Joseph Rockwell Swan
b. Dec. 18, 1802
d. Dec. 18, 1884
36th Justice of the Supreme Court of Ohio
Term
Feb. 9, 1855
to Oct. 18, 1859

JOSEPH ROCKWELL SWAN

Joseph Rockwell Swan’s biggest contribution to the legal field was not as a judge, but as an author of legal reference guides and legislation.

He was born on Dec. 28, 1802 to Jonathan and Sarah Rockwell Swan in Westernville, N.Y. He received his initial education at Aurora, N.Y., where he began to study law.

Moving to Columbus in 1824, Swan completed his legal studies under the guidance of his uncle, Judge Gustavus Swan, who also served on the Supreme Court of Ohio. Swan was admitted to the Ohio bar in 1824.

Swan was appointed prosecuting attorney by the Franklin County Court of Common Pleas in 1830. In 1833, the Ohio General Assembly enacted legislation to provide for the election of prosecuting attorneys by general vote, rather than appointment by the common pleas courts. Swan won the first election to this position in 1833. Under the 1802 Ohio Constitution, judges of the Supreme Court and common pleas courts were elected to these positions by the Ohio General Assembly. In 1834, Swan was elected by the Ohio General Assembly to be president judge of the Court of Common Pleas of the Twelfth Judicial Circuit consisting of Franklin, Madison, Clark, Champaign, Logan, Union, Hardin and Delaware Counties. He resigned as prosecuting attorney, served a seven-year term and was re-elected by the Ohio General Assembly in 1841.

Service as a common pleas judge was grueling. The position required travel to the county seat of each county in the circuit once each year to hold court. Lacking the resources of law libraries, Swan relied on his knowledge of the law and legal precedents to administer justice in civil and criminal cases. His memoriam in Ohio State Reports said, “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.”

Perhaps Swan’s most important contribution to Ohio jurisprudence were the many reference books he wrote to guide jurists, lawyers and law students in their application and interpretation of Ohio’s laws. In 1836, he published A Treatise on the Law Relating to the Powers and Duties of Justices of the Peace, etc. This book subsequently had 11 editions and greatly aided justices of the peace, judges and lawyers. Swan’s Statutes of 1841 collated and arranged the statutes of Ohio into an easy-to-use volume. Updates of Swan’s Statutes also were published in 1854-1855, 1860 and 1868.

Other textbooks included the Guide to Executors and Administrations (1843 and subsequent editions) and Pleadings and Precedents (1845 and 1850). Chief Justice William W. Johnson wrote that Swan’s book, Pleadings and Precedents Under the Code, (1860) greatly helped jurists apply the newly enacted Code of Civil Procedures. Rather than emphasizing technical rules, it promoted a flexible interpretation. He wrote, “At the time of its adoption, there was a strong disposition to apply to its construction, the technical rules of the Common Law, which, if done, would have made the Civil Code an impediment to, rather than an instrument of furtherance of justice.”

Swan often was asked by the Ohio General Assembly for assistance with drafting legislation. He wrote An Act Relating to the Settlement of the Estates of Deceased Persons and An Act Relating to Wills that were enacted by the Ohio General Assembly in 1840.

Leaving the common pleas court in 1848, Swan and John W. Andrews formed a legal partnership in Columbus under the name Swan & Andrews, which continued until 1854.

In 1854, Swan helped found the Republican Party. He was nominated by the party for a position on the Supreme Court. He won the election and began his term on Feb. 9, 1855. His opinions are in volumes 4 to 9 of Ohio State Reports. Prior to 1913, the office of Chief Justice rotated amongst the justices. Swan served as Chief Justice from Feb. 9, 1859 to Oct. 18, 1859.

In the years prior to the Civil War, the Supreme Court dealt with several cases involving slavery. A challenge to the Fugitive Slave Act of 1850 was considered by the Court in Ex Parte Bushnell (1859). Although Swan personally was opposed to slavery, he wrote the majority opinion stating that since Article 4, Section 2 of the U.S. Constitution guaranteed the owner of a slave the right of recovery, the law must be enforced and obeyed. Swan put his devotion to the “rule of law” above his personal feelings. The last paragraph of his opinion expressed his moral dilemma:

“As a citizen, I would not deliberately violate the constitution of the law, by interference with fugitives from service. But if a weary, frightened slave should appeal to me to protect him from his pursuers, it is possible that I might momentarily forget my allegiance to the law and constitution, and give him a covert from those who were upon his track—there are, no doubt, many slaveholders who would thus follow the impulses of human sympathy. And if I did it, and were prosecuted, condemned, and imprisoned, and brought by my counsel before this tribunal on a habeas corpus, and were then permitted to pronounce judgment in my own case, I trust that I should have the moral courage to say, before God and the country, as I am now compelled to say, under the solemn duties of a judge, bound by my official oath to sustain the supremacy of the constitution and the law: ‘THE PRISONER MUST BE REMANDED.’”

This opinion was delivered shortly before the beginning of the Republican State convention. Swan sought re-election to another term on the Supreme Court. Delegates so disagreed with his decision in Ex Parte Bushnell that they denied him the party’s nomination. Swan submitted his resignation to Gov. Salmon P. Chase, effective Oct. 18, 1859.

Retiring from public life, Swan joined the Columbus and Xenia Railroad Company as solicitor in 1859. In 1862, Gov. John Brough appointed him to the vacancy on the Supreme Court caused by the death of Justice Gholson, but Swan declined the appointment. In 1870, Swan became the solicitor and law advisor for the newly formed Pittsburgh, Cincinnati and St. Louis Railroad. Due to ill health, he resigned this position on June 1, 1879.

Swan and Hannah Ann Andrews of Rochester, N.Y. were married in January 1833. They were the parents of five children. Swan died on Dec. 18, 1884 at his residence in Columbus. His funeral was at Trinity Church on Dec. 21, 1884 and he was buried next to his wife in Greenlawn Cemetery in Columbus.