USA > Ohio > Muskingum County > History of Muskingum County, Ohio ; with illustrations and biographical sketches of prominent men and pioneers, 1794 > Part 11
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84 | Part 85 | Part 86 | Part 87 | Part 88 | Part 89 | Part 90 | Part 91 | Part 92 | Part 93 | Part 94 | Part 95 | Part 96 | Part 97 | Part 98 | Part 99 | Part 100 | Part 101 | Part 102 | Part 103 | Part 104 | Part 105
The language of the enabling act is as follows : "Be it enacted, etc., That the inhabitants of the eastern division of the territory northwest of the river Ohio be, and they are hereby authorized to form for themselves a Constitution and State government, and to assume such name as they shall deem proper, and the said State, when tormed. shall be admitted into the Union upon the same footing with the original States in all respects whatever."
This language is not peculiar to the enabling act of Ohio ; it is in substance the language of every enabling act passed by Congress from 1802 to the present time. Those of Indiana and Illi- nois, formed from the same Northwest Territory, contain the identical words, except the names, found in that for Ohio. The act for Indiana was passed April 19, 1816, and its Constitution was formed June 29; but the resolution of ad- mission was passed December II of the same year. If Ohio became a State, on the formation of a Constitution, by virtue of the language of the enabling act, why did not Indiana? If Ohio was a State in the Union from the 29th of No- vember, 1802, was not Indiana a State from the 29th of June, 1816? And was not the resolution of Congress of December 11th, 1816, admitting Indiana into the Union, wholly useless?
Let us now examine the language of the pre- amble to the act of February 19, 1803 :
"Whereas, The people of the eastern division of the territory northwest of the river Ohio did, on the 29th day of November, 1802, form for themselves a Constitution and State govern- ment, and did give to the said State the name of the 'State of Ohio,' in pursuance of an act of Congress 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 into the Uhion on an equal footing with the original States, and for other purposes,' whereby the said State has become one of the United States of America ; in order, therefore, to provide for the due execution of the laws of the United States within the said State of Ohio, be it enacted, etc."
Stress is sometimes laid upon the words of the preamble of the act of February 19, 1803, "Whereby the State has become one of the United States of America." It will be noted
that the language differs in tense from that res- pecting the formation of a Constitution : "Where- as, the people did form a Constitution on the 29th day of November. 1802, etc., whereby the State has become one of the United States." Had it been affirmed that the State did become one of the United States on the 29th of November, the question before us would have been different from what it is now. The language is that it has be- come-has now become a member of the Union.
The Constitution was formed at a given time ; it had been submitted to Congress for examina- tion ; that examination had been made, and the Senate committee reported that the several steps had been properly taken. The laws of the Uni- ted States could not be extended over Ohio till it should be recognized in some form. That recognition was placed in the preamble. It was a virtual declaration that the Constitution was republican and in conformity with the ordinance, and therefore there was no objection to regard- ing it as a State. The language of the resolu- tion of the Senate of the 7th of January, when it instructed its committee "to inquire whether any, and, if any, what legislative measure may be necessary for admitting the State of Ohio into the Union," would seem to be conclusive against the supposition that the formation of a Constitu- tion made the State a member of the Union. If that action by the Convention was sufficient, un- der the enabling act of Congress, to introduce the new State into the Union, then the resolution of the Senate of the 7th of January was uncalled for. Whether the steps taken by the people of the territory, with reference to admission, had been properly taken or not, was a question which had not yet been answered. When Congress should be satisfied in regard to that, then the date of admission might be settled. Congress had the power, perhaps, to make its action retro- active, though it has never done so in the case of a State; or it might put the time of admission on some day in the future, as in the case of Ver- mont and Louisiana ; or it might make the day of enactment the day of admission, as is the usual case.
In view of all the facts, we seem to be shut up to the conclusion that the State of Ohio was not admitted into the Union on the 29th day of No- vember, 1802, when the Constitutton was formed, but on the 19th day of February, 1803, when Ohio was first recognized as a State by Congress. It has already been stated that, in the Charters and Constitutions compiled under an order of the United States Senate, this act of the 19th of February, under the title, "An act recognizing the State of Ohio, 1803," occupies the same place in the arrangement of the work which is given in other States to the act of admission.
It is proper to state, also, that I made inquiry at the State Department, at Washington, and received the following memorandum :
"Enabling act of Congress for formation of the State of Ohio was approved April 30, 1802." [See Statutes at Large, vol. II, p. 173.]
" 'An act to provide for the due examination
49
HISTORY OF MUSKINGUM COUNTY, OHIO.
of the laws of the United States within the State of Ohio,' was approved February 19, 1803. By this act Ohio was admitted into the Union." -- [Statutes at Large, vol. II, p. 201.]
We may infer, then, that the Department of State of the General Government recognizes the nineteenth of February, 1803, as the date of the admission of Ohio into the Union.
On the first day of March, 1803, the General Assembly convened at Chillicothe. Their first case, of course, was to adapt the statute law of the territory to the new state of things introduced by the Constitution. With this view several laws were passed. The State courts were or- ganized, their jurisdiction defined, and their practice, in some degree, regulated. * *
MUSKINGUM COUNTY.
[Chase's Statutes of Ohio, vol. III, p. 2, 101, chap. ccc, xlix]. An act to cstablish the coun- ty of Muskingum.
SECTION I. Be it enacted, etc., That so much of the counties of Washington and Fair- field as comes within the following boundaries, be and the same is hereby erected into a separate and distinct county, which shall be known by the name of Muskingum, to wit: beginning at the northwest corner of the ninth township, in the ninth range of the United States military lands, thence with the western boundary line of said range, south to the southern boundary line of said military lines, thence with the same west to the western boundary line of the fifteenth range of public lands, thence with the said line south to the southwest corner of the sixteenth town- ship of the fifteenth range, thence eastwardly to the south boundary of the sixteenth township till it intersects the west boundary of the twelfth range, thence with the sectional lines east to the western boundary line to the seventh range, thence with the same north to the northeast cor- ner of the military tract, thence with the north boundary line of the tenth township in the first and second ranges of said military lands, west until intersected by the Indian boundary line, thence with same westwardly to the place of beginning.
SEC. 2. That from and after the the first day of March next, said county shall be vested with all the powers, privileges and immunities of a separate and distinct county ; Provided, always, that all actions and suits which may be pending on the said first day of March next, shall be pros- ecuted and carried into final judgment and execu- tion, and all taxes, fees, fines and forfeitures, which shall then be due, shall be collected in the same manner as if this act had never been passed.
SEC. 3. That the temporary seat of justice of said county, shall be at the town of Zanes- ville, until the permanent seat shall be fixed ac- cording to law.
SEC. 4. This act shall commence and be in force from and after the first day of March next.
ELIAS LANGHAM,
Speaker of the House of Representatives. NATHANIEL MASSIE,
January 7, 1804. Speaker of the Senate.
The transition from Territory to State, and the subdivision of the State into counties for judicial purposes, as we have seen, necessitated changes in the law adapting them to the new order of government. This began at Chillicothe in 1803, and it was found necessary to revise the law still further ; accordingly, at the session of the Legisla- ture of 1809-10, the laws were a second time re- vised. Seven years had now elapsed since the first session of the Legislature, and the question was agitated whether a new and general election of Judges ought to take place. On the one side it was contended that the original appoint- ments were for the term of seven years, and that those who had been elected to fill a vacancy were elected for the term of seven years and en- titled to hold office for that time, unless consti- tutionally removed. In support of this con- struction, the law regulating commissions was cited. and it was shown that the constant practice had hitherto been to commission every newly elected Judge for the full term. A reso- lution, however, was adopted, adopting the first construction and extending its principles to the offices of Auditor, Secretary and Treasurer of State. This resolution, in effect, declared all judicial offices vacant, and the Legislature pro- ceeded to elect Judges of the Supreme Court and of the different courts of Common Pleas. * * *
* The same Legislature reduced the number of Judges of the Supreme Court, which had beeen increased to four in 1809, to three. The effect of this act was to deprive the Judge, who had been duly elected and commissioned in 1809, of his seat upon the bench.
These acts of the Legislature produced much confusion in the judiciary. Most of the Judges thought the construction of the constitution er- roneous, and some refused to acknowledge its obligation. Some who held unreprieved com- missions and had been again elected, refused to accept their new commissions and claimed their seats by virtue of the old. These claims occa- sioned divisions in the several courts, by which the administration of justice was delayed, and often prevented. The Legislature, however, did not retrace their steps, and, in time, acquiescence in the revolution was produced-became gen- eral ; but the construction then given to the con- stitution has never since been acted on.
JUDICIAL SYSTEM OF OHIO.
Ohio had borrowed a judicial system from Pennsylvania, and grouping several counties in "a circuit," assigned to it one President Judge. Ile was required to be a lawyer, and was elected by the State Legislature. That body also chose from amongst the electors of each county three citizens, not law- yers, and called them Associate Judges. The President and two Associates made a quorum. In the absence of the President, the three Asso- ciates could sit as a court. Special sessions could be held as often as needed by the Associ- ates, and they disposed of the great body of the ordinary work now done in probate courts.
10
50
HISTORY OF MUSKINGUM COUNTY, OHIO. '
The State, in 1804, embraced three circuits. The second contained Adams, Fairfield, Frank- lin, Gallia, Muskingum, Ross, and Scioto coun- ties, and the 25th of April was by law named for the beginning of the first term of Common Pleas Court in Muskingum county, being the third Monday in the month. Common Pleas Judges were appointed by the Legislature for the term of seven years or during good behavior. [See Constitution of 1802, Art. 3, $ 8.] This was changed to five years by the Constitution of 1852, Art. 4, $ 10.
The Supreme Court consisted of three Judges, and was required to hold one term each year in each county, and the said third Monday, April 25th, 1804, was fixed for the beginning of the first term, but no record of such a session has been found. Muskingum was transferred to the Third circuit by the act of February 22, 1805. This circuit was composed of Belmont, Colum- biana, Jefferson, Trumbull, and Washington counties.
Common Pleas Court .- The only account of the inauguration of this court is given in the old record entitled "Judgments" (in the Clerk's office), and appears on a space left blank be- tween pages 133 and 134, which probably occur- red by turning two leaves instead of one. It seems to be in the handwriting of Abel Lewis. This view is sustained by the fact that Mr. Lewis was then Clerk of our courts. The record reads as follows :
"At a special court held on the - day of -, in the year of our Lord one thousand eight hundred and four, at the house of David Harvey, Esquire, in Zanesville, in and for the county of Muskingum, it being the first court held in said county. Present, the Honorable Willis Silliman, Esquire, President ; and Jesse Fulton and David Harvey, Esquires, his associate Judges of the Court of Common Pleas of said county. Ap- pointed Abel Lewis Clerk pro tem. of said court, who gave bond and was sworn into the office aforesaid by the said Honorable Willis Silliman, Esquire, according to law and the Constitution of the State of Ohio."
Calvin Pease became the first President Judge. Although he had been some years on the bench, he was only twenty-seven years old; a New Englander, sharp, energetic, and witty. He re- sided in Trumbull county, and " administered the law to all the inhabitants of the State east of the Muskingum river," and performed his duties " with much ability and integrity." He ceased to hold this office at the close of 1807, but be- came one of the Judges of the Supreme Court of the State in 1816, and at the same time John McLean (who for so many years adorned the bench of the highest national court) was chosen a member of the same court.
The first petit jury in Muskingum Common Pleas Court was composed as follows :
I. William Montgomery ; 2. Isaac Prior ; 3. John Reasoner ; 4. Joseph Neff ; 5. Thomas Cor- dray ; 6. David Herron : 7. William Dusenberry ; 8. William Reasoner ; 9. Daniel Campbell ; 10.
Joseph Stolts ; 11. David Enslow. The twelfth man did not appear. The record is not signed, so that who presided at this court does not ap- pear ; it was probably Judge Belt, who resided near or west of the Scioto, as the most populous part of his circuit was Ross county, which had a large influence in the Legislature by which he must have been elected.
THE CLERKS OF THE SUPREME COURT IIAVE BEEN :
Abel Lewis, from 1805 to 1812. John C. Stockton, 1812 to 1817. Daniel Chambers, 1817 to 1821. John Peters, pro tem., 1821. Ezekiel T. Cox, 1821 to 1828. John Wilson, Jr., 1828 to 1834.
Ezekiel T. Cox, 1834 to 1852.
CLERKS OF THE COMMON PLEAS.
Abel Lewis, 1804 to 1812. John C. Stockton, 1812 to 1817. David Chambers, 1817 to . 1821.
John Peters, pro tem., 1821.
Ezekiel T. Cox, 1821 to 1828. John Wilson, Jr., 1828 to 1834.
Ezekiel T. Cox, 1834 to 1841.
George W. Manypenny, 1841 to 1846.
Anthony Wilkins, 1846 to 1852.
Charles C. Russell, (resigned) 1852 to 1864. . John Hoopes, 1864 to 1867.
Gemmill Arthur, (resigned) 1867 to 1870.
George W. Blocksom, pro tem., 1870.
Edgar W. Allen, 1870 to 1873.
Frederick W. Geiger, 1873 to 1879.
Howard Aston, (incumbent) 1879.
1
PROSECUTING ATTORNEYS FROM THE BEGINNING.
Lewis Cass, 1804 to 1812. Samuel Herrick, 1812 to 1818.
John C. Stockton, 1818 to 1820.
Richard Stillwell, 1820 to 1837.
Willis Buel, (April) 1837 to 1839.
Cautious C. Covey, (April to November) 1839.
Napoleon A. Guille, 1839 to 1851.
William H. Ball, (resigned in April) 1851 to 1853.
John O'Neill, 1853 to 1856.
John C. Hazlett, 1856 to 1861.
John Haynes, 1861 to 1864. Lyman J. Jackson, 1864 to 1866.
Moses M. Granger ( January to December) 1866.
Albert W. Train, 1866 to 1868.
Milton I. Southard, (resigned) 1868 to 1872.
Daniel B. Gary, 1872 to 1874. Albion Andrews, 1874 to 1878.
John R. Stonesipher, 1878 to 1880.
Fenton Bagley, (incumbent) 1880-1882.
COMMON PLEAS JUDGES FROM THE BEGINNING.
Willis Silliman, April term, 1804.
Levin Belt, June 6, 1804 to 1805. Robert F. Slaughter, March term, 1805.
Calvin Pease, August term, 1805.
Samuel Huntington, October 3d, 1805.
5I
HISTORY OF MUSKINGUM COUNTY, OHIO.
[It is claimed that Calvin Pease served until 1808]. .
William Wilson, 1808 to 1822.
Alexander Harper, 1822 to 1836.
Corrington W. Searle, 1836 to 1846.
Richard Stillwell, 1847 to 1851, (Oct. 17.)
Corrington W. Searle, from Oct. 17, 1851, to Feb. 9, 1852.
Richard Stillwell, from 1852 to Sept. 16, 1854. John E. Hanna, Sept. 16, 1854, to Oct. 20, 1854.
Charles C. Convers, Oct. 20, 1854, to Oct. 19, 1855. .
Corrington W. Searle, Oct. 19, 1855, to Oct. 25, 1856.
Lucius P. Marsh, Oct. 25, 1856, to Feb. 9, 1862. Ezra E. Evans, Feb. 9, 1862, to Dec. 10, 1866. Moses M. Granger, Dec. 10, 1866, to Oct. 9, 1871.
Frederick W: Wood, August 13, 1869, to Aug. 3, 1874.
William H. Frazier, Oct. 9, 1871, to Aug. 3, 1874 ..
Lucius P. Marsh, Aug., 1874.
Wm. H. Ball, Nov, 19, 1878.
Wm. H. Frazier, Oct. 10, 1876.
The following is a list of Associate Judges, Common Pleas Court, and who were permitted to engage in any other business during their term of office :
David Harvey, William Wells, John Campbell, commissioned in February, 1804.
The resignation of William Wells, before tak- ing his seat, created a vacancy which was filled by the appointment of Jesse Fulton, March 15, 1804. David Harvey resigned June 19, 1804, and on the 29th of that month Richard McBride was appointed to fill the vacancy. John Camp- bell resigned Dec. 4, 1804, and Dec. 13, 1804, Giles Hempstead was appointed. February 7, 1805, the Legislature elected Jesse Fulton, Rich- ard McBride and Seth Carhart.
David Harvey, Feb. 17, 1804, to June 17, 1804, Wm. Wells, Feb. 18, 1804, to Feb. 25, 1804. John Campbell, Feb. 20, 1804, to Dec. 4, 1804. Jesse Fulton, March 15, 1804, to 1805.
Richard McBride, 1804-1813.
Giles Hempstead, 1804-1805.
Seth Carhart, 1805, did not accept. William Mitchell, 1805-1815. David Findlay, 1813-1820.
Stephen C. Smith , 1815-1818.
Daniel Stillwell, 1815-1822.
Robert Mitchell, 1818-1833. John Reynolds, 1820-1822.
Robert McConnell, 1822-1827. David Young, 1822-1823.
Thomas Ijams, 1823-1830.
Edwin Putnam, 1827-1842.
Mathew McElhuneey, 1830-1837.
William Blocksom, 1833-1840. James Jeffries, 1837-1844. William Cooper, 1840-1847.
Jacob P. Springer, 1842-1852.
Horatio J. Cox, 1844-1852.
William Reed, 1847-1852.
The office of Associate Judge was abolished by the Constitution in 1851, and much of the business formerly transacted by the Common Pleas Court was transferred, by the Constitution of 1852, to the Probate Court, which was organ- ized under this Constitution.
PROBATE JUDGES.
The following is a list of the Probate Judges from the beginning to the present :
Mahlon Sims, 1852 to 1858, two terms.
Wm. T. Mason, 1858 to 1864, two terms.
R. W. P. Muse, 1864 to 1870, two terms.
Henry L. Korte, 1870 to 1873, one term.
Reuben H. Morgan, 1873 to 1875, one term, resigned.
Henry L. Korte, 1875 to 1876, unexpired term.
Henry L. Korte, 1876 to 1879, one term.
Henry L. Korte, 1879 to 1882.
COURT HOUSES.
Our first court was held in David Harvey's tavern, situate on the southwest corner of Third and Main streets, in Zanesville. Court was sub- sequently held in a two-story log house on Sixth street (West Side), about one hundred feet south of Main street. The building was owned by one James Herron.
The first court house was a frame structure 20x55, two stories high. The lower story was used for the jailer's residence, the upper story for court and other purposes. The jail was built ad- joining, of hewed logs, squared and lined with three inch plank. The lower story was for crim- inals. the upper for debtors. The court house and jail were under one roof. The contract for building was let to Henry Ford, for the sum of $480, January 25, 1808. The Commissioners signing the contract were Henry Newell, Jacob Gomber and Daniel Stillwell-the latter protest- ing against paying such an extravagant price for a public building. Benjamin Tupper, Clerk, also signed the contract. Ford's securities were Dr. Increase Mathews, Peter Speck and John Levens. These buildings were burned down April 3d, 1814, by a fugitive slave from Ken- tucky ; being confined in the jail he attempted to burn the lock off the door, but the fire became unmanageable, the buildings burned, and the ne- gro was taken out almost suffocated. The citi- zens were very indignant, and some would have thrust the fellow back and burned him, but he escaped.
"As early as 1807-8 the subject of the removal of the capital was agitated, and at the session of 1808-9 the Muskingum delegation in the General Assembly, reinforced by a committee of the citi- zens of Zanesville, headed by John McIntire, petitioned the Legislature to remove the capital to Zanesville, setting forth that the county of Muskingum would, at its own expense, furnish suitable buildings for the Legislature and State offices, and received assurances that if they would do this a law granting their wishes would be passed making Zanesville the "temporary capi- tal." Our people believed that the Capital once
52
HISTORY OF MUSKINGUM COUNTY, OHIO.
here would remain. Public spirited citizens loaned the money, and the county built what has been so well known among us as "Old 1809."
STATE HOUSE.
During the summer of 1809 the main build- ing, which was intended for the Legislature, was put up, but not finished, The contract was awarded April 10th, 1809, to Joseph Munro, Daniel Convers, John Williamson and James Hampson for $7,500, to be completed by Decem- ber 1, 1810. James Hampson was appointed Superintendent. The County Commissioners is- sued six $1,000 bonds and one $1,500 bond ; the first payable three months after the contract was awarded, the remainder to be paid quarterly, $1,000 each payment until the $6,000 were paid, and the balance of $1,500 in six months after that. These bonds were signed by John McIn- tire, Jeffrey Price, Hugh Hazlett, Wyllis Silli- man, Robert Fulton and others. The contract was "sold" by William Reynolds at public sale. The Commissioners were William Newell, Jacob Gomber and Daniel Stillwell. Benjamin Tup- per, Clerk of the Court, signed the contract on the part of the county.
The offices for Sceretary of State and State Treasurer .- The contract for building these of- fices was awarded to James Hampson and Joseph Cairens for $920 ; the specifications-for a brick building 28x24 and ten feet high, walls fourteen inches thick, fire-proof vault, for Treasurer's of- fice. The contract was let April 10th, and to be finished December 10th, 1810. The money, as in the foregoing case, was furnished by citizens. In this case they formed a stock company, and were incorporated and called "The Court House and County Office Stock Company." The shares were fifty dollars each. John McIntire was President and Robert Fulton Treasurer. The money borrowed by the Commissioners was not repaid until 1823.
Notwithstanding these efforts of the county and town, although the Legislature assembled here early in December, 1809, it was not until the 19th day of February, 1810, that the act was passed locating the seat of Government at Zanes- ville, as will be seen by the following :
[Ohio Laws, vol. 8, p. 220, chap. LVIII. ]- "An act fixing the temporary seat of Govern- ment at Zanesville :
SECTION I. Be it enacted by the General As- sembly of the State of Ohio, That the seat of Government be, and the same is hereby fixed, and shall remain at Zanesville until otherwise provided by law.
This act shall take effect and be in force from and after the first day of October next."
EDWARD TIFFIN,
Speaker of the House of Representatives.
DUNCAN MCARTHUR,
Feb. 19, 1810. Speaker of the Senate.
But the hope of Zanesville and Muskingum, "hat "once here it would remain," was not even
allowed more than a day's existence, for an act was passed next day, February 20, 1810, [See Chase's Statutes, vol. I, p. 699,] providing for the election by the Legislature, by ballot, of five commissioners, whose duty it should be to locate the permanent Capital, in a place "not more than forty miles from what may be deemed the com- mon center of the State, to be ascertained by Mansfield's map." And these commissioners were ordered to meet at Franklinton, on Sep- tember Ist, 1810. Thus it was known that one month before Zanesville could be even the tem- porary Capital, the duty of selecting the spot for the permanent Capital would probably be com- pleted, and that Zanesville could not be that spot ; for the central point of an east and west line across Ohio, passing through Zanesville, is the west line of Licking county, a point forty-two miles distant, at the very least, from our city- while the fact that the geographical center of the State being north of that line, increased the dis- tance and left no room for hope unless the second act could be repealed.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.