History of Muskingum County, Ohio ; with illustrations and biographical sketches of prominent men and pioneers, 1794, Part 10

Author: Everhart, J. F; Graham, A. A., Columbus, Ohio, pub
Publication date: 1882
Publisher: [Columbus, O.] : F.J. Everhart & Co.
Number of Pages: 600

USA > Ohio > Muskingum County > History of Muskingum County, Ohio ; with illustrations and biographical sketches of prominent men and pioneers, 1794 > Part 10

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HISTORY OF MUSKINGUM COUNTY, OHIO.

or, should thenceforth be made to the President, and that the authority to appoint, with the consent of the Senate and commissioned officers, before that time appointed and commissioned by Congress, should likewise be rested in that officer. In 1792 Congress passed another act giving to the Governors and Judges authority to repeal, at their discretion, the laws made by them ; and enabling a single Judge of the Gen- eral Court, in the absence of his brethren, to hold the terms.

At this time the Judges appointed by the Na- tional Executive constituted the Supreme Court of the Territory. They were commissioned during good behavior, and their judicial jurisdic- tion extended over the whole region northwest of 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 con- sisted of any number of Judges, not less than three nor more than seven, and had a general common law jurisdiction, concurrent with the respective counties, with that 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 ex- ercised 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 north- western territory. The expenses of the system were defrayed in part by the national govern- ment and in part by assessments upon the counties, but principally by fees which were payable to every officer concerned in the admin- istration of justice, from the Judges of the Gen- eral Court downward.

In 1795 the Governor and Judges undertook to revise Territorial laws and to establish a com- plete system of statutory jurisprudence by adop- tion from the laws of the original States, in strict conformity to the provisions of the ordi- nance. ' 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 Marietta, and a Circuit established, with power to try, in the sev- eral counties, issues in fact depending before the Superior tribunal, where alone causes could be finally decided. Orphans' Courts, too, were established, with jurisdiction analogous to but more extensive than that of a Judge of Probate. Laws were also adopted to regulate judgments and executions, for the limitation of actions, for the distribution of intestate estates, and for many other general purposes. The other laws of 1795 were principally derived from the

statute book of Pennsylvania. From this time to the organization of the Territorial Legislature, in 1799, there were no acts of legislation, except ten laws adopted by the Secretary and Judges in 1798. Before the end of the year 1798 the northwestern territory contained a pop- ulation of five thousand free male inhabitants of full age and eight organized counties.

The people were now entitled under the ordi- nance to a change in the form of their govern- ment. That instrument provided that, upon giving proof to the Governor, that there were five thousand free males of full ages in the terri- tory, the people should be authorized to elect representatives to a Territorial Legislature. This privilege was, however, confined to free- holders, in fee simple, of fifty acres within the district. No others were entitled to vote, and only freeholders, in fee simple, of two hundred acres within the district, were eligible as repre- sentatives. When chosen, the House of Repre- sentatives were to assemble in convention and nominate ten freeholders of five hundred acres, of whom the President, under the constitution, was to appoint five, who were to constitute the legislative council. Representatives were to serve two and five years. The two houses were to constitute a Territorial Legislature, with power to make any laws not repugnant to the National Constitution or to the ordinance of 1787. The Judges were thenceforth to be confined to purely judicial functions, the Governor to retain his appointing power, his general executive authori- ty, and to have an absolute negative upon all legislative acts. Representatives were accordingly elected, who assembled at Cin- cinnati in pursuance of the Governor's proclama- tion, and nominated ten persons for councilmen. Of these, five was selected by the President, and the sixteenth day of September, 1799, was ap- pointed for the first meeting of the Territorial Legislature. Governor St. Clair then addressed the Legislature. He commenced by expressing his gratification that the laws, by which the people were to be governed, were thenceforth to proceed from the people's repre- sentatives ; but, at the same time stated his entire conviction that the system which had been superceded was wisely adopted to the orig- inal circumstances of the Territory. .

He called the attention of the Legislature to the laws which have been enacted by the Gov- ernor and Judges ; observed that doubts had been expressed from the bench as to their validity, and advised that they should be repealed and their place supplied by others, or confirmed by a law for that purpose. Efficient revenue and militia systems were likewise recommended. He suggested the expediency of a memorial to Congress, praying that the fee of section sixteen, reserved by the ordinance of 1785, for the use of schools, and section twenty-nine, reserved in the contracts with the Ohio' Company and John Cleves Symmes, for religious purposes, might be vested in trustees, with power to dispose of them in such manner as might best secure the fulfill-

HISTORY OF MUSKINGUM COUNTY, OHIO.

ment of the benevolent intentions of the national Legislature. To this address each house re- turned a cordial and respectful answer, assuring the Governor of their general concurrence in his views, and of their readiness to co-operate with him, strenuously, for the advancement of the common good. . An act was passed to confirm and give force to those laws enacted by the Governor and judges, whose validity had been doubted.

THE FIRST TERRITORIAL LEGISLATURE

Met at Cincinnati, September 16th, 1799, and ad- journed the 19th of December following. An address was voted to the President of the United States, expressing the entire confidence of the Legislature in the wisdom and purity of his ad- ministration, and their warm attachment to the American Constitution and Government.

Within a few months after the close of this session, Connecticut ceded to the United States her claim of jurisdiction over the eastern part of the territory ; upon which the President conveyed by patent, the fee of the soil to the Governor of the State, for the use of grantees and purchasers claiming under her. The same Congress which made this final arrangement with Connecticut, passed an act dividing the northwestern territory into two Governments, by a line drawn from the mouth of the Kentucky to Fort Recovery, and thence northward to the territorial line. East of this line, the Government, already established, was continued, while west of it, another, sub- stantially similar, was established. This act fixed the seat of the eastern Government at Chillicothe ; subject, however; to be removed at the pleasure of the Legislature.

At Chillicothe, therefore, the second session of the Territorial Legislature was held. This was a shorter session than the preceding, and the Legislature was less important. At this session, the project of changing the bound- aries prescribed by the ordinance for the States to be erected within the territory began to be the theme of conversation.

On the twenty-third of November, 1801, a new Legislature convened, and this project was re- sumed. The object was to so change the bound- aries that the eastern State, when formed, should be bounded on the west by the Scioto river, and a line drawn from the intersection of that river with the Indian boundary to the western ex- tremity of the Connecticut reserve ; the middle State, by a line running from the intersection of the Ohio with the western boundary of George Rogers Clark's grant to the head of the Chicago, and by that river to Lake Michigan, to the terri- torial line and the western State by the Missis- sippi.

The Constitutional Convention assembled at Chillicothe on the first day of November, 1802. The formation of the Constitution was the work of a little more than three weeks. On the twenty-seventh day of November it was or- dered to be engrossed, and ou the twenty-ninth was ratified and signed by the members of the

Convention. It was never referred to the people for their approbation, but became the fundamen- tal law of the State by the act of the Convention alone.

How Crime was Punished in "Ye Olden Time."-The Territorial form of Government was even more rigid than that which succeeded it under the State organization, although the former was not immediately set aside for a new code. We can but note that the legislative enactments were calculated to strike terror into the heart of the offender, and that probably such laws could not be passed even in a Territory at this day.

The First Law for Whipping, as a penalty for crime, was made by Governor St. Clair and Judges Parsons and Varnum, at Marietta, Sep- tember 6th, 1787, entitled, " A law respecting crimes and punishments." Section II of the law provides that when three or more persons, constituting a mob, commits unlawful acts, and failing to disperse when ordered to do so, each offender, upon conviction, " shall be fined in a sum not exceeding three hundred dollars, and be whipped not exceeding thirty-nine stripes, and find security for good behavior for a term not ex- ceeding one year." For a second offense, the whipping was to be repeated, as well as the fine and security, and the offender was committed until the sentence be fully performed.

For breaking into a house, store, shop, or vessel, in the night season, with the intention of stealing, the penalty was thirty-nine stripes and security for good behavior ; in default of securi- ty, imprisonment not exceeding three years. If articles be stolen by said burglars, a fine of treble the amount of their value was to be inflicted, one-third of the amount to go to the Territory, the remaining two-thirds to the party injured. If, in the perpetration of the crime, the burglars " shall commit or attempt to commit any person- al abuse, force, or violence, or shall be so armed with any dangerous weapon or weapons as clearly to indicate a violent intention, he, she, or they so offending, upon conviction thereof, shall moreover forfeit all his, her, or their estate, real and personal, to the Territory, out of which the party injured shall be recompensed as aforesaid, and the offenders shall also be committed to any jail in the Territory for a term not exceeding forty years. Accordingly, in those days there was a whipping-post. Every court-house in Ohio was required to have its yard decorated with a whipping-post, a pillory, and with stocks, and each and all of the " cruel and unusual pun- ishment" for which the court-house yard orna- ments were to be used was inflicted by the sen- tence of the law on persons adjudged guilty of crimes now lightly punished.

Sitting in the pillory after whipping .- For perjury, or refusing to be sworn to a fact, or de- nying it, knowing it to be true, the penalty was a fine of sixty dollars, "or be whipped not ex- ceeding thirty-nine stripes, and shall moreover be set in the pillory for a space of time not ex- ceeding two hours." For forgery, besides being

HISTORY OF MUSKINGUM COUNTY, OHIO.

compelled to pay double the amount he sought to defraud, one-half to the party injured, he was to sit in the pillory for a space not exceeding three hours. For arson, or aiding in the com- mission of the crime, the penalty was whipping to the extent of "thirty-nine stripes, put in the pillory, and there be continued not exceeding the space of two hours, confined in the jail not exceeding the space of three years, and forfeit all his, her, or their estate, real or personal, to the Territory, out of which real estate, if suffi- cient, shall be paid to the party injured his full damage. And in case death should ensue from such burning, the offender or offenders, on con- viction, shall suffer the pains of death."

To make children and servants dutiful .- If any child or servant, contrary to his bounden duty, shall presume to strike his parent or master, upon complaint and conviction before two jus- tices of the peace, the offender shall be whipped not exceeding ten stripes.

Selling into slavery not exceeding seven years. -For larceny, for the first offense, the restitution of two-fold value of the thing stolen, or if they be not recovered, " whipped not exceeding thir- ty-nine lashes." In case the offender hath not property, real or personal, wherewith to satisfy the sentence of the court, it shall be lawful for the sheriff, by direction of the court, to bind such person to labor, for a term not exceeding seven years, to any suitable person who will dis- charge such sentence."

In the stocks for. tearing down hand-bills .- On the 22d of June, 1791, the Governor and Judges, then and after using Cincinnati as the Capital of the Territory, enacted a law punishing the malicious tearing down or destroying in whole or in part any copy or transcript of a law of the Territory or of the United States, or any official proclamation of the Governor or President, with fine, which, if not paid, would send the offender to the stocks for three hours.

After thus providing for the punishment of crime by placing the offender in the stocks, or tying him up to the whipping-post and lashing his bare back with a rawhide, it probably occur- red to the Governor and Judges, as the lawmak- ers of the Territory, that the laws thus far enact- ed had made no sufficient provision to carry the whipping and stocks into immediate effect, and hence, on the 21st of August, 1792, a law was passed the title of which is as follows :

"An act directing the building and establish- ing of a court-house, jail, pillory, whipping-post, and stocks in every county."

The body of the law makes provision for the erection of the buildings named, with the orna- ments of "pillory, whipping-posts, and so many stocks as may be convenient for the punishment of offenders," etc. The same day the above law was passed another law was enacted, entitled "An act for the better regulation of prisons," the first section of which provides that in civil or quitam action, through the insufficiency of the prison, or the negligence of the sheriff or jailor, the prisoner escapes, the sheriff is made liable

for the debt. If the escape was consequent on the weakness or insufficiency of the jail, the Court of Common Pleas had power to assess the damages to the plaintiff on the county in the full sum for which the escaped prisoner was incar- cerated, which amount had to be raised by taxa- tion, to be paid to the sheriff to indemnify him.

"The frauds that were practiced on the coun- ties, under this law, by collusion between plain- tiffs and defendants, when no debts were really due, and when defendants were utterly insolvent, became so apparent and oppressive that this sec- tion was repealed."-[See Ohio Reports, p. 358.]

Legislative enactments, however defective in form, have ever been intended to secure the ends of justice ; hence the law maxim, actus legis nulli facit injuriam. That there were errors in leg- islation is possibly true, but non omnis error stultitia est dicenda." And it is even now held that "bad grammar does not vitiate the deed." The science of law, though among the noblest of sciences, is not wholly devoid of imperfections, and the members of the profession are not all immaculate.

OHIO ADMITTED INTO THE UNION.

The facts in regard to this "vexed question" are compiled from the able paper on the "Admission of Ohio into the Union, by I. W. Andrews, President of Marietta College," as re- produced in the "Annual Report of the Secre- tary of State to the Governor of Ohio, for the year 1879."

Of all the twenty-five States that have been admitted into the Union since the National life began, on the fourth of July, 1776, Ohio is the only one in regard to whose date of admission there is any question. When a State has en- tered the last quarter of its first century, it would seem that both the year and the day when its State life began should be definitely known. The doubt in the case of Ohio shows itself by the various dates found in historical and other works from 1803 to the present time.

Among the dates found in different works, are these : April 28, April 30, June 30, and Novem- ber 29, 1802 ; the winter of 1802-3, February 19, March I and March 3, 1803. The first is given in "Harris's Tour," published in 1805. The heading of the second part of the book is "State of Ohio Admitted into the Union by an Act of Congress, April 28, 1802." The second is found in a note in the United States Statutes at Large, volume 1, p. 2. The third date, June 30, ap- pears in the Report of the Ninth Census, volume I., p. 575. The fourth date, November 29, 1802, in W. Hickey's edition of the Constitution. The fifth, February 19, 1803, is given by Caleb At- water in his history of Ohio, published in 1838. Mr. E. D. Mansfield gives the same in his Polit- ical Manual, and so Mr. G. W. Paschal in his Annotated Constitution. In Hildreth's History of the United States we read : "Just as the ses- sion closed the new State of Ohio took upon itself the exercise of self-Government, under a Constitution framed the preceding autumn."

HISTORY OF MUSKINGUM COUNTY, OHIO.

Walker, in his History of Athens County, says : "Congress assented to the proposed modification, by act of March 3, 1803, thus completing the compact, and accepting Ohio as a State." We have here the seventh date.

For the first and third of the dates above given -April 28th and June 30, 1802-I know of no reason that can be assigned. Certainly no act relating to Ohio was passed April 28th, and on the 30th of June Congress was not session, hav- ing adjourned on the 3d Monday of December. The second date, April 30th, 1802, was that of the passage by Congress of "an act to enable the people of the eastern division of the Territory northwest of the river Ohio, to form a Constitu- tion and State Government, and for the admis- sion of such State into the Union, on an equal footing with the original States, and for other purposes." November 29, 1802, was the day on which the Convention that framed the Constitu- tion adjourned. The enabling act of Congress appointed the second Tuesday of October as the day for the election of delegates to the Conven- tion ; the first Monday in November as the day for the Convention to meet. The election was held and the Convention assembled on the day specified. The Constitution was not submitted to the people, and the final adjournment of the Convention is held by some to be the time of the State's admission into the Union. The 19th of February, 1803, is the date of an act of Congress to "provide for the due execution of the laws of the United States within the State of Ohio." It was the first act of Congress which, in any way, rec- ognized the State, and, as there was no formal act of admission, this act of recognition is re- garded as the virtual act by which the State was admitted.

The first of March, 1803, was the time when the first General Assembly met in accordance with the provisions of the Constitution. Perhaps the historian, Hildreth, did not intend to desig- nate this as the exact date when Ohio was ad- mitted, but to indicate that the machinery of the State Government was put in operation. The language of Mr. Chase, in the historical sketch contained in the first volume of his Statutes of Ohio, is somewhat similar to that of Mr. Walker, but is not sufficiently definite to warrant us in saying that he regarded March 3rd as the exact date of the admission of Ohio.

An enabling act was passed April 30, 1802. The people, in accordance with it, elected dele- gates, the Convention was held, and a Constitu- tion was formed. After the adjournment, the Constitution was laid before Congress, as also certain propositions relating to lands within the State. A committee was appointed in each House, to whom the papers were referred. The action in the Senate was as follows :

Resolved, That a committee be appointed to inquire whether any, and, if any, what legisla- tive measure may be necessary for admitting the State of Ohio into the Union, or for extending to that State the laws of the United States ; and,

Ordered, That Messrs. Breckenridge, Morris

and Anderson be the committee, and that the letter signed T. Worthington, given for the State of Ohio, laid before the Senate this morning, to- gether with a copy of the Constitution of such State, be referred to the same committee to con- sider and report thereon."

This committee was appointed on the 7th of January, 1803, and on the 19th they made the following report :

That the people of the eastern division of the territory northwest of the river Ohio, in pursu- ance of an act of Congress, passed on the 30th day of April, 1802, entitled, "An act to enable the people of the eastern division of the territory northwest of the river Ohio to form a Constitution and State Government, and for the admission of such State into the Union, on an equal footing with the original States, and for other purposes," did, on the 29th day of November, 1802, form for themselves a Constitution and State Govern- ment. That the said Constitution end Govern- ment so formed is republican, and in conformity to the principles contained in the articles of the ordinance made on the 13th day of July, 1787, for the government of said Territory ; and that it is now necessary to establish a District Court within said State to carry into complete effect the laws of the United States within the same."

On the 21st of January the Senate considered the report and directed the committee to bring in a bill. A bill was reported on the 27th, which was read and ordered to the second reading. The next day it was read the second time. On the 31st the Senate resumed the second reading of the bill, and, an amendment having been of- fered, "it was agreed that the further considera- tion of the bill, together with the proposed amend- ment, should be the order of the day for Thurs- day, the 3rd of February." On the 4th of Feb- ruary the bill was passed to a third reading, and on the 7th it was read the third time and passed. The House of Representatives having received the bill from the Senate, it was read twice on the 8th of February and referred to a committee. On the 12th it was discussed in Committee of the Whole, reported to the House, then read the third time and passed. It was approved on the 19th. This being the first act of Congress which recognized the new State, it is regarded as the true date of admission. In the collection of Charters and Constitutions, compiled by order of the United States Senate, and printed in 1877, the Constitution of a State follows the enabling act, and then comes the act of admission. In the case of Ohio, there having been no act of formal admission, the Constitution of 1802 is followed by this act of February 19, 1803, under the head- ing, "Act recognizing the State of Ohio, 1803." This act thus takes the place, in the volume of Charters and Constitutions, of a formal act of ad- mission ; and a stranger, consulting the work to ascertain the times when the several States came into the Union, would necessarily infer that the date of Ohio was February 19th, 1803. The question of date of admission in the case of Ohio is between November 29, 1802, and February

HISTORY OF MUSKINGUM COUNTY, OHIO.

19th, 1803. The first is the day of adjournment of the Convention that formed the Constitution, and the second is the day when was passed the first act of Congress in any way recognizing the State. In the case of every other State Congress has either passed a distinct and definite act of ad- mission, dating from the day of enactment or from a future day named, or has provided for an admission on the issue of a proclamation by the President. Ohio, then, forms a case by itself, belonging to neither of these classes. Those who hold that November 29, 1802, is the proper date lay stress upon the language of the enabling act of April 30, 1802, and upon the words of the preamble to the act of February 19, 1803. Let us examine these two points.

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History of Muskingum County, Ohio ; with illustrations and biographical sketches of prominent men and pioneers, 1794, Part 10

Author: Everhart, J. F; Graham, A. A., Columbus, Ohio, pub Publication date: 1882 Publisher: [Columbus, O.] : F.J. Everhart & Co. Number of Pages: 600

Author: Everhart, J. F; Graham, A. A., Columbus, Ohio, pub
Publication date: 1882
Publisher: [Columbus, O.] : F.J. Everhart & Co.
Number of Pages: 600