XVIII. Early Legislation and Legislators (original) (raw)

XVIII. Early Legislation and Legislators

History of Hamilton County Ohio
pages 225-229
transcribed by Joan Asche

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Chapter XVIII.
EARLY LEGISLATION AND LEGISLATORS.

<>A chapter may well be devoted here to some notices of the legislators and legislation for the Northwest Territory, a part of which is quite unique in character and object, and much has a direct local interest in this region, as having been enacted by the governor and judges, or by the territorial legislature, in session at Cincinnati.

THE GOVERNOR AND JUDGES' LAW.

The ordinance of 1787 vested all legislative, executive and judicial powers for the Northwest Territory, in the first instance, in the governor and judges, who were appointed by the President of the United States. This form of government was to continue until the population of the territory should so increase as to include five thousand free white males of full age, when the second, or more popular form of government, to which alone the people are now accustomed, should come in. The first session of this peculiar legislature, provided for the infancy of the territory, was held at Marietta in September, 1787, and consisted of Governor ST. CLAIR and Judges PARSONS and VARNUM only, the remaining judge under appointment (ARMSTRONG) not yet having arrived, and, indeed, never taking his seat at all, but resigning instead, Judge SYMMES being appointed to his place, as before noted. At the first meeting a very severe law, "respecting crimes and punishments," was enacted. It prescribed whipping as a part of the penalty for acts committed by a mob of three or more persons, for house-

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breaking, and for sundry other crimes and misdemeanors, even for assault upon a parent or master by a child or servant. If the child or servant were simply disobedient to rightful commands of his parent or master, he could be sent to jail or house of correction, and be compelled to remain there until he should humble himself to the satisfaction of his superior. For certain flagrant acts, as perjury, forgery, and arson, the offender was to be set in the pillory after flogging. August 21, 1792, at Cincinnati, a law was passed in correspondence with the former enactment, entitled, "An act directing the building and establishing of a court house, county jail, pillory, whipping post, and stocks in every county." Binding to labor—a virtual selling to slavery—was provided for certain cases of larceny, and afterwards for debt. Drunkenness was punished by a fine of fifty cents for the first offence and one dollar for the second, failing to pay which, with costs, the offender must sit in the stocks "for the space of one hour." Various other penalties of a character quite unusual nowadays were prescribed, and the whole wound up with a sort of preamble or string of whereases at the further end of the code, by means of which it was hoped to check, without the infliction of penalties, certain practices detrimental to good order and Christian observances. These sections, as an interesting and unique relic of the early legislation, although their origin was not especially associated with this part of the State; are well worth reproduction here:

SECTION 21. Whereas idle, vain, and obscene conversation, profane cursing and swearing, and more especially the irreverently mentioning, calling upon, or invoking the Sacred or Supreme Being by any of the divine characters in which he hath graciously condescended to reveal his infinite beneficent purposes to mankind, are repugnant to every moral sentiment, subversive of every civil obligation, inconsistent with the ornaments of polished life and abhorrent to the principles of the most benevolent religion. It is expected, therefore, that if crimes of this kind should exist, they will not find encouragement countenance, or approbation in this territory. It is strictly enjoined upon all officers and ministers of justice, upon parents, and others, heads of families, and upon others of every description, that they abstain from practices so vile and irrational, and that by example and precept, to the utmost of their power, they prevent the necessity of adopting and furnishing laws with penalties on this head; and it is hereby declared that government will consider as unworthy of its confidence all those who may obstinately violate these injunctions.

SECTION 22: Whereas, mankind, in every stage of informed society, have consecrated certain portions of time to the particular cultivation of the social virtues and the public adoration and worship of the common Parent of the universe; and,

WHEREAS, a practice so rational in itself and conformable to the divine precepts is greatly conducive to civilization, as well as morality and piety; and,

WHEREAS, for the advancement of such important and interesting purposes most of the Christian world have set apart the first day of the week as a day of rest from common labor and pursuits, it is therefore enjoined that all service labor, works of necessity and charity only excepted, be wholly abstained from on said day.

The marriage law permitted unions between male persons of seventeen and females of fourteen years of age, upon previous consent of their parents; and without such consent if of the ages of twenty-one and eighteen, respectively. A "publication of the bans" was required fifteen days in advance of the ceremony, at church or some other public assembly; or, in lieu of this, a license could be obtained from the governor. Some of these old documents, granted by Governor ST. CLAIR, are still held in Hamilton county and other parts of the State.

LEGISLATION AT CINCINNATI.

We now come to the matters more immediately interesting to Hamilton county, and which furnish ample justification for the insertion of this chapter here. In June, 1791, the governor and judges met at Cincinnati for the exercise of the law-making powers; and thereafter, until the institution of the second grade of territorial government in 1799, they continued to meet at Cincinnati as the capital of the territory. On the twenty-second of that month they passed a law in two sections, the first of which ordained the penalty of a fine, or, in default of payment, fixture in the stocks for three hours, for maliciously tearing down or destroying, wholly or partly, any copy or transcript of a law of the territory or of the United States, or any official proclamation of the governor or President. The second section prescribed three hours in the stocks and payment of costs, or commitment to prison until the same were paid, for tearing down or defacing any publication of the bans of matrimony, or estray or other official notices.

One of the laws passed by the governor and judges, at their meeting July 2, 1791, entitled, "an act to alter and amend the militia laws," directed that every person enrolled in the militia of the territory should, whenever he attended public worship, arm and equip himself as if "marching to engage the enemy," on penalty of a fine, "as the law directs in cases of default when ordered for guard or other military duty," one half to go to the informer, the rest to the county. If the fine were not paid within five days, levy might be made upon the goods and chattels of the defaulter, to the amount of the fine, with fifty cents additional for the costs, of which the justice got one-third and the constable two-thirds.

The militia law of August, 1788, required that all male inhabitants, from the age of sixteen upwards, should arm and equip themselves with musket and bayonet, or with rifle and cartridge box, kept supplied with forty rounds of ammunition, and that thus fully equipped each should assemble with his fellow militiamen at ten o'clock a. m., on the first day of the week, at the place or places occupied for public worship, and there be subject to inspection, drill, and other military discipline.

A curiously loose act was passed August 21, 1792, "for the better regulation of prisons," which provided that if a prisoner confined in a civil or quitam action should escape through the insufficiency of the prison or the negligence of the sheriff or jailor, the luckless sheriff could be held for the debt. He was, however, to be indemnified by the county, in a sum to be raised by taxation, equal to the full amount for which the prisoner, and then he, had been held, if the escape resulted from the weakness or insufficiency of the jail. This well-meant law, as might have been expected, often resulted in frauds upon the counties or the sheriffs, by collusion between ostensible plaintiffs and defendants, where no debts were really due, and where, if due, nothing could possibly be collected from the defendant; so that, when the first territorial legislature met in 1799, the statute, or this section of it, was promptly repealed.

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Another provision of the law exacted a penalty of one hundred dollars, or "such corporal punishment, not exceeding forty stripes, as the court shall inflict," for conveying to a prisoner, without the privity or knowledge of the jailor, any instrument, tool, or other thing whereby he might break out and escape. If the implement used was actually successful in accomplishing the prisoner's escape, the person supplying it, says the law, shall be liable to pay all such sums of money as the prisoner stood committed for, and shall also have inflicted upon him, or her, all such punishment as the escaped prisoner would be liable for if a criminal and had been convicted of the charge for which he or she had been committed, unless such person would be liable to capital punishment, in which case the person assisting in such escape shall be punished by fine, imprisonment, whipping, or sitting on the gallows with a rope about his or her neck, or any one or more of the said punishments, as the court having cognizance thereof shall think proper to inflict.

The governor and judges, also, in the exercise of their legislative functions, instituted a system of limited servitude or slavery for debt (not exceeding seven years), despite the famous provision of the organic act under which they held their official posts, that "there shall be neither slavery or involuntary servitude in the said territory, otherwise than in punishment of crimes whereof the party shall have been duly convicted." The same law limited imprisonment for debt or fines to a term not to last beyond the second day of the session next after commitment, except in case of fraudulent concealment of property.

In 1798 another law, adopted from the Kentucky code, allowed the selling to servitude for not more than five years of an offender convicted of maiming and disfiguring the person of another, in default of his ability to pay the fine and costs. This, however, was soon afterwards held to be unconstitutional, as Kentucky was not in the Union when the territory was formed, and so an act, singular to say, could not be thus adopted bodily from its code.

The former act was passed in August, 1795. The sessions of this year—in Cincinnati, of course—extended through to June, July, and August, were prolific of legislation. It was evidently intended at this time, in view of the contemplated publication of the body of territorial law, to form a pretty compact and systematic collection of statutes. At the session of the summer of 1795 there passed no less than thirty-four of the sixty-four statutes adopted and promulgated by this gubernatorial and judicial legislature between the years 1790 and 1795, inclusive. They were enacted by Governor ST. CLAIR and Judges SYMMES and TURNER, but the entire body of territorial laws (the sixty-four) published after the meetings, took the name of the "Maxwell code," from the printer, the first one in Cincinnati, who made what was for the time a neat and geographically fairly accurate book of them. Two small volumes of territorial laws had been printed at Philadelphia in 1792 and 1794. Among the laws the Maxwell code contains is one of July 14, 1795, providing that the common law of England and all statutes or acts of the British parliament in aid thereof, passed prior to the fourth year of the reign of James I, and not local to the kingdom, should be of full force and effect in the territory, until repealed by legislative authority or disapproved of by Congress. The labor of drafting statutes at any time was made light to the governor and judges by the express permission granted them to copy the statutes of any State that was in the Union at the adoption of the ordinance of 1787. Judge CHASE says of the system of territorial law as a whole, that notwithstanding many imperfections "it may be doubted whether any colony, at so early a period after its establishment, ever had one so good."

Judge SYMMES, however, seems to have had some fears of the force and validity of their laws. The following extract from one of his letters, written at Cincinnati June 17, 1795, well exhibits his apprehensions, and also the trials and tribulations experienced by the judicial legislators:

"I had not been long at home from Jersey before I was called up the Ohio again to attend Governor ST. CLAIR at Marietta in the capacity of a legislator. On the 20th of February, therefore, I set out on my passage up the river, and was buffeted by high waters, drifting ice, heavy storms of wind and rain, frost and snow, for twenty-three days and nights, without sleeping once in all that time in any house after leaving Columbia. I waited in vain twelve days at Marietta for the coming of the governor, and, he not appearing, I returned home.

"The governor has since arrived at this place. About the same time, Judge TURNER came up the river from the Illinois, when we were able to form a house and proceed to the consideration of our laws. Their binding force was so enervated by the measures taken against them last session of Congress, that many citizens of lawless principles now revile and treat them as a nullity. How far the safety and happiness of the United States were involved in the downfall of our little code of jurisprudence, affecting few more citizens and scarcely more energetic than the by-laws of some country corporation—especially as they had undoubtedly been twice read and ordered by government to be printed—I will not pretend to conjecture. I only say, sir, that I am sorry they were found so exceptionable in the eyes of Congress. We lived tolerably happy under them, and, if I am not mistaken, the happiness of the people is the object of laws. Hardly shall we be able to import and adopt a sufficient number of the laws of the original States to regulate our police before the freemen of the territory will rise in numberstofive thousand, when the government will be new formed and the people make their own laws. I am, with best respects,

<>your very humble Servant,
John C. Symmes.
<>

THE TERRITORIAL LEGISLATURE.

The first grade of territorial government existed until 1799, or for eleven years, when it was superseded by the second grade, the conditions of the ordinance of 1787 having by that time been fulfilled. The governor, having ascertained that it had reached that degree of advancement, in point of population of free white males of legal age, which entitled it to the more popular form of government, on the twenty-ninth day of October, 1798, issued a proclamation directing the qualified electors to hold elections for territorial representatives on the third Monday of December next ensuing. Each voter at said election, under the ordinance, must have been possessed of a freehold of fifty acres of land; and the property qualification of each person elected to membership in the legislature must have reached the measure of three hundred acres. He must have been a resident of the territory for at least three years… And his term of service was for two years.

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The scheme of the territorial government provided for the establishment of a law making power to be composed of an elective house of representatives and a legislative council, the latter to consist of five members, who were to be appointed by Congress, from a list of ten persons nominated to that body by the territorial legislature. Such persons were to possess, each, a freehold of five hundred acres of land, and be residents in the territory. Their term of service was five years. If a vacancy occurred in the council, the House of Representatives were to nominate two others, one of whom would be selected by Congress to fill the vacancy. The election resulted in the choice of the following named members of the popular branch of the legislature:

Hamilton county, William GOFORTH, William MCMILLAN, John SMITH, John LUDLOW, Robert BENHAM, Aaron CALDWELL, Isaac MARTIN. Washington county, Return Jonathan

MEIG, Paul FEARING.

Ross county, Thomas WORTHINGTON, Edward TIFFIN, Elias LANGHAM, Samuel FINDLEY.

Adams county, Nathaniel MASSIE, Joseph DARLINGTON.

Wayne county, Solomon SIBLEY, Jacob VISGAR, Charles F. CHABERT de JONCAIRE.

Jefferson county, James PRITCHARD.

St. Clair county, Shadrach BOND.

Knox county, John SMALL.

Randolph county, John EDGAR.

Sixteen of these twenty-two members were residents within the present limits of the State, and had a controlling influence, not only by their numbers, but by their weight of character and knowledge of public affairs, in the deliberations of that branch. So also were three of the five members of the legislative council, which was composed, by appointment from a list selected by the house at its first session held in Cincinnati, beginning February 22, 1799, of Messrs. Jacob BURNET, James
FINDLAY, Henry VANDENBURG, Robert OLIVER, and David VANCE, Dr. TIFFIN, of Ross county, was chosen speaker of the house.

This, the first legislature elect for the Northwest Territory, met in Cincinnati September 16, 1799, to which date it had adjourned, and organized the second grade of civil government for the vast tract of which Ohio was an integral part. William C. SCHENECK was chosen secretary of the council, Henry VANDERBURG, printer; Abraham CARY, sergeant-at-arms; and George HOWARD, doorkeeper. Of the lower house Dr. TIFFIN was speaker, John REILY, clerk; Abraham CARY, sergeant-at-arms; and Joshua ROWLAND, doorkeeper. The assembled solons, however, did not get a quorum of members together until a week afterwards, and the first regular meeting was held on the twenty-fourth of September. It then remained in session until December 19, 1799, when it was prorogued by the governor until the first Monday in November of the next year, reassembling then for the second session at Chillicothe, which had meanwhile been made the seat of territorial government by act of Congress. Judge BURNET, who was a member of the legislative council, and therefore intimately acquainted with the proceedings of the entire body, includes the following remarks in his "Notes:

"This being the first session, it was necessarily a very laborious one. The transition from a colonial to a semi-independent government called for a general revision, as well as a considerable enlargement, of the statute book. Some of the adopted laws were repealed, many others altered and amended, and a long list of new ones added to the code. New offices were to be created and filled, the duties attached to them prescribed, and a plan of ways and means devised to meet the increased expenditures, occasioned by the change which had just taken place.

As the number of members in each branch was small, and a large portion of them either unprepared or indisposed to partake largely of the labors of the session, the pressure fell on the shoulders of a few. Although the branch to which I belonged was composed of sensible, strong-minded men, yet they were unaccustomed to the duties of their new station, and not conversant with the science of law. The consequence was that they relied chiefly and almost entirely on me, to draft and prepare the bills and other documents which originated in the council, as will appear by referring to the journal of the session.

Notwithstanding the abrogation of many of the acts passed by the governor and judges, and the important modification of others, the acts which, looking from a later standpoint, one would presume to have been earliest repealed or amended, were left substantially unchanged. The severest enactments, those most abhorrent to our present sense of justice and views of penal legislation, were precisely those that remained untouched. The first laws passed by the new territorial legislature established and continued in force the statutes previously adopted by the governor and judges, in regard to corporal punishment for crime and punishment by the pillory and stocks, as also the law for the erection of these instruments of penalty, with the whipping-post at all the court houses in the territory. The preamble to this confirmatory act sets forth its necessity as springing from the information given to the general assembly by the governor of the territory, that at several times the governor and judges had presumed to enact laws on their own authority, which were of doubtful validity, and had been so mentioned in the rulings and opinions from the bench. The new law was therefore enacted "to confirm and enforce" these laws. Another act of this people's legislature provided the punishment of a heavy fine for maliciously firing woodland, prairie, or other lands. In case the offence was committed by a servant or servants, and the master or mistress of him or them refused or neglected to pay the damages or fine, "then such servant or servants so offending shall be committed to the prison of his, her, or their proper county, until such debt, dues and demands are paid, or be whipped not exceeding thirty-nine stripes, at the discretion of the court having cognizance thereof. There is a little reminiscence of St. Paul's chequered career in this prescription of the number of stripes, which is at least entertaining.

Judge CHASE, in his "Sketch of the History of Ohio," makes the following review of the proceedings of this legislature:

The whole number of acts passed and approved by the governor was thirty-seven. Of these the most important related to the militia,tothe administration of justice, and to taxation. Provision was made for the efficient organization and discipline of the military force of the territory; justices of the peace were authorized to hear and determine all actions upon the case, except trover, and all actions of debt, except

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upon bonds for the performance of covenants, without limitation as to the; amount in controversy; and a regular system of taxation was established. The tax for territorial purposes was levied upon lands; that for county purposes upon persons, personal property, and houses and lots.

During this session a bill authorizing a lottery for a public purpose, passed by the council, was rejected by the representatives. Thus early was the policy adopted of interdicting this demoralizing and ruinous mode of gambling and taxation—a policy which, with but a temporary deviation, has ever since honorably characterized the legislature of Ohio.

Before adjournment the legislature issued an address to the people, in which they congratulated there constituents upon the change in the form of government, rendered an account of their public conduct as legislators, adverted to the future greatness and importance of this part of the American empire and the provision made by the National Government for secular and religious instruction in the west; and upon their consideration urged upon the people the practice of industry, frugality, temperance, and every moral virtue. "Religion, morality and knowledge," said they, "are necessary to all good governments. Let us, therefore, inculcate the principles of humanity, benevolence, honesty, and punctuality in dealing, sincerity, and charity, and all the social affections."

About the same time an address was voted to the President of the United States, expressing the entire confidence of the legislature in the wisdom and purity of his administration, and their warm attachment to the American constitution and government. The vote upon this address proved that the differences of political sentiment, which then agitated all the States, had extended to the territory. The address was carried by eleven ayes against five noes.

On the nineteenth of December, this protracted session was terminated by the governor. In his speech on this occasion he enumerated eleven acts, to which, in the course of the session, he had thought fit to apply his absolute veto. These acts he had not returned to the legislature, because the two houses were under no obligation to consider the reasons on which his veto was founded; and, at any rate, as his veto was unqualified, the only effect of such a return would be to bring on a vexatious and probably fruitless altercation between the legislative body and the executive. Of the eleven acts thus negatived, six related to the erection of new counties. These were disapproved for various reasons, but mainly because the governor claimed that the power exercised in enacting them was vested by the ordinance, not in the legislature, but in himself. This free exercise of the veto power excited much dissatisfaction among the people, and the controversy which ensued between the governor and the legislature, as to the extent of their respective powers, tended to confirm and strengthen the popular disaffection.

Thereafter, until the formation of the State, the legislature did not make many laws, although it assembled annually, in consequence of these bold assumptions of the governor, who arrogated to himself most of the powers which have since been entrusted to the territorial legislatures. He not only erected new counties and fixed their seats of justice, and arbitrarily put the foot of his veto upon such legislative enactments, as we have seen, as he thought to encroach upon his prerogatives, but even promulgated new laws of his own devised by executive proclamation, without the concurrence of the legislature. These and other high-handed and unwarranted acts made the administration of Governor ST. CLAIR exceedingly unpopular, so much so that when he proposed, in his official character, to address the constitutional convention, met at Chillicothe in November, ????, to form the State government, he was permitted to do so by only a bare majority of five, which passed a resolution that "Arthur ST. CLAIR, sr., esquire, be permitted to address the convention on those points which he deems of importance." The value put upon his counsels at this time may be inferred from the fact that the policy recommended by him, namely, to postpone the organization of the State until the people of the original eastern division were plainly entitled to demand it, and would not be hampered by conditions—commanded but one vote in its support among the thirty-three members of the convention; and President JEFFERSON, upon being advised of this action of ST. CLAIR, immediately removed him from the governorship, although he was subsequently reappointed. He left office finally very much under a cloud, and died in great poverty and obscurity.

THE LEGISLATORS AS ELECTORS.

One of the most interesting and important acts of the first and only territorial legislature which met in Cincinnati was the election of a delegate to represent the territory in Congress. Much canvassing of names and abilities of candidates occurred before the session of the legislature, but by the time it assembled the contest had narrowed to two candidates—the distinguished soldier and citizen of Hamilton county, General William Henry HARRISON, and Arthur ST. CLAIR, jr., son of the governor, who naturally gave to his support the whole weight of the gubernatorial influence. The contest was thus made singularly even, considering the contrast in merits and reputation of the candidates; and when the two houses met in joint session for the selection of the delegate, twenty-one members being present, HARRISON received but a majority of one vote, he having eleven and the younger ST. CLAIR ten votes. HARRISON at once resigned his post as secretary of the Northwest Territory, proceeded to Philadelphia, took his seat in Congress, which was then in session, and was soon influential in securing very important legislation for his constituents. The legislature—of the territory or State—never again met in Cincinnati. Before the time to which the territorial assembly was prorogued had arrived, Congress passed an act, approved on the seventh day of May, creating the Indiana Territory, and making "St. Vincennes, on the Wabash river," the seat of government for that territory, and "Chillicothe, on the Scioto river," the capital of the Northwest Territory. The latter was also the first capital of the State, and remained such, with an interval, until the seat of government was permanently fixed at Columbus. In 1801, however, the legislature of the territory voted to return the capital to Cincinnati, in consequence, it is said, of riotous disturbance and insults offered in Chillicothe to the governor and several members of the legislature. But the law was never executed, by reason of the measures that were taken to form the State government, and the consequent failure of the territorial legislature to meet upon the next appointed day.

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