USA > Ohio > History of Ohio; the rise and progress of an American state, Volume Three > Part 12
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when the territorial government ceased and when Ohio became a State, and ipso facto a member of the United States.
As one of the United States, Ohio soon had an oppor- tunity to express her views on proposed amendments to the Federal Constitution, which came before the Fourth General Assembly in 1805. The first prop- osition came from Massachusetts, offering an amend- ment to the Constitution of the United States, "so that the Representatives may be apportioned among the several States, according to the number of their free inhabitants respectively." To this the Legislature would not assent. The reason was indeed worthy and conservative for that period. The Constitution had but recently been formed; many had predicted failure on account of the diversity of interests. The instrument was unquestionably the result of compro- mise and forbearing on the part of the States. Ohio consequently refused to approve an amendment that would have no other effect but to disturb the relations between the States, and destroy what Gladstone called "the most wonderful work ever struck off by the brain and purpose of man."
At the same session came a proposition from Ken- tucky. It was an amendment which would take away the jurisdiction of the United States Courts over suits between citizens of different States, and between a citizen and a State. To this also the General Assembly of Ohio refused to give its assent because it said, among other reasons named, "that too frequent alterations of the Constitution of the United States, may tend to unhinge the principles on which it is founded." North
WILLIAM CREIGHTON, JR. The first Secretary of State of the State of Ohio.
Born in Berkeley County, Virginia, October 29, 1778; emigrated to Chillicothe in 1799; elected Secretary of State, 1803; served until 1808; elected to Congress in 1813 and 1814; served until 1817; again elected in 1826, he served to March 3, 1833: died at Chillicothe, October 8, 1851.
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Carolina also proposed a constitutional amendment which was treated in the same manner as those referred to. It was proposed to confer upon Congress immedi- ately, the power of forbidding importation of slaves into the United States. The Federal Constitution in Section 9, Article I, expressly provided that such importation "shall not be prohibited by Congress prior to 1808."
Ohio believed in adhering to the articles as origi- nally adopted; while the resolution of non-concurrence expressly approved the morals of the North Carolina proposition, it dissented from its adoption on the ground of inexpediency. The General Assembly said: "Notwithstanding that this inhuman practice is im- politic in the extreme, and altogether repugnant to the principles on which our government is founded, yet it was the mutual agreement between the States forming the federal compact, that Congress should not possess the power of preventing any of the States then existing from carrying on a trade of this kind for a given period." On all these propositions the Legis- lature of Ohio acted wisely and in a spirit of fair play and candor with its sister States. It was evident that dearer to her than party, was the perpetuity of the Union which, even at that date, was still an experi- ment. Ohio was willing to make sacrifices, to forego securing in the National Constitution what she be- lieved to be right rather than to endanger its existence by constant changes.
The first grave trial of the state government came in 1807. This was a serious conflict between the Legislature and the Judiciary, involving the question
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of the power of the former, and the jurisdiction and independence of the latter. It attracted the attention of the whole State and was a matter of serious concern to thoughtful minds. Should the courts be allowed to determine whether an act of the Legislature was contrary to the Constitution? If this power rested in the courts did it not make them, as a branch of the state government, superior to, and not co-ordinate with the Legislature? The facts of this controversy and the results form one of the most striking events of the first decade of the State.
In 1805 the act defining the duties of justices of the peace was passed. The question of its constitu- tionality was before several courts of the State. The court of common pleas, for the third circuit, of which Calvin Pease was president judge, and Judges Hunting- ton and Tod, constituting a majority of the Supreme Court of the State, in different cases, decided, that sc much of the law, contained in the fifth section of that act, as gave to justices jurisdiction in cases exceeding twenty dollars, and so much contained in the twenty- ninth section, as prevented plaintiffs from recovering costs in actions commenced by original writ from the courts of common pleas, for amounts between twenty and fifty dollars, was unconstitutional, and therefore void. The principal grounds of these decisions were the seventh amendment to the Constitution of the United States, which ordains, that "in suits at common law, when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,"
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and the eighth section of the eighth article of the State Constitution, which declares that "the right of trial by jury shall be inviolate."
These opinions were received with much opposition by the people of the State. It will be remembered that the Jeffersonian idea of vesting the power of the people in the Legislature was the central idea of the Constitution. Here was a new doctrine that was taking away from the popular branch of the govern- ment much of its power. Consequently at the session of 1807-8, a resolution for the impeachment of the obnoxious judges was introduced into the House of Representatives, but was not, at that time acted on. Before the next session Judge Huntington was elected Governor of the State and resigned his seat on the bench. The impeachment, however, was not dropped. Soon after the next Legislature convened, a committee was appointed to inquire into the official conduct of Messrs. Huntington, Tod, and Pease, with leave to exhibit articles of impeachment, or to report otherwise. This committee reported articles against Judges Tod and Pease; but not against Governor Huntington.
The charges against Judge Pease were three: First, that on an appeal from the judgment of a justice of the peace for a sum exceeding twenty dollars, he had as president judge, reversed that judgment, on the ground that the justice had no constitutional juris- diction of that case. Second, that in an action for a sum between twenty and fifty dollars, commenced by original writ from the court of common pleas, he had allowed the plaintiff his costs of suit, upon his recovering judgment, contrary to the twenty-ninth
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section of the justice act, and the fifth section of the act organizing judicial courts. Third, that, sitting as president judge, he had decided, on various occasions, that the court had full power to set aside, suspend, and declare null and void any act of the State Legis- lature, and that he had suspended, set aside, and declared null and void the fifth section of the act defining the duties of justices. The article against Judge Tod, contained but a single charge; the same, in substance, as the first charge against Judge Pease.
Both the judges were summoned to appear before the Senate, sitting as a High Court of Impeachment. Judge Tod was first tried. In his answer to the charge exhibited against him, he admitted that, in his judicial capacity, he had decided that the fifth section of the act, giving to justices of the peace jurisdiction in cases exceeding twenty dollars, was unconstitutional and void; declared that he still remained of the same opinion; asserted his right and duty to determine cases brought before him as a judge, according to the convictions of his judgment; and vindicated the purity of his motives, and the uprightness of his judicial conduct. The investigation continued for several days, but finally resulted in the acquittal of the respondent.
Judge Pease was next put upon trial. His answer was substantially the same as that of Judge Tod. The result was, that on the first charge he was unani- mously acquitted. On the second charge he was ac- quitted; the vote being for conviction fifteen, for acquittal nine, and the Constitution requiring a con- currence of two-thirds for conviction. The third
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charge was decided by the court, by a vote of sixteen to eight, to be insufficient and inadequate to sustain an impeachment.
This, however, did not end the conflict; the question of removing the judges assumed another form. The Constitution fixed the judicial term of office as seven years. That period had elapsed since the first session of the General Assembly and the theory was advanced that a new and general election of judges should be held. In this way those judges who had been elected to fill vacancies could only fill out the residue of the original term of seven years, and not a whole term. This gave the Legislature the opportunity to fill the judicial offices with new men of their own liking.
The opponents of this doctrine claimed that it was opposed to the Constitution, and that it was violent and revolutionary. They contended that every judge elected to fill a vacancy was elected for seven years and entitled to serve that period unless constitution- ally removed. To support this construction reference was made to the law regulating commissions, by which it was shown that it was the practice to commission newly elected judges for a full term.
On January 18, 1810, the General Assembly passed a resolution adopting the construction first recited here, and extending the principle to the Secretary of State, Treasurer of State and Auditor of State. The resolution in effect declared all the judicial offices vacant, and the Legislature proceeded to elect Judges of the Supreme Court, the State executive officers, and judges of the court of common pleas. Thus, by a single resolution, the General Assembly swept
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out of office every judicial and executive officer of the State; at the same session legislation was passed vacating the office of every justice of the peace, and providing for the election of their successors.
Such was the effect of the "Sweeping Resolutions," as they were called in the political parlance of the time, that the whole State was thrown into confusion. Some of the judges thought the construction of the Constitution wrong, and refused to acknowledge the change. Others who held unexpired commissions and had been again elected, refused to accept their new commissions, and claimed their seats under the old ones. The administration of justice was delayed; respect for the law was lessened; and the whole effect of the political intrigues against the judiciary was bad.
The most serious, at the same time the most scandal- ous of these proceedings was the attempt to intimidate the judiciary by impeachment. Even at this late day one wonders how partisanship could be so lawless as to select such a weapon. The question plainly stated was this: the Federal Constitution guaranteed trial by jury in suits involving over twenty dollars; the Ohio Legislature said there should be no jury unless the amount involved over fifty dollars. The court decided the legislative act unconstitutional and void. This was not an intricate nor complicated legal situa- tion; the duty of the court was plain.
The right and power of the judiciary to declare void legislation repugnant to the Constitution was established by the United States Supreme Court in 1803, five years before these impeachment proceedings. Chief Justice Marshall in Marbury vs. Madison,
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(I Cranch, 137) in a learned and masterly decision established by his inexorable logic and profound reasoning the power of the courts on this question. In his decision he said: "It is emphatically the prov- ince and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
"So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a par- ticular case, so that the court must either decide that case conformably to the law, disregarding the Con- stitution, or conformably to the Constitution, dis- regarding the law, the court must decide which of these conflicting rules governs the case. This is of the very essence of judicial duty.
"If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply."
Applying this principle to concrete examples he made it so plain that even laymen could see the ir- resistible force of his reasoning. He gave the following examples: "It is declared that 'no tax or duty shall be laid on articles exported from any State.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and only see the law?
"The Constitution declares 'that no bill of attainder or ex post facto law shall be passed.'
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"If, however, such a bill should be passed, and a person should be prosecuted under it, must the court condemn to death those victims whom the Constitu- tion endeavors to preserve?
""'No person,' says the Constitution, 'shall be con- victed of treason unless on the testimony of two wit- nesses to the same overt act, or on confession in open court.'
"Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
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"From these, and many other selections which might be made, it is apparent that the framers of the Con- stitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature."
Alexander Hamilton in the Federalist, No. 78, had this principle in mind when he wrote thus: "The interpretation of the laws is the proper and peculiar province of the courts. A Constitution is, in fact, and must be regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its mean- ing, as well as the meaning of any particular act proceed- ing from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred: in other words, the Constitu- tion ought to be preferred to the statutes, the intention of the people to the intention of their agents."
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In passing from this subject it may be remarked that the principle that courts have authority to pass upon the validity of legislation, had been asserted in at least five States before the adoption of the Federal Constitution, viz .: in New Jersey in 1780; in Virginia, in 1782; in New York in 1784; in Rhode Island in 1786; and in North Carolina in 1787.
The motive that actuated the Ohio Legislature to impeach the judges was of course resultant from the spirit of democracy that was prevalent at that period.
It was simply the recurrence of the dominant note of Jefferson's doctrine of popular powers included in the doctrine of States' rights. The Legislature repre- sented the people, and the people were supreme. To limit their passions, prejudices or partisanship, as was the purpose of the Constitution, infuriated the popular body, and they transcended their power in their punishment.
The State election of 1807 resulted in what is one of the most interesting situations of the period. Na- thaniel Massie and Return J. Meigs, Jr., were rival candidates for the Governorship. The election was contested before the Legislature; it is the only instance of such a contest in the history of the State and deserves more than passing mention. Nathaniel Massie as the past record shows was a man of great importance in the founding of Ohio. He was one of the first pioneers, and had done much for statehood. He was prominent politically and had in Southern Ohio a strong following; an ardent supporter of the Demo- cratic-Republican party he was easily a man of guber- natorial rank. He belonged to the Virginia contingent
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that did so much to start the State in its march of progress.
Return J. Meigs, Jr., his opponent, was a New Englander, born in Connecticut, a pioneer of Marietta and one of the foremost of that distinguished colony. He was originally a Federalist, but in the question of statehood he acted with the opposite party, and finally became as radical a Republican as Massie. The struggle for the election was strictly on the personal merits of the candidates, as both were of the same political party. The unofficial returns showed that Meigs received:6,050 votes to 4,757 for Massie. When these were canvassed by the General Assembly the returns from the counties of Trumbull, Geauga, Greene, Athens, Champaign, Ross, Belmont, Highland, Washington and Adams were rejected for irregularities. The residue of the returns showed Meigs to have received 3,299 votes and Massie 2,317, and the com- mittee to whom the returns had been referred declared Meigs elected by a majority of 982.
After a service of notice of contest by Massie upon. Meigs, the hearing as to who was elected was entered upon by the House and Senate sitting in joint session In formal and legal terms Massie set up the following reasons why Meigs was ineligible to be Governor of Ohio:
I. That Meigs did not possess the qualifications necessary to hold the office of Governor, inasmuch as he had not been a resident of this State for four year: next preceding the day of election.
2. That within four years preceding the election he had been a resident of the Territory of Louisiana
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and there exercised the office and powers of a United States Judge.
3. That he now holds an office under the Govern- ment of the United States.
4. That on the second of April last past he was appointed a Territorial Judge for Michigan.
Mr. Meigs' reply consisted of the following state- ment which was accepted as true:
I. That he went to Louisiana and Missouri in December, 1804, and remained until August, 1806, when he returned to Ohio, and again returned to Louisiana where he remained a few months, his entire residence being eight months and in Missouri three and one-half months. During all this time he was on colonial business for the United States Government and for the State of Ohio, and regarded this State, where his family resided, to-wit, at Marietta, as his place of residence.
2. That during the preceding session he had been commissioned by the Governor of Ohio to an important office in connection with the Burr-Blennerhassett con- spiracy, thus recognizing his citizenship, as well as reposing other State trusts in him.
3. That he had been appointed Territorial Judge for Michigan, but had never assumed the duties of the office in consequence of being summoned to Rich- mond to appear in the Burr trial.
4. That he is and has been a resident of Ohio for thirteen years last past.
After a full hearing before the joint session of both Houses of the General Assembly it was declared by a vote of 24 yeas to 20 nays that, "Return J. Meigs,
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Jr., is not eligible to the office of Governor." Massie, it must be understood, did not claim the office and the legislative records show that this phase was not even considered. This action made the office vacant and Thomas Kirker, Speaker of the Senate, became Acting- Governor. As a matter of fact, Kirker was performing both the duties of Acting-Governor and Speaker of the Senate at the time of the declaration of Meigs' ineligibility; for when Edward Tiffin resigned the governorship March 3, 1807, to become United States Senator, Kirker became Acting-Governor, and con- tinued to act as such before and through the Massie- Meigs contest, and until his successor Samuel Hunting- ton was inaugurated December 12, 1808.
The second Governor, Thomas Kirker, was one of the pioneers of Southern Ohio. He was born in the County of Tyrone, Ireland, in 1760. At the age of nineteen he came to America and settled at Lancaster, Pennsylvania. In 1792 he moved to Manchester, Adams county, Ohio, the first town laid out by Na- thaniel Massie. He and Massie became fast personal and political friends. Indeed the movement to contest Meigs' election was done really to advance Massie's friend. Thomas Kirker was not a brilliant man, but he played a strong part in the early history of the State. He was elected to the first General Assembly, and served as Senator from 1803 to 1815; he was afterwards elected Representative in 1816 and was made Speaker. From 1821 to 1825 he served as Senator. He was a conscientious member of the Presbyterian Church at West Union, Ohio, and served as an elder for twenty years. He died February 19, 1837.
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Before Governor Tiffin's second term ended he was elected on January 1, 1807 to be United States Senator to succeed his brother-in-law Thomas Worthington. Tiffin's administration as Governor had been distin- guished by a successful direction of public affairs. Through his messages and official documents he was constantly urging advances in education, morals, material development and reforms. He was always holding before the people the marvelous advancement of the State and pressing for improvements adequate to the progression. The most important event of his administration, concerning which he acted with decisive promptness, was in connection with Aaron Burr, the details of which will be passed for considera- tion hereafter.
One of the favorite arguments of those urging state government was that it would promote immi- gration and otherwise tend to develop the State. This proved to be true for we find during its first seven years a wonderful increase in population. This was a period of marvelous advancement. The year 1810 found the population of the State to be 230,760, an astonishing increase of more than 400 per cent. over that of 1800. The immigration was constant, healthy and valuable. The establishment of eighteen new counties within this time, shows that the newly added element to Ohio's population was scattering itself all over the State, for those counties were in the southern, central and northern portions. Out of the wilderness came wealth, and we find that in 1810 the taxable property was valued at $25,000,000. The mineral resources of the State became known in this period.
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The first blast furnace was operated in 1808 in Ma- honing county, and coal was first mined in 1810 in Summit county. Thus two of the greatest factors in the growth and importance of the State were con- temporaneous in their development.
The towns throughout the State continued to increase both in number and population. It may seem strange, but up to 1810 but comparatively few towns were incorporated in Ohio. These were Lan- caster, Dayton and Steubenville in 1805; St. Clairsville in 1807, Springfield in 1808, and Hamilton and Leb- anon in 1810. There were quite a number of other towns but they had no legal existence. Cincinnati Marietta, Chillicothe, and a dozen other places were still settlements.
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