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CHAPTER XIII.

POLITICAL MEASURES AND EVENTS FROM 1738 TO 1803

Washington County as the Northwest Territory—The First Grade of Terrrtorial Government— Peculiarities of the Early Laws—Formed upon British Statutes—Severity of Punishments—The Whipping Post, Pillory and Stocks—Second Grade of Territorial Government Organized—A Petition for the Allowance of Slavery—Carrying out the Policy of the Marietta Colony— "Support, Religion and Learning"—Corporation Organized for Leasing the Ministerial and School Lands—Form of Lease—Party Feeling Increasing—Dissatisfaction with Governor St. Clair—A State Government Suggested—Opposition on the Part of Putnam and Cutler—The Feeling in Washington County—Reasons Advanced against the Organization of a State—Bitterness of Feeling—Congress Passes an " Enabling Act "—Constitutional Convention Called—The Question of Slavery—Determination to Introduce it in a Modified Form—Judge Ephraim Cutler's Stand Against it—The Poetry of History—The State of Ohio Recognized by Congress, and Government Organized—Some Later Measures Exhibiting the Influence of Washington County.

WE have intentionally omitted from the preceding chapters a detailed statement of the organization and enactments of the Territorial Government that the subject might be presented in connection with those subsequent measures the first constitutional convention and . the establishment of the State government. In each of these measures Washington county had an important agency. In 1788 Marietta was practically coextensive with the Northwest Territory. In 1789 the Marietta and Cincinnati groups of settlements were the only English colonies in the territory. Marietta was at first the more influential, but her political prestige waned as the settlement of the territory, and then of the State, increased, and as Federalism was supplanted as a national power by the Jeffersonian Democracy.

The first act of Congress for the purpose of carrying into action the Ordinance of 1787 was the election of Governor St Clair, which has been heretofore alluded to. He was chosen upon the fifth of October, 1787. Winthrop Sargent was elected secretary the same day, and upon the sixteenth of the same month Samuel Holden Parsons, James Mitchell Varnum, and John Armstrong judges of the territory. John Armstrong subsequently declined the appointment and Congress elected John Cleves Symmes to fill the vacancy.

* Edward Everett, at Salem, Massachusetts, September z8, 1828.

+ For the successors of these officers, and also for those who acted in other capacities, see the following chapter containing a complete roster.

102 - HISTORY OF WASHINGTON COUNTY, OHIO.

Upon the ninth of July, 1788, Governor St. Clair arrived at Marietta (where Judges Varnum and Parsons, and Secretary Winthrop Sargent had preceded him) and upon the eighteenth the government of the Northwest Territory was formally organized, in the presence of all the citizens of Marietta—and in fact all of the English-speaking people of the territory. The Ordinance of 1787 was read, the commissions of the governor, the judges present, and of the secretary. Governor St. Clair made a dignified and elegant address, and was responded to by General Rufus Putnam.

The government thus established was the first territorial government ever organized by Federal authority. It was in many respects peculiar, but as a whole exceedingly admirable, and it is doubtful if the ingenuity of man could have formulated a wiser and more beneficial system of authority, the time and conditions being considered. The fundamental law was the Ordinance of 1787, on which were based the constitutions of the five great States carved from the territory. Of the formation of this compact—which affirmed the principles of political and religious liberty, and which forever perpetuated them in the northwest—much has been said in an earlier chapter of this work. The ordinance vested the executive power in the governor, the judicial in a general court, and the legislative power in the governor and the judges, acting as a legislative council. Provision was also made for the election of a secretary, who, in case of the governor's resignation or removal, should be clothed with all of the powers of the governor.

The peculiarity of the government was that the people had no voice in it. This peculiarity was in a measure necessary, and of course for a purpose which can be easily understood, but if it was for the most part advantageous, it was also liable to abuse. In the exercise of authority the officers were responsible only to the General Government—they received their appointments from Congress until after the adoption of the constitution in 1789, and then from the President—and where there was a disposition for arbitrary action there was every opportunity for it. Such a disposition did exist, and toward the close of the period of territorial government caused much bitterness and produced some effects which curiously enough are still existent in the State government.

The first law enacted was formed July 26, 1788, published in Philadelphia in 1792, and was entitled

"A LAW

for regulating and establishing the militia of the United States northwest of the river Ohio, published at the city of Marietta upon the twenty-fifth day of July, in the thirteenth year of the independence of the United States and of our Lord one thousand seven hundred and eighty-eight, by his excellency, Arthur St. Clair, esquire, governor and commander-in-chief, and the honorable and James Mitchell Varnum, esquire, judges."

The ordinance of 1787 authorized the governor and judges to adopt and publish in the territory from time to time such laws of the old States, civil and criminal, as they saw fit, and report them to Congress. This provision, however, was not strictly obeyed. The officers made new laws almost as frequently as they adopted old ones, being often compelled to this course by the needs of the time. During the first year of settlement the governor, Judge Varnum and Judge Parsons assembled at Marietta in their legislative capacity, enacted a number of laws which were submitted to Congress, but were not approved on the ground that the governor and judges were empowered only to adopt existing laws, from the codes of the original States,* but notwithstanding the fact that these laws failed to secure the ratification of Congress they continued in force for various lengths of time—some of them until the second grade of territorial government was established—though most of them were superseded in 1795 by a code adopted in compliance with the terms of the ordinance at a legislative session held at Cincinnati. These laws were known as the Maxwell code, from the name of the printer, William Maxwell. The pamphlet containing them was the first piece of job printing done in the Northwest Territory. The only other legislative session under the first code of territorial government was held in 1798, and then only a few additional laws were adopted. t

There was much that was peculiar in the old territorial laws. They were formed largely upon English statutes, and the punishments inflicted under them were often very severe. The pillory and stocks were made accessories of the court house. The first law for whipping was passed at Marietta September 6, 1788, under the title of "A law respecting crimes and punishments." Section 1 provided that when three or more persons, constituting a mob, should commit unlawful acts, and fail to disperse when told to do so, each offender, on conviction, "shall be fined in a sum not exceeding three hundred dollars, and be whipped not exceeding thirty-nine stripes, and find security for good behavior for a term not exceeding one year." For a second offence the whipping would be repeated, as well as the fine and security, and the offender committed to jail until the sentence be satisfied. For breaking into a house, store or shop in the night, for the purpose of stealing, the punishment was thirty-nine stripes, security for good behavior, or in default, imprisonment for a term of not more than three years. If in the perpetration of the crime the person should commit any violence, or be so armed as to indicate intention of violence, he should forfeit all estate, real or personal, to the territory, out of which the party injured should be compensated, and the criminal should be committed to jail for a period not exceeding forty years.

For perjury, or refusing to be sworn to a fact, the penalty prescribed was a fine of sixty dollars, or the laying on of not more than thirty-nine lashes, and the criminal moreover was to be set in the pillory for a space of time not exceeding two hours. For arson, or aiding in the commission of the crime, the punishment was whipping to the extent of thirty-nine lashes, two hours in the pillory, three years or less in jail, and the forfeiture of all property to the territory. It was further provided by this law respecting crimes and punishments that a child

"Jacob Burnet's Notes on the Northwestern Territory.

+Charles B. Flood, esq., in Ohio secretary of State's report, 1879.

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or servant refusing to obey lawful commands of the parent or master, on complaint to a justice of the peace, could be sent to the jail or the house of correction; or for striking his parent or master be whipped not exceeding ten stripes. A person convicted of drunkenness it was provided should be fined five dimes for the first offence, and one dollar for every subsequent offence. Failure to pay the fine subjected the person convicted to the stocks for the space of one hour. The person who committed larceny was compelled to pay two-fold retribution for the first offence, or if the money or property taken be not recovered, be whipped not exceeding thirty-nine lashes. In case the offender had not property, it was decreed that the sheriff, by direction of the court, should bind such person to labor for a term not exceeding seven years. The law from which the foregoing provisions have been taken concluded with the following clauses, Which serve to convey a further idea of the severity of opinion transplanted from Old England and New England to the primal settlement of the western wilderness:

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

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

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

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

The later laws adopted or enacted under the territorial government bore a close resemblance to those of which we have already spoken.

In 1792 provision was made for the establishment of a court house, county jail, pillory, whipping-post and stocks in every county of the territory {there were then but four counties in existence—Washington, Hamilton, St. Clair and Knox). In 1795 a law was adopted from the Pennsylvania statutes, entitled "A law limiting imprisonment for debt, and subjecting certain delinquents and debtors to servitude," providing that no person should be kept in prison for debt or fines longer than the second day of the session next of his commitment, unless the plantiff should make it appear that, the person imprisoned had some estate that he would not disclose and

* Ohio Secretary of State's Report, 1875

in such case the court should examine all persons suspected to be privy to the concealment of such estate, and if no sufficient estate was found the debtor should make satisfaction by personal and reasonable servitude according to the judgment of the court (but only if the plaintiff requires it), not exceeding seven years. If the plaintiff refused to receive the debtor as his slave for the term named (according to the age of the debtor and whether married or single), the debt was discharged. A law selling men into servitude for fines and costs, for maining and disfiguring a person was adopted from the Kentucky criminal code in 1798, but this law was afterwards held to be unconstitutional, as Kentucky was not in existence as a State when the ordinance of 1787 was passed.

The governor and judges of the territory adopted, among other Virginia laws, one entitled "A law declaring what laws shall be in force," which declared that the common law of England, and all statutes or acts in aid of it, made prior to the reign of King James I, should be in full force in the territory until repealed by legislative authority, or disapproved by Congress. This proceeding was questioned by some authorities at the time, but no change was made until the organization of the State government.

Altogether there were enacted or adopted, during the period of the first grade of territorial government, nearly one hundred laws (beside the one which included the British laws), and, although open to some criticism, it has been said of them by one of Ohio's greatest jurists, "that it may be doubted whether any colony, at so early a period after its first establishment, ever had so good a code of laws."*

The second grade of the territorial government was organized in 1799, in pursuance of a provision of the ordinance of 1787, giving authority for such a step when the territory shall contain "five thousand free male inhabitants of full age." The governor having discovered this qualification to exist, upon October 29, 1798, issued his proclamation directing the voters to hold elections for territorial representatives on the third Monday of December following. The result was the election of: Return Jonathan Meigs, Washington county; Paul Fearing, Washington county; William Goforth, Hamilton county; William McMillan, Hamilton county; John Smith, Hamilton county; John Ludlow, Hamilton county; Robert Benham, Hamilton county; Aaron Caldwell, Hamilton county; Isaac Martin, Hamilton county; Shadrack Bond, St. Clair county; John Small, Knox county; John Edgar, Randolph county; Solomon Sibley, Wayne county; Jacob Visgar, Wayne county; Charles F. Chabert de Joncaire, Wayne county; Joseph Darlinton, Adams county; Nathaniel Massie, Adams county, James Pritchard, Jefferson county; Thomas Worthington, Ross county; Elias Langham, Ross county; Samuel Findlay, Ross county; Edward Tiffrn, Ross county.

The legislature assembled at Cincinnati, January 22, 1799, and nominated ten men from whom the National Government, chose the following five to constitute the legis-

* Chief Justice Chase—Statutes of Ohio.

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lative council of the territory and continue in office five years: Jacob Burnet, of Cincinnati, Hamilton county Henry Vandenburg, of Vincennes, Knox county; Robert Oliver, of Marietta, Washington county; James Findlay of Cincinnati, Hamilton county; David Vance, of Vanceville, Jefferson county.

The council and house of representatives met at Cincinnati on the sixteenth of September, 1798, and organized for the discharge of their duties. Of the council, Henry Vandenburg was elected president and William C. Schenck, secretary. Of the house, Edward Tiffin was chosen speaker and John Riley, clerk.

The territory now had a legislature of which one branch was elective, but Governor St. Clair, by his use of the unqualified veto power with which he was invested, practically annulled the will of the peoples' branch of the legislature. Of thirty bills passed, eleven were vetoed.

There was, however, much business of public importance transacted at this, the first session of the territorial legislature. William Henry Harrison was elected to Congress by a majority of one vote over the governor's son, Arthur St. Clair, jr. The earnest attention of the legislators was given to the subject of education and to the preparation of laws supplementary to or supplanting those formerly enacted The legislature adopted a joint remonstrance addressed to Congress against the power given to the governor to veto all acts which he pleased and against his exclusive exercise of authority in erecting counties.

By far the most interesting and significant subject before the body at this session was that of introducing slavery into the territory. It came up in the form of a petition from a number of the Virginia officers praying for permission to move with their slaves into the Virginia military districts (the lands lying between the Scioto and Little Miami rivers). There were some members of the legislature who were friendly to the prayer of the Virginians, but their favor was of no consequence. The Ordinance of 1787 rose up now in its majesty as the safe-guard of liberty and the legislature had really no more discretion in the case than had that of Virginia or Kentucky. There would have been but few votes though in favor of the petition had the matter rested with the legislature. It would doubtless have been opposed both as a matter of right and policy.*

The first session of the legislature was prorogued by the governor December 19, 1799, until the first Monday of November, 1800, at which time the body reassembled at Chillicothe, which place had been made the capital by act of Congress of May 7, 1800.

Congress having passed (on May 7, 1800) an act establishing the Indiana territory (including the present States of Indiana and Illinois) and William Henry Har- rison having been appointed governor, it was necessary to elect a delegate to Congress to fill his place as well as to elect one for the succeeding term. William McMillen, of Cincinnati, was chosen to serve out the unexpired

* Burnett Notes on the Northwestern Territory.

term, and Paul Fearing, esq., of Marietta, to serve from ; 1801 to 1803. The second session of the territorial legislature was brief, closing December 9, 1800.

There was one act passed at this session of 1800 which was of especial importance to Washington county, and is interesting as an exhibition of the continuance of the wise and beneficent policy of the Ohio company, and of those measures which through the labor and influence of Dr. Manasseh Cutler had been inserted in the Ordinance of 1787. We allude to an "Act authorizing the leasing of the lands granted for the support of schools and religious purposes in the county of Washington,"—bearing date of November 27, 1800.*

This law created and established a corporation by the name of "The trustees for managing lands granted for religious purposes, and for the support of schools, in the county of Washington, within the Ohio company's purchase," which corporation consisted of seven persons, "capable of suing and being sued," etc., viz: Griffin Greene, Robert Oliver, Benjamin Ives Gilman, Isaac Pierce, Jonathan Stone, Ephraim Cutler, and William Rufus Putnam. It was provided that this corporation should meet annually on the first Monday of April, at which meeting the trustees should elect officers, and until the first meeting should be held the legislature appointed that Griffin Greene should serve as chairman, Benjamin Ives Gilman as clerk, and William Rufus Putnam as treasurer. The law was a very long one, explicit and exhaustive in its specifications. The trustees were originally empowered with the leasing of section twenty-nine, in the second township of the eighth range (that on which Marietta is built), but a few years later this business was relegated to another board of trustees appointed especially for the purpose. The corporation, however, attended to the leasing of all the other ministerial as well as school sections, in the Ohio company's purchase.

There is, perhaps, no better means of conveying to the reader an idea of the painstaking care with which the public lands were granted, and the original purpose for which they were granted, carried out, than the presentation in these pages of a copy of one of the leases. It will be noticed that the lease is specific in its character, compels the making of improvements upon the property, and speaks very plainly in almost every line of the New England spirit of good order, progress and thrift, which in many ways was made to flourish upon western soil. The corporation trustees impressed upon the original indentures their seal, bearing as its devise an altar with the old-time horns at either side, and surrounded by the legend, "Support Religion and Learning." Here flourished the fruit of the good seed sown in the ordinance of 1787.

The following is a literal copy of one of the corporation's leases for one of the school sections, located as will be noticed in the extreme western part of the Ohio company's purchase:

THIS INDENTURE made the first day of April in the year of our Lord one thousand eight hundred and one, between the " trustees for managing lands granted for religious purposes, and for the support of

* Land Laws of Ohio.

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schools in the county of Washington, within the Ohio company’s purchase," of the one part: and Hugh Boyle, esq., of Ames in the county of Washington, Northwest Territory, of the other part. wrlness; eth, that the said trustees, in pursuance of the seventeenth section of a law of the territory aforesaid, passed the twenty-seventh day of November one thousand eight hundred, intitled, "An act authorizing the leasing of land granted for the support of Schools, and for religious purposes in the county of Washington," have granted, leased, and to farm let unto the said Hugh Boyle, his heirs, and assigns, a certain tract or parcel of land situate in the township of Ames aforesaid, butted and bounded as follows, viz: Mile lot No. 16 in the Twelfth township in the Fifteenth range granted for the support of schools for the term of seven years, commencing from and after the first day of April, instant, on condition that the following improvements shall be made which the said Hugh Boyle covenants and agrees to make, do and perform on penalty of one hundred dollars in which sum he binds himself, his heirs and assigns to pay to the trustees aforesaid if the following conditions are not complied with on his part, viz: not to make unnecessary waste of timber nor to injure sugar trees, and within seven years from the commencement of his term to clear twelve acres of all the trees, brush and wood, two acres of which shall be suitable orchard ground, and set out or planted with two hundred apple trees, thrifty slid of a proper size to set in an orchard; which orchard shall be enclosed by itself with a good and lawful fence and kept in constant repair, and no animals of any kind suffered to feed or graze therein; the remainder of the aforesaid twelve acres to be of the most suitable land for meadow, and seeded in a proper manner with herds grass and clover seeds, and the said meadow shall be fenced and improved in a good husband like manner. Furthermore, the said Hugh Boyle covenants; that within the term of his lease he will clear six acres in a suitable manner for pasturing and seed the same with a proper quantity of clover and herdsgrass seed; and also, that he will clear in a proper manner and have under improvement and cultivation at the end of his term twenty acres of tillage land; and that at the end of his term, the several lots of tand covenanted and agreed to be cleared as aforesaid shall be separately enclosed with a good and sufficient fence agreeably to the law of the territory, when the said Hugh Boyle is to yield peaceable and quiet possession.

IN WITNESS whereof the said trustees have caused William Rufus Putnam, their clerk, to subscribe his name and affix the seal of the corporation, and the said Hugh Boyle bath also interchangeably set his hand and seal the day and year first above written.

Signed, sealed and delivered in presence of

BENJAMIN BEADLE. HUGH BOYLE.

JAMES CAMERON. WM. RUFUS PUTNAM.

Returning to our brief outline of territorial history we will note that the third session of the legislature was held at Chillicothe, beginning upon November 23, 1801, in accordance with the conditions of adjournment. There were several new members in the legislature and the following was the roll: Epraim Cutler, of Washington county; William Rufus Putnam, of Washington county; Moses Miller, of Hamilton county; Francis Dunlavy, of Hamilton county; Jeremiah Morrow, of Hamilton county; John Ludlow, of Hamilton county; John Smith, of Hamilton county; Jacob White, of Hamilton county; Daniel Reeder, of Hamilton county; Joseph Darlington, of Adams county; Nathaniel Massie, of Adams county; Zenas Kimberley, of Jefferson county; John Milligan, of Jefferson county; Thomas McCune, of Jefferson county; Edward Tiffin, of Ross county; Elias Langham, of Ross county; Thomas Worthington, of Ross county; Francois Joncaire Chabert, of Wayne county; George McDougal, of Wayne county; Jonathan Schieffelin, of Wayne county; Edward Paine, of Trumbull county.

Edward Tiffin was speaker. Robert Oliver, of Marietta, was chosen president of the legislative council. The session closed upon the twenty-third of January, 1802, to meet in Cincinnati in November of the same year, but it was not destined to assemble again. The territorial government was very soon to be superseded by State government. The removal of the seat ofgovernment from Chillicothe, says Jacob Burnet, was in consequence of the assembling of a mob on two evenings to insult Governor St. Clair and several members of the legislature, a proceeding which passed unrebuked by the village authorities.*

Party feeling had not until about the time of this session of the legislature, ran high, but Jefferson was now President, and his adherents were increasing in force in the west. On the other hand the territorial governor (Federalist) was losing strength, partly because of his use of the veto power, and from various other reasons. There was a growing uneasiness on the part of many under the territorial government, and in this session of the legislature the question of the formation of a State government came up for consideration. Judge Ephraim. Cutler and William Rufus Putnam, the members from Washington county, were the leaders of the small minority opposing the formation of the State government, and it was chiefly against them that the demonstration of the mob above spoken of was directed. William Rufus Putnam had made a speech at a supper, in which he expressed the sentiment: "The Scioto— may its waters lave the borders of two great States;" and his words were thought to have been the chief agency in inflaming the spirit of the more violent element of the Chillicothe people. They expected the State to be formed as it now exists, or at least that the Miami would be the western boundary, and hoped that Chillicothe would be the capital. The people of Washington county were opposed to the formation of a State government at that. time, and, indeed, were commonly imbued with the desire that their representative had expressed. This idea was advocated later, in fact, by the legislative council, which body petitioned Congress to make the boundary. of the eastern division of the territory the Scioto river—a measure which, had it been granted, would have postponed for a considerable time its admission as a State, because of the lack of the requisite population (sixty thousand) specified by the ordinance of 1787 as the number which entitles any division to admittance to the Union.

Messrs. Cutler and Putnam were in perfect accord in this matter of the formation of a State government, with their constituency. If we turn back to look at the history of Washington county at a period a few months anterior to the occurrences we have narrated we shall see that there was a great activity of public opinion upon the subject. Various township meetings were held at which the proposition to form a State government was fully discussed and strongly opposed. On the seventeenth of June, 1801, an anti-State meeting was held at Marietta, made up of delegates from the several townships as follows: For Marietta, the Hon. Paul Fearing and Elijah Backus; Belpre, Isaac Pierce and Silas Bent; Waterford, Robert Oliver and Gilbert Devol; Adams, Joseph Bar-

* Burnet's Notes on the Northwestern Territory.

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ker; Newport, Philip Witten and Samuel Williamson; Middletown (later Athens, now Athens county), Alvin Bingham; Gallipolis, Robert Safford. The meeting was organized by the election of Gilbert Devol as chairman and Joseph Barker as secretary. A very able and strong address was delivered by Colonel Joseph Barker, summing up the objections to organizing a State government. The convention, after listening to the speech of Colonel Barker, and remarks of several other delegates, adopted the following resolution, which was afterwards sent to their representatives:

Resolved, That in our opinion it would be highly impolitic and very injurious to the inhabitants of this territory to enter into a State government at this time. Therefore we, in behalf of our constituents, do request that you would use your best endeavors to prevent and steadily oppose the adoption of any measures that may be taken for the purpose..

The reasons advanced against entering into a State government, in Washington county, were many and cogent. It was argued that the benefits to be obtained over those already possessed would be insignificant; that the expenses of a State government would be very heavy, whereas the chief support of the territorial government was derived from the National exchequer, and that the large expense necessitated would fall chiefly, or, at least, in undue proportion, upon the settlers in the Ohio company's purchase, while the Congress lands, constantly improving in value, would be exempt from taxation. There was much force in this argument. It meant that the first settlers of the country—those who had borne the brunt of the struggle not only against the wilderness but against a savage foe—would be obliged to pay a heavy revenue from their well-nigh depleted pockets for what would do them no good, while the newer settlers coming into the country after peace was fully established, aid many of whom could reap some advantage from the founding of a State government, would be comparatively small supporters of it. The Washington county people, too, were now upon the weaker side in politics, and their 'leading men could expect no offices under the State. This was undoubtedly an element which entered into the consideration of some men, but there was another reason of greater weight of which little or nothing was said. The hope existed that two States might sometime be carved from the territory now included in Ohio, and that of the easternmost one of these, bounded upon the west by the Scioto river, Marietta might be the capital.

Paul Fearing, then a member of Congress, opposed the State government movement with great strength, and made a speech against it in March, 1802, when the question as to whether Congress should or should not pass an act enabling the people of the eastern division of the territory to hold a constitutional convention and organize a State government, was before the House.

As the time for the decision of the question drew nigh, there was developed much bitterness among the partizans upon each side, and many hot words were said or written by public men. On the one side there were charges that the advocates of the change were actuated chiefly

* Biography of Captain Joseph Barker, by S. P. Hildreth.

by their desire to gain offices which a State organization must create, and by a desire to favor the National administration. On the other hand those who favored admission to the Union criticized, in violent terms, the policy of Governor St. Clair, and freely spoke of him as a tyrant, and his friends (by whom they meant all who clung to the old form of government), as "aristocrats and Tories."

The friends of the State government idea were nowhere else stronger than in Chillicothe. All of the men of influence in that place belonged to the State government party, and several of them lent their whole strength to the furtherance of the cause at Washington. Thomas Worthington (afterward governor of Ohio) went on to Washington at the suggestion of a committee, appeared before Congress, and strongly urged the passage of the "enabling act" at the season when that measure was taken up for consideration.

The act was passed April 30, 1802. It authorized the holding of a convention and the organization of a State government, and prescribed the limits of the State. Delegates were elected in the various counties upon the twelfth of October, 1802, in conformance to published notice, and the convention assembled at Chillicothe upon the first of November. The delegates were as follows:

From the county of Washington—Ephraim Cutler, Rufus Putnam, Benjamin Ives Gilman, and John McIntire.

From the county of Adams—Joseph Darlington, Thomas Kirker, and Israel Donalson.

From the county of Belmont—James Caldwell.

From the county of Hamilton—Francis Dunlady, John Paul, Jeremiah Morrow, John Wilson, Charles. Willing Byrd, William Goforth, John Smith, and John Reily.

From the county of Jefferson—Rudolph Bair, John Milligan, and George Humphrey.

From the county of Ross—Edward Tiffin, Nathaniel Massie, Thomas Worthington, Michael Baldwin, and James Grubb.

From the county of Trumbull—Samuel Huntington.

The convention organized by the election of Edward Tiffin, of Chillicothe, as president, and Thomas Scott as secretary.

On the third day of the session the question was put "whether or no it was expedient at this time to form a constitution and a State government." The journal shows that Ephraim Cutler, of Washington county, cast the only vote in the negative.*

The other three members from Washington, like him, were opposed to the measure, but seeing that their re-

* Judge Cutler, in a conversation several years tater, gave the following reminiscence: " I never gave a vote of which I was more proud. The settlements were remote from each other, and still laboring under the difficulties incident to pioneer communities. They were poor; the expense of a State government was much greater than that of the territorial; and, above all, I felt that by waiting a few years we might be admitted on much more favorable terms than at that time. It was desirable that the vote should be unanimous. There was no debate on the question. General Putnam and Mr. Gilman wished me to vote with them. I told them I coutd not. The old general told me I was as stubborn as a bull—to go my own way."

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monstrance must prove ineffectual, voted with the majority. The convention adjourned upon November 19th, having completed its labors and formed a constitution which was from that time the law of the State of Ohio, although it was never submitted to the people, "which," says a writer, "was the more remarkable as the convention itself was called by Congress, without any request on the part of the legislature, and without the opinion of the inhabitants being taken."* There were but seven votes in favor of submitting the constitution for approval or disapproval, viz.: those of the four members from Washington county—Messrs. Putnam, Cutler, Gilman, McIntire, Bazaleel Wells and Nathan Updegraff, of Jefferson county; and John Reily, of Hamilton.

The constitution was a very admirable one, as broadly democratic as such an instrument could be and exhibiting an extreme in that respect which was perhaps attributable to the arbitrariness of the government of St. Clair, from which a majority of the members of the Constitutional convention had been impatient to escape.

Although the Washington county members of the convention of 1802 had been opposed to the forming of a constitution "at that time," they had 'a large influence in creating the instrument and some of its best measures were inserted by them.

There was one topic before the convention of absorbing interest. Few people of this day know how narrowly the State of Ohio escaped being made slave territory in the year 1802. The monster knocked for admittance at the door which had been closed to it by the Ordinance of 1787, and the door was even set ajar for the entrance of the colossal evil. But there were men to meet and thrust it back and close that door again and forever. Foremost among these was Ephraim Cutler of Washington county, son of Manasseh Culler who had fifteen years before placed in that fundamental law of the northwest, the Ordinance of Freedom, the words "There shall be neither slavery nor involuntary servitude in the territory." Here was the poetry of history.

It was claimed by some members of the convention that the Ordinance of 1787 was not binding upon the State as it had not been assented to by the State, and hence there was an attempt to introduce slavery in a modified form in spite of the prohibition. Had it so been introduced there is reason to believe that it could not have been crushed out, the ordinance to the contrary notwithstanding.

John W. Brown of Hamilton county, chairman of a committee appointed to prepare a bill of rights, reported a clause which provided that no person should be held in slavery if a male after he was thirty-five years of age; and if a female, after twenty-five years of age. Judge Cutler was a member of the committee. He moved to have the clause laid upon the table until the next meeting, when, he suggested, each member should present a clause expressive of his own views. The committee met the next morning, and Judge Cutler presented

* President Israel Ward Andrews, of Marietta corlege, in Centennial Historical Address.

the clause which was ultimately made a part of the constitution. After considerable discussion a vote was had in the committee, by which the Brown clause was rejected and the Cutler clause adopted, the vote standing five to four. The measure, however, had several perils to pass through. While it was before the committee of the whole another endeavor was made to change the clause in such manner as to sanction slavery. And now we quote Judge Cutler's graphic words from a recorded conversation:

"I well remember the excited feeling of General Putnam on the occasion. I had been for a day or two confined to my room by sickness. He came to see me, accompanied by Benjamin Ives Gilman, his large white eyes almost starting from their sockets, his form more erect than usual. "Cutler" said he, in a voice of thunder, "get up, get well and be in your place to-morrow." Gilman too, was greatly agitated. He was rubbing his hands as he was wont, when anything troubled him, and exclaimed, "We must prevent this. I cannot, will not live in a community where such injustice is sanctioned by law." I went to General McIntire and prevailed on him to stay away and not vote; there would be a tie, unless we could bring over one more. Milligan, of Jefferson county, had often in the Territorial legislature spoken against slavery, but in the convention he had voted with the Virginia party. In the course of my speech I happened to catch his eye and the very language he had used in debating that question occurred to me. I put it home to him, and he seemed to shrink under it. When the vote was taken, Milligan sang out his aye but with so weak and trembling a sound that the whole house was convulsed with laughter. For my own part I never before felt so fearful a responsibility and never made so great an effort."

Elsewhere Judge Cutler says:

"Thus an overruling Providence by His wisdom makes use of the weak often to defeat the purposes of the great and wise, and to His name be the glory and praise."

The influence of Jefferson was undoubtedly exerted to plant slavery upon Ohio soil. He argued that the extension of slavery would weaken it. It was commonly thought that the exclusion of slavery would operate against immigration to Ohio from the slave States, and that such a clause as that which Mr. Brown sought to introduce would encourage such emigration. This consideration was the chief cause of the pertinacity with which some of those members of the convention, whose districts principally depended upon the south for population, labored for the pro-slavery clause. It may be added that Judge Cutler, the principal agent in the defeat of this measure for the introduction of the modified slavery wedge, was the author also of those measures in the constitution which related to religion and education. Herein was another coincidence. The Washington county man was supplementing again the action of the Massachusetts man—his father; was perpetuating in the constitution of Ohio what the latter had first given expression and force in the ordinance for, the Northwest.

The State of Ohio for the organization of which an enabling act was passed April 30, 1802, by Congress, was first recognized as a State by that body upon the nineteenth of February, 1803, which seems the proper date to ascribe as that of the birth of the State.* Quite a number of different dates are given as those which Ohio became a State among them November 29, 1802,

*When was Ohio admitted into the Union—by President Israel Ward Andrews, of Marietta college. In Secretary of States’ Report for 1879.

108 - HISTORY OF WASHINGTON COUNTY, OHIO.

the day on which the constitutional convention adjourned, and March 1st and 3d, 1803, respectively the dates of the meeting of the first legislature and of the formal organization of the government.

It is not our purpose to follow the history of Ohio, for the briefest outline would be beyond the province of this work, and there was not that close and intimate connection between Washington county and the affairs of the State which existed between the county and the territorial government, and which justified the bestowal of so much attention (for a merely local history), upon the latter.

Washington county has contributed to the civil service of the State men of eminence and worth---men who have been identified with the greatest measures enacted for the public good, and who have left their mark as legislators and as public servants in various capacities. Their names, with the dates of service, appear in the following chapter.

In conclusion, it is fitting that we should refer to two important measures of the period of early State government, both brought about by a Washington county man, and one of them having its principal effect in southeastern Ohio—Washington and other counties. The reform in method of taxation, and the establishment of a general school system were two topics which engaged Judge Ephraim Cutler at about the same time. Prior to 1825 the unimproved lands in the State were taxed by the acre without regard to valuation, "a system than which," said Samuel F. Vinton, "ingenuity could not devise one more unequal, unjust, and oppressive." Judge Cutler, while

representative for the county in 1819-20, introduced a resolution proposing that all lands should be taxed at their real or relative values. The resolution passed the house, but it was not until 1825 that its author secured its passage by the senate, of which body he was then a . member, having been elected in 1823. He then secured its adoption through the convincing argument that to firmly establish the State credit (as the friends of public improvements were then very anxious to do in order to build the Ohio canal) it was absolutely necessary to have a broad, equitable, judicious system of raising the revenue. The ad valorem plan of taxation which was brought into vogue, was not only a great boon to the long distressed and burdened people of Washington and other thinly-settled counties, but an invaluable aid to the State, as it materially assisted the canal commissioners to procure the loan which they needed, in New York.

In 1822 Judge Cutler was appointed one of the seven commissioners to report a system of education, to be uniform throughout the State, and well supported by general taxation and by judicious management of the school lands or the funds from them. The report of Mr. Kilbourn said that Judge Cutler was the father of this admirable system adopted in 1825, which remained in vogue for many years.

Judge Cutler was elected to the legislature and the senate upon the very issues which he fought through to the end, and won. And the people of Washington county, as his constituency, thus exhibited an adherence to those principles planted in the colony by the pioneer fathers, which have ever been at work leavening the body politic and building up the fabric: of the splendid edifice —the State of Ohio.