Montgomery County, Ohio - Biographical sketches, 1882 (part 6 of 6)

The first acts of Territorial legislation wei'e 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without the slightest disposition to abuse it, may be inferred from the fact that except two, which had been previously repealed, they were all confirmed by the first Territorial Legislature.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 dii'ected 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 laws, 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

The other laws of 1795 Avere principally derived from the statute hook ol 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 f 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 oi'dinance of 1787 prevades them all. Who can estimate the benefits which have flowdd 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 t 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 j, 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 pro- (J during 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 J: States. All these springs of growth and advancement are permanent, and upon a most gratifying prospect of the future. They pi'omise 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.

Part First

Chapters I to XII inclusive, and the article on the Mexican war in Chapter XIII of the general history of Montgomery County, and Chapters I to V inclusive, on the city of Dayton, are from the pen of Ashley Brown, of Dayton.