º º -º-º-º-º-º-º-º-º-º-º- -º-º: -- º | º -- º - º º º º: º º - º º º º º º º º º: º º - º -- º º º: º - - º º º º º º º º º º º º º º º: º º º - - º º º º º º º: º . º º --- iſ º º º -º-º-º: ºº:: º º - º - º º º º º -T º º º º º º º Fº º º noºp McDolº º | º | | A STUDY IN CONSTITUTION MAKING – OHIO, 1802 – 1874 A dissertation submittenin partial fulfillment of the requirements for the degree of Doctor of Philosophy in the University of Michigan. Howard McI)onald, April 29, 1916. Bibliography American Political Science Review. A group of articles deal- ing with state organization; vol. 9, pp. 252–304, May, 1915. Also vol. 6, pp. 573-576 and vol. 7, pp. 639-650 Annals of Congress Atwater, Caleb, A History of the State of Ohio, Mat- ural and Civil, Cincinnati, 1838. Beard, Charles Austin, An Economic Interpretation of the Con- stitution of the United States, New York, 1913. Bradford, Gamaliel, Reform of our State Governments, Annals of the American Academy of Political and Social Science, vol. 4, pp. 884 fif. Brennan, J. Fletcher, Biographical Cyclopaedia and Portrait Gallery of Distinguished Men, with an Historical Sketch of the State of Ohio, Cincinnati, 1879. Bryce, James, The American Commonwealth, New York, The Abridged Edition of 1914. Burnet, Jacob, Notes on the Early Settlement of the Northwest Territory, Cincinnati, 1848. Chaddock, Robert E. , Ohio Before 1850, Columbia Univers- ity Studies, 1908. Chase, Salmon P. , Statutes of Ohio, 3 vol., Cincinnati, 1833. Cole, Frank F. , Biography of Thomas Worthington, Ohio Archaeological and Historical Publications, vol. 3, pp. 339-374, (1903). Cooley, Thomas M. The General Principles of Consti- tutional Taw, Boston, 1898. Cushman, Robert E. , Woting Organic Taws, Political Sci- ence Quarterly, June, 1913. Cutler, Julia Perkins, Ilife and Times of Ephraim Cutler, Cincinnati, 1890. Prepared from his Journal and Correspondence. Cutler, Julia P. and William P. , Trife of Reverend Manasseh Cutler. - Dawes, E. C. , Life of William P. Cutler. (Bound with The Life and Times of Ephraim Cutler). Dealey, James Quayle, Our State Constitutions, Annals of the American Academy of Political and Social Science, vol. 29. - Growth of American State Constitu- tions, Boston, 1915. Dial, D. W. , Internal Improvements in Ohio, Ohio Archaeological and Historical Society Pub- lications, vol. 13, pp. 479 fif. Dodd, Walter Fairleigh, The Revision and Amendment of State Constitutions, The Johns Hopkins Press, 1910. Douglas, Albert, Major General Arthur St. Clair, Ohio Archaeological and Historical Society Publi- cations, vol. 16, pp. 455-476. Dykstra, C. A. , Reorganization of State Government in Kansas, American Political Science Review, vol. 9, pp. 264 ff. Ellis, Wade H. , The Ohio Municipal Code, Cincinnati, 1909. Elson, Henry W. , The Fourt;h Constitutional Convention of Ohio, Review of Reviews, vol. 45, pp. 337-340 Executive Document S of Ohio. Federalist, The , Edited by John C. Hamilton, Phila- deiphia, 1886. (References to this edition) Finley, J. H. and Sanderson, J. F., The American Executive and Executive Methods, New York, 1908. Fiske, John, The Critical Period of American History, Boston, 1888. Ford, Henry Jones, The Rise and Growth of American Politics, New York, 1898. Fairlie, J. A. , Essays in Municipal Administration, - Local Government in the United States, New York, 1904. General Code of Ohio, 1910. Gilkey, E. H. , The Ohio Hundred Year Book, 1901. Gilmore, William Edward, Life of Edward Tiffin, Chillicothe, Ohio, 1897. Godkin, E. L., The Decline of Legislatures, Atlantic Monthly, vol. 80, pp. 35 ff. (July, 1897) Gouge, William M. , History of Paper Money and Banking, Philadelphia, 1832. Hockett, H. C., Federalism and the West, (bound with Essays in American History) New York, 1910. Howe, Henry, - Historical Collections of Ohio, Centennial Edition, 1896. James, J. A. and Sanford, A. H. , Government in State and Nation, New York, 1903. Jameson, John Alexander, Constitutional Conventions, New York and Chicago, 1867, 4th edition, 1887. Jameson, J. Franklin, Introduction to the Constitutional and Political History of the States, Johns Hopkins Studies, vol. 4, pp. 185 fif, 1886. Jones, Chester Lloyd, Statute Law Making in the United States, Boston, 1912. Journals of the House and Senate of the Ohio General Assembly. (Published Annually) Journal of the Convention of 1802. original very rare. Reprinted in Ohio Archaeological and Historical Publications, vol. 5, pp. 80-132. Published also with the Senate Journal for 1827 and in Appendix to House Journal for 1848–1849. Journal of the Convention of 1850–1851. (Two volumes). Journal of the Convention of 1873-1874. (Four volumes). Journal of the Convention of 1912. (Two volumes). Journals of the Constitutional Conventions of other States. Kales, Albert M., Unpopular Government in the United States, Chicago, 1914. - King, Rufus, Ohio, First Fruits of the Ordinance of 1787, (American Commonwealth's Series) Boston, 1899. Tians of Ohio. One volume published after each General Assem- bly containing the legislative acts of that As- sembly. - Lobingier, Charles Summer, The Peoples' Law, a Popular Partic- ipation in Law Making, New York, 1909. Loyd, William H. , The Early Courts of Pennsylvania, Boston, 1910. McBride, James, Pioneer Biography, two volumes, Cincinnati, 1869. McClintock, William, Ohio's Birth Struggle, Ohio Archaeolog- ical and Historical Society Publications, vol. 11, pp. 44-70, (1902-3). McMaster#, John Bach, History of the People of the United States • Mansfield, E. D. , Personal Memories, 1803-1843, Cin- c innati • Mart, Zloff, G. L. Caleb Atwater, Ohio Archaeological and Historical Society Publications, vol. 14, pp. 247 ff. Ohio in the Mexican War, Ohio Archae- ological and Historical Society Publications, vol. 21, pp. 288 fif. Massie, David Meade, Life of Nathaniel Massie, Cincinnati, 1896. Mathews, J. M., The New Stateism, North American Review, 1911, pp. 308-315. Medary, Samuel, The New Constitution, 1849. Morey, William Carey, The Genesis of a Written Constitu- tion, Annals of the American Academy of Political and Social Science, vol. 4, pp. 201 ff. - Munro, William B. , The Government of American Cities, New York, 1912. Newman, J. H. , Organic Ilaw of Ohio, Columbus, 1913. A Digest of State Constitutions, Columbus, 1912. - Oberholtzer, Ellis P. , The Referendum in America, New York, 1900. Ohio Archaeological and Historical Society Publications. Ohio Constitution, The, North American Review, vol. 197, pp. 275-280. Orth, Samuel P. , The Municipal Situation in Ohio, Forum, June, 1902. - The Centralization of Administra- tion in Ohio, Columbia University Studies, 1902. -- Patterson, Isaac F. , The Constitutions of Ohio and Allied Documents, Cleveland, 1912. - Poore, Benjamin P. , The Federal and State Constitu- tions, Washington, 1877. Private Memoir of Thomas Worthington (by his daughter) Cincinnati, 1882. Quillin, Frank U. , The Color Line in Ohio, Michigan University, 1913. Randall, E. O. and Ryan, D. J., A History of Ohio, (5 vols. ). Reed, Randall and Greene, Bench and Bar of Ohio, Chicago, 1897. Reemelin, Charles, Life of Charles Reemelin, (Autobiography) Cincinnati, 1892. Reports of the Supreme Court of the United States. Reports of the Supreme Court of the State of Ohio, (Ohio re- ports and Ohio State Reports). Ryan, D. J. , The First Constitution, Ohio Archae- ological and Historical Publications, vol. 12, pp. 11 ff. Schouler, James, Constitutional Studies, State and Federal, New York, 1897. Smith, J. Austin, The Spirit of American Government, New York, 1907. Smith, William Henry, The St. Clair Papers, Cincinnati, 1882. Statutes of the United States at Large. Boston, 1848. Stephenson, R. T., Race Distinctions in American Law. Stimson, Frederick J. , The Law of the Federal and State Constitutions, Boston, 1908. Swan, Joseph R. , Statutes of Ohio. Taylor, William A. , Ohio Statesmen and Annals of Progress, Columbus, Ohio, 1899. Taylor, Hannis, The Origin and Growth of the English Constitution, (2 vol.) Boston, 1889. Thorpe, Francis Newton, The Federal and State Constitutions, Washington, 1909. Turner, Frederick J. , The Rise of the New West, New York, 1906. Walker, Charles Manning, History of Athens County and the First Settlement of the State at Marietta, Cincinnati, 1869. Wilson, Woodrow, The State, (Revised edition) Boston, 1909. Congressional Government, Boston, 1885. Newspapers Consulted. Chillico the Supporter Cincinnati Gazette The Cincinnati Nonpareil Cincinnati Commercial Cincinnati Enquirer Cincinnati. Advertiser Cleveland Herald Cleveland Plain Dealer Columbus Gazette Hamilton Intelligencer Morgan Herald (now the McConnellsville Herald) Ohio Statesman (Columbus) Ohio State Journal (Columbus) Niles National Register Western Spy (Cincinnati) The Zanesville Gazette The Zarlesville Courier TABLE O T C O N T E N T S The Preface 1. The First Convention 6 The Struggle for Statehood 6 The Ordinance of 1787 7 The Terms of the Enabling Act 8 The Selection of Delegates for the Convention 9 The Assembling of the Delegates LO The Character and Ability of the Delegates 12 Source Material as to the Work of the Convention 21 The Committees of the Convention 22 The Organization of the Convention 23 The Decision to Draft a Constitution 25 The Legislative Department 26 Indebtedness to Other Constitutions 26 The Supremacy of the Legislative Department 28 Points of Disagreement. Among the Delegates 29 Comparisons with the Constitutions of 6ther States 3O The Executive Department 31, The Powers of the Executive 31 His Weakness-The Absence of the Weto 32 Great Similarity to the Provisions of the Tennessee Constitution 33 The Judiciary Article 36 The System Described 36 The Struggle over this Article 37 The Plan as Adopted Compared with that of oth- er States - 4l Qualifications of Electors 42 The Bill of Rights 43 Its Gerheral Character 43 The Prohibition of Slavery 45 Miscellaneous Articles 48 The Question of Popular Ratification 49 The Terms of the Enabling Act Rejected 53 The Inaugurating of the New Government 55 The Second Convention The Political Spirit at the Middle of the Century An Epidemic of Constitutional Revision The Character of the Constitutional Changes Efforts Looking Toward Revision of the Ohio Constitution The Referendum of 1819 Further Efforts for Revision, 1820–1848 Caleb Atwater's Attitude Toward Revision The The The The Tegislature Finally votes for Submission Campaign for Popular Ratification Personnel of the Convention Political Philosophy of the Convention The Character of a Constitution The Democracy of the Convention The individualism of the Delegates The Separation of Governmental Powers The Doctrine of Natural Rights The Social Compact The Relation of State and National Gov'ts. Hostility to the Federal Supreme Court Opening Events of the Convention Library Facilities of the Delegates The Oath of Office - Memorials and Petitions The Committees and Methods of Procedure The Preamble The Bill of Rights Its General Character The "Equal Protection"Clause Capital Punishment Eminent, Domain The Legislative Department The Dominant Position of the Legislature Impeachment of Judges Criticisms of the Legislature Methods of Restraint; Biennial Sessions Prohibition of Special Legislation Removal of Appointing Power Change in the Requirement as to Quorum The Unicameral and the Bicameral Legislature Other Restrictions on Legislative Action The Repeal of Charters of Incorporation 113 l14 114 115 117 119 119 121 121 122 124 127 128 The Executive Department The Weakness of the Governor The Governor's Salary The Executive Weto Other Executive Officers The State Judiciary The Judiciary under the First Constitution The Development of the System Defects in the System The Committee on Judiciary-it's Report The Salary of Judges The Tenure of Office The Recall of Judicial Decisions The Plan as Finally Adopted Its Defects Efforts to Remedy the Defects by Ameridment The Right of Judicial Review The Elective Franchise Education Public Institutions Public Debt abd Public Works State Indebtedness The Canal System of the State The Militia County and Township Organization Apportionment for Members of General Assembly Taxation and Finance The Poll Tax The "Uniform Rile" in Taxation Property Exemptions Taxation of United States Bonds Taxation of State Bonds Corporations The Šubject of Municipal Corporations The Liability of Stockholders Banks and Banking Banking in Ohio, 1803-1851 The State Bank of Ohio Hostility to Banks The Fight over Paper Money Special Provisions as to Taxation in Bank Charters 13:2 13? 133 133 135 136 137 137 139 l41 142 142 143 1.46 147 148 15O 151 152 153 154 154 156 159 161 l62 167 167 167 168 168 17O 173 164 177 179 179 182 183 184 185 Jurisprudence Duels and Lotteries The Liquor Question Amendments to the Constitution - Submission Every Twenty Years Endorsements by Party Conventions Efforts to call a Convention The Subject of the Referendum The Problem of the Negro Population The Campaign for Popular Ratification 188 189 19 O 194 194 196 197 199 2O1 204 Preface. Recent years have seen a marked turning away from the study of the national government and a direction of attention to the governments of the various states. With the Civil War the great problem of national supremacy and sovereignty was settled. Since then, it has been more fully appreciated that the states, though inferior to the national government in ultimate power and shut off from the exercise of the highest sovereignty, yet have a wide and important sphere of legitimate activity – a sphere of vital importance to the welfare of the people and, therefore, de- serving of more careful historical study than it has hitherto re- Geived. l - "The most neglected field in American history", said an American scholar, writing thirty years ago, "is the field of state history - the constitutional and political history of the individual state...” In the last decade or two, portions of this "neglected field" have been cultivated by eager scholars and from this work has come general recognition of the fact that some of the most pro- nounced defects in our federal system lie within the realm of state government and that here the remedies must be applied. The belief has been gaining ground that our state governments are fundamentally and structurally weak and that decided and permanent improvement can come only through changes of a radical nature. 3 This monograph represents an attempt at the historical consideration of the four constitutional conventions which have met to write a fundamental law for Ohio. This state has been (l) See Woodrow Wilson, The State, p.437. (2) J. F. Jameson, Introduction to the Constitutional and Political History of the Individual States, Johns Hopkins studies, v. 4, p. 186. Z - -- (3) See Gamaliel Bradford, Reform if our State Governments, Annals of the American Academy of Political and Social Science, vol. 4, pp. 884 ff. Also ***, * £roup of articles dealing with the reorganization of state Govern- ment in the American Political science Review, vol.9, May 1915, pp. 252–304. chosen, not because its history contains much of the dramatic or because it stands out conspicuously for its constitutional eccen— tricities, but because it may be taken as a representative State, a study of whose development may be broadly illustrative of all the states of the Union. The first constitution of Ohio (1802) represented the governmental tendencies at the beginning of the nineteenth century. Its most pronounced characteristic was the placing of complete governmental supremacy in the legislature as most directly repre- senting popular will. Perhaps Ohio may be said to have exagger- ated the tendencies of the period by making the executive of less Weight and the judiciary more dependent than was the practice in other states. Leadership, too, in the democratic tendencies of the period must go to the western states. Ohio led the way by practically removing all property qualifications for voting, by making local officers elective, by shortening the term of elective officers and by limiting the tenure of office in the judiciary de- partment to seven years. As the first constitution represented the governmental Viewpoint at the beginning of the century, so the second (1851) gives us a picture of the attitude of the people fifty years later. Here we see democracy and individualism in full control and at the height of their influence. Jacksonian Democracy tempered slightly by Whig Conservatism is expressed in a fundamental law for a state. The "laissez faire" tide of the first half of the nineteenth cen— tury had not yet begun to recede so far as this convention was con- Cerned and the result was an extraordinary group of limitations on the sphere of governmental activity. The third constitution (1874) was written at the be- ginning of the fourth quarter of the century by a group of men who were eager for reform. It represents a reaction from the extremely democratic and individualistic viewpoint of the middle- period. What these reforms were and why they did not meet with the approval of the people will be considered in connection with the treatment of that convention. The fourth convention (1912) shows us the so-called newer tendencies at the full – a recognition of the fact that the rights and liberty of the individual are subordinate to the wel- fare of the group. (Hınarances Were, therefore, largely removed º out of the way of the passage of Social legislation.) The shibbo- leths of the rights of private property and private contract Were to Some extent bereft of their power. Ohio's government for a century saw #ttle development in its general administrative char- acteristics. 1) With the new century, the old theories have been discarded and the government has been rapidly centralized. The governor, formerly excessively weak, a figure-head only, has be- come a center of tremendous power. As illustrations of the tenden- cies of these later years, we may note: the granting of the veto power to the governor, a great increase in his wpoint; power, the centralization of the taxation system of the state, of the School system and of the control of the liquor traffic, a public (1) One is impressed with this fact in reading "The Centralization of Admin- istration in Ohio" by S. P. Orth, written at the beginning of the present, century. A monograph covering the decade following the appearance of this monograph would show an extraordiaery acceleration of the centraliž- wing tendency. (2) This system was partially decentralized by the legislature of 1915. utilities board with mandatory power, the centralization of the administration of the charitable institutions in the hands of a single board appointed by the Governor, greatly increased power in the hands of the State Board of Health, Employers' Liability Insurance compulsory as to contributions by employers, Civil Ser- vice centralized under a state board, good roads movement under state organization and control, and state supervision of city and county offices. There was in l914 Some evidence of reaction – the pen- dulum swung too far – the people hesitated to follow and decen- tralization became a popular cry. The movement was so rapid that the people could not follow and they refused to endorse it. The reaction, however, will probably be but partial and temporary – Soon the pendulum will Swing forward again. Progress will come through action and reaction – through steady growth and not through changes so rapid and startling as to arouse the suspicion of the electorate. Centralization always carries with it the danger of a corrupt bureaucracy and this danger makes it necessary to proceed Slowly. "Side by side with the annual or biennial legislature we have another kind of legislature, the 'constitutional conven- tion", which retains everybody's respect, and whose work, generally marked by care and fore thought, compares creditably with the leg- islation of any Similar body in the world. Through the hundred years of national existence it has received little but favorable criticism from any quarter. It is still an honor to have a seat in it. The best men in the community are still eager or willing to sit in it, no matter at what cost to health or private affairs. I cannot recall one convention which has incurred either odium or (l) contempt." (l) E. L. Godkin, Decline of Legislatures, Atlantic Monthly, vol. 80, No. 477, p. 35, July, 1897. - The First Cornverntion. On April 30th, l802, the act of the Congress of the United States providing for the admission of the State of Ohio into the Union "upon the same footing With the original states in all respects whatever" received the approval of President Jeffer- ºn.” Back of the passage of this act there lay a dramatic political and personal Struggle in the pioneer territory north of the Ohio River. This struggle, somewhat personal at first, soon became a part of the nation Wide contest between the Feder- alists and the Republicans which so quickly resulted in the complete overthrow of the former. From the Standpoint of the Republican - party the admission of Ohio was an important part of the plan by which its leaders hoped to make their control secure and permanent, since the western states all displayed pronounced anti-federalist tendencies. - From the local, personal viewpoint the statehood effort Was the plan by which the settlers of the Virginia Military Dis- trict with headquarters at Chillicothe whose natural sympathies were republican hoped to wrest the governmental power from Governor St. Clair and his followers. The incidents of the struggle are familiar alsº have place here only as they influence the character of the constitution soon to be written. (1) For the act, see Public Statutes at Large, Boston, 1848, v. II, pp. 173-175; or, Poore, The Federal and State Constitutions, v. II, p. 1454. (2) For a good account, see the recent monumental work by Randall and Ryan, A History of Ohio, The Rise and Progress of an American State, 5 vols, 1912; Also see Chaddock, Ohio Before 1850, pp. 47–68, for a brief account; or Ohio's Birth Struggle, by Wm. McClintock, Ohio Archaeological and Historical Society Publications, W. XI, (1902-3), pp. 44-70. The Ordinance of 1787 provided for an undemocratic form of government which would have been galling at best to men of democratic spirit and training but the arbitrary manner in which it was administered by St. Clair added to its unbearable- hess. There was little evidence of dissatisfaction with his rule until the assembling of the first territorial legislature in 1799, when there arose the historic struggle over his right under the ordinance to control the action of the legislature by the exercise of an absolute veto. . Of thirty acts passed by the first legisla- ture, eleven were vetoed by St. clair. - The vital point was the question of the erection of new counties and the designation of county seats. The early settlers were to some extent land specu- lators and the financial future of individuals sometimes depended on the placing of county lines and county seats. The inception of the whole struggle arose with the failure of St. Clair to please Nathaniel Massie in the determining of the county seat of Adams county!” The Ordinance is concededly obscure on the question of authority as between the governor and the territorial i.e. law; The result of the contest was that the opponents of St. Clair, led by Massie, worthington and Tiffen, took steps during the winter of 1801 and l802 to secure the early admission of Ohio into the Union. They viewed this as the most effective means of ridding themselves of an obnoxious ruler. The efforts of the Chillicothe group met With a favorable reception at Washington at the hands of the Jef- fersonian Administration, which had but lately come, by a narrow (I) Confer section 11 of the Ordinance. (2) For a defense of St. Clair, see, "Major General Arthur St. Clair", by Albert Douglas, Ohio Ar. & His. Soc. Pub., v.16, pp. 455-476. margin, into power. The prospect of two Republican senators, at least one congressman and, a little later, in the next presidential struggle three presidential electors was a consideration of no small influence in determining the course of core...” The en- a bling act passed by an almost strict party vote. The terms of the act should be noted. It authorized the Eastern division of the Northwest Territory to form a consti- tution and state government, assume a name and be admitted on the same footing as the original states. It fixed the limits of the state and the method of selecting delegates including the qualifi- cations of electors which were made much more liberal than was the case under the Ordinance; it apportioned the delegates among the counties and fixed the place and time of meeting. Wayne County of which Detroit was the county seat, supposedly a Federalist strong- hold, was excluded from the boundaries of the new state. The followers of St. Clair were severe in their criticism of the act on the ground that it arbitrarily decided matters which properly belonged to the sphere of the territorial government, that the will of the people should be paramount in determining the ad- Visability of admission and that that will could express itself only through the territorial legislature. They went so far as to deny to Congress the constitutional right to authorize a convention, (1) See The Life and Times of Ephraim Cutler, p. 65, letter of Paul Fearing, territorial agent in Congress , to Ephraim Cutler, Feb. 19th, 1802: "There are two objects in view; one to get rid of the expense of paying your governor's salary, and the other, to gettwo democratic members of Congress." Fearing vigorously opposed admission on the floor of Congress. holding that the power under the terms of the Ordinance inhered in the territorial legislature. Their opponents took the more defensible ground that Congressional control over the territory of the United States was complete, that the people wanted statehood as was indicated by over twenty petitions with thousands of signatures, that the territorial legislature was not a truly representative body and could block the will of the people and that a convention with more liberal suffrage * be a reasonable means of giving the people an *** to decide whether they wished to be admitted as a state. The election of delegates took place on October 3rd and the convention assembled on November 18t, 1803 • Little information is obtainable as to the methods used in the election of delegates. In Washington County con- ventions were held for the nomination of delegates. The Feder- alist party met on August 4th and nominated four delegates who (1) Ownership of 50 acres of land was one of the qualifications under the Ordinance. Under the Enabling Act, the elector "shall have paid a terri- torial or county tax." (2) For the debate in Congress see Annals of Congress, vol. 12, pp. 1097-1118. See also, Federalism and the West, by H. C. Hocket, bound with Essays in American History, N. Y. 1910, pp. 113-135. He develops the interesting point that the Federalists opposed the admission of Tennessee in 1796 on the ground that the state had no right to take the initiative in the matter and opposed the admission of Ohio on the ground that Congress had assumed power the properly belonged to the territory. Tennessee was admitted without an enabling act. 1O Were successful over the Republican nominees at the October •is•º Elsewhere the Federalists were not so successful and when the convention met the Republicans were easily able to control. Apparently statehood was the leading issue in the election of delegates though slavery was also an issue at least in some localities. In Marietta the Federalists accused their opponents of wishing to introduce slaveºla in Chilli- cothe the opponent of Edward Tiffin made the same accusation against him which he vigorously denied in a signed newspaper state-ent.” The delegates, thirty-five in number, met on the day and at the place appointed for the accomplishment of their great work. There is something that appeals to the imagination in the contemplation of these men, pioneers all, accustomed to the dangers and hardships of the frontier, turning aside from their efforts to make the wilderness a habitable place, to frame the fundamental law for a state - a law which was to remain un- (1) See Life and Times of Ephraim Cutler, p. 66. He tells us that delegates came to the Federalist convention from towns as far distant, as Zanesville, seventy-five or eighty miles to the north on the Muskingum River, and that, on the statehood and slavery issues, the Federalist, delegates were successful by a two to one vote. (2) Letter of Jehial Gregory, from Athens, Ohio, August 8, 1802, to R. J. Meigs, Jr., candidate in Washington County on the Republican ticket: "We have hot times about slavery and republicanism. News is spreading here that you want such a system adopted. . . . . . . . I will spare no pains in detecting the Federal villany." Life and Times of Ephraim Cutler, p. 66. Cutler says the Republicans openly advocated slavery. (5) See below, p. 47. ll changed for fifty years and command the obedience of a popula- tion of two million people. It is a high tribute to the govern- mental genius of the English race that men, inexperienced in the field of government and law, met in a convention, largely the outgrowth of bitter personal and political struggle, and suc- ceeded in drafting a constitution which was agreed to and signed by all; and that the people acquiesced without protest in the form of gove; ent provided for them and prospered greatly under its control. Meeting in a frontier town founded but six years be- fore and in a court house but recently built, the surroundings must have been primitive and little in keeping with the re- sponsible work which called them together. The facilities, too, must have been meager for the prosecution of their work. None of the present day elaborateness of preparation for the event was possible. A few lawyers, educated in the East, found seats - in the cºnventº.” they were not the predominant element; (3) though influential, they were not the real leaders. So far from being a gathering of mature minds, all the *** Wer'G 4 under forty and some not yet thirty years of age. (1) "The first constitutional convention from an intellectual standpoint is the greatest, as well as the most picturesque episode, in the history of the state and the events which lead up to it read like a romance." D. J. Ryan, "The First Constitution", Ohio Archaeological and Historical Society Publications, 1903, p. 11. (2) Byrd, Huntington, and Baldwin are illustrations. (3) For example, Massie, Worthington, Tiffin, Morrow and Cutler. (4) Baldwin, 26; Worthington, 29; Tiffin, 36; Massie, 39; Morrow, 29; Cutler, 35; and Huntington, 37. Putnam and Tilson were the two venera e men of the con wention. º: 12 Most of the delegates were born in the eastern states, Some in ºasia." The virginia influence was predominant though the delegates from Pennsylvania and New England left the ir impress on the work of the serverse.” It may be said without hesitation that the leading men of the territory were present in the convention. Out of a population of fifty thousand, approximately, which inhabited the territory, it is improbable that any other thirty-five men could have been selected equally capable to accomplish the task for which these men were chosen. Judge Burnet, who was a member of the territorial council with Federalist sympathies but too broad-minded to be a narrow partisan, wrote that "With but few exceptions the most intelligent men in the counties were ..lesses.” Atwater, the earliest Ohio historian, says that perhaps the best men in the territory were chosen but (4) that they were young in years and inexperienced in legislation. Eleven members of the convention had had a brief legislative schooling in one or the other of the two territorial issºis; tures which had sat prior to the calling of this convention. Five had sat in both legislatures and Reily had been clerk and Tiffin speaker of both. Byrd was secretary of the territory and for a time acting governor. (l) Tiffin and Browne. (2) For an excellent tracing out of the influence of Pennsylvania and the Southern Pºpulatiºn.9; Ohio, see "Ohio Before 1850", Robert F. Chaddock, Columbia University. 1908. (3) Burnet, Notes on the Northwest Territory, p. 35l. (1847). (4) Caleb Atwater, History of Ohio, (1838) p. iſl. (5) Darlington, Goforth, Massie, Smith, Tiffin, Worthington, Cutler, Dunlavy, Milligan, Morrow and Putnam. - - 13 Putnam and Cutler, too, held office under the territorial regime. The character of the men is indicated by their prominence during the first two decades of the state's existence. Under the first organization of the state government the members of the convention were conspicuous. Tiffin became the first governor, Huntington one of the three supreme judges, Smith and Worthington the two United States Senators, Morrow the representative of the state in congress, Dunlawy one of the three president judges and Darlington, Kitchell and Gatch associate judges. Six members were elected to the first state senate and five to the first house of representatives. Massie was elected speaker of the Senate and Baldwin speaker of the House. During the first two decades of statehood, four of the members were elected to the office of governor, four sat in the United States Senate; three-fourths of all the membership after- Wards held office under the state ºver-ent.” The lives of a few of the delegates are worthy of a more detailed examination. The most influential men were the Chillicothe group whose activity had resulted in the calling of the convention. They were led by Tiffin, Massie and Worth- ington. "Head and shoulders above all stood Edward Tiffin" says (2) a leading historian of the state. (1) These facts have been gleaned from the "Ohio Statesman and Annals of Progress" by W. A. Taylor, Columbus, 1899. (*) D. J. Ryan, The First Constitution, Ohio Archaeological and Histori- cal Society Publications, (1903) p. ll. 14 - Tiffin was born at Carlisle, England, in 1766, emigrated to Virginia in 1784, studied medicine at the University of Penn- sylvania, married a sister of Thomas Worthington, freed his slaves in 1796 and removed a little later to Chillicothe. After having been honored with the speakership of both territorial legislatures and the presidency of the constitutional convention, he was elected the first governor of the state. He resigned as governor near the close of his second term to become a United States Senator. He had a long and honorable public, career and Ohio owes much to his intelligence and intº.” Thomas Worthington was a native of Virginia and has been characterized by a biographer as "clearly the greatest man of the first generation of Ohio statesmen". 2 He removed to Ohio in 1796 with his brother-in-law, Tiffin. He was suc- cessively a member of the territorial legislature, member of the - constitutional convention, United States Senator, and governor. In the constitutional convention he was very influential, serving as chairman of the committee on privileges and election and as a member of the committees on Preamble and First Article, on Executive, Legislature, and on Judiciary. When elected ** - Senate he lacked four months of being thirty years of age. He rivalled his relative, Tiffin, in the value of his contribu- tions to the early life and development of his adopted state. (l) See Gilmore's Life of Tiffin, (1897). Also confer David M. Massie's Life of Nathaniel Massie, p. 272. (2) Frank Theodore Cole, Biography of Thomas Worthington, Ohio Archaeological and Historical Society Publications, vol. 12 (1903), pp. 339-374. (3) When the pro-state-hood party in the winter of 1801–2 decided to send a committee to Philadelphia to thwart the plans of the Federalists, it is significant that they selected Worthington, 28 years of age, and Bald- win, three years younger. They were entirely successful in their mission. 15 Nathaniel Massie, the third of the Virginia trium- virate, was the founder of Chillicothe. The Virginia Military District, located between the Scioto and Miami Rivers, had been reserved by Virginia for her soldiers when she ceded her title to the general government, and was largely settled by Virginians of whom Massie was one of the first. He was born in 1763 and after a brief experience in the closing events of the Revolu- tionary War he removed to Kentucky in 1783 and to Ohio in 1.91% A surveyor by trade, he rapidly accumulated property through the practice of his profession and by land speculation. He ac- quired large tracts of land in the counties of Ross and Adams. Settlers from Virginia and Kentucky were drawn to the rich valley and a rapid growth of the community was the result. Massie was a member of both territorial legislatures, a member of the con- vention, speaker of the first two state senates under the consti- tution, later a member of the lower house, an unsuccessful candi- date for governor, and, as a presidential elector in 1804 and 1808, voted for Jefferson and Madison respectively. It was he who first came into conflict with St. Clair and he never gave up the struggle until he saw St. Clair retire in disgrace from the combat. In the convention he was active as a member of the committees on executive, legislature and judiciary. Democratic in temperament and restive under governmental restraint he naturally became a follower of Jefferson. (1) See The Life of Nathaniel Massie by David Meade Massie. All of his extant correspondence is included in the volume. 16 With these three men as leaders stood the other re- presentatives from Adams and Ross. Baldwin, a member from Ross County, was a well educated lawyer who had emigrated from Con- necticut. He was impulsive, the "idol of the rabble" and a loyal and valuable supporter of Massie. Though intellectually brilliant and the scion of a prominent eastern family, his life 3eems to have been marred by dissipation and he died in 1811. Israel Donaldson of Adams County was a noted Indian fighter and pioneer – a companion and partner of Massie in the development of the district. Joseph Darlington of Adams had sat in both territorial legislatures and was elected to the first state senate but soon Withdrew to become an associate judge. Thomas Kirker of Adams was a member of the state leg- islature for several years and, as speaker of the senate, became for a time acting governor. -- - Hamilton County, of which Cincinnati was the county seat, was entitled, by the provisions of the enabling act, to ten delegates. This group was composed of capable men who added strength and dignity to the convention. Burnet says of Francis Dunlavy that he was "a veteran pioneer of talents, of liberal education and of unbending integrity". He refers to John Smith and John Reily as "men of strong minds and irreproach- (1) able characters". Smith who had sat in both territorial leg- (l) Burnet's Notes, p. 351. For an interesting biography of Reily, see James McBride's Pioneer Biography. 17 islatures was one of the first United States Senators from Ohio. Suspected of connection with the Burr Conspiracy, he resigned after the Senate had refused by a narrow margin to unseat him. Perhaps the most prominent members of the Hamilton County delegation were Jeremiah Morrow and Charles Willing Byrd. No man in early Ohio history had a longer or more honorable pol- it ical career than Morrow. He was born in Pennsylvania of Scotch- Irish parentage whence he removed to Cincinnati. He was a member of the second territorial legislature, of the constitutional con- vention, of the first state senate, served from 1803 to 1813 in the lower house of Congress, from 1813 to 1819 in the Senate and a little later was elected twice to the governorship of the state. In 1841 he returned to Congress for a single term at the earnest Solicitat ion of his tries.” His death occurred in 1852 after he had had the privilege of being the honored guest of the second Constitutional convention of 1850-1851. Byrd, a Virginian, was educated for the law at Phila- delphia. He was appointed Secretary of the Northwest Territory by President Adams in 1799 and became acting governor on the removal of St. Clair. In spite of the fact that his original appointment came from the Federalists, he became an ardent Re- publican, opposed vigorously the administration of St. Clair and cooperated with the Virginia group in the convention. Later he was appointed a United States District Judge by Jefferson (2) which position he held until 1828. (l) See Howe's Historical Collections, vol. II, p. 755. (2) For a sketch of his life, see Life of Nathaniel Massie by David Meade Massie, p. 270. 18 (l) Browne was an independent minister of English birth. Cutler relates that Browne, having been elected to the constitu- tional convention, went to Marietta by boat and, having appeared before the judges of the Superior Court, became a citizen of the United States. They, Cutler and Browne, then journeyed together overland from Marietta to Chillicothe, arriving one day late for the conventiºn.” William Goforth was a learned doctor of Cincinnati, more interested in politics and science than in the active practice of his ºn.” The small Federalist group in the convention was led by the four delegates from Washington County, Cutler, Putnam, Gilman and McIntire. Marietta had been settled by the Ohio Company most of whom came from New England with Federalist 3ympathies and tendencies. Benjamin I. Gilman, whose father, Joseph Gilman, sat as one of the three judges who aided in the administration of the territory under the Ordinance, was a prosperous merchant and ship builder of Marietta. Cutler speaks of him as "ºne of (4) the most useful and active members of the convention". Rufus Putnam was one of the two or three º,” the * convent ion whom we know to have been of mature year 8. He was 7. born in 1/38 at Sutton, Massachusetts. (l) Tiffin and Smith also preached on occasion. (2) Life and Times of Ephraim Cutler. (3) E. T. Mansfield, Personal Memories, p. 167. (4) Life and Times of Ephraim Cutler, p. 81. (5) Henry Howe, Historical Collections, vol. II, p. 807; Bench and Bar of Ohio, vol. I, p. 8; Life and Times of Cutler, pp. 80-81. The others were Henry Wilson (Life of Cutler, p. 72) and Francis Dunlavy (Burmet's Notes, p. 351). 19 Having served three years in the French and Indian War and throughout the Revolutionary War, he retired with the rank of Brigadier-General. The Ohio Company selected him as super in- tendent of the business connected with their settlement at Marietta. In 1789, he was appointed by Washington a supreme judge of the territorial court and in 1796 Surveyor General of the United States. As in the case of the other avowed Fed- eralists the constitutional convention was the close of his political career.” John McIntire was one of the founders of Zanesville and its foremost citizen during the early years of the century. Having amassed wealth in business he devoted it largely to charity. A beautiful park and a children's home still exist as illustrations of his munificence. He haa received a minor judicial appointment at the hands of St. Clair. His influence in the convention can only be inferred from his votes on the different *..." The most active, consistent and unbending of the Fed- eralists and the one who had the most influence on the consti- tution as finally drafted was Ephraim Cutler. He was born in Connecticut in 1767, the son of Manasseh Cutler whose name is associated with the Ohio Company and the passage of the Ordin- ance in 1787. The latter, as a member of Congress in 1803, voted against the enabling act for Ohio. (1) He was removed from the judgeship the following year. (2) Life and Times of Ephraim Cutler, p. 66, note; p. 80, note; p. 204. 2O Ephraim Cutler removed to Washington County, Ohio, in 1795 and was soon appointed by St. Clair a judge of the common pleas court, a just ice of the peace, a captain and, later, a major of militia. After serving in the territorial legislature and in the constitutional convention, his political activities were ended until 1819 when he again appeared for a half dozen terms in the General Assembly of the state. Here he was active in the passage of wholesome tax and school laws. He was a man of vigorous personality who left a vivid impress on the Washington County co-writy." Of the remaining delegates, Samuel Huntington of Trumbull County was the most conspicuous. Born in Connecticut in 1765, he graduated at Yale in 1785, was admitted to the bar in 1793 and at once removed to Painesville, Ohio. Having been elected a member of the first general assembly, his colleagues elevated him to the supreme bench of the state from which he resigned in 1808 to become governor of the state. He was the most prominent resident of the Western Reserve in the early Councils of the ...t.” The remaining members of the convention appear to have been substantial citizens of inconspicuous attainment. Wells Was a prominent citizen of eastern Ohio coming from Jefferson County. Of him Cutler says: "No member of the sººn Was 7 - more generally respected than Mr. Bazaleel Wells". (1) Randall and Ryan, History of Ohio, vol. 3, p. 183. Cutler's journal and correspondence together with some biographical material have been published by his son and daughter under the title, The Life and Times of Ephraim Cutler, a work to which we have had and will have frequent occasion to refer. (2) Life and Times of Ephraim Cutler, p. 31. 2l The journal of the convention is a very disappointing Bource of information in reference to its work. Covering about fifty ordinary pages, it gives such a report as a secretary would set down of a business meeting. Such items only as the appoint- ment of committees, the vote on their reports, the vote on cer- tain amendments to the reports offered on the floor of the con- vention and a few other details are given. Most of the real work of the convention was done by the committees and, when they re- ported, their work was considered in committee of the whole of which we have no report. Little information can, therefore, be obtained from the journal as to the contribution of the various members to the work of the convention. The two most important collateral sources of information are the journals and corres- pondence of Ephrain Cutler and Jacob Burnet's Notes on the North- West Territory. The latter work is invaluable; for, having been Written almost a half century later when the struggles of the former times had been long past, it is largely free from partiean bias. The former work contains much valuable information but one must guard against its Federalist bias. No list of standing committees was appointed at the beginning of the session as is the practice today. One committee was appointed at a time and so far as possible the convention endeavored to have each committee report and complete its Work before another was appointed. This proved to be impracticable and to some extent the work of the committees overlapped in point of time. The plan, however, made it possible for the leading men of the convention to serve on all the important committees. The small period of time between the appointment of a committee and the time when it was expected to re- port gave little opportunity for a careful and thought- ful working out of the various articles of the constitu- tion. Under such circumstances we should expect men of little legislative experience to borrow freely from the constitutions with which they were familiar. We shall dis- Gover that this is exactly what happened. Eight subjects were assigned to eight different committees in the work of the convention: (1) Preamble and Legislative Power; (2) The Supreme Executive Authority; (3) The Judiciary; (4) The Bill of Rights; (5) Qualifica- tions of Electors; (6) The Militia; (7) Concerning certain County, Township and minor Offices; (8) and on Missellane- ous Provisions such as Oaths of Officers, Bribery of Elec- tors and lew Counties and the Location of the State Cap- ital. Each committee report was first considered in committee of the whole convention and reported out with or without amendment . some armendments were usually pro- posed on the floor of the convention on which, fortunate- ly, the journal records the yeas and nays 33 The only business transacted on the first day of the convention (Nov. 1st) was the appointment of two temporary com- mittees, one on Privileges and Elections and the other on Rules. On the second day the former committee reported no contests. The next business in order was the election of a presi- dent. "The convention accordingly proceeded to choose the presi- dent; and," upon examining the ballots, it was found that Edward Tiffin, Esquire, was duly chosen, who accordingly took his seat in the chair and delivered the following address". l) The aid- dress of Tiffin, a few lines in length, thanking the convention for the honor conferred, is the only speech recorded in the journal of the convention. - The report of the committee on rules presented on the third day was adopted without change. Reily, the chairman of the committee, had been clerk of the territorial legislature and was familiar with the legislative procedure of the day. Jefferson's Manual had but recently been published and may have been accessible. After the adoption of the rules, "a motion was made and seconded, that Arthur St. Clair, Senior, Esquire, be permitted to (2) address the convention on those points which he deems of importance". What influences were behind this motion which carried by a vote of nineteen to fourteen it is impossible to determine. The form of the motion which ignores St. Clair's official position and is scarcely respectful in tone can hardly be reconciled with the idea that it emanated from one of his friends. (l) In referring to the journal, use will be made of the copy in the Ohio Archaeological and Historical Society Publigations,. vol; 5, , pp. 80-132. Seven hundred copies of the journal were ordered pºinted ańd #słºśd but they have largely disappeared. (2) Journal, p. 87. 24 Those voting adversely on the motion were Republicans but the full strength of the party was not against the motion in which case it would have been defeated. Massie, for example, voted aye. What his motives were can only be surmised. He may have been prompted by magnanimity or it may be that, knowing well St. Clair's predilection for intemperate speech, he felt that St. Clair would but injure his own cause and strengthen the posi- tion of his opponents. No reference to the content of the speech or the manner in which it was received is found in the journal. To the Federalists it appeared "sensible and conciliatory", l to the Republicans it was highly offensive and resulted in his peremptory removal from the governorship of the territory. The letter of removal seems unnecessarily severe in tone, viewed in the light of St. Clair's long and honorable service to the nation. That he was indiscreet in his address all must admit. He viewed the Ordinance of 1787 as a compact subject to change only by mutual agreement. His attitude toward the Ordinance explains his reference to the act calling the convention as "an interference with the internal affairs of the country, which Congress had neither the power nor right to make". "The act", he continued, "is not binding on the people and is in truth a mility.” It was this language which Madison char- acterized in his letter of removal as "grossly visiºns the rules of conduct enjoined by your public station". (l) Burnet's Notes, p. 352. Life and Times of Ephraim Cutler, p. 80. (2) St. Clair Papers, vol. II, p. 593. Burnet took a similar view, p. 350. (3) St. Clair Papers, vol. I, p. 244. 25 The enabling act of Congress required the convention first to determine by a majority vote of all the members elected whether it was expedient at that time to form a constitution and state government. If determined in the affirmative, the delegates were authorized to form a constitution and state gov- ernment or they might provide by ordinance for the calling of another convent ion for that ºve.” Accordingly, on the third day, a resolution "that it is the opinion of the convention that it is expedient, at this time, to form a constitution and state government" was introduced, briefly considered in committee of the , whole, reported out and passed with but one dissenting **** of Ephraim Cutler. He felt that he would be untrue to his constituents and to his own convictions if he voted oth— erwise. Burnet writes that "although more than a fourth of the members, composing the body, had expressed their opinion, in very decided terms, against the expediency of the measure and against the manner of its accomplishment, yet the resolution was carried". Cutler relates how his own colleagues deserted alº.” The opponents of statehood realized they were hopeless- ly in the minority and that to vote against statehood when it was within their grasp would be an exceedingly unpopular thing to do and would destroy their influence not only in the convention but in the early political activities of the state. ) See section five of the act. ) Burnet's Notes, p. 352. See also a letter of Burnet dated Sept. 26th, 1847 to Cutler, Life of Cutler, p. 68. Referring to Cutler's colleagues from Washingt& ...he'says: "They were also of opinion that the conditions imposed by Congress would be greatly injurious to the people, as has been the case". (3) For his defense of his own action, see Life and Times of Ephraim Cutler, p. 88. : ( ( 36 This important preliminary question having been so decisively settled, the convention lost no time in setting about its real work. Immediately, on motion, it was resolved, "That a committee be appointed, to consist of one member from each county, to prepare and report a preamble and the first article of the constitution". l This committee whose duty it was to formulate the article on the legislature was later increased by the addition of six members making fifteen in all. In it 8 final form it included practically all the strong men of the convention, such as Byrd, Massie, Worthington, Putnam, Hunt- ington, Kirker and Smith. Of the work done in committee on this article we have no knowledge but the fact that the committee Was appointed on the 3rd and reported on the 6th indicateg how quickly the report was thrown together. The immediate sources of the various articles of the Constitution are not difficult to discover. A number of the states had revised their constitutions in the last decade of the eighteenth century and Kentucky and Tennessee had formu- lated new constitutions for admission into the water.” The governmental organization in these constitutions showed com- paratively little variation in form. A conventional form had developed and the differences were differences of detail. The influence of the Federal constitution at this time was not noticeably large and its influence on the Ohio constitution (3) Was almost negligible. (l) Journal, p. 88. - (2) S. C., 1790; Penn., 1790; N.H., 1792; Del., 1792; Vt., 1793; Tenn., 1796; Ga., 1798; Ky., 1792; revised 1799. (3) See Dealy, Growth of American State Constitutions, and Schouler, Constitutional Studies. 27 One's natural expectation that the Ohio constitution would be most influenced by those of Kentucky, Tennessee and Wir- ginia is not disappointed although the Pennsylvania and New Eng- land influences should not be ignored. Virginia, the native state of the most influential members of the convention, had not revised her constitution 3 ince its first formulation in 1776 and hence it Was somewhat out of fashion both as to form and content. Members of the convention had lived in Kentucky and were similar in tem- perament With the pioneers of the two frontier states to the South. The three constitutions, therefore, show an almost complete agree- ment in content, a large number of sections not only agreeing in content but being identical in form. This agreement is particu- larly noticeable in the article on the Legislature. Cutler relates that the Jeffersonian party, as he calls it, looked to Byrd to draft the constitution and expected it to be modeled after that of Virginia. Byrd, however, approved the Tennessee constitution, the most recent one to which they had access and this met with the wishes of the Federalists who were accused of Wanting aristocratic gºver-ent.” The committee report was considered in committee of the Whole on the 8th and 9th of November and reported back with sev- eral amendments. On the 18th and 19th the report with the amend- ments was considered by the convention and a number of votes on specific sections and amendments were recorded; and on the 35th the article was taken up, read the third time, put on its passage and, after slight amendment, accepted by the convention. The article vested the legislative authority of the state in a General Assembly composed of two branches, the Senate and the House of Representatives, with two and one year terms respectively. (1) Life and Times of Ephraim Cutler, p. 69. 28 The severe property qualification for voting of the territorial regime was swept away. To have paid a state or county tax was sufficient. The usual rules of procedure were laid down. It may be noted in passing that two-thirds of each house was necessary for a suo;i. to do business – an unusually severe requirement which proved trouble some, as we shall see, in practice. The noteworthy feature of the constitution was the com— plete supremacy of the legislative power. The system of checks and balances made popular by the Federal Constitution found no place. The framers omitted the usual section on the separation of powers though they no doubt felt that they were complying with the requirements of that current doctrine. A system, however, which makes both the executive and judiciary departments dependent on and subordinate to the legislative is more in harmony with the real English Constitution than with the one described by Montesquieu. The first Ohio constitution left the people unrestrained to act di- rectly through the legislative department. One's idea of the wis- dom of such a constitution depends on his viewpoint. E. D. Mansfield, an Ohio historian, says "The first constitution of Ohio was, I thought, the best constitution I ever saw for the reason that it had the fewest 1-ſtation.” Rufus King, another Ohio historian, a contemporary resident of the same city with Mansfield, says, "The instrument so adopted, it would be respectful to pass in silence. It was framed by men of little experience in matters of state and under circumstances unfavorable to much forecast. With such a model of simplicity and strength before them as the national con- stitution, which had just been formed, the wonder is that some of (2) . its ideas were not borrowed". A little later the effect will be Personal Memories, p. 17. (l) (2) Ohio, (American Commonwealth) p. 290. 39 considered of placing all appointive power in the hands of the legislature. The votes in the convention on amendments to this ar- ticle indicate the points about which disagreement was most pro- nounced. An effort to have the state senators elected annually failed by a vote of eighteen to fifteen. A proposition was brought forward that in case of disagreement between the two houses, a conference should be held in the presence of both houses managed by the committees by them respectively chosen; points of difference, alteration, amendment or rejection of the bill to be determined by a joint vote of the members of the houses. This peculiar suggestion was rejected by a vote of twenty-four to ten. l The numerous votes on the subject of the salaries of state officers shows the great importance ascribed to this sec- tion. Only individual preferences, however, without party divis- ion were indicated. The section as finally passed fixed a maxi- mum salary for all state officers till the year 1808 and wisely left the subject thereafter in the hands of the General Assembly. The limit for the governor and supreme judges was one thousand acne.” A rather significant vote occurred on the proposition "that no member of this convention shall be appointed to any office created by this constitution until the expiration of one year after the constitution shall take effect, except such of - ficers as are hereby made elective by the people, and to county series.” Only three delegates, Abbot, Paul and Reily, support- ed this motion. Such a provision would have been fatal to the ambition of the members brief as was the time limit. (l) Journal, p. 104. (2) 11 pp. 105-109. See, also, Art.I., section 19, of the constitution. (3) ºr p. 107. 3O It would have deprived Worthington and Smith of the privilege of going to the United States Senate and would have made Huntington, Abrams, Kitchell and Gatch ineligible for the judgeships to which they were appointed by the first General Assembly. Points of dissimilarity between this article and the same article in the constitutions of Tennessee and Kentucky were not numerous. The Tennessee constitution differed in having a property qualification for eligibility to the general assembly and contained a wholesome provision, which Ohio might well have copied, that no member of the general assembly was eligible to appointment to office if the power of appointment was vested in the assembly. This provision would have eliminated much polit- ical corruption from Ohio during the first half of the century. The Kentucky constitution differed in having a four year term for state senators, in requiring only a majority of the members for a quorum, in requiring revenue bills to origi- nate in the house of representatives and in making clergymen, priests and teachers of any religious sect ineligible to mem- bership. The Pennsylvania constitution agreed with the Kentucky constitution as to the length of the senatorial term and the origin of revenue bills. The Virginia constitution went to the extreme of requiring all bills to originate in the House of Delegates. In other respects these various constitutions were practically identical. In phraseology the **** of Ohio l - - to Tennessee and Kentucky was most pronounced. (1) In making comparisons, Poore's and Thorpe's compilations of the federal and state constitutions have been used. 31 On the 6th of November, a committee, identical in personnel with that on the legislative department, was appoint- ed to draft the second article – that dealing with the executive power. Massie reported for the committee on the 9th, the re- port was discussed in committee of the whole on the 10th, con- sidered by the whole convention on the 20th and passed on the | 35th. The whole article received less than two days considera– tion in the convention and the work of the committee was equally hasty and 3 uperficial. The relative value, in the estimation of the convention, of this article on the executive may be gauged by the time devoted to its formulation. The sole aim seems to have been to make the governor harmless even if possibilities for good must be sacrificed in doing it. The executive power was vested in a governor elected for a two year term by the people. No individual was eligible more than six years in any eight. He must have been thirty years of age, twelve years a citizen of the United States, and an in- habitant of Ohio for four years next preceding his election. His only duties with reference to the legislature were as follows: | to report to the legislature on the state of the government, to make recommendations, on extraordinary occasions to call the legislature in special session and to adjourn it in case of dis- agreement between the two houses. He could make appointments during the recess of the legislature but such commissions expired at the end of the next session of the legislature. It was his duty to grant reprieves and pardons, to sign all grants and com- missions issued by the authority of the state and to see that the laws were faithfully executed. 32 He was made commander-in-chief of the army and navy of the state but With no power to appoint his subordinates with the exception of the adjutant-general; other officers were eſtected by their subordinates or by the legislature. Burnet, after saying that "probably there is no article in the constitution that strikes the reader with more surprise than that which defines the powers of the governor", proceeds to ascribe the convention's attitude to a recollection of the abuse of executive power by St. claſs". this explanation has been emphasized by practically all writers since. In estimating the force of this influence on the ar- ticle it should be remembered that the colonial executive had already brought the office into disrepute. There was no ad- equate conception of a popularly controlled executive. It was fifty years before the governor of the American states became an effective instrument of administration and a hundred years before the people came to look with favor on "administration bills", so-called, and to rely on the governor to direct the Whole machinery of government and, above all, to protect them from the ignorance or venality of the legislative branch of the government. With the above in mind, still, the St. Clair influence can not be ignored; and it must be conceded that the absence of the veto power, at least, must be attributed directly to its ar- bitrary use under the territorial regime. If we may trust Cutler's memory of what transpired in committee of the whole on this ar- ticle, an effort to introduce the veto power modeled after that of Pennsylvania was made by Morrow, a native of that state. (l) Burnet's Notes, p. 359. 33 This effort, says Cutler, pleased the radical democrats and formed the basis of Morrow's later popularity and, referring to the veto, power, he concludes, "I think it came near being carried". l Advocacy of this measure can be viewed only as an extremely superficial explanation of Morrow's popularity and that it aided him at all is to be doubted. The tendency of the period, however, was in favor of the veto - a tendency which must be lºgºly attributed to the influence of the federal constitution. The constitutions of Kentucky and Tennessee gave the veto in a mild form to the governor. A bill, having been vetoed, became a law if passed by each house of the legislature by a majority vote of all the members elected thereto. Pennsylvania followed the federal analogy more closely by requiring a two-thirds vote to get a side the executive veto. The normal influences operating upon the members of the convention, therefore, would have required the veto in some form. Its absence can be properly ascribed to its obnoxious use by St. Clair who, during the sessions of the convention, was a potential candidate, at least, for the governorship though, he, later, declined to run. The Kentucky constitution gave the governor a four year term and, in addition to the veto, practically all ap- pointing power. It also provided for a lieutenant governor (l) Life and Times of Cutler, p. 78. - (2) "The governor's veto was permitted in one state only in the earlier con- stitutions (Mass.) but by the end of the century four other states had adopted the governor's veto and Vermont had granted the power to governor and council". Dealey, Growth of American State Constitutions, p. 37. He calls attention, in a foot note, to the veto power of governor and council in New York. In 1914, North Carolina stood alone in denying the governor the veto power. 34 and an attorney general, both of which were considered unnecess- ary in Ohio. The Tennessee constitution, however, aside from the veto already described, was almost identical with that of Ohio, the latter having borrowed many sections without the change of a word. Neither provided for a lieutenant-governor or attorney general and identical sections provided for a sec- retary of state. The conclusion is inevitable, therefore, that the convention took the article on the executive in the Tennessee constitution, omitted the section granting the veto, rearranged other sections, made an occasional change of wording, modified the eligibility requirements for governor and then adopted it with practically no deliberation – an illustration of the great part imitation plays in the field of government. This constitution, too, rather than that of Kentucky, suited the mood of the framers by vesting all appointing power, aside from recess appointments, in the legislature. A letter of September 1st, 1802, from Nathaniel Macon, a member of Congress from North Carolina, to Thomas Worthington urged that #} ap- pointments to state office be made by the lºsiº. Ryan emphasizes its influence on the convention. (l) St. Clair Papers, vol. II, p. 590. (2) Randall and Ryan, History of Ohio, vol. III, p. 126. 35 and modified so extensively on the floor of the convention. The judiciary article required more time for its for- mulation apparently because of greater divergence of opinion as to its proper organization. This may have been due in part to the fact that the function and place of the judiciary depart- ment in our governmental system was not fully understood at that time. The experience of a century has left the question st ill somewhat unsettled. In this case, too, local interests appear to have played no small part in the formulation of the article. A committee was appointed on the 9th, identical in per Bonnel With those on Executive and legislature.” Smith reported for the committee on the 13th, the report was con- sidered in committee of the whole on the 13th, again on the 15th, reported out with amendments and recommitted to a special committee composed of Byrd, Huntington and Darlington. This committee reported on the 16th and their report was con- sidered in committee of the whole on the 17th and 23rd. On the 35th, the article was considered and amended, on the 36th the amendments were agreed to by the convention and on the 37th the article received final ratification. Judging by the brief journal record, no other committee report was *a, (l) Journal, p. 93. ( 2) th pp. 95, 98,99,100,120,123. 36 The judicial system, as adopted, consisted, in , brief, of a supreme court, courts of common pleas, justices of the peace, and such other courts as the general assembly might es- tablish. The supreme court consisted of three judges with original and appellate jurisdiction both in common law and chancery. Another judge could be added by the general assembly at any time after the expiration of five years, in which case the judges were permitted to divide the state into two cir- cuits within which any two of the judges might hold a court. This court was required to be held once a year in each county. Three common pleas circuits were provided for but more could be added at the discretion of the general assembly. Each cir- cuit had a president judge and each county had not more than three nor less than two associate judges. Three judges were necessary for a quorum. The jurisdiction included common law, chancery and also probate and testamentary matters. All judges were appointed by the general assembly for a term of seven years. Justices of the peace were elec- ed by the electors of the respective townships for a term of three years. Clerks of the courts were appointed by the judg- es for a term of seven years. In no part of the constitution did the convention fail so completely to meet the demands of a state which was destined to show an extraordinarily rapid growth in popula- tion. The fatal blunder was too great rigidity in the pro- visions of the article; and it was this blunder above every- thing else that ultimately made a revising convention nec- essary. 37 Burnet and Cutler throw some light on the formula- tion and adoption of this article which can neither be ob- tained from nor verified by the journal. Burnet states that a struggle developed over the question of having the supreme court sit exclusively at the seat of government but local pride and feeling prevailed and the section requiring the court to hold a session yearly in each county was the result. Burnet was correct in viewing this as a serious blunder the difficult ies of which will be shown 1.....” Cutler furnishes some interesting information, if one may trust his memory, relative to the formulation of this article. The article was first prepared by Byrd and followed the Virginia code. Final decision of all cases was to be rendered by the general court sitting at the capitol of the state. Wells, Gilman and Putnam, as members of the committee, | objected to this plan and advocated district courts in which the supreme judges should sit. The vote usually stood ten to twenty-four in favor of Byrd's draft until the article went to a third reading. Finally Cutler himself spoke against it urging the importance of bringing justice as near to every man's door as possible. He argued that the proposed system | Would make an appeal too expensive for a poor man thus giving an advantage to the rich. He then outlined a plan similar to the one which was finally adopted. A vote was then taken and Byrd's draft was again ratified but by a weak viva voce vote. (1) Burnet's Notes, pp. 356-357. 38 A day was then fixed, at Byrd's suggestion, for the final ratification of the article. The events of the evening be- fore the final vote was taken, as related by Cutler, are of sufficient interest to be quoted in full. Referring to the effect of his speech he says: "But the leaven was working. On reflection a number of the members of the convention changed their views, and the evening before the day set for the last reading of the article, as I was coming out of the court house after the convention had adjourned for the day, Judge Dunlavy took me aside and asked me to come to his quar- ters after supper, and that I would hear something important respecting the judiciary article. *It was decided at supper that Mr. Gilman and I should immediately attend to this call. Judge Dunlavy and seven oth— er 3 were boarding at Lamb's and had a spacious common room. As soon as Mr. Gilman and I entered, the Judge locked the door and Mr. Wilson, an aged man, a member from Hamilton, addressed me as follows: "Mr. Cutler, were you in earnest when you gave in detail a judiciary article which you said would please you?' 'Oh, yes, sir'. 'Well", said he, 'will the ten who generally vote with you support it if it is again brought before the conven- tion? " " Please to ask Mr. Gilman'. Mr. Gilman answered, "I think they would'. 'Well, then sir, here are eight of us who pledge ourselves to support your plan, if you and Judge Dun- lavy will put it in form so that it may be introduced, by way of rider tomorrow morning, in the last reading of the article'. ' Judge Dunlavy then said, "We have no time to spare. º 39 Where can we best commence our labor?' I answered, "I think at John Reily's chamber. ' Mr. Reily and Mr. Goforth boarded together a little out of town. We immediately repaired thither; and as We agreed upon a section, Mr. Reily copied section one, Mr. Gilman section two, and so on alternately; and a little after twelve o'clock we had completed our task. Judge Dun- lavy took the seven sections copied by Mr. Reily and I the seven by Mr. Gilman. * The next morning, as soon as the convention began the business of the day, Judge Byrd called for the final reading and passage of the judiciary article. Then Judge Dunlavy moved to strike out the first section, and stated that he held in his hand a substitute which he read. Byrd appeared struck With astonishment and attempted to lash Dunlavy for inconsis- tency; he said that Dunlavy had voted against every amendment at the previous readings, etc. As preconcerted, no reply was made, and I seconded the motion of Dunlavy, and it was decided in the affirmative. I then introduced section second, and on the like motion, that section was adopted by an increased ma– jority, Mr. Smith, one of the ablest men they had, coming over to us. At the close and final passage, the ayes were twenty- four and noes ten. Thus with in three hours after the convention met that morning it became the third article of the constitution (1) without changing a word". (l) Life and Times of Ephraim Cutler, pp. 71-73. This version of the formulation of the article is largely verified by a letter from John Reily to Ephraim outler dated April 19th, 1842. see p. 73 of work cited above. 40 This account of the events connected with the adoption of the third article is difficult to reconcile with the brief journal notes. The last reference to the articie in the journal is of November 27th. The 28th was Sunday and the convention ad- journed on the 29th. "On motion, the third article of the con- st it ution was taken up and read the third time, in order for its final ***'.” A motion was made to amend by striking out the last sentence of section nine which gave judges the power to re- move clerks of courts for breaches of good behavior. This amend- ment was rejected by a vote of twenty to thirteen and the record shows Cutler, Byrd and Gilman voting against and Wilson, Reily and Dunlavy for it. The journal concludes, "The said article was further amended at the secretary's table and on the question that the convention do receive the said article, as amended, it Was resolved in the strº-.” These facts fail to harmon- ize with Cutler's account of the last consideration of the air- ticle. In order to accept his account, one must place the events he relates at an earlier date in spite of the fact that he spec- ifically connects them with this last reading and final ratifi- satiºn.” They did not occur on the 37th when certain amendments were agreed to which had been previously accepted by committee of the whole. The conclusion must be reached that the circumstances related took place on the 25th when the article was considered (l) Journal, p. 1:27. (2) rt p. 128. (3) "The rules of the convention provided that each article should be treated as a separate bill is in legislative proceedings, and have three several readings before its final passage, when it was subject to be amended by way of rider. Judge Byrd then arose and proposed a day for its final reading and final passage, which was adopted; and we Federalists gave up the idea of any further attempt to change it". Life and Times of Ephraim Cutler, p. 71. 4l for the last time in committee of the whole. Byrd as chairman of the committee reported back "that the committee had, according to order, had the said article under consideration and made several amendments thereto, which he delivered in at the secretary's table". These must have been the amendmente formulated in such haste. - Though inaccurate as to details, Cutler's statement is probably correct in the main. There can be no doubt that there was a contest between those who wished the supreme court to sit exclusively at the capitol and those who wished it to be a "stirrup court" and appear at regular intervals in the various counties. The representatives of those counties farthest dis- tant from the capitol would naturally support the latter plan. Its original supporters were the Federalists apparently. Cutler gets much satisfaction out of the fact that he was instrumental in introducing the feature which proved most troublesome in the end. The irony of local circumstances created a situation which caused the Federalists to appear as the defenders of the poor against the rich, The article as finally adopted was not an exact copy of any model. It differed in many particulars from the Tennes see constitution and resembled most closely those of Pennsylvania. and Kentucky. The grouping of the counties into common pleas circuite with president judges and the requirement that the supreme court sit annually in each county were copied from the Pennsylvania constitution of wºo.” A noteworthy feature of the Ohio constitution was the seven year term for judges . (l) For an interesting account of the Pennsylvania system under the consti- tution of 1790, see "The Early Courts of Penn. ", by William H. Loyd, pp. 132 fif. 42 In all three states above-mentioned they served during good be- havior. This innovation must be ascribed to the democratic spirit of the delegates rather than to imitation. Appointment by the leg- islature was copied from Tennessee, the governor appointing in Ken- tucky and Pennsylvania. Justices of the peace were appointed in all three states. Ohio made them elective in the townships. A committee on the qualifications of electors was ap- pointed on the 13th, consisting of Morrow, and Paul of Hamilton County, Kirker of Adams, Grubb of Ross and Bair of *::::...” Morrow reported for the committee on the 13th. On the l6th the report was considered in committee of the whole and several amendments were reported to the convention. On the 22nd, a mo– tion was made to strike out the word "white" in the first section thus giving the negro the right to vote. This effort was defeated by a vote of nineteen tº rºse.” An effort was then made to strike out the clause "And who have paid or are charged with a county tax", but this effort was decisively defeated. Its effect, however, as a limitation on suffrage was largely destroyed by the last section of the article which provided, "That nothing contained in this article shall be so construed as to prevent white male persons above the age of twenty-one years who are compelled to work on the roads of their respective townships or counties, and who have resided one year in the state, from having the right of an elector". The two motions, above-mentioned, having failed, a third was proposed which read as follow 3: "Pro- vided that all male negroes and mulattoes now residing in this territory shall be entitled to the right of suffrage, if they shall within __ _months make a record of their citizenship". (l) Journal, pp. 95, 96, 100. (2) Journal, p. 115. 44 ſº *** 2/3 2. 23.2 - ſ - The committee on Bill of Rights was appointed on the 4th of November and consisted of nine members. Very little information as to this article can be gleaned from the journal. A report was made by Goforth for the committee on the llth; it was considered in committee of the whole on the 13th, receiving several ºne-ent.” An effort on the 20th to insert a clause making belief in God and a future state of rewards and punish- ments necessary qualifications for office failed by the decis- ive vote of thirty to three. The levying of a poll tax was for- bidden by a vote of twenty-six to seven. The article, as finally adopted, was, for the most part, the conventional bill of rights. It contained the usual Statement of the doctrine of popular sovereignty, it forbade slavery, guaranteed freedom of conscience, freedom of speech, contained a well selected list of provisions providing against unjust prosecution in the courts and the usual and important provisions against ex post facto law and laws impairing the obligation of contracts – twenty-eight provisions in all. For information as to the adoption of this article, one is forced to rely again largely on the accounts of Cutler and Burnet. Cutler states that he prepared all that part of the article which deals with slavery, religion, schools and educa- tion, and ascribes to Baldwin the parts dealing with proceedinge (2) at law. (l) Journal, pp. 90, 95, lll. (2) Life and Times of Ephraim Cutler, p. 77. 45 As regards this article, it is not difficult to trace the indebtednese of the convention to other constitutions. The majority of the provisions were taken verbatim from the consti- tutions of Pennsylvania, Kentucky and Tennessee; for a few they were indebted to Virginia and Massachusetts. Some were modified to suit their individual tastes. The section prohibiting slavery deserves passing notice. It is stringent in its provisions and is further strengthened by the clause in the section on amendments that, "no alteration of this constitution shall ever take place so as to introduce slavery or involuntary servitude into this state.” Cutler relates that the committee, on invitation, met at the home of President Tiffin where the "exciting subject." of slavery was immediately brought up. Mr. Browne proposed a Section which introduced limited slavery. An age limit was fixed at which time slaves automatically became free. This proposal Cutler ascribes to **** * he is at great paine º to show the probability of his view. He opposed the section on the ground that the Ordinance was a compact whose provisions could not be set aside at will and asserted that they should either include a section forbidding slavery or not ment ion it at all, in which latter case the Ordinance would be binding on their action. (1) Article VI, section 5. (2) Life and Times, etc., pp. 74, 75. He insists that the section was in the handwriting of Jefferson and he gives the substance of a conversa- tion with Worthington who quoted Jefferson as being in favor of slavery for a limited period. Also the substance of a conversation with Morrow to the same effect. 46 Baldwin, the only practicing lawyer on the committee, concurred in the view that the Ordinance was legally a compact and binding on the state independent of their ...” Browne observed that the greatest men in the nation thought the section as he introduced it a step toward the general emancipation of the slaves and was preferable to the section proposed by c...” The section on slavery, as drafted by Cutler, was adopted, so he tells us, without change by the convention in spite of ef- forts to weaken it. On one occasion, "a material change was (3) introduced" which was rejected by a majority of one vote. (l) This view of the perpetually binding force of the Ordinance of 1787 was generally entertained at the beginning of the nineteenth century. It was finally overthrown by judicial decisions of the Supreme Court of the United States. - See Strader v, Graham, 10 Howard, 82; and Pollard's Lessee v. Hagan, 3 Howard, 212. In these decisions it was held that no statute for the government of a territory or for its admission as a state could operate as a constitutional limitation upon such state or upon its legislature after its admission into the Union. Otherwise the prin- ciple of the equality of states would be violated. See also Coyle v. Oklahoma, 221 U. S. , 559. The Supreme Court of Ohio has, however, recently held that the Qrdinance is still in force in Ohio. See State of Ohio. v. Boone, 84 Ohio State Reports, 346 (1911). (2) Life and Times of Ephraim Cutler, p. 75. (5) Ibid, p. 77. Quillin in his work "The Color Line in Ohio" appar- ently refers to this vote when he says that the idea of introducing slavery into Ohio "was entertained and even came within one vote of passing"; though he does not give his authority for the statement. Cutler's discussion hardly justifies the inference that this vote was on the straight proposition, “siavery or no slavery" and it seems unlikely that a convention which came so near giving the negro the right to vote and incorporated a provision which aimed at perpetual exclusion of slavery should have excluded slavery by so narrow a margin. See F., U. Quillin, The Color Line in Ohio, pp. 15, 17. 47 The theory that the so-called Jeffersonian party was *… --- anxious to introduce slavery is not well substantiated. The representatives of that party in the convention were not a unit on the subject or the provision would have been incorpor- ated. In the pre-convention campaign, Tiffin was accused by his opponent, Elias Langham, of wishing to legalize human slavery. Tiffin replied to the charge in a signed statement in the Scioto-Gazette that "even were it possible to establish slavery here - which it is not, because it was forever pro- hibited by the Ordinance of 1787, - I would regard its intro- duction as being **** injury we could possibly inflict upon our posterity". (l) Gilmore's Life of Edward Tiffin, p. 65. An anonymous letter in the Gazette at the same time is quoted by Gilmore as follows: "It is well known to hundreds of people living in this territory that Dr. Tiffin, before leaving Virginia, set free his slaves for whom he refused an offer of 1000 lbs". The whole subject of whether the Virginians desired slavery is discussed by Gilmore, pp. 72-76. Also a further argument against that view is found in a "Private Memoir of Thomas Worthington" by his daughter. She asserts that Tiffin and Worthington not only emncipated their slaves in Virginia but brought them to Ohio and provided for them. pp. 18 ff. 48 Brief articles were adopted by the convention on the subjects of Militia Officers, Civil Officers, Official Oaths, Bribery at Elections, New Counties, the Seat of Govern- ment, Amendments to the Constitution and Boundaries of the state.” Amendments could be made only in a convention called for that purpose. Such a convention could not be called until after 1806 and then must be authorized by a two-thirds vote of the General Assembly. The people having been authorized to vote on the subject by the General Assembly, it was necessary that they ratify it by a majority vote of the citizens of the state voting for representative. These provisions made amendment difficult with the result that no change occurred for nearly fifty years. The provision perpetually excluding slavery might have had moral force but certainly no legal force. The convention had no power to bind posterity on the subject. (l) A clause in the section on the boundaries of the state, suggested Burnet tells us by a hunter who happened to be in Chillicothe at the time of the convention, was instrumental in bringing victory to Ohio in the famous boundary dispute of the thirties with Michigan - the so-called Ohio-Michigan War. 49 As early as the 13th of November a resolution was introduced relative to the submission of the constitution to the people for their ratification or rejection. This resolution was considered in committee of the whole on the 13th. It provided for a vote on the constitution by the electors of the state. If ratified, it was to go into effect as provided by the schedule; if rejected, then a committee of the convention, properly author- ized by the present convention, was to proceed "to call another convention for the purpose of amending this or forming a new con- stitution to be confirmed by the said convention without further reference to the resis." This resolution, it will be noted, only partially recognized the right of the people to endorse or reject the conventions's work. It implied that ultimate sov- ereignty, so far as Ohio was concerned, rested, for the time being, in the convention. The right of the second convention to confirm its work was to come, not from the people, but from the convention now sitting. Prudence might dictate that the people be consulted – that was about all this resolution meant. Even in this form it was rejected by a vote of twenty-seven to seven. Those who supported it were Cutler, Gilman, McIntire and Putnam of Washington, Wells and Updegraph of Jefferson and Reily of Hamilton County. - The opponents of the resolution based their action on an "honest desire to save labor and strife and prevent an unnecessary loss of ...” Cutler and Burnet (Federalists it must be remembered) ascribe to the delegates personal reasone for their action – haste to get the state government under opera- ºx tion in order that they might the sooner occupy the important offices. (I) Journal, pp. 96, 97, 98. (2) Burnet's #te."p. #54. (3) I —Herº: Life and Times of outler, Dr. 12-to- - 5O Burnet condemned the convention's action severely. Referring to submission, he says: "That proposition would have been strictly republican and proper under any circumstances, but particularly so in that case as neither the people nor their representatives had been consulted or had exercised any agency in forming the law, by the authority of which the con- vention had been called", 1) Cutler insisted in the convention that submission would require but two months, resulting in little delay or expense. His effort failed because, as he ex- plains, "office was their aim and they were satirica.” This struggle presents the anomaly of the supporters of Jefferson and his administration opposing a popular verdict on the con- stitution and the Federalists favoring it. Such an alignment can be explained only by remembering that local issues and conditions rather than national policies were the vital forces controlling the conduct of the delegates. Undoubtedly, the people would have ratified the con- stitution had it been submitted. They immediately filled all the important state offices with those who favored statehood and for twenty years the same men as leaders of the Republican party were largely in control. Not until the third decade of the century was there a real party division in the state and it A9.cº wai`- was not until the fourth decade that the Republican party ceas- ed to dominate the situation. (l) Burnet's Notes, p. 352. (2) Life of Cutler, p. 80. 51 Statehood had been a prominent issue in the campaign for the election of delegates and the attitude of the conven- tion Was a fairly accurate index, therefore, as to the atti- tude of the people. If the constitution had been submitted, statehood, again, would have been the prominent issue rather than the intrinsic merits of the constitution itself. Over twenty petitions for admission as a state containing several thousand names were received by Congress during the session of 1801-3 and not a single petition to the sº.” The attitude of the territorial legislature on the subject, on the one hand, and the attitude of the convention, on the other, may be explained partly by a change of sentiment and partly by the important change in the qualifications for voting al- ready referred ...(?) º In passing judgment on the convention's action as to submission, one must not overlook the prevailing practice of the period. During the Revolutionary period, only two states - Massachusetts and New Hampshire — submitted their constitutions to a popular *** after the adoption of the Federal con- stitution the practice did not develop rapidly for that instru- ment was ratified in conventions. The Tennessee and Kentucky conventions had confirmed their work without submission. (1) Annals of Congress, vol. 12, 7th Cong. 1st sess., p. 1106. (2) Freehold in 50 acres of land required for voting under the Ordinance; the enabling act practically authorized manhood suffrage, (3) For a discussion of this point, see Dodd, The Revision and Amendment of State Constitutions, p. 25; also, The Peoples Law, pp. 107-1ll. 52 The Pennsylvania convention º: #720 indulged in what has been 1) called "informal submission". It drafted a constitution and then adjourned for a few months that the delegates might deter- mine the popular attitude by indirect means rather than by for- mal submission to the people. Having reassembled, the delegates - made a few changes and then ratified the constitution without submission. Of the states revising their constitutions between 1787 and #3; in New Hampshire alone the people were formally º & consulted. Randall and Ryan call attention to the fact that the first constitutions of twenty-one states *::,” original 3 thirteen have not received popular ratification. (l) Dodd, The Revision and Amendment of State Constitutions, p. 65. (2) Other states revising during this period: Penn., 1790; S. C., 1790; Del. , 1792; Vt., 1793; Ky., 1792 and 1799; Tenn., 1796; and Ga., 1798. None of these was submitted. - In recent years such southern states as S. C., Miss., and Ala. have adopted constitutions without popular ratification. For a full presentation of the subject of popular ratification, see Lobingier, The Peoples' Law. For New Hampshire, see pp. 180-190. Jefferson was probably the first to propose it, Lobingier, pp. 145-146. (3) Randall and Ryan, A History of Ohio, vol. III, p. 125. On November 16th, a committee composed of one delegate from each county — nine in all — was appointed to consider the proposals of Congress in the enabling act and make report. The committee reported on the 24th and the report, which appears to have favored unqualified acceptance of the conditions imposed by Congress, was rejected by the convention. Congress proposed (l) that section sixteen or its equivalent in every township should be granted to the inhabitants of the township for the Support of the schools; (2) that the salt-springs on the Scioto and Muskingum Rivers should be granted to the state; and (3) that the one-twentieth part of the net proceeds of lands sold by Congress lying within the state should be applied to the laying out and making of *#. roads from the Atlantic to the Westward through the gtate. These concessions were made on condition that all lands within the state sold by Congress should be exempt from taxation for five years from date of sale. This proposed exemption of lands from taxation for a limited period (2) was suggested by Albert Gallatin. There was a feeling in the convention that Congress was driving a hard bargain. The pro-state party, however, hesitated to risk the danger of offending Congress by a non- acceptance. Cutler says that General Putnam "made the great speech of the session" on this question. He argued that such a surrender of the right of taxation without more adequate compensation "was placing a heavy burden on the present in- habitants". When the question of acceptance came to a vote, "a lively interest", says Cutler, "was exhibited by the people (1) Annals of congress, 7th Gong., 1st sess. , Vºl. 12; 92.3499-1193. (2) This money was used in building the famous Cumberland Road. and the court house was crowded, and when the yeas and nays were called and resulted, yeas 16, and nays 17, a considerable evidence of popular applause was audibly expressed. After the vote was taken, those members who had voted in favor, signified their entire satisfaction in the result. The con- vention then proceeded to make propositions on their part Which were accepted by cºre.....” The modifications in favor of the state made by the convention provided that some additional lands should be set aside for school purposes, that all lands so designated should be vested in the state legislature in trust for said purpose and that three per-cent of the net proceeds of the lands sold should be applied to intra-state roads under the direction of the legislature. Thomas Worthington was appointed by the con- vention as its special agent to secure the as sent of Congress to the modifications and he was successful in his effort 3. (l) Life and Times of Ephraim Cutler, pp. 78, 79. 55 Having **** work, the convention adjourned l - on the 29th of November. Though political parties were re- presented in the convention, no widely divergent views on government developed to lengthen their labors and no delegate hesitated to affix his signature to the finished product. In fact, the Federalists appeared to be about as well satisfied as their opponents. Cutler says that Wells, Putnam and Gilman were well pleased with the product and he emphasizes his own success in securing the *#ºn of those principles which he conside- ered most important. Evidences of the haste with which the constitution was drawn reward even a superficial reading of the ...” The schedule provided for the election of the state officers and the state legislature on January llth, 1803, and the meeting of the legislature at Chillicothe, March 1st. The activity of the Federalists practically ceased with the adop- tion of the constitution and the election was easily controlled by the Republicans. When the votes were opened for governor March 3rd, Tiffin was shown to have received 4564, none having been cast against him. (l) The convention had been in session 25 days. Total cost to the state - $4556.75. Life and Times of Cutler, p. 70. For example, article I, sec. 7: "No person shall be a senator who has not arrived at the age of thirty years, and is a citizen of the United States; shall have resided two years in the county or district immedi- ately preceding the election, unless he shall, have been absent on the .#.”::::::: of the Úniteå §§§, or 3% ### štášš and shall moreover have paid a state or county tax". Strictly interpreted, this language results in an absurdity. | ; : 56 The natural conclusion is that the Federalists refrained from voting as the above vote was small for an approximate popula- tion of 50,000. This view is corroberated by a letter of Rufus J. Meigs, Jr. (later governor) to Thomas Worthington of the date of January 31st, 1803. After announcing that the Re- publicans swept the Federalist stronghold of Marietta, he con- tinues : "The Federalists here have grown (if possible) more bitter than ever. They fulminate their anathemas against the administration with unprecedented malice. Such was their ob- stimacy that (knowing that they could not carry a Federalist governor) they would not vote for governor at all, but threw in blank tickets". l For twenty years there was seldom an opposition ticket in Ohio. The state cast its electoral vote for Jef- ferson, Madison and Monroe; for Clay in 1834 and Jackson in l828 and 1832. Joseph Vance, a Whig, was elected governor in 1836 and Harrison received the electoral vote in 1836 and in 1840. The people unquestionably concurred in the state- ment made by Tiffin in his second inaugural address that "The prediction of those who were inimical, to our assuming the rank we now sustain in the Union thinking us incapable of self government, inadequate in resources, and pursuing a pol- icy destructive to the population, improvement and best inter- ests of our country, are happily and experimentally refuted". (2) - (1) St. Clair Papers, vol. I, p. 247. (*) Senate journal for 1805-6, p. 11. 57 THE SECOND CONVENTION. The middle of the nineteenth century was marked by a popular unrest which resulted in important changes in the realm of constitutional law. This dissatisfaction with exist- ing forms of government was not confined to the United States but, on the contrary, was even more pronounced in Europe. A wave of revolution swept over the latter continent causing kings to totter on their thrones. Only by granting to the people a much more extensive participation in the activities of government was the movement checked and the dissatisfaction removed. Even far off Japan caught the spirit of the times, awoke from her lethargy and started on a career of develop- ment which has brought her to the forefront of nations. The movement, for the most part, Was in response to the growth of the idea that government rests on the consent of the governed and ought to be more fully subject to popular control. Fortunately, in America this desire for a purer dem- ocracy could be attained by legal means. The state constitu- tions as well as the Federal provided for their own revision (l) as the popular will might decree. In Ohio, the democracy of Jefferson, carried forward so vigorously, even recklessly, by Jackson, attained great pop- ularity. Although the leading framers of the first constitu- tion had been faithful followers of Jefferson, his followers a generation later, had come, with the aid of Jackson, to - (l) Some early constitutions, it is true, provided no method of amendment. The theory was, however, in these cases, that the people could amend when they chose. 58 interpret this democracy somewhat differently. They, there- fore, became dissatisfied with the organic law of the state and led the movement for a convention to adapt the constitu- tion more nearly to the spirit of the times. A secondary idea of influence may be expressed in the current phrase of the period – "The world is governed too much". Aroused and fostered by an influential group of writers in the field of Economics and Political Science, this idea grew in popularity. It fiš in well with the growing distrust of the legislature for it sanctioned restrictions on legisla- tive activity. It was not conceived, however, as a thing apart from the democracy of the times. It was a viewpoint with which Jefferson himself was thoroughly in sympathy. Broadly speaking, then, democracy and individualism, if we conceive them as distinct, furnish the background for the second constitutional convention of Ohio which met in 1850 and completed its labors the following year. Aside from this changed political viewpoint, there were, however, certain inherent defects in the old constitution, which made revision imperative. 59 A perfect fever for revision seized the American states at the middle of the century. While the Ohio conven- tion was in session, conventions in five other states were engaged in a similar ….” Numerous other conventions for revision were held just before or soon after this a....” while the subject of revision was discussed in the legisla- tures and political campaigns of others. New states, too, were being admitted with unusual frequency at this time and a new constitution for *gº involved the work of a con- 7 - ºw vention ca.11ed to draft it . An examination of the various state constitutions of the period shows that the tendency toward more direct control of the government by the people manifested itself in such Way 8 as: the abolition of all restrictions on suffrage for the White man; the popular election of all officials, legislative, execu- tive and judicial; in shorter terms of office; in numerous restrictions on the activity of legislatures; and in occasional applications of the principle of the referendum. In some states the powers of the executive were increased on the theory that he directly represented the whole people and would be responsive to their will; in this particular, however, Ohio still held back. (l) Ky., Va., Md., Ind., Mich. (2) ...' ... iś43. H. J." 1844, La., 1845; again in 1852; N. Y., 1846: Ill., 1848; Constitutions were rejected as follows: , Mass. , 1853; Mo., 1845–6; and Del., 1852. For the rejected constitutions, see Dealey, Growth of American State Constitutions, p. 48. (3) Texas, 1345; Iowa, 1846; Wis., 1848; Calif. , 1849. 6O Rotation in office, too, became the settled practice of the period with two apparent effects - deterioration in the qual- ity of service rendered and an increased intensity of parti- san spirit . Whether it be true, as some maintain, that the Feder- al constitution represents an effort to impose checks on the people and to perpetuate the ascendency of an arºssº.” it can be stated with confidence that the state constitutions of the period under consideration represent a determined effort to break down all protection for vested interests. Special favor 8 for none, equality for all was the keynote of the period. Few of the states had continued longer under a single constitution without modification than Ohio. A constitution written in 1802 at the beginning of the century when the popu- lation was approaching 50,000 served without change for nearly fifty years until the population was nearing the two million ---.” At the time the convention met in 1850, only four or five men who had sat in the first convention, were still living. John Reily, after a long and useful life, died while the second C On Vent ion was in .......” ***** was a guest of the convention while it was in session . . Ephraim Cutler died in 1853. His son sat in the second convention as did the son of Thomas Worthington. (l) J. Austin Smith, The Spirit of American Government. . . . See, also, Charles Austin Beard, An Economic Interpretation of the constitution of the United States. (2) k (3) See James McBride s Pioneer Biography for an interesting sketch of Reily. (4) Debates of the convention, vol. I, p. 181. 61 The framers of the constitution of 1802, as has been Been, made no provision for piece-meal revision. Amendment could only be accomplished in a convention called for that purpose. The first step toward the calling of a convention rested with the General Assembly, a two-thir; vote being nec- e G8 ary to submit the question to the rºle.” If a majority of those voting for members of the lower house of the legisla- ture voted for a convention, the section provided that the general assembly must call the convention at its next session, that the number of members must equal the number of members of the general assembly, that they should be chosen in the same manner and place and by the same electors as members of the general assembly and should meet within three months after their election "for the purpose of revising, amending or chang- ing the constitution". The practical result of these provisions Was to make amendment exceedingly difficult - so difficult, in fact, that only an overwhelming sentiment in favor of revision could bring it about. *--- (*) The clause, "Whenever two-thirds of the general assembly shall think it necessary", was interpreted by the general assembly to mean two-thirds of each house rather than two-thirds of the total membership. See House Journal, 1848-49, p. 573. 63 Scarcely a dozen years had passed before men began to talk of a revising convention. Singularly enough, the first formal proposal for a convention came from one of the men who had been most prominent in the formulation of the constitution of 1803. Thomas Worthington, as governor of the state, in his annual message to the legislature, December 5th, 1815, suggest- ed the need of a revision. "It is to be regretted", said he, "that the legislature are so restricted by the constitution as to be unable to make any material change in our judiciary system. I have no doubt but it will in a few years become absolutely necessary to resort to a convention to alter this part of the constitution so as to give more extensive powers to the legis- lature; indeed, with an increased population and the addition of the new counties which the limits of the state will justify, the present constitutional provisions on this subject can not, without great difficulty, be carried into effect. Experience has proved that the present system is both expensive and in- Convenient " , He then suggested the propriety of increasing the salaries of judges and of the addition of a fourth judge to the Supreme Court. It should be noted that the first de- fect to cause difficulty did not result from an excess of power in the hands of the legislature but from restrictions which made it impossible for the judicial system to be adjusted to the expanding needs of the population. **- T (l) Senate Journal for 1815-1816, p. ii. 63 No action having been taken on his suggestion, Gover- nor Worthington, in his message of December 2nd, 1817, urged more strongly the necessity of a new convention. He called at- tention to the great increase of population and argued that the terms of the constitution made the government too expensive and that the time was favorable for making the appropriate *...” His successor, Ethan Allen Brown, followed up with the same recommendation in his first inaugural ...a....” Having but recently been a member of the supreme court of the state, he was greatly impressed with the defects in the judiciary system and urged a convention as the necessary remedy, the defects be- ing, as he believed, "irremediable by the legislature". Acting on his suggestion, the general assembly provided by joint reso- lution for a referendum on the question of a convention, the resolution having passed the hºuse by a vote of 30 to 8 and the Senate by a vote of 40 to ...(? The question aroused comparatively litt, 1 e interest among the people if we may judge by the light vote cast. The returns showed a vote of 6,987 for and 29,315 against the con- ventº.” The vote represented perhaps thirty per cent of the total electorate. Four counties out of fifty-eight failed to make any returns. **- (l) Senate Journal, 1817–1818, p. 15. - (?) fecember 15th,’ 1818; senate Journal, 1818-1819, p. 19%. , e, ,a. (3) Senate Journai, 1818-1819, pp. 139, 140; House Journal, 1818-1919, p. 142. Resolution passed Dec. 25, 1818; see Laws of Ohio, 1819, Vol. 17, p. 213. - (4) Ohio statesman and Annals of Progress, 1788-1900, p. 95. 64 Ohio, at this time, was in the throes of a struggle with the United States Bank and the banking question for the time being overshadowed all others. The large vote against the proposition was in no small degree due to a feeling that the advocates of a convention, were covertly planning to introduce slavery into the state.” The Western Spy, a newspaper of Cincinnati, in its issue of Sept. 18th, 1819, quoted extracts from an oration delivered at Chillicothe by Colonel Edward King, a member of the legislature. He pointed out three defects in the consti- tution: (1) the organization of the judiciary; (3) need of a provision to prevent legislators from electing themselves to office; (3) and need of better control of fiscal affairs and greater responsibility in accounting officers. Under the first head he said that "the court of common pleas, when in the full tide of busines's, more resembled the confusion of Babel than the depositary of justice"; as to the second, he charged that many men became candidates for the legislature for the sole purpose of being appointed, through log-rolling methods, to office. "Is it no evil that interests of state should be regulated by the bargain and sale of offices?" "The cry still is ", he continued, "that the reformers wish to introduce elavery". After arguing that slavery could never exist in Ohio because of the "compact", he concluded; "The man, who would propose it, would be consigned to an infamy (2) blacker than the race he would introduce . " "--— (l) "Various letters from gentlemen of the first respectability in Ohio reiterate the assurance that no friend of amending the constitution of the state which appears defective in many respects has dreamt of abolishing those parts which prohibit slavery even if it could be done, and represent the story as a mere calumny raised to prevent necessary reform". - Niles Register, vol. 16, p. 347, July 17, 1819. (*) The spy favored revision. 65 In some counties, the sentiment was almost unanimous against a convention as, for example, Athens, Washington and Perry; but in a few counties it carried, as Adams and Clinton. l Although the question of revision had been decisive- ly defeated at the polls, the friends of revision were not sat- i8fied to let the matter rest. Worthington, who was elected to the lower house of the legislature in 1821, offered, on December 7th, 1831, a resolution that a joint committee of the two houses be appointed "to inquire into the expediency of recommending to the electors of the general assembly, at the next election, to Vote for or against a convention to amend such parts of the con- Stitution as shall be submitted to the convention when servenes." The resolution passed both houses after the senate had refused by a vote of 21 to 10 to strike out the clause "to amend such parts of the constitution as shall be submitted to the convention when servenes.” The report of the committee was favorable to revision; but it contained the significant proviso that the "con- vention, if called, shall not have power so to amend the present constitution as to introduce slavery or involuntary servitude; or abridge the right of suffrage as guaranteed by the present constitution". The report tacitly admitted that the fear of slavery operated to defeat the project in 1819. It was urged that there was not the remotest danger of an effort to introduce *-- (1) See Columbus Gazette, Nov. 4th, 1819; The Western Spy (Cincinnati) Oct. 16th, 1819; and the chillicothe Supporter, Oct. 13th, 1819. (2) It is worthy of note that Tiffin and Worthington esch, after having served as governor and United States Senator, were both willing to serve the state in the lower house of the legislature. (3) House Journal, 1821-1822, pp. 73, 74. (*) Senate Journal, 1821-1822, pp. 74, 120, 122. 66 slavery. The proviso was deemed necessary to quiet anxious fears. The power of the proviso to bind the convention was discussed. The impression seemed to prevail that the proviso When once endorsed by the people became "the united act of the legislature and the people, in the mode contemplated by the constitution, and the limitations thus imposed upon the conven- tion would be obligatory and beyond which they could not ge.” A well written address to the people was attached to the report. It pointed out the great development in the state – an increase in population from 60,000 to 600,000 thus making Ohio the fourth State in the Union in point of population. "It can hardly be Supposed", says the address, "that so great a change could have taken place without the necessity of a correspondent change in the system of government so as to be fully adequate to the Wants and necessities of the se-unity.” Much space was given to the defects in the judiciary system. Other criticisms of the 99nstitution were (1) the unnecessarily heavy burden of expense °onnected with its operation; (2) the absence of any provision for the submission of amendments to the people without the for- *lity of a convention; and, finally, (3) the defects in its phraseology. It was urged that the convention would be inex- pensive and that, ** spirit being at a low ebb, the times 3 Were auspicious. *-- (*) Senate Journal, 1821-22, p. 122. For a discussion of legislative limitations on constitutional conventions, see W. F. Dodd, The Re- Vision and Amendment of State Constitutions, pp. 73ff; and Jámison, Constitutional Conventions, pp. 344 ff. Jamison's view is that the Convention is bound by any legislative restrictions placed upon it. Dodd inclines to the opposite view. 3) Senate Journal, 1821-1822, p. 121. (3) Ibid, p. 121-126. 67 The report came to a vote in the Senate on December 29th, 1831, and resulted in 16 yeas and 15 nays. A constitu- tional majority being Want ing, the resolution was lost. For almost two decades after 1831 little interest was manifested in the subject of a constitutional convention. The successive legislatures were busy with legislation dealing with taxation, schools, canals and other subjects of importance. Some improvement was made in the judicial system by statute and, as a consequence, the need of a convention received less emphasis. - On January 4th, 1837, after the lapse of fifteen years, & resolution, providing for a vote by the people on the question of a convention, was introduced in the House but received little ºwest.” A similar resolution found its way into the hopper when the next legislature assembled. In stating the special purposes for which the convention should meet, this resolution indicated the political tendencies of the day. The reforms ad- vocated were (1) biennial sessions of the legislature; (3) the election of associate judges and clerks of the courts by popular vote; (3) The limitation of the terms of the judgee and clerks to six years; and (4) the extºn of the term of members of the legislature to two years. The resolution failed to reach & Vote. --- 99 House Journal, 1836-37, p. 167. (*) Ibid, pp. 48, 797. 68 Caleb Atwater, in his history of Ohio published in 1838, urged the necessity of a revision of the cºnstitute.” He saw clearly the deficiencies of the old constitution and the need of reform while recognizing at the same time the barriers in the way of calling a convention. The chief weakness result- ed, in his opinion, from the great power in the hands of the legislature combined with the insignificant position of the executive. The legislature seemed to him to sit too frequently and too long. "Whole millions", he asserted, "have been wasted in useless legislation. Without more restraints on the law- making power; without an absolute prohibition against electing their members to office; this constitution cannot last long, because, our republican form of government can only last while the people are in love with 1...(?) He pointed out the numerous blunders of which the legislature had been guilty and then ex- pressed the view that the veto power in the hands of the gover- nor would interpose a salutary check. The governor's appointive power, too, should be increased. General laws should be changed only with the consent of a majority of the people – an early --- advocacy of the principle of the referendum as applicable to statutory legislation. He viewed the tendency toward a more perfect democracy with some apprehension. The amendments, he thought, should be submitted to the people article by article Bo that each one standing **** would be subject to their *cceptance or rejection. *--_ (1) Caleb Atwater's History of Ohio, Cincinnati, 1838. !?) Ibid, p. 172. (3) Ibid, p. 174. 69 In this respect he advocated a method of amendment which was not followed until the convention of 1912. Attention, too, was called by him to the defective judiciary system. Atwater, however, had in mind no general revision of the constitution; in fact, he would have viewed such a plan with alarm. He had in mind nothing more than a few important sºngs.” In the assembly of 1838–1839 a resolution was intro- duced which may have felt the influence of Atwater's book. It proposed among other things the amending of the constitution "so that members of the legislature shall be prohibited from electing themselves to any office of trust or profit during their term as Representatives or seater...” Occasional contributions appeared in the press during the next three or four years urging the need of reform partic- ularly in the judiciary. Finally, a governor once more got behind the movement. Governor Shannon in his message to the general assembly, December 5th, 1843, urged the submission of the question to a vote of the people. He confined his criticism to the judiciary department. (1) For an account of the life of Caleb Atwater, Ohio's first historian, see the article by C. L. Martzloff in the Ohio Archaeological and - Historical Society Publications, vol. 14, p. 247 ff. (3) Senate Journal, 1839–1840, p. 199. (3) Letter in the Ohio statesman of Columbus in 1843 by Thomas L. Hamar and in the Ohio State Journal of the same year by R. S. Hart of Dayton. see Medary's The New Constitution, p. 81. . . . Hamar, who was perhaps the most popular Democrat in Ohio in the - early 40 s and a man of great ability, lost his life in the Mexican War. For a brief sketch of his life, see Ohio Archaeological and Historical Quarterly, "Ohio in the Mexican War", vol. 21, pp. 288 ff. 70 On January 11th, 1844, Edward Archbold of Monroe County, Who Was afterwards a member of the constitutional con- vention, introduced a resolution in the lower house of the gen- eral as Bembly to submit the question to popular vote. His bill provided that article three only, relating to the judiciary, should be submitted to the convention. The resolution failed to secure the necessary two-thirds vote. This was the final effort for partial or limited amendment of the constitution. A resolution introduced in the House, December 6th, 1845, was defeated on the 26th of February, 1846. The member 8 of the Democratic party were favorable to a convention while the tendency among the Whigs was to oppose it. Once again in the assembly of 1846–47, the proposition was brought forward only to suffer area.” In the assembly of l847–1848 the reso- lution was submitted and defeated by an extremely *** margin. The Senate passed it with the necessary two-thirds vote but it was defeated in the House by a vote of 45 to 31. Here it re- ceived a two-thirds of those present but not **** of the - total membership as the constitution required. The friends of revision were not discouraged by fre- quent defeat but rather encouraged by the evidence of their in- Greasing strength as shown by the successive votes. They, therefore, prepared to renew the struggle in the session of 1848–1849. Governor Bebb, a Whig, urged strongly, in his annual message, January 5th, 1849, the submission of the question: He emphasized the need of four reforms: (1) popular election of of- ficials, (2) the substitution of biennal for annual sessions of *"-- (l) House Journal, 1846-7, pp. 12, 443. Bill introduced by Clement L. Wallandingham. $3) Senate Journal, 1847-48, pp. 27, 456. (3) House Journal, 1847–48, p. 640. |- 71 the General Assembly, (3) limitation of the power of the General A38 embly to create state debt and (4) reform of the *::::::: l A resolution for submission readily **** the Senate but - 2 was defeated in the House by a close vote. The ruling of the chair that the expression in the constitution, "whenever two- thirds of the General Assembly think it necessary", meant two- thirds of each House voting separately was sustained, on appeal, thus defeating the resolution. A little later in the session, however, when party friction had somewhat subsided, a resolution for submission was again introduced in the House by Goddard *(s) w - Muskingum County and passed by a substantially unanimous vote. The difficulties in the way of the passage of euch a resolution were exceedingly great in a period when partisan spir– it ran high and the two leading parties were about evenly bal- anced in strength. When the Democratic party showed itself friendly to the idea of a convention, the Whigs immediately saw in this move some more or less *gºverto: purpose in the direction of increased party power. - (1) Senate Journal, 1848-49, pp. 81, 573; passed Senete March 13th, 1849. (2) House Journal, 1848-49, pp. 140, 454. voted on February 27th, 1849. The House rejected the resolution in various forms three times during the session. - (3) House Journal, 1848-49, p. 768. Passed March 23rd, 1849. Two Whigs - Pennington and Phillips - voted adversely. It was asserted in the convention wihtout contradiction that the Whig Senator from Ashtabula County who was a strong supporter of the con- Vention idea secured the adhesion of the Whigs to the resolution by threatening to vote with the Democrats in favor of an amendment to the reapportionment bill. The amendment would have repealed the section which divided Hamilton County into two districts. The Ham- ilton County delegation was ordinarily solidly democratic. By divid- ing it into two districts the Whigs hoped to meet with some success - in that county. See Debates of the Convention, vol. II, p. 433. * The Cincinnati Atlas classified this legislature of 1848-49 politically as 52 Democrats, 53 Whigs, and 3 nondescripts. The session lasted longer than any previous one. See Niles Register, vol. 75, p. 122. 72 Submission having been finally secured, the endorsement of the people was yet to be obtained. Defeat could come as readi- ly from indifference as from positive opposition since a majority of all those voting at the election must vote affirmatively on the proposition to bring success. Failure to vote on the pro- position at all had the same effect as a negative vote. The Democratic press was avowedly for the convention; the Whig press, on the other hand, was divided, some papers being favorable but lukewarm while others were mildly hostile. No Vigorous organized effort was made to defeat the calling of the Convention. The opponents of the convention trusted to the natu- ral indifference of the voter and they, therefore, pursued a policy of no agitation or reference to the ºst.” Perhaps the most influential Democratic organ of the state was the Ohio Statesman at Columbus. Its editor, Samuel Medary, a leading Democratic politician of the state, was a warm advocate of the convention. His zeal led him to publish during the six months prior to the vote by the people a weekly paper Whose avowed object was to bring a majority of the electorate to the point of voting favorably on the proposition. The papers Were afterwards bound in book form under the title, "The New Constitution". The volume includes, among other things, extracte from the press of the state, a large number of contributed (1) "The Democratic press generally have entered into the discussion of this subject with an earnestness proportioned to its magnitude. But it is not so with the Whig press. By most of them it has been passed over as silently as possible - a few have openly opposed it, but not with argument. They have appealed to the fears of the timid". Quoted from the Urbana Expositor by Medary in The New Constitution, p. 378. An editorial in the New Constitution after the election repeated the charge, p. 377. The Ohio State Journal of Columbus, perhaps the leading Whig paper of the state, argued, in an editorial of August 25th, 1849, against a convention and stated that the vote of its editor would be against it. 73 articles dealing with the subject of constitutional change and a brief sketch of the early constitutional history of the state. The publication has much value as an index to the attitude of both press and people. It had a wide circulation and no doubt Wielded a strong influence. The Democratic party conventions in the various coun- ties during the summer of 1849 usually tokºtº on the call- ing of a convention. The same was true of the Free Soil party. Such endorsements usually included a list of needed reforms. A large number of such resolutions are quoted in The New Con- stitution. They included almost uniformly manhood suffrage for the white man, popular election of all officials, no state debt or at least not without a referendum, judicial reform, biennial sessions of the legislature, as well as various other restrictions on its activity. Many other reforms were called for but with less unanimous voice as, for example, a uniform rule for taxation, no special privileges to banks or corpora- tions, single legislative districts, a self-adjusting apportion- ment bill for members of the state legislature and, finally, the repealability of all statutes. Other exceptional demands were - the executive veto as a protection "against a banded crew of log- *; isºlater...i.amaw, power in the hands of *#) boards, the free grant of state land to bona fide settlers, the taking away of the power of the state to authorize the *- (l) St. Clairsville Gazette. See The New Constitution, p. 33. (2) Ohio Union " " " h p. 189. (3) The Zanesville Platform, (Free Soil) The New Constitution, p. 272. 74 (l) . emission of bills of credit, ; election of United * 2. 3 Senators directly by the gºrie, and woman suffrage. 4. The resolution was submitted to the voters October 9th, 1849 and was decisively ratified by the *** At the legislative session of 1849–50, provision was made for the elec- tion of delegates on the first Monday of April and for the as- sensing of the convention the first Monday of the following (6) - May. Provision was not only made as to the time of meeting and method of election but also as to the pay of members, and the journal of the convention. An appropriation of forty thoug- and dollars was made to cover the expenses of the convention. A reporter was selected and a proviso was inserted in the law requiring the new constitution to be submitted to the people for their ratification. The binding force of these two features is open to question. The convention consisted of los delegates. Four Were elected later to replace those who resigned making one hundred and twelve delegates in all who sat in the convention. - (l) Democratic Convention in Lucas County, See The New Constitution, p. 265. (2) Resolutions of public meeting in Columbus, Ohio, March 30, 1849. See The New Constitution, p. 5. (3) Free Soil party of summit County, August 9th, 1849; See The New Constitution, p. 191. - (4) For the resolution, see Laws of Ohio, vol. 47, p. 395. (5) The vote for the convention was 145,698; against, 51, 167. Lorain County had the unique distinction of registering an affirma- tive of vote 3,564, but two votes being in opposition. (6) Laws of Ohio, vol. 48, p. 19. 75 THE PERSONNEL OF THE CONVENTION. Let us examine the character of the men who sought and won the honor of sitting in this convention at a salary of three dollars per asy.” One finds in the list many men of political and legis- lative experience. At least fifty of the number had served in the lower house of the General Assembly and thirty in the upper house. Over one half the number had served in one or the other of the two houses. Eleven had served one or more terms in Cong— ress. Those with such experience were Vance of Champaign, Medill, Mason, Andrews, Chaney, Florence, Kennon, Leadbetter, Sawyer, Chambers and Hitchcock of Geauga. Fifteen had sat on the bench in the courts of the state of whom eight had been president age.” The delegates were clearly familiar with the varied activities of the state and knew from practical experience the defects of the old constitution. In length and variety of service to the state Peter Hitchcock stood first. Hitchcock's influence in the convention Secured for him the title of the "Father of the constitution of Ohio". He was born in connecticut in 1781, educated at Yale and removed to Ohio in 1806. . His political experience began in the legislature where he served in the Senate three terms receiving the honor of being elected speaker his last term. *- \ (l) An act of January 29th, 1847, fixed the compensation of members of the legislature at $3.00 per day and mile age at the rate of $3.00 for each twenty-five miles of travel. See Laws of Ohio, Vol. 45, p. 19. Members of the convention drew the same salary. Laws of Ohio, vol. 48, p. 19. (2) These facts gleaned from The Ohio Hundred Year Book by E. L. Gilkey. This volume includes lists of the state officials since the grant of statehood. , 76 After a term in Congress, he was elevated to the supreme bench of the state in 1819 in which position he served in all twenty- eight years. No other judge has equalled his record for length of service in that position; and few have adorned the bench more than he. Though old in years when the convention met, he was still vigorous and, being a Whig, he wielded a strong conserva– tive influence through his work on the floor of the sººn.” As a presidential elector he voted for Clay in 1844. His son Reuben Hitchcock represented Cuyahoga County in the convention and was sufficiently prominent in Whig circles to be a leading candidate of that party for United States senator in 1848-1849. He received the full Whig vote on one ballot. Another son sat as a delegate in the convention of 1874. . . )) Joseph Vance had begun his cartººty years before as a member of the lower house of the General Assembly. He went to the upper house, to Congress and in 1836 became the first Whig governor of the state. Owing to his advanced age he took little active part in the work of the convention and before its adjourn- ment suffered a stroke of paralysis which ultimately resulted in his death. Another prominent Whig was Henry Stanbery of Franklin County who at that time held the position of Attorney General of the state by appºintment of the General Assembly. The Office of Attorney General was created by act of February #;" 1846, and Stanbery was the first incumbent of the office. *- (1) See Article by D. K. Watson on The Judiciary of Ohio in Randall, and Ryan's History of Ohio, vol. 5, p. 104. See also Howe's Historical Recollecti of Ohio, vol. I, p. 687. (2) Laws :::::::: vol. 44. p. 45. Amended March 19th, 1849 and the office made elective. Laws of Ohio, vol. 47, p. 39. 77 He possessed perhaps the best legal mind on the floor of the con- vention and was a 3trong and resourceful debater. His views sel- dom prevailed, however, as he was too conservative to suit the temper of the convention. He became Attorney General of the United States in 1866 by appointment of President Johnson but resigned to become counsel for the latter in his impeachment tºº.” Reuben Hitchcock's colleague from Cleveland, S. J. Andrews, was superior judge in that city, had served one term in Congress and was the Whig candidate for United States Sena- tor in 1851. Educated at Union College and at Yale, he was long one of the leading attorneys at the Cleveland bar. Almost 3, quarter of a century later he sat , in the convention of 1873-4 and was one of its leading ---....” Simeon Nash of Gallia County, one of the most learned jurists Ohio has produced, was a judge in the seventh district for many years. Having received an excellent education at Am- herst College, he was at the time of the convention perhaps the leading legal writer of the state. His digest of the judicial decisions of the Ohio supreme court, consisting of twenty vol- umes, was perhaps his most important work. He was active on the floor of the convention, throwing the weight of his learning and eloquence against the radical tendencies of the controlling ºrity." - - Another member of similar training and bent with Judge Nash was Judge Elijah Vance of Butler County. He had served in both houses of the General Assembly, as speaker of the Senate **- (1) See Henry Howe's Historical Collections of Ohio, vol. I, p. 652. (2) See "Bench and Bar of Ohio", vol. II, p. 199: (3) Howe's Histºrical collections, vol. I, p. 681. 78 and as president judge of his district. The following incident is an index of his character. Prior to the election of delegates to the constitutional convention, a meeting of the Democracy of his county passed resolutions instructing the delegates from that county to support the unconditional repeal of all legisla- tive acts. This was one of the vital questions before the con- vention as we shall see later. Judge Wance, though adhering to the Democratic party, at once sent a letter to the press of the county refusing over his signature to be bound, if elected, by the instructions. Having been elected by a large majority, he opposed unconditional repeal on the floor of the convention. Thereupon, at a meeting of protest held in his county, he was called upon to resign. Though the meeting was not largely at- tended, Mr. Wance declined to be put in the false light of ap- pearing to misrepresent his constituents and, therefore, resign- ed. A special election was called at which he was triumphantly resisted.” This incident raise 3 the interesting question of the right of a constituency to instruct its delegate. One is forced to the conclusion that no legal right of instruction exist 3 in our system of government. Vance represented the electorate of Butler County as a whole and was certainly under no legal obli- gation to obey instructions coming from any part of that elec- torate and there appears no reasonable ground on which to **, instructions from any authority lower than a sovereign power. -- (1) He was reelected by a majority of 1500. See Ohiº State Journal, February llth, 1851. Quoting from the Cincinnati Nonpareil : February llth, 1851; "The Judge was yesterday, escºrted into the city to College Hall by about sixty of his friends with flags flying and horses gaily trimmed". (2) Debates of the convention, vol. II, pp. 32°, 97°. Also Jameson's Constitutional Conventions, PP. 340 ff. 79 As one of its members, Washington County sent William P. Cutler whose father, Ephraim Cutler, we have already noted as a prominent member of the convention of 1803. William P. Cutler was a man of character and ability. He had sat in the General Assembly for three terms serving as Speaker of the House for one term. Some years after the convention he served a term in Con- gress where he took a vigorous stand against slavery. He was ( 1) also prominent as a promoter of railroads in southeastern Ohio. w William Medill, who was elected president of the con- vention, came from Fairfield County. He was an able lawyer and a man of much political experience. He had served three terms in the General Assembly, two terms in Congress and as Assistant Postmaster General under President Polk. Subsequent to the con- vention, he served both as Lieutenant Governor and Governor of his state. His position as presiding officer was a peculiarly difficult one because of the highly partisan character of the convention. It was a high tribute to his fairness that not a single appeal was taken from his decision during the whole period of their deliberations and that he received the unanimous thanks of the convention for his impartial attitude. A more brilliant man than Medill was Rufus P. Ranney of Trumbull county. He studied law with Joshua R. Giddings and Benjamin F. weae and was long the law partner of the latter. He was a Democrat of somewhat radical or perhaps we should gay progressive tendencies and his influence on the constitution as adopted was second to none. His greatest service to the state was as a member of the Supreme Court to which important position he was appointed by the legislature While the conven- tion was still in session. "--— s (l) See Life of ſm. P. Cutler by E. C. Dawes • 8O After being defeated for governor by Dennison in 1859, he was again elected to the supreme bench in less.” Joseph R. Swan of Franklin County brought to the work of the convention a highly trained legal mind and a long judic- ial experience. His judgment on all questions involving legal knowledge carried great weight as h; was Óne of the state's leading writers on legal **.*. was elected to the supreme bench of the state in 1854 but was defeated for renomination in 1859 because he had written an opinion to the effect that a state Court could not interfere with the operation of the United States Courts. The question involved was the enforcement of the Fugi- tive Slave Law and, though the decision was correct, it proved exceedingly unpopular in Ohio at that time when public sentiment was running so strongly against the enforcement of an obnoxious law.” The two most prominent delegates from Cincinnati were William Groesbeck and Charles Reemelin. The former has been characterized as one of the greatest lawyers and orators America - has rease.” His reputation became national as a result of his work as counsel for Andrew Johnson in his impeachment trial. Having graduated at Miami University in 1835, he was still a young man at the time of the convention and yet one can not read the debates without feeling the power of his intellect. When the Constitution was submitted to the people, he wrote an extended series of articles explaining its provisions. (1) See Bench and Bar of Ohio, pp. 69-79. Also Howe's Historical Collections, vol. I, p. 512. (2) His most noted legal work was Swan's Treatise for the use of justices of the peace. He was also the author of Swan's Statutes of Ohio. (3) Ex parte Bushneii, 9 Ohio State Reports, pp. 77-325. (4) Bench and Bar of Ohio, vol. I, p. 263. 81 Of the more radical Democrats, perhaps the most inter- esting and certainly the most eccentric character was Charles Reemelin of Cincinnati. Although the Democratic party had a decisive majority in the convention and could easily prevail when its adherents stood together, yet there was no complete agree- ment as to What the party expected of them. Much time was spent in trying to determine the essential doctrine of a "simon pure" Democrat. As the work of the convention progressed, a more or less Well marked division between the radical and the more con- servative elements developed. Twelve Democrats who united with the Whigs to prevent the incorporation into the constitution of certain doctrines which they considered dangerous were in great disrepute with the remainder of the party. At times the feeling became exceedingly bitter producing a situation which was im- mensely enjoyed by the Whig minority. The Whigs favored revision but of moderate character while the majority of the Democrats wished a radical revision with little regard to the claims of wested interests. Reemelin was conspicuous in the latter group. He was a German, thirty-six years of age, who had come to this country at the age of nineteen and had soon accumulated considerable property in Cincinnati as a grocer. He was a man Of education, thoroughly familiar with the political institutions of Europe. Perhaps his radical democracy was a reaction against those institutions. Any doctrine was dangerous, he contended, which favored the placing of power in the hands of any single olass. Government should be reduced to the lowest terms: The removal of all special privilege whereby the common m&n Wä8 83 robbed of his due was his mission in the convention. Banks, together with the paper money they issued and the special forms of taxation under which they were chartered, were his particular aversion. Experience in both houses of the General Assembly gave him familiarity with Ohio problems and a natural aptitude for economic and political subjects coupled with great fluency of speech made him a prominent figure in the convention. He spoke often and long, criticised the conduct and beliefs of other members unsparingly, and was himself the recipient of (1) more harsh denunciation than any other man in the convention. Three other prominent figures in the convention were Kennon of Belmont County, Mason of Clark and Archbold of Monroe. William Kennon had served state and nation long as Congressman and judge and in 1854 was elevated to the supreme bench of the state. He was an able constitutional lawyer who revered the Supreme Court of the United States and was unwilling for its assrºº. ignored in the drafting of the seasºn.” Samuel Mason was one of the oldest and most highly respected members of the convention though his conservatism not infrequent- ly brought him criticism. He had served as major-general of militia, two terms in each house of the General Assembly, two terms in Congress, one term as president judge and as a presi- dential elector had voted for Clay in 1844. (l) . See his autobiography for an interesting account of Hamiltºn County politics in the 40's and of his part in the convention. (8) Bench and Bar of Ohio, vol. I, p. 24. 83 S. J. Kirkwood of Mansfield who was active in the con- vention, later removed to Iowa and was three times elected gov- ernor of that state and twice to the United States sea..." Numerous other men are deserving of brief mention, as Josiah Scott who was later elevated to the supreme bench of the state; Otway Curry, poet and editor, celebrated throughout the State for his literary ability and for his work as editor of the short-lived magazine "The **** S. Townsend, ar- dent defender of the negro, a highly educated physician who later turned his attention to scientific farming and became Professor of Agriculture at Ohio State ºv.a.arten, Who served his district in Congress for four years as a member of the Republican party after its organization *** * for forty years a trustee of the Ohio State University; Benjamin Stanton, successively prosecuting attorney, state senator, member of the constitutional convention, congressman and lieuten- ant governor of his state." William Barbee, prominent Whig, with legislative and judicial experience; William S. Bates of Jefferson County — defender of the Quakers and representative of their viewpoint; A. G. Brown of Athens County, graduate of Ohio University, trustee of the institution, lawyer, editor and judge, descendant of one of the leading pioneer families of the state; David Chambers of Muskingum, old but capable and vigor- ous whose public service had begun almost forty years before *---- (l) Randall and Ryan, History of Ohio, vol. 4, p. 111. (2) Howe's Historicai Collections, vol. II, p. 711. (3) rt t? th th I, P . 100. (4) If th th * II, p. 217. (5) n 11 rt #: . iść. 84 as clerk of the senate and who had served in both houses of the General Assembly, as speaker of the Senate and had served his district in Congress; Elias Florence with legislative and Con- gressional experience; George B. Holt, with legislative and judicial experience; Judge Stillwell of Muskingum, a man of excellent judgment; James T. Worthington, son of Governor Thomas Worthington who was so prominent in the first convention; William Sawyer, blacksmith by trade who had sat in the General Assembly and Congress; William Hawkins of Morgan, a former speak- ër of the state senate who had shown an intelligent grasp of public affairs; G. Wolney Dorsey, a vigorous Democrat, formidable in debate who was later state treasurer and member of the third Constitutional convention of 1873–4. There Were many bitter partisans in the convention who boasted of their partisanship; there were other men with *rrow vision imbued with local prejudice; on the whole, however, , it was a group of men of whom the state might well be proud. Fortunately, few irreconcilables disturbed the *rmony and good feeling with which the work was completed. A few men refused to vote favorably on the final draft. **- (4) "An ideally perfect assembly of law makers will contain two ar. three men of original constructive genius, two or three leading Spirits eminent for shrewdness and tact, a dozen or more ex- cellent critics representing various conflicting interests, and a rank and file of thoroughly respectable, commonplace men, unfitted for shining in the work of the meeting, but admirably competent to proclaim its results and get their friends and neighbors to adopt them; and in such an assembly even if it be such as we call ideally perfect, we must allow something for the presence of a few hot-headed irreconcilable members, - men of inflexible mind, who cannot adapt themselves to circumstances, and will refuse to play when they see the game going against them". (John Fiske, Critical Period, p. 224.) 85 | These men were ardent Whigs who felt that the constitution in its final form violated certain provisions of the federal con- stitution and threatened the stability of political institu- tions by removing the guarantees by which private property and private rights were protected. As to professions there were forty-three lawyers, thirty-two farmers, eight physicians, seven merchants and six editors with a sprinkling of the other professions and trades Such as surveyors, blacksmiths, carpenters and printers. One cannot help but note the absence of any men who list themselves a 3 business men or bankers or manufacturers. So far as one can determine there were no representatives of the laborers as a class although there were plenty of men to fight the battles of the poor against the rich. The distinction between capital and labor was not clearly drawn in the convention. The lawyers, were, with few exceptions, the active leaders. As prominent representatives of other professions one might mention William Barbee, merchant, William P. Cutler, farmer and railroad promoter, G. Wolney Dorsey, physician, Elias Florence, farmer, Charles Reemelin, farmer and grocer, and Joseph Vance and James T. Worthington, farmers. As to birthplace, thirty were born in Ohio, twenty- five in Pennsylvania, ten in Connecticut, nine in New York, eight in Virginia, five in Massachusetts, four in Maryland, three in Kentucky, three in Vermont, two in New Hampshire, and one in each of the following states: Georgia, Tennessee, New Jersey, and Delaware, and one in the District of Columbia. 86 Two were born in England, one in Ireland and one in Germany. One hundred were married and eight single. Eight were sixty years of age or over. Four were thirty or under. The oldest were David Chambers, sixty-nine, and Peter Hitchcock, sixty-eight, both active and influential Whigs. Robert Leech of Guernsey County, twenty-five years of age, was the youngest member. Seventy-seven were over forty and thirty-one under forty of the original one hundred and eight elected. 87 THE POLITICAL PHILOSOPHY OF THE CONVENTION. Having taken a glance at the delegates as to charac- ter and attainments, let us now examine briefly their political philosophy. What was their attitude toward government? Who were their teachers in this field? How do their ideas compare With those of the men who sat in the convention of 1802 and those other men who sat in the great convention of 1787? First of all, as to the character of tº constitution. There was constant struggle between those who wished to incor- porate much legislative matter into the constitution and those Who wished to limit their work to a statement of principles With the United States Constitution as a model. The former concep- tion was voiced by Kirkwood who said: "I have heard much said about the impropriety of legislation in this body. When I am Batisfied that our General Assembly have, upon any particular subject, been acting for a series of years, wrongfully or im- providently, that that body has laid for itself and been travel- ing in a wrong road, I feel disposed to check *.* action of this body that wrongful and improvident course". "I had sup— posed", said Judge Stillwell, "that it was the #;" of a con- stitution to declare great general principles". Archbold of Monroe County, commenting on the remarks of a member who took the wider view of the sphere of a constitution, said they - "recalled to his mind the language of Kent, in one of his works, in which he deprecated the impolicy and impropriety of encum- being a constitution with minute matters unfit to form a portion *- (l) Debates of the Convention, vol. I, p. 482. (2) rt rt rt rt t? I, p. 480. 88 (l) of the organic law of a great people". The disposition to extend the constitution beyond leg- it imate bounds was undoubtedly due to a deep-seated distrust of the legislature. The feeling was general that all desired re- forms should be incorporated into the constitution and that only disappointment would come from leaving to the legislature the completion of any part of their work. The result was a consti- tution that we would now call of moderate length, longer than those of an earlier period, much longer, in fact, than the first constitution but much shorter than the state constitutions of recent date. Political doctrines were voiced largely by the lawyers of the convention. They were familiar with Blackstone, Kent and Story. Bentham received occasional mention and Adam Smith was still recognized as the standard authority in economics. Jef- ferson, Madison and Jackson were the authorities most frequently cited as to doctrines and problems more particularly American. Even the Whigs scarcely had the temerity to speak favorably of the Federalist leaders, such as Adams and Hamilton. The prevailing view was radically democratic and in- dividualistic. The European reaction against governmental restrictions had obtained full control of the minds of many delegates and "laissez faire" was the principle to be followed Wherever possible. "Governmen; said Archbold, "is a mere (2) - *gency for keeping the peace". Reemelin asserted his "abiding (1) Debates Ohio Convention, vol. I, p. 320. (2) th º 11 * II, p. 470. 89 (l) confidence that the progress is toward less government". How completely he misjudged the tendency of the next half century? Mr. Leadbetter said: "I am in favor of the largest liberty of the individual ...” Ranney who had just been elected to the supreme bench of the state feared the people were delegating too much power. Said he "The world is governed too much. We have got to take back ...” He felt that by withholding power from the legislature wherever possible, sources of corrup- tion Would be removed. Archbold said in discussing taxation that "all rightful taxation was simply the price of the protec- tion of life and property and of social era...." When pressed as to his meaning when he used the words "social order", he conceded they would justify public education. Under no circum- stances would the majority have the right § tax the minority for such things as internal improvements. stanton contended in reply that a government may do whatever is necessary "to Qrºmote the general welfare". This clause he would interpret broadly so as to cover such activities of government as internal improvements. Reemelin's reaction against European conditions may be seen when he says: "I never had nor have I now any con- fidence in governments. Nine-tenths of all government contains a good deal of humbug, and the other tenth is mixed somewhat With rascality. (1) Debates, vol. II, p. 469. (2) 17 * II, p. 473 (3) tº " I, p. 145. (4) n n II, p. 303. (5) º " II, p. 305. 90 I have no confidence at all in governments not based on the people, but I might have some confidence in the people without the government. The mere machine of the government unless aided and acted on freely by public opinion and an enlightened people has always done a great deal of harm to the liberties of the people, and but seldom accomplished for them any good. As little government as possible is my motto 7 and that little continually under the control of the ºne.” Social legie- lation so-called received little attention. The modern prob- lems were not yet pressing for solution and it was not yet seen how completely competition was to fail in safeguarding the rights of the people. Government was pictured as fulfill- ing its legitimate function only when it curbed the majority and shielded the -ºw.” It was insisted that the govern- ment of a state like Ohio, limited to its legitimate functions, ought not to cost over $150,000 while it was then costing over -> '3) $2,000,000 per year. Such doctrines, however, did not go unchallenged. Perhaps Judge Nash voiced the opposing view as well as any. "Can government", said he, "aspire to no higher function than that of a police officer? Has it no other duties to perform than to declare crimes and to punish them? Where are all the great interests of humanity, which are commanding so much of the attention of the present generation? Where are your acts of °mancipation, of education? Where are your colleges and acad- emies, your whole machinery of education? Where is your legie- **- (l) Debates, vol. I, p. 699. (2) t? tº I, p. 699. (3) I? " II, p. 535. 91 lation restraining practices and trades which tend to corrupt public morals? Where are your laws looking to the improvement of the state in its means of intercourse and communication? " He went on to show that government, as he viewed it, was a di- vine #titution and a means for the working out of the divine ºn.” Of course one cannot measure the temper of the whole convention by the utterances of a few men. Aside, however, from the debates, the constitution, itself, indicates clearly that democracy and individualism were the predominant forces . This is seen in such provisions as short terms for officials, low Balaries, limitations on the legislature, a low debt limit, no aid to public improvements, no special legislation, all offic- ials elective, no special privileges of any sort to corporations, in short, government brought as close to the people as possible and reduced to the lowest terms consistent with the maintenance of order. The doctrine that the social good should prevail over individual freedom and should be the proper criterion for judg- ment as to the legitimate extent of the activities of government was not at all fully appreciated. They saw the dangers resulting from power in the hands of individuals or groups through special £rants to corporations and banks, as We Bee danger from too much power in the hands of the few, but they attributed these dangers to an excess of governmental activity and sought relief in the direction of governmental limitations while we feel that the restoration of freedom can come only through an extension of 39 vernmental authority. *- (1) Debates, vol. II, p. 334. 92 The doctrine of the separation of governmental powers found many enthusiastic advocates and few if any opponents. In- deed, Judge Nash desired to amend the preamble so as to include the following clause: "The powers of government shall be divided into three distinct departments, – legislative, executive and judicial; and one department shall never exercise the powers of another except in such cases as are provided in this constitu- “....” Ranney asserted that a careful separation of legisla- tive, executive and judicial functions was "a great consideration to be kept constantly in view.” The domination of the legis- lature by the executive branch which has been so characteristic of recent administrations in the state would have been highly repulsive to the convention though there were some advocates Of the executive veto. They did not recognize in the then ex- isting dominant position of the legislative branch any evidence of the inherent weakness of the "separation" doctrine. That Weakness has been much more clearly seen in recent years. Archbold, a moderate Democrat, named many authorities, &S Maatson, Marshall, Story and Montesquieu, in support of hie argument for a proper separation of the legislative and judicial functions. The convention recognized, it is true, that the most serious evils under the old constitution had resulted from abuse by the legislature of its unrestrained power. The judiciary and executive, as we have seen, were in a subordinate position, the judges owing their appointment to the legislature while the governor had powers so insignificant as to make him of little importance in (1) Debates, II, 466. An almost identical clause is found in the New Jersey constitution of 1844. Poore, Constitutions of the United States, vol. II, p. 1316. (2) Debates, vol. I, p. 529. 93 the conduct of affairs. The convention favored a better balanc- ing of powers, but rather by putting restraints on the legislature than by increasing the powers of the other two coordinate branches. The judiciary was not in high esteem as a repository of power and the executive still suffered under the traditional disrepute re- Sulting from the arbitrary conduct of Governor St. Clair. In so far, then, as the constitution was brought into harmony with the abstract principle of the separation of powers it was through de- creasing the legislative power and holding a greater residuum of power in the hands of the peºple.” The doctrine of natural rights was assumed as a truism not longer open to question. There was no dissenting voice to the statement: "Natural persons have rights from Nature's God. Their rights are inalienable". 2 The first section of the deo- laration of rights enumerates certain inalienable rights among Which is to be found, as usual, the right of private property. Neither conservative Whig nor radical Democrat questioned the correctness of the "inalienable rights clause" of the Declaration of Independence. The main difference of opinion on this point Centered about the question already discussed as to what extent the government could legitimately infringe on these rights. *- (l) Hannis Taylor in his "Origin and Growth of the English Constitution" takes exception to the view of John Fiske that our forefathers fol- lowed Montesquieu in a misconception of the English constitution as to the doctrine of the separation of powers. He asserts that the early legislatures had the omnipotence of the English Parliament. This reply seems scarcely adequate as there were special reasons why the executive received little power in the early state constitutions and the action of the Federal Convention supports Fiske rather than Taylor. See Fiske, "Critical Period", pp. 289-292 and Taylor, "Origin and Growth of the English Constitution, vol. I, p. 46. See also ſm. C. Mory, "The Genesis of a Written Constitution", Annals of the American Academy of Political and Social Science, vol. 4, pp. 201 ff. (*) Debates, vol.II, p. 198. 94 Mr. Archbold, who was the leading political theorist of the "laissez faire" school, wanted the doctrine of the social compact recognized in the seasºn.” This effort which Wa,6 defeated called forth a vigorous remonstrance from Judge Nash. "I thought this theory of a social compact", said he, "had come to be regarded as too absurd, for any one to think of galvaniz- ing it into vitality. The whole theory of a social compact is not only absurd; but absolutely blasphemous. It assumes that man is not born under law, under government. If he is not so born, how does he become a subject of government? He is never asked whether he will be under government or not ; whether he Will submit to law or follow his own unbridled *#) In point of fact, no one ever entered into such a compact". "Why is it", he continued, "that in practice a majority can make a government and law to bind a minority"? Without attempting to answer his own difficult question, he proceeded to characterize the social compact theory as wrong, as coming "from the infidel philosophy of Hobbes and his successors". Government being a divine institution in his judgment, all acts of government look- ing to the welfare of mankind are therefore justified independent of any formal agreement among men. - *- (1) Debates, vol. II, p. 33l. (2) hº " II, p. 334. 95 There was the usual difference of opinion as to the state's relation to the national government. One finds no open advocates of nullification but one ace. find enthusiastic advo- cates of state's rights who look with high disfavor on the en- croachment 8 of the national government on state activities. The United States Supreme Court was considered the chief of.- fender in this regard and the feeling found expression occasion- ally in harsh criticism. Two types of decisions were particular- ly offensive, those which affirmed the contractual character of charters acquired through legislative grant thereby making their repeal impossible, and those which prevented state taxation of federal instrumentalities, in particular, United States bonds. Jackson's war on the United States Bank had long since removed it from its position as an eyesore in their midst. Indeed, at this time, one sees the beginning of a new attitude toward the Currency. The radical hard money Democrats, as Will be shown more fully later, came forward as advocates of a national cur- rency as the only constitutional type and as supporters of Marshall's viewpoint rather than that of his opponents on the sººn.” The attitude of the radical group toward the Supreme Court was voiced by Reemelin, Mitchell and Leadbetter. The - last mentioned, who had sat for two terms in the lower house of Congress and who had the honor of representing his county of Holmes in the third constitutional convention over twenty years later, said: "I warn gentlemen of the dangerous tendency (l) see the opinion of Marshall in the case of Craig, et al. v. The state of Missouri (4 Peters, 410, decided 1830) and the opinion of McLean in the case of Briscoe, et al. v. The Bank of Kentucky (ll Peters, 257, decided 1837). 96 of their arguments, placing the decisions of the Supreme Court of the United States as the paramount law of the land, high over constitutions and laws, by the power of construction, and in utter disregard of the rights of man, constituting the great state of Ohio, with all its varied and diversified interests, a ſm 61 & cºlºnial dependency upon the Supreme Court of the United state...” Mitchell of Knox County, who perhaps went as far as any other on the floor in reverence for a thoroughgoing Democracy and in hostility to anything that limited the free expression in government of the will of the people, referring to the Supreme Court, said: "I have long held the opinion that it was not only useless but dangerous to the purity and safety of our democratic institutions. We have, I maintain, no more need of such a court than a wagon has for a fifth wheel. We only want as United States courts those known as maritime and military. Sir, in my mind this supre: Court has long been a blot on the institutions of series'.” He viewed the court as a distinctly aristocratic Federalist institution. When his attention was called to the fact that some of the decisions of which he disapproved were rendered by the court after it had become Democratic in complexion, he replied that the very at- mosphere surrounding the bench was so aristocratic that Demo- . Crats when appointed soon became transformed. One is inclined to view this statement as a testimony to the steadying effect of the assumption of governmental responsibility. American history affords more than one example of men whose actions in office were much more conservative than their prior speech led °he to expect. **-- 9 Debates, vol. II, p. 741. (2) º " II, p. 522. 97 Reemelin thought it a startling proposition that the Court could "interpose her decision in a case between a sovereign state and her creatures". "If this assumption be true", said he, "then the judiciary of the general government can do what Congress can not and dare not do. Then the Supreme Court has verified what Patrick Henry and others predicted. Through that tribunal the general government may sweep away one after another of the liberties of the country. Then, indeed, the United States government will become the grave of our i.e...” Such statements are interesting in view of the complacency, yea, favor, with which one is now inclined to view the en- croachments of the federal government on the traditional Sphere of the state. The Supreme Court, however, did not want for defen- ders who fought a successful fight in their efforts to keep out of the constitution provisions clearly out of harmony With the Court's well known attitude. And, yet, at the close of the labors of the convention, a few men felt, as has been already indicated, that they could not vote for the final draft without violating their oath to support the constitution of the United States. 98 The convention met at Columbus in the Hall of the House of Representatives May 6th, 1850. It adjourned July 7th to reas- Bemble at Cincinnati December 2nd and its work was completed March 10th of the following year. The product of the conven- tion was submitted to the voters June 17th, 1851, and was rati- fied by a substant ial -series.” The convention was in session one hundred and sixty- three days. The original appropriation to cover expenses was $40,000 but the actual expense amounted to $94,441. 32. The legislature provided for the deficiency. At one stage of the proceedings certain delegates insisted on inserting in the Constitution a clause to prohibit contractors engaged on state Work from receiving more than the amount stipulated in the orig- inal contract. It was claimed that abuses had arisen from the Willingness of the General Assembly to add to the terms of the original agreement. A suggestion that the expenses of the con- Vention would far exceed the original appropriation tended to silence agitation on this point. The primary cause of the adjournment to Cincinnati was an epidemic of cholera in the city of Columbus which endangered the health of the delegates. The heat, too, became oppressive and, furthermore, the farmers insisted that they could not spare the whole summer from their work. It was thought best to reas- Bemble in some city other than Columbus on account of the fact that the General Assembly would convene there in the fall and might influence the action of the convention. Many cities in *-i- (l) Poore in his Constitutions of the United States gives the vote as 126,663 yeas and 109,699 nays. (Vol. II, p. 145) ;:... gives the vote as 125,564 yeas and 109,276 nays, p. 110. 99 various parts of the state were anxious to entertain the conven- tion but the vote of the delegates resulted in the selection of Cincinnati. Adjournment was opposed by many on the ground that they had already been in session longer than had been expected and that such action might result in the rejection of the constitu- tion by the people. It was even charged that the advocates of adjournment were doing so with the specific object of securing it 8 defeat. When one considers the elaborate preparation made nowadays for a convention – the library helps of all kinds provided as in the case of the recent New York convention - one is struck with the change in this respect. Such aids then re- ceived little emphasis. On the second day of the convent ion, some one propsed that the Secretary of State provide each member with a volume containing the constitutions of the various states and also with a volume of Medary's "New Constitution". It was thought desirable, too, to have the statutes of the state at hand. The proposal was vigorously opposed on grounds of ex- pense which was estimated as high as three hundred dollars. When they met in Cincinnati, Archbold, who had read widely, and others complained of the poor library facilities. Sawyer, how- ever, replied that they had no need to resort to books, that he personally felt no need of looking into a single book in *#) erence to any principle on which they would be called to vote. The only aid they had was from the "Young Men's Mercant ile Li- brary Association" which generously granted the convention the (2) use of its library. º *- (l) Debates, Vol. II, p. 25. (2) rt 9 rt i. P - 855. 100 The debates of the convention were printed in two volumes — about 3 ixteen hundred pages in all. They include many interesting and instructive pages. Not infrequently, how- ever, much time was occupied with digressions of little value. At times partisan spirit ran high and much bitterness found its Way into the debates. As a whole, the convention was an ex- cellant illustration of American freedom of speech. Many ef- forts were made to limit the time a speaker might hold the floor but such attempts usually resulted in failure. On oc- casions when they succeeded, the rule was not rigidly enforced and business was expedited but little. There were sixty-eight Democrats, forty-one Whigs and three Free Soil men in the convention. The Democrats and Whigs sat on opposite sides of the Hall and the struggle between them reminds one of the partisan struggle going on daily on the floor of Congress, The former insisted on thoroughly democratizing the constitution while the Whigs were the conservative party of opposition. Robertson asserted that if there was a man in the convention without political attachment he had better return home. The Whigs, though outnumbered, claimed several of the asiest men and left their impress on the constitution by way of restraint on the radical tendencies of the opposition. 101 The first day of the convention was devoted to the elec- tion of a president and other officers and to the taking of the oath of office by the members. William Medill, the Democratic candidate for president, defeated the Whig candidate, Joseph Wance. The vote was as follows and indicates the relative party strength of the convention: Medill, 60; Vance, 38; Reuben Hitch- cock l; Peter Hitchcock l; and blank, 3. Wm. H. Gill of Guernsey County who was not a member of the convention was elected sec- retary. A rather strange conflict of opinion developed in con- nection with the oath of office. The constitution of 1803 having provided no form for the oath of office, the question arose Whether they should take an oath to support the then existing Constitution of the state. It was asserted that in changing the Constitution they would be violating an oath to support it. Some of the strong men of the convention held to this view. Mason said: "How do you support the constitution of Ohio in the act of taking it down and superseding it"? To the same effect, Wance of Butler said: "Now, what is the nature of the duties de- Wolving upon us? It is to make a change in the constitution. We propose to construct an entire new constitution, embracing no part of the old ….” on the other hand, Hawkins of Morgan insisted that they were "acting under and by virtue of the pres- ent constitution. m If that constitution", said he, "has imposed 9m us any duties we ought to be sworn to abide by them". Humphre- Ville stated this view concisely when he said: "I hold that we *re acting under the authority of this constitution (the existing *-_ (1) Debates, Vol. I, p. 21. 103 one) and I hold that we have not come to violate it in any parti- cular. I hold that this constitution is still binding upon us and that it will remain so, until the people by their act ab; gate it, and adopt the constitution which we may recº-ra.” Sensible as this view appeared, it did not prevail and, after numerous suggestions as to the proper form, the oath was admin- istered by Judge Hitchcock as follows: "You solemnly swear that you will support the constitution of the United States, and that you will honestly and faithfully to the state of Ohio, dis- charge your duties as members of this sººn.” A constitutional convention is in no sense a revolu- tionary body; and, assuming that it has been legally called into existence, its members are guilty of no impropriety in swearing to support the constitution which it is their purpose to revise. The changes, which they propose, are to be made in a strictly legal manner, that is, in conformity to the provisions of the existing constitution and are without effect until ratified by the people. The old constitution is, therefore, still binding on the members of the convention as well as on all other citizens until superseded by the news The constitution of 1851 prescribed a form of oath which was later taken by the delegates to the convention of 1874 after some debate and by the delegates to the convention of 1912 without debate. The question of the oath has given difficulty in other states. In many conventions no oath has 9 Debates, p 21. (2) yº p. 22. 103 (l) been taken by the delegates. º: States have decided the 2) - question as did Ohio at this time. The Michigan delegates of 1867 took the oath of office provided in the constitution after * 91989 vote. Several of the delegates held other offices and feared that an oath of office would make their holding of a seat in the convention illegal. Not infrequently Ohio delegates have held another office at the same time. The practice now seems to be #º to take an oath to support the existing constitu- 3 tion. (l) Massachusetts Convention, 1853; New York, 1846; Michigan 1850; In these cases there is no reference to an oath in the con- vention reports. (2) Iowa, 1857; Indiana, 1850. See debates of the conventions. (3) For a discussion of the legal position of the convention, see Dodd, The Revision and Amendment of State Constitutions, pp. 72 ff. Also, Jameson, for a full discussion of the ques- tion of oath taking, pp. 269-274. Writing in 1867 and referring to the question of whether an oath should be taken to support the existing state constitu- tion, Jameson says: "This question has been raised in several conventions and has been uniformly decided in the negative". p. 271. In the last fifty years a reversal of opinion has taken place on this point and the contrary practice is now well migh, if not altogether, universal. 104 As early as the third day, memorials and petitions began to occupy the time and attention of the convention. These were very numerous throughout the whole sitting of the convention, the subjects most frequently dealt with being the liquor and Negro problems. A resolution on the second day to have the morning session of the convention opened with prayer met with vigorous opposition. After assurances had been given that the resolution would involve no expense, it prevailed by a vote of eighty-four to nineteen, An interesting question involving the legal status of the convention and its relation to the legislature arose on the third day. The legislature had appointed by joint resolution a reporter for the convention. Its power to do so was question- ed on the floor. The view was advanced that it had no more right to appoint a reporter for the convention than to name its president. No objection being found to the appointee, however, and dependence on the legislature for funds being a never-to-be- forgotten consideration, a resolution was adopted ratifying the appointment without definitely recognizing the legitimacy of the legislature's action. Eighteen standing committees were provided for as fol- lows: (1) Privileges and Elections; (2) Legislative Department; (3) Executive Department; (4) Judicial Department; (5) Appor- tionment; (6) Elective Franchise; (7) Corporations other than Corporations for Banking; (8) Banking and currency; (9) Public Debts and Public works ; (10) Future Amendments to the constitu- | tion; (11) Education; (12) Militia; (13) Finance and Taxation; (14) Preamble and Bill of Rights; (15) Public Institutions of the State; (16) Jurisprudence; (17) Miscellaneous Subjects and Propositions; and (18) Accounts. These committees drafted their respective portions of the constitution. A committee having completed its work and reported, the next step was a full discussion of the report in committee of the whole convention. Numerous amendments were usually made at this stage before the report was referred back. Final debate and final adoption always took place, of course, on the floor of the convention. Thus two opportunities were always given for the debate of any proposition. This resulted in much repetition with considerable waste of time though it had the advantage of giving opportunity for thorough discussion &nd was well enough if we accept the statement of Henry A. Wise made on the floor of the Virginia convention of 1850 that "he Would not give a fig for any constitution that was framed in (l less than twelve months". The articles of the constitution Will be considered in °onsecutive order without regard to the order in which the com— "ittees reported. "-- (*) Jameson, Constitution Conventions. 106 The report of the committee on preamble was accepted Without change after the rejection of some proposed amendments. One of the amendments proposed to substitute "free white male inhabitants" for the term "people". - An examination of the state constitutions written prior to the adoption of the federal constitution indicates that there was no uniform practice as to preamble. Some of the con- stitutions of that period omitted it altogether while others opened with a long introductory clause beginning with "whereas" Whose purpose was to explain the circumstances making the con- stitution necessary. After the adoption of the federal consti- tution, the use of the preamble soon became general, both form and content being imitated. The failure of the early state constitutions to rec- ognize an overruling Providence may be attributed in part to the influence of the federal analogy and in part to the pre- Vailing scepticism of the times. By the middle of the century the reaction against this attitude had set in and today prao- tically all the state constitutions give recognition to Deity. The preamble of the first constitution of Ohio was long and clumsy, contained useless matter and made no ment ion of Divine Providence. In comparison the preamble of the constitu- tion of 1851, shortened from 165 to 38 words, appears admirable in form and content: "We, the people of the state of Ohio, grate- ful to Almighty God for our freedom, to secure its blessings and promote our common welfare, do establish this constitution". 1O7 interpretation of the constitution. held that the acte of the General Assembly must be such as will secure the bles sings of freedom and promote the general welfare but they have undertaken to sit in judgment on the The preamble has not been ignored in the judicial statutes passed to determine whether they possess these (1) characterist ice. ( l See Yenson v. The state of Ohio, 7 Ohio Nisi Prius, P. 18. An act imposing an unequal license on gill nets when used from boats of different types and sizes was held in viola- tion of this provision. This, however, was not the main ground for declaring the law unconstitutional. For the law, see Revised Statutes, sec. 6968-2. See, also, case of almer v. Tingle, 55 Ohio State Reports, P. *: Over- ruling the Mechanics' Lien Law, 91 Ohio Laws, p. 155. The law was passed April 13th, 1894. The courts have not only 108 The Bill of Rights received comparatively little atten- tion in the convention, and few changes were made. It was short- ened from twenty-eight to twenty sections but two of the omitted sections, the prohibition against a poll tax and against the im- pairment of the obligations of a contract are found elsewhere in the constitution. A number of the clauses were modified and shortened. The debates give one the impression that this article had become relatively less important in the eyes of the dele- gates than it had been a half century before. The first section appears to be a statement of prin- ciple preparatory to what is to renº While it might well be regarded a 3 to o indefinite to form the basis of judicial deci- sions, the courts, in reality, have made frequent use of it. A law prohibiting prize fights was declared constitutional because such exhibitions were viewed as a public nuisance affecting the com- fortana welfare of others and therefore out of harmony With the §uarantees of this sea.” It was held to be a violation of this section for a *f; corporation to charge for a license to solicit on the streets; to require contractors * * im- 4. provements to observe an eight hour day for laborers; (I)"All men are by nature, ffee and independent, and have certain inalienable' rights, among which are those of enjoying and, de- fending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happines?, and safety". (2) State, ex rel. v Hobart, 8 Ohio Nisi Prius, p. 246. (3) Tea company v. Tippecanoe, 85 Ohio State Reports. - (4) state y No.ton, 5' onio Nisi Prius, p.183. "Guarantees right to make and enforce all proper contracts and to employ such per- sons as one chooses free from restraint except such a 3 are necessary for the common welfare". State v Bateman, 7 Ohio Nisi Prius, p. 574. 109 to provide for the compulsory deduction of one per cent from teachers' salaries for the creation of a pension rº to forbid the giving away of any food save crackers in a place where li- quors were sold. All these laws were held to violate the rights of property and contract guaranteed by this section. These few illustrations taken from many indicate how useful the courts have found this section and how broadly it has been construed. Section 2 deserves to be quoted in full in view of the extent to which it was used to block legislation. It reads as follows: "All power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same, whenever they deem necessary, and no special privileges or immunities shall ever be granted, that may not be altered, revoked or repealed by the general * The "equal protection" clause has been the basis of decisions declaring a graduated inheritance a renuº. a law paying to needy blind persons $25. quarterly by a county" and a statute that coal be weighed before screening for the pur- pose of determining the miner's compensation. Many other cases might be cited to indicate the frequent use the Courts have made 9f this clause. ſ: SEEEE, ex-FEI7 HüEESFă, 22 Ohio Circuit Court, p.252. - 2) state' v Foucar, 8 Ohio flaw Reporter, p. 317. Also 55 Bulletin, p 365. 3) Article 1, section 2. 4) State, ex rel. v. Ferris, 53 Ohio State, p. 314. 3) Auditor of Lucas County v State, ex rei. 75 Ohio State, p.ll.4. 6) In re Preston, 63 ohio State, p.428. 110 º The second clause of section **** the only heated discussion)which the declaration called forth. As finally adopted, it read as follows: "And no special privileges or immuni- ties shall ever be granted that may not be altered, revoked or repealed by the General Assembly". The right of the legisla- ture to repeal the charters of incorporation previously granted 2 º was involved in this clause, a subject which provoked most heated a scussion on the floor of the conventi on . the subject of re- peal, however, may be more properly treated in connection with the legislature. Suffice it to say that the clause was adopted by a strict party vote, the Democrats being favorable and the Whigs opposed. Failure, however, met the efforts of those radi- cals who wished to ignore all court decisions and give it a retroactive effect. Section fifteen provides against imprisonment for debt except in case of fraud. The same section in the old constitution provided that a debtor should not be continued in prison after he had delivered up his estate except in case of strong presumption of fraud. When the second convention met, imprisonment for debt had already been abolished by …tº hence the introduction of the clause was only declaratory of the principle. *----- {:} The debate on this section covers 80 pages in the journal. 2) Abolished March 19th, 1838. Laws of Ohio, vol. 36, p. 75. 111 An effort to incorporate in the declaration of rights a clause entitling a person "to hold a reasonable amount of real estate exernpt from forced sales for debts hereafter contracted." failed of success. The proponents of this clause advanced it as an aid to lab or in its struggle with capital and argued that under its operation character and integrity rather than property would become the basis for credit while the opposition contended that Such a law would make it impossible for a poor man to get any credit at all . Elsewhere in the constituti on the legislature was granted power over the subject and such an exemption so on found its way into the statutes. Bates of Jefferson failed in his effort to have incor- porated in the declaration a clause forbidding capital punish- ment as follows: "Nor shall life be taken as a punishment for sº He characterized it as a cruel and unusual punishment. Ilater a select committee appointed for the consideration of the subject recommended the following clause to be incorporated. "Human life shall ever be held inviolate. The true object of pu- nishment being, in addition to the security of society, to reform and not to exterminate mankind, human life shall never be taken as a punishment for crime, but the highest punishment inflicted for crime shall be imprisonment during life in the state penitentiary? This proposal failed by a vote of 50 to 34. The vote did not show the full strength of the opponents of capital punishment, "-- (1) Debates, 1,528. 112 as some of them conceded that it was a matter more properly left to legislative action. Ohio has never abolished capital punish- ment but a recommendation of mercy by the jury substitutes life imprisonment for the death penalty and juries make frequent use of this provision . The question was submitted by the convention of 1912 but met with defeat at the hand of the º The constitution of 1802 provided that no person should be required "to answer any criminal charge but by presentment, indic tºnent or **** Judge Hitchcock presented forcibly the objections to this provision. "No matter", said he, "what was the nature of the criminal charge, whether it were of a greater or less degree of turpitude, the person, could not be put to answer until he was indicted or presented". So much formality in matters of trifling importance resulted in delay and costs disproportion- ate to the offense. The interests of the offender as well as of justice demanded a change. The new clause read: "Except in cases of impeachment, and cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, in cases of petit larceny and other inferior offenses, no person shall be held to answer for a capital or otherwise #sº crime, unless on presentment or indictment of a grand sº This action was modified by the Convention of 1912. Archbold of Monroe who excelled all of his fellow members in his eagerness to fix the functions of government within (1)The 75EE rejeating ERTE amendment was 258,706 for and 303, 246 against. |Article will, section 10. |Debates, ll, 331. |Article'l, section Lo. 2 |} 113 narrow bound 3 and who insisted that the government of the state of Ohio "brought to its real functions, would cost about one hundred fifty thousand someº proposed the following clause: "The taxation necessary to pay the agents employed in keeping the peace and to promote social order by the good in struction of youth, is rightful and proper and in accord with the principles of the social contract; but to levy taxes to carry on common enter- prises is an abuse of the taxing power, and a fraud on the social ºntº Eager as the delegates were to limit governmental activity and to put restraint on the legislature, and disgusted as the majority of them was with the whole question of public im- provement, still they were not ready to incorporate this unusual and rather startling clause in the bill of rights. The section dealing with the right of eminent domain was the subject of vigorous discussion. Abuses in this regard had frequently arisen under the old constitution because of the inad- equate property guarantees provided by it. It will be noted that section nineteen as revised by the convention concedes the right of taking private property for public use, but in no case without compensation and also provides that except in cases of public exigency compensation "shall be first made to the owner in money". The compensation is to be assessed by a jury without deduction for benefits to any property of the owner. This provision is in- dicative of the disposition of the convention to protect care- fully the individual against the agressions of corporations. A strong group in the convention favored conceding the right to take property for public use only with the consent of the owner. ſi) Debates, TT33T. (2) Debates, II, 331. 114 Commenting on the state constitutions of his day, Madison said: "The legislative department is everywhere extending the sphere of , its activity and drawing all power into its impet- UlOll 8 wort.” He considered the phenomenon of legislative usur- pation a universal tendency under republican institutions. The experience of practically all the states during the first half of the nineteenth century tended to verify this view. But while largely true of all the states, it was particularly true in Ohio where the executive was unusually weak, the judiciary dependent and constitutional restraints extremely few. Rufus King correctly characterized the government under the first constitution as "a É0Vernment which had no executive, a *i-starves, nort-lives judiciary and a lop-sided **** The governor was in no sense a check on the legislature. One searches the records of the first fifty years of Ohio state- hºod in vain for an illustration of executive restraint on legis- lative action. It is possible to find an occasional illustration of his having wielded some influence by way of recommendation; but, without veto power, without patronage to di spense and without state leadership, he was, on the whole, a negligible quantity in the government. The judiciary appointed by the legislature for a limited term and subject to impeachment at its hands could not be expec- ted to show much independence or to exercise an effective restraint . } :::::::::: 48. ------. (2) Rufus King, Ohio (Commonwealth series) p. 29. 115 An early exhibition of independence met with a stinging rebuke. The legislature passed an act in 1905 giving justices of the peace jurisdiction without the aid of yºurs in the collection - - (l of debts less than fifty dollars in amount. The state courts held this act to be unconstitutional * violating the seven th (2 amendment of the federal constitution and the eighth section of the eighth article of the state constitution. Of the three judges involved in the decision, Tod and Pease were impeached by the lower house of the legislature in accordance with the provisions of the Constitution. They escaped conviction * the hands of the upper - (4 house by the narrow margin of one vote. The third judge, Hunting- ton, a prominent figure in the first constitutional convention, Was elected governor of the state before impeachment proceedings could be brought and this evidence of the favor of the people apparently freed him from the attack. The majority of the legislature, having been defeated in their effort at impeachment, proceeded by another method to ------ (l) Chase's statutes, vol.1, p. 445. - (2) "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved". In Barron v Baltimore, 1825, and numerous other de- cisions the Supreme Court made the first ten amendments limitations on the federal government only . (3) "That the right of trial by jury shall be inviolate". 4) Impeachment proceedings against Tod and Pease are found in the Senate Journal for 1808-1809. For vote of acquittal of Pease, see p.47. For acquittal of Tod, see p. 100. The vote was 15 to 9 in each case. James Ferguson, a justice of the peace in Ross County was impeached and acquitted. (Senate Journal, 1813-1814). For impeachment of Wm. Smith and Geo. Brown, Associate Judges, Senate Journal, 1819-1820. They were unanimously acquitted. Wm. Irwin, Associate Judge of Fairfield County was impeached and convicted for absenting himself from office. Senate Journal, 1805-1806. 116 show their authority. The so-called" sweeping resolution" was 3. - º passed in 1910 which legislated out of office not only every judge in the state including justices of the peace but state ex- ecutive officers as well. The constitution provided for a seven year term for judges. In case of a vacancy a new commission for seven years was issued to the appointee. The resolution declared that such appointees could only serve the residue of the original term and that, as a consequence, all offices were vacant in jo Seven years after the adoption of the constitution. The legisla- ture then proceeded to fill the offices with candidates more sub- Servi ent to its º While this action was apparently out of harmony with the meaning and in tent of the constitution and no one has ever risen to defend it, yet there was no legal method of restraining such high-handed conduct. In spite of their dependent position, the judges at times showed commendable courage and independence and per sisted in maintaining their right of passing on the constitutionality of legislative acts. This right was exercised, however, only at rare intervals, and the conclusion is unavoidable that under all ordi- mary circumstances the legislature was supreme in the state. The limitations on legislative action were so few in the first con- stitution that little opportunity was afforded the courts to de- Velop the doctrine of judicial review - (l) See Senate journal. T809–1810, pp. 141-142. The resolution vaca- ted the offices and asserted that the right of the legislature to fill vacañ6ies could not of right be construed to extend beyond the end of the original term for which their predeces- sors could have constitutionally served had no such V89*91 °5 taken place. (p.lal) 117 If, then, the legislature of Ohio under the first consti- tution, approached in omnipotence the Fnglish Parliament, it would be well to consider with what wisdom and virtue it exercised this unre strained power. Much commendable legislation was passed, it is true, and many able men of unquestioned integrity sat in the legisla- ture during the fifty years under consideration. On the other hand there was much to criticise. Atwater, writing in 1838, was filled with alarm at their conduct. He says: "Our general assembly have too much power and in times of peace they assemble quite too frequently and sit to o long. Whole millions have been wasted in useless legislation. Without more re- Straint on the law-making power, without an absolute prohibition against electing their own members to offices, this constitution can not last long, because our republican form of government can Only last while the people are in love with 19 The se words were Written by one who was a friend of internal improvement and who Wrote before the canals had come to be such a heavy financial bur- den. A careful reading of the debates of the convention of 1850-1 brings the conviction; that Atwater represented with a fair degree of accuracy the prevailing opinion of his day. Various blunders of which the legislature was guilty still develop later in the discussion of such subjects as corpo- rations, banks and public works. The most patent evils were con- hected with the passage of laws special or local in character. -- **-*---------------------------- -- --- (l) Atwater, History of Ohio, p. 171 . 118 These laws consumed most of the time of each session as compara- tively few laws general in their application were passed. In the year 1818 thirteen general laws and fifty three special acts were passed. The general laws had to do with taxes, appropriations and modifications in the criminal statutes. The special acts were grants to incorporate for various purposes and grants of special privileges to individuals. The legislature for the year 1838-39 passed near six hundred acts private and local in character. Under the first constitution all acts of in corporation not only of banks but of railroads, turnpike and bridge companies were Special in character. So-called "log-rolling" methods prevailed in reference to such legislation and it was never difficult for a legislator to get an act of this kind through with little if any consideration no matter how loosely drawn or how injurious to the public welfare. The feeling against such special grants of power kept gradually increasing in intensity until not a few people agreed with Clark of Lorain County who asserted on the floor of the convention that a corporation was a "legislative waster.” Jne of the vital concerns of the convention was to put Te Straint. On this unbridled power . It has been already pointed out that the convention did not choose to accomplish this so much by increasing the power of the other two coordinate branches of government (though they were -— (1) Debates, vol. I, p. 412. ll.9 made somewhat more independent ) as by restricting the power of the legislature through constitutional limitations. The enforce- ment of the limitations was made possible by freeing the judici- ary from legislative control. Popular election of judges was sub- stituted for appointment by the legislature. In the executive department, too, legislative appointment was replaced by popular election. Hither to, only the governor had been so elected. Three of the most effective measures of restraint were as follows: biennial in stead of annual sessions, the prohibition of all special legislation and the taking away of all appointing p OWer'. The question of the substitution of biennial for annual Sessions of the legislature received lengthy consideration and W3. S bitterly contested. The leading argument for the change was that the state was being injured by excessive legislation . Kennon, an able lawyer, argued in support of biennial sessions, that they were favored by public wº would prevent excessive legisla- tion l, and frequent alterations of the law; and, finally, would re- (2) Sult in a great saving to the state . Woodbury urged that there was not only too much legislation but that the quality of it was bad, three fourths of it "carving out of rights of individuals Special privileges for the few". Hawkins of Morgan County declared that his constituents were unanimous for biennial sessions, in fact, favored a session only once in three or four years. (l) "There is no Tööubt biennial sessions will prevail. It can not be questioned but that the popular feeling is with the new measure. To run counter to it would jeopardize the adoption of the new constitution". The Zanesville Gazette (Whig) June 5, 1850. (2) Debates, vol.I., p.195. 130 A vigorous minority, however, led by some of the able st men of the convention stood out for annual sessions. Admitting the evils complained of, they thought they could be reached more effect- ively in an other direction. Brown of Carroll considered annual sessions more e-cº. Taylor feared the change would result in greater encroachments by the federal government on state ...t. He emphasized the importance of strong resi stance to the centra- lizing tendency of the federal government. Hitchcock of Geauga thought the interests of a rapidly growing state required annual “...º. Stanberry emphasized this same point calling attention to the fact that ten of the twenty states had annual sessions and that the se were the more important and progressive …tº Hitchcock of Cuyahoga admitted that the volume of laws for 1849 contained 57 pages of general laws and over three hundred of local laws but to show that conditions might be worse he pointed out that the legislature of Illinois for the same year passed 240 pages of general laws and that Missouri passed 130 pages of gen- eral laws and 530 of local lº The desire, however, to check the legislature in its arbitrary course was too strong and biennial sessions won by the decisive vote of 60 to 21. That this provision was considered Ul Il satisfactory by the legislature itself is shown by the fact -- Debates, vol.II, p.I57. $4 } * II, p.I 56. {} º * I º:#: º " I , p. I {} p ſº " I , p.214. 121 that an emendment providing for a return to annual sessions was submitted in 1857 and again in 1859. It failed of passage though in both cases it received a decisive majority of the votes of those actually voting on the ~~~} Patter son calls at ten- tion to the fact that the legislature of 1857 avoided the provi- Sion of the constitution by holding an adjourned session the following year and that every legislature followed the precedent set till 1895. The prohibition of special legislation went through With little debate. The evils connected therewith were so patent and so keenly appreciated by the people of the state that no one had the temerity to rise and defend such a method of legislation though some of the ablest members in sisted that an exception Ought to be made in the case of municipal Corporations. Many Other states during this period adopted similar restrictions as to special legislation but few if any made the clause so abso- lute as did of: The convention was a unit, too, in recognizing the de- sirability of increasing the number of elective offices and this feeling riº in well with the desire to Curb the legislature. Membership in the legislature had been for years a stepping stone to the leading appointive offices of the state. This abuse was remedied by the provision that no member "during the term for ** º (I) Patterson. The Constitutions of Ohio and Allied Documents pp. 162, 169. 2) Ibid, p. 22. - 3) "All iaws of a general nature shall have a uniform operation throughout the state'. See Chester Lloyd Jones, "Statute Law Making" , pp. 32, 33. which he shall have been elected, or for one year thereafter, shall be appointed to any civil office under the state which shall be created or the emoluments of which shall have been increased during the term for Which he shall have been assº Important changes were made in the legislative procedure to remove some serious defects. The old constitution provided that two-thirds of all the members were necessary for a quorum but a majority vote of those present could secure the passage of a biii. Ayes and Nays were recorded only on request of two members. A requirement of two-thirds for a quorum made it possible for a small group to block all legislation distasteful to them by refusing to attend the sessions. Although a smaller number than two-thirds could adjourn from day to day and compel the attendance of absent members through its serjeant-at-arms, this was difficult of accomplishment. An illustration of such obstructive tactics by a small group is found in the session # of 1847–48. The Whigs were in the majority in the Senate but fell below the constitu- tional quorum of two-thirds. They fathered a reappointment bill which was offensive to the Democrats. Fourteen Democrats Withdrew and broke the quorum. The Senate en deavored to bring them back but he sitated to use force. The Whigs finally *…*-- *e- ------- (1) Art. II, sec. 19. (2) Art. II, sec. 8. 123 put the bill through with little regard to the constitution and in the absence of the * While a minority could carry out a successful fili- buster if it chose extreme measures, it was true also that the rule requiring only a majority vote of those present to pass a bill made it possible for a minority of all the members elect to ena, C t laws. The lack of a provision for the recording of the ayes and nays except on request of two members made it possible for members frequently to avoid responsibility for their votes. The evil a s to quorum was remedied by making the presence of a majority, only, necessary for the transaction of business. The second evil was eliminated by a provision that no law should "be passed in either house without the concurrence of a majority of all the members elected wereº And, finally it was provided that "At the desire of any two members, the yeas and nays shall be entered on the journal ; and, on the passage of every bill, in either house, the vote shall be taken by yeas and nays and entered on the journal". Thus was the General Assembly made a more effective legislative organ. ----- . . . (I) see "Life of Charles Reemelin Written by Himself", p.86, for an interesting account of this incident . He was the leader of the seceding fourteen and is very harsh in his denunciation of the ruse by which the Whigs passed the measure in their absence. (2) Art. II, sec. 9. 124 A section was introduced providing for a fixed com- pensation for members of the legislature and it was further pro- vided that "no change in their compensation shall take effect during their term of office". In 1845 the Assembly had passed a joint resolution increasing the pay of members from two to three dollars per day. They had given the measure a retroactive effect so that it applied to their own salaries for that session. To prevent the repetition of such an act the above clause was in serted in the cº-awaº The usual clause was inserted prohibiting the passage of retroactive laws or laws impairing the obligation of contrºl. Objection to the provision as to retroactive laws on the ground that it would prevent the passage of so-called curative statutes Was obviated by adding an exception for such cases. A small but active group in the convention desired to Strike at the very root of the legislative inefficiency and ab- olish the bicameral system in favor of a uni cameral one . This effort becomes interesting in view of the fact that they could not point to a single American example at that time of the unicameral system and that public opinion seemed so unanimous against i t . "-- (l) Chas. Reemelin states in his autobiography already referred to that he was the only member who refused to accept the increased compensation. See p. 83. (2) Art. II, Sec. 28. 125 The friends of the change conceded that the bicameral body had a logical basis in England-class representation- and they conceded, too, its propriety in the federal government - one house representing the people and the other the states – but they argued that neither of these conditions obtained in the states. They accused the states of slavishly copying without reflection the federal constitution forgetting for the moment that the Writers of that in strument were indebted to the colonies for the Suggestion of the two-house plan as well as to England. They Galled attention to the numerous illustrations in history of uni cameral legislatures - the assembly of the ancient Germans, the Roman Senate, the 6 on tinental Congress, the Congress of Con- federation, and the state constitutional servºus: They in sisted that in no case had the adoption of the bicameral system been the result of the recognition of its superiority over the Single chamber. Their opposition, it should be noted, was directed rather at the Senate than at the house and differed markedly from the modern view as to the character of the single body. The advocates of the bicameral system maintained, first of all, that the proposed change would endanger the success of the constitution with the people because the convention had received no clear commission to make this change; that it would be a dangerous departure from universal practice; that the few states -- *- -------- (1) Debates, I, pp. 154,169,170. which had experimented with the unicameral system had found it unsatisfactory and had discarded 19 and, finally, that one chamber acted as a check on the other with the result of a higher quality in the º Although the movement for the unicameral system was defeated by a decisive vote, it receives importance from the fact of the recent revival of interest in this reform. It is interes- ting to note that, in spite of this revival, the change had more Vigorous supporters in the convention of 1850 than in that of 1912. Prof Elson (Ohio University) of the latter convention stood almost alone in his advocacy of "one chamber composed of a few trained, mature men conscious that they were acting in the (3) limelight of the public gaze". (I). Before T776, Penn DeT. and Ga. After 1776, only Penn. and Ga. See Schouler, "Constitutional Studies" , pp. 56-57. He says it lacked stability and deliberation. See also Taylor, "Origin and Growth of the English Constitution", p. 44. (2) Madison justified the bicameral system in The Federalist on the rather unique ground that it weakens the legislative department of the government and thus makes usurpation by it more difficult. See essay No.5l. For recent movements in the direction of a unicameral legislature, see American Political Science Review for May, 1915, vol.9, No. 2, p. 316. See also article in same journal, p.264, by C.A.Dykstra on the "Reorganization of State Government in Kansas". An initiated proposition to abolish the state , senate in Oregon was defeated by a vote of 123,429 to 62,376. - (3) Article by Prof. Elson in "Review of Reviews; vol.45, p. 340. It may be noted in this connection that Woodrow Wilson, wri- ting as late as 1885, says: "The utility and excellence of a bicameral system has never, I believe, been seriously question- ed in this country". "Congressional Government", p. 219. He calls attention, however, to the fact that both Turgot and Bagehot were doubtful of its wisdom. 127 Other restraints on the legislature, some of which will be discussed elsewhere, may be mentioned as follows: (I) taxes must be uniform on all classes of property; (2) º ) 2 Special privileges to be granted which may not be repealed; (3) (3) no special act to be passed conferring corporate powers; (4) corporations to be formed under general laws always subject to º (5) cities and incorporated villages to be organized under general laws; (6) no act passed by the General Assembly authorizing associations with banking powers to go into effect without a referendum; (7) maximum debt limit fixed at $750,000 except for certain specified wº (8) the credit of the State not to be loaned to any individual, association or corpo- (8) ration; (9) no special grant to any local subdivision *::: 9 come a stockholder in any joint stock company or *#; lC) (10) no debt ever to be contracted for internal improvement. A comparison with other state constitution s of the period impresses one with the number and variety of the restrict- ions by which the Ohio legislature was hedged about . Just as be- fore the convention, it was perhaps the most supreme of all, so after the convention it was one of the most limited . These pro- Visions were effective in remedying many evils which had existed under the former constitution but, at the same time, they prevented, in later years, the introduction of many salutary reforms. *------------------ • * * * * * * * * * * * * * * * * * {} Art. XII, Sec. 2. {} Art. XIII, Sec. 7. (2) Art. I, Sec. 2. {{ Art.WIII; Sec.l. {} Art. XIII, Sec.l. ( | Art. VIII, Sec. 4. 4) Art. XIII, Sec. 2. (9), Art.VIII, Sec. 6. (5) Art. XIII,sec.6. (iO) Art. XII, Sec. 6. 128 It will be seen, later, how changed social conditions finally made the removal of these restrictions imperative in order that the amelioration of many social evils might be secured. This result was accomplished by the convention of 1912. The extraor- dinary increase of legislative independence was not secured, however, at the expense of either of the other two departments of government but rather through the surrender of additional power by the people. One topic remains to be discussed in reference to the legislature, the so-called subject of "repeal", which has been already referred to. The question of the right of the legisla- ture to repeal charters of incorporation was one of the vital problems of the convention, its importance growing out of the manner in which this power of granting charters had been grossly abused by the legislature. The second clause of section two of the Bill of Rights to the effect that "no special privileges or immunities shall ever be granted that may not be altered, revoked or repealed by the General Assembly", has a pro spective force only and was a distinct compromise - The question of repeal was bitterly contested between Democrats and Whigs as eighty pages of debate on this clause shows. The majority of the Democrats favored a clause which would give the legislature absolute control over all charters of incorporation including those hither to granted. The Dartmouth ſº º * **** **** - College case declaring charters, to be contracts and hence beyond -— (1) Dartmouth college v Woodward, 4 Wheaton, 518. the reach of subsequent legislatures was mentioned only to be spurned. Such doctrine was held to be dangerous to liberty. It was a limitation on popular sovereignty, a permanent withdrawal of power from the people, a setting up of a sphere of power beyond their contº In line with this view it was proposed that the section should declare that the people "have the right to alter, revoke, repeal or abolish by act of the General Assembly any grant or law conferring special privileges or immunities upon any por- tion of the people". The effect of this clause was intended to be retro spective as well as pro spective. The group of Democrats supporting the for egoing state- ment of the doctrine in sisted that they had a definite commission from their party on this point. The leading spokesmen were Mitch- ell of Knox County and Reemelin of Hamilton - both able debaters. A small group of Democrats, however, were unwilling to go so far in their advocacy of repeal. Groesbeck of Cincinnati, an able lawyer, was committed to the doctrine of repeal both pros- pective and retro spective but only with adequate compensation to the incorporators under the *.. that is, qualified repeal. This raised the question whether a franchise or charter was prop- erty, to which Groesbeck and his followers gave an affirmative an swer but which was just as vigorously denied by others in spite of the fact that it had been affirmatively decided by the Supreme Court of the United States. - {:} Debates, II, p. 477. (2) Debates, II, p. 549. (30 Debates, II, pp. iſ 3,477. 13O A few other Democrats were unwilling to go quite so far as Groesbeck. They held that only future charters were capable of being made repeal able, that charters previously granted were beyond the reach of a subsequent legislature unless the constitu- tion contained a provision providing for the repealability of all legislative acts. The Whigs, on the other hand, vigorously denied the right of repeal in to to . They argued that the federal constitution for- bade a state to pass any ex post facto law or a law impairing the obligation of a contract, that the Supreme Court, not only in the Case of Dartmouth calº v. Woodward but also in the case of Fletcher • rºad declared a charter to be a contract, that these decisions had been reaffirmed by the same court even as late as 183. when a majority of its members were of the Demo- cratic faith, that most of the state courts including the supreme court of Ohio had made similar decisions, that repeal could legally occur only when the property was taken for public use and benefit- in this case, only, the individual must yield to the good of the Whole, that to adopt unconditional repeal would be flying in the face of well recognized constitutional law and would be a dis- tinct violation of their oath to support the constitution of the United States. - É 4. Wheaton, 518. ; 6 cranch, 87. (3) Planters' Bank of Miss. v Sharp, et al. 6 Howard, 30l. - Taney and Woodbury, two Jacksonian appointees, concurred in the view that a charter was a contract • 131 Mitchell in reply asserted that " of all the disgrace- ful decisions ever yet made by this Supreme Court, this last one, entitled the case of the "Planters' Bank of Mississippi v Sharp, et al. is the crowning on.” The doctrine in its extreme form was kept out of the constitution by the alliance of twelve Democrats with the Whigs. These twelve were the subject of bitter denunciation by the Democratic º The Cincinnati Enquirer, referring to the twelve in an editorial attack, said: "They have defeated one of the cardinal principles which for years the party has maintained; and, in a Word, they are false to the faith which trusted them With the high place they have mischievously filled". That the unconditional repeal of charters was a settled Democratic doc- trine at that time is not at all clear though no doubt advocated by a substantial portion of the party. Its supporters were un- able to show that it had been incorporated at any time in their party platform and S. Medary in "The New Constitution" supported pro spective repeal only. (l) Debates II,490. (2) Debates II, p. 490. (3) Debates 11, p.285. 132 The feeling of hostility toward the executive manifested by the first constitutional convention was replaced in the second by an attitude of in difference. The weakness of the executive branch of the govern- ment was fully recognized. "It is well under stood", said Archbold, "that the governor is a mere cipher. Why, sir, a member of the General Assembly is of far more practical importance". Contin- uing, he said, "The office is of no importance, it is given no consideration, it carries no influence, it embodies no authority, and that is the reason that obscure men get the was...” "On some court day", said Green of Ross County, "when the people of any county are collected, a blindfold man might go into a crowd of fifty and select, at random, a man competent to fill the Office of governor of on.'” Governor Shannon resigned the governor ship in April, (3) 1844, to become United States Minister to Mexico; and Reuben (4) 4. Wood resigned July 15th, 1853, to accept a consulship to Valparai so. Although recognizing fully the weakness of the gover- nor's position, the convention manifested no disposition to increase his power. Humphreyville declared that "any may with ordinary I) Debates, II, 353. 2) Ibid. 3) Ohio Statesmen and Annals of Progress, vol. I, p.201 . 4) Ibid. Part II, p. 24. 133 common sense and a good understanding could perform the duties of the office. He would be almost willing to abolish the errº Stanberry of Franklin County, attorney general of the state, had a livier sense than any other of the importance of the office. He called attention to his duties such as extradition, of which there were as many as a hundred cases in a single year. In the case of efforts to reclaim fugitives from other states, prompt action was frequently necessary and yet the governor was some- times absent from the city. Reprieves and pardons carried weigh- ty responsibility and required careful consideration. It was his duty to conduct official correspondence with other states and with the federal government and to examine the title and convey- ance of all public lands sold in Ohio. It was his view that such duties as these made the office no sinecure . An effort to increase the governor's salary provoked lengthy debate. The highest salary proposed was $25oo . per year and many considered this exorbitant, The first constitution fixed a maximum of $1000 until the year 1908. The salary was not raised above that amount until the year 1844 when it was placed at $1500. The convention finally placed it at $2000 with the right in the General Assembly to change it after 1860. The salary of the governor is now $10,000. The executive veto received attention but was doomed to defeat from the first. It is interesting to find Archbold *-_ (1) Debates, I, p. 321. (2) Debates, I, p. 328 134 and Knox , conservative and radical Democrats respectively, advocating the veto . Their motives were quite different. The former wished to prevent hasty and ill-advised i.e...a...! the latter had been so favorably impressed with the veto as exercised by President Jackson, especially in the case of the United States Bank, that he felt it ought to be included in the new constitution. He also favored a referendum to the people after a veto rather than a reconsideration by the i.e. lawſ: Jackson's use of the veto did not commend it to the Whigs. Mason of Clark proposed to give the governor the veto With the provision that on reconsideration by the legislature after a veto only a majority vote of both houses would be re- quired for the repassage of the bill. He urged that this would secure a more careful consideration of legislation, that it would prevent much local legislation and that it would add dig- nity to the governor ship. The opposition, on the other hand, in sisted that it was putting a limitation on the legislature - the real representative of the people. The proposal was de- feated by a vote of 50 to 41 . The action of the convention was largely influenced by the feeling that the introduction of the veto in to the constitution even in the mild form •useº by Clark would seriously endanger its ratification by the peopie. The proposed constitution of 1874 granted the veto to the governor, with the provision that the veto could be overridden --- (l) Debates I, p. 74. É 13::::: " II, p. 293. (4) º ####,310,311; II, p. 292. by a three-fifth vote of the legislature. The governor finally received the veto in 1903 with the requirement of a two-thirds vote for repa B sage. This was reduced to three-fifths in 1943. but his power was greatly strengthened by the grant of power to Veto items in appropriation bills. Th € first constitution provided for a secretary of state, auditor and treasurer in addition to the governor, all ap- pointed by the legislature. An attorney general had already been added, and now after long debate and much protest against the un- necessary multiplication of offices a lieutenant governor was added. The president of the Senate had succeeded to the office of governor five times and the desire to have the office filled in case of vacancy by an officer elected by the people of the State at large finally prevailed over tendencies to economy. The (2) need of an impartial\residing officer for the Senate also had weight. * There was no conception at all of a properly organized executive department with the governor at its head after the plan of the federal government. This is one respect at least in which imitation would have been valuable; but such a centralized and vigo- rous executive department would have been considered not only use- less for a state but a dangerous concentration of power. *a- (l) For the proposed constitution of 1874, see Patterson, "Ohio Constitutions and Allied Documents"; also bulletin, entitled Organic Law of Ohio by J. H. Newman, l913. (2) Debates I, pp. 54, 300; II, p. 333. For a discussion of the lieutenant governor in early constitutions, see James Schouler, Constitutional Studies, State and Federal, p.6l. 136 During the first fifty years of the nineteenth century the position of the state judiciary throughout the United States was one of respectability. The right of passing on the constitu- tionality of legislative acts was not firmly established in the beginning but gradually gained universal recognition. Uniformity as to method of appointment, too, developed slowly. Popular elec- tion was gradually substituted for legislative or executive wº At the beginning of the century, tenure of office Was, with few exceptions, during º behavior. The responsibil- ity for setting the example of elective judges and short terms appears to belong to sºa.” Complete control in the territorial government under the Ordinance of 1787 was vested in three judges with the gov- ernor and secretary. This small group, none of whom was elected by the people, exercised all the functions of government, executive legislative ana judicial, the governor possessing an absolute veto On the action of the group . The judiciary seems to have gathered to itself some little of the odium with which the governor during this period - _ - (1) Schouler, Constitutional Studies, p. 64. N. Y. ; Penn . ; Ga. 3) John Fiske, The critical Period, p. 69; "It was Georgia that in 1812 first set the pernicious example of elective judges for short terms by the people - a practice which is responsible for much of the degradation that the courts have suffered in many of our states and which will have to be abandoned before a proper administration of justice can be secured". 137 came to be regarded; and, as has already been indicated, it was made sub servi ent to the legislature. All judges were appointed by the legislature for a term of seven years "if so long they behave ...” The judiciary article under the constitution of 1802 has already received brief description. In compliance with the provisions of the article the courts were organized by a statute passed April 15th, 1803. Following the mandate of the constitution, provision was made for a supreme court, courts of common pleas and justic e s of the peace. Later, superior courts were author- ized in Cincinnati and Cleveland respectively and a commercial Court in the former mas.” The constitution permitted an increase in the number of supreme judges to four after five years. A permanent increase to that number was made in 1816. The state was then divided into two circuits and two judges, traveling together, visited annually all the counties of each district. Prior to this arrangement, all the three judges were compelled to visit annually all the coun- ties of the state. This arrangement lightened the burden of the judges somewhat but soon an act of January 20th, 1823 , was passed provi- ding for an annual meeting of the judges in Columbus to pass on (3) questions reserved from their work in the counties. -a_ (l (2) ohio State Reports, vol. I, preface. (3) #: :*:::::::::::::::$3. Or see Chase's Statutes III, p. 1704 138 No provision was made for reporting the decisions until the establishment of this court in bank when the Ohio Reports begin. After the convention of 1851 a new set of reports called the Ohio State Reports were begun . 139 The judiciary article was beyond question the most defective feature of the first constitution. Its 4chief defect was its rigidity. Made when the population of the state was approximately 45,000, it had to serve the state when the popula- tion had increased to I, 780,000. Little wonder that it proved Wholly inadequate under such changed conditions. If the constitution makers had stopped with the first anº the legislature could have modified the system as con- dition& required. They chose, however, to add troublesome details which proved too rigid for legislative adjustment. The burdens laid on the supreme court were too heavy to be borne. In 1850 there were eighty seven counties in the State. Each judge, therefore, had to visit over forty counties yearly be sides sitting with the other judges as a court in bank at the capital - the supreme court of appeal . Of the two alternatives, great delay in the administra- tion of justice or prompt decision without careful deliberation, the court usually chose the latter. "In the course of sixty or Seventy days", said Judge Swan of Franklin, "they examine the facts in eighty or a hundred of the most difficult cases which occur in the state during the preceding year, - read the arguments of "-- (1) Art. III, sec.1: "The judicial matters of this state, both as to matters of law and equity, shall be Vested in a supreme court, in courts of common pleas for each county, in justices of the peace, and in such other courts as the legislature may from time to time establish." 140 counsel, deliberate upon them, examine the law of the cases, decide them, write out their opinions, and publish a volume of about seven hundred pages. The judges are overworked on the circuit and the labor in bank is felt to be subordinate to circuit duties. It should actually be the reverse. A court that is settling prece- dents and determining not merely the rights of the suitors but the law in all future cases of the like kind should not be over taxed by circuit labor. The hearing, examining and deciding re- ported cases should be made paramount to all other judicial ºu..” Judge Nash, another leading member of the convention and an expert in the field of the judiciary, called the supreme Court a magnific ent failure but he attributed the defects not to the men but to the system. He asserted that the judges frequently heard as many as sixteen or seventeen cases in a single day. No argument was possible - a simple examination of the papers follow- ed by a hasty decision was all . It was repeatedly stated in the convention that the defects in the judicial system made a constitutional convention at that time imperative and we have seen how emphasis was always laid on the defects in this department by the advocates of a convention. "So far as I am acquainted, Mr President", said Mr Larsh of Preble county, "the people of the district which I repre- sent had but one object in voting for the calling of this conven- tion and that object was the reorganization of the judiciary *--- (l) Debates I, p. 591. 141 (I) department" As early as December 19th, 1819, Governor Etnan Allen Brown, who had sat on the supreme bench, said in his first annual message: "Several years experience had convinced me that the present system was grievously burden some and costly to the public; dilatory and expensive to the litigents, and above all was unsuited to answer completely the great purposes for which the courts of judicature were established." It was proper, therefore, for the convention to give Careful consideration to this important subject. No other committee of the convention was as strong in personnel a s the committee on judiciary. It was composed of thirteen men all of whom were law.º. Its chairman, William Kennon, was an able constitutional lawyer . At least seven of its members had had experience on the bench. No stronger committee could have been ...sº The committee in formulating its report appears to have followed quite closely the New York constitution of 1846. The plan as proposed was sub stantially as follows: (I) a supreme court composed of four members, the chief justice elected at large and the remaining three by districts; (2) a court of common pleas in each of eleven districts; (3) district courts composed of one [I] Debates II.E.815. 2) Kennon, Swan, P. Hitchcock, Mason, Stanberry, G. J. Smith, Vance, Groesbeck, stillwell, McCormick, Ranney, Kirkwood, and Humphreyville. (3) Debates 1,431. 142 supreme judge and three judges of the common pleas; (4) County judges called judges of probate; (5) justices of the peace. The judges were to be elected by popular vote for a term of seven years and a minimum salary of $2000 per year for supreme justices and $1800 for common pleas judges was ºne.” The probate judges and the justices of the peace were to be elected by popular vote for terms of three years. The district court was to be an intermediate court of appeal between the court of common pleas and the supreme court. The purpose of the changes was to lighten the burden of the judges and to make the depart- ment adequate to the needs of a rapidly growing population . The convention made, after long debate, a number of important modifications in the plan of the committee, changes whose wisdom is to be doubted. The report was violently opposed by the radical Democrats. Three members of the committee refused to sign the report. It was charged that the committee was domi- nated by its Whig members. Perhaps the most vigorous debate arose over the ques- tion of the length of the tenure of office. The committee made no change at this point in the provision of the old constitution. The Democratic majority, however, thought a term of such length dangerous to liberty. The debate broadened its scope until it covered the whole question of the place and function of the judiciary in our constitutional system and sounded exceedingly modern in its tone. The extent to which the judgments of the courts should --- --- (1) Debates 1,430. 143 reflect the sentiment and will of the people was a source of contention then as now. The object of the one group was avowedly to make the judges accountable to the people and responsive to their will. They frankly advocated, therefore, a short term. Four years, it was in sisted, was a maximum above which it would be dangerous to go. The judiciary was accused of sub serviency to the moneyed classes and to vested interests. Jefferson was enthusiastically quoted in favor of short terms. The Whigs, on the other hand, and the more conservative Democrats favored an independent judiciary - an attainment which they viewed as incompatible with a short term. It was pointed out that ten states had a term of seven years or over, that a term of four years or under was pushing democracy further than other states had thought wise. Judge Hitchcock responded, when accused by Reemelin of lack of sympathy with the popular view point, that So long a-ºetained his senses he would decide all cases presented before him, whether between individuals or between an individual and a corporation, according to his under standing of the consti- tution and the law of the state independent of and regardless of public º Judge Nash asserted that "a judge can ** master on earth but the convictions of his own ***. In response to the view put forward by Reemelin of Hamilton that there was a certain class of questions, that is, Constitutional questions, wherein he wished an appeal to the - (1) Debates , II,684. (2) º I,702. 144 people – an early advocacy of the recently emphasized doctrine of the recall of judicial decisions - Nash asserted that "the judge is to construe the constitution; and if the construction of the judiciary should be unsatisfactory to the people, they have reserved to themselves the right of amending the constitutions and the law. Here is the remedy under our system of * To the same effect, Mr Stanton scornfully said: "An upright and independent judiciary could be an effective protection to the inali enable rights of the individuals and hence it must be got rid of . There must be an appeal from the courts to the ballot box. Everything must be sacrificed to a dominating partisan majority. I ought to hold my life, liberty and property at the mercy of the ºw.” Kennon deplored the tendency to drag the judiciary into politics. In answer to the question who should be a judge, he replied: The man of the highest integrity, the man who by his ability, his learning and his habits is best qualified to dis- - (3) charge its duties". (1)TDEEEEEEI,703. THESE Ew0 men Fepresent the viewpoints of ex- presidents Roosevelt and Taft respectively. It is interesting to note that a doctrine presented to the constitutional con- vention of 1912 by ex-president Roosevelt which aroused na- tional interest had been suggested to a former convention in the same state sixty years before. The master minds of the convention participated in the discussion and it is perhaps the best part of the convention debates. (2) Debates, I, 689. His illustration of a murder case where popular prejudice might influence the judge suggests the recent Frank case of Atlanta, Georgia, where popular clamor seems to have exercised a controlling influence • (3) Debates, 1,633. Fisher Ames was quoted as saying, that "the Federalists relied much on the efficiency of an independent judiciary as a check on the hasty turbulence of popular passion". l45 The tenure of office was finally set at five years - a compromise between the two extremes. An amendment in 1883 gave the legislature power to lengthen the term. Acting on this right the term was lengthened to six years at which it still remains. In the Whole discussion one sees, on the one hand, the Jeffersonian idea of trust in the people and, on the other, the Federalist idea of the need of restraints. Ohio appears to have been the most democratic state in the Union at this time if we may judge by its action on this question. Of the dozen states which revised their Constitutions about the middle of the century, not another put the term as low as five sº Six years was the popular length of term though several states preferred to make it lonsº Ranney, a member of the judiciary committee who opposed the majority report, objected to the fact that no county court, was provided for except the probate court whose jurisdiction was limited; he further objected to the number of judges - four; and, finally, he thought the plan would fail to eliminate delay, expense and numerous appeals. He favored the abolition of the supreme Court, although he * elected a member of it before the 3 Convention adjourned. It was his plan to have the work done by the district judges sitting as a court of appeal . (I) Mason of Clark County, a conservative Democrat, asserted on the floor of the convention that Ohio possessed "a degree of radi- calism and recklessness which did not characterize the polit- ical movements of the same party in any other state. Ohio seems to have been made the chosen ground for all new experi- ments that can be made in politics".V.I. p. 695. (2) Calif., 6 years; Ill., 9; Iowa, 6; Ind., 6; Ky., 8:La., 8; N.J., 6; Mich. , 8; ii. y. , 8;Tex. 6; Wis., 6; R.I., good behavior. (3) Debates, I, p.665. 146 The final draft of the article shows the result of the long struggle in the convention. It provides for a supreme court of five members elected at large for a term of five years. A majority was required to form a quorum or render a decision. The Court was required to hold at least one session a year at the seat of government or elsewhere, and its jurisdiction was both original and appellate. Below the supreme court was the district court. The number of districts was fixed at nine. Three common pleas judges were provided for in each district and these sitting with a su- preme judge constituted the district court. It was provided that this court should sit at least once annually in each county in the state; if, however, it should be found expedient to do so, the General Assembly was permitted to modify the plan so as to pro- wide for a minimum of three annual sessions within the district at three different places. The article finally provided as follows: "The General Assembly may increase or decrease the number of judg- es of the supreme court, the number of the districts of the common pleas, the number of judges in any district, change the districts, Or the subdivisions thereof, or establish other courts, whenever two-thirds of the members elected to each house shall concurthere- in; but no such change, addition or dimination, shall vacate the office of any judge? It was the intention of the convention to eliminate by means of this section all that rigidity which had made it im- 90'ssible to adjust the old constitution to the expanding needs 147 of the state. Results showed, however, that they had failed, in part, to accomplish their purpose . The supreme court was still a "stirrup court", to use the quaint phrase of that day. The convention feared a purely "paper court", so-called. It was in sisted that a supreme judge needed the personal contact with the people in every district in the state in order to retain that sympathy with the people and that appreciation of their viewpoint which was essential to the rendition of justice between man and -: With this object in view the work of the supreme judges was divided between work "in bank" at the capital as a supreme court and work through the State as members of the district court. The burden proved too heavy and the consequent delay in justice frequently resulted in the defeat of justice. Very soon after the adjournment of the convention, it was perceived that a blunder had been made in the organization Of the district court. As early as 1857 the General Assembly Submitted an amendment to the people whose object was the remedying of this defect. It provided for the election of district court judges who would take this work out of the hands of supreme and common pleas judges. This amendment failed *- (I)"By trying jury cases the judge is brought down, if you please , to converse with men in their business, to become acquainted with the ways, wants, the habits, the manners, the interests, the business of the people; and moreover the ruling spirit of the people". (Judge Holt of Montgomery County, I, p.650.) 148 of ratification though the vote of those actually voting on the proposition was over five to one in its º It was defeated by the in different voter. No further attempt to remedy the defect by constitu- tional amendment eccurred until the convention of 1874. This convention made a number of important changes in this department. A circuit court with its own judges was substituted for the district court; the judicial term was lengthened to ten years; a commission was provided for to sit for three years in order to clear up the supreme court docket and power was given to the General Assembly to provide for a similar commission when con- ditions required it - a very superficial method of solving the problem of a congested docket . . The constitution having failed of ratification and Some relief for the docket being imperative, the General Assembly in 1875 provided for the submission as a separate amendment of the provision of the constitution of 1874 for a judicial commis- (2) sion, and the proposition received decisive ratification. (I) Submitted OctoberT3, T857. Total vote cast, 332,126; for the amendment 156,646; against 30,039. A majority of all votes cast was necessary for ratification . See Patter son, Ohio Constitutions p. 168. (2) Laws of Ohio, vol.72, p.269. For the vote , see Patter son, p. 238. Total vote cast, 595,248; for, 339,076; against,98,561. 149 Emboldened by this success the Assembly hastened to submit an amendment revising the whole judicial system along the lines proposed in the constitution of 1874. There were, how- ever, important differences, the most important of which being the abolition of the probate court and the transfer of its functions to the common pleas court. The term was fixed at five years. The amendment was overwhelmingly acrºss.” Again in 1879 the question of a separate district Court was submitted without wess...” Finally in 1883 a revision of the judicial system was submitted in the form of an amendment providing for a circuit court with separate judges as in the constitution of 1874. The people had at last become fully ) aroused to the need of a change and the amendment was rear...” The results of these changes were fairly satisfactory and the system remained unchanged until the meeting of the con- vention of lol.2 when important modifications of the plan took place. - The right of the courts to pass on the constitution- ality of legislative acts was denied by a few individuals in the Convention. It was asserted that the legislature should be the judge of the competency of its own powers. The treatment meted out by the legislature to the judges Who first asserted the right of judicial review has already been *— - (I º . To tal te, 557, 503; for, 54,896; against, 268,478. ratiºn; * *::::::::::::::::::::::*:::::::: (3) $º p. 251 . " * 721, 310; " 400,919; " 144, 335. 150 described in connection with the ****". Only occasionally I was the right asserted prior to 1850. In the pre-convention *.*.*** received attention, finding both defenders (2 - and opponents. Soon after the convention, the court, being free from legislative control, boldly declared that, "it is the right and duty of the judicial tribunals to determine whether a legislative act pºet drawn in question in a suit pending before them is opposed to the constitution of the United States or of this state, and, if so, found, to treat it as a nullity". The court emphasized in a later decision, however, that the presumption was always in favor of the validity of the law and ** incompatibility between 4. Constitution and law must be clear . The interpretation was not to be based on convention debates, nor on its general latent spirit (5) but on its words. In recent years the right of the courts to pass on the constitutionality of legislative act 3 has not been questioned, and they have exercised the right with great freedom. ***-------------- * * * * * * * * * * * * * * * * * * * * * * * - (I) For example: McCormick v Alexander, 2 Ohio Reports, 66. Lewis v McElvain, 16 Ohio Reports 347. In this case Judge Hitchcock was quoted as having said: "There was a time when it was dangerous for the courts of this state to inquire as to the constitutionality of legislative enactments; and the journals of our legislature will show you that at least two judges have been impeached for this high offense. But we have fallen into better times". - (2) Medary's "New Constitution", issues of June 23rd and July 10th . "Homo" attacks it on the rather unique ground that it violated art.8, sec. 9 of the Ohio Constitution which provided" that no power of suspending laws shall be exercised unless by the legislature". He overlooks the fact that court action is not a suspension of the act but a declaration that it, being con- trary to the constitution, is not and never was law. Railroad v Commissioners, I Ohio State Repºrts, 7. 3) º Armstron v Treasurer, 10 " 235. (5) Lehman v Mcbride, 15 " º º 573. Walker v. Cincinnati, 2l " º ºt 14. Wilcox v Noltze, 34 " º ºt 520. 151 A few words should be devoted to article 5 which deals with the elective franchise. But two changes of any importance were made . The first constitution gave the franchise to every white male inhabitant of the age of twenty-one years who paid or was charged with a County tax. A change was now made limiting the franchise to citizens of the United States and the clause as to taxation was omitted. The result was unlimited manhood suffrage for White citizens. The only contest of any consequence in connection with the adoption of this article resulted from the efforts of a minority to obtain the extension of the suffrage to the Negro . This struggle will receive further attenti on later. An effort was made in 1867 to restrict the suffrage by excluding those who had borne arms against the United States, those who had fled to avoid military service and those who had deserted from the army. The people were evidently of the opinion that it was time to forget the animosities aroused by (I) the war. The amendment was defeated. - --------------- ----- -- -------- (I) Patter son, p. 170. Total vote, 484, 227; for, 2.16987; against, 255, 340. 152 Article 6, containing two brief sections, dealt with the subject of education. The stately sentence as to religion, morality and education of the Ordinance of 1787 which had been incorporated in the first constitution was omitted from the second. The whole subject of education was perhaps wisely left in the hands of the General *..." Efforts to provide for normal schools and a state Superintendent of instruction were defeated. Indeed, compara- tively little interest was shown in the subject of education. The subject of banks or public works or corporations would always develop much heat in the convention, but the subject of education was too pro saic. -------- (I) Debates , II, 700 ff. 153 Article seven was devoted to public institutions and needs but a Word by way of explanation. It provides for chari- table and correctional institutions. The leading change over former practice was to take the appointment of directors or trustees from the hands of the legislature and give it to the governor, though ratification of appointment by the upper house was provided. Some effort was made to have the se directors elected by popular vote and New York was cited as using this method. Wiser counsel s prevailed but the directors of the peni- tentiary were permitted to be appointed or elected at the di scretion of the General Assembly. - Considerable debate developed over the question Whether the convict should have the product of his labor . A few men in the convention expressed humane ideas as to the treatment of criminals and insisted that their reformation ought not to be a less important consideration than the prevention of crime. All recognized that the prison life tended to confirm the criminal in his life of crime, that no provision was being made for him when he left prison, that the useful sphere's of activity were largely closed to him and that there was no alternative in most cases to the old life. The idea that the imprisonment was essentially a punishment was the prevailing one and the additional expense to the state if the fruits of their labor were returned to them had influence in determining final action which was adverse to the (I) Érant. ------------ (I) Debates, I, 545. 154 Article eight deals with the important subject of public debt and public works. The two are linked together as a result of the fact that the latter was the cause of the former. The fixing of a debt limit for the state gave rise to vigorous debate. The committee proposed a maximum of $750, 000. There was no disposition on the part of the convention to exceed that figure. Indeed, the vital question was to decide whether the figure was too high. The committee acknowledged its indebtedness to the New York constitution of 1846 in drafting the report and called attention to the New York debt limit of one million asuº. The report of the committee was adopted, though an exception was made in that the state was permitted to contract debts to repel invasion, suppress in surrection, defend the state in time of war, or to redeem the indebtedness of the state then out standing. It was many years before the debt was reduced to the required limit. Hitchcock of Cuyahoga County reported on the condition of the state as to debt and public works. The state debt at that time was approximately $166,000,000. The interest paid in l849 was $1, I47,854. The resources of the state in public works consisted of canals, railroad stock, turnpike and canal stocks, Canal lands and the Western Reserve and Maumee Road. The bulk of the indebtedness had resulted from canal construction, though Some other enterprises had absorbed no little capital. The report showed that the state owned stock in the Mad River and "-------, , , , , . . . . . . . . . . . . (I) See the constitution of 1846, art. 7, sec. 10. Poore's Constitutions, vol. I, p. 1362. One notes a striking similarity in the two articles. 155 Lake Erie Railroad with a face value of $329,650; in the Little Miami with a face value of $157, 200; and in the Mansfield and Sandusky City Railroad, face value $33,333. A dividend in the last mentioned company was paid in 1850 by the issuance of additional stock to the amount of $73,150, making a total of stock in all the se companies of nearly $600.000. The to tal net income per year from all the investments of the state was estimated by the committee at $366,000. The careful students of the development of transporta- tion in the state were of the opinion that the income from the Canal s would grow steadily less as a result of the competition of railroads. At this time a road had just been completed con- necting Cleveland and Cincinnati by way of Columbus. The sequel proved that under the influence of railroads the canals were soon to become worthless. The constitution provided for the payment of the interest on the debt and for a yearly payment on the principal of "a sum not less than one hundred thousand dollars, increased yearly, and each and every year, by compounding at the rate of six per centum per annum." The required amount was to be raised by taxes after applying the net income from the public works. It Wa, 3 estimated that this method would pay off the state debt in a period of thirty five or forty year.” The plan involved a payment of about one million dollars per year • * * * * * * * * * * * * * - - - - - - - - - - - * * * * * * * * * * * (I) Debates, I, 476–477. (2) {{ I, 473. The expensive canal system of the state was begun in 1825. The first act provided for the floating of a loan. It further provided not only for the payment of the interest but for the establishment of a sinking fund to extinguish the ºneº This latter feature was neglected in the carrying out of the law and there was no substantial decrease in the principal until 1850. The improvements cost far more than the estimates of the engineers led the people to expect. On the other hand, the receipts were disappointing and in stead of showing increase with the state's growth in population they gradually grew less through competition With railroads. The whole experiment proved so disappointing that the people became violently opposed to any sort of governmental en- couragement to public improvement. One or two facts, however, Should be noted before passing judgement on the wisdom of the policy. In 1840 seven hundred and eighty eight miles of canals had been completed at an expense of approximately sixteen million dollars. The assessed value of real property in Ohio in 1840 was $109,940,636 while in 1850 it had risen to $346, 341,233; personal property in 1840, $40,352,496, in 1850, #115,807, 387. (1) Ohio Laws, vol. 23, p. 50. For further treatment of the subject see C. N. Morris, "Internal Improvements in Ohio". American Historical Association Papers, v. 3, p. 107. Also McMaster's History, v.v.I, pp. 347-351. An article by D.W.Dial, is found in the Öhio Archaeological and Historical Society Publi- cations, vol. 13, p. 479. f 157 * 1. - 5 (I) The increase in population was equally striking. To what extent the canals contributed to this remarkable growth it is difficult to say, but investigation shows that the most rapid growth and development took place in the counties contiguous to the Canal s. Whatever one's opinion may be as to the wisdom of the policy, it is certain that the members of the convention had, for the most part, but two thoughts in mind, first, to find some means pf paying the existing debt and, secondly, to prevent the recurrence of such a deplorable situation. The article as passed not only fixed a mažimum debt limit but provided further that the state should never loan its credit to any individual or corporation nor become a joint owner or stockholder in any company and that it should never assume the debts of any local subdivision "unless such debt shall have been created to repel invasions, suppress in surrection, or defend the state in war". 2) The limiting clause was added after attention had been called to the fact that during the Mexican 3) War such debts had been contracted and later assumed by the state. (I) Ohio Statesman and Annals of Progress, 1399, first part, p.195. gº; 3:3% 1810, 230,760; 1820, 581,295; 1830,937,903 1840, 1,519,467; 1850, 1,980, 329. Ohio was not included in the census of i'790. (See World's Almanac, 1914, p.674. ) {} Art. VIII, sec. 5. 3) Debates, I, 472. 158 The General Assembly was further prohibited from author- izing any local Subdivision to become stockholder, in any private company or to loan its credit to any such sº A strong fight against this provision was led by Cutler of Washington County on the ground that it worked an in justice to the undeveloped counties. He pointed out that land was selling for $4.70 per acre in south eastern Ohio although there was vast mineral wealth b e- neath the surface. Transportation facilities were lacking. Cutler Was an active promoter of railroads throughout his life and did more than any other perhaps to improve transportation facilities Of his section of the state. His efforts in the convention were Without avail, as he was hopelessly in the minority on this *::: The auditor of state, secretary of state and the attorney general were constituted a board to assume charge of the sinking fund and the gradual payment of the state debt. A board of public Works was provided for consisting of three members to be elected by the people. A similar board had been in existence for some time. The members, however, had been appointed by the legislature and were frequently accused of mismanagement. By these drastic provisions the state was rescued once for all from the dangers of abuse of power, in this direction at least, by a reckless and ignorant legislature. |I) Art. VIII, sec.6. Debates, II, 300. 159 Little change was made in article IX dealing with the militia. Present day emphasis on the importance of preparedness gives additional interest to the provisions on this subject. The method of choosing officers was modified so as to relieve the General Assembly of the appointing power which it formerly poss- essed. Appointment of the staff officers was given to the gover- nor while all the more important officers were to be elected by those subject to military duty. The first section provided for the enrollment in the militia "of all white male citizens, residents of the state, being eighteen years of age, and under the age of forty-five years". Regulations as to military duty were to be prescribed by law. The subject developed considerable discussion as to the utility of military organization and the compulsory muster. The latter, especially, received severe criticism and was characterized as an occasion for rowdyism and as being of little military value. The most spirited debate centered about the question of ******** * the exemption of, the "society of Friends" from participation in military duty on the ground of being conscientiously opposed to war. Their cause was championed by Bates of Belmont, an adherent of that faith. Mr Stanton offered a section providing that "no per son or persons conscientiously scrupulous of bearing arms shall be compelled to do military duty in time of peace". Attention was called to the fact that at that time such an exemption appeared in a number of state constitutions though in some states there was 160 a requirement of a money payment in lieu of service. If the Friends refused to pay a fine for failure to attend, it was cus- tomary for the constable to seize some of their property and sell it at auction to pay the fine and costs. Morris, a member of the Convention thought that at least one thousand dollars had been Sacrific ed in this way in Clinton County. It was asserted that the Friends were for the most part Whigs, and that their adherence to this party was due to their anti pathy for Andrew Jackson and his belli cose nature . The exemption clause was “..." It was incorporated in the Constitution of (2) 1874 and money payment was provided in lieu of military service. - wº * * * * * * * * * * * * * * - - - - - - * * * * * * * * * !!! Debates, 1,449. (2) Patter son, p. 210. l61 Article X, dealing with county and town ship organiza- tion aroused relatively speaking little interest in the convention. Wide discretion was given to the General Assembly to legislate in this field. The only spirited contest over this article developed Over the question whether the three- commissioner-system of county administration which Ohio had copied from Pennsylvania should be continued or whether the New York plan of government by a local board of supervisors elected from the respective town ships in the county should be adopted. Taylor, of Erie, who se native state was New York, urged the New York system strongly as a remedy for the great evil of special legislation by the legislature. He urged that since they were taking measures to confine the activities of the General Assembly to general legislation exclusively a county assembly should be provided for the local a...!” The three- commissioner - system was objected to as being to o centrali- zed and as being too much under the influence of a court house Clique at the county seat. The county assembly was endorsed as a great training school for legislators. 2 The commissioner system was retained because it was Giving, on the whole, fairly good satisfaction and it was feared * * * * * * * * * * * * * * * * * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) Debates, I, 288 ff. (2) Debates, I, 290. 162 that the other system might prove much more expensive and that it was too large for the best º All local officers were made elective including the Clerk of Courts who had formerly been appointed by the Court. The apportionment of the state for members of the General Assembly, dealt with in Article XI, gave the convention much difficulty and was adopted only after lengthy discussion . The old constitution provided for an enumeration of the white male inhabitants above twenty-one years of age every four years and for an apportionment of the members of the legis- lature on the basis of this enumeration . The number of represen- tatives was never to be less than twenty-six nor more than thirty- six until the enumeration as provided rose to twenty-two thousand. Thereafter the maximum and minimum were to be seventy-two and thirty-six rºwseway.” The only restriction as to the senate Was that the number should never be less than ºne-wire Ilor. In Ore (3 - than one-half the number of the lower house. Under these provisions the General Assembly possessed large powers particularly as to the distribution of the members and the designation of the representative districts. Frequent £errymanders resulted from the extremely bitter partisan politics Which prevailed. Whigs and Democrats alike, when in control of the General Assembly, tried to perpetuate their power by a favorable (1) For an account of the rise of the two systems, see Fairlie, Local Government in Counties, Towns and Villages, pp. 28 ff. (2) Article I, sec. 2. (3) º I, sec.6. 163 readjustment of the districts. Nash, who was not given to extra- Vagant statement, asserted that the representatives had been "on the verge of revolution for four years *." The condition to which Nash referred resulted from a political struggle over the representation from Hamilton County. The Whigs &Maintained that this county exerted an undue influence in the General Assembly. The representatives of the county were elected at large and the Democratic party usually prevailed in the election . Going to Columbus as a harmonious cooperating group, they were able to maintain a controlling influence on many ques- tions. The Whigs, therefore, attempted a division of the county into two districts in the hope of dividing the delegation between the two parties. This effort was bitterly contested by the Democrats and the struggle led to much ill rºº Robert son of Fairfield County even went so far as to attribute the calling of the con- ven ti on to this conflict and its attendant ºn.'” Resolutions dealing with the subject of apportionment were introduced at an early point in the deliberations of the convention. The delegates were agreed that some method must be found to limit the control of the legislature over the subject and to take it out of politics. As to method there was no general agreement. One group advocated an automatic self-acting scheme based on population . Others thought this impracticable and - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) Debates, I, p. 134. (2) Debates II, 77I. (3) Debates I, 153. 164 advocated as an alternative the election of all members of the General Assembly by single legislative districts whose bounda- ries should be, so far as possible, coterminous with the counties. In case division of a county should be necessary, it was proposed that the power of division be placed in the hands of a local county board consisting of township trustees and town councils. The latter method was opposed and rejected on the ground that it would stimulate corruption and Wire-pulling in the counties. Disagreement also arose over the question whether or not each county should have at least one representative irrespec- tive of its population. A furt ther point at issue was whether the convention should fix absolutely the number of members of the Assembly or should simply indicate the method of determining the number on the basis of population. After long and often tire some discussion in which accusations of partisan ship were flung back and forth, the con- ven ti on adopted a compromise plan . I The ratio of representa- tion in the lower house for the first ten years was to be found by dividing the population of the state by one hundred. Counties With a population equal to one half the ratio were to be entitled to one representative. There were other details as to represen- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) "Public opinion has been stifled repeatedly, and I may say at all times, by representative apportionment, made not for the good of the people, but to strengthen a party". Words of Reemelin, Debates, I, 100. In the fourth decade of the century, apportionment 3 wwre favorable to the Democrats but in the next decade the Whigs obtained control and retaliated . l65 tation which need not be mentioned. Similarly the basis for the Senate was to be obtained by dividing the population by thirty-five . All the senatorial districts were definitely fixed for the first ten years as was also the number of representatives to which each county was entitled , º Section eleven provided as follows: "The governor, auditor and secretary of state or any two of them snail, at least six months prior to the October election, in the year one thousand eight hundred and sixty-one, and at each decennial period ther e- after, ascertain and determine the ratio of representation, accord- ing to the decennial census the number of representatives and senators each county or district shall be entitled to elect, and for what years, within the next ensuing ten years, and the governor Shall cause the same to be published in such manner as shall be directed by 1....” It will be seen that the number of members of the legislature was defini tely fixed though their distribution was to be subject to decennial revision in accord with the changes in population shown by the census. The convention of 1874 debated the subject of apportionment at length and finally adopted the article similar in outline to that of 1851. The ratio for senate and house was - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) Art. XI, sec. XI. 166 to be found by dividing the population of the state by thirty- seven and one hundred and five respectively. Every county was to have a representative irrespective of its ºnauer." The se provisions failed to go into operation. The changes made by the constitution of 185I limited greatly the control of the General Assembly and resulted in pronounced improvement over the conditions which had formerly prevailed. Modifications could come only at the end of ten year periods and even then the restrictions on their action Were such that the resulting evils were greatly reduced. (I) Patter son, p. 219. 167 The twelfth article was devoted to the subject of taxation and finance. The first section prohibiting a poll tax for state or county purposes merely copied the provisions of the old consti- tution and was accepted with comparatively little objection. In fact, the main objection came from those who wanted a more strin- gent provision. An Ohio law of that time required every male per son between the ages of twenty-one and sixty to work two days each year on the roads or to pay a tax of two dollars annually in lieu wºrset." Ranney and others were opposed to this law on the ground that all taxes, including those for township purpo- ses, should be assessed on the basis of property alone. The con- vention, however, was of the opinion that good roads were so im- portant to the community that even the propertyl ess class ought to contribute to their upkeep . Section two involved two important provisions as to taxation, first, that all property of whatever type or class should be assessed by a uniform rule and, secondly, that school, church, and public property, property used exclusively for charitable purposes and personal property to an amount not exceeding two hundred dollars might be exempted by general law from taxation. The second of these provisions was debated at some length, a considerable number in the convention being opposed to any 2 exemptions.ºh. others in sisted strongly on an absolute (I) Passed March 7th, 1831. See Chase's Statutes, vol.III, p. 1855. This law with various modifications was in force till the end of the century when it was repealed . (2) Reemelin of Hamilton led the fight against exemptiori. He was accused of hostility to religion which he denied. In his autobiography he calls attention to his efforts to prevent the offering of prayer on the floor of the General Assembly and classes himself as a free thinker . T.68 exemption for these types of property. The clause as drawn compromised the extreme views by leaving the matter largely in the hands of the General *-ºs." The application of the uniform rule to taxation was accepted with little debate. Its absence in the old constitution Was conceived to have been one of that in struments prominent de- fects through which corporations such as banks had avoided the assumption of their just share of the burdens of government. It is significant that the absence of this rule was thought to have been the cause of those evils which we now think can be best re- medied by its removal from the constitution. Many of the people, however, still look on the "uniform rule" as a safeguard against Oppression and view the efforts to secure its removal with alarm. Between 1851 and 1912 no less than seven distinct efforts were made to secure the adoption of an amendment to the taxation arti- cle of the constitution. All failed though in six cases a major- ity of those actually voting on the proposition were favorable. The question in regard to taxation which absorbed the attention and the effort of the convention was neither of those just mentioned. It was the question whether United States bonds and state bonds (the latter had been issued with a non taxable éuarantee) should be taxed. This question was argued **** its constitutional 2 merits and not on the basis of expediency. * * * * * * - - - - - - - - - - * * * * * * * * * * * * * * * * * * * * * * * * * * * * (1) Debates, II, 44 ff. - - 2) For an interesting discussion of the part which constitutional questions and arguments played during the ante-bellum days, see Woodrow Wilson, Congressional Government, pp. 196 ff. 169 The section as adopted made no exception in either case. Attention was called to the fact that, under the decisions of the Supreme Court of the United States, state taxation of United States bonds was unconstitutional and º that, by incorporating such a clause, the convention would be violating its obligations to the federal Constitution; and that, by placing in the constitution a clause that must necessarily prove insperative, it would make it- self ridiculous in the judgment of all capable students of 1:. The opponents of this view held that the decisions of the federal Supreme Court on the subject of taxation were an unjustifiable encroachment on the rights of the states and un- worthy, therefore, of recognition. This view was best expressed by Ranney who, having boasted that he was a states' rights man, asserted: "The more you weaken the states, and add weight to the federal government that rests upon them, the more certainly you has ten the crash which builds upon the ruins of the state govern- ments a great consolidated —nº We smile at such declama- tion to day but it must not be for gotten that he carried his point and that the exception was not made • The vote on the question * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * (I) Weston, et al. v The City of Charleston, 2 Peters p. 449. Dobbins v The commissioners of Erie County, lé Peters, p.435. The first case was to the effect that United States bonds could not be taxed by states and the second that the states could not tax a federal office thereby diminishing the rec- ompense. See, also, The Collector v Day, llWallace, p.113. (1870) (2) This view was presented by Kennon, Green, Archbold and Case. (3) Debates, II, 79. 170 showed a large majority of the Democrats and a few Whigs in favor of the taxation of United States was." The debate over the taxation of state bonds was much more prolonged and marked by much greater bitterness. The exis- tence of these bonds was the result of Ohio's activity in the line of public improvement. The first act providing for the sale of state bonds or stocks was passed February 4th, 1825. This act pro- vided "that no tax shall ever be levied by the legislature, or under the authority of this state, on the stock to be created by virtue of this act, nor on the interest which may be payable there- On ; and further that the value of the said stock shall be in no Wise impaired by any legislative act of this * Turing the period from 1825 to 1839 some twenty laws were passed providing for additional appropriations. The exemption from taxation was more clearly expressed in the laws of 1825 and 183? than in the others. In 1850 approximately $15,000, 000 of these stocks were out standing. None of them had been taxed. The precise question at issue was whether the clause quoted above had contractual validity which lifted it above the sphere of legislative repeal. The same question of the contract- ual character of certain types of legislation has already been alluded to in connection with the discussion of the legislative department of the government. One would naturally expect a simi- lar alignment of the delegates at this point, and such was the result, * - - - - - - - - - - - - -a -a - sº me m. m. ºn sº as as as * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * (I) When Horton moved in the committee of the whole to exempt United States born dis from taxation the convention showed its contempt for high tribunals by rejecting his amendment by a vote of fifty-two to twenty-seven. (2) Chase's statutes, vol., II, p. 1474. 171 Those who opposed the taxation of these bonds did so on three grounds, first, that the legislative enactment was a contract and hence protected by that clause of the federal constitution which forbids to the states the impairment of the obligation of con- º secondly, that such taxation would be a breach of public faith; and, thirdly, that it would be inexpedi ent inasmuch as such taxation would destroy public confidence in the state's integrity and result in a higher rate of interest for subsequent issues. The first of these objections received the main stress, and was held to be decisive . It, in fact, was the only argument that reached the question of right in the legal sense . Of the Other objections one was a question of moral s and the other of good policy. Attention was called to the case of The Commercial Bank v The State of onio. The Commercial Bank had been charter ed by a special act of the legislature. The terms of incorporation provided for a 4% tax on its dividends. Later the legislature levied a tax of 5% on all banks. The Supreme Court of Ohio deci- ded that the charter was a contract, that the constitution of the United States prohibited the state from passing any law impairing the obligation of contracts and that, therefore, the law was void as to The Commercial Bank. - - - Those, on the other hand, who favored the taxation of State bonds, in sisted that no legislature could bind succeeding *** - - - - - - - - - - - - - - - - - - - - - - - - - - - - * * * * * * (I) Art. I, sec. 10. (*) tº ºvº. 9, 172 legislature 3 and that no legislature had the right to make a contract. The sovereignty of the people was held to be absolute at any given time and not limited by the action of former legis- latures . Reemelinwent so far as to take the rather startling ground that a constitutional convention was "a revolutionary body, bound to inquire into the original elements of society, to rectify the errors of the past, and provide new safeguards for the º Loudon in similar vein held that they were laying the founda– tions of the state º Apparently, he had a very hazy idea of the continued existence of the state . The best constitutional lawyers in the convention were undoubtedly arrayed against the legitimacy of such taxation. Their attitude was dictated by a sacred regard for the authority of court decisions. The opposite view, however, in spite of judi- cial decisions, would appear to be the more tenable from the stand- point of political theory. The powers of a legislative body ought not to include the right of contract nor the right to bind the people for all future time. No people can afford to put itself So unre servedly into the hands of its **** Motives of good faith and prudence would usually require the meeting of obli- gations thus incurred but the right of repeal ought to be in sisted upon in case the public good should demand it . É Debates , II, 87. 2) º II, 57. Green of Ross expressed a different view when he said: "I do not agree with some modern reformers that the times are all out of joint and that it is necessary to rub out everything and commence de novo. I think that a few changes are necessary; but we are to see a wise and salutary reform, not universal destruction and overthrow". Vol. II, .72. (3) Perpetual clauses in constitutions come in same category. 173 The article dealing with the subject of corporations, from the standpoint of its influence for good and ill, was one of the most important adopted by the convention. The first section providing that "the General Assembly shall pass no special act conferring corporate powers" was aimed at the evils connected With special legislation. Attention has already been called to these evil s in the study of the legislative department. The first constitution provided for incorporation only by special act. The clause was apparently interpreted by the legislature as being mandatory in character; at least such applications were seldom if ever ...tº The form of this section would seem to give discretionary power to the General Assembly as to acts of in- corporation; but, if this was the intention, the clause appears to be out of place in a bill of rights. Hundreds of irresponsible Corporations came into being. When the convention met, the people were eager for relief. All conceded the existence of the abuse and agreed that some remedy must be found but they disagreed, as usual, as to what the remedy should be . * * * * - - - - - - - - - - - - we as m = * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * (I) See section 27, of the Bill of Rights of the Constitution of l802. "That every association of persons, when regularly formed within the state, and having given themselves a name, may, on application to the legislature, be entitled to receive letters of incorporation, to enable them to hold estates, real and personal, for the support of their schools, academies, colleges, universities and for other purposes". Smith of Warren County called at tention to the interpretation which this clause had received. He asserted that nine-tenths of the acts of incorporation were dead letters, never being put into operation. (See Debates, I, 357.) l64 The extremists supported the section as finally adopted. Others, however, thought that a law abolishing all special incorpo- ration too drastic . They believed that some discretion ought to be left in the hands of the legislature. Stanberry of Franklin, for example, held that it was impracticable to bring all corporations under a single general law. No limiting details, appropriate to individual cases, would be possible. Dangerous latitude, as a conse- quence would be left in the hands of incorporators. Attention was called to other recently revised constitutions such as that of New York in which no such drastic provision had been inserted. All amendments, however, were rejected by a decisive majority and Ohio, in the **** one evil, brought on her self others I almost equally serious . Perhaps the most serious evil resulted from the fact that no exception was made in the case of municipal corporations. A much larger group of delegates favored an exception here . Hitch- cock of Geauga emphasized the difficulties connected with the passage of a general law which would be at the same time appro- priate for a hamlet of five *** and for Cincinnati with its 2 Varied interests and problems. Here, again, however, the (I) Poore, Constitutions of the United States, vol.II, p. 1363. Artici e VIII, section I of the New York constitution of 1846 reads: "Corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes, and in cases, where, in the judgment of the legislature, the objects of the corporation can not be attained by general laws" (2) Debates, I, 340. Others who concurred in this view were Stanberry Stilwell, Norris, Mason and Dorsey - all capable men. The statement of S.P. Orth that "the section is agreed to " is all the records of the convention say regarding the entire question of municipal government" is somewhat an error. See his ex- cellent article, The Municipal Situation in Ohio, in the Forum, vol. 33, June 1902. Municipal corporations were discussed only in connection with the general subject of corporations. 175 feeling against corporations in general and special laws in par- ticular was too strong and one of the most serious blunders of the Whole constitution was the result. Section six as adopted provided for the organization of cities and incorporated villages by general laws. It is signifi - cant that Norris of Clermont, chairman of the standing committee that brought in the report on "Corporations other then Banking, " fore shadowed the future action of the General Assembly when he said that the committee "believed that all the corporations of the state could be as well regulated by general as by special acts of incorporation - by some classification of cities-- by the number of inhabitants, or by some other manner which might be thought prudent by the ..anºr." He probably never anti ci- pated to what extent his suggestion as to the classification of cities would be acted upon. When the legislature met in 1852, it passed an act for the organization of cities and incorporated villages following out the purpose of the section in the consti- tution. It went, further, however, and divided cities into two classes, the first class with a population of twenty thousand or Over and the second class including all cities with a less popu- lation than twenty ºne.” Cincinnati was the only city at that time with a population large enough to put it in the first Class. From time to time the legislature increased the minut eness and complexity of the classification until eight different classes had but a single city each. (1) Debates I, 340. (2) Passed May 3rd. 1852. Ohio Laws, vol.50 p.223. The law covers 38 pages. For its repeal, see vol. 66, p. 284. 176 The supreme court #ºns sustained the constitution- (I ality of the se classifications until 1902 when it rather unex- pectedly “tº it self and declared all such classifications (2 unconstitutional . This decision placed the legislature under the necessity of providing a government for Ohio cities º general law. The code of 1903 for Ohio cities was the rºat: This code gave a uniform government to all cities of over 5000 population. Most of the cities of the state are still governed under the pro- visions of this statute though not a few have taken advantage ) (4 of the home rule provisions of the constitution as amended in 1912. Section three of the article gºnder consideration pro- Vided for the double liability of stockholders in corporations. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * - - - - - - - - - - - - - (I) Marmet v State, 45 Ohio State Reports, p.63. State, ex rel. v Brewster, 39 Ohio State , 653. State, ex rel. v Hudson, 44 O. S. ºl 37. State, ex rel. v Hawkins, 44 O.S., 98 . State, ex rel. v Toledo, 48 O.S., il2. State, ex rel. v. Cincinnati, 52 O.S., 419. (2) State, ex rel. v. Jones, 66 0.S., 453. State, ex rel. v Beacon, 66 O.S.,491. (3) For the Municipal Code, see the General Code, sections 3497 ff. For #Ré summary, see J.A.Fairlie's Essays on Municipal Admini- stration, chapter 5. For an annotated edition, see Ohio Muni ci- pal Code by Wade H. Ellis. See also Munro's The Government of American Cities, pp. 55 - (4) The proposed constitutiºn of 1874 contained an article on municipal corporations which provided for the organization and classification of cities under general laws. The number of classes was not to exceed six. See Patterson, p. 212, or Organic Laws of Ohio, (1913), pp.126 ff. 177 Under the constitution of 1802 the liability of stockholders de- pended on the terms of the charter under which the corporation Operated. During the two decades prior to the assembling of the convention many reckless ventures had received the sanction of the General Assembly without any enforcible provision for liabil- ity on the part of the promoters. Many people having been swindled, a sub stantial part of the population came to advocate an unlimited liability on the part of stockholders in all corporations for the debts of the corporations. In the convention a majority of the Democrats held to this view. Many banks and railroad and turnpike Companies were cited wherein the people had lost their hard earned (I) Savings. Unlimited liability was ably opposed by Kennon of Belmont County who argued that such a provision would stop all development and would be particularly hard on those counties still largely unimproved. No one, he in sisted, would invest in a corporate project if its failure were to involve the loss of his entire possessions. The whole value of the corporate form Of organization would thus be lost . Double liability was a sufficient penalty for the stockholders to pay. Further security against loss on the part of creditors must come through their own cau- tion and good **t This line of argument had its weight, and * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * large business, issued currency, failed, creditors lost; Ohio Road Co., failed, loss to laborers, had received $449.000 from the state treasury; Wooster Bank, - gigantic swindle. This bank was rechartered in 1843 with an individual liability clause which proved defective when the bank failed. The Democrats attributed the defects to Whig amendments. (2) Debates, I.440. 178 as a result, a combination of conservative Democrats with the Whigs made possible the defeat of unlimited liability. Singular- ly enough, no one rose in the convention to defend the single liability of stockholders; and, yet, fifty years later, an amendment to this effect was endorsed in the platforms of both the leading parties and ratified by a majority which was almost unanimous - an evidence on the one hand of the in difference of the average voter, and, on the other hand, of the power of the "vested interests" in party someº The indifference of the people may be in part attributed to the fact that in the years immediately prior to the passage of the amendment, losses as a result of the failure of banks and corporations had been comparatively rare. - - - - - - - - - -a - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) Laws of Ohio, vol.95, p. 951. Submitted to the electors May 3, 1903. Total vote, 877, 203; for, 751, 783; against, 29, 383. A law was on the statute books at this time which provided that a political party might endorse an amendment and have it placed on the ballot in its column. Thus all straight votes would be counted for the amendment . 179 A standing committee on "Banks and Banking" was pro- vided for by the convention and its report received lengthy dis- cussion . In fact, no other subject aroused greater interest or stirred up more bitter partisan feeging. The Sen si ti veness of the delegates on the subject is readily explained by a study of the state's experience with banks during the first half of the century. There was nothing exceptional, however, about Ohio banks. They be- longed to the same type of unreliable institution that flourished in other states. Under great provocation the people developed a violent hostility for any in stitution which went under the name of bank. This hostiltity was voiced on the floor of the conven- tion by Leech when he said "I believe with Thomas Jefferson that 'bar, king institutions are more dangerous than standing armies', With Daniel Web ster that 'paper money is the most effective of all invention 3 to fertilize the rich man's field by the sweat of the poor man's brow; and with Andrew Jackson, that ' a paper cur- rency is a great curse to any people, and a particular curse to the laborers of any country' ...(i) Under the first constitution, all banks were organized under special charters . The regulations under which a bank opera- ted were set down in the charter and the se regulations varied greatly. They were never carefully enough drawn to protect the people against loss. Frequent failures, depreciated paper money, in sufficient reserves, heavy charges for exchange brought the banks into disrepute until the people were ready to destroy them * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) Debates, I, p.404. 18O root and branch. The subject had played a prominent part in the political struggles of the state for at least three decades. Indeed, the Democratic party by its platform utterances had become a hard money party. A plank favoring hard money had been in the platform twice and Governor Wood was elected on such a platform. All the rank and file of the party were not willing, however, to go So far in their opposition to banks and a group of Democrats in the convent ion aided the Whigs in preventing the incorporation Of Such a principle in the constitution . The first bank organized in Ohio was "The Miami Export- ing Company" in 1803. It failed in 1842. By the year l8ll there were four banks in Ohio. After the expiration of the charter of the first United States Bank the number rapidly increased. Nine were incorporated in 1816 making a total of www.º. A general banking law was passed on February 23rd of this year which placed Some restriction s on the operation s of º The previous year the legislature had passed an act levying a 4% tax on the dividends Of every banking in stitution in the state. The second United States Bank was chartered in 1816 and two branch banks were established in Ohio the following year. The state banks were unable to compete Successfully with these branches and soon became violently hostile to them. The legislature decided that a bank should be taxed which * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - * - - - * - - - - - - - - - - (I) See "Taxation of the Second Bank of the United States by Ohio", by Ernest L. Bogart, American Historical Review, volume 17, pp. 312ff. (1911-12) (2) Chase's Statutes, vol. II, pp.913-924. ô81 was competing with local institutions. The result was the act of February 8th, 1819, which imposed a tax of $50,000 annually on each Of the branches of the United States Bank located in the state . Out of thfis Éaction of the legislature developed the rather celebrated struggle between the state of Ohio and the federal government. The issue was finally settled favorablº to the federal government by the decision of the Supreme Court of the United States in the case of Osborn V The Bank of the United * the state acquiesced in the decision. During the period from 1816 to 1835, there was an in- crease of but three banks in the state. The expiration of the charter of the second United States Bank, however, left the field clear and the so-called wild cat system of state banks rapidly developed. Many of these banks proved un sound and frequent and heavy loss was suffered by the people. The hostility to the banks was in tensified during this period. * * * * * - - - - - - - * * * * * * * * * * * - - - - - - - - - - - - - - - - - - - - (I) For the case of Osborn v The Bank of the United States in which the decision in McCulloch v Maryland was affirmed, see 9. Wheaton, p. 739. For an excell ent treatment of the whole struggle, see the article, referred to above, by Ernest L. Bogart . - 182 Reemelin stated on the floor of the convention that, of the sixty- seven banks chartered in the state prior to 1844, forty failed with heavy ** and not more than five ever finally or honorably (I settled up. in- State Bank of Ohio was created by act of February º 24th, 1845. It divided the state into twelve districts and pro- vided for a central bank with branches throughout the state. The system was carefully regulated as to the niimber of branches per- mitted, as to capital stock, as to the proportion of notes to the capital stock and as to payment for stock in part in coin . A board of commissioners was provided for to supervise the system, and independent banks were put under careful regulation . Thirty- Six branches were organized and the system proved an unqualified Success . This was the end of the Wild cat banks and the beginning Of a new order in the banking methods of the state. (I) Debates, vol.II, p. 798. - "Of twenty-five banks in Ohio, the Western Herald informs us there are at present but six or seven which redeem their paper with specie". Niles Register, August 28th, 1819. The Western Herald was published at Cincinnati . . See, also, the issue of the Western Spy of September 18th, 1819 for an ac- count of a meeting of pro test against the abuses of which the banks were guilty. There were one thousand present and they Resolved that "the granting of bank charters by legisla- tive bodies, without reserving to themselves the power to correct abuses of public confidence (such as have happened in our state and neighborhood) is one of the greatest politi- cal sins ever committed by a deliberative assembly- that it is an a ‘s supnition of ari stocratic power in consistent with repub- lican institutions and subversive of civil liberty". (2) Laws of Ohio, vol.43, pp. 29 ff. The measure covers thirty pages . 183 The benefits that the state was to derive from the system were not, however, immediately apparent, and as the measure was the work of the Whigs it is not surprizing to find the Demo- cratic party violently in * The system was character- ized as a dangerous concentration of º The opponents of the measure in the legislature brought seventeen indictments against it, chief of which was its tendency to concentrate arbi- trary authority in the hands of a few - a tendency dangerous to º No special article was given to the subject of banks but the provisions of the constitution on the subject were incor- porated in the articles on "corporations” and “Finance and Taxation". A substantial minority in the convention favored the abolition of all banks as being a menace to the pro sperity of the state and a legalized means by which the few were able to profit at the expense of the many. Milder remedies proposed were, first, the granting of no special charters but the requirement of incorpo- ration under general laws; secondly, either a total prohibition of or careful restrictions on their issuance of paper currency; and, finally, the taxation of banks on the same basis as other property . * * * * * * * * * * * * * * * * * * ~ * * * * * * * * * * * * * - - - - - - - - - - - - - - - - - - - - - - - (1) The Democratic party in convention assembled, January 8th, 1846, condemned the law in its platform . See the Circleville Herald of January 30th, 1846. (2) For interesting information Ön Ohio banks, see the article by C.B. Hoover, "Ohio Banking Institutions, 1803-1866". Ohio Archaeological and Historical Quarterly, 1912, vol. 21, pp. 296 fif. (3) House Journal, vol.43, pp.917 ff. 184 The most bitter fight centered about the question of paper money. The convention was divided into the opposing camps of the "Hards" and the "Softs", to use the nomenclature of the times. The standing committee was captured by the "Hards" who brought in a drastic report. This report took away from the legislature all power to incorporate banks or to authorize the issuance of paper money in any form. It provided further for the cancellation of the charters of all the banks then in existence. Loaning and dealing in money was to be left free to all, but no paper money was to be issued or allowed to circulate in the •ut. At this time there were fifty-six banks in the state with a capi- tal of $7,300,000 and a paper money circulation of approximately $10,000,000. A minority report, less drastic in tone, better suited the temper of the convention. This report urged that any change in the quantity of the circulating medium should be gradual and that a sudden contraction of the currency would work a hard ship on the debtor class. They conceded, however, that an increase in the amount of gold a sa result of the California discoveries might lessen the hardships of the policy/proposed. Much of the reasoning of the convention was faulty and showed little scientific knowledge of financial questions. It need not be repeated. The evils of soft money supported by the uncer- tain credit of wild cat banks and frequently counterfeited justi- fied much of the hostility shown. conditions, however, had shown improvement under the law of 1845 and it is certain that the Sudden retirement of $10,000, 000 worth of paper money would have * * * * * * * * * * * * * * * * * - - - - - - - - - - - - - - - - - - - - - - (I) Debates, I, p. 707. seriously deranged business through a sudden régime of low prices and would have worked an in justice to the debtor class by causing a rapid appreciation in the value of the a.m.!” The hard money men must be commended for their in sistence On the necessity of national control for ultimate relief. The final action of the convention did not disturb the circulation of paper money in the state . Section 2 of article lº on Finance and Taxation provided for the application of the "uniform rule" in taxation to banks, that is, they were to be taxed just as other property. With this limitation, section 3 gave the legislature wide powers in taxing banks "now existing or thereafter created". These sections entire- ly ignored the specific provisions as to taxation in special char- ters. Those were to be inoperative so far as they conflicted with general laws on the subject. Such action was taken in spite of the fact that the state supreme court had already declared that the provisions of special charters could not be annulled by later action (2) Of the legislature. In 1853, the General Assembly enacted "that if - * * * * * * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) Gouge, writing in 1832, had advocated the withdrawal of all credit money from the currency gradually so as to avoid so far as possible the temporary disturbance of business conditions. See Gouge, "History of Paper Money and Banking, pp. 234-251. (2) Ohio Reports, (part one) p. 125. The legislature of 1851 which was in session at the same time as the convention passed a law to tax all banks like other property. (Laws of Ohio, vol.49, p. 56.) 186 a bank should refuse to pay the tax assessed against it, which might be different from that provided in its charter, within five days after notice, the treasurer was authorized to seize all money or valuables found in the bank. To the county treasurer or com- missioner was given power to break any door or window, or if found necessary to obtain the property of the bank, the doors of the bank Vault could be broken …." The constitutionality of this law was sustained by the state supreme court in a decision which reversed the decision referred to above. The Supreme Court of the United States, however, sustained the former decision that special grants to banks were rººm.” Besides making all the provisions of the constitution as to corporations apply to banks, the convention provided, as an addi- tional safeguard, in section seven of the article on corporations, that “no "act of the General Assembly, authorizing associations with banking powers, shall take effect until it shall be submitted to the people, at the general election next succeeding the passage thereof, and be approved by a majority of all the elector's voting at such election". - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) C.B. Hoover, "Ohio Banking Institutions", Ohio Archaeological and Historical Quarterly, 1912, vol. 21, p. 299. For the law, see Laws of Ohio, vol.51, pp.476 ff. (2) Bank v Deboit, I Ohio State Reports, 591. For the decision of the United States Supreme Court in the same case, see 18 Howard, 380. The state yielded to this decision. See State, ex rel. v Moore, 5 O.S., 444. 187 The charter of the state Bank of Ohio, organized under the act of 1845, did not expire until 1866, and in the meantime, the National Banking Act of 1863 with the later amendments had finally eliminated the question of banking as a disturbing ele- ment in state politics and made it again what it had formerly been - a national issue . 188 A standing committee on jurisprudence, distinct from the committee on judiciary, was authorized by the convention. An article was proposed by this committee which provided for the appointment of three commissioners . It was to be the duty of these commissioners to revise and simplify the legal procedure of the state and, if practicable and expedient, to provide for the abolition of the distinct forms of action at law and introduce a uniform mode of proceeding without reference to any distinction between law and equity. The report of the commissioners was to have validity only after it had been ratified by the General Assembly. Prior to the time of the convention, Ohio law and prac- tice, like that of other states, had recognized the English distinct- ion between cases to which the common law was applicable and those which were tried in Chancery. This proposal aroused Vigórous discussion. Wide dif- ference of opinion prevailed as to the wisdom of the *c." The debate on the subject covers more than forty pages in the journal s. The common law was eulogized, on the one hand, as the "perfection of human reason"; and criticized on the other, as a relic t of by-eone days which had long out-lived its usefulness. Blackstone, Coke and Kent all received their meed of praise. Though the report was opposed by the leading lawyers and judges of the (I) A similar commission had been appointed in New York in 1847 and the value of its work was a matter of dispute on the floor . 189 convention, such as Hitchcock of Geauga, Stanbery, Nash, Groesbeck, Mitchell, Kennon, Smith of Warren and Leadbetter, largely on the ground that it would introduce confusion into the practice of the law, nevertheless it was adopted by a decisive ºt." Article fifteen incorporated a number of miscellaneous provisions, most of which were of minor importance. Two or three, however, deserve mention and one, at least, requires brief discussion. Section five made in eligible to office in the state those who, at any time after the adoption of the constitution, were connected in any way with a duel. The debate on the subject developed the fact that three prominent men in the convention had participated in awaº Some opposition was based on the ground that moral sentiment was adequate to take care of the evil while it was also urged that sometimes a duel was justifiable and, therefore, should not disqualify. Apparently Andrew Jackson was in the minds of all , Section six prohibited lotteries and the sale of lottery tickets in the state for any purpose what ever . In the early history of the state the lottery was a common method of raising money for public purposes. An examination of the Ohio laws for the first two decades of the century shows how tº:- ly legislative authorization was given for the conduct of lotteries * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (1) Debates , vol.II, 338 fr. 2) Sawyer, Judge Hitchcock and Lidey. 3) For a lottery to construct a bridge at Zanesville, Ohio, see Laws of Ohio, vol. 5, p. 110. For lotteries to construct bridges across the Muskingum and Cuyahoga Rivers, see Laws of Ohio, 5, 74. Also see Laws of Ohio, vol. 9, p. 226. 190 In 1831 it had been made a criminal offense to conduct a lottery except by statutory *...*. It is interesting to note the attitude of the conven- tion toward the liquor traffic in view of the prominence of that issue to day. Over eighty petitions containing the signatures of over twenty thousand people who were opposed to the traffic in intoxicating liquors were presented to the convention. Some wanted a total abolition of the traffic while others wanted a clause forbidding the legislature to license i t . A few petitions were presented urging the convention to leave things as they were . A select committee was appointed to deal with the subject. The committee proposed to insert in the constitution the following clause; "The General Assembly shall not license the traffic in intoxicating liquor 3, but may, by laws, provide against the evils resulting air-tº-'." The opponents of the traffic were not in entire agree- ment on the subject of license. Bates, representing one group, argued that the license gave the saloon standing and respect- ability and that temperance workers were agreed that this pro- tection must be removed before real advance could be made in the direction of freeing the nation of the evil. Stanton, a bitter foe of the traffic, called a license "a mon stro sity which ought not to be tolerated for a moment, the effect being to interpose a shield between the licensed rum-seller and the efforts of the *** reformer who was seeking to fix infamy and ignominy upon it." - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) Chase's Statutes, vol.III, p. 1734. (2) Debates, I, 444. 191 Stanbery and Nash, on the contrary, contended that men could sell liquor independent of the license. The license, then, so far from being a certificate of respectability, was a testimony that the business was evil and could be engaged in only under certain restrictions. They held that the original purpose of a license was taxation and that no moral sanction went with i t . Reemelin, who as a gro cer in Cincinnati had carried on a profit- able business in liquor, in sisted that the right to sell liquors was inherent. Nash argued that this was true only on condition that the traffic was "calculated to advance the material interests and elevate the in tellectual and moral character of •e.g.” He ended with a terrific arraignment of the business. Mason supported the report of the committee on the ground that it was "wrong in the state to license an immoral practice". others thought the whole question should be left to the legislature. Sawyer's effort to have the report of the committee amended so as to prohibit the legislature from ever abolishing the traffic was defeated by a vote of 12 to 81. The Hamilton County delegation was solid in its defense of the saloon as its representatives in legislative bodies have uniformly been ever since . It was a sserted that even then over a million dollars were invested in the business in that city and that the city received $20,000 each year in license fees. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) Debates , II, 449. 192 The temperance group agreed that the time was not yet ripe for to tal prohibition. They were of the opinion that to tal prohibition un supported by public sentiment would be unavailing and would result in non-enforcement . Quigley was the first to propose a separate vote on the question. This suggestion was finally adopted and the question was voted on by separate ballott as follows: "I,i cense to sell in toxicating liquors". Yes or No . It was carried in the *.. It is highly probable that many of those who voted against license did so under the impression that they were voting for the to tal prohibition of the traffic. The term "license" was used in that day as a grant to an individual to undertake some project or to engage in some business. It was impossible to proceed without the license. This current use of the term was responsible for the wrông impression as to the effect of the negative majority on the amendment . The state was without the licensed saloon for over sixty years. It was restored by the convention and vote of the people in 1912. In 1883 the people voted on two propositions in con- nection with the traffic, first to regulate and to tax it; secondly, to nabolish it. The vote against license in 1851 had been inter- preted as a prohibition of any special tax on the business. Even in the convention it was urged that the "uniform rule" of * * * * * * * * * * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) For license, 113, 237; against, l04, 255. See Patter son, p. 109. 193 ~ taxation would be violated by such a tax. Reemelin, however, suggested that the traffic might still be taxed and in making the statement he anticipated the final ruling of the supreme court of the state. Neither of the amendments carried in 1883 though the second resºłº a majority vote of those actually voting on (I the proposition . Somewhat later a yearly tax on the saloon was provided for by the legislature and held by the courts to be constitution- al. The tax was increased until it finally reached one thousand dollars. **** legislation has gradually increased in (2) severi ty. A vote for the Qbolition of the traffic failed in 1914 . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- (I) Total vote, 721, 310. First amendment, - for, 99, 238; against, 288,605. Second amendment - for, 323, 129; against, 226,595. See Patterson, p. 249. (2) As early as the first half of the nineteenth century the legislature had passed restrictive laws forbidding the sale to the Indians, selling on Sunday, selling near a religious meeting and selling without a license. See Chase's Statutes, vol.III, pp. 1732, 1740, 1741, 1827. The legislature of 1839–40 seriously considered the repeal of the license law. Ohio Statesman, etc. p. 185. The legislature of 1850-51, on March 12th, 1851, passed an act making it unlawful to sell, vend or give away spirituous liquors of any kind to be drunk on the premises where sold; or to any person under sixteen years of age; or in any quantity less than one quart.Jaws of Ohio, vol.49, p. 87. The facts would seem to show that an earlier generation was alive to the evils of the traffic and was seeking for light as to the best methods to mitigate those evils. 194 Article sixteen on the subject of amendments contained but three sections and three provisions. The first section pro- vided for the submission of separate amendments from time to time by a three-fifths, vote of each house of the legislature. Such amendments must receive, in order to become a part of the con- stitution, the approval of a majority of those voting at the election. Section two provided for a constitutional convention when ever the legislature by a two-thirds vote of each house rec- ommended it and the people ratified the recommendation. Section three provided for the automatic submission of the question of a constitutional convention every twenty years. The calling of a convention also required a majority vote of all those voting at the election. No change was made in the report of the standing com- mittee on amendments except in the matter of the number of dele- gates to a constitutional conventi orj . The committee report called for a number equal to the number of members of both houses of the General Assembly. This number was deemed too large and was reduced to equal the number of members of the house of repre- sentatives. In those cases where the legislature provided for the submission of separate amendments, they were to be published in each county in the state for six months prior to the election. 195 Some sentiment developed in favor of the submission of separate amendments to the people only after they had been support- ed by a majority vote of two successive *-nº This amendment was rejected on the ground that, with biennial sessions, it might take five years to get an amendment through . The idea of submission once in twenty years met with considerable opposition on the ground that it took the initiation of constitutional changes out of the hands of the legislature where it properly belonged. The view prevailed, however, in the convention that an appeal to the people once in twenty years would have a salutary and educative effect and that great benefit would accrue to the state through the periodical discussion of its organic law. A periodical, deliberate public examinati orj of the state's organic law was considered essential to wear.” No sentiment at all was expressed in favor of making amendment easier by a provision requiring for ratification only a majority vote of those actually voting on the proposition, No more radical Democrat sat in the convention, perhaps, than Ranney, the chairman of the committee, and yet no such proposal was made . Actual experience, however, showed that the requirement of a major- ity vote of all those voting at the election to carry an amend- (I) Dorsey was sponsor for an amendment to this effect copied from the Pennsylvania constitution of 1838. Conn. adopted the plan of two legislative endorsements as early as *ś. Subject discussed by Dodd, pp. 129 ff. (2) This idea seems to have been copied from Penn. and New York as both were referred to in the debate. 196 but only six were ratified. Of the twenty-one rejected amendments, at least fifteen received a majority of the votes of those actu- ally voting on the question. They were defeated by the ignorant and indifferent voter , In 1902 the election laws were changed so that it was possible for a stete party convention to endorse an amendment which had been submitted by the General Assembly. This endorse- ment had the effect that all straight tickets for the party in question automati cally counted for the amendment. If the party carried the election, the passage of the amendment was highly probable. If both the leading parties endorsed the amendment, it was certain of rare us." In the three years following the passage of this law, no fewer than five amendments were ratified, the most no table one being the granting of the veto power to the governor. The law was repealed in 1908 but when the General Assem- bly in 1910 passed a resolution for the submission of the quest- ion of a constitutional convention, a special act was passed con- taining the same provision as to endorsement by state conventions of political ºu...'” Taking advantage of this provision, both the leading parties endorsed the *; with the result that it was ordered by a very large majority. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) Nebraska passed a similar law in 1901. Ohio followed in 1902 and Indiana in 1911 . 2) Passed April 26th, 1910. 3) Total vote cast, 932, 262; for, 693, 263; against, 67, 718. See Patter son, p. 299. “ 197 Between the years 1851 and 1910 the people voted twice on the question of a constitutional convention . Under the terms of section three of the article on amendments a vote was taken in 1871 and the people endorsed a convention by a sub stantial major- ...” The convention of 1873-4 left section one unchanged. It changed section two so that a three-fifths vote of each house of the General Assembly could submit the question of a convention and it provided that amendments proposed by the convention could be ratified by a majority vote of those actually voting on the proposition. Article three requiring a vote every twenty years was omitted. This constitution having failed of adoption, no change was made in the amending process of the constitution until iQ12. The notable change made by this convention was the one that all amendments of the constitution need be ratified only by a majority vote of those actually voting on the question. The same rule was applied to the calling of a convention. The requirement of submission every twenty years was retained. In 1891 the people again voted on the question of hold- ing a convention, but not one voter in eight wo-tºk. The General Assembly passed a joint resolution April 16th, 1896, pro- *:::: for the submission to the people the question of a conven- wº The Supreme Court, however, decided that the resolution was unconstitutional. The resolution included provisions which (I) Total vote cast, 459,990; for, 267, 618; against, 104, 231. Patter son, . 299. (2) Total º::$65.338; for, 99,789; against, 161, 722. (3) Laws of Ohio, v. 92, p. 787 198 amended the election laws of the state. The court held that the legislature could neither repeal nor amend a law by joint (I) resolution. - - - - - - - - - - - - - - - - - (I) Decision handed down June 25th, 1897. Ohio State Reports, vol. 56,721. 199 A reading of the debates shows that there was consid- -- - … ." º º erable sentiment in the convention in favor of the referendum in . . . . ºf tº . various forms but the idea of the initiative in legislation seems ... 2 to have been unknown to the delegates. At any rate it found no advocate . In connection with the discussion of the executive veto, Mitchell and Robertson, two of the most radical Democrats in the convention, asserted that the people were the proper vetoing power. The only form of veto favored by Robertson was the refer- endum while Mitchell was a friend to the executive veto but wished all vetoed bills submitted to the people for final *n." A principle prominently advocated prior to the meeting of the convention was that there should be no increase of the state debt without a ratifying vote of the ºn.'” Though vigorously advocated in the convention by such men as Gregg, Cahill and Barbee, this principle failed of ºwn.” An absolute debt lini t suited better the temper of the convention. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (1) Debates, I, 74, 310. (2) This was one of the principles constantly emphasized by Samuel Medary in "The New Constitution". Others papers took the same at titude and it was included as a plank in a number of county platforms. Attention has already been called to the fact that Caleb Atwater, writing in 1838, had advocated the referendum for all general laws. (3) Debates I, 108,109,472. 2OO The report of the standing committee on "Finance and Taxation" provided that no debt for public improvement could be contracted without a referendum. The delegates, however, felt so strongly on the subject of state debt that they preferred an absolute prohibi- tion on the contraction of debts for public improvement. In its final form the Constitution made the referendum principle applicable to statutory law only in the case of laws authorizing the establishment of ºn." The right of the people to ratify all constitutional changes was conceded without debate. In the campaign on the question of calling a convention, the fact that the constitution under which they lived had not been submitted to the people was advanced as a reason why a new convention should be called. It was thought to be a reflection on their democracy that they were willing to yield obedience to a constitution to which they had given but tacit consent. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (I) Taylor advocated strongly the giving to the legislature the di scretionary power to submit any legislative weasure to the people. He asserted that "it would not only work well in practice but would have a salutary effect on the public mind". The conven ti on rejected the plan by a vote of 43 to 35. See Debates, II, 218 - 224. 2O1 The attitude of the convention toward the Negro popula- tion of the state is indicative of state sentiment on the subject. Petitions came to the convention from all parts of the state representing every viewpoint. There were petitions to prevent the immigration of black and mulatto per sons into the state, petitions for the extradition of those already in and in favor of the African Colonization scheme and petitions for and against the extension of the right of suffrage to them. There were those in the convention who felt so strongly on the subject that they opposed the reception of petitions favorable to the Negro . The view prevailed, however, that all petitions couched in respectful language should be received. Blickenderfer proposed a section for the constitution giving to the General Assembly power to appropriate money from the state treasury to transport Negroes to the west coast of Africa. This proposal was supported by the delegates from the southern counties of the states where the Negro population was dense st. Loudon of Brown County was mosr frank in his opposition to the Negro and in favor of the resolution. Commenting on a petition presented to the convention in favor of the extradition of the colored people of the state, he said, "There is a feeling, sir, in the section of the country I come from, upon that one par- ticular subject embraced in the memorial, that outweighs, perhaps, all other feelings with regard to the doings of this Ohio con- vention". The colonization idea was not sufficiently practicable, as had been demon strated, to make a strong appeal to the conven- tion. Experiments with the plan, covering a period of thirty years, had been, on the whole, di sheartening. The real contest came over the question of striking the word "white" from the suffrage clause. The friends of the Negro coming largely from the Western Reserve were vigorous in their advocacy of the right of suffrage, for him. Townshend of *** that justice, democracy and expediency all required the removal of racial discrimination . Andrews and Hitchcock of Cuyahoga argued to the same effect. Andrews stated that there were three hundred Negroes in Cleveland fully qualified to vote, that in 1845 twenty Negroes in that city owned property valued at $26,000, that colored men had voted for the adoption of the constitution of the United States, that they had voted in North Carolina for fifty years after the adoption of the constitution and that they had voted for delegates to the constitutional (2) convention in 1802. (I) Oberlin College located in Lorain County was already widely known for its aboli ti on sen timent. (2) These statements appear to be fairly accurate. Negroes voted in most of the states before the Revolution and in North Carolina till 1835. See R. T. Stephen son, Race Distinctions in American Law, pp. 282 ff. 2O3 The opponents of Negro suffrage frankly asserted that Ohio was a white man's state and they were determined to keep it so. Nash, however, took a more moderate position. He viewed the right of suffrage as a question of *** * in this case he deemed unwise the proposed extension of the suffrage. Public opinion was so strongly against such action, he asserted, that it would react to the disadvantage of the race making their condi- tion even more unendurable . On the final vote only eleven members voted to strike our the word "white". Since the adoption of the fourteenth and fifteenth amendments to the Federal Constitution, colored persons have exercised the right of suffrage in Ohio without legislative *Hon. An amendment was submitted to the people by the convention of 1912 to strike out the word "white" in order that the state con- stitution might conform to the Federal . Strangely enough the vote was adverse and the word still remains - a monument, as some maintain, to misguided prejudice. * - * * * * * * * * * * * * * * * * * * * * * * - - - - - - - - - (I) Ohio Statesman and Annals of Progress, vol.II, p. 73. The subject of the Negro in Ohio is well treated by R. E. Chaddock, "Ohio Before l850", Chapter IV; and by Quillin, "The Color Line in Ohio". 204 The final draft of the constitution having been com— pleted, a ratifying vote of the delegates was necessary. Of the ninety-three delegates present, eighty voted for and thirteen against the constitution. Thirteen of the thirty-five Whigs present voted adversely. The campaign before the people for the final ratifi- cation of the constitution developed into a partisan con- test between the Whigs and Democrats with the former in the role of opposłition. Both the Whig party and the Whig papers were, for the most part, against its adoption while the Democrats gave it their vigorous and unqual- ified support. It is true that a number of Whig dele- gates and many individuals who adhered to the party re- fused to follow their party in its opposition to the *..." The state was about equally divided at this time between the two parties, though the Whigs had begun to lose ground which the sequel showed they were never to rec O Were The election of 1850 gave Reuben Wood, Demo- crat, a vote of 133,093 for governor; William Johnson, Whig, 121, 105 and Edward Smith, Free Soil, 13,447. This vote gives a fairly accurate idea of the relative strength of the parties at this time. (1) For example, the words of ex-governor Wance who was a member of the convention: "Others may do as they please, but for myself, if I live to the 17th day of June, 1851, I shall vote for the new constitution". See Ohio States- man, June 16th, 1851. 2O5 The leading Democratic newspapers of the day were the Cincinnati Enquirer, Ohio Statesman (Columbus) and the Cleveland Plain Dealer while the leading Whig papers were, perhaps, the Cincinnati Gazette, the Ohio State Journal (Co- lumbus) and the Gazette ºne ºria.ºrcsºly.” C1eve- land. There were numerous other papers scattered through- out the state, each party having its organ in the various counties. Even the Free Soil party was not unrepresented in this field, as, for example, the Cleveland True Democracy and the Ohio Times of Mt. Wernon. There were German news- papers, too, in some of the cities notably Columbus and Cincinnat, i. º An address to the people was issued by the state central committee of the Whig party which, though it did not specifically advise the rejection of the constitution, emphasized strongly its defects. The purpose was clearly to secure its defeat. Attention was called to the restric- tions on internal improvements and public debt. Most stress, however, was given to the article on apportionment which was characterized as "designed to perpetuate the as- cendancy of a minority ºr." Other objections were urged by the Whig papers such as the article on corporations with its double liability (1) For the address see the Hamilton Intelligencer for May 29th, 1851. This Whig paper was violently opposed to the constitution. 2O6 for stockholders, the unjust taxation of banks, the power of the legislature over acts of incorporation and the ar- ticle dealing with the judiciary. The articles on pub- lic improvements and apportionment were, however, looked on as the crowning *..." The Democratic pa- pers, on the other hand, emphasized the democratic fea- tures of the constitution. The result showed that the Whigs were trying to Stem the tide of public opinion which was running strong- ly at this time in the direction of a purer democracy. The constitution was adopted by a vote of 125,564 to 109,276. This result excluded the returns of Defiance and Auglaize Counties which were received after the twenty day limit had expired. Thirty-nine counties, almost half the to- tal, voted adversely to the adoption of the constitution. The heaviest adversevote came from those counties where the Whigs were strongest and where internal improvements were still in their intº.” The constitution thus adopted after a long and bitter struggle served as the fundamental law for Ohio, with little change, for over sixty years. What those changes were we have noted. The change in public opinion during those years was expressed in the action of the convention of 1912 which was largely ratified by the people. (1) For illustrations, see the Zanesville Courier, March 13, 1851; the Hamilton Intelligencer, June 12th, 1851; the Ohio State Journal, June 16th, 1851; and the Morgan Herald, June 13th, 1851. (2) See Morgan Herald, July 18th, 1851. The vote in Morgan County was 1212 for and 1855 against the constitution. RULES COVERING USE OF MANUSCRIPT THESES IN THE UNIVERSITY OF MICHIGAN LIBRARY AND THE GRADUATE SCHOOL OFFICE Unpublished theses submitted for the doctor's degrees and deposited in the University of Michigan Library and in the Office of the Graduate School are open for inspection, but are to be used only with due regard to the rights of the authors. For this reason it is necessary to require that a manuscript thesis be read within the Library or the Office of the Graduate School. 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