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[It would be difficult to find
a more comprehensive review of the foundations of our system of laws than
is given in the "Preliminary Sketch of the History of Ohio,"
by this distinguished representative of the bench and the bar of America.
The work is now out of print, and is not easily obtained; besides, its
great author has passed away; so these extracts are made more with a view
of preserving old historical literature, than of introducing new; furthermore,
the masses of the people have never had convenient access to the volumes,
which, for the most part, have been in the hands of professional men only.
The publication of the work first brought its compiler before the public,
and marked the beginning of that career which, during its course, shaped
the financial system of our country, and ended upon the Supreme Bench
of the nation.]
By the ordinance of 1785, Congress had executed in part the great national
trust confided to it, by providing for the disposal of the public lands
for the common good, and by prescribing the manner and terms of sale.
By that of 1787, provision was made for successive forms of Territorial
government, adapted to successive steps of advancement in the settlement
of the Western country. It comprehended an intelligible system of law
on the descent and conveyance of real property, and the transfer of personal
goods. It also contained five articles of compact between the original
States, and the people and States of the Territory, establishing certain
great fundamental principles of governmental duty and private right, as
the basis of all future constitutions and legislation, unalterable and
indestructible, except by that final and common ruin, which, as it has
overtaken all former systems of human polity, may yet overwhelm our American
union. Never, probably, in the history of the world, did a measure of
legislation so accurately fulfill, and yet so mightily exceed the anticipations
of the legislators. The ordinance has been well described, as having been
a pillar of cloud by day and of fire by night, in the settlement and government
of the Northwestern States. When the settlers went into the wilderness,
they found the law already there. It was impressed upon the soil itself,
while it yet bore up nothing but the forest. The purchaser of land became,
by that act, a party to the compact, and bound by its perpetual covenants,
so far as its conditions did not conflict with the terms of the cessions
of the States.
This remarkable instrument was the last gift of the Congress of the old
confederation to the country, and it was a fit consummation of their glorious
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labors. At the time of its promulgation, the Federal Constitution
was under discussion in the convention; and in a few months, upon the
organization of the new national government, that Congress was dissolved,
never again to re-assemble. Some, and indeed most of the principles established
by the articles of compact are to be found in the plan of 1784, and in
the various English and American bills of rights. Others, however, and
these not the least important, are original. Of this number are the clauses
in relation to contracts, to slavery and to Indians. On the whole, these
articles contain what they profess to contain, the true theory of American
liberty. The great principles promulgated by it are wholly and purely
American. They are indeed the genuine principles of freedom, unadulterated
by that compromise with circumstances, the effects of which are visible
in the constitution and history of the Union.
The first form of civil government, provided by the ordinance, was now
formally established within the Territory. Under this form, the people
had no concern in the business of government. The Governor and Judges
derived their appointments at first from Congress, and after the adoption
of the Federal Constitution, from the President. The commission of the
former officer was for the term of three years, unless sooner revoked;
those of the latter were during good behavior. It was required that the
Governor should reside within the Territory, and possess a freehold estate
there, in one thousand acres of land. He had authority to appoint all
officers of militia, below the rank of Generals, and all magistrates and
civil officers, except the Judges and the Secretary of the Territory;
to establish convenient divisions of the whole district for the execution
of progress, to lay out those parts to which the Indian titles might be
extinguished into counties and townships. The Judges, or any two of them,
constituted a court with common law jurisdiction. It was necessary that
each Judge should possess a freehold estate in the territory of five hundred
acres. The whole legislative power which, however, extended only to the
adoption of such laws of the original States as might be suited to the
circumstances of the country, was vested in the Governor and Judges. The
laws adopted were to continue in force, unless disapproved by Congress,
until repealed by the Legislature, which was afterward to be organized.
It was the duty of the Secretary to preserve all acts and laws, public
records and executive proceedings, and to transmit authentic copies to
the Secretary of Congress every six months.
Such was the first government devised for the Northwestern Territory.
It is obvious that its character, as beneficent or oppressive, depended
entirely upon the temper and disposition of those who administrated it.
All power, legislative, judicial and executive, was concentrated in the
Governor and Judges, and in its exercise they were responsible only to
the distant Federal head. The expenses of the Government were defrayed
in part by the United States, but were principally drawn from the pockets
of the people in the shape of fees. |
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This temporary system, however unfriendly as it seems to
liberty, was, perhaps, so established upon sufficient reasons. The Federal
Constitution had not then been adopted, and there were strong apprehensions
that the people of the Territory might not be disposed to organize States
and apply for admission into the Union. It was, therefore, a matter of policy
so to frame the Territorial system as to create some strong motives to draw
them into the Union, as States, in due time.
The first acts of Territorial legislation were passed at Marietta, then
the only American settlement northwest of the Ohio. The Governor and Judges
did not strictly confine themselves within the limits of their legislative
authority, as prescribed by the ordinance. When they could not find laws
of the original States suited to the condition of the country, they supplied
the want by enactments of their own. The earliest laws, from 1788 to 1795,
were all thus enacted. The laws of 1788 provided for the organization
of the militia; for the establishment of inferior courts; for the punishment
of crimes, and for the limitations of actions; prescribed the duties of
ministerial officers; regulated marriages, and appointed oaths of office.
That the Governor and Judges in the enactment of these laws, exceeded
their authority, without the slightest disposition to abuse it, may be
inferred from the fact that except two, which had been previously repealed,
they were all confirmed by the first Territorial Legislature.
At this period there was no seat of government, properly called. The
Governor resided at Cincinnati, but laws were passed whenever they seemed
to be needed, and promulgated at any place where the Territorial legislators
happened to be assembled. Before the year of 1795, no laws were, strictly
speaking, adopted. Most of them were framed by the Governor and Judges
to answer particular public ends; while in the enactmant of others, including
all the laws of 1792, the Secretary of the Territory discharged, under
the authority of an act of Congress, the functions of the Governor. The
earliest laws, as has been already stated, were published at Marietta.
Of the remainder, a few were published at Vincennes, and the rest at Cincinnati.
In the year 1789, the first Congress passed an act recognizing the binding
force of the ordinance of 1787, and adapting its provisions to the Federal
Constitution. This act provided that the communications directed in the
ordinance to be made to Congress or its officers, by the Governor, should
thenceforth be made to the President, and that the authority to appoint
with the consent of the Senate, and commission officers, before that time
appointed and commissioned by Congress, should likewise be vested in that
officer. It also gave the Territorial Secretary the power already mentioned,
of acting in certain cases, in the place of the Governor. In 1792, Congress
passed another act giving to the Governor and Judges authority to repeal,
at their discretion, the laws by |
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them made; and enabling a single Judge of the general court,
in the absence of his brethren, to hold the terms.
At this time the Judges appointed by the national Executive constituted
the Supreme Court of the Territory. They were commissioned during good
behavior; and their judicial jurisdiction extended over the whole region
northwest of the Ohio. The court, thus constituted, was fixed at no certain
place, and its process, civil and criminal, was returnable wheresoever
it might be in the Territory. Inferior to this court were the County Courts
of Common Pleas, and the General Quarter Sessions of the Peace. The former
consisted of any number of Judges, not less than three nor more than seven,
and had a general common-law jurisdiction, concurrent, in the respective
counties, with that of the Supreme Court; the latter consisted of a number
of Justices for each county, to be determined by the Governor, who were
required to hold three terms in every year, and had a limited criminal
jurisdiction. Single Judges of the Common Pleas, and single Justices of
the Quarter Sessions, were also clothed with certain civil and criminal
powers to be exercised out of court. Besides these courts, each county
had a Judge of Probate, clothed with the ordinary jurisdiction of a Probate
Court.
Such was the original constitution of courts and distribution of judicial
power in the Northwestern Territory. The expenses of the system were defrayed
in part by the National Government, and in part by assessments upon the
counties, but principally by fees, which were payable to every officer
concerned in the administration of justice, from the Judges of the General
Court downward.
In 1795, the Governor and Judges undertook to revise the Territorial
law and to establish a complete system of statutory jurisprudence, by
adoptions from the laws of the original States, in strict conformity to
the provisions of the ordinance. For this purpose they assembled at Cincinnati,
in June, and continued in session until the latter part of August. The
judiciary system underwent some changes. The General Court was fixed at
Cincinnati and Marietta, and a Circuit Court was established with power
to try, in the several counties, issues in fact depending before the superior
tribunal, where alone causes could be finally decided. Orphans' Courts,
too, were established, with jurisdiction analogous to but more extensive
than that of a Judge of Probate. Laws were also adopted to regulate judgments
and executions, for limitation of actions, for the distribution of intestate
estates, and for many other general purposes. Finally, as if with a view
to create some great reservoir, from which, whatever principles and powers
had been omitted in the particular acts, might be drawn according to the
exigency of circumstances, the Governor and Judges adopted a law, providing
that the common law of England and all general statutes in aid of the
common law, prior to the fourth year of James I, should be in full force
within the Territory. The law thus adopted was an act of the Virginia
Legislature, passed before the Declaration of Independence, when Virginia
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yet a British colony, and at the time of its adoption
had been repealed so far as it related to the English statutes.
The other laws of 1795 were principally derived from the statute book
of Pennsylvania. The system thus adopted, was not without many imperfections
and blemishes, but it may be doubted whether any colony, at so early a
period after its first establishment, ever had one so good.
And how gratifying is the retrospect, how cheering the prospect which
even this sketch, brief and partial as it is, presents! On a surface,
covered less than half a century ago by the trees of the primeval forest,
a State has grown up from colonial infancy to freedom, independence and
strength. But thirty years have elapsed since that State, with hardly
sixty thousand inhabitants, was admitted into the American Union.. Of
the twenty-four States which form that Union, she is now the fourth in
respect to population. In other respects, her rank is even higher. Already
her resources have been adequate, not only to the expense of government
and instruction, but to the construction of long lines of canals. Her
enterprise has realized the startling prediction of the poet, who, in
1787, when Ohio was yet a wilderness, foretold the future connection of
the Hudson with the Ohio.
And these results are attributable mainly to her institutions. The spirit
of the ordinance of 1787 prevades them all. Who can estimate the benefits
which have flowed from the interdiction by that instrument of slavery
and of legislative interference with private contracts? One consequence
is, that the soil of Ohio bears up none but freemen; another, that a stern
and honorable regard to private rights and public morals characterizes
her legislation. There is hardly a page in the statute book of which her
sons need be ashamed. The great doctrine of equal rights is everywhere
recognized in her constitution and her laws. Almost every father of a
family in this State has a freehold interest in the soil, but this interest
is not necessary to entitle him to a voice in the concerns of government.
Every man may vote; every man is eligible to any office. And this unlimited
extension of the elective franchise, so far from producing any evil, has
ever constituted a safe and sufficient check upon injurious legislation.
Other causes of her prosperity may be found in her fertile soil, in her
felicitous position, and especially in her connection with the union of
the States. All these springs of growth and advancement are permanent,
and upon a most gratifying prospect of the future. They promise an advance
in population, wealth, intelligence and moral worth as permanent as the
existence of the State itself. They promise to the future citizens of
Ohio the blessings of good government, wise legislation and universal
instruction. More than all, they are pledges that in all future, as in
all past circumstances, Ohio will cleave fast to the national constitution
and the national Union, and that her growing energies will on no occasion,
be more willingly or powerfully put forth, than in the support and maintenance
of both in unimpaired vigor and strength. |
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