Second Epoch : Territorial Government. — The ordinance of Congress " for the gov ernment of the territory of the United States Northwest of the river Ohio" was passed on the 13th day of July, 1787, and was the fundamental law of the territory. It pro vided for the appointment of a governor and three judges to whom legislative power was delegated until the population of the terri tory should reach five thousand free male white inhabitants of full age, when a general assembly was to be then organized. Dur ing the period, when the legislative power was vested in the governor and judges, there were so many contests between the three legislators that the people became very much dissatisfied, and consequently welcomed the day when they could have a voice in the affairs of the government. The ordinance did not provide whether the Governor had more or equal power with the judges in legislative matters. Gov. St. Clair claimed superior power, which was frequently exer cised by him. Their power, however, was very much restricted, the ordinance provid ing that: "The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original states, criminal and civil, as may be neces sary, and best suited to the circumstances of the district, and report them to Congress from time to time, which laws shall be in force in the district until the organization of the General Assembly therein, unless disap proved of by Congress, but afterwards the Legislature shall have authority to alter them as they think fit." The governor and judges commenced their legislative duties in 1788. It was no easy task under the restric tions placed upon them to enact a consist ent code, one suited to the wants and neces sities of the people. In some instances, original statutes were enacted and published to complete what they deemed to be a pro per system of laws, and these were consid ered as of doubtful character. In subse quent years, when individual rights became
dependent upon them, it was a matter of some delicacy as well as a difficult task for courts, when called upon to place a construc tion upon some of the earliest legislation, and determine its validity. This duty, however, could not have been imposed upon a wiser head than Peter Hitchcock, upon whom a portion of the responsibility was placed. Judge Hitchcock (in Ludlow v. Heirs, 3 Ohio, 555 ) well expressed the difficulties encountered in the formation of a new state, when he said : " To prepare laws which shall meet the exigencies of a people col lected not only from every state in the Union, but also from almost every country in the civilized world, is no easy task. Peo ple coming together in this manner, and forming a new society, will entertain differ ent views of policy according to the pre judices which they may have imbibed in the different countries from whence they emigrated. When to this circumstance is added the consideration of the limited na ture of that power, which was delegated to the first legislative authority in the territory northwest of the river Ohio, it is not sur prising that there should be some apparent inconsistency in their acts. It is much to be regretted that the only evidence we have of the construction given to the early stat utes by the courts, at or about the times these statutes were adopted or passed, is derived from their records and from loose tradition." The first judges appointed under the ordinance of 1787 were John Armstrong, Hon. Samuel Holden Parsons, and James Mitchell Varnum, who constituted the first Supreme Court of the territory. John Arm strong did not accept, and never served as judge, and John Cleves Symmcs was ap pointed in his stead. Inferior to this court were the county court, courts of common pleas, and the general quarter sessions of the peace. Single judges of the common pleas, and single justices of the quarter ses sions were clothed with certain civil and
