeks annually. If that time and Sundays are deducted from the year and the usual allowance is made for travel, the court, to clear its docket, would be under the necessity of deciding on an average of about seven cases a day, for each remaining day of the year." This pressure upon the courts was 'relieved in part by the enactment of legislation increasing the number of supreme court judges and to establish new .courts of common pleas throughout the state. There were thirty 'judges of the supreme court under the old Constitution of 1802, which covered a period of forty-nine years, and it was as important an era as the great state of Ohio ever had. The decisions of the court were not published -by legislative authority and in permanent form until 1823, when the first volume of the Ohio reports was issued. The judges under the old constitution were all able men, but many of them were especially eminent, and their decisions made the Ohio supreme court distinguished throughout the country. But the reputation of the bar at this time equaled that of the bench, for many of the greatest lawyers in the history of the state practiced under the old constitution. William Creighton, of Chillicothe, a graduate of Dickinson college, where he was a fellow student of the great Rufus B. Ranney, afterwards chief justice of the Ohio State supreme court, was known as an illustrious member of the bar of those days. He was especially powerful before a jury. Mr. Creighton served many years in Congress, and he was an intimate friend of Daniel The Bench and Bar of Northern Ohio - 55 Webster. Benjamin Leonard was another great member of the Chillicothe bar. Then came a cluster of famous names, men who elevated the bar of their state, men who will forever remain. unsurpassed for their eloquence, wit, and scholarly attainments. Among the foremost on this list of the illustrious is the name of Samuel F. Vinton. He was born in New England, of good, sturdy stock, and after graduating from Williams college he went west and settled at Gallipolis in 1816. He was elected a representative in Congress in 1823, and he served in that body fourteen years. He was again elected in 1843 and he served eight years, in all a period of twenty-two years. The lawyers of those days did not confine their practice largely to one county, as is now the case, where the dockets are large enough to occupy the time of ,trial judges and the attention of members of the bar throughout the year. The early-day lawyer, especially if he was known as a successful pleader, and a tactful man at the trial table, was called upon to go about the state and represent clients. Mr. Vinton was known all through the northern district of Ohio in his day. His greatest legal effort, no doubt, was his argument in the famous case of the commonwealth against Garner and others, before the supreme court of the state of Virginia. This legal battle, which was watched throughout the nation, was fought in 1845, and it resulted from the fact that in July, 1845, some slaves, intending to escape from John H. Harwood, who resided in Wood county, Virginia, crossed the Ohio river in a canoe to the Ohio shore, where they were met by Peter. M. Garner, Mordecai Thomas and Graydon J. Loraine, citizens of Ohio. The trio of Buckeyes were in the act of assisting the slaves up the bank of the Ohio river when they were all arrested and taken into Virginia, imprisoned and subsequently indicted. The arrest was made on the Ohio side of the river, and Mr. Vinton raised the question of Virginia's jurisdiction. Mr. Vinton, in his argument, which has been proclaimed a masterpiece of legal sequence and logic, maintained that the jurisdiction of the state of Virginia did not extend on the north side of the river beyond low water mark. He argued that Virginia never had an ownership in any part of the Northwest Territory ; first, because the charter which King James granted in 1609, and which was claimed as the source of Virginia's title, did not include land which lay beyond the. Ohio, or west of the Allegheny mountains ; and second, if the grant was originally broad enough to embrace the land lying within the Northwest Territory, the charter which the king granted to Virginia had been revoked by the court of king's bench in 1724, "when a judgment was rendered against the corporation, cancelling the patent and ordering the franchises of the charter resumed .by the crown." As an historical .production the argument was overwhelming and unanswerable. Twelve judges heard the lawyer plead his case and by a bare majority of one, the decision was in the favor of Mr. Vinton's client, and this, too, in the state of Virginia, where slavery was 'an established institution. Simeon Nash was another great lawyer in the early days :of Gallipolis, but his reputation chiefly rests on his authorship of Nash's pleadings. William Allen, 56 - The Bench and Bar of Northern Ohio of Chillicothe, was another lawyer who achieved great distinction at the bar and was known all over northern Ohio. He became a United States senator and governor of Ohio. No history of the bar of those days under the first constitution would be complete without a mention of the great Thomas Ewing, Rufus B. Ranney, Tom Corwin and N. B. Stanbury. Perhaps they were the greatest of all lawyers ever produced in the state. Each was without a peer in this especial field. Ewing was a man of extraordinary intellectual attainments. He was a born lawyer.. His mind was a legal one, and he would have been a great lawyer, it has been said, had he never opened a law book. There were three judges of the first Ohio supreme court under the Constitution of 1802. They were Return Jonathan Meigs, Jr., of Washington county, who had served five years on the bench of the first supreme court of the territory ; Samuel Huntington, of Cuyahoga county ; and William Spriggs, of Jefferson county. The northern district of Ohio thus furnished two of the three judges of the first supreme court, and this section of the state has always produced its share of the men who have written brilliant pages in the history of the judiciary and bar of the commonwealth. Judges Meigs and Huntington were appointed by the general assembly on March 1, 1803, while Judge Spriggs was named, April 2, the same year. Daniel Symmes, of Hamilton county succeeded judge Meigs after he had served two years. George Tod, of 'Trumbull county, went on the bench February 1, 1807, when Judge Spriggs resigned. Samuel Huntington was born in Coventry, Connecticut, October 4, 1765: 'He .was a nephew of a signer of the Declaration of Independence, by whom he was adopted and raised. He was graduated from Yale in 1785, and. eight years later he was admitted to the bar in Norwich. He practiced with considerable success in his native state until 1800, when he caught the fever to 'travel and he started- west to make a tour Of the Northwest Territory, which was a magnet for many young men of the east in those days, as it always has been. He first looked over the settlements in the western reserve' and then visited Marietta, Ohio. There he met Governor St. Clair. But.his desire for travel had not been satisfied and he journeyed to Youngstown. After stopping there a few clays he went to Cleveland, where he settled in 1801. He took up the. practice of law, and it was .not long until he was. known as a man of scholarly attainment and the possessor of superior talents. The newcomer. was possessed of considerable more property than the average frontiersman of those days and he lived quite comfortably and luxuriously in his log cabin. Mr. Huntington was enterprising and thrifty ; affable in social intercourse and correct in business methods. The electorate of his county honored him by sending him as a delegate to the constitutional convention in .1802, and when the state legislative body convened he sat in the upper house as a senator from Cuyahoga county. His colleagues further honored him by choosing him speaker of the senate. He was ambitious and. his aspirations met with the proper response from the The Bench and Bar of Northern Ohio - 57 electorate. After serving four years on the supreme court bench he resigned to accept the governorship of Ohio. In that position he displayed rare executive capacity, and his ability and tireless energy left a distinct impression on the state. Another son of the western reserve who achieved distinction as a lawyer and then served on the state supreme court with credit was George Tod, of Trumbull county. He was born in Suffield, Connecticut, December 11, 1773, and he was a graduate of Yale. He taught school at New Haven to finance himself while he studied law at the school conducted by Judge Reeves, at Litchfield, and after being admitted to the bar he came to Ohio and settled in Trumbull county. During the same year he prosecuted the pleas of the United States government in the first court of quarter sessions in Warren. For a time he was secretary of the territory. Judge Tod's scholarship; his eminent place in the ranks of lawyers of northern Ohio, his experience and prominence in affairs gave him exceptional qualifications for the bench and during the three years that he served on the Ohio supreme court bench he won the respect and confidence of the bar and the people of. Ohio. After the war of 1812, he served in the state senate; was prosecuting, attorney of Trumbull county and he was president judge of the court of common pleas. The Tod family has long been prominent in Ohio politics and a son of the judge, David Tod, afterward was known as Ohio's war governor, as he served in the gubernatorial chair during the first years of the great civil- war conflict, .1861-65. Trumbull county contributed another man who occupies a prominent place in the history of the Ohio judiciary—Calvin Pease, who was appointed to the state supreme court in 1815. Although he did not possess the educational advantages of some of his eminent associates of those days, yet Judge Pease was not surpassed by any of them in discernment nor in his ability to apply the law to the case in hand. He was born in Suffield, September 9, 1776, and after being admitted to the bar he commenced the practice of law in New Hartford, in 1798. In 1800 he migrated to the west and settled in Warren, while the first courts of common_ pleas and quarter sessions were being held. Shortly after his arrival he was appointed clerk of the court. His talents were recognized in 1803 when he was named presiding judge of the third circuit. After serving seven years on that bench he resigned and took up the practice of law and was quite successful. Efforts were made to impeach the judge on account of his decisions bearing on the constitutionality of acts of the general assembly, but the attempt did not succeed, as has been told before. The judge was an excellent story teller and he loved a joke, provided it was not on himself. In the early days of his residence in Warren he coached a young justice of the peace on his duties in performing the marriage ceremony and then walked to Ravenna, twenty-five miles distant, that he might be present to prompt the justice in the event that he made a mistake in performing the wedding ceremony for a young couple. The bride and groom stepped up to the justice, the relatives and friends of the contracting parties crowded about, and the magistrate proceeded to pronounce the words that made the two man 58 - The Bench and Bar of Northern Ohio and wife. He closed the invocation with "May God have mercy on your souls,"—as he had been coached by Judge Pease. There was a suppressed giggle to be heard in the gathering and the justice realized that he had been victimized, but her passed it off as a joke. Judge Thurman, in reciting a reminiscence of his first visit to the court room of the supreme judges, wrote : "There sat presiding one of the finest specimens of manhood I ever saw, Calvin Pease, then chief judge of the supreme court, dressed in a way that would make a dude faint, the most perfect dress I ever saw on a man, and the nicest ruffles to his shirt bosom, looking the very beau ideal of a gentleman of the old times. By his side sat Peter Hitchcock : What a team it was ! Woe unto the man who had a bad cause and attempted to palm it off on them ! What great men they were ! Hitchcock was on the bench longer than Pease, though Pease achieved a wonderful reputation and deserved one;. so much so that Thomas Ewing once said to me that of all the judges he ever appeared before, in his opinion, Calvin Pease was the greatest." The name of Peter Hitchcock reflects distinction on the judiciary of Ohio, and it also adds lustre to the history of Geauga county, where the judge settled on land in 1806. He cleared a farm and built a home and at the same time practiced law in the sparsely settled community. His early life was a struggle for existence, as the forest had to be cleared and the settlers were so few that clients were scarce: His fees were not sufficient to keep the wolf from the door and he taught school several terms. But his talents were such and his will to succeed so strong that he was called into public service, first in 1810, when he was sent to the lower house of the general assembly, and two years later when he was elected to the Ohio senate. His talents were recognizd by his colleagues in the law-making branch of the state government and he was a leader in .both houses. The electorate of his district sent him to Congress in 1816 and three years later he was to be found on the supreme court bench. He was a member of the tribunal twenty-eight years and in all but seven of these he was the chief justice. The judge was a man of great physical and mental capacity and these led him to undertake prodigious tasks and to assume great obligations. He was a man of tireless industry and it was but natural that he should become a leader. He was possessed of a wonderful memory and was so well versed in the statutes that he frequently exhibited impatience when attorneys quoted sections wrongly. He was a master of the law and had a keen analytical mind. Jefferson county contributed John M. Goodenow to the supreme court in 1830, but he resigned the following year on account 'of ill health and removed to Cincinnati, where, in 1833, he became president judge of the court of common pleas. He resigned this position also because of inability to preserve harmonious relations with the members of the bar. Mr. Goodenow came to. Ohio from Massachusetts where he was born in 1782: He was of a fiery disposition and this led him into many controversies with judges and attorneys. One of the bitterest controversies that he engaged in was with Judge. Tappan, 'before whom he urged a habeas corpus The Bench and Bar of Northern Ohio - 59 case. He insisted in his argument that the common law applicable to the punishment of crimes had never been in force in Ohio. Judge Tappan did not agree with the attorney and the controversy reached the point where Mr. Goodenow finally brought action for slander against the jurist. The lawyer's conviction on the subject was so strong that it led him to write a book on it, in which his views were set forth with clearness and precision. It was published under the title, "American Jurisprudence in contrast with English Common Law." The supreme court of the state afterward sustained Mr. Goodenow's contention in Smith vs. State,. 12 0. S. 466, and later in Mitchell vs. State, 42 O. S. 382. Judge Wright was a lawyer-editor and he published the reports of the supreme court at the time he was a member of the tribunal, 1830 to 1835. He was a resident of Steubenville for many years, where he practiced law and occupied several public offices. He was managing editor of The Cincinnati Gazette in later life, and he was known as a fluent and forceful writer. He also served in Congress with distinction. Reuben Wood went to the supreme court bench in 1832, from Cuyahoga county, and he served one full term. Mr. Wood had but twenty-five cents when he settled in Cuyahoga county- in 1818; but his stock of industry, resourcefulness and ability was limitless. He was born in Vermont in 1792, and it. was twenty-six years later that he started west. Mr. Wood served a term as state senator before he was a judge of the common pleas court, and he was chosen governor ten years after he retired from the state supreme court. His term was cut off almost at its beginning by the Constitution of 1851, but he was re-elected in 1852 by a good vote. This administration was very successful, Governor Wood displaying not only administrative qualities of a high degree, but executive capacity which enabled him to carry on the duties of his high office to the satisfaction of his Ohio constituency. At the democratic national convention in 1852, he was a candidate for the nomination for president and he was known as the "Cuyahoga Chief." The candidate received a respectable vote, which indicated that his talents were recognized in many States outside of Ohio. Political ambitions carried Mr. Wood away from law, but he was known as a man of ripe legal attainments and his work on the supreme court bench was characterized by a high degree of ability and discernment. The personal appearance of Mr. Wood was striking, and it served as an asset in his fights for political preferment, as well as for law business in his early days. A giant in stature, erect as an Indian, with the bearing of a soldier and the presence of a chief, he was genial in intercourse, and so affable that he soon made friends wherever he went. Matthew Birchard was elected to the supreme court by the legislature in 1842. He resided, at the time, in Trumbull county, and while he served but one term on the bench, he was known as a judge of more than average ability. Born in Becket, Massachusetts in 1803, he came, with his parents, at the age of eight, to Ohio, and settled with them in Trumbull county, near Warren, then a village. Six years after he was admitted to the bar he was 69 - The Bench and Bar of Northern Ohio made a judge of the common pleas court. That was in 1827. He had long been an admirer and supporter of President Andrew Jackson and he was a personal friend of the president. This friendship caused him to step aside from the law for awhile and accept the commissionership of the general land office, which was tendered him by the president. The opinions of Judge Birchard were characterized by fluency of expression and clearness of logic. He was known as a man of strong convictions, great will power, and possessing pertinacity of the sort that causes one juror out of twelve to dissent from the opinion of his colleagues. Wayne county contributed another judge to the bench under the Constitution of 1802, when Edward Avery was elected by the general assembly in 1846. He resigned in 1851. Before going to the supreme court he served as prosecuting attorney of Wayne county, and subsequently was a state senator. Although Rufus Pain Spaulding, a son of the Western Reserve, was appointed to the supreme court by the general assembly in 1849 for a term of seven years, his tenure was cut short by the intervention of the constitution of 1851. His service, historians say, would have continued longer had he consented to become a candidate for re-election. Mr. Spaulding was the son of a Massachusetts physician, and he was born in the Bay State in 1798. With his family, Mr. Spaulding removed to Norwich, Connecticut, and in that state his early opportunities for acquiring an education being good, he took .advantage of them. Graduating from Yale when but nineteen, he read law in the office of Judge Swift, chief justice of the state. When a young man he commenced the practice of law in Little Rock, Arkansas, but after a few years there he came to Ohio and practiced with considerable success in Warren. Subsequently he resided in Portage, Summit and Cuyahoga counties. He represented Portage and Summit counties in the upper house of the general assembly at different times. One term of the assembly saw him in the speaker's chair in the house. At the close of his judicial service, Cleveland attracted him and there he practiced law for a number of years. Success only comes after long, hard, patient work by men of ability, and back of this usually may be found a strong will, and strong convictions. This was especially true of Judge Spaulding. So strong was his antipathy to slavery that his conviction led him, at the age of fifty, to break away from the political party that had commanded his allegiance throughout his life, renounce the institution of slavery and to support the Free Soilers in 1850. He became an aggressive member of the Republican party and was elected as its candidate for Congress in 1862, where he quickly attained the rank of a leader. Judges Rufus P. Ranney and William P. Caldwell served on the supreme court bench under the constitution of 1802 and 1851. Judge Ranney, a notable character in the history of the judiciary and bar of Ohio, was one of Cuyahoga county's foremost sons in his day. In fact he will always rank as one of the most brilliant lawyers ever produced in the county, and the noteworthy traditions of the bar of the county were bound around the honored name of Rufus P. Ranney. His biography will be dealt with in The Bench and Bar of Northern Ohio - 61 other pages of this history. Judge Caldwell went on the bench from Cincinnati. So far, short sketches have been given of the men who went on the supreme court bench from the northeastern district of Ohio. Others who served in similar capacity in the days when the state was but a stripling and under a constitution that appears in these modern days rather crude, were : Daniel Symmes, of Hamilton county, 1805 ; Thomas Morris, of Clermont county, 1809 ; Thomas Scott, of Ross county, 1809 ; William R. Irvin, of Fairfield county, 1810 ; Eathan Allen Brown, of Hamilton county, 1810 ; John McLean, of Warren county, 1816 ; Jessup Nash, 1816 ; Jacob Burnet, of Hamilton county, 1821; Charles R. Sherman, of Fairfield county, 1823 ; Joshua Collet, of Warren county, 1829 ; Elijah Hayward, of Hamilton county, 1830; Gustavus Swan, of Franklin county, 1830 ; Frederick Grimke, of Ross county, 1836 ; Nathaniel C. Read, of Hamilton county, 1846. THE THIRD ERA IN OHIO THE CONSTITUTION OF 1851 THE northern district of Ohio contributed two of her most distinguished sons to the first supreme court of the state under the Constitution of 1851. This tribunal was made up of five jurists, and the names of the men who sat on the bench at this time still stand out in the history of the judiciary of the state.. From Trumbull county, Rufus P. Ranney, the great lawyer, went to this first supreme court, while Richland county contributed her most distinguished son in Thomas W. Bartley. The other judges came from the southern part of Ohio, and in the number were : William B. Caldwell, of Hamilton county ; John A. Corwin, of Champaign county ; and Allen G. Thurman, of Ross county. All five names are to this day illustrious, and the decisions of the jurists placed the Ohio supreme court on a high standard. Judges Ranney and Caldwell had served under the first constitution, and their experience proved valuable to them when they took up the duties of justice under the constitution of 1851. Judge Caldwell was chosen chief justice of the court, and he served on the bench until 1854, when he resigned. Those of the present generation will remember the popular demand for a change in the state constitution that swept the country just prior to the constitutional convention of 1912. The people of Ohio wanted something new. They had read considerable of innovations of government in some of the western states, measures that broadened the powers of the people and restricted the authority of their representatives in office. The change demanded called for steps nearer pure democracy and further away from the representative form of government. This demand may be said to have come from the natural evolution of the generations. In the first days of the government, the states' constitutions lodged a rather autocratic power in men in office, while many of the requisites for office holding that were a feature of the monarchial form of government were retained in this country. The territorial government, for instance, was autocratic in form ; but it proved effective and efficient, and officers of the law were given obedience and respect in unstinted measure. The power that the territorial governor possessed would not be tolerated by the electorate in these days, nor would the people think for a minute of vesting in a single body such authority as was possessed by the judges and the governor comprising the legislative council of the territory. As the years pass and the American people experiment with administrations of governmental measures, the tendency has been to drift further and further away   The Bench and Bar of Northern Ohio - 63 from the idea of a strong federal government, with a centralization of power in a few, that was espoused by President Washington and Alexander Hamilton. The Jeffersonian idea has for many years remained the dominant one in governmental reform, although, in late years, there has been noticed a tendency to "about face" and go back to the old idea of centralizing power in order to fix responsibility. Such a policy has been sensed in the demand for the city manager form of government, and although the advocates of this plan have at this time limited their activities to the cities, agitation in favor of applying the doctrine to the state government may be expected in the event the cities of Ohio go under this sort of management. In all individuals there is a feeling of restlessness, of the sort that exists in the wild animal. We all have seen the caged tiger pace untiringly back and forth in his cage, stopping now and then to paw the iron bars that stand between him and freedom, and to ferociously stare at the spectators on the outside of his prison. Years of civilization have greatly curbed the restlessness in man, but it is by no means extinct. It is this that prompts a demand every so often for a change in the form of government. It is the same element in man that causes him to work, hard and diligently in his position that he may be advanced, and, in fact, generates the power for all big reforms in society and government. Trace the history of Ohio and it will be found that every twenty to forty years the people always demanded some changes in their state constitution. Such demands may be expected in the future and at this time it is hard to anticipate in just what direction the pendulum will move next. This feeling of unrest that now and then takes hold of the individual and moves him, existed throughout Europe and America before the constitution of 1851 was adopted. Discontent and revolution stalked abroad in Europe, and the people across the water were more or less successful in obtaining new concessions that broadened the power of the electorate and restricted the authority of rulers. While these manifestations were being given in Europe, there was an entirely different kind of activity in America, although the public mind was more or less affected by the feeling Europe. Gold had been discovered in California and the announcement, slow as it was in being made in the east, gave a new impetus to business and commerce. Stories of the fabulous wealth of the gold fields and the large fortunes to be made were circulated freely in the middle west and east and there was a great rush across the Mississippi valley. The white-topped wagon became a familiar object and at the same time it helped greatly to increase population in the Northwest Territory. Thousands of men and women bound for the gold fields saw opportunities in the states through which they traveled and they abandoned their dreams of sudden wealth in the gold fields. The increases in population, the change in business and commercial conditions that came, made it necessary for the people of the states that had been created out of the Northwest Territory to change their organic laws. Illinois was the first state to have a constitutional convention, and the change was made 64 - The Bench and Bar of Northern Ohio in 1848. Indiana and Michigan followed with new constitutions in 1850, while the Ohio constitutional convention assembled in. 1851. That convention framed an organic law that made many radical Changes in the organization of courts. The general assembly had for a number of years under the constitution of 1802, been electing judges of the supreme court, but the organic law of 1851 took that authority away from the legislative body and lodged it in the electorate. The number of judges of the supreme court was fixed at five, the terms were limited to not less than five years, a majority of the five was pronounced a quorum of the court, and a session of the judges was required to be held in the state capital not less than yearly. The general assembly was given authority, to increase the number of supreme court justices, in recognition of the fact that the commonwealth was growing fast. Power also was given the legislative body to lessen the number of justices, but in the event that was done, it was provided that the term of a member of the bench duly elected should not be decreased. The further provision was made that when the number of supreme court justices was increased the state might be divided into three circuits and an equal number of justices should be assigned to hold court in each division. A majority of the judges sitting as an undivided court could make decisions and pronounce opinions that were accepted as expressions of the Ohio supreme court. When the justices sat in divisions a unanimous opinion was required before it could be regarded as the word of the supreme court. In the event that justices in division courts could not agree the subject was referred to all the justices of the state supreme court, who had exclusive consideration of causes that involved the constitutionality of acts of the general assembly and of Congress. The five judges were unable to keep up with the docket and by a constitutional amendment, adopted October 12, 1876, a commission of five members was created for a term of three years to hear and determine appeals. The amendment gave the general assembly authority, after application had been made by the supreme court, to create not oftener than once in ten years, a like commission to sit for. a term of two years. Under the amendment two commissions were created, and their work greatly facilitated the administration of justice. In the event of a vacancy in the supreme court occurring thirty days prior to a general election, the governor was authorized to fill it by appointment. The first supreme court commission was created in February. 1876, and the members embraced some of the most distinguished lawyers in the commonwealth. After working three years the members laid down their task, with the docket practically empty, and the supreme court justices in condition to handle all matters remaining with dispatch. The members of this commission that were originally appointed included : Josiah Scott, of Crawford : William W. Johnson, of Lawrence; D. Thew Wright, of Hamilton ; Richard A. Harrison, of Franklin ; Luther Day, of Portage ; and Judge Whitman, of Hamilton. In the first year of the work of. the commission Judge Whitman resigned, and Thomas Ashburn, of The Bench and Bar of Northern Ohio - 65 Clermont, was named to succeed him. The second commission was named in 1883 for a term of two years and it consisted of the following well known men of that period.: Moses W. Granger, of Muskingum ; George K. Nash, of Franklin ; Franklin J. Dickman, of Cuyahoga ; Charles D. Martin, of Fairfield ; and John McCauley, of Seneca. A codifying commission commenced its labors in 1874 and completed them in 1879, and the members included : Michael A. Daugherty, of Fairfield ; John B. Okey, of Franklin ; and Luther Day, of Portage. Judge Okey resigned in 1877 to accept a place on the supreme bench, while Judge Day resigned in 1876 to take his place on the supreme court bench. It is to the credit of the state that the supreme court has always maintained a scrupulous standard of morality and integrity. The men who have been called from the legal profession to places on the bench have always shown a keen appreciation of the honor and dignity that attach to their position. In all the years that the court has been functioning there never has been a rumor of bribery or corrupt practices raised against a single member of the court. The published volumes containing reports of decisions by the court take high rank and the opinions have always been regarded as sound expositions of the law. The northern district of Ohio contributed many sons to the supreme court while the constitution of 1851 endured, and it may be said that they enriched the tribunal with their learning, and their wisdom in applying the law to problems that were presented. One of the most distinguished jurists that sat on this bench was Judge Thomas W. Bartley, of Richland county. He was born in Jefferson county, February 11, 1812, and he was the son of Mordecai Bartley and Elizabeth Wells. His collegiate course was taken at Jefferson college, Pennsylvania, and after studying law in Washington, D. C., and being admitted to the bar, he took up the practice in Mansfield in 1834. The young lawyer was not long destined to remain in the ranks of struggling barristers, for his ability and industry was such that he. soon became a leader of the Richland county bar. His reputation traveled outside of that county, and he was called to the position of attorney general. For four years he was United States district attorney and for several years he was one of the leaders in the general assembly. He served as acting governor after the resignation of 'Governor Shannon in 1844 and the man who succeeded him after the election in 1844 was the father of the judge. Judge Bartley took up the practice of law upon retiring from the supreme court bench and then he subsequently removed to Washington. Jacob Brinkerhoff was another jurist contributed by Richland county. He was elected to the bench in 1855 and was re-elected in 1860 and 1865, serving fifteen years in all. He was born in New York, August 31, 1810, of an old Dutch family, the first of which came to New York in 1638 and settled in New Netherlands, now New York. Judge Brinkerhoff was educated in the public schools, attending them until he was fifteen, then he moved with his parents to Steuben county, in the same state. There he worked on a farm until he was in the full bloom of young manhood, when he com- 66 - The Bench and Bar of Northern Ohio menced the study of law in the offices of Howell & Howell, at Bath. He also read law with Rogers & Neaston and Henry Wells. in Pennyan, where he resided until 1835. A year later he took up his residence in Mansfield, where he became a partner of Thomas B. Bartley. Three years later he was elected prosecuting attorney, serving two terms. The judge was a Democrat, and in 1843 he was elected to Congress from the Mansfield district. After two terms in the house of representatives he returned to Mansfield and took up the practice of law. He was a keen student of the law, made friends and held them, was in demand on the stump at this time, and it was not long until he had picked up a lucrative practice in the law. The judge, early in his political career, opened a fight on the institution of slavery, and he joined the Free Soil party while serving in Congress. While a member of that body, he wrote the so-called Wilmot provision, which was an amendment to a pending bill, appropriating money for the purpose of permitting the president to negotiate peace with Mexico. The military invasion of the little country to the south of the Rio Grande had brought about the possession of California and New Mexico by the federal forces, and it was agreed that they should be part of the territory of this government. Representatives from the southern states were, in the interest of their slave-holding constituents, working to have slavery established in the new territory, while the Free Soilers were vigorously opposing such a course. They wanted the newly acquired territory dedicated to human liberty and this movement attracted the allegiance of many northern Democrats. The Whigs, who had opposed the war with Mexico, were ready for alliance, which would defeat the object back of the war. Judge Brinkerhoff drew up the amendment to the appropriation bill and then submitted it to his friend, Judge Vinton, a member of the house of representatives from Ohio, and a Whig. The proposed amendment provided that neither slavery nor involuntary servitude should exist in the acquired territory, except as punishment for crime, and Judge Vinton promised to support it. Judge Brinkerhoff looked about for some influential member of the house to offer his amendment, and he selected Mr. Wilmot because of his popularity with the national administration and the southern congressmen. Congressman Wilmot agreed to do so, and the measure was adopted. Other members of Congress, many of them influential ones, had been preparing proposals along the same line, but the original draft of the Wilmot amendment, which is on exhibition in the congressional library, is in Judge Brinkerhoff's handwriting. So strong was his convictions on the slavery question that they prompted his independent actions in Congress. When his brother, General R. Brinkerhoff, suggested to the judge that he restrain his convictions on the anti-slavery subject and remain in the Democratic party, as he could not otherwise expect political preferment, he replied : "That may do for some, but not for me. I have made my bed and I shall lie in it. It is true that I may not live to see liberty granted the slaves in my time, but as sure as God lives it will come some time, and I would rather my children and grandchildren should remember that The Bench and Bar of Northern Ohio - 67 I lived in the faith and died in obscurity than to obtain preferment by the abandonment of my convictions or even by silence." William Sutliff, of Warren, was elected in 1857, to succeed Judge Bowen, and he was re-elected in 1862, and in 1868 he retired from the bench after a distinguished service of ten years. He was one of the six sons of Daniel Sutliff, a revolutionary war veteran, all of whom, but two, became lawyers. He was graduated from Western Reserve college in 1834, and in the same year he took up the practice of law in Warren. The judge was a pronounced abolitionist, and he was a man of action. He advocated the abolition of slavery with all the fervor that seemed a part of the makeup of those men and women who spread the propaganda that later resulted in the Emancipation Proclamation. The judge made many enemies by his course, for slavery was an old established institution, and it was able to deliver some hard blows through its agents. But the judge was always respected as a man of honor and integrity, and his motives were never impugned. The first resident of Ashtabula county to take a seat on the supreme court bench was Hon. Horace Wilder, who was appointed by the governor, December 12, 1863, to fill a vacancy caused by the resignation of Judge Gholson. In October, following, he was elected for the term expiring in February, 1865. On August 20, 1802, Judge Wilder was born in Connecticut, and at the age of twenty-one, he was graduated from Yale. Three years later be was admitted to the practice of law in Virginia. In 1827 he settled in Geauga county, and the following year he was admitted to the practice of law in this state. Immediately afterward he went to East Ashtabula where he engaged in the practice Of law. The electors of his county honored him by choosing him to serve as their prosecuting attorney, and in 1834 he was sent to the general assembly. Judge Wilder held no other office in his early career until in 1855, when he was elected to the common pleas bench, He was very successful in his practice and was known for his kind disposition and toleration in dealing with the young and inexperienced members of the bar. Now comes a name that occupies a prominent space in the history of the Ohio Bench and Bar—that of Luther Day, of Portage county, who went on the supreme court bench in October, 1864, was re-elected in 1869 and then retired after ten years of fruitful and useful service. On July 15, 1813, he was born in Washington county, New York. He entered a well known academy in the east, but the necessities of his family caused his retirement and his return home to work upon the farm. Not long after, the death of his father, who was hopelessly in debt, forced Judge Day, temporarily, to give up his ambition for an education and to support the young members of his family and his widowed mother. He was but sixteen years of age at the time, and the tremendous responsibilities thus put upon him gave him those qualities that were the foundation for his rise and success later in his life. Taking up the burden of supporting the family, he worked tirelessly and ceaselessly for the next six years, and he was not only able to support those dependent upon him, but to save the family home. The judge had 68 - The Bench and Bar of Northern Ohio not quite given up his ambition for a college education, and so, at the age of twenty-two, he entered Middlebury college, Vermont, where he spent two years in study, paying his expenses by teaching. Then he came to Ohio and took up the study of law in the office of Hon. Rufus Spaulding, at Warren. He was admitted to the bar in 1840, and soon afterward he formed a partnership for practice of his profession with Darius Lyman, an old practitioner of the city. This association continued for three years. He served one term as prosecuting attorney and in 1849 he was the Democratic candidate for Congress. Two years later he was elected judge of the common pleas court. Like many other Democrats of just before the war he did not like the attitude of his party on the slavery question' and so he broke away from his old political affiliations. He became a Republican and in 1863 he was elected to the Ohio senate as a Republican. Judge Walter F. Stone, a son of Wooster, where he was born, November 18, 1822, was appointed to the supreme court by the governor in 1873 to fill a vacancy caused by the resignation of Judge West. He was elected the following October for the remainder of the term. He was forced by ill-health to resign. in 1874 and he went to California where he died on the following December. At the time of his appointment Judge Stone resided in Sandusky. His parents came to Wayne county from Vermont and he was educated in the district schools. Later he attended college at Pittsburgh, where he read law under the direction of Walter R. Lowry. After practicing law for twenty years he was elected to the common pleas court in 1865. He 'was chosen for a second term in 1870, and he served on that bench until he was promoted to a seat in the highest court of the state. Upon the resignation of Judge Stone, the governor went to Wayne county to fill the vacancy and George Rex of that county was elevated to the bench. In October, 1874, he was elected to fill out the unexpired term. Service on the bench impaired his health and he was forced to decline a renomination. He entered the practice of law, but lived only two years. He was born at Canton, July 25,. 1817, was educated in the common schools 'and at Capital university. He taught school for a time and after reading law was admitted to the bar in 1842. Taking up the practice of law at Wooster he soon found himself busy with clients. He was elected prosecuting attorney and served as a member of the state senate and was president pro tern. in 1851. He was .chosen to go back to the senate in 1867 and also served two additional terms as prosecuting attorney. Other men who sat on the supreme court bench under the Constitution of 1851 came from southern Ohio, and instead of setting forth their biographies as was done with the men who came from the northern district of Ohio, their names are listed for the historical value of this publication : Robert B. Warden, 1854, Franklin county ;' William Kennon, 1854, Belmont county ; Joseph R. Swan, 1854, Franklin county ; Charles Cleveland Converse, Muskingum county ; Ozias Bowen, 1855-1856, Marion county ; Josiah Scott, 1856, Butler county ; The Bench and Bar of Northern Ohio - 69 William V. Peck, 1858, Scioto county ; William Y. Gholson, 1859, Hamilton county ; Hocking Hunter, 1863, Fairfield county ; William White, 1864, Clark county ; John Welch, 1865, Harrison county ; George W. Mcllvane, 1870-1885, Tuscarawas county ; William H. West, 1871-73, Logan county ; William Gilmore, 1874-79, Preble county ; John W. Okey, 1877-1885, Franklin couitty ; William W. Johnson, 1879-1886, Lawrence county ; Nicholas Longworth, 18811883, Hamilton county ; John H. Doyle, 1883-85, Lucas county ; William Y. Upson, 1883, Summit county ; Martin D. Follet, 1883-87, Washington county ; Selwin N. Owen, 1883-89, Williams county ; Gibson Atherton, 1886, Licking county ; William T. Spear, 18851912, Trumbull county ; Thaddeus Minshall, 1886-1902, Ross county ; Franklin J. Dickman, 1886-1895, Cuyahoga county ; Marshall J. Williams, 1887-1902, Fayette county ; Joseph P. Bradbury, 18891900, Gallia county ; Jacob F. Burket, 1893-1904, Hancock county ; John A. Shauck, 1895-1914, Montgomery county; William Z. Davis, 1900-1912, Marion county ; James L. Price,. 1902-1912, Allen county ; William B. Crew, 1902-1910, Morgan county ; Augustus N. Summers, 1904-1910, Clark county ; Maurice H. Donahue, 1911-1919, Perry county ; James G. Johnson,* 1911-, Clark county ; Joseph W. O'Hara, 1912, Hamilton county ; J. Foster Wilkin, 1913-1914, Tuscarawas county ; R. M. Wanamaker,* 1913-, Summit county ; Oscar W. Newman, Scioto county, 1913-1918, Hugh L. Nichols, chief justice, 1912-20, Clermont county ; Thomas A. Jones,* 1915, Jackson county ; Edward S. Matthias,* 1915, Van Wert county ; James E. Robinson,* 1919, Union county ; Stanley W. Merrell,* 1919, Hamilton county and A. T. Marshall,* Chief Justice Muskingum county. Note-*Members of supreme court when this was written. THE CONSTITUTION OF 1912 THOMAS JEFFERSON, former president of the United States, and a thorough Democrat, once said that "as new discoveries are made, new truths disclosed, and manners and opinions change, with the change in circumstances, institutions also must advance and keep pace with the times." These words accurately reflect the temperament of the Ohio people in the early years of the twentieth century. The Constitution of 1851, under which they had lived for many years, was framed in the days when many of the problems that in later days arose to bother the public and their official representatives did not exist. The old constitution was framed in the stage-coach days. Public utilities were operating, it is true, but they were so small and their number so inconsequential, that they presented no grave problems. The steam railroad was not unknown, but locomotives and freight cars were a great curiosity and little faith was reposed in either as a means for handling traffic that already was increasing in such quantities as to bother the government. Every ten or twenty years there were many radical changes in conditions and in the opinions of public-spirited citizens. New discoveries were constantly made. Modes and manner of living had changed since the clays of 1851. The desire for a change in the organic law Of the commonwealth became so strong that in 1870 a new constitution was framed, but it was rejected by the electorate. The demand continued, however, and in 1911 delegates to another convention were chosen. This assembled the following year in Columbus and it was known as the fourth constitutional convention. The Ohio general assembly, in providing for the election of the delegates to this convention, required them to be elected on non-partisan ballots. This act alone reflects one of the strongest factors that brought about the convention—namely the demand for the restoration to the people of certain powers that had been delegated. The more conservative called the demand a radical one, and in writing of the work of the constitution, Honorable E. L. Lampson, a delegate from Ashtabula county, and one of the ablest men who sat in the convention, said in part : "When the convention met, physical conditions were distinctly unfavorable to that calm consideration and thoughtful action essential to the best expression of the popular will in fundamental law. "Unfortunately, a majority of the membership had been elected 'under pledges to support, even in detail, certain radical and revolutionary amendments, important among them being the I & R. Hence the talent of many of the best men in the convention could not be utilized in framing these radical proposals. How- The Bench and Bar of Northern Ohio - 71 ever, as the convention progressed, the minority, perforce of the ability, logic, and parliamentary knowledge of its membership, corn- pelled changes and modifications of great importance as against the power of numbers. Four times the I and R proposal was withdrawn by its friends and a substitute offered, but crudities still remained which, at the first trial before the people, resulted in scandal and defeated the submission of proposed legislation under it. "It is quite common in legislative bodies, both state and na- tional, for inexperience to distrust experience (especially when some outside influence is attempting to put something over), and this convention was no exception to the rule ; but as the inexperienced became experienced, mutual trust and confidence increased and the work of the convention greatly improved. While members differed radically, warm personal friendships grew up between those of opposite views and much of the distrust which prevailed at the beginning, disappeared. It was a body of strong, virile men, convened in extraordinary times, when an enthusiastic reformer, with a broad, new banner of many colors, always got a hearing and the loyal veterans with the 'old flag' did well to keep it still afloat. "In such a convention, heated parliamentary conflicts were inevitable. No other constitutional convention, in any of the states, ever witnessed such a scene as took place when President Herbert Bigelow, of the convention, desiring to prevent the attachment to the I & R of an inhibition against the single tax, summarily adjourned the convention. Whereupon, there came a roar of voices from all parts of the hall, demanding that Vice President Fess, now Congressman Fess, assume the chair. Mr. Fess responded, and the work of the convention continued from the point at which it had been interrupted by the action of President Bigelow. This was a bit of new experience, which taught that the master is greater than the servant in a parliamentary body which knows its power, and it cleared the atmosphere for more harmonious and better work." The attitude of many of the delegates, to which Mr. Lampson refers in his words quoted before, is expressed in the words of Mr. Bigelow : "While there was no division in the convention according to political parties, there were, of course, two groups in. the convention. These groups were described by McCauley, who observed that 'The minds of all mankind are so constituted as to fall in two roughly equal groups—those who cling to the past, distrusting change ; and those who instinctively challenge precedent. "The great issues of the convention, which sharply distinguished these two groups of the so-called conservatives and progressives, were, taxation, reform of the judiciary, home rule for cities and the initiative and referendum. A dispassionate review of the work of the convention, must, I think, lead to the conclusion that this work was faithfully done, and while it displeased some people who are called reactionaries and disappointed others who are called radicals, it reasonably satisfied those who believe that orderly progress is the wisest conservation." 72 - The Bench and Bar of Northern Ohio These two men are quoted to illustrate the conditions under which the convention convened, and the things that the delegates had to contend with. Prior to the election of the delegates a wave of reform swept the state of Ohio. The initiative and referendum suddenly became very popular. The man who denounced it was a cave man, and Governor Judson Harmon, who went before the delegates and advised them against submitting an I & R proposal, was branded in certain newspaper cartoons as a cave man, who was blinded by the light of modern progress. There was a restless feeling in the minds of the people, and it was fanned by the agitation of newspapers working in the interest of so-called governmental reforms. This feeling gave vent to denunciation of established and long-tried institutions of government. The judiciary system was pronounced cumbersome and autocratic by those advocating reforms, and, of course, was stoutly defended by others who were called reactionaries. Any man who was against taking up new issues was called a reactionary, while those who were challenging precedents were put in the more desirable class of progressive. In the days of 1912, progressive and reactionary were two big words in American politics and they played a large part in shaping the machinery with which the Bench and Bar of the state were to work. The two words dominated the Democratic national convention in Baltimore in 1912 and the same was true of the Republican national convention which was held in Chicago a few days prior to the opening in Baltimore of the Democratic party conclave. In Baltimore, William Jennings Bryan made his sensational fight against Hon. Champ Clark, Democratic candidate for the presidential nomination, then speaker of the national house of representatives, because, as the Commoner told the delegates, he did not measure up to the progressive specifications that the times demanded. Mr. Bryan was chosen a delegate to the convention from Nebraska under a law that pledged him to lend support to the victor in the Nebraska presidential preference primary, and Champ Clark, of Missouri, who was speaker of the national house of representatives, was, the victor in the primary. In spite of this instruction, Mr. Bryan brought the convention into an uproar by switching his vote from Clark to Hon. Woodrow Wilson, afterwards president of the United States, then governor of New Jersey. The change came at a time when Clark appeared to be headed straight to a nomination, as he had a majority of the delegates, the two-thirds rule—an institution of Democratic national conventions—preventing the nomination. Mr. Wilson was nominated for president and elected in the election that followed. Theodore Roosevelt, former president, espoused the progressive cause shortly after his return from the famous animal hunt into the heart of Africa, and he became a candidate for the Republican presidential nomination in opposition to President William Howard Taft, who was supported by Mr. Roosevelt in the previous national campaign and election. The alleged reactionaryism of Mr. Taft was the big issue in the pre-convention campaign, and when the president won the nomination, the so called progressive dele- The Bench and Bar of Northern. Ohio - 73 gates left the convention and organized the Progressive party. Mr. Roosevelt was the party nominee, and in the election that followed, he polled more votes than did President Taft. In the skirmish in Ohio, Mr. Roosevelt polled a larger number of votes in the presidential preference primary than did his rival, President Taft, although the latter was a native Buckeye. This digression into the realms of national and state politics of the year 1912 was done to more forcibly bring to the minds of the readers of this article, the state of the public mind in Ohio and throughout the nation. The period was one which witnessed another outburst of unrest on the part of the public, and the agitation went even so far as to include the federal constitution. But the great bulwark of freedom, that greatest of all bills of human rights, that instrument under which the American Republic has not only been held together but all of its progress made, withstood the waves of criticism that beat against it, and the great document escaped the hands of the reformers. While these criticisms were being voiced, derogatory statements were published about the morals and integrity of the eminent and revered men, who participated in the federal constitutional convention. The result of all this popular agitation may be seen in the results of the convention and the proposals that were adopted, for the people undoubtedly took unto themselves a greater share in their government. A "progressive" program was put' through and adopted. Among the more important measures were the following: The adoption of the initiative and referendum. The extension of the system of making nominations for public offices. A modified form for the recall of public officers. The abolishment of prison contract labor. Municipal home rule. Judicial changes. Provision for a compulsory civil service system. The regulation of corporations. An amendment relating to the welfare of employes. Workmen's compensation. The delegates assembled in the hall of the house of representatives at Columbus, January 9, 1912, and they were called to order by the temporary chairman, Judge Dennis Dwyer, the oldest delegate that ever sat in an Ohio constitutional convention. He had reached his majority when the constitution of 1851 was adopted, and his review of the events covered by the long period of his life made a deep impression on all who heard him. A spirited contest developed when the election of a president was taken up and Herbert S. Bigelow, of Cincinnati, was chosen. He was an independent Democrat and for years had been a leader of those who were working for direct action in the state. Simon D. Fess, Republican, president of Antioch college, was chosen vice president of the convention four days after the opening session under an amendment of the rules. While the membership of the convention disclosed sixty-three Democrats, forty-nine Republicans, four Independents, two Social- 74 - The Bench and Bar of Northern Ohio ists and one independent Republican, there never was such a division on any issue. Even the natural division of progressives and conservatives was not always marked in the voting. The delegates submitted to the electorate forty-two proposals in the form of forty-two amendments to the constitution, and of these, thirty-six were approved by the Ohio electorate at a special election held on September 3, 1912. One of the most important changes to lawyers in the constitution is in Section 5, Article I, which reads as follows : "The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury." This carried a departure from a long custom in jury trials, by which the .unanimous consent of the twelve jurors was required to reach a verdict in civil as well as criminal cases, and while there has been some criticism .of the change, as might be expected, yet it is generally accepted as a rule that will not be abrogated,. and, therefore; it must be satisfactory to a majority. The delegates submitted a proposal that capital punishment be abolished under the wording : "Until otherwise provided by law, persons convicted of crimes heretofore- punished by death shall be punished by imprisonment in the penitentary during life." This was rejected, however, by a. vote of 258,706 to 303,246. Under Section 16 of Article I, of the new constitution, provision is made for suing the state, in such courts and in such manner. as may be provided by law. This never before had been permissible. Section 19-A of Article I, of the new constitution, contains another important departure in these words : "The amount of damage coverable by civil action in the courts for death caused by the wrongful act, neglect or default of another, shall not be limited by law." Prior to the approval of this amendment, the general assembly, by enactment, had placed a limit of $10,000 in such actions, and the electorate. approved the proposal by a vote of 355,605 to 195,216. The I & R proposal consumed more of the time of the delegates probably than any other subject, and around it some of the most heated debates revolved. This amendment is embraced in Section 1, a, b, c, d, e, f, g, of Article II. In general terms the reservations of popular power was made as follows : "The legislative power of the state shall be vested in a general assembly consisting of a senate and a house of representatives, but the people reserve to themselves the power to propose to the general assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided. They also reserve the power to adopt or reject any law, section of any law or any item in any law appropriating money passed by the general assembly, except as hereinafter provided ; and independent of the general assembly to propose amendments to the constitution and to adopt or reject the same at the polls. The limitations expressed in the constitution on the power of the gen-