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Counties in the Territory.—Their Seats of Justice and Courts.- The General
Court.-Its powers.-Its usurpations as Legislators.-Fatigue and exposure of the Bar.-Extent of their circuit.-A game of Indian foot-ball.-Journey from Cincinnati to Vincennes, in December, 1799.—Gen. George Rogers Clark.-His achievements and victories. His conquests the chief ground of the American claim to the North-western Territory.-Embarrassments of his situation.—His expedients to support his troops.-Ingratitude of the Government.
When the writer of these notes came to Cincinnati, only four counties had been established and organized in the Territory—each of which was sufficiently extensive to form an independent state. They bore the names of Washington, Hamilton, St. Clair, and Knox; in honor of the distinguished revolutionary patriots after whom they were called, and who, in public estimation, stood on the scale of merit, in the order in which they are here named. The seat of justice of the county first mentioned, was established at Marietta—the second at Cincinnati—the third at Kaskaskias—and the fourth at Vincennes, then generally called Au Post.
As the population of the territory increased, new settlements were formed, and the Governor proceeded, from time to time, as the convenience of the inhabitants required, to lay out and organize other counties, under the power delegated by the ordinance; in each of which, Courts of Common Pleas, and General Quarter Sessions of the Peace, vested with civil and criminal jurisdiction, were established. The General Court consisted of three judges, appointed by the President, with the advice and consent of the Senate; each of whom received a salary of eight hundred dollars, from the Treasury of the United States. It was the highest judicial tribunal in the Territory, and was vested with original and appellate jurisdiction in all civil and criminal cases, and of capital cases: and on questions of divorce and alimony, its jurisdiction was exclusive. It was, however, a Common Law Court merely, without Chancery powers, and it was the court of dernier resort.
It had power to revise and reverse the decisions of all other tribunals in the Territory; yet its own proceedings could not be reversed or set aside, even by the Supreme Court of the United States. It was held at Cincinnati, in March; at Marietta, in October; at Detroit, and in the western counties, at such time in each year as the judges saw proper to designate.
In conjunction with the Governor, or, in his absence, the Secretary of the Territory, they were constituted a legislative body, and vested with power to adopt any law in force in either of the original states; and it was made their duty to report all laws so adopted, to the Congress of the United States, for their approbation. If they were approved by that body, they became the laws of the Territory, until repealed by themselves, or by the General Assembly, thereafter to be established.
From some cause or other, those intelligent men, at first, overlooked the restriction imposed on their power, by the ordinance; and proceeded to enact laws at their own discretion—which, of course, could not be approved by Congress. And moreover, after they recognized the restriction, and professed to conform to it, any person who will be at the trouble of collating the laws professedly adopted, with the originals in the statute books from which they were taken, will find that all of them are more or less altered and modified, in substance as well as in form; and many of them so mutilated and changed as to retain but little more than the title and the enacting clause. According to their construction of the compact, the limitation imposed on their discretion was entirely useless.
The propriety of their course was frequently questioned by the bar, and a disposition existed to test its validity. No attempt, however, was made for that purpose, in consequence, probably, of the fact, that Congress had merely withheld their assent, without expressing an actual dissent; and that as the validity of the laws would be decided by the same men who passed them, the hope of a successful result was too weak to justify the undertaking. The consequence was, that all the laws professedly adopted and promulgated by that quasi Legislature, were treated as constitutional by the bar and by the Courts, and were continued in force till they were confirmed, repealed, or amended, and adopted by the Legislature of the Territory.
The Governor, who acted with the Judges, as one of the Legislative Council, in the adoption of those laws, remonstrated against the course pursued at the time; and afterwards, in his first address to the Territorial Legislature, in 1799, called their attention to the subject, and recommended such legislation as might be thought necessary to legalize the proceeding, or remove any doubt that might exist in reference to it. In conformity with that recommendation, the subject was taken up, and the remedy applied.
A reference to the map of the Territory, showing the relative position of the seats of justice of the different counties, as they were at that time, separated from each other by extensive tracts of uninhabited wilderness; stretching from a hundred and fifty to two hundred miles, without roads, bridges, or ferries, would lead to the opinion, that the legal business of each county was done exclusively, by those professional men who resided at its seat of justice. That, however, was not the case. From the year 1796, till the formation of the State Government in 1803, the bar of
Hamilton county occasionally attended the General Court at Marietta, and at Detroit, and during the whole of that time, Mr. St. Clair, Mr. Symmes, and Mr. Burnet, never missed a term in either of those counties.
The journeys of the Court and Bar, to those remote places, through a country in its primitive state, were unavoidably attended with fatigue and exposure. They generally traveled with five or six in company, and with a pack-horse to transport such necessaries as their own horses could not conveniently carry, because no dependence could be placed on obtaining supplies on the route : although they frequently passed through Indian camps and villages, it was not safe to rely on them for assistance. Occasionally, small quantities of corn could be purchased for horse feed, but even that relief was precarious, and not to be relied on.
In consequence of the unimproved condition of the country, the routes followed by travelers were necessarily circuitous, and their progress slow. In passing from one county seat to another, they were generally from six to eight, and sometimes ten, days in the wilderness; and, at all seasons of the year, were compelled to swim every water course in their way, which was too deep to be forded; the country being wholly destitute of bridges and ferries: travelers had therefore to rely on their horses, as the only substitute for those conveniencies. That fact made it common, when purchasing a horse, to ask if he were a good swimmer, which was considered one of the most valuable qualities of a saddlehorse. Strange as this may now appear, it was then a very natural enquiry; and the importance of it may be seen from the following concise narrative.
In the fall of 1801, Mr. Burnet, on his return from the General Court at Marietta, without company, found it necessary in consequence of recent heavy rains, to swim his horse frequently on the route, once at White Oak, which, was unusually high; the bottom on the east side being entirely flooded. When he first approached it, he paused and hesitated, but on discovering that the water was yet rising, he determined to proceed. To keep his papers dry, they were removed from his saddle-bags to his cloak, which was rolled up and tied behind him. The opposite bank was a bluff, through which a pathway had been dug to the water's edge for the safety and convenience of travelers.
After wading through the bottom to the margin of the creek he stopped and calculated the velocity of the current as well as he could, by the movement of the drift wood, for the purpose of deciding how far he should enter above the path, to strike the opposite landing; this done, he put in, with his horse's head bearing up stream, but the animal chose to steer for himself, and seeing the landing place on the opposite side, made directly for it. Being a fine swimmer, he struck it at the lower point, so as to enable his rider to seize a bush in the edge of the water by which he aided the animal in extricating both himself and rider from the most imminent danger. About two miles further on, he swam another small run, which was swollen to an unusual height. A few miles still further, brought him to the east fork of the Miami, opposite Williamsburg, which he also swam, rather than wait for a canoe to be sent over. On the next day he had to swim the same stream near where the town of Batavia now stands, and afterwards, the Little Miami, at Turpin's Bottom. This adventure furnishes the reason why dexterity in swimming was so highly prized in a saddle horse in those primitive times.
Exposures of a similar nature were frequent. In the preceding fall, Judge Symmes, in company with five or six of the Cincinnati Bar, set out from that place for Marietta, to attend the General Court. They traveled the route by Chillicothe and the Scioto saltworks, crossing the Hocking river near the place where the town of Athens now stands. At that place they found a cabin, and were informed by the