SUPREME

JUDGES OF THE

COURT OF OHIO,

For the year commencing February 9, 1885, and ending February 9, 1886.

IN MEMORIAM.

Judge JOSEPH R. SWAN, formerly a Member of this Court, having departed this life on the 18th day of December last, it is ordered that John W. Andrews, Allen G. Thurman and R. A. Harrison, Members of the Bar of this Court, be appointed to prepare and present to the Court a biographical sketch of the public services and character of Judge SWAN for insertion, with the action of the Court thereon, in the next volume of the decisions of the Court.

Said committee afterwards submitted the following, which was approved by the Court, and ordered to be published in volume 42 of the Ohio State Reports, together with the response of the Court thereto.

Judge JOSEPH R. SWAN died at his home in the city of Columbus, on the 18th of December, 1884. He was for many years an honored member of this court; and his eminence as a judge, a lawyer and a citizen, seems to call for some recognition of his character and services that can be placed, by order of the Court, upon its records, and made a part of the judicial history of the State.

Judge SWAN was born December 28th, 1802, in Oneida county, in the State of New York. He received a classical education at Aurora, in that State, where he began the study of the law; and coming to Columbus in 1824, he entered the office of his uncle, Judge Gustavus SWAN, as a student, and was soon after admitted to the Bar.

He was appointed by the Court of Common Pleas Prosecuting Attorney of Franklin county in 1830; and in 1833 elected by the people to that office, which he continued to fill until 1834, when he was elected by the General Assembly judge of the Court of Common Pleas of a judicial circuit, then consisting of the counties of Franklin, Madison, Clark, Champaign, Logan, Union and Delaware, and was re-elected by the same body in 1841.

His large natural abilities, extensive and accurate learning, judicial cast of mind, and balance of character, eminently fitted him for the Bench; and he was soon recognized by both the Bar and the people of his circuit, as a man of extraordinary qualifications for his post, and a power in the administration of justice; and before his re-election in 1841, his reputation as a jurist had reached every county in the State.

In 1845, he resigned his office as Judge of Common Pleas, and entered into partnership with Mr. John W. Andrews, of this city, in the practice of the law, which he pursued with energy and success until 1854, when, under the excitement produced by the Kansas-Nebraska bill, so called, and the formation of the Republican party consequent thereon, and of which he was one of the founders, he was nominated for the post of Judge of the Supreme Court, and elected by an overwhelming majority. On the bench of the Supreme Court he fully sustained his earlier reputation as a Judge, and probably held as high a place in the estimation of the Bench, the Bar and the Public, as has ever been reached by any one of the many distinguished men who have adorned our judicial history. Wise, patient, firm, impartial, courteous, he never lost sight of the dignity of his high office, to which he brought unusual native vigor of mind, large stores of learning, untiring. industry, and the most conscientious regard for the rights of litigants, and abhorrence of all injustice and wrong. His term of office closed at a period of unusual political excitement. North and South were arrayed against each other, and freedom and slavery were about to fight their great battle. In 1859, the case Ex parte Bushnell, 9 Ohio St. 78, came before the Supreme Court of the State. It was sought in this case, under a writ of habeas corpus issued from the Supreme Court of the State, to override a judgment of the District Court of the United States for the Northern District of Ohio, and to discharge from jail a prisoner who had been convicted and sentenced by that court for a violation of one of the sections of the Act of Congress of 1850, known as the "Fugitive-slave law." It was a dangerous crisis; and grave apprehensions were entertained, that a conflict might result, as it was believed that in case of a decision by the State Court in favor of a discharge of the prisoner, there must be a collision between the State and National authorities. Judge SWAN delivered the opinion of the Court (a bare majority concurring), holding that the State could not interfere with the action of the Courts of the United States within their well

established constitutional limits, and the application for the discharge of the prisoner was refused. This was probably the most important act of Judge SWAN'S life, and showed the stuff of which he was made. To his mind, a simple question of law was presented for decision, and with that, sectional passions, political excitement, partisan conventions and leaders had nothing to do. It was above them all, and must be decided upon well-settled principals of adjudication that were independent of and would survive them all. It was so decided; and at the Republican Convention that assembled soon after, under the excitement of the moment, Judge SWAN was defeated as a candidate for re-nomination, and Judge GHOLSON was nominated in his stead. The rebuke did not disturb him; and not long afterwards an appointment to the Supreme Bench, as well as a Republican nomination as a candidate therefor, were tendered him. But after leaving the Supreme Bench in February, 1860, he never resumed the active practice of his profession, nor accepted a judicial position.

In 1836 he published the Treatise entitled "A Treatise on the Law relating to the powers and duties of Justices of the Peace, etc.," which has gone through eleven editions, and it is understood that a twelfth edition was prepared by him, to be published after his death. This has probably proved to be the most useful book ever published in Ohio. Its circulation has been immense among the successive generations of justices of the peace in every township of the State, lawyers, county officers, judges and business men, in other States as well as our own; and it has been the model for similar works elsewhere. The influence of such a book, circulating in every neighborhood, and among all classes, in shaping the character of the people, and inculcating a reverence for law, can hardly be over-estimated.

On the 23rd of February, 1850, the General Assembly passed an act calling a convention to revise or amend the Constitution of Ohio; and Judge SWAN was elected a delegate thereto, from the County of Franklin; and in that body was appointed a member of the Committee on the Judical Department, and also of the Committee on Public Debts and Public Works. In both committees, as the journal of the proceedings of the Convention shows, he rendered valuable service.

In 1840, "An Act relating to the settlement of the estates of deceased persons," and another "Act relating to wills," were prepared by Judge SWAN, and enacted by the General Assembly. But few amendments

of these statutes have been found necessary. Many other important statutes were framed by him, as he was habitually consulted by members of the General Assembly as to legislation of a non-partizan char

acter.

Four general revisions of the statutes of Ohio were made by Judge SWAN. As to these, the Commissioners who made another general revision in 1880, say: "Meanwhile the statutes had become numerous, and had fallen into such confusion, that a systematic republication of the laws in force had become a necessity. Fortunately, the work was undertaken by one competent for the task, and it is only just to say, that with the material before him, and in the absence of all power to change it, perhaps no other man would have been able to produce a collation of our statutes so admirable in all that pertains to the work of an editor, as SWAN'S Statutes of 1841. In 1834-5, 1860 and 1868, Judge SWAN performed the same task of collating and arranging the statutes in force."

He published several other text-books besides the well-known treatise referred to. His "Guide to Executors and Administrators," appeared in 1843, and passed through several editions. "SWAN'S Pleadings and Precedents" was published in two volumes; the first in 1845, and the second in 1850. "SWAN'S Pleadings and Precedents under the Code," which was appropriately dedicated "To the Young Gentlemen of the Bar," was published in 1860. The last-named work was written in the same liberal spirit in which the Civil Code of the State was devised and enacted, and it produced the effect which Judge SWAN had in view in its preparation. The Bench and Bar of Ohio were largely influenced by it, and led to construe the Code in the spirit of the Code itself; and as a consequence, questions of pleading and practice brought before the Supreme Court of Ohio under the Code, which in the State of New York fill many volumes, would not altogether make one volume of the size of the Ohio State Reports.

In the midst of such cares and labors, Judge SWAN found time for general reading. He read rapidly, and his range of reading was wide in all departments of English literature; but his preference was for history; and he was especially interested in, and familiar with, the history of England during the seventeenth century.

His private life was, in all respects, in keeping with, and worthy of the place which he held in the estimation of the public.