It is not essential to our purpose to go into the details of the controversy that waged in the Territory from 1799 to 1802. There were acts of Congress, of the Territorial Legislature, and of the Governor, that furnished food for the bitterest contests. The Virginians were playing for the greatest stake in American politics a state of the Union. The Federalists were making their last stand, struggling for power both in the East and the West. It was almost pathetic to see the noble compatriot of Washington bending beneath the new storm that was arising. The reign of the people was abroad in the Northwest. Whatever virtute of Washington's, Hamilton's and St. Clair's Federal views as to concentrated power had in the then populous East, they were not respected by the yeoman of Ohio. The settler who fought his way into the heart of the Great West believed that he should have a full share in its government. And this was why the position of Tiffin was popular with the voters of his day. In the face of almost insuperable impediments, Tiffin won his fight for statehood.

The enabling act of Congress providing for the erection of the new state was approved April 30, 1802. It fixed the boundaries and provided for holding the constitutional convention on the first Monday of the following November. Edward Tiffin was very naturally elected to that body, and was as naturally selected as its president. His belief in the people is prevalent upon nearly every page of the organic law. The very first question of criticism that always arises in a consideration of this convention and of the constitution which it produced is that relative to the fact that that instrument was never submitted to the people for adoption or inspection. How did it develop that these men who made such a magnificent struggle for popular rights failed to submit their work to the people? A single reference to the enabling act will show the reason for the apparent dereliction. The fifth section provides that the convention shall first determine whether it is expedient to form a state constitution and government. This it did on the third day by a vote of 32 to I. The only opposing vote being Ephraim Cutler of Washington county.

Such a conclusion being arrived at, the act specifically authorized the convention "to form a constitution and state government." It required no approval of the people. There was no legal machinery provided to secure such expression. It was the evident intent of the framers of the act in question to commit. the whole and exclusive duty of forming the first constitution of Ohio to the convention. The theory on which the convention was formed was that under the act of Congress it (the convention) was a strictly representative body, acting for and in the name of the sovereign people, and that it possessed by actual transfer all the inherent power of the sovereign, limited only by the constitution of the United States. In other words, it was a virtual assemblage of the people, of whom, by reason of their great numbers and remoteness from each other, an actual constitutional convention was impossible. They met clothed with all the power the sovereign would have if gathered together. The convention might say what Louis XIV said: "We are the State." The soundness of this position is strengthened when we search the records on the adoption of the constitutions of other states. The result shows that the following submitted. their first constitution to the people for expression: California, Colorado, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, Oregon, Texas, West Virginia and Wisconsin, fifteen in number. The states which did not submit their first constitution to the people are as follows: Alabama, Arkansas, Delaware, Georgia, Maryland, New Jersey, New York, North Carolina, Pennsylvania, Virginia, Florida, Illinois, Indiana, Kentucky, Louisiana, Missouri, New Hampshire, Ohio, South Carolina, Tennessee and Vermont; in all twentyone states whose conventions, with that of Ohio, regarded themselves as the sovereign source of power. So far as this feature of the first constitutional convention is concerned, it may be regarded as settled that it was neither extraordinary, nor without dignified and patriotic precedent.

The spirit of the contest which seemed to run through the constitution.

culminated in statehood The executive branch of

the state government was stripped of all authority. It left the name of "governor" to apply to an office that had more honor

and dignity than power. The men who controlled the convention did not believe in dividing legislative power, and therefore gave to the general assembly sole power of making laws. They did not propose that the governor should interfere by veto power of the people. And it can be truthfully said as a tribute to these views of Tiffin and the men of 1802, that after a hundred years there has not developed a sufficiently different public sentiment to change the active veto principle of their organic law. Next year the people of Ohio vote on an amendment to their constitution expressly granting the governor the right of veto. I do not believe there will be any change from the original idea introduced in the first constitution. The total absence of property qualifications for office is another indication of the antagonism of the convention to the views of St. Clair. They seemed deterimined to outlaw every element of aristocracy. This provision has also stood test of two subsequent constitutional conventions, and stands firmer in our organic law than ever.

In apportioning the sovereign power of the people among their official agents the convention gave by far the greater power to the Legislature. The right to make all the laws without any limitation but constitution itself has been carried up to modern times. The money of the state was committed wholly to the legislature and that is where it is today.

The general provisions of the bill of rights and the specific powers of the state government have been practically those under which the people of Ohio have lived for one hundred years. The second constitution of Ohio adopted in 1851 by a vote of the people followed throughout substantially the government lines laid down by the first constitutional conventions. The changes introduced were the result of the advanced progress of the state rather than a difference of constitutional ideas.

When Thomas Jefferson expressed his opinion to Jeremiah Morrow in 1803 on the constitution he approved it generally, except the provision relating to the erection of the judiciary, which he thought was too restricted for the future wants of the He said, "They had legislated too much." Whatever was done by the men of the first convention their descendants followed

state.

them in 1851, for the same restrictions are apparent in the second constitution.

The satisfaction which the original constitution gave the people of the state is illustrated by their refusal to change it for fifty years. When Thomas Worthington was governor in 1817, he recommended the holding of a convention to form a new constitution. Afterwards, in 1818, Governor Ethan Allen Brown made a similar recommendation, and in 1819 the question of a second constitutional convention was submitted to the people of Ohio, and in a total vote of 36,302 was rejected by a majority of 22,328 votes.

The principal objection to the original constitution was the fact that the judiciary and state officers were appointed by a joint ballot of both houses of the General Assembly. Jefferson saw this would give trouble in the future. Its operations as afterwards developed, caused scandal, contention and disgrace, and hence the demand of Governors Worthington and Brown for an opportunity to change.

This conflict between the judiciary and the legislature commenced in 1818 and lasted for several years to the great disturbance of the proper administration of law. It appears that in 1805 the legislature gave justices of the peace jurisdiction without a jury to the amount of fifty dollars. As the constitution of the United States guaranteed trial by jury to the suits in which over twenty dollars was involved the Supreme Court very properly in a case before it, decided the law void and unconstitutional, for the Constitution of Ohio provided that "the right of trial by jury shall be inviolate." The judicial decision was constructed as an insult by the Legislature. As a result resolutions of impeachment were preferred in the Sixth General Assembly against Judges Huntington and Tod of the Supreme Court, and Judge Pease, presiding judge of the Third Circuit. Nothing was done at this session. While these articles of impeachment were pending Judge Huntington was elected governor, and of course resigned the judgeship. But the efforts at impeachment went on. Charges, however, were not made against Governor Huntington, but were preferred against Judges Tod and Pease.

Their answer to the charges of impeachment was the Constitutions of the United States and the State of Ohio. The result was an acquittal in both cases. Another incident growing out of the legislative power conferred by the first constitution was the sweeping resolution passed in 1819. This resolution passed in January swept out of office every judge of the Supreme Court, and the Court of Common Pleas, the secretary of state, the auditor, the treasurer of state, and also all the justices of the peace throughout the state. This resulted in interminable conflict and contusion, but it was the exercise of the power of the legislature.

If it were not for this single feature which caused these violent party strifes there is every probability that we would be living under the constitution of 1802 today. Indeed, a reference to the political literature of the time preceding the holding of the convention of 1851, will show that the election of the judiciary and other state offices was the most potent argument used in favoring a new constitution.

This convention that laid the political foundations of the state of Ohio so heavy and deep that substantially, they have never been changed, was formed of strong men. Out of the thirty-five all but two of them were from Southern and Southeastern Ohio. The Western Reserve played little part in this great work. She opposed both the territorial government and the state government. It is to the men who came from Virginia, Kentucky, Pennsylvania and New York that the credit for the founding of Ohio must be given. They were the characters that dominated the first convention. It was their ideas of government that were injected. into the first Constitution, and for the first fifty and the last fifty years of the state those ideas have prevailed. And the one man who conducted all, who influenced all, who executed all, was the minister, physician, parliamentarian, governor, senator and honest man Edward Tiffin, of Chillicothe.

1809