Peter Marshall Hitchcock

Peter Marshall Hitchcock served for nearly 30 years on the Supreme Court of Ohio, 21 of those as Chief Justice.

The youngest son of Valentine, a tailor and farmer, and Sarah Hotchkiss Hitchcock, he was born in Cheshire, Conn. on Oct. 19, 1781. He attended local schools, worked on his father’s farm and taught school before enrolling at Yale University, where he graduated in 1801. After graduation, Hitchcock read law in the Kent, Conn. offices of Barzillai Slosson. Hitchcock was admitted to the Connecticut bar in March 1804 and opened a law practice in Cheshire.

In June 1806, Hitchcock, hoping to find greater success in the new state of Ohio, moved his young family to Geauga County, in the former Connecticut Western Reserve. Hitchcock settled on an unimproved farm that thereafter was the family homestead. Shortly after his arrival, he opened a law office, took up farming and taught school to support his family.

Hitchcock served in the Ohio House in 1810 and 1811 and in the Ohio Senate from 1812 to 1815. During his last year in the Senate, Hitchcock held the post of speaker. While serving in the Ohio Senate, Hitchcock’s name was twice placed for nomination to the U.S. Senate; first in 1814, to complete Thomas Worthington’s term, and then in 1815, to succeed Joseph Kerr for a full six-year term. On both occasions Hitchcock failed to win enough votes. His service in the Ohio Senate was interrupted by time spent in the Ohio militia during the War of 1812. In 1814, Gov. Thomas Worthington commissioned Hitchcock a lieutenant colonel in the Fourth Regiment of the Ohio Militia. In 1816, Gov. Worthington commissioned Hitchcock a major general of the Fourth Regiment.

In November 1816, Hitchcock was elected to the U.S. House of Representatives for the 6th Congressional District. He served from March 1817 to March 1819, but decided not to seek a second term. The Ohio General Assembly elected Hitchcock to his first term on the Supreme Court in 1819, and he served two seven-year terms before leaving in 1833, when the Democratic Party majority in the General Assembly chose not to elect him to a third term.

Instead, Hitchcock once again successfully campaigned for a seat in the Ohio Senate at the October 1833 general election. His Senate colleagues again chose him to be their speaker. In 1835, the legislature elected Hitchcock to a third term on the Supreme Court. When Hitchcock’s term on the court ended in 1842, the Democrats once again held a majority of the seats in the General Assembly and refused to re-elect Hitchcock. The two-year period from 1843 to 1844 marked the longest time that Hitchcock did not hold public office. Hitchcock was returned to the Supreme Court bench in 1845. Hitchcock served the full seven-year term, but decided not to seek popular election under Ohio’s 1851 Constitution, although he favored the direct election of judges to the court’s bench. In his years on the Supreme Court, Hitchcock served as Chief Justice during the years 1831 to 1833 and 1849 to 1851.

One of Hitchcock’s published opinions cited many times concerned rights to the use of water in free-flowing streams that pass through privately owned property. By the 1830s, because of canal construction in Ohio, individuals and governments recognized the problems that could arise from the diversion of water to operate canals, mills or other businesses in need of water power. In 1832, the Supreme Court heard the case of Cooper v. Williams that involved the allegedly excessive diversion of water from the Mad River near Dayton to serve a public canal. Although the Court found that no surplus water was withdrawn from the river, Judge Hitchcock acknowledged that such a diversion would have constituted a compensable taking of usage rights.

He noted in his opinion that a proprietor possesses the same right to use the water flowing through his land that he does to the land itself. “The water itself is not his. It is the use. . . . (O)f this right he may be deprived, if the ‘public welfare’ require it, so far as that public welfare does require, he first having been compensated for the injury.” Hitchcock wrote that when the water was taken from the river at Dayton to feed the canal, the complainants were deprived of a right. And for this they did, or might have received compensation. Twentieth century writers who discuss Hitchcock’s opinion commented that “(i)nterestingly, in stating, ‘The water itself is not his. It is the use,’ Judge Hitchcock was willing to jettison the conceptual link between takings of usage rights and takings of physical things. What might have been taken was not the water itself, but the usage rights associated with the land. Finding a compensable taking of the latter did not depend on the physical appropriation of the former.”

In 1851, Hitchcock served as a delegate from Geauga County to Ohio’s second Constitutional Convention and played a pivotal role, not only arguing for the direct election of Supreme Court judges, but also for the direct election of the offices of lieutenant governor, auditor of state, treasurer of state, secretary of state and the newly created office of attorney general. Hitchcock also opposed the idea of giving veto power to the governor. Hitchcock argued that giving such power to the governor weakened the power of the legislature and could make that office capable of making laws. His view prevailed in the debates and the governor did not receive the veto power until 1905.

Hitchcock married Nabby Cook in Cheshire, Conn. in 1805, and they raised seven children to adulthood, including Lake County Common Pleas Court Judge Reuben Hitchcock and the Rev. Henry Hitchcock, president of Western Reserve University. In March 1832, Hitchcock joined the Burton Congregational Church and remained active in the church for the next 22 years. Hitchcock remained active after his service at the Constitutional Convention and represented clients who wished to have their cases appealed to the Supreme Court. Hitchcock became ill while traveling home after appearing before the Court and died at the home of his son, Reuben, on March 4, 1852. A memorial service was conducted at his home in Burton, with burial taking place in Burton’s Welton Cemetery.