By Rob Neff
Our predecessors here in Crawford County, that is. But they might not have told you in any autobiography. And they might not have shown you with their less than impressive tombstones. Josiah Scott certainly didn’t leave any such evidence in either respect, yet at the time of his passing in 1879, he was without peer in the judiciary in the State of Ohio.
Josiah Scott was born on December 1, 1803 in Washington County, PA, nine months to the day after Ohio was granted statehood. Although not born a Buckeye, Scott would become one of Ohio’s favorite sons.
Scott demonstrated intellectual promise as a child, and his father insisted on a classical education, hoping his son would become a minister. Scott graduated from Jefferson College in Pennsylvania in 1823 and taught for six years, first in Buck’s County, Pennsylvania, then in Virginia. Not content with teaching, or perhaps because his maternal grandfather, John McDowell, was a judge, Scott read law in his spare time. In 1829, Scott decided to embark on a legal career.
Scott’s choice to begin his practice in Crawford County belied a modesty that would characterize his legal career. Although Scott visited a fellow Jefferson College alumnus who was practicing law in Mansfield, OH, he did not begin his practice there, but continued on to Bucyrus, which at the time consisted of about 300 people, and was just six miles east of the Wyandot Indian reservation, which occupied part of Crawford County at that time.
Scott’s early years in practice were daunting. Although his grandfather had been a judge, Scott did not have the experience of observing trials in his youth. This lack of practical experience and his reluctance for public speaking caused him to lack confidence in his abilities. He found it easier to speak on behalf of clients when he believed strongly in the justice of their cause, and soon came to represent a fair number of women, as well as a number of Wyandot Indians, two groups of people who did not enjoy full legal rights of citizens at the time.
Scott’s friendship with the Wyandots was notable. They came into town to trade frequently, and often visited Scott’s office. Scott sometimes joined in their fun and games, and, on occasion, could be seen, and heard, racing ponies with them in the streets of Bucyrus, whooping and shouting. The Wyandots gave Scott an Indian name, calling him “Big Head” in reference to his size 8 hat. The Wyandots’ high regard for Scott was best demonstrated when one of his Wyandot friends named his son “Josiah Scott.”
Scott first answered the call to public duty in 1832 when he was named Colonel of the local militia. The militia was formed at least in part as a result of the border dispute between Ohio and Michigan over the Toledo Strip of land, and the concern that the dispute might escalate to a war between the States. The dispute was resolved by negotiation, and Josiah Scott was known as Col. Scott until he became a judge of the Ohio Supreme Court.
In February 1838, Col. Scott married Elizabeth McCracken. The marriage produced five children, three of whom survived. Public duty called again during this marriage when Col. Scott was elected to serve in the State legislature as representative for Crawford, Marion and Delaware Counties. This was the first of several surprises in Col. Scott’s life as a public servant. The district was solidly Democratic, and Col. Scott was a member of the Whig party. Nonetheless, he was elected. He served one term in the legislature from 1840 to 1842 and did not seek reelection.
Col. Scott’s term as legislator included one of his most anxious moments. Col. Scott was known to be absent minded with money, and on several occasions had lost fees he had earned by leaving them in the pocket of a coat hung in a public place. Once, the County Treasurer entrusted to him the tax receipts to be delivered to the State Treasurer. It was late when Col. Scott arrived in Columbus, so he kept the money with him overnight and tucked it in his pocket when he went to breakfast in the morning. When he returned to his room after breakfast, the money was no longer in his coat. Knowing that his political opponents would accuse him of losing the money gambling, Col. Scott said nothing of the loss to anyone and hastily retraced his steps and found the money on the chair where he ate breakfast. As Col. Scott confided to his brother-in-law and close friend John Moderwell, who was the only person who knew of this experience for years, when he discovered the loss, his feelings of despondency were the strongest he had ever felt. When he found the money, his feelings of relief and joy were the strongest he had ever felt, and he much preferred the latter to the former.
Col. Scott’s wife, Elizabeth, died in 1844. Scott lost his own mother at age 9, and his father quickly remarried Esther Craighead, who was a loving and supportive stepmother. Col. Scott was determined that his children might have the same experience. One day Col. Scott noticed an attractive young lady sweeping the step of a rooming house in Bucyrus, and at once thought that she would make a suitable wife. He tipped his hat and received a mutually cordial greeting. He later inquired after her and learned that she was Susan Elizabeth Moffit Austin, a widow of suitable age, from a good family, with no children of her own. By the time he resolved to introduce himself formally and make his intentions known, she had removed to Cincinnati to visit family. Col. Scott resolved to travel there to propose to her, commenting to friends that if she declined, the Ohio River was nearby. Fortunately, Susan honored Col. Scott by accepting his proposal and they married in Cincinnati on May 4, 1846 and spent the rest of Col. Scott’s life in happy matrimony.
Susan was the loving wife and stepmother that Col. Scott had sought, yet she brought many changes to his life. Susan wished to move to Cincinnati to be near her family. However, Col. Scott doubted that his legal skills would hold up well in the face of the Cincinnati Bar, which included luminaries such as Salmon P. Chase, who would later become Governor of Ohio and ultimately Chief Justice of the U.S. Supreme Court. Susan and Col. Scott compromised and settled on Hamilton, Ohio, closer to her family, but sharing some of the same cultural qualities as Crawford County.
Col. Scott practiced law in Hamilton until 1856, when the newly formed Republican Party nominated him to run for judge of the Ohio Supreme Court. The nomination came as a surprise to many, including Col. Scott. Overcoming his surprise and modesty, Col. Scott agreed to run, intending to serve for a year and then resign in deference to a more able judge. He defeated the incumbent, who promptly resigned, and was appointed by Gov. Salmon P. Chase to fill the seat until the beginning of his elected term of office.
Judge Scott found the work on the Court enjoyable, but not without controversy. During his first term, he became embroiled in the Bushnell and Langston cases, which involved the federal Fugitive Slave Act. Charles Langston, a free black man, and Simeon Bushnell, a white abolitionist, had participated with thirty or so likeminded abolitionists in rescuing John Price, a fugitive slave from Maysville, Kentucky, from the custody of federal marshals in Wellington, Ohio and transporting Mr. Price to Canada. Both men were convicted in Federal Court in Cleveland and sentenced to jail. Both filed habeas corpus petitions to Judge Scott as an individual justice of the Ohio Supreme Court contending that their imprisonment was unconstitutional. Judge Scott granted the preliminary writs, setting the stage for hearing by the full Ohio Supreme Court.
The cases, involving the so-called “Oberlin-Wellington Rescue” attracted national attention on the most pressing public issue of the times. The cases also presented great difficulty for Judge Scott, who was the swing vote on a divided court. Judge Scott had witnessed the horrors of slavery as a young man while teaching in Virginia, and found it repugnant that one man could presume to own another. He also had every reason to suspect, if not know, that his brother-in-law and confidant, John Moderwell, the Presbyterian minister in Bucyrus, was assisting fugitive slaves with the Underground Railroad in Crawford County. Despite these difficulties, and despite that fact that Gov. Salmon P. Chase was reportedly ready to deploy the Ohio National Guard to secure Langston’s and Bushnell’s release from federal custody had the Ohio Supreme Court ruled in their favor, Judge Scott joined with Chief Judge Swan and Judge Peck in ruling that the State of Ohio had no authority to interfere with the federal law authorizing prosecution and imprisonment of those who assisted and harbored runaway slaves.
For this fulfillment of his sworn duty, Judge Scott, together with Judges Swan and Peck, was hanged and burned in effigy in the Western Reserve portion of Ohio. It was said that none of the three would ever be reelected. In fact, Chief Judge Swan was not even renominated by the Republican Party to run for reelection, even though he, as did Judge Scott, expressed personal opposition to slavery. The Civil War broke out before the next election. Judge Scott expressed his unequivocal support for the Union and its cause, and was re-elected by a greater margin than before. He subsequently was reelected and served a third term, but declined to run again thereafter.
After leaving the Court, Judge Scott was asked by the Republican Party to pursue the nomination for Governor. He declined, wishing to return to private life and resumed his law practice in Bucyrus with attorney Stephen Harris, with whom he had been associated previously during his practice. The GOP chose Rutherford B. Hayes as its gubernatorial candidate instead.
After five years of practicing law in Bucyrus with Attorney Harris, Judge Scott received a letter from Governor Hayes appointing him to be the head of the Ohio Supreme Court Commission, which consisted of five judges to assist the Court in clearing its backlog of cases. This too, was a surprise, as Gov. Hayes mentioned in his letter that he had not consulted Judge Scott prior to making the appointment so that it would be clear that it was his worth and not his wishes that secured him the position. Judge Scott accepted the position and served three years until February 1879, never finding it necessary or appropriate to inform his fellow judges that he was the head of the commission.
When Judge Scott left the Ohio Supreme Court Commission, he had served 18 years with the Court, longer than anyone else at that time. He returned to Crawford County and to Bucyrus, but fell ill with kidney disease and passed on June 15, 1879. His grave is at what was then the western edge of Oakwood Cemetery in Bucyrus, overlooking the lands roamed for centuries by his friends, the Wyandots. It is marked with a simple stone, about the size of a box of copy paper, weathered nearly to the point of illegibility: a fittingly modest monument to a steadfastly modest man.
Thus is Judge Scott’s legacy: a small, nearly unrecognizable tombstone, a plaster relief likeness in the northeast corner of the Crawford County Common Pleas Courtroom, and a truly remarkable career marked by a strong sense of duty and a lack of personal ambition.
Submitted by Magistrate Robert Clark Neff, Jr., Crawford County Common Pleas Court