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INTRODUCTION

CONSTITUTIONAL DEVELOPMENT

The close of the Revolutionary War found the territory now included in the state of Ohio without any form of organized government.

Provision for the establishment of legal settlements was much delayed because of the conflicting claims to the territory on the part of the original thirteen states. No less than seven of the states claimed a part of the territory west of the Alleghanies, and the six that made no claim to it for themselves claimed it for the United States. The United States government claimed not only the political right to the territory, but the right as proprietor of the land and the right to sell it to pay the debts and defray the expenses of the general government. Virginia, New York, and Connecticut each claimed all or a part of what now constitutes the State of Ohio.

One after another of the states was induced to surrender its claims to the general government.

In 1784 it had secured unquestioned right both to the land and to the government of all the territory between Lake Erie and the Ohio River; but no legal settlement could be made until land grants were available and Congress refused such grants until the territory had been officially surveyed.

To the south and east of the Northwest Territory, especially near its borders, thousands of settlers were ready to move over into this territory; and even before legal grants could be secured hundreds of squatters had already come over and begun to make clearings.

The squatters, or intruders as they were called, felt keenly the need of a definite form of government. In March, 1785, a call was issued over the signature of one, John Emerson, inviting the people to choose “members to a convention for the framing of a Constitution for the governing of the inhabitants, the election to be held on the tenth day of April next ensuing.” There was no pretence that this call was made in accordance with the provisions of any ordinance of Congress. Indeed it specifically declared that men “have an undoubted right to pass into every vacant country and there to form their Constitution, and that from the confederation of the whole United States, Congress is not empowered to forbid them; neither is Congress empowered from that confederation to make any sale of the uninhabited lands to pay the public debts.” If Congress were slow to establish the required government, it was not slow to crush out any unauthorized attempts to form such government. Before the date set for the holding of the convention, the heavy hand of the Confederacy had been laid upon the leaders, and many of the squatters were driven from their homes. No Constitution was formed.

The first ordinance for the sale of the public domain was passed May 20, 1785, after which the active work of surveying the territory was begun promptly and carried forward vigorously. By 1787 such progress had been made, and so great was the demand for land grants, that an ordinance for the government of the Northwest Territory was passed, and became the famous Ordinance of July 13, 1787.

The Ohio Land Company's purchase in 1787, and the settlement at Marietta, April 7, 1788, made necessary the establishment of formal government. Congress had appointed General Arthur St. Clair, governor and Winthrop Sargent, secretary. The judges, Samuel Holden Parsons, James M. Varnum, and John Cleves Symmes, with the governor and secretary were vested with complete control of the government. These officials, except Judge Symmes, reached the new settlement at Marietta, July 9, 1788, and formally established civil government in the territory, six days later. Under the Ordinance the power of the governor and judges was judicial, executive, and legislative, with the governor exercising an absolute power of veto.

In a strict sense perhaps it may be claimed that the Ordinance of 1787 was in force only a little more than two years; for after the establishment of the national government under the Constitution of the United States, Congress passed an act, August 7, 1789, providing that, "Whereas, in order that the ordinance of the United States in Congress assembled for the government of the territory northwest of the River Ohio may continue to have full effect, it is requisite that certain provisions should be made so as to adapt the same to the present Constitution of the United States;" after which the act provides that certain powers of appointment shall vest in the president, and other powers, previously exercised by Congress under the Confederation, shall vest in Congress as established by the Constitution.

This form of government continued until 1799, when the second stage provided for in the ordinance of 1787, was reached; after which the government consisted of a governor and legislative council of five appointed by the president, and a legislature elected by the people. This form of government continued from 1799 to 1802. It was succeeded by the form provided for in the Constitution of 1802. In May, 1800, however, the territory had been divided, by an act of Congress, into the Territory Northwest of the Ohio, and Indiana Territory, the boundary line being drawn from a point opposite the mouth of the Kentucky River, thence northerly to Fort Recovery, and thence due north to Canada. The period, from 1787 to 1802, constitutes the first distinctly marked division of Ohio's constitutional history. The leading characteristics of the government were centralized authority, lack of separation of powers, and arbitrary rule of an executive having little regard for popular government. The government of this period reflected in no small degree the ideas of Hamilton, Adams, and other Federalists by whom it was formulated. It was not difficult to maintain, and hold for a time, arbitrary authority over so sparsely settled a country. The Territory Northwest of the River Ohio was large in extent, its people few, the dangers from which they needed to be protected many, and the means of communication inadequate and difficult. The settlements were so far apart that one settlement was scarcely conscious of the existence of another.

The Ordinance of 1787 embodied fundamental doctrines worthy of much respect, but it may be doubted whether at that period or later it exercised any very great influence upon the constitutional history of Ohio, however much may have been attributed to its beneficent influence. When Governor St. Clair and his legislative council set about the task of framing a code of laws for the territory, they paid little regard to that provision of the Ordinance which directed them to adopt laws al

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