USA > Ohio > Lucas County > Toledo > The facts and historical events of the Toledo war of 1835, as connected with the first session of the Court of common pleas of Lucas County, Ohio > Part 2
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crown bulged up so that it was really a two story and an attic. A strip of paper with the words "recruiting for the war," in large letters printed on it, was fastened around it. His coat was an old rifleman's uniform of green color, trimmed with black lace. His pants were domestic cloth, colored with oak bark, and also trim- med with black lace down the legs.
Thus equipped, Odle accompanied by a man carrying the Amer- ican Flag, marched up and down the street, beating the drum with great vigor from morning to night. This drumming continued for several days in succession. In the meantime the Court of Common Pleas of Wood County, commenced its session. Judge David Higgins was Presiding Judge., In going his beat up and down Front street, Odle had to pass by the Court House, standing on Sec. Lot No. 360, old survey of Perrysburg. The drumming after a while, became annoying to Judge Higgins. The Judge was a very nervous man, and somewhat irritable at times. One of his peculiar irritable moods came over him during this term of Court. He vented his feelings by pitching into Capt. Scott's drummer, instead of some young and modest member of the bar, as was his usual custom. He ordered the Sheriff to go out and stop that drumming. The Sheriff went to Odle and told him that he was ordered by the Court to stop his drumming. Odle replied, that he was under orders and pay from Capt. Scott to drum for recruits for the war. That he considered it his duty to obey him as a military authority, and should continue to beat the drum until stopped by him ; or until he was satisfied that the Court had more authority than Capt. Scott. He marched on beating his drum, and the Sheriff went into the Court-room to report.
The Judge's eyes flashed lightning when he heard the report. The Sheriff was ordered to arrest Odle forthwith and bring him before the Court, and also summons Capt. Scott. All which was done in a few minutes. Capt. Scott was interrogated whether this man Odle was disturbing the Court under his orders. The Capt. replied that Odle was beating the drum under his orders, having received instructions from Col. Vanfleet to employ the music to aid in recruiting volunteers for the service of the State. He
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further stated that Gov. Lucas, who was stopping at Spafford's Exchange, had sanctioned his proceedings before the Court com- menced its session, and should therefore continue the music until ordered to stop it by Col. Vanfleet or his Excellency.
The Judge roard out in a stentorian voice, "Mr. Sheriff, take Capt. Scott and his music organ to jail and lock them up. Mr. Prosecuting Attorney, draw up an information against these men for contempt of Court, and have the case ready for hearing to- morrow morning."
The Sheriff, Jonas Pratt, made a move towards executing the order. Capt. Scott and Odle readily followed him down stairs to the corner of the building where there was a path leading to the log jail on the back end of the lot. Here a stand was made. The Sheriff's authority to imprison, was repudiated. The Capt. informed him that he should not sacrifice the interests of the State to gratify Judge Higgins's assumed authority. That in the emer- gency of war, when the State was invaded by an enemy, the mil- itary authority, on which the State relies for protection, is para- mount to the civil authority ; that although he regretted to disturb the proceedings of the Court, yet he could not consent to the en- forcement of its order in his case. He gave the Sheriff to distinctly understand, that if he presisted in attempting to take him to jail, he would then and there on the spot, test the question of pow- er, between himself and the Court. He told the Sheriff that if he made a single move further to imprison him, he would declare martial law, and do with him and Judge Higgins as General Jackson did with Judge Hall at New Orleans, put them both un- der arrest.
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"That is right ; that is right, Capt." said Odle, at the same time doubling up his two hands to about the size of elephant's feet. "That's the way to talk. Bully for you, Capt. Stand off, Sheriff.''
By this time, there was a commotion in the crowd of bystanders, indicative that the Sheriff would have a lively time of it, in get- ting them to jail, if he should attempt it by force.
The Sheriff retreated up-stairs to the Court-room as soon as possible, and reported what had taken place at the door below.
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The Judge never said a word in reply ; but continued in the trial of the case on hand, as if nothing unusual had happened.
Without losing any. more time, Odle slung the drum strap over his neck, and continued his march and music as before up and down street. After some little time, the Judge directed the Sheriff to go and find Capt. Scott and ask him if he would be so good as to order that music to some back street, where it would in- terfere less with the court.
The enthusiasm for enlisting recruits was so great, that if the Court had attempted to inforce its order, it would have failed.
Capt. Scott acquired so much popularity by these proceedings, that he shortly after had no further use for his drummer. His company was made up at once.
Gov. Mason, with Gen. Joseph W. Brown, arrived at Toledo with a force under the immediate command of the latter, variously estimated from 800 to 1200 men. About the same-time Gen. Bell got his forces organized at Miami, and went into camp, ready to resist any advance of the Ohio authorities upon the disputed territory to run the boundary line or doing other acts inconsistent with Michigan's right of jurisdiction over it.
Gen. Brown had for his staff, Capt. Henry Smith of Monroe, Inspector; Maj. J. J. Ullman of Constantine, Quartermaster; Wil- liam E. Broadman of Detroit and Alpheus Felch of Monroe, Aids- de-Camp
The two Governors, having made up an issue by legislative en- actments, found themselves confronted by a military force that had been called out to enforce their respective legislative plead- ings. Gov. Mason representing the tenant in possession, was con- tent to rest at his ease. Gov. Lucas representing the plaintiff, had to open the trial. He found it convenient to observe a "masterly inactivity" for some days. The whole country in the meantime, became wild with excitement.
A ludicrous incident occurred on the Perrysburg side of the river, as follows : Most of the soldiers that came from a distance, came with their arms in small squads, as they happened to get to- gether, without any organization. A well known citizen of Per-
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rysburg, not having the war-like preparations much at heart, dressed himself in a commissioned officer's uniform, and mounted on a very fine horse, made something of a military display on the streets. As one of these squads arrived in Perrysburg over the Black Swamp road, and was about proceeding to the river to cross over to the place of rendezvous, this would-be-officer assumed authority over them, and undertook to conduct them down to the ferry. After proceeding some distance, the men doubted the authority of the man in military clothes leading them, especially, as they had heard many of the Perrysburg people did not think much of the war.
When the squad got near the river, they deployed into line and with fixed bayonets closed upon their leader between their line and the river, and called on him for his commission or authority that he claimed to exercise. They told him they were full blooded Buckeye Boys, come to defend the territorial rights of the State ; if he was one of them, all right ; if not, they intended to know it. By this time, he began to look for an opening for escape ; but the boys closed up and moved steadily towards the river, with muskets at charge. Soon the officer was sitting upon his horse as far out in the river as the horse could go without swimming. The boys told him he should stay there until he showed his authority, or orders from Gen. Bell for his release. He was kept there until he nearly perished with cold, when a number of citizens of the town came and entreated the soldiers to let him off. I believe that was the last time that that individual commanded as a volunteer officer. The report that had gone out, that the pepole of Perrys- burg did not think much of the war, did them great injustice ; as the manner in which Capt. Scott recruited his company, the zeal exhibited by him, and the alarcity with which they enlisted, suffi- ciently prove.
Gov. Lucas had determined in his mind toorder Gen. Bell with his force to Toledo as soon as he could make the necessary prepar- ations, and risk the consequences; but before he had got his preparations made, two eminent citizens, Hon. Richard Rusk o Philadelphia, and Col. Howard of Baltimore, arrived from Wash-
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ington as Commissioners from the President of the United States, to use their personal influence to stop all war-like demonstrations. Hon. Elisha Whittlesy of Ohio, accompanied the Commissioners, as a voluntary peace-maker. They remonstrated with him and reminded him of the fatal consequences to himself and the State, of a collision between the forces. They advised him to abandon forcible measures to get possession of territory, and wait for a peaceable settlement of the matter by Congress.
The Commissioners and Mr. Whittlesey had several conferences with both Governors, and finally on the 7th of April submitted the following propositions for their agent; to wit :
1st. "That the Harris Line should be run and re-marked pur- suant to the Act of the last session of the Legislature of Ohio without interruption.
2d. The civil elections under the laws of Ohio having taken place throughout the disputed territory, that the people residing upon it should be left to their own government, obeying the one jurisdiction or the other, as they may prefer, without molestation from the authorities of Ohio or Michigan until the close of the next session of Congress."
It is a little singular that they should propose the same arrange- ments in regard to jurisdiction, that were entered into between Dr. Conant and Seneca Allen, two Justices of the Peace of Waynes- field Township, in now Lucas county, but then Wood county, in 1819, when they came in conflict, one holding his commission from the Governor of Michigan, and the other from the Governor of Ohio. The conflict and settlement of it, occurred in the following manner: Dr. Horatio Conant settled at Maumee in 1816. Gen. Cass, then Governor of Michigan, being intimately acquainted with him, either as a joke or in earnest, sent him a commission as Justice of the Peace in the county of Erie in the Territory of Michi- gan. This portion of the north-west Territory previous to and for some time after the organization of Michigan Territory, was called Erie County and District. The Dr. regarded the commission as a joke, and never contemplated acting under it. In 1819, Seneca Allen was an acting Justice of the Peace in Waynesfield Township
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under the laws of Ohio, residing on the south side of the river, near old Fort Meigs. Waynesfield was the only organized town- ship at that time in Maumee Valley.
ยท His territorial jurisdiction was quite as large as the present Congressional District. He heard about Dr. Conant having a commission from the Governor of Michigan, and notified him that he must not attempt to do any business under it. Sometime in the month of December, 1819, Allen had an engagement to marry a couple on the north or Maumee side of the river. The river was high and full of running ice, and very unsafe to cross. Conant lived near the banks of the river, on the Maumee side. Allen lived near the bank on the Perrysburg side, and nearly opposite. Allen finding it impracticable to get over the river to fulfill his engagement, called to Dr. Conant across the river and requested him to marry the couple. The Dr. reminded him of the objections he had heretofore made to his right to act under his commission, and declined ; but Allen insisted on his doing it, and stated that this was a case of necessity and that necessity knew no law ; that his commission from the Governor of Michigan would do well enough for the occasion.
Conant married the couple and received a jack-knife for pay. Some time afterwards, the two Justices met and Allen made this proposition : He proposed for himself to exercise exclusive juris- diction over the Territory on the Perrysburg or south side of the river, and that the two should have jurisdiction in common on the Maumee or north side of the river. Allen was very liberal, for he conceded more Territory about which there was no dispute, than there was of the disputed Territory.
Acting Governor Mason, refused to agree to the propositions of Messrs. Rusk and Howard. He claimed that although Congress had the power to change the boundary and give a portion of her Territory to Ohio, yet as her boundary was then defined, she had the right of possession and jurisdiction, and having acquired peaceable possession under the original act of Congress creating the Terri- tory of Michigan, he would not compromise the rights of his peo- ple by a surrender of possession.
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Governor Lucas, on the urgent request of the Commissioners, and Mr. Whittlesey, agreed, reluctantly, to accept the propositions as a peaceable settlement of the difficulty until Congress should settle it; or rather until after "the close of the next Session of Congress." Gov. Mason refused to acquiesce in the propositions. Gov. Lucas assented to them, in the light of regarding the Governor of a Territory in the condition of a subaltern, subject to the con- trol of the President. He looked upon the arrangement, as made with the President, through Messrs. Rush and Howard as his rep- resentatives, and disbanded the Military force he had collected. Gov. Mason partially followed suite; but still continued making preparations for any emergency that might arise.
Gov. Lucas now thought he could run and re-mark the Harris Line without serious molestation from the authorities of Michigan, and directed the Commissioners to proceed with the work.
S. Dodge, an Engineer on the Ohio Canal, had been engaged as Surveyor to run the line. He addressed the following letter to Samuel Forrer, one of the Canal Commissioners of Ohio :
SAMUEL FORRER, Esq.,
MAUMEE, April 11, 1835.
DEAR SIR :- We were assured a short time since, by Messrs. Rush & Howard, that no resistance would be made by Michigan. It is now evident that there will be trou- ble, and the Governor of Ohio will not be able to accomplish the running of the line without calling out a strong military force. This cannot be done without first convening the General Assembly, in order to make the necessary appropriations. We shall start to- morrow for the north-western corner of the State; and the next time you hear from me, I shall probably inform you that I am at Monroe, the head-quarters of Gen. Brown. Gen. Brown was yester- day at Toledo at the head of the Sheriff's posse of 100 armed men. They came for the purpose of arresting those who have accepted office under the State of Ohio. He informed me that any attempt to run the line would be resisted by the whole force of the Terri- tory. That they had 300 men under arms at Monroe and 600 more would soon be there; that they have 1500 stand of arms taken from the United States arsenel at White Pigeon. That they did not mean to be rode over rough shod by Ohio. It was replied that Ohio had not as yet put on her rough shoes; and would not unless they made it necessary ; and that the line would certainly be run.
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The Governor of Ohio started on the 8th inst., for Defiance and is entirely unprepared to meet the forces of Michigan. What course he will pursue, I do not know. Our party consist of 15 or 20 unarmed men; and if we proceed, we shall certainly be made prisoners, there not being a sufficient number to prevent surprise; I think the expedition will be delayed. The State of Ohio is affording no protection to the people on the disputed Territory further than through the civil authority. And those who have ac- cepted office, have been obliged to retreat. The Governor has power to call out the Militia, but has no funds to sustain them. Yours, Truly,
S. DODGE.
President Jackson applied to the Attorney General, Benjamin F. Butler of New York, for his official opinion in regard to his powers over the parties. The Attorney General, Mr. Butler, after referring to the two acts passed by Michigan and Ohio in Februa- ry in regard to jurisdiction, said : "The acting Governor of the Territory of Michigan has issued orders to Brig. General Brown, of the Militia of the Territory, entrusting him with discretionary powers to order each brigade of such militia into actual service, so soon as the emergency requires it; and commanding him to arrest the Commissioners of Ohio the moment they stick the first stake in the soil of Michigan.
"In anticipation that the Governor of Ohio may order a Militia force to sustain the Commissiouers and officers of Ohio, General Brown is further commanded, "the moment he may learn that a military force of any description, ordered out by the author- ities of Ohio, is about to approach the disputed Territory, to place himself, with a sufficient force of a like character, on the ground in contestation, and to fire upon the first Military officer or man who presists in crossing the boundary line as at present claimed by Michigan, with any hostile intention, or disposition and determina- tion to prevent his execution of the previous orders."
The laws thus passed by the State and Territorial Legislatures, are equally irrepealable by the President. It is true that Congress has the power to annul any law of the Territory; but until so annulled, it will be obligatory on all persons within the limits of the Territory, unless repugnant to the Constitution of the United
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States, or to the acts of Congress applicable to the Territory. The act of Michigan does not appear to me to be liable to any such ob- jection ; and I must therefore deem it a valid law.
"The act of the legislature of Ohio, extending the jurisdiction of that State over a part of the Territory of Michigan, is, as we have seen, repugnant to the act of Congress of the 11th of January, 1805, creating that Territory, and to the acts subsequently passed for its government ; and its actual and complete enforcement would there- fore involve a most serious violation of the Laws of the United States.
"But I do not think that the mere running of the boundary line directed by that law, would in itself, and without any attempt to exercise jurisdiction over the disputed Territory, constitute a crim- inal offiense against any act of Congress. Nor would it so far obstruct the faithful execution of the laws of the United States, as to require any action of the President. The mere running of the line will, however, constitute an offense against the Territorial act of the 12th of February, 1835, and if the Commissioners of Ohio should attempt to execute the duties imposed on them by the law of their State, prosecution may be instituted against them in the proper Courts of the Territory; although if the action of Ohio should be confined to the designation of the line, it is not preceiv- ed that any necessity can exist for such prosecution."
Notwith standing the views of the authorities at Washington, the Commissioners proceeded to run the line, commencing at the north-west corner of the State. Gen. Brown sent scouts through the woods, to watch their movements and to report when they found them running the line. When the surveying party had got within the county of Lenawee, the under-sheriff of that county, with a warrant and posse, made his appearance to arrest them. He arrested a portion of the party; but the Commissioners and Surveyor Dodge made a timely escape, and run with all their might until they got off the disputed territory. They reached Perrys- burg the next day with clothes badly torn ; some of them hatless, with terribly looking heads, and all with stomachs very much collapsed. They reported that they had been attacked by a large
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force of Michigan Militia under Gen. Brown, and had been fired upon and had just escaped with their lives ; and that they expect- ed the balance of their party were killed or prisoners. They formally reported these facts to Gov. Lucas and he reported them to the President.
The President sent a copy of the report to Gov. Mason and directed him to send him a statement of the facts in regard to the treatment of the boundary Commissioners, "by the officers engaged in the transaction complained of." Gov. Mason wrote Gen. Brown informing him of the communication from the President, and re- quested him to forward a report from the officers engaged, contain- ing a detailed statement of what had been done; that he could forward it for the information of the President. Gen. Brown forwarded the following report from Wmn. McNair, under-sheriff of Lenawee. county, with his indorsement on the back in these words: "In consequence of reports being circulated through Ohio that the Boundary Commissioners had been fired upon by the Michigan military when the officers made the arrest, the following statement was officially made by the under-sheriff of Lenawee county who made the arrests, to the acting Governor of Michigan Territory, to correct such false reports:"
TECUMSEH, June 17, 1835.
To STEVENS T. MASON, Esq., Acting Governor of Michigan Territory.
SIR :- By your request, I have the honor of transmitting to you certified copies of the affidavits and warrants on which the officers of Ohio were arrested while attempting to re-mark Harris' Line, and as the report of the Commissioners to Gov. Lucas and letters published by them are calculated to give a false coloring to the transaction, and mislead the public, I forward to you a detailed statement of the facts from my own observation : On Saturday afternoon, April 25th, I received as under-sheriff of this county, from Mr. Justice C. Hewitt, the within warrant from the affidavit of Mr. Judson. From the best information I could obtain, I was satisfied the warrants could not be served without assistance from my fellow citizens. I therefore mustered about thirty men in the village of Adrian on Saturday evening, and armed them with muskets belonging to the Territory of Michigan. Early the next morning, I started with my small posse, intending to overtake and arrest the Ohio Commissioners and their party. About noon
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we came up with them encamped in a small field (owned by one Phillips,) seven miles within our Territory. When I arrived within one-half mile of the Ohio party, I left my assistants under the charge of a deputy-sheriff and accompanied by S. Blanchard, Esq .,I went forward in order to make the arrest in as peaceable a manner as possible. On arriving at the camp, I enquired for Messrs. Taylor, Patterson and Sully, the Ohio Commissioners, and was told they had stepped out and would be in, in a few minutes. While I was waiting for my party to come up, and for the Com- missioners to return, my party came in sight. Col. Hawkins observed, our friends are coming (meaning my escort) and we must be prepared for them ; when eight or ten of the Ohio party armed themselves with rifles and loaded them in my presence. In a few moments my friends came up and I found the Commissioners had gone-not to return. I then commenced arresting the armed party consisting of Cols. Hawkins, Scott, Gould and Fletcher, Maj. Rice, Capt. Biggerstaff and Messrs. Ellsworth, Mole and Rickets. After arresting Col. Hawkins, who had in his hand a large horseman's pistol, and another in his pocket, both loaded, the bal- ance of the party took a position in a log house and barricaded the door. When I approached with my party within about eight rods of the house, they all came out except Col. Fletcher, and as I approached them to make the arrest, some of them cocked their rifles and directed me to stand off, for they would not be taken. As I continued to advance upon them, four of the party turned and run for the woods ; a few muskets were then fired over their heads, and a rush made after them. They were pursued about thirty rods in the woods, when they were all come up with and arrest- ed. The report of a man having a ball pass through his clothes is a mistake. I was with them for three days and heard nothing of the clothes shot alluded to in the report of the Commissioners, and I firmly believe if such had been the fact, I would have heard of it on the trial or seen the ball hole.
The nine persons arrested were brought to Tecumseh before C. Hewitt, Esq., and by his certificate hereunto annexed, it appears that two were discharged for want of sufficient testimony to hold them to bail. Six gave bail to appear at our next Circuit Court, and one (Col. Fletcher) refused to give bail, as he says by direc- tion of Gov. Lucas, and is now in custody of the jailer, who per- mits him to go at large on his parole of honor. I consider it my duty further to state, that the charge repeatedly made, that the officers of Ohio were arrested by a Military party under Gen. Brown, is not truc. He accompanied me as a citizen of Michigan without any official station, and the whole movement was merely a civil operation under the sheriff of this county, to sustain the laws of Michigan. There has been no call on the Military of Michigan to my knowledge, connected with the Ohio transaction. And I am also happy to inform your Excellency, that the Commissioners
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