FOOTNOTES:
[138] The draft then read: "No purchases of lands hereafter to be made of the Indians, by Congress or private persons, before the limits of the Colonies are ascertained, to be valid." The purpose was to prevent Virginia and other large States from selling their western lands for their private profit. This was part of the "Small-State" plan, and was not adopted.
[139] The plan then was that the colonies should contribute money in proportion to their white population. This was afterward amended. See Articles.
[140] Mr. Chase's amendment (to count slaves in apportioning representatives in Congress) was lost. Seven States, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, and Pennsylvania voted against it. Delaware, Maryland, Virginia, North and South Carolina voted for it. Georgia was divided.
[141] A suggestion almost of a two-house Congress, similar to the "Connecticut Compromise" adopted for our present Constitution.
[142] Did Adams then think that, before the new Articles should have been accepted, the states were constitutionally one nation or thirteen? Cf. American History and Government, § 187 and notes.
[143] Summarize briefly the enumeration of powers in this Article.
[XXV. THE NATIONAL DOMAIN]
148. Desire for Statehood; Self-confidence of the West
Early in 1784, North Carolina ceded her western territory (afterward Tennessee) to Congress, giving that body two years in which to accept. The Westerners, already bitterly dissatisfied, now complained loudly that the mother State had cast them off; they would not wait two years, in anarchy, for possible action by the dilatory Congress; they would take their fate at once into their own hands. Accordingly, the three counties of eastern Tennessee (the outgrowth of the Watauga settlement, numbering now some 10,000 souls) established themselves for a time as the State of Frankland ("Land of the Freemen").
The militia had been organized by territorial units, each "company" from one group of hamlets, or "stations." Each "company" now chose delegates to a central convention. This "preliminary" convention recommended the people to choose another "constitutional convention,"[144] with full powers to set up a government. August 23, 1784, this second convention, composed of forty delegates with John Sevier as president, resolved on immediate statehood, and put forth an interesting address to justify that action. The following passage from that address illustrates the wild hopes of the West as to immediate development. (Cf. also American History and Government, §§ 173-175.)
"If we should be so happy as to have a separate government, vast numbers from different quarters, with a little encouragement from the public, would fill up our frontier; which would strengthen us, improve agriculture, perfect manufactures, encourage literature and everything truly laudable. The seat of government being among ourselves would evidently tend, not only to keep a circulating medium in gold and silver among us,[145] but would draw it from many individuals living in other States, who claim large quantities of land that would lie within the bounds of the new State."
[A constitution was adopted by yet a third convention, and government instituted under it. North Carolina, however, repealed her cession before Congress had accepted it, and reasserted her authority over "Frankland," not without long and bitter conflict.]
149. Organization by Congress
a. A Plan for a Temporary Government of the Western Territory. April 23, 1784
Journals of Congress (1801 edition), IX, 109-110.
This act is usually known as Jefferson's Territorial Ordinance of 1784. For history, cf. American History and Government, § 181. It is given here mainly for comparison with the Ordinance of 1787 (No. 149b), and, by most students, it can be read to best advantage after a study of that document.
"Resolved that so much of the territory ceded or to be ceded by individual states to the United States [the rest of this paragraph provides for division into two tiers of states, bounded by alternate parallels of latitude, with some rather obscure provisions for fragmentary pieces of territory on the north and east, cf. American History and Government, § 181.]
"That the settlers on any territory so purchased, and offered for sale, shall, either on their own petition or order of Congress, receive authority from them, with appointments of time and place, for their free males of full age within the limits of their state to meet together, for the purpose of establishing a temporary government, to adopt the constitution and laws of any one of the original states; so that such laws nevertheless shall be subject to alteration by their ordinary legislature; and to erect, subject to a like alteration, counties, townships, or other divisions, for the election of members for their legislature.
"That when any such state shall have acquired 20,000 free inhabitants, on giving due proof thereof to Congress, they shall receive from them authority, with appointments of time and place, to call a convention of representatives to establish a permanent constitution and government for themselves. Provided that both the temporary and permanent governments be established on these principles as their basis:
"1st. That they shall for ever remain a part of this confederacy of the United States of America.
"2d. That they shall be subject to the articles of confederation in all those cases in which the original states shall be so subject, and to all the acts and ordinances of the United States in Congress assembled, conformable thereto.
"3d. That they in no case shall interfere with the primary disposal of the soil by the United States in Congress assembled, nor with the ordinances and regulations which Congress may find necessary, for securing the title in such soil to the bona fide purchasers.
"4th. That they shall be subject to pay a part of the federal debts contracted or to be contracted, to be apportioned on them by Congress, according to the same common rule and measure by which apportionments thereof shall be made on the other states.
"5th. That no tax shall be imposed on lands, the property of the United States.
"6th. That their respective governments shall be republican.
"7th. That the lands of non-resident proprietors shall, in no case, be taxed higher than those of residents within any new state, before the admission thereof to a vote by its delegates in Congress.
"That whensoever any of the said states shall have, of free inhabitants, as many as shall then be in any one the least numerous of the thirteen original states, such state shall be admitted by its delegates into the Congress of the United States, on an equal footing with the said original states; provided the consent of so many states in Congress is first obtained as may at the time be competent to such admission. (And in order to adapt the said articles of confederation to the state of Congress when its numbers shall be thus increased, it shall be proposed to the legislatures of the states, originally parties thereto, to require the assent of two-thirds of the United States in Congress assembled, in all those cases wherein by the said articles, the assent of nine states is now required, which being agreed to by them, shall be binding on the new states.) Until such admission by their delegates into Congress, any of the said states after the establishment of their temporary government shall have authority to keep a member in Congress, with a right of debating, but not of voting.
"That measures not inconsistent with the principles of the confederation, and necessary for the preservation of peace and good order among the settlers in any of the said new States, until they shall assume a temporary government as aforesaid, may from time to time, be taken by the United States in Congress assembled.[146]
"That the preceding articles shall be formed into a charter of compact ... [provision for promulgation] and shall stand as fundamental constitutions between the thirteen original States and each of the several States now newly described, unalterable ... but by the joint consent of the United States in Congress assembled and of the particular State within which such alteration is proposed to be made."
b. The Northwest Ordinance (July 13, 1787)
Journals of Congress (1801 edition), XII, 58 ff.
For history of this document, cf. American History and Government, § 182. The documents relating to the acquisition of a "Public Domain" are quoted so extensively in that work that they are omitted in this collection. Cf., however, No. 146 above for discussions in Congress.
An Ordinance for the government of the territory of the United States Northwest of the River Ohio
Be it ordained by the United States in Congress Assembled that the said territory for the purposes of temporary government be one district, subject however to be divided into two districts as future circumstances may in the opinion of Congress make it expedient.
Be it ordained by the authority aforesaid, that the estates both of resident and non resident proprietors in the said territory dying intestate shall descend to and be distributed among their children and the descendants of a deceased child in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and where there shall be no children or descendants then in equal parts to the next of kin in equal degree; and among collaterals the children of a deceased brother or sister of the intestate shall have in equal parts among them their deceased parent's share and there shall in no case be a distinction between kindred of the whole and half blood; saving in all cases to the widow of the intestate her third part of the real estate for life, and one third part of the personal estate: and this law relative to descents and dower shall remain in full force until altered by the legislature of the district. And until the governor and judges shall adopt laws as herein after mentioned, estates in the said territory may be devised or bequeathed by wills in writing signed and sealed by him or her in whom the estate may be, being of full age, and attested by three witnesses, and real estates may be conveyed by lease and release or bargain and sale, signed, sealed and delivered by the person being of full age in whom the estate may be, and attested by two witnesses, provided such wills be duly proved and such conveyances be acknowledged or the execution there of duly proved, and be recorded within one year after proper magistrates, courts and registers shall be appointed for that purpose; and personal property may be transferred by delivery saving however to the French and Canadian inhabitants and other settlers of the Kaskaskies, Saint Vincents and the neighbouring villages, who have hereto fore professed themselves citizens of Virginia, their laws and customs now in force among them, relative to the descent and conveyance of property.
Be it ordained by the authority aforesaid, that there shall be appointed, from time to time, by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress; he shall reside in the district, and have a freehold estate therein in 1000 acres of land, while in the exercise of his office.
There shall be appointed, from time to time, by Congress, a secretary, whose commission shall continue in force for four years unless sooner revoked; he shall reside in the district, and have a freehold estate therein in 500 acres of land, while in the exercise of his office; it shall be his duty to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his Executive department; and transmit authentic copies of such acts and proceedings, every six months, to the Secretary of Congress: There shall also be appointed a court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in 500 acres of land while in the exercise of their offices; and their commissions shall continue in force during good behavior.
The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the district, 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 disapproved of by Congress; but, afterwards, the legislature shall have authority to alter them as they shall think fit.
The governor, for the time being, shall be commander-in-chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress.
Previous to the organization of the General Assembly, the governor shall appoint such magistrates and other civil officers, in each county or township, as he shall find necessary for the preservation of the peace and good order in the same. After the General Assembly shall be organized, the powers and duties of the magistrates and other civil officers shall be regulated and defined by the said Assembly; but all ... civil officers not herein otherwise directed shall during the continuance of this temporary government be appointed by the governor.
For the prevention of crimes and injuries the laws to be adopted or made shall have force in all parts of the district; and for the execution of process criminal and civil, the governor shall make proper divisions thereof, and he shall proceed from time to time as circumstances may require to lay out the parts of the District in which the Indian titles shall have been extinguished into counties and townships subject however to such alterations as may thereafter be made by the legislature.
So soon as there shall be five thousand free male inhabitants of full age in the district, upon giving proof thereof to the governor, they shall receive authority with time and place to elect representatives from their counties or townships to represent them in the general Assembly, provided that for every five hundred free male inhabitants there shall be one representative; and so on progressively with the number of free male inhabitants shall the right of representation encrease until the number of representatives shall amount to twenty five, after which the number and proportion of representatives shall be regulated by the legislature; provided that no person be eligible or qualified to act as a representative unless he shall have been a citizen of one of the United States three years and be a resident in the district or unless he shall have resided in the district three years, and in either case shall likewise hold in his own right in fee simple two hundred acres of land within the same; provided also that a freehold in fifty acres of land in the district having been a citizen of one of the states and being resident in the district, or the like freehold and two years residence in the district shall be necessary to qualify a man as an elector of a representative.
The representatives thus elected shall serve for the term of two years, and in case of the death of a representative or removal from office, the governor shall issue a writ to the county or township for which he was a member, to elect another in his stead to serve for the residue of the term.
The general Assembly or legislature shall consist of the governor, legislative council and a house of representatives. The legislative council shall consist of five members to continue in Office five years unless sooner removed by Congress, any three of whom to be a quorum and the members of the council shall be nominated and appointed in the following manner, to wit: As soon as representatives shall be elected, the governor shall appoint a time and place for them to meet together; and, when met, they shall nominate ten persons, residents in the district, and each possessed of a freehold in 500 acres of land, and return their names to Congress; five of whom Congress shall appoint and commission to serve as aforesaid; and, whenever a vacancy shall happen in the council, by death or removal from office, the house of representatives shall nominate two persons, qualified as aforesaid, for each vacancy, and return their names to Congress; one of whom Congress shall appoint and commission for the residue of the term. And every five years, four months at least before the expiration of the time of service of the members of council, the said house shall nominate ten persons, qualified as aforesaid, and return their names to Congress; five of whom Congress shall appoint and commission to serve as members of the council five years, unless sooner removed. And the governor, legislative council, and house of representatives, shall have authority to make laws in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance established and declared. And all bills, having passed by a majority in the house, and by a majority in the council, shall be referred to the governor for his assent; but no bill, or legislative act whatever, shall be of any force without his assent. The governor shall have power to convene, prorogue, and dissolve the General Assembly, when, in his opinion, it shall be expedient.
The governor, judges, legislative council, secretary, and such other officers as Congress shall appoint in the district, shall take an oath or affirmation of fidelity and of office; the governor before the President of Congress, and all other officers before the governor. As soon as a legislature shall be formed in the district, the council and house assembled in one room, shall have authority, by joint ballot, to elect a delegate to Congress, who shall have a seat in Congress, with a right of debating but not of voting during this temporary government.
And, for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory: to provide also for the establishment of States, and permanent Government therein, and for their admission to a Share in the federal Councils on an equal footing with the original States, at as early periods as maybe consistent with the general interest—
It is hereby Ordained and declared by the authority aforesaid, That the following Articles shall be considered as Articles of compact between the Original States and the People and States in the said territory, and forever remain unalterable, unless by common consent, to wit,
Article the First. No Person demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments in the said territory—
Article the Second. The Inhabitants of the said territory shall always be entitled to the benefits of the writ of Habeas Corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law; all Persons shall be bailable unless for capital offences, where the proof shall be evident, or the presumption great; all fines shall be moderate, and no cruel or unusual punishments shall be inflicted; no man shall be deprived of his liberty or property but by the judgment of his Peers, or the law of the land; and should the Public exigencies make it necessary for the common preservation to take any person's property, or to demand his particular Services, full compensation shall be made for the same,—and in the just preservation of rights and property it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall in any manner whatever interfere with or affect private Contracts or engagements, bona fide and without fraud previously formed.
Article the Third. Religion, Morality and knowledge being necessary to good Government and the happiness of mankind, Schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them—
Article the Fourth. The said Territory, and the States which may be formed therein, shall forever remain a part of this Confederacy ... subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in the said territory shall be subject to pay a part of the federal debts contracted or to be contracted, and a proportional part of the expenses of government, to be apportioned on them by Congress according to the same common rule and measure by which apportionments thereof shall be made on the other States; and the taxes, for paying their proportion, shall be laid and levied by the authority and direction of the legislatures of the district or districts, or new States, as in the original States within the time agreed upon by the United States in Congress assembled. The legislatures of those districts or new States shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers. No tax shall be imposed on lands the property of the United States; and, in no case, shall non-resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, impost, or duty, therefor.
Article the Fifth. There shall be formed in the said territory, not less than three nor more than five States; and the boundaries of the States, as soon as Virginia shall alter her act of cession, and consent to the same, shall become fixed and established as follows, to wit: The Western State in the said territory, shall be bounded by the Mississippi, the Ohio, and Wabash rivers; a direct line drawn from the Wabash and Post St. Vincent's, due North, to the territorial line between the United States and Canada; and, by the said territorial line, to the Lake of the Woods and Mississippi. The middle State shall be bounded by the said direct line, the Wabash from Post Vincent's, to the Ohio; by the Ohio, by a direct line, drawn due North from the mouth of the Great Miami, to the said territorial line, and by the said territorial line. The Eastern State shall be bounded by the last mentioned direct line, the Ohio, Pennsylvania, and the said territorial line: Provided however, and it is further understood and declared, that the boundaries of these three States shall be subject so far to be altered, that, if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of the said territory which lies North of an East and West line drawn through the Southerly bend or extreme of lake Michigan. And, whenever any of the said States shall have 60,000 free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States in all respects whatever, and shall be at liberty to form a permanent constitution and State government: Provided, the constitution and government, so to be formed, shall be republican, and in conformity to the principles contained in these articles; and, so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants in the State than 60,000.
Article the Sixth. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.
Be it ordained by the authority aforesaid, That the resolutions of the 23d of April, 1784, relative to the subject of this ordinance, be, and the same are hereby, repealed and declared null and void.[147]
Done by the United States, in Congress assembled, the 13th day of July, in the year of our Lord 1787, and of their sovereignty and independence the twelfth.
[The great Sixth Article has rendered this Ordinance immortal. This anti-slavery provision, however, has been spoken of sometimes in terms more rhetorical than exact. Senator Hoar, in a centennial memorial oration at Marietta, in 1888, said: "Here was the first human government under which absolute civil and religious liberty has always prevailed. ... Here no slave was ever born, or dwelt." The student may compare American History and Government, § 333, close. But Daniel Webster was the historian rather than merely the orator when he said: "I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked, and lasting character, than the Ordinance of 1787."
August 7, 1789, the First Congress under the Constitution passed a Confirmatory Act, reenacting the Northwest Ordinance, with the provision that the appointments therein referred to Congress should be made by the President, subject to confirmation by the Senate.]