USA > Ohio > Ross County > Chillicothe > Ohio centennial anniversary celebration at Chillicothe, May 20-21, 1903 : under the auspices of the Ohio State Archaelogical and Historical Society : complete proceedings > Part 11
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The claim that Ohio became a state on the nineteenth day of February, 1803, has less foundation, perhaps, than any of the other dates contended for ; but by reason of the general accept- ance of that date in some quarters, and because of the error into. which the Legislature of Ohio seems to have fallen in its reso- lution passed at the last session and already noted herein, I deem it important enough to justify further explanation.
The claim is wholly based upon the language employed in the preamble of an act of Congress approved on that date, lan- guage which is used not in reference to the act which follows, but is a recitation of the purposes of the prior act of April 30, 1802, known as the Enabling Act, and of what had been done by the people of the territory northwest of the river Ohio under and by virtue thereof. And it goes on to state that by virtue of that act a constitution has been adopted and a state formed, which has been admitted to the Union under the name of Ohio.
Now this is all of it in the preamble, the office of which is merely introductory of the purposes of the act and which forms. no part of the act itself and hence accomplishes nothing.
Coming to the act itself we find, as has been said, that it has nothing whatever to do with the creation of the state nor its ad- mission to the Union. It extends the operation of the laws of the United States over the new state of Ohio, erecting the state into a judicial district for the purposes of a Federal district court, creating the offices of judge, district attorney and marshal for the said district, these being necessary steps not of creating the state of Ohio nor of admitting it to the Union, but recognizing
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it as a body politic, and soon to emerge from that condition into one of complete statehood and to take its place in the sisterhood of states. If this act created the state of Ohio, as has been claimed, it was not by direct language, for there is no reference to any such purpose therein; but it is said that it does so by necessary implication; and the proposition is stated in the lan- guage of one as follows :
When, therefore, the act of February 19, 1803, declared Ohio to be a district in the judiciary system of the United States, it declared it to be a state. The establishment of a district court to take the place of the territorial court transformed it from a territory into a state. Ohio could not be a judicial district of the United States and at the same time be a territory. The two things were absolutely incompatible.
These conclusions, as far as they go, are just; but it is a matter of great surprise to me that a gentleman of ability and scholarship should have overlooked certain perfectly obvious facts of history in connection with the operation of this act of Con- gress, which completely negative the conclusions reached by him.
No date was named in the act itself upon which it was to go into operation as a whole. The first term of the court estab- lished by it was to convene on the first Monday of June, 1803. The compensation of the judge was to commence from the date of his appointment. The constitution of the new state was be- fore Congress and every member of the Senate and the House, as well as the president of the United States himself, clearly un- derstood that by the terms of Article I, section 25, of that instru- ment the state of Ohio would complete her civil organization on the first day of March, 1803, and that by the third section of the Schedule it was provided that: "The governor, secretary and judges, and all other officers under the territorial government were to hold their offices and continue in the exercise of the du- ties of their respective departments until the said officers are superseded under the authority of this constitution." This being the exact language of the section.
Now, on March 1, 1803, President Jefferson sent to the Senate for confirmation as district judge for the district of Ohio, the name of Charles Willing Bird, of Ohio, and also the names of Michael Baldwin and David Zeigler to be
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United States district attorney and United States marshal respectively. Thus it will be seen that the Federal district of Ohio was organized under this act of February 19, 1803, on the same day that the state of Ohio emerged from its territorial condition into one of complete statehood - March 1, 1803.
This is the earliest date on which Ohio can be considered as formed into complete statehood, nor does it matter what action Congress may have thereafter taken. The law-making power is the paramount representative of the sovereignty of the state and by the express provisions of the constitution already quoted this was the date on which the first General Assembly of Ohio met, on which the state government was organized, on which the ter- ritorial government ceased and Ohio became a state and a mem- ber of the Union for all purposes.
The statement of these claims becomes immediately persua- sive when we examine the history of the period in question. As. early as in January, 1802, the unpopularity of the territorial gov- ernor, Arthur St. Clair, who had the honor originally to be an appointee of President Washington, and who was twice re- appointed by President Adams, but who had antagonized the Territorial Legislature by his frequent exercise of the veto power, led to the formation of a movement among the people of the eastern division of the territory northwest of the river Ohio to form a new state and to secure its admission into the Union. This resulted in the passage by Congress of the act of April 30, 1802, the Enabling Act before referred to, which among other things provided for the calling and election of a constitutional convention to meet at Chillicothe on the first Monday in Novem- ber, 1802. The seventh section of this act proposed certain things which apparently have been considered by some as conditions upon which the new state was to be admitted into the Union ; but, as the act says, these propositions were "Offered to the con- vention of the eastern state of said territory, when formed, for their free acceptance or rejection," and it is difficult to see how their acceptance or rejection could have had any effect on the ad- mission of the new state to the Union.
The Hon. William Wirt, who was attorney-general of the United States from 1817 to 1829, in "Opinions of Attorneys-
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General of the United States," published by Blair and Rives, Washington, D. C., 1841, on page 1386, in speaking of this sec- tion of the Enabling Act, says: "The state, being declared 'per- fectly free to accept or reject,' I cannot perceive that the admis- sion of Ohio into the Union was dependent in any degree upon her acceptance or rejection of these propositions ; but that on the contrary the section in question contemplates her equally as a state and a member of the Union whether she should accept or reject these propositions."
The constitutional convention chose to accept the proposi- tions with certain additions and modifications, and, in a separate memorial, presented the latter, which were afterwards agreed to by Congress in an act approved March 3, 1803, and it is signifi- cant that the constitution contains no reference to the original propositions nor to their modifications.
This act of March 3, 1803, is the one which has been re- ferred to as completing the so-called "compact" between the new state and the Union, and the significance of the foregoing ex- tract is that it shows that the completion of that compact had no effect at all on the creation of the state nor its admission to the Union; and this disposes of the date of March 3, 1803.
Now as to the date of March 1, 1803, it is evident that when on that date President Jefferson appointed Messrs. Byrd, Baldwin and Zeigler, of the state of Ohio, to the offices named, he then knew that the eastern division of the territory northwest of the river Ohio had passed out of existence; and that without any interregnum the state of Ohio had taken its place. Know- ing as he did that by the terms of Article I, section 25, of the new constitution of the state the General Assembly of Ohio was to convene on that day, he also knew that whatever was to be done to complete the transfer of the old form of government to the new, must be done at that time. All of these acts and appointments are in entire harmony with the theory that this transition took place on March 1, 1803, and they are irrecon- cilable with any other date as the time of the admission of the state to the Union.
It is of no small importance in connection with this ques- tion of the time of Ohio's admission to remember that these ap-
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pointments were deliberate and long considered acts. "Actions speak louder than words," and President Jefferson was doing just what presidents have been doing ever since, he was looking ahead, and he wanted his friends where they could do him the most good. In the election of 1797 he had been defeated by John Adams by three votes. In 1801 the vote in the Electoral College was a tie between Mr. Jefferson and Aaron Burr, each having 71 votes. The election devolved upon the House of Representa- tives and Mr. Jefferson was only successful on the thirty-sixth ballot. He was looking ahead to 1805, and when that time came he had builded his fences so well that out of 176 electoral votes he received 162 to Mr. Pinckney's 14.
Now a word as to who Messrs. Byrd and Baldwin were. Mr. Byrd was appointed as the secretary of the territory north- west of the river Ohio on the resignation of Captain William Henry Harrison, who was elected delegate to Congress from the territory October 3, 1799. The Hon. W. T. McClintick, in his history of "Ohio's Birth Struggle," says: "He was not yet thirty years of age. * The distinction of his Virginia ances- try, the influence of his wealthy relatives and friends in Phil- adelphia which was then the seat of the Federal government, united to his own merit and reputation, secured his appointment to succeed Captain Harrison. His identification with the Re- publican party was manifest from the first." And the same writer says of Baldwin: "He was a young man who came to Chillicothe in 1799, and soon compelled recognition by his energy, learning and sparkling intellectual gifts." Later he speaks again of "Secretary Byrd, who from his official position was able to exert a powerful influence in direct antagonism to the gover- nor." And Hon. W. H. Smith, in the St. Clair Papers, says : "There were no ties of sympathy between the governor (St. Clair) and the new secretary." On November 22, 1802, Presi- dent Jefferson removed Governor St. Clair, and in the letter of James Madison, secretary of state, to Charles W. Byrd, Chilli- cothe, he states that St. Clair's "Commission as governor of the Northwestern Territory is to cease on his receipt of the notifica- tion ; that no successor has yet been appointed, and consequently the functions of the office devolve upon you as secretary of the
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said territory." No successor was appointed and Charles Willing Byrd, the friend of Jefferson and antagonist of St. Clair, con- tinued to hold the positions of secretary and acting governor of the territory until the state was organized on March 1, 1803, when he became judge of the new Federal district of Ohio under the pre-arranged plan and by appointment of President Jefferson.
It will be remembered that after the Declaration of Inde- pendence in 1776, Connecticut set up a claim to the north part of what is now the state of Ohio north of Latitude 41 degrees north; and Virginia claimed south of that line as being within the limits of her charter. This latter tract was called the Vir- ginia Military Tract, and that state gave the same to her soldiers of the Revolution as a reward for their services. The Western Reserve was estimated to contain about two and one-half mil- lions of acres. Five hundred thousand acres of this tract Con- necticut gave to sufferers by fire in the War of the Revolution, and this came to be called Sufferer's Land or the Firelands, and this gives the name to the "Firelands Historical Society" of na- tional repute.
It is well known that the Ordinance of 1787 constituted the Northwest Territory a civil government with restricted powers. It embraced the present states of Ohio, Indiana, Illinois, Michi- gan, Wisconsin and a part of Minnesota, and it provided that when the eastern division of that territory had sixty thousand free inhabitants it was entitled to become a state. And Judge Burnet in his notes on the Northwest Territory says: "Fears were entertained that claims adverse to those of the United States might be attended with unpleasant results; as the Terri- torial Legislature, following in the footsteps of the governor and judges in the exercise of their legislative functions, had assumed jurisdiction over the entire territory in conformity with the Ordi- nance of 1787 and were enforcing the execution of their laws by their own officers and judicial tribunals. These unpleasant ap- prehensions, however, were removed before any collision took place, by an agreement between that state and the United States." * * * "By that arrangement the state of Connecticut re- linquished to the United States all right of jurisdiction; and the
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United States relinquished to Connecticut all right of title to the soil of the disputed territory."
And now it must be borne in mind that from April 7, 1788, the date of the first settlement at Marietta, the people of the eastern division of the territory northwest of the river Ohio lived under the Ordinance of 1787. This was their constitution and fundamental law and through its operation the first local laws suited to the condition of the people were adopted and pub- lished, in the territory, by the governor and three judges chosen by Congress. This government continued until 1799, when the territory, having five thousand free male inhabitants, a territorial government was formed on the sixteenth day of September, 1799, and this continued until the first day of March, 1803.
Under these conditions it twice became the duty of Con- gress to directly determine the date when Ohio passed from the territorial condition to that of complete statehood.
The first occasion was on January 24, 1803, when a reso- lution was offered in the House of Representatives which is as. follows :
Resolved, That inasmuch as the late territory of the United States northwest of the river Ohio have, by virtue of an act of Con- gress, passed on the first of May, One thousand eight hundred and two, (April 30, 1802) formed a constitution and state government and have- thereby and by virtue of the act of Congress aforesaid, become a sepa- rate and independent state by the name of Ohio; that Paul Fearing, a member of this House who was elected by the late territorial govern- ment of the territory northwest of the river Ohio, is no longer entitled to a seat in this House.
This resolution was referred to the committee on elections, and on January 31, 1803, that committee reported the following resolution :
Resolved, That Paul Fearing, the delegate from the territory north- west of the river Ohio, is still entitled to a seat in this House,
which was adopted, and that gentleman retained his seat and received compensation as the territorial delegate during the second session of the Seventh Congress, which of course ad- journed sine die before the new state of Ohio had any opportunity to supersede him under the authority of her constitution.
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The second occasion was on the report of the committee on claims to whom had been referred the claim of Judge Return J. Meigs. The report was communicated to the House February 18, 1805.
At the time of the adoption of the constitution of Ohio Mr. Meigs was a Federal judge for the eastern division of the terri- tory northwest of the river Ohio and by the provisions of that instrument hereinbefore quoted he retained that office and con- tinued to exercise its functions and perform its duties until April 15, 1803.
It is said in the report above referred to under the head of Claims, American State Papers, page 311, Eighth Congress, sec- ond session, No. 162, in a letter from Albert Gallatin, secretary of the treasury, to Mr. Dana, chairman of the committee on claims, under date of December 12, 1804, that: "The account- ing officers of the treasury considering the question of the time when the salaries of the several officers of the Northwestern Ter- ritory had ceased as doubtful, applied to the attorney-general and in conformity with his opinion settled the accounts and paid the salaries of these officers only to the twenty-ninth day of November, 1802."
This ruling of Attorney-General Levi Lincoln, of Massachu- setts, applied to the governor, secretary and judges of the terri- tory, and they not being willing to lose their compensation for the period after November 29, 1802, applied to the Legislature of Ohio therefor. That body decided that the claim was an ob- ligation of the United States and refused to pay it. The claim above referred to was then presented to Congress. A short ex- tract or two from the report of the committee on claims will show how the question was disposed of. Commenting on the Paul Fearing case above referred to, the report says :
The committee owe respect to the opinion thus manifested by the House; and they consider the territorial government as having existed under the authority of the United States until the meeting of the Legis- lature on the first Tuesday in March, 1803, under the constitution of the state of Ohio.
That all judges and other territorial officers may receive compen- sation to which they are entitled from the United States equally with
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the memorialist the committee propose the following resolution to the House :
Resolved, That the proper accounting officers be authorized to settle the accounts of the governor, secretary and judges of the late territory of the United States northwest of the river Ohio for their services while acting in those capacities respectively at any time before the first Tuesday in March, 1803.
This resolution was adopted, and while it did not meet the full claim of the memorialist it certainly did settle the controversy as to when the territorial condition ceased and when the life of the state of Ohio began.
This resolution of the House of Representatives was carried into effect by an act of Congress approved February 21, 1806.
AN ACT
For the Relief of the Governor, Secretary and Judges of the Late Ter- ritory Northwest of the River Ohio.
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled:
That the proper accounting officers of the treasury be, and they are hereby authorized and directed to settle at the rate of compensation heretofore established the account of the governor, secretary and judges of the late territory of the United States northwest of the river Ohio for their services while acting in those capacities respectively at any time between the twenty-ninth day of November, one thousand eight hundred and two and the first Tuesday in March, one thousand eight hundred and three.
These men were officials of the territory of the United States northwest of the river Ohio and would receive compensation to the time when that territory ceased its existence, and when the law-making power and sovereignty were no longer in the terri- tory but were transferred to the state of Ohio.
And this was March 1, 1803, to which time under this act of Congress these officials received their pay. This act was, and ever since has been, considered as an authoritative decision as to the date when Ohio became a state and the territory ceased its political existence, and to my mind sets at rest all controversy as to when Ohio was admitted to the Union.
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THE GREAT SEAL OF THE STATE OF OHIO.
In the history of the great seal of Ohio there is much to. surprise and attract attention, as the changes in the seal have been peculiar, and many without authority of legislative enactment, as I shall demonstrate.
My purpose is to review all of the enactments, and in this pursuit shall show what was done in the beginning. When the Ohio constitution was framed, November 29, 1802, by Section 14 of Article 2, it was provided :
There shall be a seal of this state which shall be kept by the governor and used by him officially, and shall be called, "The Great Seal of the State of Ohio."
There were no directions given in the constitution as to the. diameter, device or engraving on the seal; these matters of detail were all left to the action of the Legislature of the state; and, on the twenty-fifth day of March, 1803, an act was passed designating duties of the secretary of state, section 2 of which provided :
That the secretary of state shall procure a seal two inches in diameter, for the use of the state, on which shall be engraved the fol- lowing device: On the right side near the bottom, a sheaf of wheat and on the left a bundle of seventeen arrows, both standing erect; in the. background, and rising above the sheaf and bundle of arrows a moun- tain, over which shall appear a rising sun, the state seal to be sur- rounded by these words, "The Great Seal of the State of Ohio."
The recognition of a seal among the nations of the world goes back long anterior to the engraved devices of the Lacedæ- monians. The witness of the seal has been deemed necessary and essential in all important transactions for many centuries. Its use is the solemn assurance that what it authenticates is a well-consid- ered act, and is evidence of the highest authority. The great seal of Ohio was created by our constitution, and it should be main- tained by a fixed law of the state. This, however, has not been the fact in relation to it; for, on February 19, 1805, an act was passed repealing the above-named act, and enacting the following section on this subject :
SECTION 5. That the secretary of state shall procure a seal of the Supreme Court for each clerk thereof that may be appointed, of one
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inch and three-fourths in diameter ; and also one other seal one inch and a half in diameter, for the use of each and every county hereafter to be created, on which seals shall be engraved the following device: On the right side near the bottom, a sheaf of wheat and on the left a bundle of seventeen arrows, both standing erect; in the background and ris- ing above the sheaf and arrows a mountain, over which shall appear a rising sun. The seal of the Supreme Court to be surrounded by these words: "The Supreme Court of the State of Ohio," and the county seal with these words: "Common Pleas Court of the County of ; and the expenses of said seals shall be paid out of the state treasury.
Now we find that subsequent to the act of February 19, 1805, prescribing the device for the seals of the Supreme Court and other courts, the said act was repealed by an act passed on the thirty- first day of January, 1831, which was in the words following :
That the act defining and regulating the duties of the secretary of state, passed February 19, 1805, be and the same hereby is repealed.
That the secretary of state shall procure, at the expense of the state, for each organized county where the same has not already been done, a seal for the Supreme Court, and also for the Court of Common Pleas, of the same description and device with those heretofore procured for other counties, and shall transmit the same to the clerks of the respective courts.
This act, it will be seen, repeals the previous legislation on the subject, and in its place enacts a single section authorizing the secretary of state to procure seals for each county where it has not already been done. But nothing is said in this act, and no provision was made, for the great seal of the state, which had been repealed by the act of 1805.
A correct seal of states and nations has always been the high- est evidence of authority and authenticity of the acts of the execu- tive; and this device for the first great seal of Ohio, as fixed by the act in question, was unostentatious, appropriate, and replete with historic sentiment. On the right, the sheaf of wheat indi- cated the great agricultural advantages of the state for which it has always been distinguished. The bundle of seventeen arrows on the left hand symbolized the union of the states (Ohio being the seventeenth state admitted to the Union), and united under one government, and bound together for general protection and defense. The rising sun appearing over the mountain was shin-
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ing on the first state west of the mountains, as well as the first state born of the immortal Ordinance of 1787; thus illustrating in the device on the great seal of the state of Ohio, a grand and glorious destiny and history.
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