Edward Tiffin, Thomas Scott.	President Secretary
MEMBERS
Names of Delegates	County
Abbot, David Abrams, Henry Bair, Rudolph Baldwin, Michael Browne, John W. Byrd, Charles Willing Caldwell, James Carpenter, Emanuel Cutler, Ephraim Darlinton, Joseph Donalson, Israel Dunlavy, Francis Gatch, Philip Gilman, Benjamin Ives Goforth, William Grubb, James Humphrey, George Huntington, Samuel Kirker, Thomas Kitchel, John McIntire, John Massie, Nathaniel Milligan, John Morrow, Jeremiah Paul, John Putnam, Rufus Reily, John Sargent, James Smith, John Tiffin, Edward Updegraff, Nathan Wells, Bezaleel Wilson, John Woods, Elijah Worthington, Thomas	Trumbull Fairfield Jefferson Ross Hamilton Hamilton Belmont Fairfield Washington Adams Adams Hamilton Clermont Washington Hamilton Ross Jefferson Trumbull Adams Hamilton Washington Ross Jefferson Hamilton Hamilton Washington Hamilton Clermont Hamilton Ross Jefferson Jefferson Hamilton Belmont Ross

CHAPTER III FROM THE CONSTITUTION OF 1802 TO THE CONSTITUTIONAL CONVENTION OF 1850-1851 GROWTH OF OHIO-DEMAND FOR NEW CONSTITUTION PRIOR TO 1850 In 1800 the population of the Northwest Territory, including the present states of Ohio, Indiana, Illinois, Michigan, Wisconsin and a portion of Minnesota, was only 45,365. The census for 1810 showed for Ohio alone a population of 230,760, a remarkable increase of more than 500 per cent over that of the entire territory ten years before. The following decades continued to show a marked and substantial growth. The population in 1820 was 581,295 ; in 1830, 937,903 ; in 1840, 1,519,- 467; in 1850, 1,980,329. Two influences contributed to the rapid settling up of the state. 1. Its natural resources. 2. Its free institutions. With a climate of extremes in temperature and humidity, with a generous rainfall, equitably distributed through the year, experience has shown that this region is well adapted to the vegetable and animal life of the temperate zone, the favorite abode of man in a civilized state. In almost every portion of the state springs gush from the earth and unite their waters in streams that flow into our rivers and lakes. The land is generally fertile, in some portions remarkably so. Here may be produced an abundance of cereals, grasses and fruits. For raiment, flax may be gathered from the fields and wool shorn from the flocks. Conditions are favorable to the raising of live stock and the hills abound in mineral wealth. The varied and abundant resources invite to many departments of human endeavor. An orator at a local Ohio gathering once said, "Shut this county out from all the rest of the world, and man could labor and live here in the full enjoyment of civilized life." The element of truth in this statement has invited to that diversification of industry and enterprise so necessary to a growing and prosperous state. The migration to the Northwest was greatly accelerated by the attractive force of free institutions—the charters of civil and religious liberty, the ordinance of 1787 and the first constitution of Ohio. It is scarcely necessary to quote from the former its familiar provision : "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted." The motives that led to the adoption of this provision by the Continental Congress have been the subject of much speculation. Why did the members from the slaveholding states vote for it ? It is claimed that their action was not wholly disinterested—that they feared commercial competition with the Northwest and thought that by depriving the territory of slave labor they might secure an advantage over those who should migrate to this region. With slave labor, Virginia could deliver farm products in the markets at less expense than could prospective competitors across the river. If this was the logic of the Southern leaders, it was reversed by the logic of history. - 35 - 36 - HISTORY OF OHIO CHARACTER OF EARLY IMMIGRATION The beacon light of liberty that the founders raised in the wilderness called over the mountains and across the river a people alien neither in race nor in spirit to our institutions. Among them were the demure and peaceful Quakers from North Carolina and Pennsylvania, the sturdy Puritans from New England, and the ambitious and politically dominant pioneers from Virginia. In the ranks of these adventurous and enterprising spirits were those who had shown their devotion to the infant republic on the fields of the Revolution. When Lafayette, on his tour through our country, visited our state in 1825, he portrayed, in his brief, impromptu speech at Cincinnati, published in full on another page of this volume, the fact and the cause of our rapid development as a state : "The highest reward that can be bestowed on a Revolutionary veteran is to welcome him to a sight of the blessings. which have issued from our struggle for independence, freedom and equal rights. Where can these enjoyments be more complete than in the state of Ohio, where even among the prodigies of American progress we are so particularly to admire the rapid and wonderful results of free institutions, free spirit and free industry." Free institutions, free spirit and free industry—these attracted Puritan and Quaker and Cavalier, and fused them on the altar of freedom. The influences here set forth were not the only ones that were active in the building up of our state. They were the most important, however. The others were collateral and contributory. With the rapid growth of our state came a corresponding development of agriculture. The diversification of our industries had its inception early, but it became conspicuously prominent subsequent to 1850. INTERNAL IMPROVEMENTS The people early realized the need of better facilities for transportation. Roads were to be hewn out of the forest ; navigable streams were to be improved and utilized, and following the example of New York, under the guidance of DeWitt Clinton, our state inaugurated a system of canals to connect Lake Erie and the Ohio River. A way must be provided to transport the surplus products of the farm. This the state undertook to do. The first constitution, while it did not contemplate this assumption of power, offered no bar to the system of internal improvements that was gradually developed under the fostering care of paternal legislation. Turnpikes, reservoirs and canals were constructed. While they materially accelerated the development of the resources of the state, they brought with their advantages the burden of debt to the shoulders of the people. An enterprise so vast as the canal system could not be undertaken in that day by private capital, and the state was ill prepared to complete and administer with credit to itself the work that it essayed with vigor and enthusiasm to accomplish. Jefferson has already been quoted in favor of providing frequent opportunity for amending or revising state constitutions. It is apparent that the need of change is dependent in no small measure upon the character of the constitution. One may be made so brief and general in its provisions that it will serve for a long time or possibly for all time. The preamble of our national Constitution could not be much improved. Perhaps it would not be changed at all if our ablest statesmen were to rewrite that Constitution today. The bill of rights in our first constitution in substance, if not in form, will doubtless, in the future as in the past, be a part of any constitution that the people of Ohio may adopt. The constitution of 1802 contained provisions less flexible than those in its bill of rights, and it was doubtless these that Jefferson had in mind when he criticised that instrument as, on the whole, too detailed and CONSTITUTIONAL EVOLUTION OF OHIO - 37 specific. The article which for this and other reasons was first proven inadequate and ill adapted to the changing conditions of our rapidly expanding population was the one relating to the judiciary. Its chief defect grew out of the fact that it made the whole judicial system subject absolutely to the Legislature. This in part grew out of the belief, generally prevailing in our country, that the people were not to be trusted with the direct election of their officials, that this power was to be delegated to a more select body chosen by them—in the new State of Ohio, to the Legislature. The result was that the judicial department, which should be the most independent of all, was made the creature of the lawmaking body. Briefly summarized, the article of the constitution relating to the judiciary provided for a Supreme Court of three members. After 1807 the number could be increased to four. The judges had original and appellate jurisdiction in common law and chancery "in such cases as directed by law," conserved the peace throughout the state and held court once a year in each county. Provision was also made for Courts of Common Pleas. The state was divided into three circuits, with a president SEAL OF OHIO. From a print made about 1860. judge in each. Not more than three nor less than two associate judges were chosen in each county. A president judge and not less than two associate judges constituted a quorum for the transaction of business in the Common Pleas Court. Justices of the peace were chosen by popular vote. All judges were chosen by the General Assembly, and the road to the judicial ermine was not infrequently through that body. The ambitious candidate was often first elected to the House or Senate, where he could take a hand at the log-rolling for higher honors. If not a member of the Legislature, he had in that body a band of retainers looking after his "interests." JUDICIAL SYSTEM BECOMES INADEQUATE In spite of the subordination of the judiciary, there were sometimes clashes between that department and the Legislature. In 1807 occurred a sensational encounter. Judge Pease, president of the Third Judicial District, decided that the law passed by the General Assembly, giving justices of the peace jurisdiction in cases exceeding $20, was unconstitutional. In this he was sustained by Judges Huntington and Todd of the Supreme Court. For this exercise of authority, Judges Pease and Todd were "brought to time" and impeached by the General Assembly. Judge Huntington was elected governor, and for this reason charges were not preferred against him. The other two judges were tried before the state Senate, sitting as a high court of impeachment, and acquitted. 38 - HISTORY OF OHIO Not satisfied with the attempt to remove these judges for declaring a law unconstitutional, the Legislature in 1810 demonstrated its absolute and irresponsible supremacy by passing the famous "sweeping resolution" which removed all judges of the Supreme Court, of the Court of Common Pleas, and justices of the peace. It is needless to say that this precipitated almost endless confusion. With the rapid increase of population the courts were soon far behind their work. They were so clearly inadequate to the demands upon them that as early as 1817 Governor Worthington suggested the calling of a convention to amend the constitution. Governor Brown in 1818 renewed the suggestion, and a year later, in his annual message to the Legislature, strongly recommended a complete revision of the judicial system. "The plan," said he, "that might have been sufficient in 1803 is but ill adapted to the altered state of our affairs in 1819." The proposition to call a convention was submitted to the people in the fall of 1819 and overwhelmingly defeated, the vote standing, for the convention, 6,987; against it, 29,315. It is doubtless true that the overwhelming majority of voters, who SEAL OF 1866 seldom had occasion to go before the higher courts, cared little whether the Supreme Court spent the major portion of its time riding over the state on horseback or comfortably seated at the state capitol ; and Ohio had not then ventured upon the project of internal improvements, including a system of canals that drained the treasury and threatened bankruptcy. In 1819 the people preferred to retain the constitution as it was then rather than to risk a revision and incur the expense of a convention. There was, however, among those who had to do with the courts a continued and increasing demand for the reform of the judiciary. Governor Shannon in his annual message of 1847, spoke emphatically on this subject : The only defect in the constitution as applicable to our present condition, which, in my judgment, could justify a call of a convention to alter or amend it, consists in the defective organization of our judicial system and a total inability of our Supreme Court, under the existing form of the constitution, to transact the mass of business brought before it. The constitution limits the number of judges of the Supreme Court to four, requires two to constitute a quorum to do business and directs that the Supreme Court shall be held once a year in each county of the state. * * * It has become so loaded down with business as to render it impossible for the judges, with all their known industry and talent, to dispose of it in a manner satisfactory to themselves or with due regard to the rights of parties. In an address delivered before the Ohio House of Representatives, January 16, 1847, Clement L. Vallandigham said on the same theme : Now the number of counties—and they are rapidly increasing—is eighty-two; so that these four judges are required to hold no less than CONSTITUTIONAL EVOLUTION OF OHIO - 39 eighty-two separate courts in each and every year, flying for that purpose over the whole vast territory of Ohio. * * * Only think, sir, of your Supreme Court, the last depository of the tremendous powers and possibilities of the judiciary, turned into a flying express and running a tilt against the wind on a trial of speed ; today at Cleveland on the lake, hanging a man by the neck till he is dead; tomorrow in Cincinnati consigning some helpless wretch to the ignominy and the horrors of the penitentiary, or ejecting an unlucky suitor in that great city from a homestead worth millions, on which he had spent the most valuable part of a lifetime. While governors and judges and legislators were advocating a constitutional convention to revise our judicial system, the people, as we shall soon see, had other reforms for which they wished to make provision in the fundamental law of the state. PROGRESSIVES AND CONSERVATIVES FOR A NEW CONSTITUTION IN 1849 The agitation in favor of a new constitution at last became somewhat general. The people had ceased to venerate the old constitution and now began to lay upon it the burden of their misfortunes. Heavy taxes, the "insolence of office and the law's delay" were charged to this source. Like a party long in power, the constitution was held responsible. It is not known that a blighting frost late in springtime or a battering hail storm in mid-summer, or a withering drought in August would have been charged to the dear old constitution, but without exaggerating it may be said that the afflictions of the people, with little regard to their character, were traced to that instrument. In all seriousness, many of its provisions had outlived their usefulness and the time was ripe for a change. Early in January, 1849, while a bill to submit to the people the proposition of holding a constitutional convention was under consideration in the state Senate, after having passed the House, Governor Bebb, in his annual message to the General Assembly, urged the proposed submission because he believed that all officers, legislative, judicial and executive, should be elected directly by the people ; that biennial instead of annual sessions of the General Assembly would at less expense better subserve the interests of the state; that there should be some limitation of the power to incur state debts ; that the judicial system could be materially improved. The bill was discussed at some length in the Senate, the assertion being emphatically made by its opponents, and apparently without contradiction, that the people were not asking, by petition or otherwise, for a chance to vote on the holding of a constitutional convention. The opposition to the bill came from the whigs, though a number of them voted for it, and it failed to receive two-thirds of the votes of the Senate. On March 23, 1849, another bill making similar provision was passed through both houses by the required vote, and the campaign for a new constitution was transferred to the final arbiters—the electors of the state. ATTITUDE OF CITIZENS A constitutional convention and its antecedent preliminaries call into more or less prominence three classes of citizens : 1. Those who wish to revise the constitution because they wish to revise it. 2. The reformers, the progressives. 3. The conservatives, the reactionaries, the "standpatters." We are tempted to add a fourth—those who keep in the middle of the road and, with discriminating judgment and an eye on the weather vane, move cautiously toward the attainment of the "practical," the "possible" and the "probable." While these are not conspicuous in their 40 - HISTORY OF OHIO compromising and circumspect progress toward the goal, they always conclude their labors with the "majority." The first class, those for whom the mere process of changing the constitution, in itself, per se as the youthful professor, proud of his latin would put it, while not the most numerous, is still familiar to all. Debating clubs, literary societies and bodies of higher pretensions unusually have written constitutions, and poor indeed is that organization which does not have at least one member with a burning desire to "revise or amend the constitution." Down the vista of more than sixty years it is still possible to discern the patriots who loved and advocated revision for its own dear sake. And there were progressives and reformers, even so far back as the '40s. Like the lawyers, they favored revision of the judicial system, but they did not propose to stop there. The list of changes demanded by a modest member of this class, who signed himself "Progress," in the Kalida Venture, is sufficiently specific and varied to be interesting. The communication in its introductory suggestions is so applicable to modern conditions and the list of proposed changes such a complete summary of things then in the minds of .the people, that the communication is presented here, practically without change : The act declaring what shall be the fundamental law of the state is the highest which men can be called upon to perform, and in proportion to its importance and gravity ought to be the candor and calmness with which it is performed. Proposed amendments should not be capricious ; nor should they be degraded into mere questions of partisan strife. Constitutions are the barriers against undefined and unlimited power, and should declare the guarantees of the rights of the individuals who reside within their jurisdiction. All parties and all persons are therefore equally interested in them and have an equal right to demand that a constitution shall secure the greatest good to the whole number. I will not at this time argue the propriety or necessity of amending the existing constitution of Ohio. For my present purpose I will take it for granted that it is both proper and necessary to make amendments, and I will suggest for the consideration of the electors amendments to secure the following objects : 1. To vindicate the dignity of the state it ought to be declared that the southeastern boundary is the middle of the channel of the Ohio River and that this state has jurisdiction of its citizens while upon any part of the waters of the Ohio River, when the same is the boundary. 2. All qualifications of voters, except residence and sufficient age, ought to be abolished. CONSTITUTIONAL EVOLUTION OF OHIO - 41 3. All electors ought to be capable of holding any office in the state without any other qualification than that they are electors. 4. Senators ought to be elected by large districts, and the number increased to forty-eight. 5. Every county ought to have one representative for a specified number of persons in the county, who should be elected entirely by single districts of one representative each. 6. Contested elections of senators and representatives ought to be decided by the courts before the members take their seats. 7. The appointing power ought to be entirely taken away from the Legislature. 8. A lieutenant-governor ought to be elected, and also a commissioner of common schools. 9. All officers, legislative, executive and judicial, except subordinate clerks, ought to be elected directly by electors. 10. The Legislature ought not to meet in session oftener than every second year ; the session should commence on the first Monday in January and the length of the session ought to be limited. 11. After the compensation of any officer is once ascertained, the Legislature ought to have no power to reduce it. The compensation of the executive and judicial officers ought to be increased and fixed by the constitution. For county offices, fees ought to be abolished and annual compensation substituted. 12. The Legislature ought to be prohibited from passing special acts of incorporation. So far as associations of persons are convenient, they ought to exist under general laws. Such laws ought not to be permitted to be construed to be contracts to any greater degree than any other law, and should at all times be open to alteration, amendment or repeal. The only effect of acts of incorporation should be to associate persons under a common name and to aggregate capital or means, and should confer no powers or privileges which a natural person of equal means does not enjoy or possess. 13. The Legislature ought to be forbidden to make the state a stockholder with individuals and private companies ; and the object and the extent to which the state may be indebted ought to be declared. 14. The imposition of taxes should be required to be at the same uniform rate upon the valuation of all property in the jurisdiction within which taxes are levied. 15. Offenses against the good reputation of persons ought to be punished by imprisonment, and the party injured ought not to be entitled to compensation in money. 16. All punishment by fine ought to be abolished as being unequal and inadequate. 17. Devices of land by will ought to be abolished and the descent and distribution thereof defined by law. 18. Special quantities of land ought to be exempted from sales on execution; and married women ought to have assured to them their property. 19. The legal equality of married women with men ought to be recognized and established. 20. The laws of this state ought to be reduced to a systematic code ; the process, pleading and practice of courts simplified ; the distinction between law and equity jurisprudence abolished ; and the common law of England abrogated. 21. The judiciary ought to be remodeled by abolishing the Court of Common Pleas and substituting in its place County courts, consisting of one judge only, with original jurisdiction in all cases above justices of the peace ; and for the settlement of estates of deceased persons and the appointment of guardians, there ought to be a separate court in each county, consisting of one judge. 22. There ought to be a District Court, consisting of one judge, with 42 - HISTORY OF OHIO jurisdiction by certiorari ; and writs of error, of course, to bring the judgments of the County courts before him, in cases in which the County courts have original jurisdiction. 23. The Supreme Court ought to consist of a chief justice and all the district judges, to be held once a year in Columbus, with jurisdiction by way of writ of error only to be allowed by the chief justice in cases in which the county courts had original jurisdiction, and in which the District courts overruled the judgment of the County Court. 24. In civil suits juries ought to be had in cases in which either party demanded one, or in which the courts should order one. 25. No religious belief and no adjuration of Almighty God ought to be required of witnesses. 26. The state should refund to the counties all expenses incurred in prosecutions for crimes and misdemeanors. 27. Power of local legislation ought to be conferred upon county commissioners and their number, by some just ratio, increased. This bill of particulars, lengthy as it is, does not express all of the demands of the reformers. Even as early as 1849 there came from different parts of the state a demand for the election of United States senators by direct vote of the people. The National Era and the New York Tribune were quoted in favor of this reform, but as the "Oregon Plan" had not been devised at that early date and the forthcoming convention would not have power to abrogate the provisions of the constitution of the United States, this reform was presented as one of academic interest rather than of practical importance. The enfranchisement of women found occasional advocates, but not in sufficient numbers to raise it to the dignity of an issue. A reform in which there was a deep and widespread interest, but in regard to which very little was said by the secular press of the state, was the regulation of the liquor traffic. A large and influential class of citizens were determined that the sale of intoxicants as a beverage should be virtually outlawed in the constitution. Their liberal opponents were somewhat apprehensive but quiet and undemonstrative in their defensive campaign. We shall see later how the contest between the "wets" and the "drys" went into the constitutional convention—and how it came out. PESSIMISTS IN THOSE DAYS As the agitation for a convention progressed, there was in the preliminary discussions a considerable manifestation of that pessimism which regards everything under „the existing system as headed for autocracy, destruction and the eternal "bow wows." Hear ye one of the oracles : It is an old and true saying that power is ever stealing from the many to the few ; so long has this been the case under our present constitution that but little power remains with the many to steal away. An opportunity now offers for the people to right these things and rescue the rights and powers that have been filched away from them, and they will do it or we are mistaken. "Conservatives" and "reactionaries" there were in goodly number and not a few of them looked forward hopefully to a constitutional convention as a refuge from what today would be called the "socialistic" schemes of the "mob" and the general assembly. Hear the introductory words of the appeal from a representative of this class : A revision of the present constitution with a view to its alteration, so as to entirely prohibit the Legislature from hereafter engaging in schemes of internal improvement cannot be too strenuously urged upon the people. * * * No one at this present day will for a moment contend that the Legislature ever had an express constitutional authority for entering into such a scheme. * * * If it is necessary and proper that improvements such as canals and railroads should be made in the CONSTITUTIONAL EVOLUTION OF OHIO - 43 state, individual capital and enterprise will make them if they are profitable. The real "standpatters" who were opposed to any change were comparatively few and quiet, but on the battle line they did a little bushwhacking from the underbrush. The stormy petrel of the agitation for a new constitution was Hon. Samuel Medary, editor of the Ohio Statesman and an aggressive democratic leader of the state. Not only did he advocate the convention through the columns of his paper, but on May 5, 1849, he commenced the publication of The New Constitution, a weekly of octavo size, devoted entirely to the cause. He evidently was a revisionist for the sake of revision, a progressive and a conservative—in short, he would go far to agree with any man who favored a new constitution. For that he even laid aside for the time being the discussion of partisan issues and became the virtual leader of the newspaper propaganda throughout the state in favor of the convention. No other man, perhaps, did so much to arouse popular interest and insure the triumph of his cause at the polls. In the last issue of The New Constitution, October 5, 1849, the result of the vote on holding a constitutional convention is announced as follows :

For the convention  Against the convention Total vote cast

145,698 51,161 235,370

It will, therefore, be seen that 38,511 electors who went to the polls did not vote at all on this question. The proposition carried by a majority of 56,026. We shall now see how the delegates were elected and how they set about making the new constitution. CHAPTER IV CONSTITUTIONAL CONVENTION OF 1850-1851 POPULAR EXPECTATION The people seem to have approached the constitutional convention of 1850-1851 in a mood on the whole rather optimistic. There were some misgivings and an occasional gloomy prophecy, but serene confidence and sanguine anticipation were clearly dominant. Those who had prominently interested themselves in the movement for a new constitution hoped to. see included in it a goodly portion at least of their favorite reforms. The general feeling was fairly expressed by Hon. Samuel Medary : The people now have it in their power to change the state constitution so as to make it conform to the progressive spirit of the age, and by so doing to simplify their state government and make it cost less to the taxpayer, and at the same time better protect the citizen in his rights. We have here set forth the lure that is often dangled before the citizen to lead him into the mazy field of experiment and change. There is a wonderfully attractive power in the things that are cheap and free. In the press of the day much space was given to assurances that a new constitution was to bring great relief to the taxpayer. In the very nature of things such assurance must be in large measure illusive. Take for instance the reform of the judiciary, which was urged by the ablest jurists of the state, and without the demand for which submission would undoubtedly have been deferred for at least twenty years. The courts were so overcrowded that it was impossible for them to perform the services for which they were created. A system must be devised that would provide more judges of higher average ability, and such a system must inevitably cost the taxpayers more money. Of course such a change should bring compensation in the form of better service and more prompt and satisfactory administration of justice. Taxes are a tribute paid to civilization. If we would enjoy its comforts and conveniences—to say nothing of its luxuries—we must "pay the price." The only state of society which escapes that condition is the one found in Ohio before the white man came. The Indians were not troubled with the tax problem. The people have a right to demand that taxes be economically expended in efficient and necessary service, and this service brings such ample compensation in the greater ability to pay taxes that its burdens are not felt—that they do not exist. The new constitution was to provide a form of government adequate for a progressive and expanding population with growing needs. This could not be made to cost less to the taxpayers. Taxes could not be avoided, but provision could be .made for their more equitable collection and distribution. Others held forth the hope that provision might be made for relieving the state of its $18,000,000 indebtedness, incurred in building up its system of internal improvements and paying an annual interest of over $1,000,000. The finances of the state were in bad condition, partly as a result of the advent of railroads that were taking the place of the canals and curtailing their receipts, but chiefly because all unnoticed at the heart of our system of internal improvements the canker of the spoils system fed and fattened at the expense of the people. Some of the reformers, without recognizing the cause, were still insistent in - 44 - CONSTITUTIONAL EVOLUTION OF OHIO - 45 their demands for relief, and not without warrant hoped that the new constitution might inaugurate a better order in the finances of the state. SELECTION AND CHARACTER OF DELEGATES On February 23, 1850, an act to call a convention passed the General Assembly. It provided for the election on the first Monday in April of 108 delegates, one from each representative district, to meet in convention "to revise, amend or change the constitution of the state." The convention was to meet in Columbus on the first Monday in May, 1850, and have power to adjourn to such other place or places in the state as its members might deem proper. The time for the selection of delegates was comparatively brief, only a little more than a month. The press of the state seemed to be alive to the importance of the election and urged that "only the best men be put forward as candidates," that they must not be picked at random to frame the fundamental law of the state. But party spirit ran high and there were practically no independent candidates in the field. The whigs had not been enthusiastically in favor of framing a new constitution at this time because they feared that with their waning power it would not be possible to elect a majority of the delegates to the convention. On the other hand, the democrats were sanguine that they would triumph at the polls and that theirs was the great opportunity to write and submit a new constitution for the people of Ohio. In the contest for delegates, the democrats as the original friends of revision had a decided advantage over their opponents who had been lukewarm or secretly opposed to calling a convention. In the year 1850, the first Monday of April was the first day of April, but so far as known this contingency did not adversely affect the results of the election. Writers have bestowed high praise on the body of men chosen to frame our second constitution. Perhaps at this late day it would be vain and unpatriotic to question this judgment, and something on the character and personality of the delegates of all our conventions is reserved for future presentation. It is safe to say, however, that the electors of the different districts did not, without exception, send to this convention their men best equipped for framing the constitution. .In the county of Franklin, including then as it does at present, the capital city of the state, Samuel Medary, the chief advocate of the convention, a man of experience in public affairs, and especially well informed" on all questions likely to arise before that body, was defeated by his Whig opponent, John Graham, a local surveyor and former sheriff, who evidently knew little about the constitution and was not stimulated to interest in it by contact with his fellow delegates. He never addressed the convention on any subject. As we learn from the ample "Debates and Proceedings," he seems to have risen to his feet before that body but four times ; once to send to the clerk's desk a proposition from a Columbus citizen to rent a hall to the convention, once to offer a petition signed by a few women of Franklin County opposing the legalization of the liquor traffic, and twice to offer resolutions evidently prepared by others. His opinions on questions up for consideration are found only in the aye and nay votes recorded in the proceedings. Medary, outside of the convention, had more to do than Graham in the convention in shaping the constitution. Hon. Henry Stanberry, of Columbus, who represented a district made up of Delaware County and a portion of Franklin, however, gave the capital city fitting eminence in the convention. Of the 108 delegates chosen to this convention, sixty-four were democrats, forty-one whigs, and three free-soilers. An even dozen were or afterward became prominent. A large majority were what is sometimes vaguely designated as "representative ;" that is, they were representative in character and ability of the average citizenship of their 46 - HISTORY OF OHIO districts and responsive to the wishes of a majority of their constituents. Of a small and harmless minority so much could not be said, and some of its members would probably not have recognized a state constitution had it come walking up the principal street of the capital city. MEETING OF DELEGATES ; ORGANIZATION The delegates met in the State House in Columbus, May 6, 1850. A roll-call of the members showed all present except four. The first motion offered designated the officers of the convention as president, secretary, assistant secretary, sergeant-at-arms and doorkeeper. The point of order was made that the convention could not proceed to business until the members had taken the oath of office. Then, strange to relate, the question was raised whether or not the delegates could consistently take the oath to support the constitution of Ohio when they had met "to construct a new constitution embracing no part of the old one," as a prominent member put it. Another delegate drew attention to the fact that they were only to prepare a constitution to be submitted to the people for ratification, and that until this was done they must live and act under the old constitution, by virtue of which alone they were authorized to assemble in convention ; but this did not satisfy the members and, remarkable and unwarranted as their action was, they actually decided that they would not on entering upon the duties of their office, take oath to support the constitution of Ohio. Judge Peter Hitchcock, delegate from Geauga County, administered the oath to members in these words : "You solemnly swear that you will support the constitution of the United States and that you will honestly and faithfully to the State of Ohio discharge your duties as members of this convention ?" Judge Hitchcock, who certainly knew that the action of the convention was not very creditable to the spirit and intelligence of its members, so shaped the oath that it approached as nearly as possible to pledging support to the constitution of Ohio. The election of president of the convention resulted in the choice of William Medill, of Fairfield County, who was elected by a vote of sixty. His leading competitor, Joseph Vance, received thirty-eight votes. W. H. Gill was elected secretary. The previous General Assembly had reserved to itself the right to choose the reported and had named for that important post J. W. Smith. The democratic majority, in spite of protestations to the contrary, was held steadily in line when questions arose affecting party interests, the distribution of honors, and other forms of patronage. At the outset they were willing and even eager to lay aside partisanship, after they had gathered in the offices and given Samuel Medary a somewhat luscious plum in the form of a contract to publish the proceedings of the convention. In fairness it must be said that if the whigs had been in control they would, perhaps, not have been less selfish and partisan. On the day following the election of officers and while the appetite for patronage was still keen, Mr. Sawyer, an active and somewhat loquacious member from Auglaize County, rose and remarking that a public printer ought to be appointed, declared that he "had no disposition to disguise the matter and would frankly state that he presumed from the complexion of the convention that Samuel Medary would be chosen printer" and proceeded to make a motion to that effect. PARTISAN ACTIVITY The contest over the printing of the convention consumed much time, the dominant party under the leadership of Mr. Sawyer evidently guarding very closely the interests of Mr. Medary. The price to be allowed provoked much discussion. Contracts had been made for the publication CONSTITUTIONAL EVOLUTION OF OHIO - 47 of the proceedings and delegates of the convention in the Ohio Statesman and the Ohio State Journal. The milk of the cocoanut for Mr. Medary seemed to arise from the fact that he had only to lift his type out of the columns of the Statesman and run off the proceedings and debates in book form to get full pay a second time for this work. "If. Mr. Medary, as is true," declared Mr. Sawyer, "has type set up for the publication of his paper and if he can tomorrow use the type for the publication in book form, it is not his fault." The suggestion of some one that the printing be given to the lowest responsible bidder aroused the righteous indignation of Mr. Farr, a Medary supporter from Huron County. He said : This matter of bidding for work of this kind is exceedingly contemptible, and when a man makes such a proposition to me, as a printer, I will have nothing to do with him. The result, of course, was that satisfactory provision was made for Mr. Medary. Having, in the characteristic way of the times, disposed of this inviting piece of patronage, the convention devoted itself to the serious consideration of the work appropriately before it. On May 14, the president announced the following standing committees :

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.

On On On On On On On On On On On On On On On On On On

privileges and elections. legislative department. executive department. judicial department. apportionment. the elective franchise. corporations, other than corporations for banking. banking and currency. public debts and public works. future amendments to the constitution. education. militia. finance and taxation. preamble and bill of rights. public institutions of the state. jurisprudence. miscellaneous subjects and propositions. accounts

In these committees, of course, most of the work was performed. Their reports were discussed in the convention and the substance of these discussions come down to us in two substantial volumes. In the liThited scope of this inadequate survey, not even a brief review of the debates on the more important subjects can be given. A glance over the proceedings reveals the progressives and conservatives in battle array, and often their arguments read like a transcript from the latest issue of the Congressional Record in which similar principles are discussed. In eulogizing the judicial system of England, a prominent conservative of the convention said : The fame of her learned and incorruptible judges has filled the world. And why is it ? They have feared no earthly power, but have been left to poise the scales of justice with a firm and steady hand. "Let justice be done though the heavens should fall" has been the motto of her judges. They have been able to dispense justice under the influence of a conscious security against popular excitement and royal displeasure. Continuing, the same speaker said : I believe that the people of the state of all parties desire an independent judiciary and that they regard such a system as immeasurably more important than that the will of a popular assembly in a particular locality or neighborhood, expressed on a given day under excitement, should be carried into the jury box or be delivered from the bench in the form of a solemn judicial determination. 48 - HISTORY OF OHIO And here is another excerpt from the reply of a progressive of that day : I said it was much to ask our opponents even to vote for the election of judges by the people, but was too much to expect them to go the entire figure on the subject. I said that the election of judges by the people was asked for by the people for the purpose of bringing within their control more fully that department of our government, which alone of all departments of American government, had not felt the chastening and reforming hand of American public opinion. In a stirring speech on the abolition of capital punishment, one of the opponents of the proposition made much of the well-worn argument that those in favor of a change cared more for the criminal than for his victim. CORPORATIONS Conservative citizens, who are sometimes disturbed at the reckless and withering anathemas hurled at corporate wealth, should console themselves with the thought that there is nothing new in this manifestation of hostility and righteous indignation. In the convention that framed the constitution of 1851, the orators bravely assailed the citadel of "privilege" in language as trenchant as any hurled from the hustings today. Here is a sample, under date of June 3, 1850 : Corporations, sir, are destructive to equality and hostile to free institutions and their existence should not be tolerated in a republican government. They confer privileges and benefits on the few which are not enjoyed by the many. Every special act of incorporation is a grant of monopoly—a charter of privileges to a few individuals, which are not conferred upon the community at large. Such legislation is, consequently utterly repugnant to the great republican doctrine of equal rights—a doctrine that lies at the basis of the free institutions of the country. Sir, the people of Ohio have felt the blighting, withering and contaminating effects of these "ulcers upon the body politic"—corporations, through a long series of years ; and I believe there is now a deliberately formed and well settled public opinion among the masses in this state which requires of us as the representatives of the people to say the General, Assembly, in the organic law of this commonwealth, "No more special Acts of incorporation—no more special legislation." A distinguished American statesman has said, and experience has proven the truth of the declaration, that "in this country corporations are like so many citadels, in which the enemies of .republican government entrench and protect themselves, and from which they carry on their warfare against the institutions of freedom and the liberties of the people." Sir, I propose, by a prohibitory provision in the constitution, to storm these "citadels," and to rout the occupants from their entrenchment and their stronghold, so that they may no longer be thus enabled to "carry on their warfare against the institutions of freedom and the liberties of the people." Of course we have applied new words and phrases. We now speak of the "tyranny of privilege," "predatory wealth," and the "tentacles of the monster octopus," but "blighting, withering, contaminating effects of these 'ulcers upon the body politic' " was doubtless a satisfactory avenue for the release of the pentup and righteous wrath of this "friend of the people." From another delegate in the convention we get an insight into the cause of this early hostility toward corporations in Ohio and an illuminating exposition of the devious ways of legislatures seventy years ago : It is well known that special charters are always "got through" our Legislature at will, and it must be evident that it will always be so, in the absence of a constitutional provision. When was there ever an CONSTITUTIONAL EVOLUTION OF OHIO - 49 instance within the recollection of the oldest legislator on this floor, where a single special act of incorporation was defeated ? It is but too generally known that these special acts are "got through" by a logrolling system as it is called, the friends of one bill voting for the bills of others in consideration of their aid when the final vote is taken upon their own. These acts will always pass a legislative body, the dignity and "purity" of your General Assembly to the contrary notwithstanding. Any association of capitalists who ask for a right of way through any part of the country will always get it, and 10,000 remonstrances might be sent up in vain. A single member could carry it through the Legislature, if each member had a bill of his own for similar acts of incorporation. The people who are wont continually to despair of the legislatures they elect, may gather comfort from the evidence here presented that these bodies are not much worse now than in the long ago. Of course, in 1850, as now, there were staunch defenders of existing institutions, including the chartered corporations. Among these was the delegate from Carroll County. Here is what he has to say : It has been said that there is no disposition among the people of the state to embark in the works of internal improvement, hence there is necessity for such action by the Legislature as would invite capitalists to invest their wealth among us. It is said that this is an age of progress. Well, to some extent that is true. The practice of the early pioneers of the country was to invite capital into the state by the establishment and encouragement of associations of wealthy individuals ; and, sir, the state improved under that healthy system—that wise and far-sighted policy. I am unwilling to take away from the people the opportunity and privilege of having railroad or turnpike roads or any other improvements, if they find men willing to build them. If it is the purpose of this convention to prevent the people from having these improvements made, they could not, in my judgment, adopt a more effectual plan than to support the section now under consideration. I am for leaving it to the people and the Legislature to settle these matters by themselves. Let the people, by their representatives, grant special charters and put them upon such balances and checks as they may think proper. This convention should not attempt to prevent the people from inviting capitalists into the state, for to discourage the investment among us of eastern capital is to strike directly at the policy which has made the state what it is—third in wealth and greatness in the republic. The lengthy and interesting discussions on corporations were called forth in large measure by the proposition to include in the constitution the following sections : The General Assembly shall pass no special act conferring corporate powers. Corporations may be formed under general laws ; but all such laws may from time to time be repealed. The constitution of 1803 authorized the creation of corporations by special act. Under this provision abuses had grown up that led the people generally to favor a change. A delegate set forth some of the reasons as follows : The question is not what power should be given to associations of men, but it is a question of methods—in what manner should charters be obtained under which they would act—whether it should be by special charter or the exercise of their rights under some general law. That seems to be the question. And why, I would ask, should the Legislature be harrassed year after year by these applications for charters to associate companies ? Three-fourths of the legislation for several years has been responsive to the petitions of men asking to be associated for certain specific purposes with certain powers granted to them. Why not do all this under a general, instead of a special law ? We would thus get rid of this harrassing of the Legislature— it would hasten the transaction of legislative business, and so much time would not be spent