USA > Ohio > Hancock County > History of Hancock County, Ohio : containing a history of the county, its townships, towns portraits of early settlers and prominent men, biographies, history of the Northwest Territory, history of Ohio, statistical and miscellaneous matter, etc > Part 10
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The General Assembly or Legislature shall consist of the Governor, Legislative Council, and a House of Representatives. The Legislative Council shall consist of five members, to continue in office five years, unless sooner removed by Congress ; any three of whom to be a quorum. And the members of the Council shall be nominated and appointed in the following manner, to wit :
As soon as representatives shall be elected, the Governor shall appoint a time and place for them to meet together, and when met, they shall nominate ten persons, residents in the district, and each person in a freehold in 500 acres of land, and return their names to Congress, five of whom Congress shall appoint and commission as aforesaid. And whenever a vacancy shall hap- pen in the Council by death or removal from office, the House of Representatives shall nominate two persons, qualified as aforesaid, for each vacancy, and return their names to Congress, one of whom Congress shall appoint and commission for the residue of the term. And every five years, four months at least before the expiration of the time of service of the members of the Council, the said House shall nominate ten persons qualified as aforesaid, and return their names to Congress, five of whom Congress shall appoint and commission to serve as members of the Council five years, unless sooner removed. . And the Governor, Legislative Council and House of Representatives shall have authority to make laws in all cases, for the good government, of the district, not repugnant to the principles and articles in this Ordinance, established and leclared.
And all bills having passed by a majority in the House, and by a majority in the Council, shall be referred to the Governor for his assent. But no bill or legislative act whatever, shall be of any force without his assent. The Governor shall have power to convene, prorogue and dis- solve the General Assembly, when in his opinion it shall be expedient.
The Governor, Judges, Legislative Council, Secretary, and such other officers as Congress shall appoint in the district, shall take an oath or affirmation of fidelity and of office. The Gov- ernor before the President of Congress, and all other officers before the Governor.
As soon as a Legislature shall be formed in the district, the Council and House assembled in one room, shall have authority by joint ballot to elect a delegate to Congress, who shall have a seat in Congress, with a right of debating, but not of voting, during this temporary gov- ernment.
And for extending the fundamental principles of civil and religious liberty, which forms the basis whereon these republics, their laws and constitutions, are created ; to fix and establish those principles as the basis of all laws, constitutions and governments, which forever hereafter shall be formed in said Territory. To provide for the establishment of States, and permanent governments therein, and for their admission to a share in the Federal Council on an equal footing with the original States, at as early periods as may be consistent with the general interest.
It is hereby ordained and declared by the authority aforesaid, That the following articles shall be considered as articles of compact between the original States and the people, and States in said Territory, and forever remain unaltered unless by common consent, to wit :
ARTICLE II. The inhabitants of said Territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury ; of a proportionate representation of the people in the Legislature, and of judicial procedure according to the course of common law. All per- sons shall be bailable, except for capital offenses, where the proof shall be evident or the pre- sumption great. All fines shall be moderate, and no cruel or unreasonable punishment shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land. And should the public exigencies make it necessary for the common preservation, to take any person's property, or to demand his particular services, full compensation
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shall be made for the same. And in the just preservation of rights and property, it is under- stood and declared that no law aught ever to be made or have force in the said Territory, that shall in any manner whatever interfere with or effect private contracts or engagements bond fide and without fraud, previously formed.
ART. III. Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed toward the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights and liberty they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress. But laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.
ART. IV. The said Territory and the States which may be formed therein, shall ever remain a part of the confederacy of the United States of America, subject to the articles of confedera- tion, and to such alterations therein as shall be constitutionally made, and to all the acts and ordinances of the United States in Congress assembled conformable thereto. The inhabitants and settlers in said Territory shall be subject to pay a part of the federal debts contracted or to be contracted, and a proportional part of the expenses of the Government, to be apportioned on them by Congress, according to the same common rule and measure by which apportionments thereof shall be made on the other States, and the taxes for paying their proportion shall be laid and levied by the authority and directions of the Legislature of the district or districts or new States, within the time agreed upon by the United States in Congress assembled. The Legisla- tures of those districts or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find neces- sary for securing the title in such soil to the bona-fide purchasers. No tax shall be imposed on lands the property of the United States, and in no case, shall non-residents be taxed higher than residents. The navigable waters leading into the Mississippi and St Lawrence, and the carry- ing places between the same, shall be common highways, and forever free as well to the inhabi- tants of the said Territory as to the citizens of the United States and those of any other States that may be admitted into the confederacy, without any tax, impost or duty therefor.
ART. V. There shall be formed in said Territory not less than three, nor more than five, States, and the boundaries of the States, as soon as Virginia shall alter her act of cession and consent to the same, shall become fixed and established as follows, to wit: The western State in the said Territory shall be bcunded by the Mississippi, the Ohio, the Wabash Rivers; a direct line drawn from the Wabash and Post St. Vincent, due north to the Territorial line between the United States and Canada; and by the said Territorial line to the Lake of the Woods and Missis- sippi. The middle State shall be bounded by the said direct line, the Wabash from Post St. Vin- cent to the Ohio, by the Ohio, by a direct line drawn due north from the mouth of the Great Miami to the said Territorial line. The eastern State shall be bounded by the last-mentioned direct line, the Ohio, Pennsylvania and said territorial line. Provided, however, and it is further understood and declared, that the boundaries of those three States shall be subject so far to be altered, that, if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of the said Territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan. And whenever any of the said States shall have 60,000 free inhabitants therein, such State shall be admitted by its delegates into the Congress of the United States on an equal footing with the original States in all respects what- ever, and shall be at liberty to form a permanent constitution and State government. Provided, The constitution and government so to be formed, shall be represented, and in conformity to the principles contained in these articles ; and so far as it can be consistent with the general interest. of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants than 60,000.
ART. VI. There shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted. Provided always, That any person escaping into the same from whom labor or service is lawfully
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claimed in one of the original States, each fugitive may be lawfully claimed and conveyed to the person claiming his or her labor or services as aforesaid.
Be it ordained by the authority aforesaid, That the resolutions of the 23d of April, 1784, relative to the subject of this ordinance, be and the same are hereby repealed and declared null and void.
COMMENT BY S. P. CHASE 1833.
It would be difficult to find a more comprehensive review of the founda- tions of our system of laws than is given in the "Preliminary Sketch of the History of Ohio," by this distinguished representative of the bench and the bar of America. The work is now out of print, and is not easily obtained; besides, its great author has passed away; so these extracts are made more with a view of preserving old historical literature, than of introducing new; furthermore, the masses of the people have never had convenient access to the volumes, which, for the most part, have been in the hands of professional men only. The publication of the work first brought its compiler before the public, and marked the beginning of that career which, during its course, shaped the financial system of our country, and ended upon the Supreme Bench of the nation.
"By the ordinance of 1785, Congress had executed in part the great national trust confided to it, by providing for the disposal of the public lands for the common good, and by prescribing the manner and terms of sale. By that of 1787, provision was made for successive forms of Territorial government, adapted to successive steps of advancement in the settlement of the Western country. It comprehended an intelligible system of law on the descent and conveyance of real property, and the transfer of personal goods. It also con- tained five articles of compact between the original States, and the people and States of the Territory, establishing certain great fundamental principles of governmental duty and private right, as the basis of all future constitutions and legislation, unalterable and indestructible, except by that final and common ruin, which, as it has overtaken all former systems of human polity, may yet overwhelm our American union. Never, probably, in the history of the world, did a measure of legislation so accurately fulfill, and yet so mightily exceed the anticipations of the legislators. The ordinance has been well described, as having been a pillar of cloud by day and of fire by night, in the settlement and government of the Northwestern States. When the settlers went into the wilderness, they found the law already there. It was impressed upon the soil itself, while it yet bore up nothing but the forest. The purchaser of land became, by that act, a party to the compact, and bound by its perpetual cove- nants, so far as its conditions did not conflict with the terms of the cessions of the States.
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This remarkable instrument was the last gift of the Congress of the old confederation to the country, and it was a fit consummation of their glorious
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labors. At the time of its promulgation, the Federal Constitution was under discussion in the convention ; and in a few months, upon the organization of the new national government, that Congress was dissolved, never again to re-as- semble. Some, and indeed most of the principles established by the articles of compact are to be found in the plan of 1784, and in the various English and American bills of rights. Others, however, and these not the least important, are original. Of this number are the clauses in relation to contracts, to slavery and to Indians. On the whole, these articles contain what they profess to con- tain, the true theory of American liberty. The great principles promulgated by it are wholly and purely American. They are indeed the genuine princi- ples of freedom, unadulterated by that compromise with circumstances, the effects of which are visible in the constitution and history of the Union. *
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The first form of civil government, provided by the ordinance, was now formally established within the Territory. Under this form, the people had no concern in the business of government. The Governor and Judges derived their appointments at first from Congress, and after the adoption of the Fed- , eral Constitution, from the President. The commission of the former officer was for the term of three years, unless sooner revoked; those of the latter were during good behavior. It was required that the Governor should reside within the Territory, and possess a freehold estate there, in one thousand acres of land. He had authority to appoint all officers of militia, below the rank of Generals, and all magistrates and civil officers, except the Judges and the Sec- retary of the Territory ; to establish convenient divisions of the whole district for the execution of progress, to lay out those parts to which the Indian titles might be extinguished into counties and townships. The Judges, or any two of them, constituted a court with common law jurisdiction. It was neces- sary that each Judge should possess a freehold estate in the territory of five hundred acres. The whole legislative power which, however, extended only to the adoption of such laws of the original States as might be suited to the cir- cumstances of the country, was vested in the Governor and Judges. The laws adopted were to continue in force, unless disapproved by Congress, until re- pealed by the Legislature, which was afterward to be organized. It was the duty of the Secretary to preserve all acts and laws, public records and executive proceedings, and to transmit authentic copies to the Secretary of Congress every six months.
Such was the first government devised for the Northwestern Territory. It is obvious that its character, as beneficent or oppressive, depended entirely upon the temper and disposition of those who administrated it. All power, legisla- tive, judicial and executive, was concentrated in the Governor and Judges, and in its exercise they were responsible only to the distant Federal head. The expenses of the Government were defrayed in part by the United States, but were principally drawn from the pockets of the people in the shape of fees.
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This temporary system, however unfriendly as it seems to liberty, was, perhaps, so established upon sufficient reasons. The Federal Constitution had not then been adopted, and there were strong apprehensions that the people of the Territory might not be disposed to organize States and apply for admission into the Union. It was, therefore, a matter of policy so to frame the Territorial system as to create some strong motives to draw them into the Union, as States, in due time.
The first acts of Territorial legislation were passed at Marietta, then the only American settlement northwest of the Ohio. The Governor and Judges did not strictly confine themselves within the limits of their legislative author ity, as prescribed by the ordinance. When they could not find laws of the original States suited to the condition of the country, they supplied the want by enactments of their own. The earliest laws, from 1788 to 1795, were all thus enacted. The laws of 1788 provided for the organization of the militia ; for the establishment of inferior courts ; for the punishment of crimes, and for the limitations of actions ; prescribed the duties of ministerial officers ; regu- lated marriages, and appointed oaths of office. That the Governor and Judges in the enactment of these laws, exceeded their authority, without the slightest disposition to abuse it, may be inferred from the fact that except two, which had been previously repealed, they were all confirmed by the first Territorial Legislature.
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At this period there was no seat of government, properly called. The Governor resided at Cincinnati, but laws were passed whenever they seemed to be needed, and promulgated at any place where the Territorial legislators hap- pened to be assembled. Before the year of 1795, no laws were, strictly speak- ing, adopted. Most of them were framed by the Governor and Judges to answer particular public ends ; while in the enactment of others, including all the laws of 1792, the Secretary of the Territory discharged, under the author- ity of an act of Congress, the functions of the Governor. The earliest laws, as has been already stated, were published at Marietta. Of the remainder, a few were published at Vincennes, and the rest at Cincinnati.
In the year 1789, the first Congress passed an act recognizing the binding force of the ordinance of 1787, and adapting its provisions to the Federal Con- stitution. This act provided that the communications directed in the ordinance to be made to Congress or its officers, by the Governor, should thenceforth be made to the President, and that the authority to appoint with the consent of the Senate, and commission officers, before that time appointed and commis- sioned by Congress, should likewise be vested in that officer. It also gave the Territorial Secretary the power already mentioned, of acting in certain cases, in the place of the Governor. In 1792, Congress passed another act giving to the Governor and Judges authority to repeal, at their discretion, the laws by
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them made ; and enabling a single Judge of the general court, in the absence of his brethren, to hold the terms. ยท
At this time the Judges appointed by the National Executive constituted the Supreme Court of the Territory. They were commissioned during good behavior ; and their judicial jurisdiction extended over the whole region north- west of the Ohio. The court, thus constituted, was fixed at no certain place, and its process, civil and criminal, was returnable wheresoever it might be in the Territory. Inferior to this court were the County Courts of Common Pleas, and the General Quarter Sessions of the Peace. The former consisted of any number of Judges, not less than three nor more than seven, and had a general common-law jurisdiction, concurrent, in the respective counties, with that of the Supreme Court; the latter consisted of a number of Justices for each county, to be determined by the Governor, who were required to hold three terms in every year, and had a limited criminal jurisdiction. Single Judges of the Common Pleas, and single Justices of the Quarter Sessions were also clothed with certain civil and criminal powers to be exercised out of court. Besides these courts, each county had a Judge of Probate, clothed with the ordinary jurisdiction of a Probate Court.
Such was the original constitution of courts and distribution of judicial power in the Northwestern Territory. The expenses of the system were defrayed in part by the National Government, and in part by assessments upon the counties, but principally by fees, which were payable to every officer con- cerned in the administration of justice, from the Judges of the General Court downward.
In 1795 the Governor and Judges undertook to revise the Territorial laws, and to establish a complete system of statutory jurisprudence, by adoptions from the laws of the original States, in strict conformity to the provisions of the ordinance. For this purpose they assembled at Cincinnati in June, and continued in session until the latter part of August. The judiciary system underwent some changes. The General Court was fixed at Cincinnati and Mari- etta, and a Circuit Court was established with power to try in the several coun- ties, issues in fact depending before the superior tribunal, where alone causes could be finally decided. Orphans' Courts, too, were established, with jurisdic- tion analogous to but more extensive than that of a Judge of Probate. Laws were also adopted to regulate judgments and executions, for limitation of actions, for the distribution of intestate estates, and for many other general purposes. Finally, as if with a view to create some great reservoir, from which, whatever principles and powers had been omitted in the particular acts, might be drawn according to the exigency of circumstances, the Governor and Judges adopted a law, providing that the common law of England and all general statutes in aid of the common law, prior to the fourth year of James I, should be in full force within the Territory. The law thus adopted was an act of the Virginia Legislature, passed before the Declaration of Independence, wlien Virginia was
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yet a British colony, and at the time of its adoption had been repealed so far as it related to the English statutes.
The other laws of 1795 were principally derived from the statute book of Pennsylvania. The system thus adopted was not without many imperfections and blemishes, but it may be doubted whether any colony, at so early a period after its first establishment, ever had one so good.
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And how gratifying is the retrospect, how cheering the prospect which even this sketch, brief and partial as it is, presents ! On a surface covered less than half a century ago by the trees of the primeval forest, a State has grown up from Colonial infancy to freedom, independence and strength. But thirty years have elapsed since that State, with hardly sixty thousand inhabitants, was admitted into the American Union. Of the twenty-four States which form that Union, she is now the fourth in respect to population. In other respects her rank is even higher. Already her resources have been adequate, not only to the expense of government and instruction, but to the construction of long lines of canals. Her enterprise has realized the startling prediction of the poet, who, in 1787, when Ohio was yet a wilderness, foretold the future connec- tion of the Hudson with the Ohio.
And these results are attributable mainly to her institutions. The spirit of the ordinance of 1787 pervades them all. Who can estimate the benefits which have flowed from the interdiction by that instrument of slavery and of legislative interference with private contracts? One consequence is, that the soil of Ohio bears up none but freemen ; another, that a stern and honorable regard to private rights and public morals characterizes her legislation. There is hardly a page in the statute book of which her sons need be ashamed. The great doctrine of equal rights is everywhere recognized in her constitution and her laws. Almost every father of a family in this State has a freehold interest in the soil, but this interest is not necessary to entitle him to a voice in the concerns of government. Every man may vote ; every man is eligible to any office. And this unlimited extension of the elective franchise, so far from pro- ducing any evil, has ever constituted a safe and sufficient check upon injurious legislation. Other causes of her prosperity may be found in her fertile soil, in her felicitous position, and especially in her connection with the union of the States. All these springs of growth and advancement are permanent, and upon a most gratifying prospect of the future. They promise an advance in population, wealth, intelligence and moral worth as permanent as the existence of the State itself. They promise to the future citizens of Ohio the blessings of good government, wise legislation and universal instruction. More than all, they are pledges that in all future, as in all past circumstances, Ohio will cleave fast to the national constitution and the national Union, and that her growing energies will on no occasion, be more willingly or powerfully put forth, than in the support and maintenance of both in unimpaired vigor and strength."
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INFLUENCE OF THE ORDINANCE OF 1787.
The passage of this ordinance, since known as the " Ordinance of 1787." was immediately followed by an application to the Government, by John Cleves Symmes, of New Jersey, in behalf of the country, between the Miamis, and a contract was concluded the following year. The Ohio Company were exceed- ingly energetic in inaugurating settlements. Gen. Putman, with a party of forty-seven men, set out on an exploring expedition, accompanied by six boat builders. On the 1st of January, 1788, twenty-six surveyors followed, from Hartford, Conn. They arrived in Ohio on the 7th of April, 1788, and their active energy founded the permanent beginning of this great Western State- When we review the dangerous experiments that have been made, in this land west of the Alleghanies, the horrors which had overwhelmed every attempt, we can faintly realize the stalwart courage that sent these men on their way, and sustained them in their pioneer hardships. With characteristic vigor, they began their little town. Enthusiastic and happy, they did not rest from their toilsome march over the old Indian roads, but kept busily at work to estab- lish an oasis in this wide expanse of wilderness, before they should take nec- essary case to recuperate their strength.
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