Transcription contributed by Martie Callihan 11 December 2004
|The History of Warren County Ohio
Part III. The History of Warren County by Josiah Morrow
Chapter VI. General Progress
(Chicago, IL: W. H. Beers Co, 1882; reprint, Mt. Vernon, IN: Windmill Publications, 1992)
Biographies of some of the most distinguished members of the legal profession in Warren County will be found elsewhere in this work. It is proposal in this place to narrate, with some regard to chronological order, some facts concerning the bench and the bar of the county not elsewhere recorded. The sketch must necessarily be imperfect.
The legal business of the earliest pioneers of the county for eight years after its first settlement was transacted at Cincinnati. In 1796, there were nine practicing attorneys at Cincinnati, all of whom, except two, became confirmed drunkards, and descended to premature graves. Many of the early lawyers of Cincinnati who continued long in the practice attended the courts at Lebanon after the organization of Warren County. Judge Jacob Burnet says:
"It was always my opinion that there was a fair proportion of genius and talent among the early members of the bar. Some of them, it is true, were uneducated, and had to acquire their legal knowledge, after they assumed the profession. These were not numerous, but were noisy and officious, and, for some time, were able to procure a considerable amount of practice. This may be accounted for, in part, by the fact that the docket contained a large number of actions for slander, and assault and battery, and indictments for larceny, libels and the like, which generally originated among the followers of the army, who were numerous, consisting of pack-horsemen, bullock-drivers, boatman and artificers, who were not always very discriminating in the selection of counsel."
The attorney who prosecuted pleas in behalf of the State was appointed by the Supreme Court. Daniel Symmes, of Cincinnati, a nephew of Judge John Cleves Symmes, was appointed to discharge that duty at the first term of the Court of Common Pleas in Warren County, and prepared the indictments returned by the Grand Jury at that term. The sum of $20 was the usual allowance at that time for prosecuting pleas in behalf of the State at each term. Daniel Symmes served as Prosecuting Attorney in this county for a single term. He soon after became Speaker of the State Senate, and, in 1805, one of the Judges of the Supreme Court of Ohio.
Arthur St. Clair, Jr., also of Cincinnati, succeeded Daniel Symmes as Prosecuting Attorney in the courts of Warren County, and held the same position in some of the adjoining counties. He is said to have appeared in court with a cocked hat and a sword. He was a son of the Territorial Governor, Gen. Arthur St. Clair, and was a gentleman of culture and a lawyer of ability. Although he was not a resident of Warren County, yet, as he was for several years conspicuous in the administration of justice in this county, the following facts concerning him, communicated by Judge Burnet to the Western Law Journal in 1848, are here quoted:
"Arthur St. Clair was a native of Pennsylvania. He had been well educated, and was, moreover, a regular bred lawyer. Immediately after he came to Cincinnati, his father appointed him Attorney General for the Northwestern Territory, the duties of which office he performed acceptably to all concerned till it was abolished by the formation of a State Government. His manners were polished, his deportment popular, his talents highly respectable, and he supported an honorable standing at the bar. He was distinguished for great candor, which, it was supposed, he sometimes carried unnecessarily far. In 1799, he was a competitor with Gen. Harrison, then Secretary of the Territory,
|for the appointment of delegate to Congress, but failed to
succeed by a single vote. Having acquired an independent fortune, principally
by the rise of property, he retired from the bar. Unfortunately, he had
been intemperate, and consequently more liable to be imposed on. His acquaintances,
taking advantage of this circumstance, and of the natural kindness of his
disposition, obtained his indorsements to an amount which eventually absorbed
his estate, and consigned a helpless widow and family of children to poverty
It is worthy of note that Francis Dunlevy, the first President Judge of the circuit which embraced Cincinnati and the southwestern third of the State, was not a regularly educated lawyer, nor was he admitted to the bar until after his retirement from the bench. He was, however, a classical scholar, and had served as a member of the convention which formed the State Constitution, and of the Territorial and State Legislatures. He practiced law some years after his retirement from the bench.
Joshua Collett, the first resident lawyer of the county, had studied law in Martinsburg, Va. He came to Lebanon soon after the organization of the county.
Richard S. Thomas commenced the practice at Lebanon in 1804 or 1805. He represented the Warren District in the State Senate in 1806, 1807 and 1808. In 1809, he received, in the joint session of the Legislature, twenty-nine votes for United States Senator, but was defeated by Alexander Campbell, who received thirty-eight votes. Mr. Thomas moved from Lebanon to the West about 1810. He became a Circuit Judge in Illinois.
John McLean was admitted to the bar in the autumn of 1807, and commenced practice at Lebanon. His public life soon took him from the bar. He was elected to Congress in 1812, and became Judge of the Supreme Court of Ohio in 1816.
William McLean, a brother of John, was an early lawyer at Lebanon. He removed from Lebanon to Piqua, and was elected to Congress from Miami County, serving from 1823 to 1829. About the year 1829, he returned to Lebanon, and again practiced his profession.
Thomas Freeman came to the Lebanon bar from Cincinnati about 1809. He was a native of Pennsylvania, and practiced law with success in the Miami Circuit. His professional career was short. He died in 1818 from injuries received on being thrown from a horse, in the thirty-ninth year of his age.
Jacob D. Miller, a promising lawyer at Lebanon, died in early manhood, while representing Warren County in the State Senate, in the year 1827.
Thomas R. Ross who had studied law at Philadelphia, commenced practice in Lebanon in 1810, and was first elected to Congress in 1818. Phineas Ross, a brother of Thomas, was also a prominent early lawyer at Lebanon. He served for some time as Cashier of the Lebanon Miami Banking Company.
Jacoby Hallack was for twenty years a practicing member of the bar, and for several terms a member of the Legislature.
Benjamin Collett was one of the brightest lights of the Lebanon bar. Judge R. B. Harlan thus writes of him: "In my view, Ben Collett is entitled to be placed as a lawyer above all the lawyers of my acquaintance. If men have a natural genius for anything in particular, he had for the law. Apparently a slow thinker, he was the most ready man in the discussion of legal subjects that I ever listened to, and when he had closed an argument upon a legal question, nothing remained to be said on that side of the subject. His superiority on law questions over all his cotemporaries [sic] practicing at our bar was universally conceded. He had such a thorough knowledge of every branch
|of the law as to easily make himself master of any question
respecting it. He himself attributed his knowledge of the law to his having
studied principles instead of mere cases. His earnest advice to young lawyers
was to study the great principles on which the law is founded. His whole
soul was in his profession. The books he read were mostly law books. He
was a man of excellent temper. I never saw him out of humor, or heard him
use discourteous language to court or bar, party or witness. "This
talented lawyer fell a victim to intemperance, and was cut off in the prime
of life. He died June 24, 1831, aged thirty-eight years.
For twenty-five years after the organization of the county, not more than six members of the bar residing in Lebanon appear to have been engaged in active practice at any one time. The foregoing list, brief as it seems, is believed to contain the name of every attorney in the county who made a reputation at the bar or was engaged in the practice of law for any considerable time previous to 1825. There were doubtless others who became members of the bar and opened offices in the county and afterward retired to other fields of labor or removed to other localities.
In 1830, attorneys and physicians were subject to a tax of five mills on each dollar of their annual income. The records of the County Commissioners contain a list of the attorneys practicing in Warren County that year. At that time, John McLean was a Justice of the Supreme Court of the United States; Joshua Collet, Judge of the Supreme Court of Ohio; and George J. Smith, President Judge of the Court of Common Pleas. The following is the list of practicing attorneys: Thomas R. Ross, Phineas Ross, Benjamin Collett, Thomas Corwin, Francis Dunlevy, A. H. Dunlevy, William McLean and Jacoby Hallack. The sum of $750 is placed opposite each name as the income from the practice of law for the year, excepting those of Thomas Corwin and Jacoby Hallack, the income for the former being placed at $1,000, and that of the latter at $500. As the figures were merely estimates by the Commissioners, and not returns made by the attorneys themselves, they lose much of their value as evidences of the real profits of the profession fifty years ago.
The changes made in ten years will appear from the following list of practicing attorneys in 1840: Simon Suydam, J. Milton Williams, George J. Smith, John Probasco, Jr., A. H. Dunlevy, Robert G. Corwin, Thomas Corwin, Asahel Brown, Franklin Corwin, and, at Franklin, John W. Caldwell.
The following is the list for 1850: George J. Smith, J. Milton Williams, A. H. Dunlevy, E. Hutchinson, Durbin Ward, William S. Mickle, Lauren Smith, Robert G. Corwin, A. G. McBurney, John C. Dunlevy, J. Kelly O'Neall, James M. Smith and Horace M. Stokes. At this time, John Probasco, Jr., was President Judge.
Among the law firms of former years may be mentioned Ross & Corwin, consisting of Phineas Ross and Thomas Corwin; McLean & Smith, consisting of William McLean and George J. Smith; Williams & Collett, consisting of J. Milton Williams and William R. Collett; Corwin & Ward, consisting of Thomas Corwin and Durbin Ward; and later, a firm consisting of Thomas and R. G. Corwin and A. G. McBurney; Smith & Probasco, consisting of George J. Smith and John Probasco, Jr.; Dunlevy & Thompson, consisting of A. H. Dunlevy and Thomas F. Thompson.
Riding the circuit was the uniform custom of the early lawyers, whether they were old in the profession and had an established practice, or were young, briefless, and perhaps penniless, members, in search of business. They traveled on horseback, with their saddle-bags under them, an overcoat and umbrella strapped behind the saddle, and leggings well spattered with mud, tied with strings below the knees. Traveling the circuit became less common in the dec-
|ade between 1830 and 1840, and finally ceased. Subsequent
to 1840, it was continued only by the older lawyers, who had established
a practice in the different counties of the circuit which made the toilsome
journey, which took them away from their homes a considerable portion of
the year, a remunerative one. Ferguson's Tavern, in Lebanon, which stood
immediately east of the old court house, was a favorite stopping-place of
the lawyers in the olden time. Here, in court terms, Jacob Burnet,
Nicholas Longworth, Joseph S. Benham and
Thomas Morris met Corwin, the Colletts
and the Rosses, and the evenings were enlivened with mirth and jollity.
Lawyers' fees were low in the early days of Ohio. A charge of hundreds of dollars for an attorney's services in a single case was rare. A fee of $1,000 was almost unknown. Ejectment suits, which most frequently arose from disputed land boundaries in the Virginia Military District east of the Little Miami, were perhaps the most profitable part of the early lawyers' practice. It may be safely assumed that for twenty-five years after the organization of courts at Lebanon, $750. which was for much of that time the salary of the President Judge, was above rather than below the average annual income of a lawyer in full practice in Warren County. With the growth of population and wealth of the county, the profits of the practice of law increased.
In 1836, Judge George J. Smith was retired from the bench to the ranks of the profession by reason of a change in the political complexion of the Legislature. His salary as President Judge had been but $1,000. The Judge in after years sometimes amused his friends by relating to them the anxiety by which he was oppressed on being deposed from his office, and the concern which he felt lest he should not be able to provide a maintenance for his family by his practice at the bar, from which he had been withdrawn for seven years. His forebodings, however, proved unfounded, as his receipts from his practice during the first year after its resumption exceeded $3,000.
The salary of the Judge of the Court of Common Pleas was fixed, in 1803, at $750; in 1816. at $1,000; in 1837, at $1,200; in 1852, at $1,500; and in 1867, at $2,500.
So far as is known, all the older members of the profession in the county were opposed to the adoption of the reformed method of civil procedure which was enacted by the Ohio Legislature in 1853. It had been under discussion in the State since its adoption in New York in 1848. It has since been adopted by more than twenty American States and Territories, and has been accepted by the British Parliament. The old system of pleading, with its conflicting and confusing distinctions in the forms of remedial actions, had long remained one of the greatest and most unnecessary burdens on the administration of justice, both in England and America. It had originated at a remote period, and was possibly contrived for the purpose of securing to the favored few the exclusive administration of justice. The style used in pleading was awkward and clumsy from the use of unmeaning phrases, and was redundant in the use of synonyms and repetitions. The old lawyers, familiar with the artificial and technical rules of the old system, had learned to admire even its fictions, circumlocutions and contradictions, and taught it to their students as the perfection of reason and the most beautiful of human sciences. In the opinion of Edmund Burke, the science of law "does more to quicken and invigorate the understanding than all other kinds of learning put together, but it is not apt, except in those happily born to open and liberalize the mind in exactly the same proportion." The lawyer's habit of constantly appealing to authorities and precedents is not the most favorable to the development of the true spirit of progress. Certain it is that the most needed reforms in the law make slow progress. Even after the enactment of the code of civil procedure
|by the Legislature, the full measure of the reform intended
by it was not experienced by the profession in this county. The older and
leading lawyers, whose habits of thought had been formed under the former
system, made the new practice conform to the old as far as possible. Judge
Nash's work on pleading and practice was for many years in general use by
the profession in this county. This author was an avowed enemy of the code
system of practice, and confessedly resorted to the old precedents for his
forms, and substantially followed them. A generation, however, has made
great changes. Experience has given proof of the wisdom of reforming the
practice, and to-day not a lawyer educated under the code system would be
willing to go back to the common law pleading.
Below is given a list of the President Judges of the Court of Common Pleas of the circuits in which Warren County was placed under the constitution of 1802, and the Common Pleas Judges of the subdivision of the judicial district of which the county was a part under the constitution of 1852:
PRESIDENT JUDGES UNDER THE CONSTITUTION OF 1802.
of Warren County, 1803-1817.
COMMON PLEAS JUDGES UNDER THE CONTITUTION OF 1852.
William A. Rogers, of Clark County, 1852; died 1855.
[Since 1872, there has been a Common Pleas Judge residing in Warren County, and the names of the Judges after that date residing in the other counties of the subdivision of which Warren forms a part are omitted.]
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