ANNALS OF OHIO ADMINISTRATIONS - 375 history) and turned over the net amount to save and repair the river bank. It was found that more money was needed for this task, so they "went after it" again and secured it in the same way. There were other similar laws and the lotteries were uniformly successful in bringing in all the money needed. In fact, they were so successful that other lotteries were started, by private citizens for private gain, and without authority of law. But now the law makers had a change of heart and looked at the matter from a different angle. They regarded these private lotteries as immoral gambling schemes and they put a stop to it under heavy penalties ! The forests were the home of millions of gray, black and red squirrels. Now, with the numerous fields of corn, rye and wheat under cultivation, these small rodents had become a serious pest because they were very destructive of the growing crops. How to get rid of them became a real problem for the law makers. After much consideration they hit upon an ingenious plan which was effective, although in the sequel it proved to be a two-edged sword. They passed an act requiring every male person of military age to kill at least 100 squirrels per year and deliver their scalps to their township clerks. Any man who delivered less than this number, or none at all, was compelled to pay 3 cents each for his deficiency. If he accounted for 100 he was given credit for $3.00 on his tax bill, and if he turned in more than 100 scalps in any year he was given a receipt and the excess was credited on his next year's tax bill. In modern times hunters have been subject to a fine of $25 for killing a squirrel in Ohio, except during a brief open season. It would be a strange sight to a farmer of 1807 if he could observe the pests of his day well cared for in the State House grounds, furnished with well made and comfortable little homes, and with ample food to keep them fat—all from public money appropriated by the legislature ! The expense of running the state government this year amounted to $21,713.69. The statute following the explosion caused by Governor Tiffin's secret message concerning Aaron Burr's activities was passed December 6—the fourth day after the attention of the assembly had been called to the subject. One might easily believe that this long act—it covers several pages of the printed statute book—had been prepared in advance, especially considering the multiplicity of words used in the attempt to make it clear and comprehensive. The first section, only one of several which composed the act, was as follows : Sec. 1.—Be it Enacted by The General Assembly of the State of Ohio, That if any person or persons shall, within the jurisdiction of this state, fit out or arm, or attempt to fit out or arm, or procure to be fitted out or armed, or shall, knowingly, be concerned in the furnishing, fitting out or arming of any vessel, boat or water craft, or bring or cause to be brought within the jurisdiction of this state any vessel, boat or water craft, with intent that such vessel, boat or water craft, shall be employed to disturb the peace and tranquility of the United States, or if any person or persons shall, within the jurisdiction of this state, raise or attempt to raise, enlist, or attempt to enlist any person, party or army, or attempt to march any party or army through this state, or if any person shall knowingly enlist or engage in any project or enterprise, with intent to act against the peace and tranquility of the United States, as aforesaid ; every such person or persons so offending, shall upon conviction before the supreme court, be fined in a sum not exceeding $4,000 each, and imprisoned for a term not exceeding three years, and every such vessel, boat or water craft, with her tackle, apparel and furniture, together with all materials, arms, ammunitions or stores, which may have been procured for the building or equipment thereof, shall be forfeited to the use of the state. The act, with interminable repetition of words, provided in the most minute detail what was to be done, including acts by the governor, the 376 - HISTORY OF OHIO militia, sheriffs and other executives, and appropriated $1,000 to pay the expenses. On December 23 a resolution was adopted calling upon United States Senator John Smith to resign his office. The sole reason assigned was that he "had not attended to the duties of that important office," but it was well known that the real reason was that Aaron Burr had called to see him at his home in Cincinnati some time before, and it was suspected that in some way he might be involved in Burr's schemes. The law disciplining the militia, passed February 23, 1807, contained some provisions peculiar to the early times. It required every white male from eighteen to forty-five years of age, with a few exceptions, to enlist in the armed forces of the state, and within twelve months after enlistment to "provide himself with a good musket or fusee, a sufficient bayonet and belt, a knapsack and two spare flints, a pouch with a box therein, to contain not less than twenty-four cartridges suited to the bore of his musket or fusee, each cartridge to contain a proper quantity of powder and ball, or a good rifle, knapsack, pouch and powder horn, with twenty-four balls suited to the bore of the rifle, and a quarter of a pound of powder." The field officers were to arm themselves with a sword or hanger, and the platoon officers with a sword or hanger or "espontoon." This equipment was not provided by the state, but the properties were made "exempt from all suits, distresses, executions or sales for debt, damages, or the payment of taxes." Provisions were made for officers and for the separation of the militia into divisions, brigades, regiments, battalions and companies. The governor was empowered to call into actual service any part of the militia required, and in case of danger of invasion by the Indians the forces could be called and kept in reserve for immediate defense. When on tour the regimental commander could "cause to be procured by impressment" for each company a wagon, team and driver, or a sufficient number of pack horses, six axes and six camp kettles or pots, of convenient size. It does not appear that the state owned a dollar's worth of equipment of any kind, but when articles were thus "impressed" for immediate use, payment for them was to be made out of the state treasury and the property then paid for was to belong to the state thereafter. No salaries were provided for anybody. The law, which consisted of fifty-five sections, provided for musters, for drill, for tours, for court martials, for fines and penalties f or all sorts of military offenses. One of the sections contained twenty-five rules and regulations. It was all very impressive, and its author must have had a great military genius for detail. Economy was still the watchword. The printer was paid $18.25 for fifty copies of the acts of the last session. Rufus Putnam, Benjamin Ives Gilman, and Jonathan Stone were paid a total of $80.80 for "laying out the town of Athens." John McCoy was paid $49 for all the fire wood used during the session of the two Houses. But the trial of Judge Robert F. Slaughter before the High Court of Impeachment cost the state $61.20, divided into several items for services of the sergeant-at-arms and the attendance of numerous witnesses, including 10 cents per mile for distances traveled by them. The official printer was ordered to furnish 200 copies of the journal of each House, and 2,000 copies of the laws passed during the session. The most exhaustive and discriminating account of the "Burr Conspiracy" is found in the third volume of The Life of John Marshall, by Albert J. Beveridge. One can not read without surprise and regret the revelations of the motives and actions of the distinguished men that were arrayed on both sides at the trial of Burr in Richmond, Virginia, before John Marshall, chief justice of the United States. Thomas Jefferson, the political rival of Aaron Burr in the republican-democratic party of that day, who was elected President of the United States over him in the House of Representatives by only one vote, appears to have ANNALS OF OHIO ADMINISTRATIONS - 377 been determined to convict Burr of treason regardless of his guilt or innocence. All the influence of his high office through the public press was used to arouse public opinion against Burr. One can not read of the effort to destroy Burr and the chief instrument employed for that purpose without feeling that the supreme culprit —the real traitor—was none other than Gen. James Wilkinson, then commander-in-chief, under Jefferson, of the armies of the United States. Wilkinson at first had joined Burr in his project, which seems to have been to invade Mexico, should the United States become involved in war with Spain, which at that time was anticipated. This could scarcely be considered a treasonable act. Other prominent men, as Beveridge clearly demonstrates, had sanctioned like projects. Other statesmen of the time had favored a separation of the Union. It was not proven at the trial that Burr had in mind such a project. It was afterward proven that General Wilkinson was in the employ of the Spanish government from 1787 to 1807. At the same time it was he who first suggested to Aaron Burr an expedition against the Spanish possessions. He appears to have been ready to accept bribe money regardless of its source. He had led the secession movement in Kentucky in 1796 and declared it his purpose to become the "Washington of the West." When it was apparent that the Burr movement was to be exposed. Wilkinson not only deserted Burr but accused him of planning the dismemberment of the Union. Upon the testimony of Wilkinson alone, it appears, Jefferson had decided to destroy Burr. Between him and the consummation of this purpose stood Chief Justice John Marshall. No mere summary of the "diplomacy," intrigue and disloyalty of partisan leaders of the time can do justice to the picture detailed in 272 pages devoted to it by Mr. Beveridge. To his monumental work the reader is directed for the final word on this interesting episode of our history. Burr deserved a portion of the disgrace that attaches to his name, but he was a patriot compared to Wilkinson and little worse than others in the ranks of his accusers. Time has vindicated the decision of Judge Marshall. There was not sufficient evidence against Burr to convict him of treason as defined in the National Constitution. SIXTH LEGISLATIVE SESSION December 7, 1807, to February 22, 1808. This session of the general assembly found the state without a governor, as Edward Tiffin was now a United States senator. Thomas Kirker, as speaker of the senate, was acting governor. He was reelected speaker, but John Bigger, of Warren County, was made speaker pro tem in order that Kirker might have time to perform the governor's duties until such time as a new one should be declared elected. The election having been held, it was generally expected that this declaration would soon be made. But exciting scenes were soon to follow in the Legislature incident to a contest, and Kirker was to act as the head of the state far longer than he could have foreseen. There had been two candidates for the gubernatorial office—Return Jonathan Meigs, Jr., and Nathaniel Massie. It is probable the election machinery had been inefficient in places. Possibly there had been fraud in some districts. It was conceded by everybody that there had been "irregularities." The face of the returns gave Meigs 6,059 votes and Massie 4,757. One set of figures, after deducting for irregularities; gave Meigs 4,531 anal Massie 2,317. No doubt there was manipulation, and cries of fraud on both sides. The records of the houses throw no light on the subject. But no declaration of the vote was made by the Legislature, and Massie contested the election of Meigs. "An act to contest the election" was passed by both Houses. It can be easily imagined that a situation like this created excitement 378 - HISTORY OF OHIO throughout the state and that the two factions involved divided into hostile camps. The hearing of the contest came on in joint session of the two houses. The contention of General Massie was that Judge Meigs ought not to be declared elected for the reason that he was ineligible, not having been a resident of the state for the required four years prior to the election. The exact specifications were that "within four years preceding the election he had been a resident of the Territory of Louisiana and there exercised the office and powers of a United States Judge." Also that "he now holds an office under the government of the United States," and that "on the second of April last past he was appointed a Territorial Judge for Michigan." Judge Meigs' reply, which was agreed to by both sides as a statement of facts to be given in evidence, was as follows : "In December, 1804, I left Ohio, and arrived in Louisiana, in January, 1805, bearing a commission of colonel in the army of the United States and commandant of the district of Missouri. The office of commandant and colonel expired by law at the close of the session of Congress, in the spring of 1806. In July, 1805, I received a commission as judge of the Territory of Louisiana. I returned to Ohio in August, 1805, having been then absent from Ohio but seven and one-half months, and having then resided in Louisiana but six months. "In April, 1806, I went to Louisiana, and returned in July, 1806, having been then absent from Ohio between three and four months, and having then resided in Louisiana but a little more than two and one-half months. The whole absence from Ohio, both times included, amounts but to eleven months, and the residence in Louisiana to eight and one-half months. During the last session of the legislature of Ohio I was commissioned by the governor of the state to carry into effect the law `to prevent certain acts hostile to the peace and tranquility of the United States within the jurisdiction of this state,' under which I acted in arresting Burr's flotilla, etc. During the same session I was elected by the legislature trustee for lands granted for religious purposes in the County of Washington, under which I acted. On the Fourth of July, 1807, I received a commission as Judge of the Territory of Michigan, which I accepted. The commission was dated either the first or second of April preceding, and had been missent to Louisiana—was never qualified to office in Michigan. Almost immediately after the receipt of the last commission I was summoned to Richmond to Colonel Burr's trial—returned as soon as discharged, in October last. "I have (except the several absences above mentioned) resided with my family at Marietta, in Ohio, thirteen years, and not elsewhere. During that period my family never left Marietta. My absence in Louisiana was on a colonial commission, on behalf of the State of Ohio, as well as for the United States. If any material fact or circumstance is herein omitted, I will readily insert it. "R. J. Meigs, Jr. "Chillicothe, December 14, 1807." Counsel was admitted to appear for both sides in the contest, and both made arguments. The records contain no details as to what was said—nothing but a copy of the following very brief resolution containing the decision: "Resolved, That Return J. Meigs, Jun., is not eligible to the office of Governor." The vote was 24 to 20 in favor of the resolution. General Massie did not claim the governorship, nor was his right to it considered at all so far as the records of the proceedings disclose. A biographer who knew him well says "he was too magnanimous to accept it when his competitor had a majority of the votes." His grandson, D. Meade Massie, in a book written many years later, said that "his probable reason for contesting was to please his friends and to give the ANNALS OF OHIO ADMINISTRATIONS - 379 place to his faithful supporter, Thomas Kirker, of Adams County, who by reason of being president (speaker) of the senate succeeded to the vacant office." He also attributed the large number of votes cast against Massie at the election to the fact that they came mostly from eastern and northern parts of the state, where Massie's great services were entirely unknown. In the southern counties Massie's votes constituted a very large majority of all those cast. Meigs never questioned the decision of the Legislature. He was immediately appointed judge of the Supreme Court and the next year was elected United States senator to fill the unexpired term of John Smith, who resigned at that time. Meigs served in the United States Senate for one year, when he was elected governor by a majority of more than 2,000 votes over his opponent. The appointment of Meigs to the Supreme Court by the same Legislature which had just declared him ineligible for governor seemed inconsistent. It does not appear to have been in any sense a party contest, for both principals to it were republicans, as the followers of Jefferson were called, as were almost all of the members of the legislature. During this session six new counties were established—Knox, Delaware, Stark, Wayne, Tuscarawas and Preble. Now, for the first time in the annals of the state, a bank was authorized and incorporated by the Legislature. The Bank of Marietta was incorporated by act of February 10, 1808. Gen. Rufus Putnam, founder of the town, was the chief figure in it. The authorized capital was $500,000, as large, perhaps, as that of any bank on the continent at that time. It is not conceivable that it was expected to have a paid-up capital of any such amount. Marietta's population was probably less than 3,000—there were less than 6,000 people in the whole of Washington County when the 1910 census was taken. The bank was permitted to issue notes, acquire property, do a general banking business, and contract debts not exceeding three times its paid-up capital. On February 18, one week later, the bank of Chillicothe was incorporated, by State Treasurer McFarland and associates, with an authorized capital of $100,000. The existence and facilities of both these banks were found very useful to the state a few years later when the War of 1812 made public borrowing of money necessary. The expenditures this year were $21,713.89.8, the final figure signifying eight mills. The balance left over in the treasury was $697.08.1. On the title page of the old book of laws passed during this session of the Assembly of Ohio there is a display of the words : "In the Sixth Year of Said State." Among the first of the statutes is "an act declaring certain streams navigable," and it names them as follows : The Mahoning, from the Pennsylvania line as far up as Jesse Holliday's Mill ; Still Water, from its confluence with the Muskingum River as far up as the Brushy Fork of said stream ; Will's Creek from its confluence with the Muskingum as far up as Cambridge ; One Leg (commonly known as Kanotten) as far up as the division line of the fourteenth and fifteenth townships in the seventh range ; The Scioto from its confluence with the Ohio River as far up as the Indian boundary line ; the Little Muskingum from its confluence with the Ohio up as far as the south line of section number 36 in the township of the seventh range. Most of these streams are not regarded as navigable now except f or very small boats. Perhaps the word has lost the original meaning in the minds of our forefathers. They were very determined that the passage of the water craft on them should not be obstructed, for they now prohibited any mill dams to be laid across them by anyone unless he made provision "by a lock, or slope, or both, if necessary," of proper size to allow passage of boats past the dam. On February 13, 1808, minute directions were placed in a long act 380 - HISTORY OF OHIO providing for the election of Ohio's electors for President and Vice President of the United States. It was all written in accordance with the amendment to the Federal Constitution on that subject. Among the other things provided for, it required the electors to assemble at Chillicothe on the day before they were to cast their ballots, and to formally notify the governor that they were present and ready to perform their duties. He was, in case of the absence of any of them on that day, to notify the general assembly immediately of the fact, and the assembly was to elect others to fill their places so that the full electoral vote could be cast on the required day, for President and Vice President. It was under this law that the Ohio electors voted for James Madison for his first term as president, the following year. It was, of course, perfectly well known to the assemblymen that Nathaniel Massie was going to contest the election of Return Jonathan Meigs, Jr., as governor, but no Legislature had foreseen such an event and no law had been made for such a contingency. Therefore the present Legislature made haste to supply this omission. A law was passed early in the session "prescribing the manner of contesting elections for governor." It enacted that within two days after the general assembly had opened the return of the vote cast for the governor any person might give notice in writing, to the Clerk of the Senate, of his intention to contest the election, specifying the particular points on which he expected to rely. A certified copy of this notice must be served on the governor-elect. When the trial of the contest came on before the joint session written or oral testimony could be given, and after both sides had been heard and members had stated their reasons for the vote they intended to give, the alphabetical roll should be called—first of the senate and then of the house—and a majority of votes should decide the issue. So far the law was general in its application, but, since the vote had been opened this time before the law could be passed, it was necessary to provide for the case immediately pending, and so a special section of the act was inserted as follows : Be it further enacted, That any candidate or elector, being desirous to contest the election of the present governor-elect shall file with the Clerk of the Senate, within two days after the passage of this law, a specification of the points on which they intend to rely in the contest, which contest shall be conducted in the same manner as by this act future contests are to be conducted. The next regular election for governor would not occur until 1809, therefore a special election would be necessary in October, 1808. "An act providing for the election of a governor" was passed for that purpose, under date of February 20, 1808. A good deal of attention had been given the question of standardizing weights and measures, and, as noted before, the provisions of the act had been suspended for a year. Then an appropriation of $1,500 had been made to carry it into effect. But now, on February 19, the act was repealed and was not revived until a few years later. The journals throw no light upon the reasons for this, but dealers who sold on short weight scales could continue unmolested by the authorities. Further amendments were made to the Crimes Act. A burglar who at night entered a mansion, house, store, etc., armed with a dangerous weapon, was punished by being whipped on the naked back not exceeding fifty stripes, fined $1,000, and imprisoned for twelve months. Bigamy (marrying while married, or knowingly marrying the husband or wife of another) was punishable by a fine of not exceeding $1,000 and imprisonment not more than two years. The military establishment had by this time begun to feel the need of arms under its own control, so the assembly resolved that the state's senators and representatives in congress use their best endeavors to borrow from the general government 7,000 stands of arms and twenty ANNALS OF OHIO ADMINISTRATIONS - 381 pieces of artillery, and also learn at what price and on what terms they could be purchased by the state. The clerical work in the office of the state auditor had now grown so heavy that he could not do it all himself, and he was allowed a clerk. An appropriation was made of $678 to cover the clerk's salary and pay the postage of the department. This must have been an unusually cold winter. The fire-wood bill of the houses was $105—much larger than in any previous session. The printing bill also was leaping upward, for the unprecedented number of 3,000 copies of the laws and 300 copies of the journals of the two Houses were ordered for distribution among the growing official and legal profession. ADMINISTRATION OF SAMUEL HUNTINGTON SEVENTH LEGISLATIVE SESSION December 10, 1808, to February 21, 1809 Thomas Kirker had been Acting Governor more than a year when the legislative session of 1809-1810 convened on December 5th. He had been a candidate in the October election for the governorship, but had been defeated. He was again elected speaker of the senate at this session. Alexander Campbell, of Adams County, was speaker of the House of Representatives. William Creighton, Jr., who had been secretary of state from the first, resigned, and Jeremiah McLene was chosen by the legislature to fill his place. McLene was a Revolutionary soldier and had lived in Ohio since 1790. He served continuously in the office to which he was now elected for almost twenty-five years, after which he was sent to Congress from the Columbus district and remained there until his death in 1837. Acting Governor Kirker advised the Assembly that United States Senator John Smith had resigned. This was an aftermath of the "Burr Conspiracy." Smith, who had become a warm personal friend of Vice President Burr at Washington, was suspected of possible complicity in Burr's schemes. The General Assembly had previously by resolution conditionally asked him to resign. In 1808 a resolution to expel rim, from the United States Senate received nineteen affirmative and ten negative votes. As it required a two-thirds vote to expel, it failed by a single vote. Humiliated by the treatment accorded him, Senator Smith resigned, a victim to factional politics. He was succeeded as Senator by Return Jonathan Meigs, who was now elected for both the unexpired term and the full term which was to follow. The canvass of the vote cast in the October election for governor showed that Supreme Court Judge Samuel Huntington had been elected, and it was so declared. It had been a heated contest—Huntington receiving 7,293 votes, Thomas Worthington 5,601, and Thomas Kirker 3,397. On the 12th, two days after the declaration of his election, Governor Huntington was formally inducted into office, Judge Meigs administering the oath. Governor Huntington was born in Connecticut in 1765 and named for his uncle, Samual Huntington, who was one of the signers of the Declaration of Independence. He was graduated from Yale, became a lawyer in his home state, moved to Cleveland in 1801, and to Painesville in 1805. He served in the constitutional convention of 1802 and was a member of the first Legislature. He had won praise on the Supreme Bench. When elected governor he was forty-three years old, and he died at Painesville nine years later. The advancement of Judges Meigs and Huntington made necessary the election of two others to fill their places on the Supreme Bench. Each ANNALS OF OHIO ADMINISTRATIONS - 383 member of the Legislature cast two votes. There were eleven candidates and five ballots were taken before two of them received a majority of the votes. They were Thomas Scott, of Ross, and Thomas Morris, 1 of Clermont. Scott was clerk of the Senate and Morris was a member of the House. Scott had been successively a minister, a tailor, and a lawyer. He had become a lawyer by his wife's reading to him while working at his trade of tailor. He had been clerk of the Territorial Legislature, the first justice of the peace in Ross County, and later prosecuting. attorney.. He served on the Supreme Bench until 1815. George Tod, the third judge of the Supreme Court, and Calvin Pease, president judge of the third circuit, were arraigned before the Senate on articles of impeachment brought by the House. Both were accused of "high misdemeanor and wilful, corrupt and wicked disregard of the Constitution," in that they had declared null and void an act passed by the Legislature. This was the beginning of a fight in Ohio to determine the right of a court to pass upon the validity of a state law. It was a question which had been decided by the judiciary of some of the older states, and in the famous decision of Chief Justice Marshall of the United States Supreme Court. In all cases the Constitutions, made by the people themselves, to protect minorities as well as majorities, had been decided higher authority than legislative enactments, made by the legislatures or congress, the agents of the people. 2 In the cases now tried before the High Court of Impeachment in Ohio it was admitted by the judges that they had declared null and void those parts of the legislative act defining the duties and rights of justices of the peace which conflicted with the provision of the Constitution holding inviolable the right to trial by jury in certain cases. The judges justified themselves in making their decisions. The vote of the Senate was fifteen to nine in favor of finding them guilty. But, as a two thirds vote was necessary to impeach, the proceedings against them failed, and they retained their seats on the bench. A fact of interest in this controversy between the Legislature and the judiciary is that Judge Tod was the father of David Tod who, in 1862, became a "war governor" of Ohio. During this session several new counties were established and changes were made in the boundaries of others. Laws were passed elaborating the judiciary act, equipping the militia, enlarging and modifying the crimes act, and establishing more schools, academies, colleges, churches and societies. Necessary amendments to the Crimes Act of 1805 had been so numerous during the three years since its enactment that, as noted above, it was now entirely rewritten and made into a sort of criminal code. Some of the punishments were mitigated, but others were made more ferocious than before, and a number of new crimes were included which had not been in it originally. Under the new act "any person, in malice and aforethought, who shall cut off or disable the tongue, or put out an eye, or cut off or render useless an arm or leg of any person, on conviction thereof the person so offending shall be whipped not exceeding 150 stripes on his naked back, and be fined in a sum not exceeding $5,000, and be imprisoned not exceeding two years, and moreover, shall be liable to the person injured." And any person who should without malice aforethought expressed or implied, 1 - Morris never qualified for the office. 2 - The attack on the judiciary of Ohio was but an echo of the clash between President Jefferson and the Federal courts. Failing in his effort to get rid of a supreme judge by impeachment, he sought "relief" by "sweeping" devices that would place the members of the court at the mercy of the Executive, but he was frustrated by the Constitution. In Ohio the situation was different. When impeachment failed, the friends of Jefferson enforced the dominance of the Legislature by the so-called "sweeping resolutions," which vacated all state judicial positions and placed in the hands of the Legislature the power to fill the vacancies. 384 - HISTORY OF OHIO knowingly and with intent do any of the things mentioned, or "slit the nose, cut or bite off the nose, ear or lip," was liable to the same fine and imprisonment, but not the whipping. A person guilty of horse-stealing must be whipped, receiving for the first offense not exceeding 100 nor less than fifty stripes, and for the second offense not exceeding 200 nor less than 100 stripes. For the third offense he should "have both ears cropped," be imprisoned, and fined not exceeding $1,000. Any person buying or receiving a stolen horse, knowing it had been stolen, should suffer like punishment. Duelling was not punished quite so severely by fine and imprisonment as in the original act. All a challenger, carrier of a challenge, or fighter had to endure under the new law was to pay a fine of $1,000, find security for his good behavior for two years, be forever disabled from holding any office of profit or trust, "and be stripped naked to the waistband, and tied to the whipping post for the term of one hour, and exposed to the public view, in the day time." If any judge, justice of the peace, clerk of a court, constable, attorney or counsellor at law "shall encourage, excite and stir up any suit, quarrel or controversy between two or more citizens whereby such citizens shall be injured or defrauded in said suits, quarrel or controversy," such judge, justice of the peace, lawyer, etc., "shall be fined not exceeding $500." This would probably discourage ambulance chasing lawyers if it were on the statute books today. In the new Criminal Code are found the following offenses which had not been included in the original list : Refusal to take oath on the witness stand ; bribery of a judge, counterfeiting, harboring thieves, conspiracy to do an unlawful act, obstruction of authority, resisting an officer, corruption of juries, oppression of sheriffs, destruction of fruit trees, killing horses and live stock, swindling, rescuing prisoners under arrest or in confinement, and impersonating an officer. Severe punishments were imposed for all these offenses. The summer-garden as a place of entertainment seems to have required regulation at this early time, as we may judge from the following : "Any tavern keeper allowing any sporting, or rioting, or permitting drinking or gaming for money "in his house, outhouse, shade, arbour, or any other place in his occupancy" was fined not exceeding $20 and forfeited his license to do business. EIGHTH LEGISLATIVE SESSION December 4, 1809, to February 22, 1810 Gen. Duncan McArthur was the speaker of the Senate and Charles A. Norton was the clerk. McArthur had been a senator continuously since 1805, representing Ross County as an associate of Nathaniel Massie. He had been a surveyor in Chillicothe for a number of years and acquired large wealth in land. He was major general of the state militia and his subsequent career was largely that of a soldier. He held important commands during the War of 1812, and in 1814 succeeded to the chief command of the Western Army after the resignation of Gen. William Henry Harrison. Ile was a congressman for some years, and was governor of Ohio from 1830 to 1832. Ex-Governor and ex-United States Senator Edward Tiffin was now back in the legislature and was elected speaker of the house of representatives. His resignation as United States senator left a vacancy which had been filled by Governer Huntington's appointment of Stanley Griswold, of Cleveland. to serve until the legislature should meet and elect his successor. Alexander Campbell, of Adams County, speaker of the house during the preceding session, was now elected senator, receiving thirty-eight votes, a majority of six over the combined opposition to him. He served as senator during Tiffin's unexpired term, until 1813. ANNALS OF OHIO ADMINISTRATIONS - 385 Jeremiah McLene was reelected secretary of state and Benjamin Hough was made state auditor. Thomas Scott was reelected to the supreme bench, and William W. Irvin, of Lancaster, was elected to the same position. This was the same Judge Irvin who a few years before had been removed from the office of Associate Judge of Fairfield County after being found guilty of "high misdemeanor and neglect of duties." He remained on the supreme bench until 1815, and subsequently served two terms in Congress. It was at this session of the Legislature that the temporary change of the state capitol from Chillicothe to some other location and the establishment of a permanent seat of government came up for consideration. The journals of the general assembly do not report the speeches, but doubtless it was becoming more and more apparent that Chillicothe, which had been the logical place in 1802, was now too far south of the geographical center of the state for the convenience of the rapidly growing population of the northern and eastern sections. A commission was appointed to consider the whole subject, and on February 19, 1810, the houses passed an act declaring that "the state capitol is hereby fixed and shall remain at Zanesville until otherwise provided by law." It was regarded as only a temporary arrangement, and the next day, February 20, another act was passed providing for five commissioners to fix the permanent seat. This was the step which led to the final result of establishing the capitol "on the high bank of the Scioto river, opposite Franklinton," a point which was then a dense forest, but afterwards was called Columbus. It was a busy time in law making. Measures were enacted relating to the foreclosure of mortgages ; defining more fully the duties and powers of county commissioners, and regulating the erection of public buildings. Instruments in writing were made negotiable ; a system was established for the recording of deeds and mortgages and for appointments of county recorders by the courts of common pleas ; the marriage laws were again amended. More laws were passed authorizing public lotteries to raise money for public improvements, as, for instance, a bridge across the Miami River at Troy. A movement was made for public care of the indigent poor, and steps were taken to codify the judiciary laws and those relating to land taxes. The time had now come when, under the constitution, the Legislature might increase the salaries of state officers beyond the paltry sums designated in the constitution itself. But the general assembly, in a new act fixing salaries, adhered to the first schedule. Indeed, in some cases, they still paid less than the constitution had permitted in the beginning. Under the law now passed the governor received as formerly, $900 a year ; the secretary of state $500; judges of the Supreme Court $1,000 each, president judges of common pleas courts $900 each, and members of the Legislature $2 per day. The clerks of the Houses were paid $5 a day while actually employed, with $44 per year for contingent expenses. And this parsimony was exercised notwithstanding that during the years of the life of the state the population had grown to 230,760, the tax values to $10,856,000 on 9,933,099 acres, and the total state revenues to $85,964.39. The lowering clouds of war with Great Britain were seen to be approaching more and more ominously. The Government at Washington was preparing for it and the states were making ready. In Ohio the spirit to meet it never wavered. The militia by this time had been brought to what was thought to be a complete state of efficiency. The Legislature passed in a new and stronger form the statutes against treason and wagering war against the State of Ohio. Treason was defined as "entering into a conspiracy for betraying the State of Ohio into the hands or power of any foreign enemies, or giving or attempting to send any evi- 386 - HISTORY OF OHIO dence to any such enemy for said purpose." If the accusation was proved by two witnesses the penalty was death. Patriotism rose high, and was reflected in the fighting attitude of the Legislature. The following joint resolutions, unanimously adopted February 11, 1810, were directed to the President, Vice President, and Congress: "At a moment when the rights of our country have been assailed by the repeated aggressions of Great Britain and France, who, regardless of the law of nations, and every tie heretofore held sacred among men, have violated our neutral rights, impressed and murdered our unoffending citizens, attacked our national independence, and attempted to prostrate our commerce at the feet of their tyranny, the citizens of Ohio, inspired with ardor for the preservation of their rights, do cordially join heart and hand with our sister states in the common defense of our country ; and are ready at all times to rally around the standard of liberty, to chastise the arrogance of those who attempt to invade our sacred independence; therefore "Resolved, by the General Assembly of the State of Ohio, That this State does highly approve of the firm, patriotic conduct of the general government in adopting the measures to which they have resorted for the preservation of our property, our seamen and our national honor. "Resolved, That should war be our fate, however deplorable the evil, when called by our country, we are ready to share in its calamities ; and, trusting to the God of Battles, we do pledge our lives and fortunes to preserve and maintain the independence so dearly purchased by the heroes of the Revolution." The style of legislative rhetoric has changed somewhat since those days, but it certainly cannot be said that it was empty bombast, for the soldiers of Ohio made more than good when the fighting period came two years later, and the people stood behind them to the limit. There were no "pacifists" in this state in 1812. It was found necessary to repeal the law, passed two years before, remitting $3 taxes of men who killed 100 squirrels a year. The results had not been foreseen when the offer was made. It was a very easy thing for men to kill 100 squirrels a year each, and it would seem that almost every man in the state took advantage of this means of saving on his tax bills. With the thousands of guns in use in the forests the public treasury was in danger of being depleted, and the repeal of the law became necessary to restore enough ready cash in the treasury to pay the public expenses. The irregularities in elections, so often evident in contests for seats in the Legislature after certificates of election had been issued, and in many purely local controversies, brought about changes in the election laws. It was in December, 1809, that, by act of the General Assembly, the poll book was devised and presented to election officials. This was the first of the election reforms introduced in the state. The poll book then officially adopted has been retained ever since in almost its identical original form. At this time came the era of turnpikes, toll gates and toll roads not publicly owned, and for the use of which payment had to be made. The first was constructed and managed by the Boardman Turnpike Company, incorporated by the Legislature during this session. It extended from Boardman to Canfield, in Trumbull County. The second was authorized in the law incorporating the Franklinton Turnpike Road. Company, and its route was from Franklinton to Zanesville. It afterwards became part of the old "National Road," from Cumberland, Maryland, across Ohio and into Indiana. Now also toll bridges came into use and several of them were built by private enterprise, profits coming from charges made for crossing them. But this system met a check when fordable streams were bridged. The people preferred to ford streams rather than to pay for the priv- ANNALS OF OHIO ADMINISTRATIONS - 387 ilege of crossing them on bridges. Several companies were compelled to dispose of their bridges to the local public, sometimes at a loss. Notaries public first came into being in Ohio by an act passed February 20, 1910. Four were authorized and appointed—one each in Cincinnati, Chillicothe, Marietta and Steubenville. Their rights and obligations have changed little since they were first created. Their fee for attesting a document was $1, with another dollar for recording it in a book kept for the purpose. It is a curious fact that from this source the incomes of these first four notaries public was greater than that of the governor, of the supreme judges, or of any other officials of the state. Official sanction was given to the propagation of the Gospel among the Indians of Ohio by the incorporation of the "Church of Unitas Fratrum," or United Brethren, at this time. Bishop George Henry Loskiel and seven others, some ministers and some laymen, were made directors and assistant directors. The church organization had been doing missionary work among the Indians for almost seventy years—since 1740. Bishop Loskiel was a Russian, but most of his life was devoted to service for the Indians. He was the author of the "History of Moravian Missions Among the North American Indians" and several other books which had many reprintings. Among the other incorporators of this church was the celebrated John Gottlieb Ernestus Heckewelder, born in England. He long held important national and state official positions relating to the Indians, assisting in the councils as interpreter and otherwise, in making treaties with them. He was familiar with the languages, manners and customs of the aborigines, and wrotes several works upon subjects pertaining to them. A "Life of Heckewelder" was published in Philadelphia in 1847, after he had been dead for almost a quarter of a century. The "camp meeting" had come into vogue in some parts of the state. The Methodists were especially given to this kind of outdoor religious activities. The meetings attracted crowds of people—just as they have done ever since—and it became necessary for the Legislature to correct an evil that grew out of that fact. This was the sale of intoxicating liquors by dealers who "squatted" near the camping grounds, to the great scandal of the ministers who conducted the meetings. A law was passed prohibiting these liquor selling squatters from approaching within a mile of the meetings and fining them $10 if they did so. But this regulation did not apply to tavern keepers whose places of business happened to be within the one-mile limit. The Town of Steubenville, through an incorporated company of twenty of the most prominent men of Eastern Ohio, applied to the Legislature for the right to establish a waterworks, and the act authorizing this public utility was passed January 10, 1810. One reading of this would imagine that Steubenville was showing extraordinary enterprise at such an early day in the life of the town. The waterworks, however, were only wooden pump-logs, laid from springs on a hillside to High Street. This small equipment gave way under the strain in a very short time, and the project had to be abandoned. Annals of the town say that for twenty years or more thereafter "water was hauled around Steubenville in barrels by wagons and carts." The conduct of taverns under the original license law had by this time led to some highly objectionable practices which required regulation. Taverns were growing in number, importance and volume of business done, and in many cases the retailing of liquors had become the principal part of their trade. In fact, many of them were nothing more than drinking places. It was now enacted that the license fee should be increased from the original 50 cents to as much as $12 in some localities, and that the selling of drams over the bar should cease. No sales of wine, rum, brandy, whiskey, spirits or strong drinks (so they were enumerated) could be made in quantities of less than one quart. Also, a person licensed as a tavern keeper was required to furnish entertain- 388 - HISTORY OF OHIO ment (bed and board) for man and beast. It was expected that this law would correct the evil of indiscriminate liquor selling. Thus early began the anti-saloon legislation which was finally to put those places out of business more than a century later. There was a serious increase in the cost of running the state government this year. It had jumped to the unprecedented sum of $57,561.34. The balance in the state treasury at the end of the year was reported at 22 cents and 1 mill. When adjournment of the General Assembly was taken, on Washington's birthday, 1810, it was to meet the next year at Zanesville. Indians were still much in evidence, but during the fifteen years which had elapsed since the treaty of Fort Greenville the relations between them and the whites had undergone a complete change. This was emphasized by an incident which led to the passage of one of the acts at this session. One Benjamin Vannoten had stolen some horses from Indians at Goshen, and when arrested he had given bail bond for his appearance for trial at Steubenville. Not responding at the time, his bond was forfeited and the money paid to the county by his bondsmen. The Legislature passed an act which distributed the money among the Indians whose horses had been stolen. There seemed practically no restrictions whatever on the General Assembly as to the kind of legislation it could enact. Sometimes it overruled the courts, as in the case of John Chiventon, of Marietta. He was in jail there by reason of his failure to provide for the maintenance of an illegitimate child. He had made application to the court for release on the ground that he was financially unable to carry out its order, but his petition had been refused by the court for the reason that he had been committed on criminal process. He then appealed to the Legislature, and that body, after reciting the above circumstances in a preamble, passed an act to discharge him as an insolvent debtor. "Paternalism in government" were words of which the assemblymen were not afraid. On February 19th of this session they enacted a law for the relief of an unhappy father. This also contained a preamble, of which the following is an exact copy : "Whereas, John Millar, of Adams county, has represented to the satisfaction of the general assembly that six of his children were born cripples and continued to be such, and are unable to render any assistance to keep or support themselves : therefore, the better to enable him to support his unfortunate family, be it enacted—" And they allowed him $200 a year to be paid out of the public funds of the county. Very benevolent, but not at all in accordance with later ideas as to what a legislative body ought to do. The revised law licensing and regulating ferries is interesting in the fourth generation later because it brings to the mind pictures of the never ceasing flow of travel on the new roads and across the streams—very largely by newcomers to the state. The ferrymen of 1810 were obliged to be ready to convey passengers and property over in their boats, whenever the water was not so high as to make it dangerous, at all hours from daylight to dark ; they were compelled, when required, to ferry over the mails and other public express at all times—day and night. They paid license fees as high as $18 a year at some busy points, and they were rigidly restricted to the following schedule of prices for their services : "Ten cents for a foot passenger ; twenty cents for man and horse ; one dollar for a loaded wagon and team ; seventy-five cents for any other four wheeled carriage, or empty wagon, and team ; fifty cents for a loaded cart and team ; thirty-seven and one-half cents for an empty cart and team, sled or sleigh and team ; ten cents each for horses and cattle ; and three cents each for sheep and pigs." That large northwestern corner of Ohio, marked "Indian Reservation" on the old maps, and known as Wayne, was still inaccessible to white settlers. It was, besides, a bar to movements of troops toward ANNALS OF OHIO ADMINISTRATIONS - 389 Detroit and the English border of Canada, and this was important in view of the war that everybody knew was coming before long. And now, for the first time, the General Assembly turned its eye in that direction, and adopted resolutions looking to the opening up of that extensive area : "WHEREAS, The northwestern quarter of this state is inhabited by and subject to the claims of certain Indian tribes ; and while it remains so the settlement arid improvement cannot be effected ; and it being of great importance to the United States, as well as to this state, that the lands in that part should be opened for sale, settlement and taxation as soon as may be ; and in case of war to be the more easily enabled to defend a coast bordering on the territory of a belligerent nation ; to secure its local advantages to every part of the state, so far as possible ; to avail the United States, and this state, of the revenue which will gradually arise from the sale and taxation of that portion of its territory ; and to make its jurisdiction and civil government co-extensive with its geographical bounds ; therefore "Resolved, by the general assembly of the state of Ohio, That our senators in congress be instructed, and our representatives be requested, to use their endeavors to procure by treaty the extinguishment of the Indian title to the lands within the limits of the state." Among the appropriations for the year appears this : "To the troops under the command of Major William Mason, second brigade, first division, Ohio militia, for services by them performed and rations furnished, the sum of four hundred and seventy-seven dollars and ninety-nine cents." What the services of the militia were for, and what they accomplished, is not revealed in the act of appropriation or in the House journals. There were now thirty-six counties in the state, established by the General Assembly out of the original divisions made by the old territorial government. The decennial census was taken by the United States Government this year, and the population of the several counties was found to be as follows :