The Bench and Bar of Dayton
A Paper read at a joint meeting of the Dayton Historical Society and
the Montgomery Bar Association, Saturday, March 3, 1900
By Hon. Lewis B. Gunkel
LEWIS B. GUNCKEL, who delivered the address on the history of the Dayton Bar before the joint meeting of the Bar Association and the Historical society on March 3, 1900, was born in Germantown, Ohio, October 5, 1826 - graduated from Farmer's College in 1848 and from the Law School of Cincinnati College in 1851 and was admitted to the Bar the same year; was State Senator 1862-1865; on a committee that sought the reestablishment of the Dayton Journal as a loyal newspaper after it had been burned by the mob following the arrest in the night of Clement L Vallandigham by General Burnside's soldiers, as a result of which, Major W. D. Bickham from the staff of General Rosencrans came to Dayton; Mr. Gunckel was a delegate to the Republican convention that nominated John C. Fremont for President in 1856: was a member of the Board of Managers of the National Military Home for Disabled Volunteer Soldiers (now Veterans Facility) from 1864 to 1876; was a Representative in Congress from March 3, 1873, to March 3, 1875, when he was succeeded by the late Hon. John A. McMahon, who had been the law partner of Vallandigham. He died while still an active practitioner of the law in the firm of Gunckel, Rowe & Shuey, 8 N. Main St. on October 3, 1903, and is buried in Woodland Cemetery.
A few weeks ago I met a group of young Dayton lawyers—not one of whom had ever heard of Joseph H. Crane, John Howard or Samuel Craighead.
How evanescent is fame! How soon are the wisest and best forgotten. President Elliot, of Harvard University, in a recent magazine article says: "To be absolutely forgotten in a few years is the common lot of mankind. * * * With the rarest exceptions, the death of each human individual is followed in a short time by complete oblivion so far as living human memories are concerned."
And yet how much might the young learn from the old; the living from the dead. How helpful would be the experience of our grandparents; how inspiring and uplifting the story of those who founded the city and the state, and made possible their rapid growth and their present prosperity.
To help in a small way to rescue some local reputations from oblivion, and to hold up their noble lives as an example to our young men, I have consented to give my "Recollections of the Early Bench and Bar of Dayton." In doing so, I will limit my remarks to those who were admitted to the Bar prior to 1860— say forty years ago. Even of these I will speak only of those who are dead; it would be unseemly for me to pass judgment upon my living contemporaries; much as I would like to speak the praise so many of them richly deserve.
It is meet that this attempt to do tardy justice to the early Bar be made in this old Court room, where the Cooper and Huffman Will Cases and other legal con-tests were fought out by the giants of our own Bar and such notable lawyers as Thomas Ewing, Henry Stansbery, Thomas Corwin, Judge Johnson, Judge Thurman and Thomas Millikin.
A FEW HISTORICAL FACTS
as to the beginning of judicial administration in Dayton, will serve to introduce and help us to appreciate the lawyers of the olden time. For these, I beg you to understand, I rely, not upon my own personal recollection, (I am not so old as that) but upon the interesting sketches published by Maskel E. Curwen, Capt. Ashley Brown, Robert W. Steele and George W. Houk. I am sorry to say, that the historical value of Mr. Houk's excellent sketch is much lessened by the fact that it is largely given to eulogies upon four personal friends; three of whom were living when the sketch was written.
One of the first acts of the first Legislature of Ohio, established the county of Montgomery, and provided for a Court of Common Pleas to be held in Dayton, which was then a village of a dozen houses and less than fifty people. Two years later, to-wit, in 1805, Dayton was incorporated. Its total expenditures for the first year were $72.00. On a question whether the rate of taxation should be increased, the total vote was 30; being 13 for, and 17 against the increase. It is worthy of note that there was a distinct recognition made nearly a hundred years ago, of the modern doctrine of the initiative and the referendum.
The first term of the common pleas court was held on the 24th day of June, 1803, in the upper room of the log cabin, located on the northwest corner of Main and Water streets, then the residence of George Newcom. The cabin has fortunately been preserved by the Dayton Historical Society. The Presiding Judge was Francis Dunlevy, a lawyer of learning and ability, who came from Lebanon on horse-back, carrying his library in his saddle-bags. There being no cases to try, the court sat but one day. The next term was held on the 27th of November, 1803. There were no lawyers then living in Dayton; the prosecuting attorney came from Cincinnati. The grand jury held its sessions under a big oak tree in the back yard—the place being protected by thick bushes. George Newcom was the first sheriff, and for want of a jail, he confined those awaiting trial in a dry well in his back yard. Curwen says:
"Newcom followed the example of the Old Testament jailors: he let down those who broke the peace, and there they remained until brought up for trial." Punishment was generally by fine, payable in corn, pigs or deer skins, and for graver misdemeanors by lashes, not exceeding 39, well laid on the bare back.
In 1805, we are told, the village had grown so it could boast of nearly two hundred inhabitants—but, sad to say— there was not a lawyer in the town!
Three years later, Robert W. Steele tells us, "Dayton has now become an enterprising little town. The tavern, stores, pack horses, and flat boats are doing a good business. There are three doctors one minister, a school teacher, and a lawyer, Joseph H. Crane, living in town."
And we are told that for ten years. Crane was the only lawyer in the town. Although he had all that time a complete monopoly of the law business, his fees were so small, and often paid in produce, and sometimes not at all, that he made a bare living out of his profession. In 1809, Crane was elected to the legislature, and he was the only lawyer in the house of representatives. The historian tells us that "as a consequence, the session was short and the laws few."
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