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the state formed on the south of it until its inhabitants amounted to sixty thousand.
Another condition was that each tract of land sold by congress from and after a certain date should be and remain exempt from any state, county, township or other tax whatever for the term of five years from and after the date of sale.
The election was held, as provided in said enabling act, to choose the members of the constitutional convention to meet at Chillicothe on the first Monday of November, 1802, at which date the convention organized. It was in session until November 29th. It agreed upon the form of a state constitution and did not require its submission to a popular vote, as this was not required by the enabling act. The journal of the convention shows that a resolution was offered, that the constitution be submitted to the people for their adoption or rejection, and was lost by a vote of 27 to 7. The new constitution being adopted November 29, 1802, by the unanimous vote of the convention. At the same date at which the convention adopted the constitution it also adopted an ordinance and resolution, to which special attention is called and which is hereafter given in full, and following the seventh section of the enabling act, which is also given in full, from which it will be observed that the conditions of congress in said enabling act were accepted by Ohio to become operative and binding, when congress should concede certain other conditions and additions to and modifications of the said propositions, and that said ordinance and resolution adopted by the convention imposed further obligations, which it was necessary for congress to grant and act upon. The act of February 19, 1803, did not grant these conditions and obligations; it only provided for the due execution of the laws of the United States within the state of Ohio. We find by the journal of the convention that Thomas Worthington was authorized to carry the constitution and ordinance and resolution to congress, and to ask for the approval by congress of the constitution, with the amendments and changes proposed in the ordinance and resolution of November 29, 1802. This duty was performed, and Mr. Worthington went to Philadelphia and sent a letter to congress, which on the 23d of December, with all the papers, were duly referred to a special committee. This committee made no report until in February, 1803.
Meanwhile the question was raised whether the delegate, Mr. Fearing, from the territory of Ohio, was longer entitled to his seat, as the Ohio convention had, on the 29th of November, 1802, adopted a state constitution. On the last day of January, 1803, the house of representatives decided that Ohio was not yet a state, and that Mr. Fearing still held his place as delegate from the territory of Ohio.
Now, you must observe that the convention to form a new constitution did not accept the conditions desired by congress in the seventh section of the enabling act, but considered the people of the state as entitled to better terms, and that it was the duty of the convention to negotiate for better terms with congress, and which terms, as demanded in the ordinance and resolution of 1802, congress did afterwards grant. Mr. Worthington returned to Ohio, and the legislature convened on Tuesday, the first day of March, 1803, as stipulated in the state constitution, being assured that congress would grant exactly the terms as set forth in the aforesaid ordinance and resolution.
A reference to the act of congress of May 7, 1800; to the seventh section of the enabling act of April 30, 1802; to the act of congress approved March 3, 1803, and to the acts and ordinance and resolution of the convention of 1802 is absolutely necessary in deciding the question of date.
The act of 1800 set off that part of the Northwest Territory now included in Ohio as a distinct territorial government, and the seat of government fixed at Chillicothe. The rest of the territory was organized as the territory of Indiana. The boundaries of Ohio are given, and it was called the eastern division. The ordinances of May, 1785, and July, 1787, were passed before settlements began north of the Ohio, and were held out to emigrants as inducements to settle in a wilderness, with all the dangers and hardships connected therewith. These ordinances declared that “the lot No. 16 in each township shall be given perpetually for the use of schools,” and thus became a condition of the sale and settlement of the western country. This reservation of section 16 therefore could not, April 30, 1802, be made the consideration of a new bargain between the United States and the state of Ohio, because the state already had this reservation, as did all of the territory, by the ordinance of 1785.
Now it is necessary to set forth section 7 of the said enabling act, approved April 30, 1802, which was in the words following:
“Section 7. That the following propositions be, and the same are hereby offered to the convention of the eastern state of the said territory, when formed, for their free acceptance or rejection; which if accepted by the convention, shall be obligatory upon the United States. First—That the section number sixteen, in every township, and where such section has been sold, granted or disposed of, other lands equivalent thereto, and most contiguous to the same, shall be granted to the inhabitants of such townships, for the use of schools. Second—That the six miles reservation, including the salt springs, commonly called the Scioto salt springs, the salt springs near the Muskingum river and in the Military tract, with the sections of land which include the same, shall be granted to the said state, for the use of the people thereof, the same to be used under such terms, and conditions, and regulations as the legislature of the said state shall direct; provided, the said legislature shall never sell nor lease the same for a period longer than ten years. Third—That one-twentieth part of the net proceeds of the lands lying within the said state, sold by congress, from and after the thirtieth day of June next, after deducting all expenses incident to the same, shall be applied to the laying out, and making public roads leading from the navigable waters emptying into the Atlantic to the Ohio, to the said state and through the same, such roads to be laid out, under the authority of congress, with the consent of the several states through which the road shall pass; provided, always, that the three foregoing propositions herein offered, are on the conditions, that the convention of the said state, shall provide by an ordinance, irrevocable without the consent of the United States, that every and each tract of land, sold by congress from and after the thirtieth day of June next, shall be and remain exempt from any tax laid by order or under authority of the state, whether for state, county, township or any other purpose whatever for the term of five years, from and after the day of sale.” (Approved April 30, 1802.)
Now, it will be observed that by said seventh section certain propositions contained therein are offered to the convention of the eastern territory when formed for their free accept
ance or rejection, which, if accepted by the convention, shall be obligatory upon the United States. It is further to be noted that the constitution, as adopted did neither accept nor reject the propositions contained in the seventh section of the enabling act, as requested in said act. It was generally supposed at the time, that such acceptance or rejection would be final. But this was not the case. The almost unanimous opinion of the convention was that the conditions offered by congress were not an adequate consideration for the state rights to be surrendered; yet not promptly rejecting the propositions they passed an ordinance in which they resolved to accept them, provided certain additions and modifications should be agreed to by congress, a copy of which ordinance and resolution passed in convention, November 29, 1802, at which time the constitution was also adopted, was as follows:
“We, the representatives of the people of the eastern division of the territory northwest of the river Ohio, being assembled in convention, pursuant to an act of congress, entitled 'An act to enable the people of the eastern division of the territory northwest of the river Ohio to form a constitution and state government and for the admission of such state into the Union, on an equal footing with the original states, and for other purposes, and having had under our consideration the propositions offered by the said act, for our free acceptance or rejection, do resolve to accept of the said propositions; provided, the following addition to and modification of the said propositions shall be agreed to by the congress of the United States, viz., That in addition to the first proposition, securing the section number sixteen in every township, within certain tracts, to the inhabitants thereof, for the use of schools, a like donation, equal to one thirty-sixth part of the amount of the lands in the United States military tract, shall be made for the support of schools, within that tract; and that the like provision shall be made for the support of schools in the Virginia reservation, so far as the unlocated lands in that tract will supply the proportion aforesaid, after the warrants issued from said state have been satisfied; and also that a donation of the same kind, or such provision as congress shall deem expedient, shall be made to the inhabitants of the Connecticut reserve. That of all the lands which may hereafter be purchased of the Indian tribes, by the United States, and lying within the state of Ohio, the one thirty-sixth part shall be given, as aforesaid, for the support of public schools. That all lands before mentioned to be appropriated by the United States, for the support of schools, shall be vested in the legislature of this state, in trust for said purpose. That not less than three per cent. of the net proceeds of the lands of the United States, lying within the limits of the state of Ohio, sold and to be sold, after the thirtieth day of June last, shall be applied in laying out roads, within the state, under the direction of the legislature thereof. And if the congress of the United States shall agree to the above addition to and modification of the said propositions, it is hereby declared and ordained that every and each tract of land sold or to be sold by congress, from and after the thirtieth day of June last, shall be and remain exempt from any tax laid by order or under the authority of the state, whether for state, county, township or any other purposes whatever for the term of five years after the day of sale, to be reckoned from the date of the certificate of the first quarterly payment.'
“That whereas congress, by a law entitled 'An act authorizing the grant and conveyance of certain lands to John Cleves Symmes and his associates passed the fifth day of May, 1792, did authorize the president of the United States to convey by letters patent unto the said John Cleves Symmes and his associates, their heirs and assigns, a certain tract of land therein described, and did further authorize the president by the act aforesaid, to grant and convey unto the said John Cleves Symmes and his associates, their heirs and assigns, in trust for the purpose of establishing an academy and other public schools and seminaries of learning, one complete township to be included and located within such limits and lines of boundary as the president may judge expedient; and in pursuance thereof, the president did convey unto the said John Cleves Symmes and his associates, their heirs and assigns, by his letters patent, the aforesaid one complete township, to be located and accepted by the governor of the territory northwest of the river Ohio; and inasmuch as the township aforesaid has never been located and accepted agreeably to the provision of this act.'
“The convention recommend the following propositions to congress as an equivalent for the one complete township aforesaid, to wit: The lots numbered eight, eleven and twentysix, reserved in the several townships for the future disposi