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Ohio Arch. and Hist. Society Publications.
The "circumstances" requiring
this meeting will be
found fully set forth in the introductory address of
Gov-
ernor St. Clair at the opening of the legislative
session.
The meeting, however, was deferred from
time to
time. A reference to it is found in a
letter from St.
Clair to Judge Turner, dated Marietta,
December 14,
1794. At the conclusion of this
communication he says:
"A session of the Legislature is
called for by the people,
and is indeed very necessary. Judge
Symmes is not in the Ter-
ritory, and you are at so great a
distance that I thought it next
to impossible you could attend this
winter. It is my intention
to call it as early in the spring as
possible--about the 1st of
March, I think, when I hope you may be
able to attend."
Just when the latter call was issued is
not so ap-
parent. The Centinel of the Northwestern Territory
in its issue of March 28, 1795, carries
a communica-
tion signed by one
"Vitruvius", which runs in part as
follows:
"Do you see that the governor of
this territory has issued
his proclamation for the purpose of
convening the legislature?
Let us then inquire what sort of a
legislature it is, which is
commanded to convene. I will assert that
they are not a legisla-
ture; for they have no opportunity to make laws, but you will
see that they will assume the power. If
they do, is it not reason-
able to suppose that they will make such
laws as will suit their
own convenience, - as they seem to be
'Lords of the soil'.
"In short, Mr. Maxwell, it seems to
me, that if we do
not take care, we shall be imposed upon,
by our farcical aristoc-
racy, as well as by our miserly whiskey drinkers."
On the 25th of April this pioneer
newspaper an-
nounces:
"We are happy in having it in our
power to inform the
public, that the Legislature of this
Territory is to convene on
Tuesday the 26th inst. at this
place."
There were further delays, however, and
we find
later in the news columns the
announcement "with
Legislature of the Northwestern Territory, 1795 15 pleasure" of the arrival of "His Excellency Arthur St. Clair, Esquire, Governor of the Territory of the United States, northwest of the Ohio." It appears that he reached Cincinnati May 11th. On May 27th Governor St. Clair in a letter to Judge Addison states that he ex- pects Judge Symmes to meet him in Cincinnati "in a day or two." It therefore appears that Judge Symmes ar- rived after the date of this letter. At all events the legis- lature convened in formal session on the 29th day of May, 1795. When this session was in progress, June 17, 1795, Judge Symmes in a letter to Captain Dayton explained the difficulties encountered by these pioneer statesmen in convening at Cincinnati and the urgency that brought them together: |
"I had not been long at home from Jersey be- fore I was called up the Ohio again to attend Gov- ernor St. Clair at Marietta in the capacity of a legis- lator. On the 20th of Feb- ruary, therefore, I set out on my passage up the river, and was buffeted by high waters, drifting ice, heavy storms of wind and rain, frost and snow for twenty- three days and nights, without sleeping once in all that time in any house af- ter leaving Columbia. I waited in vain twelve days at Marietta for the coming of the Governor, and he not appearing, I returned home. |
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"The Governor has since arrived at this place. About the same time, Judge Turner came up the river from Illinois, when we were able to form a house and proceed to the consideration of our laws. Their binding force was so enervated by the measures taken against them last session of Congress, that many citizens |
16
Ohio Arch. and Hist. Society Publications.
of lawless principles now revile them,
and treat them as a nullity.
How far the safety and happiness of the
United States were
involved in the downfall of our little
code of jurisprudence af--
fecting few more citizens and scarcely
more energetic than the
by-laws of some country
corporation-especially as they had
undoubtedly been twice read and ordered
by Government to be
printed-I will not pretend to
conjecture. I only say, sir, that
I am sorry they were found so
exceptionable in the eyes of
Congress. We lived tolerably happy under
them, and, if I am
not mistaken, the happiness of the
people is the object of laws.
Hardly shall we be able to import and
adopt a sufficient number
of the laws of the original States to
regulate our police before the
freemen of the territory will rise in
numbers to 5,000, when the
Government will be new formed and the
people make their own
laws."
This is the first recorded meeting of a
legislative
body within the present limits of Ohio
and the territory
northwest of the Ohio River. This legislature chose
its
officers and assembled in regular
session until it con-
cluded its labors and provided for the
publication the
laws it adopted in the Maxwell Code,
the very first book
printed in the "Northwestern
Territory."
This legislature, in the modern
terminology, was uni-
cameral; it consisted of a single body.
Governor Arthur
St. Clair by virtue of his office
presided. Judges John
Cleves Symmes and George Turner were
the floor mem-
bers. All told there were just enough
present to conduct
in a formal way the legislative
proceedings; one member
to make a motion, another to second it
and the presiding
governor to put it to a vote. The fourth member, Judge
Rufus Putnam, did not attend any of the
sessions.
Armistead Churchhill was chosen and
commissioned
as clerk of the legislature. He seems
to have been the
first man to hold such a position in
the territory. He
was the predecessor of the long line of
"clerks" that fol-
lowed him in the territory and the general assemblies
of
the states in later years carved out of it. Of
Armistead
Churchhill little appears to be known
outside of the
record of this meeting. He evidently performed satis-
factorily the duties of his office
which included that of
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Vol. XXX- 2. (17) |
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Ohio Arch. and Hist. Society Publications.
legislative assistant or draftsman, for
he was frequently
directed to prepare "the draft of
a bill." He was evi-
dently paid in proportion to the amount
of writing he
did. According to a resolution adopted
June 5, 1795, the
clerk of the legislature was
"entitled to eight cents for
every hundred words he shall write, by
order of the
legislature, in full compensation for
all services incident
to his office." This did not net
him a large salary though
a modern expert typist would earn very
satisfactory
compensation at this rate.
It will be noticed that the proceedings
of the first
day ended with the adoption of a
resolution "that a mes-
senger be appointed." The name of
this messenger
fortunately has been handed down to
succeeding genera-
tions. It was Charles Avery. He was
appointed June
3, 1795, and received as compensation
one dollar a day.
He was the official progenitor of the
sergeants-at-arms,
postmasters, doorkeepers,
superintendents of stenog-
raphers, message clerks, pages and
porters that in
multitudinous array have followed in
his wake. In this
pioneer "messenger" were
included the functions of the
numerous successors who constitute an
important part
of the "legislative service"
of today.
The compensation of the clerk and the
messenger
seems very modest. In proportion to
population, the
number of lawmakers and the purchase
value of the dol-
lar, however, the cost of conducting
this legislature did
not differ so widely from what is now
paid for a similar
service. The per capita expense was
certainly greater
then than it is today in Ohio.
It will be noticed that the proceedings
were con-
ducted with dignity and decorum. The
sessions were
open to the public. The address of
Governor St. Clair,
when we consider that it was delivered
in the presence of
a legislative body consisting of only
two members beside
himself, certainly rises to the dignity
of the occasion.
Its tone is elevated and patriotic. It
reveals the things
that claimed the attention of those
charged with the gov-
Legislature of the Northwestern
Territory, 1795. 19
ernment of this new territory, then the
western frontier
of civilization on this continent. The reply to the
ad-
dress of the governor presented by Judges Symmes and
Turner was worthy of the men who wore
the judicial
ermine and exercised legislative
authority in this
formative period of the history of the
region over which
they presided.
There is no testimony at hand in regard
to the par-
ticular place in which the sessions of
this legislature were
held. It was of course in one of the
primitive structures
of Cincinnati in keeping with the
pioneer surroundings
of that early day.
The session continued from May 29, 1795
to August
25, 1795, but no record has been found
for a date later
than August 15th of that year.
With this brief introduction the
"minutes" are pre-
sented as they have been copied from
the pages of the
Centenial of the Northwestern
Teritory. Some addi-
tional related matter will be found in
the brief appendix.
MINUTES OF THE LEGISLATURE
TERRITORY OF THE UNITED STATES
NORTH-WEST OF THE OHIO
At a session in their legislative
capacity, of the governor
and judges in and over the said
Territory, begun and holden at
Cincinnati, in the county of Hamilton,
on Friday, the twenty-
ninth day of May, 1795.
PRESENT
Arthur St. Clair, governor and commander in chief, and
John Cleaves Symmes
and Judges.
George Turner
Armistead Churchill, esquire, being
chosen and commis-
sioned, as clerk of the legislature,
took the oath prescribed by law,
The business opened by a written speech
delivered by the
governor, as follows:
20
Ohio Arch. and Hist. Society Publications.
ADDRESS OF THE GOVERNOR TO THE
LEGISLATURE.
It gives me much satisfaction,
gentlemen, after so long a
separation, that we are again met in our
legislative capacity. The
great extent of the Territory, the distance between the
places of
our respective residences, the
difficulty of assembling at any
point at a given time, while the only
communication is by the
river, which can not always be ascended,
and often not without
danger from the savages, must
necessarily render our appointed
meetings precarious, and will, I hope,
excuse my requesting your
attendance at this time, without
previous notice. It was, owing
to some or all of these causes that the
proposed meeting in
September last was frustrated. Bodily
indisposition prevented
me from keeping the last appointment,
and the vexation that
arose from a sense of the trouble I had
given to one of you
gentlemen, and for any thing I then knew
to both, added no
little to that indisposition.
It has for a long time past, gentlemen,
been my anxious
desire that the legislature should be
convened. The circum-
stances of the Territory have required
it in a variety of shapes.
The civil and criminal codes are both
incomplete; and if the
community have suffered no real injury
therefrom, they have at
least experienced inconveniences. Other
objects would also have
demanded our attention at an earlier
day, but opinions enter-
tained in the legislature of the United
States as to the constitu-
tionality, and, consequently, the
binding force of the territorial
statutes, rendered it, in a high degree,
necessary. The Ordinance
for the government of the Territory,
passed by the Congress in
July, 1787, is unquestionably the
constitution or charter of this
colony. A bill, gentlemen, passed the
House of Representatives
in the last session of Congress, and for
disapproving of all the
laws that had been enacted at this
place, from July to December
inclusive, in the year 1792, on the ground, as I am informed,
that the Governor and judges have no
power, by the constitution
of the government, to make laws, but
only to adopt and publish
such laws of the original States as
should appear to them best
suited to the circumstances of the
inhabitants. Had that bill
passed into a law, though the laws
enacted within the period
referred to might have been the special
object, the principle
would have reached to every law existing
in the Territory. The
Senate did not agree with the House of
Representatives, and,
consequently, it did not become a law;
but if I am rightly in-
formed, it was not owing to a difference
in opinion, but as they
considered them all ipso facto void,
they thought it improper to
declare any of them so by an act of the
legislature.
Legislature of the Northwestern
Territory, 1795. 21
It has always been my opinion,
gentlemen, that whenever
the laws of the Territory were
considered by the legislature of
the United States in a constitutional
point of view, they would
be annulled. And, although, I gave way
to the mode that has
been pursued in forming them, and have
assented to many of
them, it was not till after long
altercation with the first judges,
Mr. Parsons and Mr. Varnum, that it was
gone into. I found
myself, in some measure, forced to it;
for I was not happy
enough to be able to convince them of
its impropriety, and, unless
the one or the other receded, society
must.have been in a state of
anarchy, and I preferred submitting to
what my mind disap-
proved of rather than that the community
should be in such a
situation, not doubting but Congress
would soon correct it.
Notwithstanding the deference,
gentlemen, I had to the
opinions of your predecessors, which, it
was most probable, as
they were men who had some eminence in
the profession of the
law, were more correct than mine, before
I consented to the
making laws, I thought it necessary,
after all our conversations,
to address them in writing more than
once on the subject, and
to put those letters on the records of
the Territory as a kind of
standing protest against the measure I
was dragged into. As
those letters were fully explanatory of
my sentiments at that
time, and they have not since been
changed, I will take the liberty
to lay before you some extracts from
them, and from an address
to the people on setting the government
in motion:
"You will observe, gentlemen, that
part.of the system which
has been formed for this country, and is
now to take effect, is
temporary only--suited to your infant
situation, and to con-
tinue no longer than that state of your
infancy shall last. During
that period the judges, with my
assistance, are to select from the
laws of the mother States, such laws as
may be thought proper
for you. This is a very important part
of our duty, and will
be attended to with the greatest
care." -Address at Marietta on
opening the Government, July 9th,
1788.
"Upon the application of the whole
of the proprietors [speak-
ing of the Ohio Company], a law
specially regulating their prop-
erty, in order to rescue it from the
caprice of individuals, might
with propriety be made; but whether the
present legislature of
the Territory could be competent, may
well admit of doubt.
They have power to adopt laws
only." -Letter to the Judges,
July 29th, 1788.
"But you will pardon me, gentlemen,
for mentioning once
more, that I suspect we are overpassing
the line of our duty in
forming new laws in any case; and that, when we do so, the
necessity of the case can be our only
justification. The Ordinance
of Congress empowers us 'to adopt such
laws of the original
22 Ohio Arch. and Hist. Society Publications.
States, criminal and civil, as may be
necessary and best suited
to the circumstances of the district.'
In departing from that rule,
we certainly expose ourselves to censure
from Congress; and
besides, there may be some doubt as to
the validity of such laws
as are adopted and published under any
other; and it may not be
unworthy of your consideration whether,
upon an exception be-
ing taken before you, in your judicial
capacity, you would not be
obliged to decide against the law, and
declare it a nullity. I
agreed to the militia law fully under
the impression of these
sentiments, because the necessity of
self-defense must supersede
other considerations." - Letter
to the Judges, July 30th, 1788.
"I was in hopes that my being
informed of the precise mean-
ing you had affixed to the word laws,
as it is used in the Ord-
inance of Congress, which empowers the
Governor and judges
to adopt such of those of the original
States as may be necessary
and suited to the circumstances of the
district, and as it is used
by you in your letter of the 31st July,
would have thrown some
light upon that letter, and shortened
the answer I should be
obliged to make to it. I must have been
very unfortunate in the
manner I expressed my wish to know what
that meaning was,
for the word in the Ordinance is clearly
distinguished from the
'codes or bodies of laws' indefinitely,
'as they refer in their gen-
eral nature and spirit to the vast
variety of objects about which
they are conversant.' I can not find how
this explanation ap-
plies; I will not, however, trouble you
any further about it, but
proceed to reply to the letter.
"I observe you say it is one of the
questions arising out of
mine of the 30th, whether, in
forming and transcribing laws, we
should connect with general subjects all
the particulars that may
have relation to those general subjects.
Another is, how far the
particulars respecting the probate law
should have influence. In
forming laws upon general subjects, it
may be difficult to connect
all the particulars that may have
relation to those general sub-
jects. So far, however, as it is
possible to recollect all the par-
ticulars, it should be done, and those
particulars inserted in and
become parts of the same law. And after
all the attention that
legislators can pay to particulars, it
will be almost always found,
when the laws are put in operation, that
many things have been
omitted and, consequently, must be
supplied; and frequently
(from their taking a different direction
from what was intended),
be explained. Forming and transcribing
laws are two very dif-
ferent things; for transcribing laws, to
give a meaning to the
expression here, must be applied to some
of the laws of the
original States that may be thought
proper to be adopted. I pre-
sume we must take them as we find them,
so far as they apply to
our circumstances. How far the
particulars suggested respect-
Legislature of the Northwestern
Territory, 1795. 23
ing a probate law may have influence
with you, gentlemen, I
know not-they have very great influence
with me. There is
another circumstance besides, which
influences me not a little.
It was hinted at only, and distantly; it
may be proper to mention
it expressly. When I have bound myself
by law to the creation of
an office, unless the powers and duties
of the officer who is to fill
it are detailed in the law, a difference
of opinion may arise re-
specting those powers and duties, and I
run the risk of being
obliged to leave it to be guided entirely
by the rules of the com-
mon law, supposing it to be an office
known to the common law,
or, by rules that I may think impose too
much or too little re-
straint. To this risk I am not willing
nor is it proper to expose
myself, because I should thereby lose,
in that case, the control
which, I think, the Ordinance has given
me in all cases. Here
again I am afraid I have the misfortune
to differ with your
honors, for, from another part of your
letter, it seems to be your
opinion that when the judges agree in
adopting a law it will
acquire the requisite validity without
the consent of the Governor.
The passage in the Ordinance is in these
words: 'The Governor
and judges, or a majority of them, shall
adopt and publish,' etc.
It is true, the punctuation would favor
the construction you
seem inclined to put upon it; but I
believe it is not the true sense,
and that Congress intended that the
assent of the Governor
should be necessary to all laws adopted
during this stage of the
temporary government, as well as to all
laws formed by the
general assembly, after it shall have
been organized. I presume,
gentlemen, that Congress thought there
would be an impropriety,
at least, in leaving the adoption of
laws by which the people of
the district were to be governed for a
time, solely to the persons
who were to expound them. How much
greater would that im-
propriety be, if it goes not only to the
adoption, but the forma-
tion of laws. The judges would, in that
case, be complete legis-
lators, which is the very definition of
tyranny; and, though that
arrangement might, in your hands,
gentlemen, produce no evils,
no man can tell how long this stage of
the government will last,
or who may be your successors. Nor could
it fail to produce
much uneasiness in the minds of the
people over whom so pos-
sibly oppressive an authority was
established.
"I acknowledge, I do not perfectly
understand what is meant
by the 'ties, connections, and
subordinations,' that are said to
exist in colonial governments, and 'to
which laws must be ap-
plied.' I do not take those ties, connections, etc.
(whatever they
may be), to be at all the object of
laws. By making them the
objects of law, 'the existence of
government might, indeed, be
endangered.' No law which could have a tendency to
weaken
or destroy the 'ties' connections and subordinations'
of this
24
Ohio Arch. and Hist. Society Publications.
district with the United States could,
consistent with our duty,
be either formed or adopted; and laws
that might have a de-
clared purpose to strengthen those ties
would, in effect, weaken
them, because they rest upon another
foundation, which every
such law would tend to sap. It is unsafe
ground, and ought not
to be traveled upon. I presume not to
say what 'the powers ought
to have been.' As they are, and as I
understand them, they
seemed calculated to answer all the
purposes 'the framers of the
Ordinance' could have had in view, viz.:
'to provide for the safety
and happiness of the people who will
remove into this country,
and to protect their property until they
should be sufficiently
numerous to legislate for themselves,
and to preserve them in a
due dependence upon the general
Government.' I agree with you,
gentlemen, that the 'clause in
question,' and every other clause
in the Ordinance, should receive a
liberal construction whenever
they are in the least doubtful; and as
it partakes of the nature
of a charter, is to be expounded
'favorably to the grantees.'
But it is one thing to construe a grant
liberally and another to
add to the grant by construction what
was never in the con-
templation of the grantor; and this is
precisely what I think
would follow should your opinion upon
the clause be thought
the best. That we may adopt 'laws of any
of the old States,'
if we think they suit our circumstances,
there can be no doubt,
for that is the genuine and liberal
sense of the clause. That we
may adopt 'such parts of any particular
law as may be necessary,'
is within the spirit of it. That we may
make a law 'for here
the word adopt will not serve
us), consisting of 'different parts
of the laws of different States, and
change the diction,' I believe
we have no power to do. I cannot
discover the difference be-
tween this and legislating originally,
which, so far from permit-
ting us to do, in my opinion, it was the
design of Congress to,
prevent."-Letter to the judges,
August 1, 1788.
As this construction, gentlemen, gives a
clear, distinct and
consistent sense to every part of the
Ordinance, which, as has
been observed, is the charter of the
Territory, it is probable that
it is the true construction. I shall,
therefore, recommend to you
again to give that instrument an
attentive persual, and compare
the letter and the spirit of it with the
manner in which we have
hitherto proceeded; and if you find any
opposition or discordance
between them, I am certain you will
advise an immediate change
of measures.
While I am on this subject, I will
trouble you with one ob-
servation more, though it might,
perhaps, be brought forward
with more propriety as a reason for
repealing a particular law.
It is this, that the people are entitled
to judicial proceedings,
according to the course of the common
law, is an express article
Legislature of the Northwestern
Territory, 1795. 25
of compact between the original States
and them. It seems to
me, that, supposing the power of the
Governor and judges to
make laws were clear (which it certainly
is not) the law pre-
scribing the forms of writs and process
has greatly narrowed
the right resulting from that article,
and cases will arise to which
it will be found to be wholly
inapplicable; and that, contrary to
the spirit of the common law (which does
not permit the blend-
ing of different remedies for the same
wrong, or prevent a choice
of the remedy where it has given more
than one,) a humane
creditor is, in some cases after
judgment is obtained, compelled
to imprison his debtor, or forever
forego his remedy against him.
The vast variety of writs known to the
common law of England
were introduced for the safety of the
people, and the learned
Judge Blackstone, speaking of some
difficulties arising to the
law student, not to the people, from
that variety, breaks out into
a kind of rapturous exultation:
"This difficulty," says he, "how-
ever great it may appear, will shrink to
nothing upon a nearer
and more frequent approach. And, such as
it is, it arises from
the excellence of our English laws,
which adapt their redress
exactly to the circumstances of the
injury, and do not punish one
and the same action for different wrongs
which are impossible
to be brought within the same
description, whereby every man
knows what satisfaction he is entitled
to expect from the courts
of justice, and as little as possible is
left in the breast of the
judge, whom the law appoints to
administer, and not to prescribe
the remedy." Black. Corn., Vol. 3,
page 266. And, again, on
the next page, he observes "that
this intricacy of legal process
will be found, when attentively
considered, to be one of those
troublesome, but not dangerous, evils
which have their root in
the frame of our constitution, and
which, therefore, can never
be cured without hazarding every
thing that is dear to us. In
absolute governments, where new
arrangements of property and
a gradual change of manners have
destroyed the original ideas
on which the laws were devised and
established, the prince, by
his edict, may promulge a new code, more
suited to the present
emergencies. A single legislator-a Solon
or Lycurgus, a Jus-
tinian or a Frederick -may at any time
form a concise and, per-
haps, a uniform plan of justice; and evil
betide that presumptuous
subject who questions its wisdom or
utility. But, who, that is
acquainted with the difficulty of new
modeling any branch of the
statute law (though relating but to
roads or parish settlements)
will conceive it ever feasible to alter
any fundamental point of the
common law, with all its consequents and
appendages?"
Whatever, gentlemen, may be your
sentiments on recon-
sidering the subject of our legislative
powers, two things are
clearly with them, viz., to adopt and
publish laws and to repeal
26 Ohio Arch. and Hist. Society Publications.
those of our own making. The first is,
indisputably, given by the
Constitution of the Territory, and the
second by the act of the
United States. That all doubts,
therefore, may be removed, I
would advise an immediate repeal of all
the laws of the Terri-
tory, and that laws of some or all of
the original States be
adopted and published in their stead. In
doing the last, we shall
act in strict conformity to the spirit
and the letter of the Or-
dinance; and if the laws adopted are
disapproved by Congress, it
can only be on the ground of the
inaptitude, an objection which,
it is to be hoped, they will not be open
to. In doing the first,
we shall exercise a power expressly
conferred by law, and,
therefore, not liable to censure.
Neither does it appear to me,
gentlemen, that there can be any
inconvenience or much trouble
in the business; for all the laws that
are thought necessary may
be agreed upon and prepared, for they
will require some prepara-
tion, and their adoption go hand in hand
with the repeal of
the others. Another consideration,
gentlemen, will certainly have
some weight, as I also observed to the
former judges. Excep-
tions to the constitutional obligation
of the laws may be taken
in the courts of law, and you may find
yourselves obliged, as
judges, to decide against laws enacted
by yourselves as legislators
- an embarrassing dilemma!
In this matter as in every thing else
which can contribute
to the safety and happiness of the
people, it will ever give me
pleasure to concur with you; but should
it happen that on this
subject our sentiments continue to
differ, I will, at another time,
point out to you several laws which, in
my opinion, should be
repealed at all events, together with my
reasons for that opinion.
I will trespass, gentlemen, but a moment
longer on your patience,
while I communicate another reason why I
had much wished a
meeting at an earlier point of time. It
was produced by some
proceedings of the judges of the County
Court of Common Pleas
for the county of Hamilton. The original
commission to that
court ran without any limitation as to
its duration. The secretary
of the Territory, at a time when the
powers of the Governor
devolved upon him, for good reasons,
thought proper to issue a
new commission to that court, limited
expressly to continue in
force during pleasure. The judges of the
court had mistakenly
considered the want of limitation in the
original commission as
rendering it equivalent to one expressly
conditional to continue
in force during good behavior; and that,
of course, it could
neither be revoked nor superseded, but
in consequence of some
misdemeanor legally ascertained. They
refused to be sworn in
under the new commission, and proceed to
assemble and do
business as a court under the original
one. As their proceedings
in that case were clearly vicious, for
the new commission super-
Legislature of the Northwestern
Territory, 1795. 27
seded the former one, and as it may be
that considerable property
rests upon adjudications then made by
them, I should have recom-
mended an act to render them valid. The
power of granting
writs of habeas corpus, which is, I
believe, exclusively in the
judges of the general court, has also
been claimed, and in one
instance, as I am informed, exercised by
those judges. Al-
though, under my present impressions, I
can not now recommend,
and could not consent to a law to
sanction those proceedings,
which must, if called in question, stand
or fall upon their own
merit or demerit; yet, I think there
would be no impropriety in the
governor and judges declaring their
sense upon them both, and I
am persuaded it would have the salutary
effect to keep the ad-
ministration of justice steady and
regular, and its stream un-
disturbed.
ORDERED, That the foregoing speech be laid on the table,
for the judges to answer.
On motion of Judge Turner, ordered,
That the doors of the house be kept
open, during the session,
for the admission of such citizens as
may choose to hear the
debates.
Resolved, That a messenger be appointed.
Adjourned to meet tomorrow at 9 o'clock,
A. M.
SATURDAY, MAY 30, 1795.
Assembled, according to adjournment.
The clerk having read the minutes of
yesterday (and this
he was directed to do, daily) the
following petitions were next
read, viz.
1. A petition of Joel Williams, praying for a law to au-
thorize him to erect and hold a public
ferry, from his landing in
Cincinnati, to the opposite shore of the
Ohio.
2. A petition of Rebecca Kennedy, to vest in her the keep-
ing of a similar ferry.
3. A petition of Patrick Simpson, of
Vincennes, in the
county of Knox; praying to be enabled,
by law, to satisfy a debt,
confirmed to him by a judgment there,
out of the debtor's real
estate, by selling a proportion thereof.
4. A petition of Daniel Symmes, sheriff
of Hamilton, con-
cerning the better regulation of the
Jail, and the safe-keeping of
prisoners.
5. A petition of the judges and justices
of the courts of
common pleas and general quarter
sessions of Hamilton.
6. Another from the grand jury of that
county, in general
quarter sessions of the peace.
|
(28) |
Legislature of the Northwestern
Territory, 1795. 29
7. Another from a numerous body of
citizens, inhabitants
of the same county.
The three last petitions, prayed for
certain new laws, and
alterations in others.
8. A petition of Wm. Lemona, praying to
be divorced from
his wife.
The several petitions were ordered to
lie on the table.
Judge Symmes produced copies of the
domestic and foreign
attachment laws of New Jersey, and moved
for their adoption.
Laid on the table.
Judge Turner moved to make or adopt
nineteen laws to
the following effect. viz.:
1. A comprehensive free-bill, repealing the present laws
on
that subject.
2. An attachment law.
3. A law to regulate the practice of
inferior courts.
4. A law to subject real estates to the
payment of debts.
5. A law to extend the jurisdiction of a
single judge to 20
dollars.
6. A law abolishing imprisonment for
debt; and directing
proceedings, on the part of the
creditor, towards the recovery of
his demand, at a future day.
7. A law to alter and amend the gaming
act.
8. A law for the relief of the poor.
9. A law authoriizng the courts of the
common pleas, to
bind out, for a reasonable term, free
children born of slaves.
10. A law for erecting and establishing
houses of correc-
tion in the several counties.
11. A law to alter and amend the estray act.
12.
A law to authorize immediate execution, on
entering
up final judgment.
13. A law for the establishment of
public ferries; the rates
to be regulated by the respective courts
of quarter-sessions.
14. A divorce law.
15. A law for the naturalization of
aliens.
16. A law concerning estreats.
17. A militia law and to repeal the
present one
18. A limitation law, upon the
principles of a former law,
since disapproved of by Congress, except
as to bonds and
specialties.
19. A law to
abolish the districts of Kaskaskia, Prairie de
Rocher and Kahokia; and to extend the
jurisdiction of single
courts of common pleas, general
quarter-sessions of the peace
and probate of the county of St. Clair,
over the whole county.
ORDERED, To lie on the table.
30
Ohio Arch. and Hist. Society Publications.
The answer of Judges Symmes and Turner
to the governor's
address was presented and read.
ANSWER OF JUDGES SYMMES AND TURNER TO
THE GOVERNOR'S
SPEECH, DELIVERED IN THEIR LEGISLATIVE
CAPACITY.
We reciprocate with your Excellency that
satisfaction which
you have been pleased to express at the opportunity
that now en-
ables us to assemble in our legislative
capacity; and the more so,
since we are sensible of the
difficulties that occasionally must
occur in bringing the legislative
members, together at given times.
Permit us to congratulate you, sir, upon
seeing you again among
us.
That our codes, both civil and criminal,
are incomplete,
and that, in consequence, the people
have experienced incon-
venience is unquestionable. But nothing,
on our part, shall be
wanting to concur with you, sir, in
obviating existing defects,
and making such legislative provision in
the future as may be
most conducive to the public weal. The
opinions entertained in
the legislature of the United States, as
to the force of our Ter-
ritorial statutes, are peculiarly
entitled to consideration.
We acknowledge that the Ordinance of
1787 is the Consti-
tution of this Territory. But doubts
have arisen as to the con-
struction of it. From these doubts, and
the apparent difficulty
of selecting laws from the original
States suited, in all cases, to
the local circumstances of the
Territory, and from the words
"adopted or made," as used in
the Ordinance, we may infer that
the principle of enacting grew up
in preference to that of adopt-
ing laws. To some of us, indeed, there
appeared to be in the
Ordinance a degree of ambiguity that
might seem to justify
either the one or the other; and, though
the instrument points to
distinct periods of time, yet those
periods do not seem to be so
strongly marked or separated as not to
be open to a difference
of opinion.
That respect which is due to the
legislature of the General
Government will, however, always incline
us to pay the greatest
deference to its opinions. Your
Excellency tells us that, for
annulling certain enacting statutes of
the Territory, a bill had
lately passed in the House of
Representatives of the United
States, and was non-concurred in in the
Senate, as you are in-
formed; not from a difference of
opinion, but from a persuasion
that such statutes were ipso facto void
in themselves, and, there-
fore, improper to be declared to be an
act of that legislature.
Let us advert here to an act of Congress
passed May 8,
1792; we shall there see, if not a direct, at least an implied
recognition of the power to enact, as
exercised by the Governor
Legislature of the Northwestern
Territory, 1795. 31
and judges. Sec. I. "The laws of
the Territory of the north-
west of the River Ohio that have been or
that hereafter may be
enacted by the Governor, judges,
etc." And again, Sec. II. "The
Governor and judges of the Territory
north-west of the River
Ohio, shall be, and hereby are
authorized, to repeal the laws by
them made, etc."
Whether these clauses had any, and what
influence towards
continuing the practice of originating
laws, is not for us to say,
as one of us only was present at the
last session. But, it may
fairly be presumed, their weight would
be inconsiderable.
As it seems, sir, to be your opinion
that the legislature ought
to confine itself to the principle of
adoption alone, we are ready to
meet you on that ground, in order that
no impediment may lie
in the way of legislative duty. There
being but a bare majority
of the members assembled, unanimity now
becomes indispensable.
Without this, our legal code, by far too
inadequate, at present,
to answer the ends of good government,
would remain as it is,
and our meeting prove nugatory.
It is true, however, and we mention it
with regret, that
there are some laws of which the
Territory is in great need, but
which, from locality, we despair of
finding among those of
the original States. The chasm in this
case can only be supplied
by the authority of Congress, expressly
extended to us by statute.
But, whether that honorable body, whose
legislative functions
are of a general nature, would think it
proper to interfere in this
respect, is a question that belongs not
to us to determine.
In one of the quotations from your
correspondence with the
former judges, and with which you have
favored us in your
speech, it seems that a difference of
opinion existed as to a
negative on the laws then claimed by the Governor. You have
said, "there would be an
impropriety, at least, in leaving the
adoption of laws by which the people of
the district were to be
governed for a time, solely to the
persons who were to expound
them."
We grant the impropriety. The
time when the Ordinance
was framed, the temporary government
which it had for its
object, and the early existing
circumstances of this country, must
plead its apology. But, we would submit
to your Excellency
whether this impropriety could either be
lessened or removed by
leaving to the Governor a negative on
laws to be adopted by a
legislative body, never composed of more
than four and generally
of but three members, when he has
a right to sit as one, and as
one to debate and vote on those laws in
common with the rest ?
What does the Constitution say?
"The Governor and judges,
or a majority of them, shall adopt and publish," etc. Words, we
presume can not be stronger, let
punctuation be what it will.
32
Ohio Arch. and Hist. Society Publications.
To us, they convey a prompt, a decisive
meaning, namely, that
the three judges may assemble in the
Governor's absence and
adopt laws at discretion. Besides, sir,
the word negative is not
to be found throughout the Constitution
or Ordinance, so far
as it regards the present government.
Painful as it is for us to differ, in
any instance, with your
Excellency, yet the subject in question
being now before the
public, public duty (and, we dare say,
your own wish) requires
that our opinions should not be
suppressed.
We will recollect, sir, that when we
first had the honor to
meet you at this place in our
legislative capacity, you expressed
doubts of our constitutional power to make
laws. We remember,
too, that the best consideration we
could then give the Ordinance
inclined us to believe that the powers
either to adopt or make
laws were optional as to the
legislators. If our construction of
the Ordinance be in this respect faulty,
it must have arisen from
that seeming ambiguity we have already
noticed.
We agree that "the power of the
Governor and judges to
repeal laws by them made," is
not to be found in the Ordinance.
It was superadded, as you have observed,
by a law of the United
States. Nor do we hesitate to declare
with you, sir, that it
would be "too broad an
inference" to draw from the words "by
them made" -an implication that might contradict either the
spirit or the letter of the Ordinance. Enacted
would be a much
stronger word; it is a word of
unequivocal purport, and may be
found, as we have already shown, in the
preceding section of the
same act. We do not, however, mean to
say how far the funda-
mental principles of a compact between
the people and the gov-
ernment can be affected by subsequent
acts not sanctioned by
the consent of the former.
Cordially we unite with your Excellency
in expressing our
disapprobation of that law where a form
of process is established
that would compel a humane
creditor to imprison the body of
his debtor. The form, though borrowed
from the Massachusetts
code, is not, in our opinion, congenial
to the mild genius of the
common law; and, therefore, we shall
cheerfully concur with you
in the repeal of that part, or the whole
of the law, should it be
found needful.
Pursuant to your recommendation, we
shall join you in
taking into serious deliberation the
proposed repeal of the present
laws.
In all matters that may promote the
safety and happiness of
the people, the judges will ever be
forward to concur with the
Governor; and on this foundation we
earnestly embrace your
proposition.
Legislature of the Northwestern
Territory, 1795. 33
With you, sir, we regret that we could
not convene before
the present moment, especially as a legal question may
arise how
far the proceedings of a subordinate
court have, in the instance
to which you allude, been conformable to the limits of
their
power.
No county court, nor judge of a county
court, can issue a
habeas corpus; that writ lies from a superior power alone. But
we are sorry in not being equally
fortunate to form a concur-
rence of opinion with your own upon the
other case stated re-
specting the same judges. It has been
our uniform sentiments
that no judge of a court of record ought
to hold his commission
during pleasure; for that would sap the independence of the
bench by making him the creature of the
Executive. It would
not accord with the Constitution of the
United States; nor, we
believe, with the Constitutions
generally of the individual States.
It would be at variance with the genius
of our laws and the pro-
tection of person and property; upon
which life and liberty
greatly depend. We are persuaded your
Excellency's ideas will,
in the end, meet ours in this respect.
As we shall now cease to trespass
further on your patience
accept, again, sir, our professions of
readiness to unite, at all
times and on all occasions, in laboring
for the common weal by
transfusing into the public mind those
wholesome rules which,
while they discourage vice, promote
virtue, protect the weak
against lawless force, and deny liberty
to none but those who
shall justly forfeit it by their crimes
and the laws of the land.
Such, we trust, will ever be the objects
of a legislative body con-
vened for the purpose of providing
useful laws.
JOHN CLEVES SYMMES,
G. TURNER.
Judge Turner then gave notice if the
house should deem
itself competent to the purpose, he
would, at a future day, move
for the impeachment of Henry
Vanderburgh, judge of probate
in the county of Knox, for high
misdemeanors by him committed.
Adjournment to meet on Monday at 9
o'clock, A. M.
MONDAY, JUNE 1.
Assembled according to adjournment.
The Governor proposed, for adoption, an
act of Pennsyl-
vania, entitled, "an act for taking
lands in execution for the pay-
ment of debts." It was adopted,
under the title of "a law sub-
jecting real estate to execution for
debt."
ORDERED, That, in the the present case,
and on every future
adoption of laws, the clerk do conform
the bill to existing local-
Vol. XXX -3.
34
Ohio Arch. and Hist. Society Publications.
ities of the Territory, without
otherwise affecting the spirit of
the laws so adopted: and that he drop
all preambles and unnec-
essary or tautological phrases and words.
Judge Turner moved for the repeal of
that part of a law of
the Territory, which imposes a tax on
merchants and traders.
The motion was laid on the table.
On motion of the Governor, it was agreed
to adopt, as laws,
the first enacting clause of an act of
Pennsylvania entitled, "an
act about attachments;" beginning
at the words, "that the
justices" and thence to the end of the clause: also, that part of
another act from the same code,
entitled, "an act regulating at-
tachments"; beginning with the
first clause at the words, "that
if any person," and ending with the termination of the sixth en-
acting clause--the latter law to be
entitled "a law regulating
domestic attachments."
Moved, by Judge Turner,
That all laws and parts of laws, which
impose forfeitures
of estate for crimes be repealed.
ORDERED, To lie on the table.
Adjourned to meet tomorrow, nine
o'clock, A. M.
TUESDAY, JUNE 2.
Assembled according to adjournment.
The several petitions for extending the
jurisdiction of a
single magistrate, were made the order
of the day for tomorrow.
Charles Avery was appointed messenger,
and allowed a
dollar per diem during the session.
Adjourned to meet tomorrow, at nine
o'clock, A. M.
WEDNESDAY, JUNE 3.
Assembled according to adjournment.
Moved by the Governor that so much of an
act cf Pennsyl-
vania as is suited to the localities of
the Territory entitled, "an
act establishing courts of
judicature," be adopted as a law: and
that the Territorial laws, first for
establishing courts of general
quarter sessions of the peace; secondly
for fixing the terms
of the general court; and thirdly, for
altering the terms
thereof, be repealed.
The motion being reduced to writing, was
ordered to lie on
the table.
Proceeded to the order of the day, and
extend the jurisdic-
tion of a single magistrate, by adopting
and incorporating into
one law, certain parts of two acts in
the Pennsylvania code; one
being "an act for the better
determining of debts and demands
Legislature of the Northwestern
Territory, 1795. 35
under forty shillings, &c., the
other, "an act for the easy and
speedy recovery of small debts."
The Governor moved for the repeal of two
Territorial laws
entitled "an act prohibiting the sale of
spirituous and other in-
toxicating liquors to soldiers," &c. and
"an act to prohibit the
giving or selling intoxicating liquors
to Indians," &c.
The motion was agreed to.
On motion of Judge Turner,
Resolved, That the governour be requested to forward a
representation to Congress, expressive
of the increasing value of
the reserved public sections of land,
some of which could now be
rented for valuable considerations, to
the furtherance of religion
and education.
On motion of the governour,
It was agreed to adopt an act from the
Pennsylvania code
entitled, "an act for
defalcation." The clerk was
directed to
prepare an engrossed bill under the
title of "a law concerning
defalcation."
The consideration of the Pennsylvania
law entitled "an act
for establishing courts of
judicature" and of the proposed re-
peal of certain Territorial statutes, as
moved by the Governor
this morning, was made the order of the
day for tomorrow.
Adjourned to meet tomorrow at nine
o'clock A. M.
THURSDAY, JUNE 4.
Assembled agreeable to adjournment and
proceeded to the
order of the day.
ORDERED, That the clerk do immediately
prepare the draft
of a bill, founded on the "act for
establishing courts of judica-
ture" - paying due regard to its
application to the local circum-
stances of the Territory.
Adjourned to meet tomorrow at nine
o'clock A. M.
FRIDAY, JUNE 5.
Assembled accordingly.
The Governor proposed for adoption from
the Pennsyl-
vania code, "an act for the trial
and punishment of larceny,
under 5s."
The same being agreed to, the clerk was
directed to en-
gross a bill thereof, adding after the
words, "five shillings," the
words, equal to 150 cents.
Agreed to adopt as a law from the same
code, "an act to
prevent inconveniences arising from
delays of causes after issue
joined." The clerk was ordered to engross a bill
for the purpose,
36
Ohio Arch. and Hist. Society Publications.
under the title of "a law to
prevent unnecessary delays in causes,
after issue joined."
"An act for the limitation of
actions" taken from the same
code, was next proposed by the Governor
for adoption.
Ordered that the clerk do accordingly
prepare a bill for con-
sideration tomorrow.
On motion of Judge Turner.
Resolved, That the clerk of the Legislature be entitled to
8 cents for every hundred words he shall
write, by order of the
Legislature, in full compensation for
all services and expenses
incident to his office.
Adjourned till tomorrow, at nine o'clock
A. M.
SATURDAY, JUNE 6.
Assembled agreeable to adjournment.
A bill founded on the act of
Pennsylvania entituled, "an act
for establishing courts of
Judicature," being read and discussed
paragraph by paragraph was adopted as a
law of this Territory-
with addition to sections 2d and 6th of
an act in the same code,
entitled "an act to amend the act
entitled" "an act for establishing
courts of Judicature."
On motion of Judge Symmes.
Adjournment to meet on Wednesday at nine
o'clock A. M.
WEDNESDAY, JUNE 10.
Assembled accordingly.
The bill for the 'limitation of actions'
was produced, read,
discussed, paragraph by paragraph, and adopted
as a law. The
clerk was ordered to engross it.
Read an act from the Pennsylvania code
entituled, "an act
for the relief of such persons, as
consciensiously scruple the
taking of an oath in the common
form"; agreed to adopt the
same, beginning at the words, "all
and all manner of crimes," in
the first enacting clause, and
continuing to the words in the same
clause. "either by taking;"
and instead thereof, substituting these
words; viz., those of the people called
Quakers, by taking the
solemn affirmation, and those of the
Persuations who swear with
uplifted hand or hands, by taking an
oath, in the following words,
also after the word "oath" in
the last clause, shall be added these
words; directed by an act of the United
States, entituled, "an act
prescribing the time and manner of
administering certain oaths,"
and the oath of office.
The clerk was ordered to prepare an
engrossed bill accord-
ingly.
Legislature of the Northwestern
Territory, 1795. 37
An act of Pennsylvania, entituled,
"an act for the better
recovery of fines and forfeitures due to
the Governor and gov-
ernment of this province was proposed
for adoption, and a bill
thereof ordered to be drafted for
consideration.
Adjourned to meet again tomorrow, at
nine o'clock A. M.
THURSDAY, JUNE 11.
Assembled accordingly.
The Governor proposed for adoption, in
part, or in whole,
according to local circumstances, the
following laws of Penn-
sylvania.
1. "An act for the acknowledging and recording of
deeds."
2. A
supplement to the act, entituled, "an act for acknowl-
edging and recording of deeds."
-and
3. An act for bailing of prisoners, and
about imprison-
ment."
Copies of the foregoing acts were
directed to be made, for
farther consideration.
Read and examined two engrossed bills,
one entituled, "a law
for the relief of persons
consciensiously scrupulous to take an
oath, in the common form;" the
other, "a law for the recovery
of fines and forfeitures, &
directing how the same are to be
estreated." They were declared to
be laws, accordingly.
On motion of Judge Turner,
Resolved, That the Governor be requested to make appli-
cation to the general government for
public seals for the record-
er's offices, and the orphans' courts to
be established this sessions.
Adjourned till tomorrow 9 o'clock, A. M.
FRIDAY, JUNE 12.
Assembled according to adjournment.
Judge Turner produced a letter from the
secretary, enclosing
a demand against the Territory, for -
dollars on account
of certified copies of Territorial laws,
furnished by him, the
secretary, to certain public officers.
Laid on the table.
Read from the New York code, "an
act for relulating the
fees of the several officers and
ministers of the courts of justice."
Ordered that the clerk cause a bill,
founded on the above
act, to be engrossed; beginning at the
clause which relates to
the fees of the supreme court.
Read an act of Pennsylvania, entituled,
"an act for the bet-
ter confirmation of the estates of persons, holding or
claiming
under feme coverts, and for establishing
a mode by which hus-
band and wife may, hereafter, convey
their estates."
38
Ohio Arch. and Hist. Society Publications.
A bill thereof was ordered to be drafted
for consideration.
The consideration of the following acts
of Pennsylvania was
made the order of the day for tomorrow;
viz., "an act for raising
of county rates and levies," and
"a supplementary act to the act
for raising county rates and
levies."
ORDERED, That the clerk notify the
secretary by letter, that
the legislature will have occasion,
tomorrow morning, at 10
o'clock to examine before them the
public records filed in his
office.
Adjourned till tomorrow, 9 o'clock, A.
M.
SATURDAY, JUNE 13.
Assembled according to adjournment.
The secretary of the Territory produced
the records agree-
ably to the notification of
yesterday:-and certain parts thereof
were examined: whereupon,
On motion of Judge Turner,
Resolved, That the governor make application to the proper
authority in the United States, for a
resolution or law of Con-
gress, that shall authorize the printing
of 200 impressions of the
ordinance of congress, passed the 13th
of July, 1787 for the
Government of this territory; of such
laws of the United States
as are extended to the territory, and all treaties affecting the
same; together with the proclamations,
ordinances, and notifica-
tions subjoined. And that all similar
papers and acts may, from
time to time, be added to the copies of
the territorial laws,
to be hereafter printed in virtue of the
act of Congress passed
in 1792:
1. The governor's ordinance, erecting the county of Wash-
ington, dated July 27th, 1788.
2. His ordinance creating the county of
Hamilton, Jan-
uary 4, 1790.
3. His proclamation, concerning lands at
the Illinois, March
7, 1790.
4. Another, respecting lands there,
claimed by the seminary
of Quebec, dated April 22, 90.
5. His ordinance erecting the county of
St. Clair, April
27, 1790.
6. His order, forbidding foreigners to
commit waste on
the lands of the territory, dated, May
10, 1790.
7. His order forbidding foreigners from
hunting within
the same: the like date.
8. The secretary's ordinance erecting
the county of Knox,
June 20, 1790.
9. His ordinance towards the
preservation of the game
therein, June 28th, 1790.
Legislature of the Northwestern
Territory, 1795. 39
10. His ordinance extending the county
of Hamilton, Feb-
ruary 11, 1792.
11. His notification against committing waste on the public
or reserved sections of land, June 18,
1793.
12. The
governour's proclamation enjoining neutrality with
friendly powers &c., Dec. 7, 1793.
Two acts of Pennsylvania for raising
county rates and levies
(being the order of the day) were read;
and postponed for
farther consideration;-and
The act of Pennsylvania, for
"acknowledging and recording
of deeds" and an act supplementary
thereto, were made the
order of the day for Monday next.
Adjourned to meet on Monday at 9 o'clock
A. M.
The list of the laws, should have
appeared in our last,
according to promise-but was not handed
to the press, until
last evening, which also, prevents its
appearance this week; but
shall certainly appear in our next.
MONDAY, JUNE 15.
Assembled accordingly.
The order of the day being postponed,
the house proceeded
to the consideration of the act of New
York for regulating the
fees of the several officers and members
of the courts of justice,
passed in 1785. Having made some
progress therein, the house
adjourned to meet again tomorrow
9 o'clock, A. M.
TUESDAY, JUNE 16.
Assembled agreeably to adjournment.
Resumed the subject of the fee bill:-
Resolved, That the same be adopted, as a law regulating and
ascertaining the fees of the officers
and persons therein named,
under the modifications agreed on, as
locally applying, and in-
corporating therewith a part of an act
of Pennsylvania, called
"an act for regulating and
establishing fees".
Two acts of Pennsylvania, were next
offered for adoption,
viz. "An act for the better
settling of intestates' estates," and
"an act for establishing orphans'
courts."
Resolved, That they be adopted; beginning at the first en-
acting clause of the act first
mentioned, and continuing to the end
of the 7th clause thereof; and beginning with the first
clause of
the other, and ending with the 15th clause.
Took up two other acts of the same
state, being an act and a
supplement thereto, concerning the
recording of deeds. Post-
poned for further consideration.
Resolved, That the messenger do require the commissioners
who have granted licenses to tavern
keepers, retailers, &c., in
40
Ohio Arch. and Hist. Society Publications.
Cincinnati to appear before the
legislature tomorrow morning,
and produce statements of the licenses
by them granted.
The order of the day being called for,
some progress, but no
decision, was made thereon.
Adjourned to meet tomorrow at nine
o'clock, A. M.
WEDNESDAY, JUNE 17.
Assembled according to adjournment.
The commissioners for granting licenses
attended, and hav-
ing produced their statements, the same
were perused and filed.
Whereupon, the following resolution was
moved for by
Judge Turner, and ordered to be entered
on the minutes: -
Resolved, That a number of taverns, inns and tippling-houses
at present in the town of Cincinnati,
are nuisances injurious to
the morals of the people, and contrary
to the spirit of legal regu-
lations; which could not be intended to
countenance any abuse. -
Resolved, therefore, That the clerk do cause the above
resolution to be published in the Centinel
of the North-Western
Territory.
The Governor then proposed for adoption,
two laws of
Pennsylvania, viz.: "An act that no
public house or inn be kept
without license" and an act
supplementary thereto.
Both were accordingly adopted, into one
law, by the title
of "a law to license and regulate
taverns."
Read the following petitions, viz.:
1. Read a petition from Martha, the wife of Wm. Lemond,
stating many abuses alleged to have been
imposed on her by the
husband - and praying relief.
2. A
petition from Samuel Freeman, praying authority to
keep a public ferry at Cincinnati.
These petitions were laid on the table.
Read from the Pennsylvanian code, at the
instance of the
Governour, "an act for bailing of
prisoners, and about imprison-
ment."
ORDERED,
That it lie on the table for future
consideration.
The acts concerning the acknowledging
and recording of
deeds were again taken up, but no
decision was had thereon.
Adjourned to meet tomorrow at 9 o'clock,
A. M.
THURSDAY, JUNE 18.
Assembled accordingly.
And resumed the consideration of the
acts respecting the
acknowledging and recording of deeds.
The same were adopted
into one law, omitting various clauses
in both, under the title of
"a law establishing the Recorder's Office."
Legislature of the Northwestern
Territory, 1795. 41
The Pennsylvanian acts for raising
county rates and levies,
the order of the day on Saturday last,
were again taken up and
discussed; but no resolution was had
thereon.
Adjourned till tomorrow, 9 o'clock, A.
M.
FRIDAY, JUNE 19.
Assembled according to adjournment.
ORDERED, That the clerk prepare bills
founded on the Penn-
sylvanian act for raising county rates
and levies, and the act for
the relief of the poor, beginning at the
5th, and ending with the
11th clause of the former; and of the
latter ending with the
33d clause, with certain omissions. The
same were declared to be
so adopted as laws of this Territory.
"An act concerning the probate of
written and nuncupative
wills, and confirming devises of
land," was next adopted from
the same code, by the title of "a
law concerning the probate of
wills, written or nuncupative";
beginning at the first, omitting the
6th and ending with the 7th clause
thereof.
On motion of Judge Symmes,
Adjourned to meet on Wednesday next at
10 o'clock A. M.
WEDNESDAY, JUNE 24.
Assembled according to adjournment: but
a quorum not
appearing, adjourned till tomorrow, 9
o'clock A. M.
THURSDAY, JUNE 25.
Read a petition from Eleanor, widow of
the late Captain
Andrew Heth, praying for an exclusive
right to keep a public
ferry at Clarksville, on the Ohio, in
the county of Knox.
Laid on the table.
Read, and laid on the table; an estimate
of incidental ex-
penses for the county of Hamilton,
between November last and
November ensuing, amounting to 100
dollars: communicated
from the quarter-sessions according to
law.
0n act of Pennsylvania, "for
regulating and maintaining of
fences," was read, discussed and adopted
under the title of "a
law regulating enclosures."
ORDERED, That the clerk prepare a bill,
founded on a law of
Pennsylvania entituled, "an act
directing the order of payment
of debts of persons deceased:" and
that the same be laid before
the house tomorrow.
Received an account from John S. Gano
& Co. for two folio
bound blank books, intended for the use of the General
Court,
amounting to forty dollars. The same was
allowed and filed.
42 Ohio Arch. and Hist. Society Publications.
Read, the law of Pennsylvania,
entituled, "an act concerning
cattle, horses and sheep trespassing
within this province".
ORDERED, That the clerk prepare and
found a bill thereon.
Adjourned to meet tomorrow, 9 o'clock,
A. M.
FRIDAY, JUNE 26.
Assembled accordingly.
Examined and discussed two bills,
founded on the Pennsyl-
vanian act, "directing the order of
payment of debts" and the
"the act concerning cattle, horses
and sheep trespassing," &c.
Resolved, That the same are adopted as laws the latter to be
under the title of "a law
concerning trespassing animals."
Proceeded to the discussion of another
law of that state,
viz.: "An act for the better
confirmation of the estates of persons
holding or claiming under feme coverts,
and for establishing
a mode by which husband and wife may
hereafter convey their
estates."
Resolved, That the same be adopted, (beginning at the second
enacting clause) under the title of
"a law directing how husband
and wife may convey their estates."
Adjourned till tomorrow 9 o'clock, A. M.
SATURDAY, JUNE 27.
Assembled according to adjournment.
Resumed the discussion of the act
concerning county rates
and levies; and referred it for further
consideration.
On motion of Judge Symmes,
Adjourned to meet on Monday, July 6th at
9 o'clock A. M.
MONDAY, JULY 6.
Assembled according to adjournment; but,
a quorum not
appearing, adjourned from day to day,
till
TUESDAY, JULY 14.
Then assembled according to adjournment.
Judge Turner proposed 23 certain laws
for adoption, in part
or in whole, as should appear to be requisite. - they
were taken
into consideration, and the following adopted from the
Massa-
chusetts code, viz.:
1. A law for the speedy assignment of
dower: leaving out
the forms of process, and omitting the word
"strip" wherever it
occurs in the original law.
2. A law giving remedies in equity in
certain cases; to con-
clude at the words "equity and good
conscience".
Legislature of the Northwestern
Territory, 1795. 43
3. A law against forcible entry and
detainer. The word
proceedings, to be substituted for "doings" and
"quorum unus"
to be omitted throughout.
4. A law annulling the distinction
between petit treason
and murder - and
5. A law declaring what laws shall be in
force; taken
from the Virginian code.
ORDERED, That the clerk prepare engrossed bills accordingly.
The Governor brought forward, from the
Pennsylvanian
code "a law to restrain trespassers
from cutting down timber
trees." The same was adopted under
the title of "a law to pre-
vent trespassing by cutting of
timber" - with the following modi-
fications, viz.: After the words
"black walnut," insert, wild-
cherry, blue-ash, or poplar tree; and proceed to read, "he
shall
forfeit to the owner thereof "eight
dollars," and for every other
tree "three dollars."
Ordered to be engrossed accordingly.
Read, and laid on the table, a petition
from Mary Starkey,
an imprisoned debtor, praying for
relief.
ORDERED, That an act be immediately
engrossed, and en-
tituled "an act repealing certain
laws and acts, and parts of laws
and acts."
At the instance of the house, William
Maxwell, of Cin-
cinnati, preferred his proposals for
printing a correct edition of
the laws, in quarto. He exhibited an
estimate of the expense for
500 copies, amounting, at the rate of
250 cents per half sheet,
to 226 dollars, 125 whereof being
charged for setting up the
types. - Whereupon
Resolved, That the said William Maxwell, is hereby author-
ized to print and publish 1000 copies of
the laws of the present
session, letter for letter with the
original records; and that the
legislature will take 200 copies thereof after the rate above men-
tioned, and allowing the printer the
proportion of one-fifth part
of the aforesaid sum of 125 dollars.
Adjourned to meet tomorrow morning at 9
o'clock.
WEDNESDAY, JULY 15.
Assembled according to adjournment, and,
resuming the
consideration of the laws proposed
yesterday, the following were
declared to be adopted:
1. A law respecting Divorce: extracted from the Massa-
chusetts code.
2. A law for the partition of Lands;
taken from the New
York code, omitting the clauses 2, 11, 12, 13, and 14.
44
Ohio Arch. and Hist. Society Publications.
3. A law allowing foreign attachments
taken from the N.
Jersey code.
Bills were accordingly, directed to be
engrossed.
Adjourned to meet tomorrow 9 o'clock A.
M.
THURSDAY,
JULY 16.
Assembled pursuant to adjournment and
resumed the con-
sideration of the remaining laws
proposed on Tuesday. The
following were in consequence adopted,
viz.:
1. A law concerning the duty and power of coroners;
taken from the Massachusetts code.
2. A
law for continuing suits in the General and Circuit
courts; extracted from the Virginian
code.
3. A law to suppress gaming; from the
same code.
The clerk was directed to engross bills
thereof.
Adjourned till tomorrow morning at 9
o'clock.
FRIDAY, JULY 17.
Assembled accordingly.
The Governor proposed, for adoption,
from the Pennsyl-
vanian code "an act for the sale of
goods distrained for rent."
&c.
The same was adopted, under certain
modifications and en-
tituled "a law as to proceedings in
Ejectment, Distress for rent
and tenants at will holding over."
Examined engrossed bills.
Adjourned to meet tomorrow morning
9'oclock.
SATURDAY, JULY 18.
Assembled accordingly; resumed the
examination of en-
grossed bills, and adjourned to meet on
Monday at half an hour
past 8 o'clock A. M.
MONDAY, JULY 20.
Assembled according to adjournment.
Resolved, That the county treasurer of Hamilton be notified
by the clerk to render his accounts, for
the inspection of the
legislature as required by law.
Read a petition from George Gordon,
coroner of Hamilton,
accompanied with sundry accounts, for
monies disbursed by
him, in the execution of his office, or for which he is
liable,
amounting to 115 dollars, 48 cents:
whereupon the following
resolution was had, viz.:
By the Governor and Judges, in their
Legislative capacity,
Legislature of the Northwestern
Territory, 1795. 45
Resolved, That the treasurer of the county of Hamilton do
pay, and he is hereby authorized to pay
to George Gordon, Esq.,
coroner of the said county of Hamilton,
above mentioned, the
sum of 115 dollars and 48 cents: for
which a transcript of this
resolution, attested by the Governor,
shall be a sufficient warrant.
Adjourned to meet tomorrow morning, at
half past 8 o'clock.
TUESDAY, JULY 21.
Assembled accordingly, and resumed the
examination of
engrossed bills.
On motion of Judge Turner,
Adjourned to meet on Thursday morning,
at the same hour.
THURSDAY, JULY 23.
Assembled accordingly, and proceeded to
the examination of
engrossed bills.
On motion of Judge Symmes,
Adjourned till half past 8 in the
morning of
WEDNESDAY, JULY 29.
Assembled; but there not being a quorum,
adjourned from
day to day till
FRIDAY, JULY 31.
Then assembled, and resumed the
examination of engrossed
bills.
ORDERED, That a fair and accurate copy
of the laws, adopted
during the present session, be made for
the use of the Press.
Ezra Fitz-Freeman having signified his
inclination to take
upon him this business, and to wait for
compensation till the
treasury can discharge the same.
Resolved, That Mr. Freeman, is accordingly appointed.
Adjourned to meet tomorrow morning at
half an hour past 8
o'clock.
SATURDAY, AUGUST 1.
Assembled accordingly, when the
following petitions were
received and read.
1. The petition of Darius Curtis Orcutt, for leave to keep
a public ferry on the Great Miami, where the public
road from
Cincinnati to Greenville crosses the
said river.
2. The petition of Andrew Christie,
for leave to keep a
ferry at the same place.
3. The petition of Stephen Cisna, an
imprisoned debtor,
stating his insolvency, and praying
relief.
46
Ohio Arch. and Hist. Society Publications.
Ordered to lie on the table.
Stephen Wood, treasurer of Hamilton,
presented his public
accounts for inspection.
ORDERED, That the said treasurer have
leave to withdraw
his books to give them a more official
form; and that he produce,
during this session, a true and
certified copy of the entries, under
the modification required, to be placed
on the clerk's files.
Resumed the examination of engrossed
bills.
Adjourned to meet on Monday, at half an
hour past 8 A. M.
MONDAY, AUGUST 3.
Assembled accordingly.
Received and read an account from Wm.
Maxwell for print-
ing and advertising at different times,
the Governor's procla-
mations, amounting to 31 dollars.
Laid on the table.
Resumed the examination of engrossed
bills.
Adjourned to meet at the usual hour
tomorrow.
TUESDAY, AUGUST 4.
Assembled accordingly and proceeded to
the examination of
engrossed bills.
Adjourned to meet tomorrow at the usual
hour tomorrow.
WEDNESDAY, AUGUST 5.
Assembled at the appointed time, and
took up engrossed
bills for examination.
The Territorial seal and the signatures
of the Governor
and judges were set to the law
subjecting real estate to execution
for debt;
The law allowing Domestic Attachments,
and
The law further regulating Domestic
Attachments;
To take effect on and from the 15th
instant.
Adjourned to meet tomorrow, at 9
o'clock, A. M.
THURSDAY, AUGUST 6.
Assembled at the hour appointed.
The treasurer of Hamilton attended with
his public ac-
counts. Some of the vouchers (among
other things) appearing
to be insufficient.
Resolved, That the treasurer have leave to withdraw his
accounts and vouchers, to amend and
perfect the same.
It appearing, also, that certain monies
had been paid from the
county treasury, on orders not warranted
by law, such as mileage
for constables, &c.
Legislature of the Northwestern
Territory, 1795. 47
Resolved, That such charges cannot be allowed.
Examined some engrossed bills, and
adjourned to meet to-
morrow morning at 9 o'clock.
FRIDAY, AUGUST 7.
Assembled accordingly, and re-examined
certain engrossed
bills.
On motion of Judge Turner,
Resolved, That the Minutes of the Legislature, together with
the accounts of the public treasurers,
be published, as exhibited
from time to time, by any printer willing
to print and publish
the same for his own emolument, but at his own expense.
The treasurer of Hamilton again produced
his accounts,
together with certain vouchers of disbursements, now
perfected
that were, yesterday, deficient to the amount of 1024 dollars and
40 cents. The account now stands, in the
aggregate, thus:
Dr..........The County of Hamilton
To disbursements on sundry orders
......... 2,049:3
To commissions on 2.527:65 2-3 at 5 per
cent
................................
126:7
2,175:IO
Cr. By vallance remaining in the
treasury.. 392:39 2-3
Dollars 2,567:49 2-3
Cr.......The County of Hamilton by
receipts
from sundry officers .............. 2,527:65 2-3
Resolved, That the above balance of 392 dollars and 39 2-3
cents remains due partly to the
Territory, and partly to the county
of Hamilton; and that the treasurer's
statement, as now rendered,
and placed upon the files, be, and the
same hereby is allowed.
Adjourned to meet in the afternoon at
four o'clock.
Assembled accordingly.
Sealed & signed 19 engrossed
bills, and declared the same
to be laws of the Territory; to take
effect at the respective periods
therein mentioned, viz:
1. The law concerning defalcation.
2. The law for the trial and punishment
of larceny, under
a dollar and a half.
3. The law to prevent unnecessary delays
in causes, after
issue joined.
4. The law establishing courts of
judicature.
5. The law for the limitation of
actions.
48
Ohio Arch. and Hist. Society Publications.
6. The law for the relief of persons
conscienciously
scrupulous to take an oath, in the
common form.
7. The law for the recovery of fines and
forfeitures; and
directing how the same are to be
estreated.
8. The law ascertaining and regulating
the fees of the
several officers and persons therein named.
9. The law for the settlement of
intestates' estates.
10. The law establishing orphans'
courts.
11 . The law to license and
regulate taverns.
12. The law establishing the recorder's
office.
13. The law for raising county rates and
levies.
14. The law for the relief of the poor.
15. The law concerning the probate of
wills written or
nuncupative.
16. The law regulating enclosures.
17. The law as to the order of paying
debts of persons
deceased.
18. The law to suppress gaming.
19. The law for
the partition of lands.
Adjourned to meet tomorrow morning at 9
o'clock.
SATURDAY, AUGUST 8.
Assembled accordingly, examined bills,
and adjourned to
meet in the afternoon.
Met in consequence, and resumed the
examination of the
bills.
Adjourned till Monday morning, 9
o'clock.
MONDAY, AUGUST 10.
Assembled according to adjournment.
Read and laid on the table for further
consideration, certain
bills, framed on the Pennsylvanian code.
Adjourned to meet tomorrow at 9 o'clock,
A. M.
TUESDAY, AUGUST 11.
Signed the following, sealed bills, the
1st, 3d, 4th, and 6th
to take effect as laws on and from the
1st of October next; the
2d and 5th on and from the 15th instant.
1. The law concerning trespassing animals;
2. The law directing how husband and
wife may convey
their estates;
3. The law for the speedy assignment of
dower.
4. The law giving remedies in equity.
5. The law concerning forcible entry and
detainer;--and
Legislature of the Northwestern
Territory, 1795. 49
6. The law annulling the distinction
between petit treason
and murder.
Proceeding to the examination of
engrossed bills, certain
alterations were agreed upon, which the
clerk was directed to
make by tomorrow.
Adjourned till 9 o'clock, A. M. of
WEDNESDAY, AUGUST 12.
Judge Symmes produced the draught of a
bill for limiting
imprisonment for debt, and subjecting
certain debtors and de-
linquents to servitude- Discussed and a
copy ordered to be
engrossed.
"The law limiting imprisonment for
debt and subjecting
certain debtors and delinquents to
servitude."
Adjourned to meet tomorrow morning at 9
o'clock.
THURSDAY, AUGUST 13.
Asembled accordingly.
Resolved, As the sense of this legislative body, that public
convenience requires that the governor
should cause public
ferries to be established. And whereas
no law, concerning ferries
-can be found for adoption, but such as
are of a local, not
general nature; & it being
essentially requisite, that ferries should
immediately be established throughout
the Territory, and a mode
directed for fixing the rates of
ferriage,
Resolved, therefore, That the governor be requested, to
declare, by proclamation or otherwise,
from time to time, what
ferries shall be erected, by whom to be
kept, and where:
Resolved, also, That the several courts of quarter sessions
be empowered, and they are hereby
authorized and empowered
to fix, from time to time, the rates to
be demanded at the ferries
now or hereafter to be established in
their respective counties,
having regard to the distance which such
ferry boats have to
travel, & the danger or difficulties
incident to the same.
AUGUST 15.
Assembled accordingly.
Judge Turner moved and it was agreed to,
that all resolu-
tions, operating as laws, be from time
to time printed and added
to the laws,
by way of appendix.
Vol. XXX -4.
50
Ohio Arch. and Hist. Society Publications.
APPENDIX
No minutes of this legislature for dates
subsequent to August
15, 1795, were published in the Centinel
of the North Western
Territory. The following resolutions, adopted on the respective
dates, appear in the appendix to the "Maxwell
Code".
Tuesday, August 18.
Resolved,
That where persons sufficiently learned
in the law can be
found to fill the benches of the courts
of Common Pleas, it
would be the safer way to commission
them during good be-
haviour.
Resolved,
That commissions issued by the Governor,
and creating no
express condition or limitation as to
the duration of the office,
are in the nature of a grant, and must
be taken most favourable
for the grantor,
Resolved, therefore,
That all such commissions may, be
express revocation, be
avoided or revoked.
Thursday, August 20.
On motion of the Governor.
Whereas it has been represented to the
Legislature, that
from a change in the population of the
county of St. Clair, the
district of Prairie du Rocher, is become
inconvenient, and that
the courts therein cannot be kept up.
Resolved,
That the Governor may, if he shall find
the case to be as has
been represented dissolve, by
proclamation, the said district of
Prairie du Rocher, and suppress the
several courts directed to
be held therein and divide the said
district in the most con-
venient manner for the inhabitants:
adding one part to, and in-
corporating the same with the district
of Kahokia, and the other
part with the district of Kaskaskia.
TITLES OF LAWS PASSED AND DATE OF
PUBLICATION.
1. Subjecting real estate to execution for debt. (Pub. June
1. Took effect August 15.)
2. Regulating
domestic attachments. (Pub. June 1. Took
effect August 15.)
3. For the easy and speedy recovery of
small debts. (Pub.
June 3. Took effect October 1.)
Legislature of the Northwestern
Territory, 1795. 51
4. Concerning defalcation. (Pub. June 5. Took effect
August 15.)
5. To prevent unnecessary delays in
causes, after issue
joined. (Pub. June 5. Took effect
August 15.)
6. Establishing courts of judicature. (Pub.
June 6. Took
effect August 15.)
7. For the limitation of actions. (Pub.
June 10. Took
effect October 1.)
8. For the relief of persons
conscientiously scrupulous to
take an oath in the common form. (Pub.
June 11. Took effect
October 1.)
9. For the recovery of fines and
forfeitures, and directing
how the same are to be estreated. (Pub.
June 11. Took effect
June 11.)
10. Ascertaining and regulating the fees
of the several
officers and persons therein named. (Pub.
June 16. Took effect
October 1.)
11. For establishing orphans' courts. (Pub. June 16. Took
effect October 1.)
12.
For the settlement of intestates' estates.
(Pub. June
16. Took effect August 15.)
13. To license and regulate taverns. (Pub. June 17. Took
effect August 15.)
14. Establishing the recorder's
office. (Pub. June 18.
Took effect August 1.)
15. For raising county rates and levies.
(Pub. June 19.
Took effect October 1.)
16. For the relief of the poor. (Pub.
June 19. Took ef-
fect October 1.)
17. Concerning the probate of wills,
written or nunciative.
(Pub. June 19. Took effect October 1.)
18. Regulating inclosures. (Pub. June
25. Took effect
October 1.)
19. As to the
order of paying debts of persons deceased.
(Pub. June 26. Took immediate
effect.)
20.
Concerning trespassing animals. (Pub.
June 26. Took
effect October 1.)
21. Directing how husband and wife may
convey their
estates. (Pub. June 26. Took effect
August 15.)
22. For the speedy assignment of dower. (Pub.
July 14.
Took effect October 1.)
23. Giving remedies in equity, in
certain cases. (Pub. July
14. Took effect September 1.)
24. Annulling the distinction between
petit treason and
murder. (Pub. July 14. Took effect October 1.)
52
Ohio Arch. and Hist. Society Publications.
25. Declaring what laws shall be in
force. (Pub. July 14.
Took effect October 1.)
26. To prevent trespassing by cutting of
timber. (Pub.
July 14. Took effect August 15.)
27. Repealing certain laws and acts, and parts of laws and
acts. (Pub. July 14. Took effect August 14.)
28. Respecting divorce. (Pub. July 15. Took effect October
1.)
29. For
the partition of lands. (Pub. June 17. Took ef-
fect October 1.)
30.
Allowing foreign attachments. (Pub. July 15. Took
effect October 1.)
31. Concerning the duty and power of
coroners. (Pub.
July 16. Took effect August 15.)
32. For continuing suits in the general
and circuit courts.
(Pub. July 16. Took immediate
effect.)
33. To suppress gaming. (Pub. July 16. Took effect
October 1.)
34. As to proceedings in ejectment,
distress for rent, and
tenants at will holding over. (Pub.
July 17. Took effect Octo-
ber 1.)
35. Limiting imprisonment for debt, and
subjecting cer-
tain debtors and delinquents to
servitude. (Pub. August 15.
Took effect August 15.)
PROPOSALS,
For Printing by Subscription,
The LAWS of the TERRITORY,
To be Adopted in the Present Session
Of the Legislature.
N. B. W. Maxwell being appointed by the
legislature to
Print for them 200 Copies of their Laws,
he thinks it
would be greatly conducive towards the
instruction and
common benefit of all the Citizens to
extend the im-
pression to 1000 Copies, so that he may
have the re-
maining 800 on hand for distribution at
a moderate
Price.
CONDITIONS.
1. The Laws will be printed with a legible Type, on Good
Paper, in Quarto. Marginal notes will be
given.
2. This Edition will come out by Authority, and under the
correcting hand of a proper person
appointed by the Legislature,
Legislature of the Northwestern
Territory, 1795. 53
to see that the impression is letter for
letter with the Original
Records.
3. It is presumable the whole may be
comprized within
300, perhaps even 200 pages- The price, in Boards, to Sub-
scribers, will be at the rate of
Nineteen Cents for every 50
Pages, and to the Non Subscribers,
Thirty Cents.
4. The work will in a few days be put to
Press, and de-
livered to the Subscribers with all possible dispatch.
SUBSCRIBERS
For the
LAWS,
of the
TERRITORY
Are requested to call for their Copies.-
They will much
oblige the Printer if they provide
themselves with the necessary
change, (which will be 86 cents) -as he
is determined on the
present occasion to keep no books.
Printing-Office, Cincinnati,
March 11, 1796.