Transcription contributed by Martie Callihan 24 November 2004

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[It would be difficult to find a more comprehensive review of the foundations of our system of laws than is given in the "Preliminary Sketch of the History of Ohio," by this distinguished representative of the bench and the bar of America. The work is now out of print, and is not easily obtained; besides, its great author has passed away; so these extracts are made more with a view of preserving old historical literature, than of introducing new; furthermore, the masses of the people have never had convenient access to the volumes, which, for the most part, have been in the hands of professional men only. The publication of the work first brought its compiler before the public, and marked the beginning of that career which, during its course, shaped the financial system of our country, and ended upon the Supreme Bench of the nation.]

By the ordinance of 1785, Congress had executed in part the great national trust confided to it, by providing for the disposal of the public lands for the common good, and by prescribing the manner and terms of sale. By that of 1787, provision was made for successive forms of Territorial government, adapted to successive steps of advancement in the settlement of the Western country. It comprehended an intelligible system of law on the descent and conveyance of real property, and the transfer of personal goods. It also contained five articles of compact between the original States, and the people and States of the Territory, establishing certain great fundamental principles of governmental duty and private right, as the basis of all future constitutions and legislation, unalterable and indestructible, except by that final and common ruin, which, as it has overtaken all former systems of human polity, may yet overwhelm our American union. Never, probably, in the history of the world, did a measure of legislation so accurately fulfill, and yet so mightily exceed the anticipations of the legislators. The ordinance has been well described, as having been a pillar of cloud by day and of fire by night, in the settlement and government of the Northwestern States. When the settlers went into the wilderness, they found the law already there. It was impressed upon the soil itself, while it yet bore up nothing but the forest. The purchaser of land became, by that act, a party to the compact, and bound by its perpetual covenants, so far as its conditions did not conflict with the terms of the cessions of the States.

This remarkable instrument was the last gift of the Congress of the old confederation to the country, and it was a fit consummation of their glorious

labors. At the time of its promulgation, the Federal Constitution was under discussion in the convention; and in a few months, upon the organization of the new national government, that Congress was dissolved, never again to re-assemble. Some, and indeed most of the principles established by the articles of compact are to be found in the plan of 1784, and in the various English and American bills of rights. Others, however, and these not the least important, are original. Of this number are the clauses in relation to contracts, to slavery and to Indians. On the whole, these articles contain what they profess to contain, the true theory of American liberty. The great principles promulgated by it are wholly and purely American. They are indeed the genuine principles of freedom, unadulterated by that compromise with circumstances, the effects of which are visible in the constitution and history of the Union.

The first form of civil government, provided by the ordinance, was now formally established within the Territory. Under this form, the people had no concern in the business of government. The Governor and Judges derived their appointments at first from Congress, and after the adoption of the Federal Constitution, from the President. The commission of the former officer was for the term of three years, unless sooner revoked; those of the latter were during good behavior. It was required that the Governor should reside within the Territory, and possess a freehold estate there, in one thousand acres of land. He had authority to appoint all officers of militia, below the rank of Generals, and all magistrates and civil officers, except the Judges and the Secretary of the Territory; to establish convenient divisions of the whole district for the execution of progress, to lay out those parts to which the Indian titles might be extinguished into counties and townships. The Judges, or any two of them, constituted a court with common law jurisdiction. It was necessary that each Judge should possess a freehold estate in the territory of five hundred acres. The whole legislative power which, however, extended only to the adoption of such laws of the original States as might be suited to the circumstances of the country, was vested in the Governor and Judges. The laws adopted were to continue in force, unless disapproved by Congress, until repealed by the Legislature, which was afterward to be organized. It was the duty of the Secretary to preserve all acts and laws, public records and executive proceedings, and to transmit authentic copies to the Secretary of Congress every six months.

Such was the first government devised for the Northwestern Territory. It is obvious that its character, as beneficent or oppressive, depended entirely upon the temper and disposition of those who administrated it. All power, legislative, judicial and executive, was concentrated in the Governor and Judges, and in its exercise they were responsible only to the distant Federal head. The expenses of the Government were defrayed in part by the United States, but were principally drawn from the pockets of the people in the shape of fees.

The first acts of Territorial legislation were passed at Marietta, then the only American settlement northwest of the Ohio. The Governor and Judges did not strictly confine themselves within the limits of their legislative authority, as prescribed by the ordinance. When they could not find laws of the original States suited to the condition of the country, they supplied the want by enactments of their own. The earliest laws, from 1788 to 1795, were all thus enacted. The laws of 1788 provided for the organization of the militia; for the establishment of inferior courts; for the punishment of crimes, and for the limitations of actions; prescribed the duties of ministerial officers; regulated marriages, and appointed oaths of office. That the Governor and Judges in the enactment of these laws, exceeded their authority, without the slightest disposition to abuse it, may be inferred from the fact that except two, which had been previously repealed, they were all confirmed by the first Territorial Legislature.

At this period there was no seat of government, properly called. The Governor resided at Cincinnati, but laws were passed whenever they seemed to be needed, and promulgated at any place where the Territorial legislators happened to be assembled. Before the year of 1795, no laws were, strictly speaking, adopted. Most of them were framed by the Governor and Judges to answer particular public ends; while in the enactmant of others, including all the laws of 1792, the Secretary of the Territory discharged, under the authority of an act of Congress, the functions of the Governor. The earliest laws, as has been already stated, were published at Marietta. Of the remainder, a few were published at Vincennes, and the rest at Cincinnati.

In the year 1789, the first Congress passed an act recognizing the binding force of the ordinance of 1787, and adapting its provisions to the Federal Constitution. This act provided that the communications directed in the ordinance to be made to Congress or its officers, by the Governor, should thenceforth be made to the President, and that the authority to appoint with the consent of the Senate, and commission officers, before that time appointed and commissioned by Congress, should likewise be vested in that officer. It also gave the Territorial Secretary the power already mentioned, of acting in certain cases, in the place of the Governor. In 1792, Congress passed another act giving to the Governor and Judges authority to repeal, at their discretion, the laws by

At this time the Judges appointed by the national Executive constituted the Supreme Court of the Territory. They were commissioned during good behavior; and their judicial jurisdiction extended over the whole region northwest of the Ohio. The court, thus constituted, was fixed at no certain place, and its process, civil and criminal, was returnable wheresoever it might be in the Territory. Inferior to this court were the County Courts of Common Pleas, and the General Quarter Sessions of the Peace. The former consisted of any number of Judges, not less than three nor more than seven, and had a general common-law jurisdiction, concurrent, in the respective counties, with that of the Supreme Court; the latter consisted of a number of Justices for each county, to be determined by the Governor, who were required to hold three terms in every year, and had a limited criminal jurisdiction. Single Judges of the Common Pleas, and single Justices of the Quarter Sessions, were also clothed with certain civil and criminal powers to be exercised out of court. Besides these courts, each county had a Judge of Probate, clothed with the ordinary jurisdiction of a Probate Court.

Such was the original constitution of courts and distribution of judicial power in the Northwestern Territory. The expenses of the system were defrayed in part by the National Government, and in part by assessments upon the counties, but principally by fees, which were payable to every officer concerned in the administration of justice, from the Judges of the General Court downward.

In 1795, the Governor and Judges undertook to revise the Territorial law and to establish a complete system of statutory jurisprudence, by adoptions from the laws of the original States, in strict conformity to the provisions of the ordinance. For this purpose they assembled at Cincinnati, in June, and continued in session until the latter part of August. The judiciary system underwent some changes. The General Court was fixed at Cincinnati and Marietta, and a Circuit Court was established with power to try, in the several counties, issues in fact depending before the superior tribunal, where alone causes could be finally decided. Orphans' Courts, too, were established, with jurisdiction analogous to but more extensive than that of a Judge of Probate. Laws were also adopted to regulate judgments and executions, for limitation of actions, for the distribution of intestate estates, and for many other general purposes. Finally, as if with a view to create some great reservoir, from which, whatever principles and powers had been omitted in the particular acts, might be drawn according to the exigency of circumstances, the Governor and Judges adopted a law, providing that the common law of England and all general statutes in aid of the common law, prior to the fourth year of James I, should be in full force within the Territory. The law thus adopted was an act of the Virginia Legislature, passed before the Declaration of Independence, when Virginia was

yet a British colony, and at the time of its adoption had been repealed so far as it related to the English statutes.

The other laws of 1795 were principally derived from the statute book of Pennsylvania. The system thus adopted, was not without many imperfections and blemishes, but it may be doubted whether any colony, at so early a period after its first establishment, ever had one so good.

And how gratifying is the retrospect, how cheering the prospect which even this sketch, brief and partial as it is, presents! On a surface, covered less than half a century ago by the trees of the primeval forest, a State has grown up from colonial infancy to freedom, independence and strength. But thirty years have elapsed since that State, with hardly sixty thousand inhabitants, was admitted into the American Union.. Of the twenty-four States which form that Union, she is now the fourth in respect to population. In other respects, her rank is even higher. Already her resources have been adequate, not only to the expense of government and instruction, but to the construction of long lines of canals. Her enterprise has realized the startling prediction of the poet, who, in 1787, when Ohio was yet a wilderness, foretold the future connection of the Hudson with the Ohio.

And these results are attributable mainly to her institutions. The spirit of the ordinance of 1787 prevades them all. Who can estimate the benefits which have flowed from the interdiction by that instrument of slavery and of legislative interference with private contracts? One consequence is, that the soil of Ohio bears up none but freemen; another, that a stern and honorable regard to private rights and public morals characterizes her legislation. There is hardly a page in the statute book of which her sons need be ashamed. The great doctrine of equal rights is everywhere recognized in her constitution and her laws. Almost every father of a family in this State has a freehold interest in the soil, but this interest is not necessary to entitle him to a voice in the concerns of government. Every man may vote; every man is eligible to any office. And this unlimited extension of the elective franchise, so far from producing any evil, has ever constituted a safe and sufficient check upon injurious legislation. Other causes of her prosperity may be found in her fertile soil, in her felicitous position, and especially in her connection with the union of the States. All these springs of growth and advancement are permanent, and upon a most gratifying prospect of the future. They promise an advance in population, wealth, intelligence and moral worth as permanent as the existence of the State itself. They promise to the future citizens of Ohio the blessings of good government, wise legislation and universal instruction. More than all, they are pledges that in all future, as in all past circumstances, Ohio will cleave fast to the national constitution and the national Union, and that her growing energies will on no occasion, be more willingly or powerfully put forth, than in the support and maintenance of both in unimpaired vigor and strength.