USA > Ohio > History of Ohio; the rise and progress of an American state, Volume Three > Part 9
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
105
OF AN AMERICAN STATE
of the Territorial Legislature, bearing a striking simi- larity to the course of Great Britain imposing laws on the provinces." But all these objections were to no purpose or effect. The truth of the matter is that the efforts of the Federalists to stem the tide of statehood were petty and partisan, and they were too puerile to stop an event that was equally important to the West and the Nation. So the people moved to the consum- mation of the enabling act by holding an election for choosing delegates to the Constitutional Convention.
Section four of the act gave to all male residents in the Eastern Division of the Territory who had resided a year therein, and paid their taxes, the right to vote for representatives to the Convention. There was to be a representative for every twelve hundred inhabit- ants of each county, that is to say: "from the county of Trumbull, two Representatives; from the county of Jefferson, seven Representatives, two of the seven to be elected within what is now known as the county of Belmont, taken from Jefferson and Washington; from the county of Washington, four Representatives; from the county of Ross, seven Representatives, two of the seven to be elected in what is now known by Fairfield county, taken from Ross and Washington counties; from the county of Adams, three Representatives; from the county of Hamilton, twelve Representatives, two of the twelve to be elected in what is now known by Clermont, taken entirely from Hamilton County; and the elections for Representatives aforesaid shall take place on the second Tuesday of October next." The greater part of Wayne County which formed a part of the Territory was excluded from the enabling
1 ·
e n -
f f. y W IC ct ce
106
THE RISE AND PROGRESS
act, and Detroit became its seat of government. Consequently no representatives were apportioned to, nor elected from this county.
It will be interesting at this point to analyze the enumeration of the population as taken by the govern- ment in 1800, and on which the basis of representation in the Convention rested. The returns of the second census show the following number and classification of inhabitants:
Males
Females
Whites, 10 years of age. 9,362
8,644
Whites, 10 and under 16.
3,647
3,353
Whites, 16 and under 26.
4,636
3,861
Whites, 26 and under 45 .
4,833
3,342
Whites, 45 and upwards
1,955
1,395
24,433 20,595
Whites .
45,028
All other persons, except Indians, not taxed. 337
Total . 45,365
These inhabitants were distributed in the counties in the Territory as follows:
Adams .
3,432
Hamilton
14,692
Jefferson . 8,766
Ross . 8,540
Trumbull
1,302
Washington 5,427
Wayne. 3,206
Total
45,365
107
OF AN AMERICAN STATE
These counties, with the exception of Wayne, all located in what is now the state of Ohio, were sub- divided, since the census, by the formation of the new counties of Belmont, Clermont and Trumbull. Wayne was excluded from representation because, as before stated it lay almost wholly within what is now the State of Michigan.
The election of representatives to the Constitutional Convention excited great interest throughout the Terri- tory. The question involved invoked general discus- sion in the press, at public meetings and local gatherings The result of this general agitation was that each county sent a delegation representative of the best thought and character in the community.
The representatives elected from the different coun- ties to the convention to determine whether there should be a state government, and to frame a constitu- tion therefor were as follows: Adams County; Joseph Darlinton, Thomas Kirker, Israel Donaldson. Bel- mont County; James Caldwell, Elijah Woods. Cler- mont County; Philip Gatch, James Sargent. Hamilton County; Francis Dunlavy, John Paul, Jeremiah Mor- row, John Wilson, Charles Willing Byrd, William Goforth, John Smith, John Reily, John Browne, John Kitchel. Jefferson County; Rudolph Blair, John Milli- gan, George Humphrey, Bazaleel Wells, Nathan Upde- graff. Ross County; Edward Tiffin, Nathaniel Massie, Thomas Worthington, Michael Baldwin, James Grubb. Trumbull County; Samuel Huntington, David Abbott. Fairfield County; Emanuel Carpenter, Henry Abrams. Washington County; Rufus Putnam, Ephraim Cutler, John McIntire, Benjamin Ives Gilman.
108 RISE AND PROGRESS OF AN AMERICAN STATE
Thus ended the five years' struggle for statehood. It was essentially a triumph for the rights of the people, and was really the first fight and victory for Democracy under our Government. In the eastern states the political rights of man were hampered and fenced about with qualifications and restraints that the people of the West refused to bear. These rights-voting and holding office-were fixed under various conditions. In some states religion was the qualification; in others, acres of land, or personal property; in one the voter must have been "a quiet and peaceable citizen with a freehold of forty shillings or a personal estate worth forty pounds." The result was that thousands of men who fought for this land and helped to build it up could not vote for those who were to govern. And again, thousands more, who could vote, were deprived for life from being a sheriff of the county, or a judge, or from going to the Legislature, or holding any higher office.
The men who came to the Northwest Territory boldly attacked these remains of class rule which had been worked into the Ordinance of 1787. Their ideas of self government were incorporated into the new organic law which the Constitutional Convention was about to construct. The work of this convention forms the most interesting study in Ohio history.
CHAPTER IV.
THE FIRST CONSTITUTIONAL CONVENTION
10
rs
ter it
n
re g
he
ory ha
lea
ne wa
tio
T HE political divisions which marked the past Territorial assemblies, and which prevailed among the people were apparent in the Constitutional Convention. Generally, a cer- tain geographical test obtained. The Federalists came from New England, New York and New Jersey, and we find them strongest at Marietta and in the eastern and northern portions of the Territory. The Repub- licans being from Pennsylvania, Virginia and Kentucky were, broadly speaking, located in the southern portion.
But two representatives were from the northern part of the Territory. The remainder of the thirty- five were from the southern and eastern parts. Two were from Trumbull county bordering on Lake Erie; seven were from the interior counties of Fairfield and Ross; and twenty-six . were from the Ohio river counties of Hamilton, Clermont, Adams, Washington, Belmont and Jefferson. These river and interior counties were in the path of the Virginia-Pennsylvania immigration to the territory. The northern county of Trumbull embraced the Western Reserve of Con- necticut, and received a distinctly New England and New York emigration. From these facts we can read- ily understand why the large majority of the convention were Republicans, ardent followers of Jefferson and ready to carry out the ideas of his party.
This was evidenced in its organization, which was effected November 1, 1802, by the election of Edward Tiffin for President, and Judge Thomas Scott of Chilli- cothe for Secretary. The spirit of partisanship, how- ever, did not enter much into the proceedings of the convention; and yet it must not be implied that there
112
THE RISE AND PROGRESS
was not, when the question justified it, a clear cleavage between the ideas of Jefferson and Hamilton in the convention. Wherever the rights of the people were involved the Republicans asserted their control. The conflict developed into one of ideas and not of mere partisan domination.
The men who formed this convention brought to their task great abilities and patriotism. While it is true that on some questions they were roughly par- tisan, their general treatment of the problems before them indicated a high order of statesmanship. Indeed, it can be truthfully said that no deliberative assembly in the history of Ohio approached and performed its work with a greater realization of its responsibility. The ability and character of its membership were of the first order. From its ranks came men who rose to distinction in after life as Governors, Judges of the Supreme Court, Representatives in Congress and United States Senators. Even before their entrance to the convention they had won honors in the public life of the territory.
The condition precedent of this convention remain- ing in existence depended on its decision of a very important and primary question. After it had deter- mined its membership, and made its rules, it discussed whether "it be or be not expedient at this time to form a Constitution and State Government." On a roll call the resolution declaring the opinion of the Convention to be favorable to a Constitution and a State Government was passed by a vote of thirty-two yeas and one nay.
EPHRAIM CUTLER
Oldest son of Rev. Manasseh Cutler, founder of Marietta, born, April 12, 1767, at Edgartown, Massachusetts; served in the first Constitutional Convention in 1802; also a member of the Legislature in 1818 where he advocated reform in taxation; was the pioneer in the movement for common schools in Ohio; he died, July 8, 1853, in Wash- ington County.
THE RISE AND PROGRESS
ЯЯЛТИО МІАЯНЯЯ
W ghita a clear cleavage
convention. the meUple were betsoovbs od stodw 8181 di stufslarge off to Tedmom involiof Gasmevom Ofuni sonoiq sitt Seew (noitsze) hi Gmoisfol. The conflides Wevede&beelvllt.bib od ; oidO di aloodoa abmmoe of meme partisan domination. ·VINDOO notgni
The men who formed this convention brought to their task great abilities and patriotism. While it true That on wom questions they were roughly par- than, thay paul makment of the problems before
a de ky vif (lo approached and performed in work wwh a greater realization of its responsibility The ability and character of its membership were of the Wnt arden From its ranks came men who rond to distinction in after life as Governors, Judges of the Supreme Court, Representatives in Congress and United States Senators. Even before their entran to the convention they had won honors in the publi life of the territory .
The condition precedent of this convention remain- ing In existence depended on its decision of a very Monishit and primary question. After it had deter erilup, tud aride its rules, it discussed
whoher "it be or be not expedient at this time 10 forni a Constitution and State Government." On a Toll call the resolution declaring the opinion of the Convention to be favorable to a Constitution and a State Government was passed by a vote of thirty-two yeas and one nay.
113
OF AN AMERICAN STATE
The single vote against statehood was that of Ephraim Cutler, one of the representatives from Washington county and a son of Dr. Manasseh Cutler, the founder of the Marietta colony. Mr. Cutler was a man of radical Federalist ideas, and was noted for his strong and pure character. What he did not believe in, no expediency could make him do. Deserted by his colleagues from Marietta, all of them Federalists, including General Rufus Putnam, he firmly stood for a position from which he could neither be coaxed nor driven.
In his autobiography ("Life and Times of Ephraim Cutler," by his daughter, Julia Perkins Cutler,) he says, "My colleagues held the same views respecting the true policy that the convention should have adopted, but believed that they would obtain a greater influence in the future proceedings by taking the course they did." As to this, his colleagues were mistaken, for Mr. Cutler was stronger in the convention than any, or all of them, by reason of his courage, wisdom and ability. As we shall see later on, some of the most important features of the constitution are traceable directly to his efforts and labors. Con- cerning his solitary vote he afterwards wrote to his father: "You have no doubt seen by the papers that the vote for accepting the law of Congress, and pro- ceeding immediately to form a state government, passed by a majority of thirty-two to one; this one, sir, was simply me; and I do think it a favorable circumstance, to have had the opportunity to place my feeble testimony against so wicked and tyrannical a proceeding-although I stand alone." The two
114
THE RISE AND PROGRESS
members not voting were Edward Tiffin, the President, and David Abbott of Trumbull county, both of whom would have voted in the affirmative had they been present.
Before considering the work of this convention there are some general features concerning it that are in- teresting and instructive. The brevity of its session has always been a subject of wonder to political students, especially in the light of the long drawn out conventions of later date. The session lasted from the first day of November to the twenty-ninth; it per- formed its labors in twenty-five days. The total cost to the State was $4,556.75.
Referring by way of contrast to the Constitutional Conventions of later years we observe a marked difference in the length and cost of sessions not justified by the progress of the periods, or the results. The second Constitutional Convention of 1850 was in session 150 days, working of that time 135 days, at a cost to the State of $95,364.29. The third Constitu- tional Convention of 1873 lasted 253 days, of which 188 days were spent in actual session. This con- vention cost the State $236,088.49, including $30,547.87 for publishing constitutional amendments. For a full statement of these expenses, reference is made to the Auditor of State's Reports for 1850-53, and 1873-76.
If we seek diligently for a cause of the successful operation of the first convention we will find it (I) in the ability of its members, (2) in the fewness of their number, and (3) in their systematic and conscientious methods of working. The ideal deliberative body is composed of a few men of a high order of intelligence,
OF AN AMERICAN STATE
115
and endowed with a capacity for orderly work. This convention met all these requirements, and one will search in vain for a body of men in the subsequent history of the State equal to it.
The proposed Constitution was to consist of eight articles and a schedule. The rules were so constituted that each section, article or resolution was to be read three several times. Every article was considered by a special committee, and often when reported to the Convention, it was considered by the Committee of the Whole. The scant official report of the Convention shows with what care all measures were considered, and the frequent roll calls register the fidelity of attendance. The articles of the Constitution which gave rise to vigorous discussion were the second re- lating to the executive; the third relating to the judiciary and the eighth article known as the "bill of rights."
The experience of the Territory with St. Clair is responsible for the limited power conferred upon the Governor by the second article. Jeremiah Morrow, a Republican representative from Hamilton county, afterwards State Senator, Congressman, United States Senator and Governor, endeavored to have this ar- ticle amended so as to confer the veto power on the Governor of Ohio. In this Mr. Morrow failed, and the result after strenuous debate was the adoption of an article so limiting and restricting the powers of the Governor as to be almost nominal. In aiming to avoid an arbitrary exercise of the Executive power the Convention went to the other extreme.
1
h
116
THE RISE AND PROGRESS
The preparation of the third article which created the judiciary of the State was the source of great discussion and difference. This article was prepared by Charles Willing Byrd, a representative from Ham- ilton county, also Secretary of the Territory and after- wards the temporary successor of St. Clair as Governor. Among other features it provided that a Supreme Court should be created to sit at the capital and no- where else. This was objected to by Mr. Cutler and he carried with him a majority of the Convention. It was soon discovered that no agreement could be reached to hold the court in any one county. Mr. Cutler was in favor of a court that would bring justice to every man's door. To meet this, Mr. Byrd's plan was defeated and the unique provision of having the Supreme Court held once a year in each county of the State was adopted.
The plan did not work satisfactorily as it required the Judges to be traveling half the year, and in the back counties where law books could not be had cases were often decided in haste, and the same points were often decided differently in different counties. The Legislature afterwards, in 1821, remedied this to a certain extent by directing a special session once a year of all the Judges of the Supreme Court at the State Capital to pass upon cases reserved in the counties, and sent up by order of the Supreme Court held therein.
The judiciary article also provided that the Judges of the Supreme Court, the Presidents and Associate Judges of the Court of Common Pleas should be ap- pointed by a joint ballot of the General Assembly.
117
OF AN AMERICAN STATE
Time proved this to be one of the weakest points in the Constitution. Of course it was one of the manifestations of the spirit of Democracy that made the Supreme Court the creature of the General Assem- bly thereby keeping the judiciary within its power. The result of the operation of this plan was to involve the judiciary in politics, and in after years gave rise to scandal and intrigue. The judges became the victims, and in some instances the tools of politicians. The system developed antagonisms between the Legislative and Judicial departments of the State government, leading to acts on the part of the former disgraceful and unconstitutional.
The subsequent history of the State presents in- stances of the bad effects of destroying the indepen- dence of the judiciary by making its tenure and conduct dependent upon popular opinion or party decision. We shall see later on how the General Assembly for political reasons alone removed by resolution all the judges of the State, from the highest to the lowest, and replaced them by judges of its own party. And we shall read further how the General Assembly impeached, and sought to remove, the Judges of the Supreme Court because they decided an act of the Legislature unconstitutional.
This dependency of the judiciary upon the Legis- lature led to their election by the people as provided in the Constitution of 1850. The change was the result of the unsatisfactory experience of the method adopted in 1802. In the extreme democracy of that period the independence of the judicial branch of the State government was destroyed.
118
THE RISE AND PROGRESS
The eighth article, or the "bill of rights, " enumerated the basic principles of liberty and free government. Its preparation was committed to a special committee in the fourth day of the session. The most prominent member of this committee was Mr. Cutler.
In considering this article the convention voted- yeas nineteen, nays fifteen-to confer upon all male negroes and mulattoes the right of suffrage "if they shall within twelve months make a record of their citizenship." Afterwards when this article came up for final adoption it was stricken out. The vote on this question was a tie-seventeen yeas and seventeen nays. The deciding vote in favor of striking it out was cast by President Tiffin. He gave as his reason, that the close proximity of two slave-holding states- Kentucky and Virginia-made it undesirable to offer such an inducement for the emigration of negroes and mulattoes.
It has been written that there was an attempt to fasten slavery on Ohio in this convention. The journal of proceedings nowhere discloses this. Mr. Cutler in his writings states that there was such an attempt, and Dr. B. A. Hinsdale in his scholarly work "The Old Northwest," repeats this. The fact remains that there is no evidence in the records of the Convention which indicates that there was any contest to prevent the adoption of the anti-slavery section of the bill of rights. Judge Burnet, who was contemporary with the Convention, makes no mention in his "Notes" of any such attempt. Indeed the Convention came nearer to establishing negro suffrage, as has been seen, than it did to adopting slavery.
Te
119
1
OF AN AMERICAN STATE
There was no sentiment for slavery in the Territory at that time. The Federalists, however, were wont to charge upon the Virginia combination a plot to establish slavery in the new state. But it was a political argument used to defeat their opponents. It was used freely in the Federalist press of that day. Even Edward Tiffin whose anti-slavery record has been referred to, was charged by his opponents in the election with a desire to legalize slavery in the proposed state. To this he replied in a card published in the "Scioto Gazette" of Chillicothe, that, "even were it possible to establish slavery here-which it is not, because it was forever prohibited by the Ordinance of 1787-I would regard its introduction as being the greatest injury we could possibly inflict upon our posterity." Tiffin was the leader and spokesman of the Democratic- Republicans-as they had now come to be called,- of the Territory, and he certainly represented their ideas on this question.
The unfriendly feeling of the Convention to Governor St. Clair was manifested early in the session. On the third day the Governor was present and expressed himself as desirous of addressing the Convention. The scant courtesy and almost deliberate insult which he received at its hands is disclosed by the journal.
Instead of inviting the Governor to express his opinions with a generosity deserving his dignified station and honored life, the convention declared that, "Arthur St. Clair, Esq.,"-denying him his titles both civil and military-be "permitted" to speak "on those points which he deems of importance." To this extent did the bitter partisanship of those days go to insult
10
to
1
C
120
THE RISE AND PROGRESS
a faithful official and Revolutionary hero. Even on this unfriendly permission there was a close division, the vote being yeas nineteen; nays fourteen. This affront, for such it was, was keenly felt by the Governor and his friends.
St. Clair's address to the Convention was the swan song of the Federalists in the Territory. To say the least it was ill-tempered and ill-advised. President Jefferson received it as "intemperate and indecorous;" on the other hand Judge Burnet records it as "sensible and conciliatory." These two opinions represent the view-points of Republicanism and Federalism. The general tone of his address was judicial although critical.
Two extracts, representing the extreme expressions of "sensible" and "intemperate" will be interesting remains of the last public utterance of the first Gover- nor of the Northwest Territory. Recurring to his connection with the past history of this new country he said: "When I look around upon this assembly and consider the purpose for which it is convened, and carry back my thoughts for fourteen years, when the affairs of this country were committed to me; when your numbers were only about thirty men; a wilderness before them to subdue, and surrounded by numerous tribes of savages, who, though at peace, were far from possessing friendly dispositions, and soon afterwards at open war-I am filled with astonishment and pro- found gratitude to the Almighty Ruler of the universe, who led them through all the difficulties they had to encounter, and has made of that small handful a great people, and brought them to that point from which
121
OF AN AMERICAN STATE
they are to take their station on the theater of America as a nation. To you, gentlemen, as their representa- tives, it belongs, if you think proper to take it upon yourselves, to form for them that Constitution which, while it secures their political liberty, is to be the foundation of their welfare and respectability. The task is arduous as it is important, and it can not be doubted that you will bring to it patient and candid investigation, true patriotism, and mutual good-will and condescension."
Then followed the expressions which offended Mr. Jefferson's administration, and which were promptly forwarded to Washington by St. Clair's enemies: "The act of Congress under which you are convened has determined the object on which they are first to be employed, to wit, whether it be or be not expedient, at this time, to form a constitution and frame of govern- ment. That being determined in the affirmative, which I presume it will be, you are at liberty to pro- ceed and make that constitution, or to pass an ordi- nance for the election of representatives for that pur- pose. But you are further at liberty, gentlemen, to confine the constitution to be made to what is called the eastern division of the Territory, or to extend it to the whole Territory. That the people of the Territory should form a convention and a constitution needed no act of Congress. To pretend to authorize it was, on their part, an interference with the internal affairs of the country, which they had neither the power nor the right to make. The act is not binding on the people, and is in truth a nullity, and, could it be brought
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.