INFLUENCE OF THE STATE CONSTITUTION!»
1776-1780 ON THE EARLY WESTERN
CONSTlTUTIONS, 1791-1803

Thesis for tho Degree of M. A.
MICHIGAN STATE COLLEGE

Doris Warren
1950

 

 

INFLUENCE OF THE STATE CONSTITUTIONS, 1776-1780
ON THE EARL! WESTERN CONSTITUTIONS,
1791-1803

by
DORI s WARREN

A THESIS
Submitted to the School of Graduate Study of
Michigan State College of Agriculture
and Applied Science in partial ful-
fillment of the requirements

for the degree of

MASTER OF ARTS

Department of History
June 1950

The writer wishes to express grateful appreciation
to Mr. Robert E. Brown for his supervision and help-
ful suggestions in the development of this work.

2893“)

Chapter

II
III’

IV

CONTENTS

Introduction

A Survey of State Constitutions; 1776, 1780
The First Constitutions of Vermont, Kentucky,
and Tennessee

The Ohio Constitution of 1802

Conclusion

Appendix

I
INTRODUCTION

There are many criteria upon.which.the historian
may base his study of the develOpment of a people, but
constitution-making affords a measure of pepular ideas
of government Which no other phase of a peeple's life
presents} Consequentxy, if a student wishes to under-
stand the political evolution of a country, an analysis
of the constitutions formed by the people of that country
will offer an excellent source of information for the
study.

In the United States, the first quarter century of
the existence of the nation as an independent country
is a very fertile field for an‘investigation.regarding
Vtheinfluence of documents already in effect upon.newv
constitutions being drawn.up3 Before the first twenty-
five years had passed, twenty-five state constitutions
has been madefi Four states had made three constitutions
(New Hampshire; Vermont, South Carolina, and Georgia);
three had two each.(Pennsy1vania, Delaware, and Kentucky);
While seven, including the frontier state of Tennessee;
had a single constitution,1 Two states, Connecticut and
Rhode Island, had merely retained their colonial charters;
Surely, in this great wave of constitution-making there

 

l. Frederic L. Paxson; History 2; the American
Frontier,T1763-1893,,(Boston,,1946),.99;

 

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is to be found abundant evidence of political theory of
the. day and it’s change as new constitutions introduced
new ideas to be experimented with.

This era (1775-1803) also offers evidence of the
effect of functioning constitutions upon varying types
of frontier areas. During this period, four states were
admitted to the Union: Vermont. (1791), Kentucky (1792),
Tennessee (1796), and Ohio (1803)'. .Each one of these areas
was distinctly different; each one became a state under
entirely different circumstances’.

Vermont can not actually be classified as a frontier
area'. Although it did not become a state until after the
Federal Union had been formed, ,it's constitution-making
runs parallel to that of the original thirteen states".
It's independence, ,in fact, can be dated from 1777'when
the first Vermont constitution was written and put into
effect even though Congress refused to recognize it.. In
Vermont, ,therefore, political theory as revealed by state
constitutions should be quite similar to that of the
original states.

Kentucky was a product of Virginia settlement. When
Virginia, in 1776, organized Kentucky County, .the parent
state already was considering the county as a future state.
When, in 1792, Kentucky's constitution was written, the
men who were most influential at the convention were
Virginia born. The completed constitution may be expected
to show the effect of the frontier upon the theory of
government brought there largely from Virginia.

.Q'\

 

 

39

By the time Tennessee entered as the sixteenth.state,
the frontier had already begun.to recedeu There were
signs of stability and wealth in Kentucky. Local leaders,
grown on.the frontier, were making their appearance. They
were to be the spokesmen.for the frontier point of view.
In.Tennessee, then, the first significant departure from
the constitutions of the original thirteen states may be
expected. '

Ohio presents for consideration the first state to be
admitted according to the procedure established by the
Ordinance of 1787. For the first time, Congress appears
as the true parent of a state; National partisan politics
also had made their appearance by the time Ohio was ready
for statehood and presumably had some effect upon Ohio's
political beginnings. National interest, therefore, pro-
babTy will appear as having been more evident in the
making of Chiefs first constitution than in those of the
three states preceding it into the Union.

The purpose of this study will be to investigate the
influence of the early state constitutions upon these first
four new states; Did these first states admitted to the
Union use earlier-state constitutions for their models?
13b0,,were they liberalized? Did the frontier completely
change the political views of it’s settlers?

’

Z+.

. II
A SURVEY OF THE CONSTITUTION OF THE
ORIGINAL STATES

Undoubtedly; the most eventful epoch of state
constitutionemaking in our history was the period from
1776-1780. During this time, eleven of the states wrote
new state constitutions while two of them, Connecticut
and Rhode Island, continued to use their colonial charters.
These constitutions were to be the connecting links between
the colonial charters and the Federal Constitution. Grow-
ing out of the colonial charters, they formed a basis for
the Federal Constitution and a pattern for all subsequent
state constitutions.1

Were these first constitutions liberal in their pro-
visions? To answer this question, it will bennecessary to
study and compare provisions of these constitutions to dis-
cover indications of democratic theories being followed}
Such a survey will serve as a basis of comparison.with

frontier constitutions also‘.2

The bills of rights or other guarantees of rights
included iflmhe documents under study will offer indications
of democratic thought. It will be important to note
whether civil rights were granted only to particular

 

13 ‘William C. Mbrey, "First State Constitutions 9
Annals _o_f_ the“ American Academy 9; Political and Social

2. The colonial charters and state constitutions
may be found in Francis Newton Thorpe,,ghg Federal and
State Constitutions, Coloni l Charters, and other Organic
ans...(7 vols., Was ng on, 1 9 .

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5.

groups or Whether they were the preperty of all. The
rights listed will indicate what was considered im-
portant to an individual's freedom.

Although all of theSe constitutions provided in
some way for protection of civil rights, only seven of
them were accompanied by a separate bill or declaration
of rights. Virginia, Pennsylvania, Maryland, North
Carolina, Vermont, Massachusetts, and New Hampshire were
the states having such provisions. Connecticut, although
it continued its charter, added a bill of rights to it.3

Common provisions of the states' bill of rights were
similar to these later found inthhe Federal Bill of Rights.
They guaranteed the right of trial by Jury, freedom of
thepress, and some statement regarding religious free-
dom. Generally forbidden were general search warrants,
standing armies in time of peace, the granting of titles
of nobility, hereditary honors, and any exclusive pri-
vileges. .All except Virginia and Maryland guaranteed
the rights of assembly, petition, and instruction of
representatives} Pennsylvania was the only one not for-
bidding excessive bail, the imposition of excessive fines,
the infliction of unusual punishment,.the suspension of A
laws by any authority other than the legislature, and

taxation.without representation.‘4

 

3. ‘William Clarencejwebster,,"Comparative Study of
State Constitutions of the American Revolution",, Annals
of the erican Academy 92 Political and SocialEBience,
'T397:—IX9-3 5

4. Thorpe, Charters and Constitutions, V, 3081;2

6.

In some of the states these rights were granted
only to "freeman" while other states included everyone.
Georgia, in its 1777 conStitution, had the statement
that it was the right of all freementto plead their own
cases.5 Massachusetts, in Article I, used the expression,
"all men."6 'Maryland, in articles XVII and xxx, limited
the rights to every freemen.7- New Hampshire in 1784 had
'included in its grant of rights the expression, "all men
are born equally free and independent“,8 and "all men
have inherent rightsi9 North Carolina and South Carolina
both used the expresSion freeman in delegating rights.
‘Virginia's constitution in 1776 carried the expression,.
"All men are by nature equally free and independent.10
In the Pennsylvania Declaration section 1 read,,"That all
men are born equally free and independent." 11 Only four
states, Pennsylvania, MaSsaChusetts, New Hampshire, and
Virginia even approached the ideas of the Declaration of
Independence which declared that "all men are created
equali?

Several states made significant provisions for
taxation. One feature of the Maryland Declaration of

Rights was the provision which.stated that poll-taxes

 

5. Ibid., II, 785 (Art, LVIII).

6. Ibid., III, 1889 (Art. I)

7. -Ibid.,.1688 (Art XVII)

8. IEid;, IV,.2453

9‘. TEES, 2453 ..
lO. IBIdk, VII, 3812 (Art. I). .
11. ISId., v.,3102 (Art IX, Sec; 1)

 

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7.

were "grievous and Oppressive." 12 Instead of poll-
taxes, it provided that all except paupers ought to
contribute to the support of the government in pro-
portion to their individual worth.13 In the same
year, Pennsylvania followed a similar line of reasoning
inserting in its constitution the provision, "That
every member of society hath a right to bejprotected in
the enjoyment of life, liberty, and preperty, and there-
fore is bound to contribute his preportion...."14 Massa-
chusetts, in 1780, wrote an almost identical provision in
its constitution, with New Hampshire copying the state-
mentin.l784. This was a liberal idea, putting into con-
stitutional articles the present day theory that a good
tax is based upon one's ability to pay. .

or the eighteen constitutions written.between 1776 and
1802 in the original thirteen states, seven carried
sections dealing with education. These were the Georgia
constitutions of 1777 and 1798, Mhssachusetts In 1780,
New Hampshire in 1784, North Carolina in 1776, and Penne
sylvania in.l776 and 1790. This section of Pennsylvania's
1776 constitution read: "A school or schools shall be ‘
established in every county by the legislature, for the
convenient instruction of youth, with.such salaries to the

masters paid by the public, as may enable them to instruct

 

12. Ibid., 111, 1787 (Art X111)
130 Mgal787

8.

youth at low prices; and all useful learning shall be

1
duly encouraged and promoted in one or more universities."

North.Carolina had an identical provision in its con-
stitution in Provision XLI of its Declaration of Rights.

In 1790, Pennsylvania changed the provision for education
by adopting this article, "The Legislature shall, as soon
as conveniently may be, provide, by law, for the establishp
ment of schools throughout the state, in such.manner that
the poor may be taught gratis."l6 This was the only one

of the seven that mentioned education of the poor.

The best known of these educational provisions was the
one written into the Massachusetts Constitution by John
Adams. It is a lengthy section into which Adams wrote
his ideas regarding the importance of education. He looked
upon knowledge as necessary for the preservation of the
rights and liberties of the people; therefore, it became
the duty of the legislature and magistrates to foster V
learning in all fields.17 It is apparent from his
letters that Adams realized he was including a provision
to which.objections probably would be raised. He eXpected
it to be attacked in the convention from all quarters on
the score of affectation, pedantry, phypocricy, and
economy. ‘His reason for this attitude was his feeling
that too large a portion of the people and their repre-

sentatives would rather starve their souls than pay for

 

11:5. Ibid, V, 3082 (Art.VIII)
16. ISi'd, 3100 (Art VII, Sec. 1)
17. See Appendix for the full content of this pro-
Vision.

9.

nourishment for them." Even.he had failed to Judge the
Spirit of the delegates for instead of the objections
which he expected, it was received with applause and a-

.18
depted without amendment.
Abolition of slavery was not generally provided for

in these first bills of rights. Rhode Island was one of
the first to take a step toward emanCipation when.in 1774
it declared that if in the future a slave should be brought
into the colony, he should be free}:9 It was not until
1784,.ten.years later, that slaves were actually freed in
the state. Pennsylvania, in 1780, adopted a gradual
abolition policy. Delaware, in 1776, forbade the slave
trade.in the state. In.l798,.Georgia's constitution pro-
vided for the ending of the slave trade after October, 1799,
but the legislature had no power to emancipate the slaves
without the owners permission or to prevent owners from
bringing slaves into the state. 20 Massachusetts was the
only state to have in its fundamental law a provision by
which slavery was abolished.

The significant part of the Massachusetts Constitution,
as far as slavery was concerned, was Article I, Part I.
As reported out of committee, the language was nearly the
same as that of the first article of the Virginia Bill of

 

18. Adrienne Koch and William Peden, eds‘., Selected
writi s of John and Jehn Quincy Adams (New‘Iork, 19
TEE. John.Adams to Benjamin'Waterhouse, Aug. 7, 1805.

19. Avery Craven and Walter Johnson, The United
States, Experiment in.Democracy (Boston, 1957),

20.. Thorpe Charters and Constitutions II, 801
(Art IV, Sec. 11 ‘

10.

Rights. In their study of the report, the convention
decided to remove the word equally which had prefaced
the term free and add the word independent so that the
final statement read,."All men aréborn free and indepen-
dent, and haver certain natural, essential, and unalien-
able rights, among which.may be reckoned the right of en-

21-
Joying and defending their lives.....". Three years

after the passage of this constitution, the Supreme
Judicial Court held that this article abolished_slavery

in the state. The decision was based ontthe preposition
that if all men are born free, there can be no slaves.

All of the Judges sitting on the Court which rendered the
decision had been members of the constitutional convention?2
It is fairly safe to assume, then, that they were familiar
with the general intent of the document.

One-third of these first constitutions somewhere in
them stated the principle of separation of powers of govern-
ment. For example, the Georgia Constitution of 1777 in
Article I stated that there should be separation of the
powers of government, neither'branoh to exercise the powers.
of the other. Massachusetts in 1780 included a similar
statement in.Chapter I, Article xxx of it's constitutiont.
Maryland, 1776, had such a provision in.Article VI as did
the1776 constitution of North Carolina in Article IV.

 

21. John.Adams, The Works 2§.Jghn Adams, Charles
Francis Adams, ed., 10 Vols. (Boston, 1851), IV,,220.

22. A Manual For the Constitutional Conventionof
121] (Boston, 1917),,27.

 

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Virginia affirmed it's belief in the principle in.Section
5 of the Bill of Rights in the Constitution of 1776.
Although not all of them.had a deflnite statement of the
principle of separation of powers in their constitutions,
all of them, in practice,,followed the theory, having
three branches in their frame of government}

In most cases, the idea of equality of power was
not followed. The widespread practice was to mkke the
legislative branch supreme, giving to it vast appointive
power and exclusive legislative power. Since this put
control into the hands of the department elected by the
people, there are elements of liberalism in the arrangement.
The executive and Judiciary branches were not, by and
large, selected in popular elections. It would not have
been liberal to make either of those branches the controll—
ing element.

Bi-cameral legislatures were the common organization
pattern for the legislatures. In only two cases, Pennsyl-
vania in 1776 and Georgia in 1777, was the unicameral
legislature used. The upper houses were mainly an
adaptation of the colonial Governor‘s Council. The bi-
cameral legislature was a conservative feature designed to
prevent radical or too liberal action from being taken.

Qualifications for membership in the upper house were
comparatively high. Age requirements varied from twenty-
five to thirty with Massachusetts, New Jersey, New York,
North Carolina, and South Carolina (1776) not stating an

 

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12.

age qualification. Eight of the states established re-
ligious restrictions, commonly an oath professing the
Christian Protestant religion. This was_definitely not
a liberal policy to follow.

Residence requirements were made in thirteen of the
sixteen constitutions providing for'upper houses. These
varied from New Hampshire (1776), New York 1777, and
Virginia were the most libera1,.requiring only a free-
hold without any set valuation. South.Carolina, 1778,,
had the highest property requirements, an estate valued
at 2,000 pounds for a resident in the district or a 7,000
pound estate in the district for anon-resident?3 Mary-
land and New Jersey had the second highest qualifications
with.the requirement of a 1,000 pound estate. In only
five constitutions, therefore, was a fairly liberal prO-~
vision made regarding property qualifications for
Senators.

Provisions for tenure in office varied from liberal
to conservative. The longest term of office was in
Maryland where members of the upper house served five
years".24 Four states had four year terms; three of the
constitutions established three year terms, one a two
year term, and five had one year terms. Five of the'
constitutions provided for a system of staggered
elections. This could work to the advantage of those in

control, but it did mean a yearly Opportunity for change

 

23. Thorpe,,Charter and Constitutions, V1,,3251
(Art.XII). "““—"——
24. Ibldo, 1890 (Art II)

13.

of some of the personnel. Staggering of elections is
usually considered conservative since it limits the
complete Operation of democracy at a given time. ,

Allottment of senators to districts and counties
was largely on a conservative basis. Of the eighteen
constitutions surveyed, nine divided their senators on
a county basis with an equal number for each county.
This gave the counties with.the smaller populations an
adVantage over the more thickly pOpulated areas.
Massachusetts apportioned its senators on the basis of
the prOportion of public taxes paid by the district,?5
as did NeW'Hampshire,,1784.26 This was a conservative
practice,.too. New'York in 1777 provided for distribution
of senators according to the number of freeholders,27 but
in 1801 changed and used the number of electors to guide
apportionment.28 Pennsylvania apportioned senators on the
number of taxable inhabitants.29

With the exception of Maryland, states usually pro-
vided for election of senators by those qualified to vote
for representative. Maryland used the very conservative
system of having the voters choose electors who in turn

would select the senators .30 In cases where qualifications

 

26‘. Ibid., IV, 2460 .
27. 5133., V, 2625 (Art XII)
28. Egg, , 2638

29. Ibi ., 3092 (Art Iv)

 

d.
30. TTd’., III, 1693 (Art XIv)

14.

for voting for senators were different from those for
voting for representative, they were always higher.

It was in the House of Representatives, or
Assemblies, where the more liberal provisions were to be
found. Descendants of the colonial assemblies, they
represented the peOple more directly than did the senate.
Qualifications were more in detail, terms shorter, and
representation on a broader scale. With one exception,
the age required was twenty-one years. Delaware,,l792,,
set twenty-four as its minimum age qualification. 31

Ten of the constitutions either had a specific res-
triction limiting membership to Protestants, or required
an.oath of belief in.God and the Christian religion. This,
of course, was conservative in nature.

Residence requirement was found in fourteen of the
documents. Delaware, 1776, had no residence requirement.
Virginia was liberal, setting only residence in the county
with no time limit. Georgia, 1789,,had the most rigid,
conservative terms, asking seven years residence in.the
United States, two years residence intthe state, and one
year in the county.32 A greater percentage of the states
averaged two year state residence requirements. This
seems fairly liberal in its Operation.

Every state but Pennsylvania had property qualific-
ations for membership in the lower house. Delaware and
Virginia were the most liberal, specifying only owners

.L

31. Ibid., I, 571 (Art II. Sec? 2)‘
32. Ibid., 11,.787 (Art. II, Sec. 7)

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15.

of freeholds with no value attached. South Carolina,

. 1778, had the most conservative provision, limiting

those representing a district in which they did not re-
side to persons owning an estate of at least 3,500 pounds

in the district he represented}33 In its 1790 con-

stitution, South Carolina had an unusual provision in
which representatives who were residents of the district
were to possess a settled freehold estate of 500 acres

of land and ten negroes.34 Without figures to show the

exact percentage of peOple Who were land owners and the
amount of land held by the average land owner attthe '
time,,it is difficult to label these provisions as liberal
or conservative} Today, most peOple conceive of prOperty
qualifications as being conservative. These early property
qualifications, apparently designed to protect slavery,
certainly seem to be conservative.

Four different systems of apportioning representation
were used. In seven of the eighteen constitutions, re- I
presentation was based on an equal number from each.county.
Two used the number of electors as the basis for distri-
bution of membership; Georgia, l798,delegated represen-
tation according to pOpulation but counted only three-
fifths of the persons of oolor‘.35 Two states divided their
representatives by the number of rateable polls in.the
district, and three constitutions used theamount of

taxable prOperty to determine the number of representatives.

 

33% Ibid., VI, 3251 (Art XIII).
34". Ibid}, .VI, . 3260 ,(Art'o VI
35. Ibis...lI, 794 (Artt v11

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Here,again, conservative practices seem to predominate.

In the provisions for term of office, these con-_
stitutions were definitely liberal. All state constitu-
tidns, except those of South Carolina, limited the term
of representative to one year.’ South Carolina permitted
two years. Pennsylvania followed liberal ideas even,
further,.making its representatives eligible only four
years in seven.

South Carolina was the only state which.bluntly pro—
vided that only free white men were eligible for the

house of representatives;36

Provisions for the chief executives of the state were
primarily conservative} This may be explained by the
attitude generally taken toward the royal governors of
the colonial period.‘

The seven constitutions establishing an age require-
ment all set thirty years as a minimum age. Nine, or
.fifty percent, limited the choice of governor to those
who were Christian or Protestant. Even though.the vast
“majority were Christian and Protestants, this was a con-
servative approach to qualifications.

Liberal sections were included regarding tenure of
office% The terms of office ran from one year to three
years. Eight constitutions granted one year terms; five

set two year terms, and four provided for three year

 

36. Ibid., VI, 3260 (Art. VI).

 

 

 

1?.

terms. Eight of them prevented long tenure of office
by making the incubent ineligible. For example,

Delaware made the governor eligible three years out of

31x33? and Georgia allowed a governor to hold the

position one year out of three.38

Residence requirements for governor were, on the
whole, high. Georgia, 1777, was the most liberal in this
respect, asking state residence for three years?9
However, in 1789, this was raised to citizen of the
United States for twelve years and an.inhabitant of the
state for six years.40 In 1792, Delaware adOpted the

same residence qualifications as Georgia did in 1789.41

This was the most conservative of all such.provisions made
during this time. '

There were some states which were liberal in their
property qualifications for governor; Delaware,‘Maryland,l
Pennsylvania, and Virginia had no property limitations.
New'Iork limited governorship only by a freehold prOperty
demand% This, too, was fairly liberal.

Other states followed conservative thinking regard-
ing prOperty qualifications for governor. Georgia in its
1789 constitution set 500 acres of land and other prOperty

valued to the amount of 1,000 pounds sterling as the mini-
mum.42 This was increased in 1798 to 500 acres of land

and other prOperty to the amount of $4,000 after debts were

 

37. Ibid., I, 571 (Art. III, Sec; 3)
38. Ibid., II, 781 (art; XXIII).

39. IBIE., 781 3

40.. Ibido’ 788 (Art 11, 590;.3)

41. ISId., I, 571 (Art; III, Sec. 4;
42. ’tI‘., II, 788 (Art III, Sec. 4

 

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discharged.43 South Carolina was extremely conservative
in this matter with a prOperty qualification of a freehold
worth at least 10,000 pounds currency, clear of debt.44
Few of these constitutions gave the voters of the
state the right to elect the governor. Delaware,.l792,.
Massachusetts, 1780,,New Hampshire, 1784, New York, 1777,
and Pennsylvania, 1790, were the states providing for
popular election. In all others, the governor was to be
chosen by the legislative body. Georgia, 1789; had a

unique system whereby the House of Representatives

nominated three, and the Senate chose from those three the
one to be governor;45 Five of the states, then, had
elements of liberalism in their process of electing gover-
nor; the remainder were conservative.

‘Veto power was not widely given to the governor. In
the South Carolina Constitution of 1776, the President
(governor) had the right to assent to orreject a bill.46
Any bill rejected could be re-introduced after any adjourn-
ment of more than three days. Massachusetts granted the
veto power to the governor with the check that any bill
could be passed over the governors veto by a two-thirds.
majority vote of both.houses of the legislaturet47 Georgia,,
in 1789,,carried an identical provision but drOpped it in

1798; Pennsylvania, in its 1790 constitution, also gave

 

43. Ibid., 793 (Art II,-sec. 3)
4 .‘ Ebid., V1,.3249 (Art. v)
5;

 

 

 

_ Ibid., II, 787 (Art. II, Sec. 2)
46. Ibid., VI, 3245 (Art. VII) 7.
47. lb d., III, 1890 (Ch. I, See; 2)

 

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19}

the governor veto power under the same conditions. This
was a liberal attitude for it was denying to one person
the right to block a law passed by the representatives
of the people. .

The citizens of the States had very little to do with
the establishment of the courts and the selection of Judges
on a state level. In no case were the Judges of state
courts elected. All states provided for the naming of
Judges either by the governor with.the advise and consent
of the legislature, or by the legislature itself. With
few exceptions, terms were for good behaviorfi Georgia
provided for three year terms,48 New Jersey for seven year
terms for Superior Court Justices and five year terms for

Justices in inferior courts.49? Pennsylvania in 1775 pro—

vided for seven year tsms‘jo New York had a section which
established terms of good behavior or until the Judge
reached the age of sixty.51 One liberal provision found
in almost all the constitutions was that the court had to
be held at least once each year in.each.county .

It is extremely difficult to attempt to summarize
the provisions regarding the franchise since there were
many states which.had slightly different qualifications
for electors for representatives and senators. On the

chart, an attempt is made to give a concise picture of

 

48. Ibid., II, 787 éArt. II, Sec. 1)

49. Tde'}, v, 2596 Art. XII)

50. *Ibidgu 3089 (Frame of Gov't. Sec. 23)
51‘. Ib"i"'d" ., 2628 (Art. XXIV) _

 

 

 

 

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20.

constitutional voting limitations.52

All states limited voting to men Who were twenty-one
years of age or over with the exception of New Jersey where
women were allowed to vote as early as 1776. Of the
original states, Delaware and South Carolina also required
the voter to acknowledge the being of a God and a future
state of rewards and punishments.53 The usual residence
requirement was one year in the county where the individual
was to voteK A.fifty acre freehold would have met the
average prOperty qualification. Payment of taxes of some
kind was necessary in seven of the states before it was
permissible to vote; New Hampshire was one of the most
liberal states setting up two simple qualificationsi
twenty—one years of age and a freeholder.54

Property qualifications for voting as stated in the
first constitutions varied from no prOperty required to
highly conservative provisions. In.l777, New York had a
requirement of a freehold valued at 100 pounds for
senatorial electors’.55 This apparently was the highest,
and therefore the most conservative, of all such provisions.

These original state constitutions were not directly
submitted to the people for their approval or disapproval
in any state. They were ratified,.w1th three exceptions.

by thecnnventions which wrote them. Massachusetts, in

 

52. See appendix for some of the laws applying to
voting qualifications. ,

53. Thorpe, Charters and Constitutions, VI, 3245(Art XI)

54. Ibid., IV, ZEEO

55. Ibid.,.v, 2630 (Art. X)

21.

1780, had the people, through their town meetings, vote
on and make recommendations regarding each section of the
proposed constitution. However, the final ratification

was accomplished in the reconvened convention.56 Georgia,

in 1789, submitted the prOposed constitution to a con—
vention called and elected specifically for the purpose of

ratifying or rejecting it.57 In 1790 in Pennsylvania, the
constitutional convention adjourned to give the peOple an

Opportunity to examine the work and then reassembled to
ratify the document.58 Since there was no direct vote on
these constitutions in any case, the processes of ratifi-
cation were conservative.

’ It appears then, that the most liberal items of the
constitutions of the original thirteen states are to be
found inttenure of office and rotation of office. Some
elements of liberalism were written into the legislative
procedure when the governor was denied the veto. It is
also apparent that liberalism prevailed in delegating the
bulk of power to the body inthe government which was to

represent the peOple. In other respects, these constitutions

seem to be more conservative than liberal.

 

56. Proceedings 3; Mass.._ Historical Society, L. 56
57. Thorpe, Charters and_Constitutions, II, 785
58- 111L941. V. 3092

 

 

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CHAPTER III'
THE FIRST CONSTITUTIONS OF VEPQONT, KENTUCKY, AND
TENNESSEE

The first three states to be admitted to the Union
after the original thirteen were Vermont, Kentucky, and
Tennessee} Each one of these states entered with its
own new fundamental laws by Which.the state was to be
governed. How did these constitutions compare with the
original thirteen? Were they more liberal than the first
state constitutions? How much were they influenced by the
early documents?

The first state to be admitted to the Unionby the
original thirteen were Vermont which became the fourteenth

1 Its first constitution, however,

state on March2, I791.
‘was written as early as 1777 and was considered the law

of the state from that date} The state was not admitted
earlier because of a dispute over land titles; The state
of Vermont was originally claimed by Massachusetts, New
Hampshire, and New'Yorke At the commencement of the Revol-
utionary war, it sought independence notoonly from British
rule, but also from New'York, which claimed sovereignity
over the territory to the west bank of the Connecticut
River; from New Hampshire, which.contested the claims of
both.New'York and Vermont; and from Massachusetts. Ad-

Justment of the Massachusetts claim was made in March,

 

l; E; P. walton, ed., Records 2; the Council 9; Safety
and Governor and Council 23 the State gg‘Vermont (Mont-

pelier,.lg73) III, 587 Hereafter cited as Records 2; the
State g§_Vermontt

 

 

a .. l l ..P [alim- .. .‘rfrllhflllll’n

41.

1781. Agreement was finally completed with New Hampshire
in.l782. When New York abandoned claim to the territory
in 1790, the way was cleared for the admisSion of Vermont
to the‘Union.2

Information about the formation of the Vermont con-
stitution is very sketchy. It was written by a convention
held in Windsor from July 2 to July 8 and agaon on December
24, 1777. There is no Journal of that convention; the
only information available comes from the memoirs of pe0ple
who could recall the events. There is not even an accurate
list of delegates who attended. From.what can be pieced
together, there were probably only twelve delegates present
during the short and harried sessions. Business was con-
ducted in a hurry due to the danger created by the military
affairs of the Revolutionary War. The enemy was pressing
hard at Ticonderoga and threatening to break through the .

defenses of the colonies. That explains not only the short

time spent in convention but also the lack of any carefully
kept records} We have only the completed document, there-

fore, upon which to Judge the work of the group.

There is little doubt that the Pennsylvania Constitution
of 1776,.written by a convention with Benjamin Franklin as
itspresident,.was a model for the Vermont Convention. The
Vermont documentlhad nineteen articles in its Declaration

of Rights, whereas Pennsylvania had only sixteen. However,

 

2. Thorpe, Charters and Constitutions, VI, 3737
3. Records of the State of Vermont, 1, 62-75

 

42.

fourteen of the Vermont articles are in substance identical
with those of Pennsylvania. In the Frame of Government,
Vermont had only forty-four sections as compared with forty-
seven in the Pennsylvania model. Of these, twenty-seven
articles are identical.

The first outstanding addition made by Vermont was in
Article I of the Declaration of Rights which established a
system of gradual emancipation of slaves in the state.
Males were not to be kept in slavery after the age of
twenty-one, and females only to the age of eighteen. This
is said to be the first Emancipation Act in America.4 In
this respect, Vermont certainly was liberal in policy.

Article III of the Declaration of Rights was another
addition made by Vermont. This article stated that private
prOperty ought to be subservient to public uses, but that
if it should be necessarytb take private prOperty, the
owner should be suitably compensated. This was a liberal
principle which apparently was first used in Vermont.
Section 6 of the Virginia $111 of Rights of 1776 was a
conservative adaptation of this idea} It said that no
man could be taxed or deprived of his pr0perty for public

uses without his own consent or that of his representatives.5

Massachusetts in 1780 incorporated into its Bill of Rights
an Article X following the Vermont provision in substance.
New Hampshire did the same in 1784,.and Pennsylvania

 

4. Ibid., 92.
5. Thorpe,.Charters and Constitutions, VII, 3812.

43.

borrowed it in 1790.

The next difference to be noted in the two documents
is the provision on religion (Article II in Pennsylvania,
Article III in Vermont). In this respect, Vermont was not
as liberal as Pennsylvania. vermont limited religious
freedom first by the addition of the phrase, "regulated
by the word ofGGod". Pennsylvania granted freedom of
religion to "any man who acknowledges the being of God"
while Vermont extended full rights only to Protestants.
Pennsylvania stated that no person was to be compelled to
attend or support any church, but Vermont stipulated that
every sect or denomination of pe0ple ought to observe the
Sabbath and that everybody ought to support some kind of
religious worship.

Article XII is a liberal annexation of Vermont to the
Pennsylvania model. This provision protects debtors from
arrest and from having their prOperty attached unless the
person requesting action could swear that he was in danger
of losing the debt. In respect to court procedure, Article
XIX must be noted as a liberal contribution of Vermont.
This section, not included in Pennsylvania's constitution,
forbade the transportation of a person out of the state for
trial for an offsense committed within the state.

The first change made in the Frame oftGovernment was
made in Section 6 which referred to the right of suffrage.
Vermont changed voting fromtthe tax-paying basis in

Pennsylvania to a manhood basis, and added a freemans

44.

oath. This, too, was a step toward more liberal govern-
ment. ‘

There were three departures from the Pennsylvania
constitution in regard to representatives. Vermont did
not exclude plural office holding as Pennsylvania did.

On the matter of residence, Vermont was more liberal.
There was a two year residence requirement in Pennsylvania
while Vermont required only one year’s residence. Vermont
also left out of its constitution the Pennsylvania res-
triction that representatives could serve only four out

of seven years. Although the limitation was in line with
the liberal theory of rotation of office, it very easily
could serve as a disadvantage by keeping good men out of
office. A

The differences in the oaths of office made the Vermont
oath the more conservative. Vermont required the individual
to swear "by the everliving God" and also to profess to the
Protestant religion. Pennsylvania did not include either
of these statements in its oath of office.

Both constitutions provided for a recording of the yeas
and nays in the assembly upon request. However, Pennsylvania
made the recording possible upon the request of two dele-
gates while Vermont set the number at one-third of the
delegates making its provision more conservative than Penn-
sylvanias.

Vermont also varied slightly from Pennsylvania's 1776
constitution in the process of passing bills. The fifteenth

section of Pennsylvania's Frame of Government directed that

45.

laws of public nature were to be printed for consideration
of the pe0ple before they were read in the General Assembly
for the last time. Except for emergency, the bills were
not to be passed into law until the next session of the
Assembly. It was this last provision which.Vermont did
not include in the corresponding section (XIV) of it‘s
Frame of Government. -

Differences existed between the two constitutions in
the matter of representation. Pennsylvania (Section 17 '
of the Frame of Government) provided that representation
was to be in proportion to taxable inhabitants. Districts
would be formed according to the census Which was to be
taken each seven.years. Vermont's system of representa-
tion was a town system of representation, granting each
town consisting of 80 taxable inhabitants two delegates
and other inhabited towns one delegate (Vermont XVI).
Pennsylvania also had introduced the ideaof payment of
delegates to the Council by the state, not the districts.
Vermont did not follow this plan, preferring to remain
traditional on this point.

Section 17 of the Vermont Constitution was greatly
changed from the comparative section 19 of the Pennsyl-
vania Frame of Government. In the Quaker State, the
members of the Council were chosen by counties, while
in Vermont, these officials were elected on a general

ticket by the whole state. The same section substituted

the terms governor and Lieutenant-Governor for those of

 

 

.1' ill

 

President and Vice-President used in Pennsylvania and
altered the system of election. From the conservative
Pennsylvania method of choice of these officials from

the Council of Joint ballot of the Council and House of
Representatives, Vermont turned to the more liberal
choise of governor and Lieutenant-Governor by the freemen
at large.

The next point of comparison may be the two Judicial
systems. InfiPennsylvania, Judges of the Supreme Court
were commissioned for seven years (sec. 23). Thererwas
no such specified term in the Vermont document. Section
30 and 31 of the Pennsylvania Constitution established
Justices of Peace elected by freeholders of each city and
county plus sheriffs and coroners elected annually by
freemen of each city and county. The equivalent section
XXVII in Vermont provided for county elections in which
the freemen would have the liberty of choosing the Judges
of inferior courts of common pleas, sheriffs, Justices
of the peace and Judges of probate. They were to serve
during good behavior instead of one year as in Pennsylvania.

Section XXVIII of the Vermont Fundamental Law was an
addition to that of Pennsylvania. In this section, it
was declared that no person should be qualified to hold
any civil office in the state unless he had acquired, and
maintained, a good moral character.

Another addition made by Vermont was section ILII
which provided that field officers, staff officers, and
commissioned officers of the Army, and all general officers

 

 

r itirmu; |.\l.lnl., P9110
5

47.

of the militia would be chosen by the General Assembly.
This would generally be considered as a conservative
arrangement since it denied this power of selection of
officers to the militiamen, themselves. It probably re-
flected the fear of militarism quite common at the time.

Both constitutions contained sections regarding
education - section 44 in Pennsylvania and Section XL
in Vermont. Few changes were made here: the term "each
town" was substituted for-"each county" as designation
for location of schools. Instead of salaries paid by the
public, Vermont provided for the payment of these salaries
by each.town. Vermont added the phrase "making preper
use of school lands in each.town" as a means of financing
the schools. Here is indication of at least interest in
schools supported by the public.

It may also be noted that Vermont drOpped a most
interesting provision in Pennsylvania's document -
Section 38. Probably as a reaction to the British penal
practices, the legislature of Pennsylvania was instructed
by the section to reform the penal laws of the state as
soon as possible and punishments made more prOportionate
to the crimes. 4

In.summary, it appears that the one outstanding feature
in which.the two constitutions Just compared differed from
the original state constitutions was the provision for a
single body legislature called a General Assembly with*

exclusive and supreme legislative power. Only one of the

48.

other first states, Georgia, had a unicameral legislature.
It is also interesting to note that two states soon
‘adopted a bi—cameral system: Georgia in 1789 and6
Pennsylvania in 1790; with Vermont following in 1836.

Before Vermont became a state, this constitution
Just discussed had been amended in 1786, and again in
1793 changes were made. The changes made were such.that
the constant interaction of political ideas among the
states may be seen.

The Vermont Constitution of 1786 contained three
changes in it's Bill of Rights. Article IV stated the
principle that every person in the state ought to have
prompt recourse to Justice freely, without being obligated
to purchase it. Article V had the words "by their legal
representatives" added to the original section so that it
read, "that the people; by their legal representatives,
have the sole, exclusive, and inherent right of governing
and regulating thefinternal police of the same." Article
VI was a provision on freedom of speech followed today by
many states as well as the United States. This article
granted to the legislators immunity from prosecution
for anything said in the process of legislative deliber—
ation.

Two changes were made in the Vermont Frame of Govern-
ment. Article IX (1786) provided for election of Judges
and sheriffs by the House and Council instead of by the

freemen of the counties as in the 1777 constitution.

 

6. Ibid., VI, 3772.

49.

Article XVI (1786) extended the power of the governor
and Council by granting the right to suspend the passing
of bills to which they could not agree until the follow-
ing session of the legislature. This was an adaptation
of the Pennsylvania Constitution of 1776 which Vermont
had dropped in 1777. It is also an indication of the
future granting of veto power to the Governor Which was
finally granted in 1836.7 h

The oath of office and the freeman's oath stated in
1786 differed from that of 1777 by departing from the
religious character of the first oath. No longer were
officials required to swear by the ever living God, and
they were permitted to use the expression, "Under the
pains and penalties of perJury",instead of "So help me
God".8

In 1793. by Section 18, the residence requirement
for representatives was made a two year residence instead
of the one year residence required up to that time. This
would be considered a conservative trend.

The first state admitted to the Unionsshows in its
constitutional deve10pment an area, although.technically
frontier, following closely the political developments
of the original states, It's first constitution was
patterned closely after that of Pennsylvania; the changes
made in it up to the state's admission to the United States

reflected the changes made in the other states.

 

7. Ibid., 3772
8. Ibid., 3759 (500. XXVI)

50.

Kentucky, the Fifteenth State of the Union, is said
to be the first frontier area to have an Opportunity to
shape its own political institutions.9 As early as 1791,
two groups having definite theories as to what they de-
sired in the constitution began to take form. The first
group, supported largely by slaveéholding planters, pre-
ferred to follow the customs of Virginia. The second
group, considered the liberal group, advocated manhood .
suffrage. representationiby p0pulation, voting by ballot
instead of viva voce, a one house legislature and popular
election of all local and most state officials. They also
pr0posed the abolition of a bill of rights, apparently upon
the theory that it would be a guarantee of prOperty and
therefore would be an obstacle to emancipation.10

After a struggle which involved getting permission
from the State of Virginia to become independent, a con-
vention to meet in Danville on Monday, April 1, 1792 was
arranged. This was done by a meeting called to consider
the action which should be taken by the prospective state.
The resolution passed to provide for the new gathering
directed that in December of 1791 on the regular court days
of the counties the free male inhabitants over twenty-one
should elect representatives to a convention to hold office
for seven months. No person.was to vote in any county,
except that in Which.he resided. Representatives were re-

quired to have resided within their district for at least

 

9. Thomas Perkins Abernethy, Three Virginia Frontiers
(Baton.Rouge, 1940), 68
10. Ibid., 68-71

 

a.

 

51.

one year. The total number of delegates was limited to
forty-five.ll

The constitution Which this group established for
Kentucky set up a three department government as was found
in other states. Still following the generally accepted
practices, a bi-cameral legislature was provided for. The
usual one year term was established for rappesentatives,
while senators had a comparatively long term of four years.
The influence of Virginia is apparent here, for Virginia
and NeW'York were the only other states providing four
year terms for senators. Only one state, Maryland, had a
longer senatorial term.

Provisions for the House of Representatives were
fairly liberal. Representatives were chosen by the qualified
electors of the county on the first Tuesday in May. Elections
could continue for three days if the presiding officer
thought it necessary. A representative was required to be
twenty-four years of age, a citizen and inhabitant of the
state for two years preceding his election, and a resident
for six months of the county from which he was chosen. The
size of the house could vary from forty to one hundred,
being apportioned according to the number of free male in-
habitants above twenty-one in each.county. To determine

the prOper distribution, a census was to be taken every four

years.12 New'York, in its constitution of 1777, included

 

11. H. Marshall, Histopy 2; Kentucky (Frankfort, 1824)36l.
12. Robert K. Cullen, reviser, Notes and Annotations

32 the Kentucky Revised Statutes (Published by the Kentucky
Revision Commission, 1944), 28 "Constitution of Kentucky",
Art. 1, Sec. 1-6 Hereafter cited as Cullen, Notes.

 

.IIFUI

52

in Article V a provision for a census to be taken every
seven years.

There were to be eleven senators, one to be added for
each four added to the House with one from each county
until the number of counties equalled the number of senators.’
Then any new county was to be considered part of the one
from which it was made. Senators were to be named by
electors who filled the qualifications of being twenty-seven
years of age, and a resident of the state for three years
prior to his election. A senator was to be twenty-seven
years of age and a resident of the state two years pre-
ceding his election.13

. Powers of thelegislature were almost identical to
those exercised by the Congress of the United States.
Revenue bills were to originate in the House with the
Senate exercising the right of amendment. Impeachment
power was centered in the House, with the Senate acting
as a Jury. A two-thirdavote of both.Houses was required
to over-ride the veto of the Governor. A pocket veto,
such as is exercised by the President of the United States

was allowed.14

Provisions for the Governor were a combination of

' liberal and conservative principles. The Governor was to
be named by the voters of the state for a four year term.
Qualifications were simple: thirty years of age, a
citizen, and an inhabitant of the state for at least two

 

13. Ibid., (Art I, Sec. 7-15)
14‘. Ibid., (Art I, See. 16’28)

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a

years prior to his election. His powers closely paralleled
those of the President.15 The provision for governor was
conservative regarding term of office. The usual term in
'the first.States had been from one to three years. The
governor also was granted greater power than in most of the
earlier states. The tendency was to deny the governor such
power as the veto. Kentucky, in this respect, was re-
flecting a movement appearing gradually in the states as
was pointed out in the gradual increase of power granted to
the Governor of Vermont.

Article III,.dealing with elections followed the
Vermont experiment in manhood suffrage. All free male
citizens, twenty-one years of age and over, who had re-
sided in the state two years, or the county in Which they
.were to vote for one year, were entitled to vote. Viva
voce voting was abolished by the stipulation that all
elections were to be by ballot.16 The use of the ballot
was a liberal provision along with manhood suffrage. The
viva voce method did not allow for secret balloting and
couldgive rise to graft and corruption in electinns.

Article IX, Section 1, providingffor slavery created
the greatest single factor of dispute. The only vote of
yeas and nays recorded in the proceedings was taken on this
issue. Under the date of Wednesday April 18, 1792, a motion

was made to "expunge the ninth Article of the constitution

 

15. Ibid., EArt. II, Sec. 1-15)
16. Ibid., Art III, Sec. 1-2)_

54..

regarding slavery". There were sixteen yeas, twenty-six

17

nays; therefore, the section remained. This unusual
Article forbad the Legislature from emancipating slaves
without the consent of the owners. Emigrants were not to
be denied the privilege of bringing slaves into Kentucky,.
but the Legislature was granted the power to forbid slave
trade into the state. It was further empowered to pass
laws requiring humane treatment of slaves.18

By this arrangement, the liberals had left open away
to bring about abolition, but the rights of property were
protected. The possiblemethod of abolition by state pur-
chase of the slaves with emancipation immediately follow-
ing is suggested here. PrOperty rights would be protected
by payment for the slaves. Theinfluence of Virginia is
apparent here in the desire to protect the slave owner.

Like most of the other states, Kentucky did not submit
it’s constitution to the peOple for ratification. 'By a
brief Preamble reading, "We, the representatives of the
peOple of the State Of Kentucky, in convention assembled,
do ordain and establish this Constitution for its govern-
ment,? it was put into effect.}9 However. Article XI did
provide that a vote should be taken for oragainst a con-
ventionhto amend the constitution in 1797. At that time,
the citizens of Kentucky had an Opportunity to express

their Opinion on the document. A conservative provision

 

17. John M. Brown, Political Beginnings 2; Kentucky
(Louisville, 1890),,228.. Hereafter cited as Brown, Kentucky.
. ‘ 18. Ibid.,228 .

19. Cullen, Notes,,28 (Preamble).

 

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of this article required an affirmative vote for two
consecutive years. If a convention was not approved at
that time, one was not to be called until two-thirds of
both houses of the legislature deemed it necessary.
These provisions made changing the constitution very
difficult.

This first Constitution of Kentucky is clearly modaled
after that of the United States. This is attributed to the
fact that Colonel George Nicholas, an ardent admirer of the
Federal Constitution, is conceded to be its author.20 There
is also influence from the parent state of Virginia. There
is also some influence from the Massachusetts Constitution
to be noted since the Federal Constitution is very similar-
to thatof Massachusetts.

Under the leadership of men such as JOhn Breckenridge,
agitation for revision of the first constitution was soon
under way. In May, 1797, the first vote was cast for a new
document. 'With 5 of 21 counties failing to repotuqthere was

a vote of 5,456 to 440 in favorof calling a new convention.21
A desire for such change was again indicataithe following

year; consequently, July 22,1799. Just twenty-seven days
later, the second constitutiOn was ready.

FranChise provisions in 1799 were more conservative:
than those of the first constitution. Article II, section 6
changed the basis of representation from free male inhabitants

above the age of 21 to qualified electors. To determine

 

20. Marshall, Histoyy 2: Kentucky, 414
21. Thomas D. Clarke, A Histoyy 9: Kentuhky (New
York, 1937); 163

 

 

 

 

vyiqilill,

56.

the allotment, a census was to be taken every four years.
The number of representatives was raised from 40-100 to
58-mOO. Evidence of conservative influence is shown in
the change of the basis of representation.

Article II, section 8, introduced an undemocratic
provision by denying the franchise for representatives, to
negroes, mulattoes, and Indians. Such a provision did not
appear in the first Kentucky Constitution. It shows the
dominance of the southern view of slavery in the area.

Section 9 through 15 of Article II,.re1ating to the
Senate, was somewhat more liberal than in the first document.
Instead Of being elected by electors as originally stipulated,
senators were to be elected by those qualified to vote for
representatives. A system of staggered terms was intro-
duced with one-fourth of the senate being elected each year.
The influene of Virginia is evident here again since the
system was taken directly from the Virginia Constitution~
of 1776.

Article III, pertaining to the exeuutive, contained
several revisions. Although the governor's term of four
years remained the same, he was made ineligible for seven
years following his term. The use of electors in selecting
the governor was abandnnedin favor of election by citizens
entitled to vote for representatives. Qualifications for
governor were made more rigid. Age requirement was raised
from thirty to thirty-five; residence was changed from

citizen and inhabitant of the state for.at least two years

57.

to citizen of the United States for six years and an
inhabitant of the state. A Lieutenant-sovernor, com-
parable to the Vice-President of the United States,,was
added to the Executive Department.

Article III, Sectmon 31, directed that sheriffs
should be selected in a more conservative way. Instead
of election by the people, they were to be named by the
Governor from two which the county court had nominated.

The democratic use of ballots was abolished by Article
VI, section 16 which provided that votes should be person-
ally and publically given viva voce. Here was a conser-
vative move away from a democratic practice followed in
earlier.constitutions.

‘The process of amendment was liberalized. To replace
the previous system which required an affirmative vote for
two consecutive years on calling a constitutional conven-
tion, Article IX gave the power to call for a vote on a
constitutional convention to a maJority vote in both houses
of the State Legislature. A maJority vote of the qualified
voters could then direct the calling of a convention.

There is further evidence of a conservative tendency
in the 1799 constitution in Section 1 of the Bill of Rights.
Whereas the comparative section of the 1792 document stated
that "all men when they form a social compact, are equal",‘
the revised constitution limited equality to "all free men,".
Here once more, the Virginia influence is shown.

Kentucky's two constitutions of this period show a

58.

combination of conservative and liberal provisions COpied
from practices already in effect. Using the conservative
methOd of election by electors in 1792, it changed to the
liberal system of election of representatives, senators,
governor and lieutenant-governor by freemen in 1799. The
use of the ballot established in 1792 was abandoned in

1799. This seems to indicate a tendency toward desire to
conform to existing practice. Again, the change of the
qualifications of governor making him ineligible for seven
years following his term points to a return to earlier
practice where such restrictions were common. These

changes reflect Kentucky's gradual evolutiOn from a frontier
area to a settled community, and the acceptance of established
ideas in the process.

Tennessee was the next frontier state to take it's
place in the Union, being admitted to statehood status on
June 1, 1796.22 This was accomplished only after a lOng
series of efforts in that direction including the premature
attempt at the establishment of a state to be called the
State Of Franklin. This petition was denied, but a con-
stitution had been drawn up giving us some conception of
their governmental ideas.

The constitution for the prOposed state was drawn up
in 1785. It had a Declaration of Rights of twenty-five

sections and a body of forty-six sections. It provided

 

22. Annals of Congress, 4th Congress,lst Session
1795. 1796. 891. 1299,1328

for universal manhood suffrage, and a referendum on
all legislation of a general nature.. These provisions
were liberal in character. There was to be no established
religion in the state. Office holding was limited to
prOperty owners and those who believed in the Bible, in
Heaven, in Hell, and in the Trinity. Clergymen, doctors,
lawyers, immoral men, Sabbath.breakers, profane swearers,,
gamblers and drunkards were forbidden to hold office. It
authorized the establishment of a tax supported University
by the Year 1787.?3
It was not until ten.years later that the settlers
of Tennessee were officially granted the right to form‘
I a state government.. Upon the advice of Dr. James White,.
the territorial delegate in Congress, Governor Blount
issued a proclamation for the election of delegates to a
convention to meet in Knoxville on January 11, 1796.
NO prOperty qualifications were required by the Governor
for voting for delegates since "all free males, twenty-
one years of age and upwards"were entitled to vote.24
There were fifty-five members of the convention, five
delegates from each.of the eleven counties. They named
‘William Blount,President; William Maclin, Secretary; and
John Sevier, Junior Clerk. A committee of two from each

county was selected to draft.the constitution. The session

 

23. ‘William.E. Cole and William H. Combs, Tennessee,,§
Political Study (Knoxville, 1940),.697
24. Ibid., 10

610

was short, lasting twenty—seven days. Deliberation is
said to have been marked with moderation and unusual
harmony.25

Organization of the legislature was the one maJor
point of debate. One group prOposed a unicameral plan
with the requirement Of a two-third vote to carry bills
and resolutions. The other prOpOsal, providing for a
bicameral system, was adopted. In this discussion can
be detected the influence of Pennsylvania, Vermont, and
Georgia. It is strange that the unicameral legislature
should have become an issue since Georgia had adOpted a
bicameral legislature in 1789 and Pennsylvania in 1790.

The peOple of the state did not ratify the con-
stitution by pOpular vote. The convention, by a unanimous
vote, on February 6, 1796, declared it to be in effect.26
This was the procedure followed by the maJority of the
states..

Like the preceding states, the government of Tennessee
was based on the separation of powers into three depart-
ments of government: legislative, executive, and Judicial.
The legislative branch was the dominant branch Just as it
had been according to the first constitutions of practically
all of the preceding states.

The legislature, provided for by Article I,.was to

 

25. J.G.M. Ramsey, Annals 2; Tennessee to the end
gg_the Eightegnth Centgry (Charleston, 18537765 .
26. Cole and Combs, Tennessee, 10.

 

 

I.

or;

be composed of two houses - a senate and a house of
representatives, Both representatives and senators
were to serve for two year terms. Representatives
were required to be twenty-one years of age, residents
of the state for three years, and resident of the
county for one year}. They were also to possess in
their own right in the county which.they represented,,
not less than 200 acres of land,. If they denied the
existence of a God or a future state of rewards and
punishments, they were not eligible} Senators qualifi-
cations were the same%. Clergymen were not to be eligible
to sit in the General Assembly; This was in line with‘
section 3 and 4 of Article XI which provided for religious
freedom and forbade religious tests as qualifications
for office; Most of these provisions are to be found
in the North Carolina Constitution of 1776. The greater
difference in qualifications was a one hundred acre re-
ductionhin.holding the land requirementt

Few limitations were plafied.upon the powers of Legis-
lature. Section 20 of Article I limited salaries and?
forbade their increase until 1804; Section 26 of the
same article restricted their power of taxation by re-
quiring equal and uniform taxation of land; No freeman~
was to be taxed on.more than 100 acres, and no slave on
more than 200 acres each; Section 27 forbade the

taxation of an article manufactured from the produce of

the state, These provisions are conservative, designed

 

P\

62.

to protect the land-owner and the business man;
Provision for law-making were liberal}. Bills were
to originate in either house with the other house having
the power of amendment or rejection. To become law,,
bills were to pass each house at three readings on three
separate days and be signed by their respective speakers}
There was no mention of a governor's signature and no

provision for a veto by the governorg27

The Governor, elected for a two year term by the
electors qualified to vote for representatives, did not
exercise wide powers.. He could summon the Legislature
into special sessions, give them information on the state
of the government, and recommend for passage those laws
Which.he considered necessary? His appointive power
was a temporary one - his appointments lasting only dur-
ing the recess of the Legislature; Qualifications for
Governor were as follows: he must be at least twenty-
five years of age, a citizen or inhabitant of the state-
for four years, and owner of a freehold of five hundred
acres of land}?8

Provisions for suffrage were very democratic for:
that period; Freemen, twenty—one years of age and over,
who were inhabitants of the state could qualify to vote
either for possessing a freehold in the county or by

i2
residence in the county for six months% 9 Under these

 

27S Poore, Constitutions and Charters II, 1667:1669,.
1672, "Constitution of Tennessee, 1796", Art; 1, Sec} 1-8;
Art". VIII, See}: kg? -

28} Ibide,,166991670,,(ArtS.II, Sec} 1-14)

29; Ibid,,,II, 1670 (Art, III,.Sec; 1-3)

63.

provisions, free negroes were permitted to vote until
1834 when a new constitution was written. Elections,
according to Article III Section 3 were to be held by
ballot instead of the viva voce method in common.use.
Perhaps the earlier Kentucky experiment influenced this.

Selection bf Judges was given to the General
Assembly by Article VS By Joint ballot,,the General
assembly was to appoint all Judges. Term of office for
Judges was established as good behavior. This is a con-
servative measure. ‘

Article VII gave to the citizens of the districts
who were subject to military duty the right to elect:
militia officers. This was liberal, and was a procedure?
very often found in earlier states.

Another liberal provision was Article X, Section 3,
providing for the process of amendment. Two-thirds of
the General Assembly could recommend amendment to the
electors3 If a maJority of the electors asked for a con-_
vention, the General Assembly was to call one with the
same organization as the General Assembly within three;
months of the election.

The Declaration of Rights, Article x1, sounding
very much like a combination of the Declaration of In-
dependence and the Federal Bill‘of Rights, was considered‘
' so important that it was declared inviolate by section 4.
Section 2, showing the influence of the Declaration of

Independence declared the right of the people to Oppose

64.

arbitrary power. Section 14 provided for administration
of Justice to all men without sale, denial, or delay.
Citizens were to be given the right to bring suit against
the state in a manner to be established by the legislature.
Section 19 granted freedom of press, but made the citizen
reSponsible for the abuse of the liberty. In cases of'
libel, a Jury was to determine the law and facts Just as
in allother cases. Keen interest in the use of the
Eflssissippi is shown.by section 29 Which stated that the
navigation of the Mississippi was anrinherent right of
the citizens of that state and could not be conceded to
any person.or power. There was no mention of slavery in
the articleb

This document, moderately democratic,,differed little
from previous constitutions. The greatest change was to
be found in.the liberal provision for voting. In all
other essentials, it differed little from the constitution

of the parent state, North Carolina?0 Increasedddemocracy

- but no radical departure from previously recognized
procedures - seems to be the keynote of this conventions

WOI’k o

 

30. Cole and Combs, Tennessee, 71

 

 

 

 

 

 

 

 

 

 

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CHAPTER IV
THE OHIO CONSTITUTION OF 1802

Shortly after the turn of the Nineteenth Century,,
Ohio became the seventeenth state of the Union. First
of the states to be made from the NOrthwest Territory,,
it was the first to follow the procedure outlined in
the Ordinance of 1787 for becoming a state. It was the
first state to which an Enabling Act granting permission-
to write a Constitution was issued, and it was really
the first state to be established by Congress. National
jparty politics made an entry into state-making in Ohio,.
too}. All of these factors make the writing of the Ohio
Constitution of 1802 most interesting to follow%.

The story of the bitter struggle between Governor
.Arthur St. Clair and these peOple of the territory need
:not be related here.’ That it was an all-out battle
:fought with all of the weapons at the disposal of the
jpoliticans of the day can be easily seen by a very
cursory reading of the papers of St. Clair relating to
this period}. The basis of the entire unfortunate
situation was the fact that he, a Federalist, was serving
as governor inhan area pOpulated chiefly by Republicans'
whose ideas he could not, or would not, attempt to under-

stand. The Ohi0‘constitution of 1802 shows the effect
of the controversy.1

 

1. Robert E. Chaddock, Ohio Before 1850 (Columbia
University Press, 1908), 64.

 

3Q»

Agitation for statehood reached fruition on April'
30,,1802.. On.that date, the 7th Congress of the United
States passed "An Act to enable the peOple of the eastern
divisionfiof the Territory Northwest of the river Ohio to,
form a constitution and State government, and for the
admission of such state into the Union, on an equal foot-
ing with the original States, and for other purposes".
For the first time, Congress was setting up the condi- Ti

tions under which a territory could become a state.

Section 1 granted permission to establish a state governa

 

ment. Boundary lines were set up by sections 2 and 3.
Section 4 directed that all male citizens of the United 1“
States, Who shall have arrived at full age, and resided

within the said Territory at least one year previous to

the day of election, and shall have paid a territorial

or county-tax, and all persons having in other respects,

the legal qualifications to vote for representatives in

the General Assembly of the Territory were to choose dele-

gates to form a convention. Representation was to be in

the rationof one representative to every twelve hundred

inhabitants. These delegates were to meet on the first

Monday of November, 1802, to determine two questions: 1.

Whether it was expedient to form a state government at that

time, 2. if they decided in the affirmative, they were

empowered either to write a constitution or to provide .

for a special constitutional convention.

 

4Q

 

£771.

This act then set forth the three conditions which
were to be accepted by the convention before statehood
would be granted; The first condition set aside every
sixteenth section in every township for the inhabitants
to be used for schools. Secondly, that the reservation
commonly called the Sciota salt springs, the salt springs
near the Muskingum River, and in the military tract were
to come under the control of the state legislature, pro-
vided that the legislature did not lease the same for a
period of more than ten years. Although.the second pro-

position called forth considerable Opposition, it was

 

the third proposal that was the center of greatest debate.
This third condition would exempt from taxation for any
purpose for a five year period all tracts of land sold by
Congress in that area after June 30, 1802. In exchange
for that concession, the prOposed state would have re-
turned it to one-twentieth part of the net proceeds of
land lying within the state after June 30, 1802.2
Even before the prOpOsal was submitted to the terri-
tory, there was considerable difference of Opinion on
the part of the members Of the committee considering it
as to whether or not such a procedure was constitutional.

Those who upheld the action based their Opinion on the

clause of the Federal Constitution giving to Congress the

 

23 Annals of Co ress, 7th Congress, 1st Session,

 

. 7", ..r . "Mr.” V

O.

123:

power to admit new states. Those who objected to it
said that in no other case was a state asked to relin-
quish any of its powers as a condition of entry into
the finion. Mr. Fearing, the Territorial Delegate,
vigorously Opposed the resolution on the grounds that
he did not believe that Congress had anything to do
with the arrangements for calling a state convention.
He considered it a definite encroachment upon the rights
Of the people of his territory. In a letter written to
'Albert Gallatin, he stated that he did not think the
United States had a right to annex new conditions, not
implied in the articles of compact, limiting the Legis—
lature right of taxation of the Territory or the new
state‘.3 In spite of the opposition, it became law on
the date previously cited.

Reaction.upon the Republicans of Ohio was immediate.
Elated by the prospect of ridding themselves of Governor
St. Clair and gaining control of the government, they
campaigned vigorously for their candidates for delegates.
Against this was an unfortunate repercussion of'the St.
Clair affair. If the peOple of Ohio had not been so
anxious to rid themselves of a hated Chief executive, they
very soon would have been able to ask for statehood with-
Iout any conditions attached. The pOpulation of the

prOpOsed state was growing so rapidly that it would have,

 

3. Annals of Congress , 7th Congress, lst Sess ion,
. 1801-1802, 133 .

)_T‘F‘"
,9

\‘n .1. ram m u..3.uu mg.
I
n

75..

in a very short time, passed the sixty-thousand figure
set up by the Northwest Ordinance as the stage where
the territory should become a state.

When the delegate had been elected according to the
Enabling Act the membership of the convention proved to
be overwhelmingly Republican. John Smith,.wrote on
November 2, 1802 that there was definitely twenty-four

Republicans out of the thirty-five.4 Thomas Worthington
set the figure even higher saying that there were twenty—
seven Republicans,.seven Federalists, and one doubtful.5
It may be expected, then, that this convention would
write a document fully in accord with the liberal doc-
trines of the Republican leader, Thomas Jefferson.

The temper of the Convention was well illustrated
in the meeting of Wednesday, November 3, When a motion
was made and seconded that Governor St. Clair be admitted
to address the gathering on those points which he deemed
of importance. On the vote, there were nineteen yeas
and fourteen nays. It was under such a situation that
St. Clair was admitted to speak.6

The remarks which the Governor made before the con-

vention proved to be his political exit. He spoke of

 

4. C. E. Carter ed., aerritorial Papers (Washington
D. C., 1954), III, 25A, "Letter of John Smith to the
President, November 2, 1802."

5. Territorial Papers, III, 257 "Letters of ThOmas
Worthington to William Giles, November 17, 1802."

6.. Journal of the Convention, 1802, in Daniel J.
Ryan, "From Charter to Constitution". Ohio Archaelogical
and Historical Society Publications (Columbus, 1898),

V, 84-89. Hereafter cited Ryan, Journal of the Convention.

 

h

_I
!
i

L. 33's

 

 

hurl-.L'IIFI fish.

it

his pride that the territory had grown to the stage of
statehood under his direction and eXhorted the delegates
to think first of the welfare of the people. Then he
departed from this paternalistic approach to accuSe the
President and Congress of acting contrary to the Con-
stitution in imposing the conditions Of statehood upon
the territory. He charged the Congress with.usurpation
of power and discrimination against the peOple Of the
state; He ended with a plea to the delegates to con-

sider carefully'the terms before they accepted them.7

 

This address was delivered on November 3, and on the
Fourteenth of December he was informed that he had been
dismissed from his position of governor.8 Thus, ended
a relationship that had been most disagreeable to both
parties concerned.

Following the Governor’s address, the convention
formed itself in a committee Of the whole to discuss
the motion by which they would agree that a state govern-
ment should be formed under the terms specified by con-
gress. The decision was almost unanimous - 32 yeas and
1 nay, with Ephraim Cutler, a strong Federalist, casting
the sole negative vote.9 SO the verdict was made in
favor of accepting the terms of Congress in exchange for

statehood states.

 

7. William H. Smith, arranger, IEE.§E; Clair Papers
(Cincinnati 1882), II, 592-597.

8. Ibid., 599 s

9. Ryan, Journal 2; the Convention, 87.

i-..“

 

‘Wf'

.i 1. 3|}! fen; n

.31!»

7..

In.

75.

The issue of slavery and the civil status of the
Negro was the most troublesome question to confront
the Convention in writing their constitution.l Appar-
ently this was anticipated because there was an un—
written agreement to keep the discussion slavery as
much as possible Off the floor Of the convention.10
Some agreement had to be reached since there were be-
tween one and two hundred negroes in Ohio at the time.11

The discussion over slavery arose in connection;
with the Bill of Rights} President Tiffin.had referred

the question to the Committee on the Bill of Rights made

‘P ‘2 mm um“ “mm—"j!“
.- . ."
.k ‘ - ’

up of nine men with JOhn‘W. Browne of Hamilton County
as chairman. Browne was frankly in favor of a limited
slavery being introduced. Ephriam Cutler, the Federalist,_

led the group in favor of abolition.12

The original report carried the provision forbidd-
ing slaveryQ. The debate Opened on Saturday, November 20,
when a motion was introduced by Nr. Browne to amend the
Bill of Rights by adding to the second section, "Nor
shall any male person arrived at the age of eighteen
years, be held to serve any person as a servant under
pretense of indenture or otherwise, unless such person:
shall enter into such indenture, while in a state of
perfect freedom, and on condition of a bona fide con-
sideration, received or to be received for their service,
““‘l57“fihar1es J. Wilson, "The Negro in Early Ohio",,
thgggrghaelggical and HistOrical Society_Publications,
1930, XXXIX..734.

11.. Jacoerurnet, Notes on the Ear Settlement g;

fihe Northwest Te ito (Elhcififiatlt.l 7 ,.35E.
12. wils63§;"TE§xNegro in Early Ohio." 734

762

except as before excepted." When the motiontcame to
a vote, it was defeated by a 21-12 vote.13
Immediately another motion was made to amend the

same section by inserting, "Nor shall there be either
slavery or involuntary servitude ever admitted in any
State to be erected on the north-west side of the river
Ohio, within the limits of the United States, except
as above excepted. Here the yeas and nays When called. T"
showed yeas 2, nays 31.14 I

Here the issue rested until Monday, November 22

when it was moved that the section regarding electors

8'?! "1 Mr H W“ Q-

should be amending by adding,."provided,.that all male
negroes and mulattoes now residing in this territory I
shall be entitled to the right of suffrage, if they
shall withing____months make a record of their citizen-
ship." A record of the vote shows 19 yeas and 15 nays -
establishing suffrage for the negro by the action.15
Then it was moved that there should be added to the
section,,"and provided also, That the male descendents
of such.negroes and mulattoes as shall be recorded,
shall be entitled to the same privilege." This pro-
posal lost by a vote of 17-16..16

The next step taken was a motion to add to the

 

13. Ryan, Journal 2; the Convention, 110
14.. Ibid.’*
15.. Ibid., 114.
16.. Ibidg,,

7?.

article a section 7 which would read,."NO negro or

mulatto shall ever be eligible to any office, civil

or military, or give their oath in any court of Justice

against a White person, be subject to do military duty,,

or pay a poll-tax in this state; provided always, and

it is fully understood and declared, that all negroes

and mulattoes now in, or who may hereafter reside in,.

this State, shall be entitled to all the privileges Of

citizens of this State, not excepted by this constitution."

This prOposition passed by a 19 to 16 affirmative vote.17
As the situation stood on November 22,,Slavery had

been forbidden; the negro had been granted suffrage, but

he had been limited in.his position as a citizen by be-

ing denied certain functions generally connected with

citizenship.. Three days later, this was to undergo

change again.

Rules provided that all sections were to be read three
times before final action, so according to the regulations,
the fourth article, designating the qualifications of
electors, was taken up and read for the third time onr
Friday, November 26,.when it was read, a motion was made
to amend the article by striking out the section granting
negroes the right to vote. Calling the roll, it was dis-
covered that the vote was evenly divitd - l7 yeas and 17
nays; It became the duty of President Tiffin to cast a
vote to break the tie whichahe did by voting to strike out

 

17‘. Ibid.,,

 

78.

the article.18 By one vote, the negro of Ohio was
denied suffrage in.the Constitution of 1802.

On the same day, Section 7,,previous1y referred
to, was removed by a 17-16 vote.l‘9 In the final draft,,
the negro While denied the right to vote, could not be
‘held in servitude other than indenture, and was granted‘
equality in the courts. They did not have any place,.
or could they have under the Constitution Of 1802, in
conducting the government or in making and administering
the laws. As Judge Burnet wrote, "They are suffered to

continue, they have a right to claim the protection of

 

the laws of the state, and to be treated with Justice

‘1‘ . " 3‘:P"'r.z" Y1rw‘..-—l

and humanity, but beyond that, no claims are secured

for them." 20‘

The sectional division of Ohio was clearly demon-
strated by the vote on the slavery issue, and it was a
forecast as to the vote on the future "Black Codes" Of
Ohio. The Scioto settlements, Belmont county and a
minority from Hamilton County voted both for the "Black
Codes" and against negro suffrage.21 These areas voting
against negro suffrage were the southernaareas of Ohio.

It is interesting to speculate on the question of

 

18. Ibid., 122.

19. Ibid., 124. _

20. Burnet, Notes, 356‘ '

21. William T. Utter, The Frontier State (The Ohio
State Archaeological and Historical Society, 1942),.II,
21. Hereafter cited as Utter, Frontier State.

79.

Just how much influence was brought to bear by Thomas
Jefferson on the matter of slavery as it was considered

by the convention. Evidence is not conclusive but there
are indications that he had attempted to have slavery
introduced into Ohio for a limited period. Cutler, who
was a member of the committee, had no doubt that Hr.
Browne's prOposal was inspired by Jefferson. (In his writ-
ings, he recalled that he had been in washington when Mr.
Worthington had been lobbying for statehood, and Worthing-
ton had told him that Jeffersondesired Just such a prO-
vision in the constitution of the prOposed state.

Cutler’s proof was a letter which.he received from‘
Jeremiah Morrow in 1846 in which he wrote that when.he
went to Washington as Ohio's first congressman, Jefferson,
in commenting on the constitution, had said that it would
have been more Judicious to have admitted slavery for a
limited time."22 Thomas Scott, Secretary of the Convention,
however, did not believe that Jefferson had attempted to
23

influence the convention on the matter.

That Jefferson was interested in emancipation cannot
be doubted since all of his writings indicate that. If
he did attempt to have a limited slavery introduced into
Ohio, what could have been his motives? Perhaps he felt
that neither party, master or slave, was ready for immediate
abolition. He may have thought that by permitting the ex;

tension of slavery westward, it would prevent the question

 

,22, Cutler quoted in Ibid., 20.
23. Ibid.,

KP-.um sauna-.anx'fitfilfliw: ‘ r m

 

 

k
k
l
f
1'
‘

1‘

80

from becoming the purely sectional one that it did.
Another purpose may have been to speed total abolition
by spreading the slaves more thinly over a wider area.2
It is also important to point out that the group re-
jecting Mr. Browne's prOpOsed limited slavery clause was
decidely Republican - at least 24 out of 35 subscribing

to Republican theory. The leader of the Opposition, the

J

prOponent of the clause forbidding slavery, was Mr.
Cutler who was unquestionably the area's most confirmed
Federalistt There must have been a strong sentiment in

favor of abolition among the peOple for a group of dele-

‘Il .m-o Mica Mai-”mi?”

gates so definitely of one party to vote down the prO-
position supported by their leaders.

The establishment of the Judicial Department for
the state brought forth more antagonism. The difficulty
was created by the fact that delegates from some of the
more pOpulous counties, a distance from Chillicothe,
objected to the Supreme Court being held exclusively at
the seat of the government. Jealous of their local con-
trol, they were not willing to yield the claims Of their
'own counties to another. It was soon found that a
majority vote could not be had to locate the court in any

one county.25' Compr

Compromise was reached in a Supreme Court composed

 

24. Benjainin S. Catchings Master Thoughts of
Thomas Jefferson (New'York, 1907;, 1-7.
25. Burnet, Notes, 356.

Em,

of three Judges who were appointed by the legislature
for a term of seven years. This court was required

to hold a session once a year in each county seat. In
each county there were also to be sessions of the

courts of Common Pleas. The state was divided into

hree districts, and a presiding Judge appointed for
each. A Judge visited each county seat three times each
year, there holding court with two or three associate’

Judges who were residénts of the county. Besides these

two courts, there were Justice courts to be established

 

in each township. The legislature was empowered to
26

1F-

establish other courts as it deemed necessary.
The result of this organization was that Judges

were required to be on horseback half of the year, and

were compelled to decide most important questions of

law in great haste, frequently in frontier counties

where there was no access to law books. Since the same

Judges were not always present, sometimes the same point

Of law was decided differently in different counties. So

unsatisfactory was the system that the legislature of

Ohio in 1821 provided that once each.year a session of

the Supreme Court was to be held at the seat of the govern-

ment to consider and decide questions reserved in the

counties and sent up by order of the Court.27

One liberal provision written into this cOnstitution

was viewed with considerable apprehension. ‘Militia

 

26. Ryan, Journal 93 the Conyention, 140-142.
"Constitution of Ohio, 1802", Art. III;
27. Burnet, Notes. 356.

 

rig—m.

..|

.F .

82.

officers were to be selected by the legislature, but to
be named in election by the grade Of officer or men
next beneath them. Military men were especially con-
cerned over the pressure to which the Officers would be

28 This, too, may have been

subJect under the system.
brought about by the authoritarian procedure of Governor
St. Clair. For a long time, militia Officers had been

under the close supervision of the Chief Executive.29'

Ohio's first constitution was not submitted to the
peOple for ratification on the decision of the members
of the convention. Saturday, November 13, the question
of taking the constitution to the peOple was brought up
before the delegates. It was decisively voted down by
a 27 to 7 vote. Those who favored a vote on it were
Cutler, Gilman, McIntyre, Putnam, Reily, Updegraff and
Wills.30 It is significant to notice that these people
were led by Cutler, the staunchest Federalist at the
Convention. 2

Mr. Cutler spoke for those who were in favor of
the vote. His reasons for desiring the referendum were
spoken in these words, "The mouths of the clamorous
would be stOpped, and the minds Of the Judicious would
be satisfied."31 Perhaps Just a faint hope remained alive

 

28. Ibid., 359

29. Randolph C. Downers, Frontier Oh66, 1788-1803
(Columbus, 1935) 248 '

30. Ryan, Journal of the Convention, 97.

31. Emilius O. Randall and Daniel J. Ryan, History
of Ohio (NeW'York, 1912) 123.

 

‘Vl

$3.

for Mr. Cutler that the peOple would reject the work
of the convention.

Jacob Burnet felt that there were two chief reasons
for the reJection of the prOposal: 1. Fear that the
people would repudiate the constitution if it were sub-
mitted to them in the form in which it had been drawn
up. 2. Over-anxiety to get the new government into pp
Operation as soon as possible as it was understood that
all important offices to be created would be filled by
members of the convention.32

Although one would expect a frontier, Republican

 

group to submit their work for the approval Of the

peOple, it was not extraordinary orlevolutionary that

they did not. Remember that it had not been an established
cuStom, nine of the thirteen original state constitutions
not being submitted for approval. There was no question

of the convention.having authority to put the completed
instrument into effect for the Enabling Act, as explained
before, had specifically endowed it with that power. The
convention, itself, was astrictly respresentative body,.
elected by the peOple after a campaign based upon the
issues which.would face the members. That it was approved
by the membership is shown by the unanimous vote for ~

adOption cast on November 29, 1802.33

The Ohio Constitution of 1802 established a state

 

32. Burnet, Notes, 353
33. Ryan, Journal 2: the Convention, 131

Ba.
government in which the Legislature was to be supreme.
It was composed of two houses, a House of Representatives
and a Senate. Representatives were to be chosen annually
by citizens of each county on the second Tuesday of
October. Representatives were to be at least twenty-five
years of age, citizens of the United gtates, inhabitants
of Ohio, and residents of the county from which elected
for one year preceding their election. Senators were

chosen biennially, by voters qualified to vote for Rep-

 

resentatives, one-half to be chosen each.year. Their

qualifications demanded that they be at least thirty

 

years of age, citizens of the United States, and residents t '

for two years of the county or district from Which they
were chosen, Section 22 of Article I obligated them to
attach an accurate statement of the receipts and expendi-
tures of the public money to the laws each year. Power
of impeachment was given to the House with the trial and
power of conviction the right of the Senate.3

The Executive Department was organized by Article III.
The governor was chosen by the electors of the General
AsSembly, He had a two year term of office, but was not
eligible more than six years in eight.' Qualifications
stated that the Chief Executive was to be at least thirty

years of age, a citizen of the United States for twelve

 

34. Ibid., 133-157 (Art. I)

EEh

years, and an inhabitant of the State for four years
preceding the election.

The governor's powers were so limited and restricted
as to be almost nOminal. It was his duty to recommend
to the consideration of.the Assembly such matters as he
deemed important. He would fill vacancies in office
which occurred during the recess of the General Assembly,
but the appointments would expire at the end of the next
session of the Legislature. He held the power to reprive
or pardon convicts of the State. The Governor could also
call special seasions of the Legislature, by proclamation,
stating to them when they convened the purpose of the
special session. He had no power Of veto, and could not
interfer in any way with the actions of the Legislature.
Although he was technically the Chief Executive, he was
powerless to remove any Officer no matter what his conduct
had been.35 This provision for a weak, ineffectual
Executive is usually attributed to the actions of St.
Clair more than to any other single factor. In light of
grants of power made to the governors by the first state
constitutions, it does not appear that Ohio departed from
the custom Of the day in denying the governor great power.

The constitution of 1802 was very liberal in its pro-
visions for voting. The franchise was extended to almost
all adult white males. The restrictions imposed were that
the individual was to be at least twenty-one years of age,

a resident in the state one year prior to the election, and

 

35. Ibid., 138-140 (Art. II)

1:.- ~_~ rm- Jae-imam

 

it.

.vT.‘IF

5D.l>

.09.

:86.

pay or be charged with a state or county tax. Anyone
above twenty-one Who was compelled to work on the town-
ship Or county roads was to be allowed to vote.36 All
elections were to be held by ballot; a provision included
in the first constitution of Kentucky and the constitution
of Tennessee.

Article VIII of the constitution contained the Bill
Of Rights. Section lof the article was a paraphrase of
Jefferson's statement of the Doctrine of Natural Rights i
in the Declaration of Independence and read, "All men

are born equally free and independent...". Section 2

 

abolished slavery in Ohio; section 3 guaranteed freedom
of worship, while section 7 declared that a poll tax was
grievous and oppressive and should not be levied for
county or state purposes}.z Records in the Journal 9;
the Convention show that the statement against the poll

38 An effort was

tax was approved by a vote of 26-7.
made on November 20, 1802 to insert a proposal saying,
"NO person Who denies the being of a God or a future
state of rewards and punishment shall hold any Office in
the civil department of this state." This suggestion,
similar to clauses found in several of the early con-
stitutions, was defeated by a 30-3 vote.39°

One unusual feature of Ohio's Bill of Rights was

the section which outlined a philosophy underlying the

 

36. Ibid., 142 (Art. Iv)

37. Ibid., 147—151 (Art. VIII)
38. Ibid., III

39. Ibid

 

 

 

8?.

ideal criminal code. According to this philOSOphy,
penalties should be in prOportion to the nature of the
offense. If, as it says, punishment is the same for
all crimes, people will forget the distinction between
crimes and will commit the most serious with as little
regard as they commit minor offenses. These frontier
constitution—makers further theorized that the design
of punishment is to reform, not to exterminate mankind.4O "t
We, as modern Americans, could profit from the advise of

these Ohioans of 1802.

Neither was the question of education forgotten.

 

Copying from the Ordinance of 1787, the delegates stated . L'
the belief that, "Schools and the means of instruction
shall forever be encouraged by legislative provision not
‘inconsistent with the rights of conscience". The
liberality of the group was demonstrated by their accept-
ance of Section 25 which stipulated that no law should
be passed to prevent equal participation in educational
'institutions.41 '
This constitution established a government which
had a weak executive, a half-starved judiciary, and an
all-powerful legislature. It embodied in it the favorite
dogma of liberal political thinkers of the day; give the
legislature extensive powers, but hold it in check by
frequent elections. The code reflected in it the organic

aws of the other states and the results of the experiences

of political leaders of other areas. It was the result of

 

40. Utter, Frontier State, 23
41. Ryan, Journal 2: the Convention, 151

 

F88

adaptation of what had happened in other states to the
particular situation in Ohio.
Comparison with the fundamental laws of other
states indicates that perhaps the Tennessee Constitution
had played an important role in Ohio. This was parti-
cularly true in the provisions for governor. Both
denied veto and appointive power to their chief executive.
Close friendships between people Of Ohio and other
states exerted influence also. Nathaniel Macon, leader
of the Republicans in North Carolina and speaker of the

House of Representatives furnished advice to his friend,

 

Thomas Worthington, which carried great weight at the Con-
vention. During the summer preceding the meetings,
Worthington had written, "You promised me you would be so
obliging as to write me and point out such parts of your
.constitution as had been found by experience to be
deficient". Macon's reply of September 1, 1802, recom-
mended these principles: 1. Neal executive, 2. Strong
legislature with large appointive powers. 3. A system

of election in the militia. 4. Publication of state
expenditures."2 All of these principles were incorporated
into Ohio's constitution. This is an indication that
either Macon's advise was follOwed by the constitution
makers or he had summarized current ideas already accepted

by Ohioans. Evidence seems to point to the latter.

 

42. Utter, Frontier State, 17

A further indication of factors influencing the
work of the Ohio convention was a letter written by
Mr. Cutler in which he observed Judge Byrd, who was
secretary of the territory, was at the commencement
of the Session looked to by that party (The Jeffer—
sonians) as the one to draft the constitution. He
happily approved of the Tennessee constitution, which

was the most recent one to which we had access."+3

 

43‘ M39 16

 

tetra-t5! _

90.
CHAPTER‘V"
CONCLUSION

The writing of the constitutions for the first
frontier states was a part of a long, slow evolutionary
process. It was not set apart, separated from the
political growth of the Nation as a Whole. It was not
a revolutionary process in Which all of the traditions
were put aside and new ones substituted for them. There
were no radical departures from the systems set up by
the Original Thirteen States.

The Constitutions of the first Thirteen States re-
flected well the political philOSOphies Of the day.
They provided the type of government structure for Which
the peOple of the day were ready. Changes to liberalism,
or conservatism, come as a society is ready for them.
Leaders may theorize, and they may preach, but the time
must be right for their theories to be accepted.

were the first state constitutions undemocratic?
Perhaps by our standards set up by an.urban, industrialized
society, some of the provisions would seem to be oppressive
for some groups. Their society, however, was an agricult-
ural society with a pOpulation many times smaller than
ours. To be fair, judgment should be based upon situations

existing at that time.
Did the first frontier states depart radically from

the practices of the first states? By comparing the

 

BI.

constitutions written during the first twenty-five
years of the history of our country, it can be shown
that they did not; in fact, there was a tendency to
OOpy provisions of constitutions already familiar to
them.

Looking first at the qualifications for electors,
one notices few unusual deve10pment. Right down the
list Of states, the age of 21 was set as the first re-
quirement. Residence qualifications varied from six
months to 2 years, with Kentucky and South Carolina being

the only two with the two year requirement. The frontier

 

states, with the exception of Tennessee drOpped the prOperty
qualifications for voting. Kentucky hnd Ohio limited
voting to Whites, patterning from Delaware and South Caro-
lina. Ohio retained the qualification whereby the voter
must pay or be charged with a state or county tax. Several
states had used this provision.

There is little difference noted between the religious
qualifications found for Office holders in the first states
and those found in frontier states. Vermont copied the
PennsylVania provisions word for word; Tennessee followed
South Carolina in the matter, and Kentucky and ghio did
not include such a provision. '

Most of the constitutions studied were based upon‘
the principle of a weak executive and a strong legislature.
This practice was followed by the first states as well
as the frontier states. This is in accordance with the

92.

theory 0f giving to the representatives of the people the
greatest share of power and then make them responsible

to the people through frequent elections. It should be
noted that by the time Kentucky and Tennessee beganbto
write their constitutions, a movement was underway in the
states to provide the governor with greater power. This,
too, was reflected on the frontier.

In the process of voting, Tennessee and Ohio followed
Delaware, Massachusetts, New Hampshire, and NeW'York in
using a ballot or a written note. Kentucky, in its
first constitution, provided for the ballot, but returned
to viva voce voting in its second. This seems to have
been an almost evenly divided issue. Georgia, after
having used the ballot according to both their 1777 and
1789 constitutions, provided for vive voce voting in
1798. This may have had some influence on Kentucky's
action in 1799. ‘

At times, previously written documents served as
models for new constitutions. Vermont cOpied its first
constitution directly from that of Pennsylvania. Ohio's
constitution was definitely influenced by those of 2
Tennessee and North Carolina. Tennessee's first govern-
ment differed little from that of North Carolina. Ken-
tucky modeled its constitution after Virginia's and
the Federal Constitution. ,

Well known authors of the Revolutionary Period were
influential in making the first state constitutions. John

 

93.

Adams became the author of the Massachusett's con-
stitution of 1780. Benjamin Franklin was President
of the Convention which drew up Pennsylvania's first
framework of government. Letters written by these
men and others to friends on the frontier carried
messages of advice on government. Frequently, leaders
on the frontier sought this advice from friends back
home. More Often than not, the advice sought was [
accepted.

A comparison of the processes by whichthese codes

were drawn and adOpted discloses great similarity again.

 

 

Only one of the states through the adOption of the Ohio , ”V
Constitution of 1802 submitted it's completed document
to the people. The frontier did not depart from the
procedure of having the convention, after drafting the
constitution for the state, put it into effect by its
approval.

What was the relationship between the first thirteen
state constitutions and those of the first frontier
states? They servedaas guides andrmodels. They demon-
strated Whatwwas workable andwwhat could not satisfactorily
be employed. They were all part of the larger deve10p-
ment; and development of the state constitution as We

know it today.

BIBLIOGRAPHY

- g '8’_ ‘I“'_'

 

SOURCE KATEEIALS

I. Published Documents

This group of sources proved to be the most valuable
in research for this work. The greatest volume of
material used in the final writing of this paper was ob-
tained from them. Since there was no interpretation
made of material in these books, there was no possibility

of accepting Opinion as fact.

II. Memoirs, Works, and Contemporary Accounts

This series Of references were most interesting to

 

use and provided first hand accounts of events being
studied. However, care had to be exercised in the use
of material from some of them since memory is not always
accurate. The collections of letters and other source

material were very helpful and convenient to use.

III. Convention Manuals

These works were useful in so far as they included
records of early conventions, discussions relating to
dissatisfaction with existing constitutions, and com-
parisons with other state constitutions. The writer,

however, used very little material from these sources.

SECONDARY SOURCES

I} Periodicals

Those references were, for the most part, used
very sparingly. Much personal interpretation is used in
preparing material for periodicals. Frequently this may
be based on cursory study of available sources. Therefore,
a careful check was made of all material used from a

periodical.

~' ‘t._‘b_w7.’.‘-
.

r

..- . I‘

II. Books

 

. a
T _

This group of works served as sources of back-
ground material for the main study. Undisputed facts
were used from these, but care was exercised in accepting

Opinions expressed in the volume}

BIBLIOGRAPHY

Source Material

Published Documents

Annals 9: Congress

 

1st Congress, Vol. II, 1789-1791, pp 2373,2374,
1774.
4th Congress, lst session, 1795-1796. pp. 891,

I Zifl‘ .

916, 1299-1328,.1463, 1474.

7th Congress, lst Session, 1801-1802, pp. 1100-
1103, 1118-1126, 1348-1349.

7th Congress, 2nd Session, 1802-1803. pp. 290,

 

I'M Jih'. I‘lqu—ou' (.

4519 5099 5109 544: 584, 587
, Freeman's Guide, Charleston: Grega, 1812

 

Carter, Clarence E., Compiler and Editor,
The Territorial Papers 2: the United States.
16 vols; Washington, D.C. United States Government
Printing Office, 1934. Vol. III

Cullen, Robert K., Reviser, Notes and Annotations t9

' the Kentucky Revised Statutes. Published by

 

 

the Kentucky Statute Revision Commission, 1944.
Hough, F. B}, American Constitutions. 2 vols, Albany:
Weed,.1872.
Howe, Henry, Historical Collections g: ghig. 2 Vols.,
Ohio: C. J. Krehbul and Company, 1904.

Poore, Benjamin P., Compiler, ahe Federal and State

Constitutions, Colonial Charters and other Organic

 

Laws 2: the United States. 2 vols., Washington,

 

D.C. Government Printing Office, 1878.
Ryan, Daniel J., "From Charter to Constitution", Ohio
Archaeological and Historical Publications. vol. V,

 

Columbus; 1898.
Thorpe,.Francis N., editor Federal and State Constitutions,
Washington, D. 0.; Government Printing Office, 1909.

U. S. 59th Congress 2nd Session, House Documents 357. r W

 

8 Vols., Montpelier: J and J. M3 Poland, 1873, V,

 

I, II, III.
Memoirs, Works and Contemporary Accounts.

Adams, Charles F., editor The Works 93 John Adams.

 

 

lO vols, Boston: Charles Little and James Brown,
1851. Vol. IV.

Burnet, Jacob, HQEEfi 2n the Early Settlement 2: the flggfih-
west Territory. Cincinnati: Derby, Bradley, and
Company, 1847.

Catchings, Benjamin 8., Master Thoughts 2: Thomas Jefferson.
New York: The Nation Press. 1907.

Ford, Paul L., editor, The writings 2: Thomas Jefferson
10 vols., New York: G.P.Putnam's Sons, 1896. V01. V11.

Koch, A., and Peden, w., editors, The Selected Writing 31;
John and John Quincy Adams. New York: Alfred A.
KhOpf Company, 1946..

Marshall, H., Th§_Histo§y 2; Kentucky. 2 vols., Frankfort:

George S..Robinson, Printer, 1824.

 

Pan.

.rP.’ P.

Ramsey, J. G.M., The Annals 23 Tennessee 39 the End g:

the Eighteenth Century. Charleston: John Russell,
1853;

Smith, William H., Arranger and Annotator, The S3,,Qlai;
Papers. 2 vols., Cincinnati: Robert Clarke and
Company, 1882.

III. Convention Manuals

A commission to compile information and Data for the
use of the Constitutional Convention, A Manual
59; the Constitutional Convention, 1917.. Beston:
Wright and Potter Printing Company, 1917

Brenaman, J. N., A History gf‘Virginia Conventions
Richmond: J. L. Hill Printing Company, 1902.

Hough, F. B., E 3 York Convention Manual. Albany:
Weed, 1867.

SECONDARX SOURCES
I. Periodicals
Bartlett, Ruhl, J., "The Struggle for Statehood in
Ohio", 92é2.§£é 2 Archaeological and Historical
Society Publicationg, Vol. XXXII,,1923, p. 472-505.
. "Committee on Constitutional Revision Report",
North American Review, Vol. XI.

DDwnes, Randolph C., "Thomas Jefferson and the Removal
of Governor St. Clair in 18027 QElQ.§E§E§ Ardhaeolog-
ical and Historical Society Publications, vol XXXVI,
1927, p. 62JT7.

 

Lord, Arthur, "Some Objections Made to the State Con-
stitution, 1780", Proceedings 2: the Massachusetts
Historical Society, Vol. L, Act, 1916 - June 1917,

.PB 54-60. ‘

M’Clintock, William T., "Ohio's Birth Struggle",. Ohio

- State Archaeological and-Historical Society Publica-

ti9n§,.'Vo1. XI, 1902, p. 44.

McClure, Wilace, "The Tennessee Constitution",; Tennessee
Historical Magazine, vol. I, 1915, p; 292-315..

Marey, Williams C., "First State Constitutions", Annals'

9; The American Academy 9:.Political and Social Science,
Vol; 4, 1894; pt 201-229; '

Morrison, Samuel E., "Massachusetts Constitution of 1780"..
Proceedings 2: the Massachusetts Historical Society,

V01. L., Act. 1916+June, 1917,,p. 353-412.

webster, William Clarence,."Comparative Study of the State
Constitutions of the American Revolution",. Annals Q:
th§_American Academy 9: Political and Social Science,=
Vol. IX, No.3 1897;.p. 380-420.

Wilson, Charles J3,, "The Negro in Early Ohio", ghgg,Archaeo-
lggical and Historical Society Publications, Vol. XXXIX,
1930,.p. 717-768. - '

II. Books

Abernethy, Thomas P., Ezgg Frontier pg Plantation gn-Tennessee.
Chapel Hill; University of North Carolina Press, 1932.

Abernethy, Thomas P}, Three Virginia Frontiers. Baton Rouge,

I Louisiana State University Press, 1940;

 

 

,‘

Bend, Beverley W., Civilization 2; the Old Northwest..
A New York: Macmillan Company,,1934.
Bend, Beverley W., Jr., Foundations g£_9hig. The Ohio
State Archaeological and Historical Society, 1942.
Brown, John M., The Political Beginnings 2; Kentucky.
Louisville: ‘John P. Morton and Company, 1890.
Chaddock, Robert E., Ohio Before lgsg. Columbia University:

 

Dessertation for Doctor of Philosophy Degree, 1908;-

Clarke,.Thomas D.. A Histogy 2; Kentucky. New York:
Prentice-Hall Inc . , 1937 .

Cole, William E., and Combs, William H., Tennessee, a
Political mu Knoxville: University of Tennessee
Press,,1940.

Collins, Lewis, Histogy g; Kentucky. 2 vols; Covington:
Collins and Company 1874.

Craven, Avery and Johnson, welter, The United States,
Experiment in Democracy. Beston: Ginn and Co., 1947.

Dabney, Virginia, Liberalism in.the Sggthg Chapel Hill:
University of North Carolina Press, 1932.

Dealey, James Q., Our State Constitutions. Philadelphia:
The American Academy of Political and Social Science,,
1907.

Downes, Randolph Q” Frontier _9_r_1_i_9_, 1188-1802. Columbus:
Ohio State Archaeological and Historical Society, 1935.

King, Rufus, Ohio, Eggs; Fruits 9:; the Ordinance 9;; :_Lj_z.
New'York: Houghton, Mifflin, and Company, 1891.

 

Paxson, Frederic L., Histogy 9;.the American Frontier,.
1763-1893. Boston: Houghton- Mitflin Co., 1924.

Randall, Emilius 0., and Ryan, Daniel J., Histoyy g; gngg
5 vols., New York. The Century History Company, 1912.

Ryan, Daniel J., Histoyy 2;.92235 New'York:' Century.
Histoyy Company, 1912.

Shaler, N. S. Kentucky,.§ Pioneer Commonwealth. B0ston:

 

Houghton, Mifflin, and Company, 1885.

Utter, William T., The Frontier State, A Histogy 9: £22
§§a§g|2£,ghig. The Ohio State Archaeological and
Historical Society,.l942..

Thorpe, Frances N., Constitutional Histoyy g§_the American

 

People. 2 vols. New York: Harper and Brothers Publishers
1898, Vol. I

 

APPENDIX

 

1.
QUALIFICATIONS OF ELECTORS AS PRESCRIBED BY LAW

Mass., March 23, 1786 - Freeholders who pay one single tax,.
besides the poll, a sum equal to 2/3 of a single p011-
tax. This was for voting in town affairs, not in state
elections. .

Rhode Island, 1762 - 21 years of age, Inhabitants, Forty
Pounds in realty, or forty shillings per annum rent,
or the eldest son of a freeholder.

Connecticut, 1715, 21, Realty - Forty shillings per annum,.

. or forty pounds in personal estate.

New York, March 27, 1778. Every mortgager or mortgagee in
possession, and every person possessed of a freehold
in right of his wife, vote viva voce for senators and
assemblymen, by ballot for governor and lieutenant-
governor.

New Jersey, February 22, 1797 - 21, Free inhabitants having
fifty poundssprOperty, and 12 months in the county.
Women, aliens, and free negroes, thus qualified, voted.

Pennsylvania, February 15, 1799 - 21, citizens of the state 2
years,,paying state or county tax 6 months before the
election; sons of electors to vote at 21 without payment
of the tax.

Maryland, Oct.,,1785; Dec. 31, 1796 - Free negroes not to be
electors.

Virginia - Law of 1781 - Poll tax,.l/2 bu. wheat,,or 5 peeks

pets, or 2 pounds sound bacon. Repealed November, 1781,

 

 

.{I|.l{ll|ll.

II
and made 10 shillings.
South Carolina - October, 1759 - Elector, free white man
possessing settled freehold estate, or 100 acres un-

settled, or sixty pounds in houses, or paying a tax of

IO shillings.

Francis N. Thorpe, Constitutional History g£_the American

 

Peo 1e, I, 95.

 

ff"

III'
MASSACHUSETTS CONSTITUTION OF 1780

Chapter V Section II

Wisdom and knowledge, as well as virtue, diffused
generally among the body of the peOple, being necessary
for the preservation of their rights and liberties, and
as these depend on Spreading the Opportunities and
advantages of education in the various parts of the country,
and among the different orders of the peOple, it shall be
the duty of legislators and magistrates,,in all future

periods of this commonwealth, to cherish the interests of

 

 

'1" - —-

literature and the sciences, and all seminaries of them;
especially the university at Cambridge, public schools

and grammar schools in the towns; to encourage private
societies and public institutions, rewards and immunities

for the promotion of agriculture, arts, sciences, commerce,
trades, manufactures, and a natural history of the country;
to countenance and inculcate the principles of humanity and
general benevolence, public and private charity, industry

and frugality, honesty and punctuality in their dealings,
sincerity, good humor, and all social affections and generous

ssentiments among the peOple.

IV
MASSACHUSETTS CONSTITUTION OF 1780
Chapter I, Article III, as written by John Adams

III. Good morals being necessary to the preservation
or civil society; and the knowledge and belief of the being
of God, His providential government of the world, and a
future state of rewards and punishments, being the only
true foundation of morality, the legislature hath, therefore,
a right, and ought to provide, at the expense of the subject, 1 4.
if necessary, a suitable support for the public worship of

God, and of the teachers of religion and morals; and to en- I

 

Join.upon all the subjects an attendance upon their instruct" L"
tions at stated times and seasons; provided there be any such
teacher on whose ministry they can conscientiously and con-
veniently attend.
Chapter I, Article II,,as amended by the Convention:

III. As the happiness of a peOple, and the good order
and preservation of a civil government, essentially depend
upOn piety, religion, and morality; and as these cannot be
generally diffused through a community,.but by the in-
stitution of the public worship Of God, and of public in-
struction in piety, religion, and morality, therefore, to
promote their happiness, and to secure the good order and
preservation of their government, the peOple Of this common-
wealth.have a right to invest their legislature with power

to authorizeiand require, and the legislature shall from“

V‘
time to time, authorize and require the several towns,
parishes, precincts, and other bodies politic or religious
societies, to make suitable provision, at their own ex-
pense, for the institution of the public worship of God,
and for the support and maintenance of public Protestant
teachers of piety, religion, and morality, in all cases

where such provision shall not be made voluntarily.

 

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