Arthur St. Clair
Chapter V. Legislation in the Northwest, 1787 - 1802

In the year 1802 Michaux who was travelling in the employ of the French government in the west happened to run across St. Clair at an inn in Marietta. In commenting on the Governor he wrote "With respect to talents, he has the reputation of being a better lawyer than soldier." As soldier we have seen that St. Clair failed signally in the northwest, as a lawyer his course did not run smooth, for he was constantly engaged in disputes with the judges and officials under him, disputes which were used against him when his opponents wished to get him out of office.

Even before St. Clair had set the wheels of civil government running in the northwest, the settlers at Marietta, realizing the need of law and order, had adopted a government for themselves, nailing their code of laws to a tree. These served them satisfactorily until St. Clair, a week after his arrival, put the Ordinance of 1737 in action, publishing the first law for the Territory, a militia law, on July 25th, 1788, and creating Washington County the next day.

According to the Ordinance for the government of the Territory, the general court consisted of three judges, Parsons, Symmes and Varnum, each of whom received a salary of $800 from the United States treasury. This was the highest judicial tribunal in the Territory and could reverse the decisions of other courts. It was held at Cincinnati in March, at Marietta in October, at Detroit and in the western countries when the judges should decide. With the governor, or, in his absence, with the secretary of the Territory they constituted the legislative body, who according to the Ordinance were to adopt laws of the original states, which upon the approval of congress became the laws of the Territory. The first meeting of the judges for this purpose was held at Marietta in the summer of 1788. During this session, which continued till December, they passed a number of laws, relating chiefly to the courts, militia and marriages.

As the population increased and new counties were laid out^ the governor established courts of common pleas and general quarter sessions of the peace in the different districts, at which (though these courts were separated by a wilderness) the Governor and judges rarely missed a term. Burnet gives us accounts of some of their trips, e/en after the Territory was well under way, which show the difficulties encountered on these long horse back rides from county seat to county seat through a wild country without roads and bridges The Illinois county division was so large that St. Clair divided it by proclamation into three judicial districts, Cahokia, Prairie du Rocher and Kaskaskia, in which terms of court were to be heM as if they were separate counties. The judges, sheriff and clerk had jurisdiction throughout the county but the people could not be sued out of their districts. This called forth, a warning from President Washington that St. C1air guard against making regulations which could only properly be made by law, lest he incur criticism at the hands of the public who did not understand the imperfect state of the legislation in the northwest Territory.

Many of the original counties were too large to be handled conveniently and were subsequently subdivided. The first one laid out in the northwest, Washington County, covered the Ohio and Scioto purchases, as well as a large section running north from the former to Lake Erie. The second covered the Symmes purchase between the two Miami Rivers, and was called Hamilton County with the county set at Cincinnati. T&is was later made to include the country north to Lake Huron. St. Clair County originally covered the present state of Illinois, and Knox County most of what is now Indiana, while Wayne County, which was set up after the treaty of Greenville, extended from the Cuyahoga River to Lake Michigan and north to the confluence of Lakes Michigan and Huron. By 1799 nine counties had been created in the Northwest.

Besides the difficulties of administration due to the extent of the territory, others arose because of the general wording of the Ordinance which gave chance for difference of opinion on specific points of legislation. The first to come up was the question of slavery. By the sixth article of compact there was to be no slavery in the territory. With this as an argument, Morgan, an agent of the Spanish government, had succeeded in drawing many of the ancient settlers who had feared to lose their slaves across the Mississippi.

St. Clair at once took his stand that the clause was not retroactive, that Congress could not divest any person of property acquired under ancient laws without compensation, but could prevent the introduction of slaves which was undoubtedly the intention of the resolution. Even this was not entirely satisfactory to the ancient inhabitants who claimed the clause was contrary to the assurances made them by Clark in behalf of Virginia. They therefore petitioned congress that the article be repealed or so altered that they might introduce slaves from the original states but congress remained firm on this point. The question came up again under the first legislature of the territory when the Virginia officers wished to remove with their slaves on to the Military Bounty. Though the assembly had nothing to say about the matter as it was prohibited by the Ordinance, yet it was evident that public opinion was decidedly opposed to it.

Another clause which led to difficulty between St. Clair and each set of judges who worked with him was that "the governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original states, criminal and civil, as may be necessary and best suited to the circumstances of the district etc." By "governor and judges, or a majority of them" St. Clair understood that the assent of the governor was necessary to act the laws adopted, whereas the judges took it to mean that the governor and two judges, or all the judges must agree. St. Clair argued that congress thought it improper to leave the adoption of the laws to the persons who were to expound them, so gave the governor a negative. The second set of judges agreed with the first. If it was improper to leave the adoption of the laws solely to the persons who were to expound them, could this impropriety be removed by giving the governor a negative on laws, on which he as one of the legislative body of three or four had a right to vote. St. Clair, however, had his way in this issue.

Moreover, the judges overlooked the restriction that the laws were to be adopted from those of the older states and proceeded to enact new laws of their own. St. Clair protested that congress would not approve such procedure and that the laws would not be valid. The judges, on the other hand, replied that if a literal construction were given to that clause, the purposes of the Ordinance in general would be defeated, for the laws of the old states did not conform to the necessities of a new state in a new country. "If the clause admits of different constructions, we ought jtro adopt that which will best promote the purposes of settlement”, they said. As laws were necessary, St. Clair gave way to the judges, though he did so under protest. In writing Joshua Coit in December 1794 he said that neither of the judges had the codes of the states, though three months' salary had been paid them before they entered office as a compensation for their time and pains of collecting them. He himself had that of Pennsylvania to which they were averse, so when two sets of judges concurred against him, he gave in.

During 1790 and 1791 little was done for the civil government of the territory, as every one was occupied with the Indian difficulties. The next year a number of measures, not especially important, were enacted by Judges Symmes, Turner and Secretary Sargent in the governor's absence. Then no more laws were passed until 1795 when the governor and judges met and formally organized as a legislative body. At that time, finding that congress had not sanctioned their earlier laws, they undertook to adopt in conformity with the Ordinance a complete system of law. By adopting an old Virginia statute "the common law of England, and all general statues in aid of the common law prior to the fourth year of james I were put in force in the territory. The other laws were taken principally from the Pennsylvania statute book. These were known as the Maxwell Code because they were printed by William Maxwell of Cincinnati, the first printer in the territory. They were so complete that only one other short legislative session was held by this body when in 1798 a few more laws were adopted.

St. Clair also had a controversy to settle with the judges of the court of common pleas in Hamilton County. During his absence. Secretary Sargent made out their new commissions which read "during the pleasure of the governor" instead of "during good behavior" as originally. The judges refused "to stoop", as they said, to the indignity of holding their offices thus, though Sargent and St. Clair both held from the president by the same tenure. So they continued doing business under their old commissions, until St. Clair hastened back and finally succeed^in convincing them and then re-commissioned them.

It happened that the early judges were much interested in the land question. Judge Symmes, as we have seen, was the owner of a large purchase, amd Judge Parsons and Judge Varnum were directors Ohio Company. St. Clair did not think it right that the whole property of the country which might be subject to law should he governed by the determination of a single judge, without any chance of revision. If they were not directly interested in the case, he feared the judges would unconsciously he indirectly so from having similar interests. So it was St. Clair's wish to have these cases brought before the federal court.

Many other matters contributed to the difficulty of administration in the territory. Some of the judges, especially Judge Turner, took upon themselves the executive functions of the governor.

The justices in Adams County insisted in moving the county seat, a power which St. Clair claimed belonged to the governor alone. Moreover, it was hard to find persons in the country capable of performing the duties of judges in a strictly legal way. When they were finally found and courts established, it was still well nigh impossible to get a sentence against the murderers of Indians. Communication was difficult; letters were often delayed and lost in the territory and the rate of postage was excessive. St. Clair paid 100 cents on a letter from Judge Turner. This came out of his own pocket, for no allowance was made for the expenses of the governor and judges.

Another question which arose because of the loose wording of the Ordinance was whether the laws of the United States had course in the Territory, unless it was especially specified in them.

St. Clair thought they did not, but was willing to aid the federal government as far as he could. In 1793 when the Excise Laws were passed, heartily approving them, he tried to get a law through the 2 territorial legislature forbidding the importation of all "ardent spirits". If this were unsuccessful, he thought that congress would probably pass the measure and remarked that it was time that part of the country was reminded they were not part of the Union but dependent on it. Nor were the inhabitants of the territory allowed to aid the insurgents in v/estern Pennsylvania contrary to the president proclamation.

In 1795, however, when a United States act was passed layirg duties on licenses for selling wines and liquors, St. Clair questioned whether this could operate in the Territory, without its being thus designated. He claimed that the Territory was not part of the United States because it had a distinct government of its own, it was not included in the supreme judiciary, and had no voice in the choice of United States representatives, whose consent was essential to make the laws binding. The attorney general and the secretary of the treasury were not convinced in the least by this argument and the revenue was ordered to be collected as in the states.

It was in this same year that St. Clair wrote to President Washington, complaining of his treatment by some of the departments. The war department, though he was still superintendent of Indian affairs, had ceased to communicate with him concerning their measures in the Northwest; he did not even know the name and residence of his deputy. Advancements which he had made in the negotiations with the Indians had never heen refunded to him, so he had been obliged to sacrifice for a $6,000 debt an estate for which the day before he would not hove taken $24,000, while charges of the same nature were paid to others, "misfortunes” he writes Washington, "I can bear with firmness, but the insolence of office throws me off my center." The governor was at variance not only with the general, government officials but with Secretary Sargent of the territory as well, who, without cause so St.Clair thought, had taken offense at his treatment of him.

In 1798 it was ascertained that the number of white male inhabitants of 5,000, which was required by the Ordinance for establishing the second grade of government, had been reached. St. Clair issued a proclamation to the people to elect their representatives to a general assembly in Cincinnati, which was to nominate the persons, five of whom the president might select as a legislative council. The assembly which met February 4th proved to be composed of strong minded and able men. "Several of the members of that assembly were men of the first order of talents; and with scarcely an exception, they would all be now estimated as well qualified for state legislators." It is interesting to note that one of the ten names was that of Arthur St. Clair, Jr., Governor St. Clair's son, and another that of William St. Clair, the governor's nephew, neither of whom was among the five selected.

After its nomination the legislature adjourned till September, when it met again, and after a congratulatory speech from the governor, who recommended certain measures, commenced a laborious session. The change in government called for a general revision of statute law, the creation of new offices and the election of a delegate to congress. William Henry Harrison and Arthur St. Clair Jr. were rivals for this last position, Harrison being elected by a vote of twelve to ten.

Though Harrison was in congress but one session, he put through some important measures, as a resolution to have the public lands offered for sale in "small” tracts, which was a very beneficient measure for the west. He also obtained an extension of the time of payment for persons who had secured the pre-emption right from Symmes for lands beyond his patent. At the same time congress divided the territory and set off that of Indiana, of which Harrison was appointed governor. St. Clair would have preferred a division into three territories, with Marietta, Cincinnati and St. Vincennes, as the seats of government. This would have postponed the formation of the state and thus continued St. Clair's governorship longer. The scheme was not, however, supported by Harrison who was a state man and it only added to St. Clair's unpopularity.

To return to the first meeting of the assembly, a difference of opinion arose between the governor and the Houses which led the latter's remonstrating to congress against the unqualified veto given to the governor over acts of legislation and against the exclusive right he claimed of dividing and subdividing the counties, after they had been organized by himself, without their concurrence.

The first remonstrance was occasioned by St. Clair's tenaciously holding to his opinion regarding his own powers, for he vetoed eleven of the thirty laws passed by the assembly, most of them relating to the creation of new counties. This question caused a breach between the governor and the assembly, and arose at each session until the former was finally defeated. As to the laying out of counties, the assembly thought the Ordinance gave this power to the governor only until the general assembly should be organized when it would fall to them as a general legislative power. St. Clair, on the other hand, insisted on interpreting the Ordinance to suit his ends, and so the the controversy was continued till settled by congress in favor of the assembly. His refusal to sign the bills creating new counties interfered considerably with the advancement of these districts.

At the close of the first session of the territorial legislature, congress passed a law removing the seat of government from Cincinnati to Chillicothe. Though this seemed a usurpation of their rights, the legislature met there as directed in 1800. The governor, having stated the measures he thought necessary for their consideration at this time, closed his opening address with these words: "It is, indeed, very uncertain whether I shall ever meet another assembly in the character I now hold, for I well know that the vilest calummies and the grossest falsehoods are assiduously circulated among the people, with a view to prevent it etc". Both Houses in their replies to the governor's speech assured their concern at these attempts to asperse his character, the council expressing their confidence in his administration.

Even before this tine St. Clair had come to be severely criticised. The centralization of the government provided by the Ordinance was bitterly complained of and he himself seemed determined always to take the unpopular side of questions and to create personal enemies. Up to 1799 St. Clair was, on the whole, a very unpopular man in the territory but then the new political parties which were dividing the whole country began to be felt in the west. This region in general seemed inclined to follow the southern attitude off democracy, while St. Clair stood forth a stanch federalist of the old school. He vigorous?y upheld the Adams administration, writing a pamphlet on its support and newspaper articles in defense of the "Alien and Sedition Laws". His friends in the east were also drifting away from him, Washington, one of his best, having died in September 1799. In March 1800 he writes M. de Luziere Distant, ignored, forgotten except by one or two gentlemen with whom I am united by the firmest friendships, I know not a single member of congress, and I am suffering a kind of relegation, after the sacrifice of my best days and the dissipation of my fortune in the public service.

On December 2nd the governor informed the assembly that their session must end on December 9th, as on that day his term would expire. At once opposition arose because such short notice was given and because there were still important measures for legislation. It was the opinion of the members that the secretary could fill the governor's place after his retirement. St. Clair maintained that this was not a case provided for in the law in which the place of the governor could he supplied by the secretary, for here he was not absent but the place vacant. As St. Clair had power to prorogue the legislature at his pleasure, they knew it was useless to resist.

St. Clair, moreover, had not made his decision public until it was too late to confer with the secretary who was absent from the territory.

This was a clever move on his part, for the secretary whose opinion coincided with that of the assembly might have called the legislature again the day after St. Clair's term expired.

Efforts were than made to prevent St. Clair's reappointment, but though there was some opposition, the charges were not well enough sustained to be successful, and the new commission was sent him February 10, 1901. Stevens Llason in describing the discussion on the subject in congress wrote Thomas Worthington that he himself thought that there was enough to show that St. Clair was obnoxious to a great part of the people and ought not to be reappointed. Some members who did not approve of the appointment were induced to vote for it from an apprehension that, should he be rejected, some person more obnoxious might be appointed, such as Tracy, and that it would only be exchanging an old and feeble tyrant for one more active and wicked.

So it was that St. Clair again in November 1801 met the General Assembly at Chillicothe. Among the measures of this session was one allowing Quakers to pay $1.25 a year instead of performing militia duty, a bill for the inspection of exports, a law to enforce the conditions of mortgages and an act for the distribution of insolvent estates. An act was also passed declaring the assent of the territory to an alteration in the Ordinance to effect a change in the boundaries of the three states first to be formed therein. This caused considerable agitation. The change of boundaries would retard the establishment of a state government in the pastern division, which was the object of the promoters of the measure, among them St. Clair. Jefferson, whose administration was just beginning, wished to strengthen his party by the admission of the new state, so the measure was lost before congress.

It cost St. Clair, however, what little was left of his waning popularity. It was represented "as a scheme of the governor to retard the entering into a state government." "Though I never saw the bill till it came to me from the legislature," St. Clair wrote to Fearing, "I had heard of it and heartily approved it". He claimed the country was too large and the people too poor and busy to support a state government.

The bill caused much agitation among the citizens of Chillicothe. On Christmas Eve a mob came together to insult certain members of the legislature and burn the governor in effigy. The affair did not end there, for the sheriff refused to find the perpetrators guilty, which led to his losing his place, St, Clair who was afraid the matter would be misrepresented wanted it conveyed to the president that he had only "five enemies in the territory, except some they have misled and who probably never saw me. These are Worthington, Tiffin, Massie, Darlington and Baldwin, and the last never was five minutes in my company in his life. All the others have been obliged to me, and one of them, holds the best office in the Territory".

Smith, St. Clair's biographer, shows that several of these enemies had been offended by St. Clair in minor matters at different times, but the underlying motive was undoubtedly party feeling.

The governor was a Scotchman who naturally grew more obstinate as he grew older, and had it is true, offended many prominent men in the territory, yet the main cause of his unpopularity was that the government established by the Ordinance placed him in a position of great authority, too great for the rising democracy, especially as he was a federalist. Judge Symmes expressed the sentiment of the opposing party, when he said, "We shall never have fair while Arthur and his Knights of the Round Table sit at the head".

Under President Jefferson more determined efforts were made to have St. Clair removed. Some of his enemies even went so far as to try to overhear from an adjoining room the governor's remarks on the President's message. They claimed that he said the government would become a monarchy, made sarcastic observations on the militia and the President's communication to the House, stated the "militia was all damned nonsense" etc. numerous charges were drawn up by Worthington and Kassie and sent to President Jefferson and Secretary Madison. The principal ones were that he had usurped legislative powers by the erection of counties; that he had negatived laws useful to the territory; that he had refused to perform his duties without payment of unlawful fees; that he had negatived the act of the legislature abolishing those fees but had passed their act giving him $500 as compensation; that he had attempted to prevent the advancement of the territory to rights of self-government; that he had granted commissions generally during pleasure but to his son during good behavior; that he had endeavored to control the judiciary; that he had neglected the militia and that he had avowed his hostility to republican government. The extensive powers given the governor by the Ordinance shielded him of course to a great extent, and St. Clair himself went on to Washington to refute these charges.

So, although his enemies had already begun to discuss his successor, Jefferson refused to act until St. Clair had shown actual enmity for the administration. An opportunity was not far distant.

During the spring and summer of 1802, the promoters of the state government were able to carry their plans through congress.

In February 1802 a petition was presented, asking for the admission of the state, though the census showed only 45,365 of the required 60,000 inhabitants. Accordingly an act was passed in April, directing a convention to meet the following November to form a state constitution, thus preventing the state legislature from having a hand in the business. The measure did not pass, however, without opposition, both Fearing, the delegate from the territory and Griswold of Connecticut opposing it on constitutional grounds, claiming that it violated the compact and that congress had no more right to interfere in internal territorial concerns than in state concerns.

The constitutional convention met at Chillicothe, November 1, 1802, to form the third stage of government in the North-west.

Edward Tiffin was elected president and most of the members belonged to the state party; only Washington County seemed left to support St. Clair. During tha previous summer he had made an effort to combine his partisans in Washington, Hamilton and Jefferson Counties.

He had also spoken at Cincinnati against the secret societies which were forming in connection with the convention. "They tell you;" he said, "that their design is to keep people that are not Republicans out of the convention; hut it looks more like a formal design to get themselves in whether they be capable or not."

So it was a rather reluctant consent which was granted the governor’s request to address the assembly. The motion which was finally passed by a majority of five was worded: "That Arthur St. Clair, Senior, Esquire, be permitted to address the convention on those points which he deems of importance". This phraseology was perhaps intended as an insult to the governor. The substance of his remarks at that time was that congress had no right to direct the people of the territory to form a constitution, so they need not consider the act binding unless they desired. He also demanded why congress should couple their admission as a state with conditions, which Burnet describes as "as degrading to the character as they were injurious to the future prosperity of the inhabitants", while other states had been admitted without. Certain advantages were also offered the new state by congress, as a section in every township for schools, the salt springs near Scioto and Huskingum for the use of the state and a twentieth part of the net proceeds of the lands within the state for the laying out of roads, which St. Clair completely disposed of by showing they were empty, as they have since proved to be on the whole. This Sensible and conciliatory address, as Burnet describes it, was destined to be St. Clair's Waterloo.

It called forth the following letter from Secretary Madison "The President, observing in an address lately delivered by you to the convention held at Chillicothe, an intemperance and indecorum of language toward the Legislature of the United States, and a disorganizing spirit and tendency of very evil example, and grossly violating the rules of conduct enjoined by your public station, determines that your commission of governor of the Northwestern Territory shall cease on the receipt of this notification." This letter was enclosed in one to Secretary Byrd, one of St. Clair’s strongest enemies, directing him to assume the governor’s duties.

St. Clair's commission had only six more weeks to run and he had already publicly announced he was not to be a candidate for the governorship of the new state, so the loss of office was not important. The wording of his dismissal and the manner of its delivery did, however, call forth a bitter reply from him, and thus ended his connection with the Northwest and his career as a public man.