CHAPTER IV CONSTITUTIONAL CONVENTION OF 1850-1851 POPULAR EXPECTATION The people seem to have approached the constitutional convention of 1850-1851 in a mood on the whole rather optimistic. There were some misgivings and an occasional gloomy prophecy, but serene confidence and sanguine anticipation were clearly dominant. Those who had prominently interested themselves in the movement for a new constitution hoped to see included in it a goodly portion at least of their favorite reforms. The general feeling was fairly expressed by Hon. Samuel Medary: The people now have it in their power to change the state constitution so as to make it conform to the progressive spirit of the age, and by so doing to simplify their state government and make it cost less to the taxpayer, and at the same time better protect the citizen in his rights. We have here set forth the lure that is often dangled before the citizen to lead him into the mazy field of experiment and change. There is a wonderfully attractive power in the things that are cheap and free. In the press of the day much space was given to assurances that a new constitution was to bring great relief to the taxpayer. In the very nature of things such assurance must be in large measure illusive. Take for instance the reform of the judiciary, which was urged by the ablest jurists of the state, and without the demand for which submission would undoubtedly have been deferred for at least twenty years. The courts were so overcrowded that it was impossible for them to perform the services for which they were created. A system must be devised that would provide more judges of higher average ability, and such a system must inevitably cost the taxpayers more money. Of course such a change should bring compensation in the form of better service and more prompt and satisfactory administration of justice. Taxes are a tribute paid to civilization. If we would enjoy its comforts and conveniences-to say nothing of its luxuries-we must "pay the price." The only state of society which escapes that condition is the one found in Ohio before the white man came. The Indians were not troubled with the tax problem. The people have a right to demand that taxes be economically expended in efficient and necessary service, and this service brings such ample compensation in the greater ability to pay taxes that its burdens are not felt-that they do not exist. The new constitution was to provide a form of government adequate for a progressive and expanding population with growing needs. This could not be made to cost less to the taxpayers. Taxes could not be avoided, but provision could be made for their more equitable collection and distribution. Others held forth the hope that provision might be made for relieving the state of its $18,000,000 indebtedness, incurred in building up its system of internal improvements and paying an annual interest of over $1,000,000. The finances of the state were in bad condition, partly as a result of the advent of railroads that were taking the place of the canals and curtailing their receipts, but chiefly because all unnoticed at the heart of our system of internal improvements the canker of the spoils system fed and fattened at the expense of the people. Some of the reformers, without recognizing the cause, were still insistent in their demands for relief, and not without warrant hoped that the new constitution might inaugurate a better order in the finances of the state. SELECTION AND CHARACTER Of Delegates On February 23, 1850, an act to call a convention passed the General Assembly. It provided for the election on the first Monday in April of 108 delegates, one from each representative district, to meet in convention "to revise, amend or change the constitution of the state." The convention was to meet in Columbus on the first Monday in May, 1850, and have power to adjourn to such other place or places in the state as its members might deem proper. The time for the selection of delegates was comparatively brief, only a little more than a month. The press of the state seemed to be alive to the importance of the election and urged that "only the best men be put forward as candidates," that they must not be picked at random to frame the fundamental law of the state. But party spirit ran high and there were practically no independent candidates in the field. The whigs had not been enthusiastically in favor of framing a new constitution at this time because they feared that with their waning power it would not be possible to elect a majority of the delegates to the convention. On the other hand, the democrats were sanguine that they would triumph at the polls and that theirs was the great opportunity to write and submit a new constitution for the people of Ohio. In the contest for delegates, the democrats as the original friends of revision had a decided advantage over their opponents who had been lukewarm or secretly opposed to calling a convention. In the year 1850, the first Monday of April was the first day of April, but so far as known this contingency did not adversely affect the results of the election. Writers have bestowed high praise on the body of men chosen to frame our second constitution. Perhaps at this late day it would be vain and unpatriotic to question this judgment, and something on the character and personality of the delegates of all our conventions is reserved for future presentation. It is safe to say, however, that the electors of the different districts did not, without exception, send to this convention their men best equipped for framing the constitution. In the county of Franklin, including then as it does at present, the capital city of the state, Samuel Medary, the chief advocate of the convention, a man of experience in public affairs, and especially well informed on all questions likely to arise before that body, was defeated by his whig opponent, John Graham, a local surveyor and former sheriff, who evidently knew little about the constitution and was not stimulated to interest in it by contact with his fellow delegates. He never addressed the convention on any subject. As we learn from the ample "Debates and Proceedings," he seems to have risen to his feet before that body but four times; once to send to the clerk's desk a proposition from a Columbus citizen to rent a hall to the convention, once to offer a petition signed by a few women of Franklin County opposing the legalization of the liquor traffic, and twice to offer resolutions evidently prepared by others. His opinions on questions up for consideration are found only in the aye and nay votes. recorded in the proceedings. Medary, outside of the convention, had more to do than Graham in the convention in shaping the constitution. Hon. Henry Stanberry, of Columbus, who represented a district made up of Delaware County and a portion of Franklin, however, gave the capital city fitting eminence in the convention. Of the 108 delegates chosen to this convention, sixty-four were democrats, forty-one whigs, and three free-soilers. An even dozen were or afterward became prominent. A large majority were what is sometimes vaguely designated as "representative;" that is, they were representative in character and ability of the average citizenship of their districts and responsive to the wishes of a majority of their constituents. Of a small and harmless minority so much could not be said, and some of its members would probably not have recognized a state constitution had it come walking up the principal street of the capital city. MEETING OF DELEGATES; ORGANIZATION The delegates met in the State House in Columbus, May 6, 1850. A roll-call of the members showed all present except four. The first motion offered designated the officers of the convention as president, secretary, assistant secretary, sergeant-at-arms and doorkeeper. The point of order was made that the convention could not proceed to business until the members had taken the oath of office. Then, strange to relate, the question was raised whether or not the delegates could consistently take the oath to support the constitution of Ohio when they had met "to construct a new constitution embracing no part of the old one," as a prominent member put it. Another delegate drew attention to the fact that they were only to prepare a constitution to be submitted to the people for ratification, and that until this was done they must live and act under the old constitution, by virtue of which alone they were authorized to assemble in convention; but this did not satisfy the members and, remarkable and unwarranted as their action was, they actually decided that they would not on entering upon the duties of their office, take oath to support the constitution of Ohio. Judge Peter Hitchcock, delegate from Geauga County, administered the oath to members in these words: "You solemnly swear that you will support the constitution of the United States and that you will honestly and faithfully to the State of Ohio discharge your duties as members of this convention?" Judge Hitchcock, who certainly knew that the action of the convention was not very creditable to the spirit and intelligence of its members, so shaped the oath that it approached as nearly as possible to pledging support to the constitution of Ohio. The election of president of the convention resulted in the choice of William Medill, of Fairfield County, who was elected by a vote of sixty. His leading competitor, Joseph Vance, received thirty-eight votes. W. H. Gill was elected secretary. The previous General Assembly had reserved to itself the right to choose the reported and had named for that important post J. W. Smith. The democratic majority, in spite of protestations to the contrary, was held steadily in line when questions arose affecting party interests, the distribution of honors, and other forms of patronage. At the outset they were willing and even eager to lay aside partisanship, after they had gathered in the offices and given Samuel Medary a somewhat luscious plum in the form of a contract to publish the proceedings of the convention. In fairness it must be said that if the whigs had been in control they would, perhaps, not have been less selfish and partisan. On the day following the election of officers and while the appetite for patronage was still keen, Mr. Sawyer, an active and somewhat loquacious member from Auglaize County, rose and remarking that a public printer ought to be appointed, declared that he "had no disposition to disguise the matter and would frankly state that he presumed from the complexion of the convention that Samuel Medary would be chosen printer" and proceeded to make a motion to that effect. PARTISAN ACTIVITY The contest over the printing of the convention consumed much time, the dominant party under the leadership of Mr. Sawyer evidently guarding very closely the interests of Mr. Medary. The price to be allowed provoked much discussion. Contracts had been made for the publication of the proceedings and delegates of the convention in the Ohio Statesman and the Ohio State Journal. The milk of the cocoanut for Mr. Medary seemed to arise from the fact that he had only to lift his type out of the columns of the Statesman and run off the proceedings and debates in book form to get full pay a second time for this work. "If Mr. Medary, as is true," declared Mr. Sawyer, "has type set up for the publication of his paper and if he can tomorrow use the type for the publication in book form, it is not his fault." The suggestion of some one that the printing be given to the lowest responsible bidder aroused the righteous indignation of Mr. Farr, a Medary supporter from Huron County. He said: This matter of bidding for work of this kind is exceedingly contemptible, and when a man makes such a proposition to me, as a printer, I will have nothing to do with him. The result, of course, was that satisfactory provision was made for Mr. Medary. Having, in the characteristic way of the times, disposed of this inviting piece of patronage, the convention devoted itself to the serious consideration of the work appropriately before it. On May 14, the president announced the following standing committees: 1. On privileges and elections. 6. On the elective franchise. 7. On corporations, other than corporations for banking. 8. On banking and currency. 9. On public debts and public works. 10. On future amendments to the constitution. 11. On education. 12. On militia. 13. On finance and taxation. 14. On preamble and bill of rights. 15. On public institutions of the state. 16. On jurisprudence. 17. On miscellaneous subjects and propositions. 18. On accounts. In these committees, of course, most of the work was performed. Their reports were discussed in the convention and the substance of these discussions come down to us in two substantial volumes. In the limited scope of this inadequate survey, not even a brief review of the debates on the more important subjects can be given. A glance over the proceedings reveals the progressives and conservatives in battle array, and often their arguments read like a transcript from the latest issue of the Congressional Record in which similar principles are discussed. In eulogizing the judicial system of England, a prominent conservative of the convention said: The fame of her learned and incorruptible judges has filled the world. And why is it? They have feared no earthly power, but have been left to poise the scales of justice with a firm and steady hand. "Let justice be done though the heavens should fall" has been the motto of her judges. They have been able to dispense justice under the influence of a conscious security against popular excitement and royal displeasure. Continuing, the same speaker said: I believe that the people of the state of all parties desire an independent judiciary and that they regard such a system as immeasurably more important than that the will of a popular assembly in a particular locality or neighborhood, expressed on a given day under excitement, should be carried into the jury box or be delivered from the bench in the form of a solemn judicial determination. And here is another excerpt from the reply of a progressive of that day: I said it was much to ask our opponents even to vote for the election of judges by the people, but was too much to expect them to go the entire figure on the subject. I said that the election of judges by the people was asked for by the people for the purpose of bringing within their control more fully that department of our government, which alone of all departments of American government, had not felt the chastening and reforming hand of American public opinion. In a stirring speech on the abolition of capital punishment, one of the opponents of the proposition made much of the well-worn argument that those in favor of a change cared more for the criminal than for his victim. CORPORATIONS Conservative citizens, who are sometimes disturbed at the reckless and withering anathemas hurled at corporate wealth, should console themselves with the thought that there is nothing new in this manifestation of hostility and righteous indignation. In the convention that framed the constitution of 1851, the orators bravely assailed the citadel of "privilege" in language as trenchant as any hurled from the hustings today. Here is a sample, under date of June 3, 1850: Corporations, sir, are destructive to equality and hostile to free institutions and their existence should not be tolerated in a republican government. They confer privileges and benefits on the few which are not enjoyed by the many. Every special act of incorporation is a grant of monopoly-a charter of privileges to a few individuals, which are not conferred upon the community at large. Such legislation is, consequently utterly repugnant to the great republican doctrine of equal rights—a doctrine that lies at the basis of the free institutions of the country. Sir, the people of Ohio have felt the blighting, withering and contaminating effects of these "ulcers upon the body politic"-corporations, through a long series of years; and I believe there is now a deliberately formed and well settled public opinion among the masses in this state which requires of us as the representatives of the people to say the General Assembly, in the organic law of this commonwealth, "No more special Acts of incorporation-no more special legislation." A distinguished American statesman has said, and experience has proven the truth of the declaration, that "in this country corporations are like so many citadels, in which the enemies of republican government entrench and protect themselves, and from which they carry on their warfare against the institutions of freedom and the liberties of the people." Sir, I propose, by a prohibitory provision in the constitution, to storm these "citadels," and to rout the occupants from their entrenchment and their stronghold, so that they may no longer be thus enabled to "carry on their warfare against the institutions of freedom and the liberties of the people." Of course we have applied new words and phrases. We now speak of the "tyranny of privilege," "predatory wealth," and the "tentacles of the monster octopus," but "blighting, withering, contaminating effects of these 'ulcers upon the body politic'" was doubtless a satisfactory avenue for the release of the pentup and righteous wrath of this "friend of the people." From another delegate in the convention we get an insight into the cause of this early hostility toward corporations in Ohio and an illuminating exposition of the devious ways of legislatures seventy years ago: It is well known that special charters are always "got through" our Legislature at will, and it must be evident that it will always be so, in the absence of a constitutional provision. When was there ever an |