At the time when Englishmen made this important movement, Spain and France had already laid claim to extensive tracts of country lying upon the great rivers debouching into the Gulf of Mexico in a southern latitude, and into the Gulf of Saint Lawrence in a northern latitude, which ultimately became possessions of the United States, either by purchase or treaty, after our war of independence. Between these two indefinite boundaries the English colonies were located. Wherever the Englishman went he carried his loyalty to his King and his country's laws. His presence on the soil of Virginia made it English soil, conveying to it the sovereignty of England, and the King's right to confirm to him whatever he had already taken, provided both of them together could hold it against the native occupants. [2]The grants from James and Charles I were described in terms more imaginative than accurate, the "South Sea," or Pacific Ocean, being the western limit of some of the earliest charters. But when the thirteen commonwealths on the Atlantic Coast asserted their right and ability to govern themselves, proving it by the arbitrament of the sword, and securing a treaty of peace with the mother country, such discoveries had been made, and so many remained to be made, that it was thought expedient to adopt the apparently natural boundaries of the United States, namely, the Saint Lawrence and Great Lakes on the north, the Mississippi on the west, the Spanish possessions in Florida on the south, and the Atlantic Ocean on the east.
In 1779, three years after the declaration of independence, and four years before the treaty of peace, the American Congress recommended to the several states in the union to make liberal cessions of their respective claims for the common benefit of the union, including the state making the cession. Thus early did our government assert the principle that the lands not held by occupancy belonged to the people for their use. The people on their side were quite willing to assist the union, burdened as it was with the debt of the revolutionary war, and other claims. But the unsettled boundaries of the several states made it a matter of some difficulty to convey land to the government in definite measure, some of the older grants, like Massachusetts and Connecticut, extending "from sea to sea." Disputes had arisen between the colonies over their boundaries, as when the Dutch had established New Netherlands on the Hudson River, cutting in two the grant of Connecticut. It was not until 1733 that the boundary of New York (formerly New Netherlands), was settled, and Connecticut still claimed the lands west of New York. From Maine to Georgia there were boundaries to be settled.
New York was the first to respond to the suggestion of congress, in 1781, by ceding all her title to lands west of a line drawn north and south twenty miles west of Niagara River, without conditions. Virginia followed, and on March 1, 1784, conveyed her territory west of the Ohio River to the United States. Massachusetts, in 1785, also renounced her claim, unconditionally, to any lands west of the Hudson River. Connecticut, in 1786, ceded to the United States all the lands claimed by her west of a north and south line drawn one hundred and twenty-five miles west of the western boundary of Pennsylvania.
Virginia's first charter having been withdrawn, the second, dated in 1609, gave this colony all the territory for two hundred miles north and south of Point Comfort, on the Atlantic Coast, and westward to the "South Sea," or Pacific Ocean, with all islands lying within one hundred miles of either coast. The extension westward only to the Mississippi of the northern line of Virginia, by the Treaty of Peace, left nearly half of that state on the northwest side of the Ohio River. This territory Virginia, in 1783, offered to cede to the United States, upon condition that it should be divided into states of not less than one hundred nor more than one hundred and fifty miles square, "or as near thereto as circumstances will admit, and that the states so formed shall be distinct republican states, and admitted members of the federal union, having the same rights of sovereignty, freedom, and independence as the other states."[3] The expenses incurred by Virginia "in subduing British posts, or in maintaining forts and garrisons within or for the defense, or in acquiring any part of the territory so ceded or relinquished" should be fully reimbursed by the United States. The French and Canadian inhabitants, and other settlers who had professed themselves to be citizens of Virginia, were to have their possessions confirmed to them, and be protected in the enjoyment of their rights and liberties. A quantity of land, not exceeding one hundred and fifty thousand acres, was required to be granted "to General George Rogers Clarke and the officers and soldiers of his regiment, who marched with him when the post of Kaskaskia and Saint Vincent were reduced, and to the officers and soldiers that have been since incorporated into the said regiment," to be laid off in one tract in such shape as the officers should choose. Also, in case the land reserved by law on the southeast side of the Ohio River for the bounties of the Virginia troops should prove insufficient or of poor quality, then the deficiency should be made up from the lands on the northwest side of that river. All the land within the ceded territory, not reserved or appropriated to the purposes named, was to be a common fund for the use and benefit of such of the United States as had become, or should become, members of the confederation, "according to their respective proportions, in the general charge and expenditure."
In July, 1786, congress recommended to Virginia to revise her act of cession so far as to empower the United States to divide the territory northwest of the Ohio River into not more than five nor less than three states, as the situation of that country and the circumstances might require, which states were to become in the future members of the federal union.
In September of the same year, Connecticut ceded to the union the lands she still claimed west of the State of New York, known as the Western Reserve, extending one hundred and twenty miles west of the western boundary of Pennsylvania. In accepting the gift congress required a deed relinquishing the jurisdictional claim of Connecticut to the Western Reserve to be deposited with the deed of cession in the office of the Department of State of the United States; and provided that nothing contained in the deed of cession should involve the government in the dispute between Pennsylvania and Connecticut which had been settled in the federal court. Neither should anything contained in the deed pledge the United States to extinguish the Indian title to the ceded lands. All of this being agreed to, the Western Reserve was added to the Northwest Territory. On the other hand the "military tract" was reserved, and even added to, but did not become United States donation lands. They were considered as Virginia's bounty to the men who had defended and preserved the country. The jurisdiction, however, was in the general government.
In 1787 South Carolina ceded unconditionally such land as she laid claim to between the mountain range by which her territory was traversed, and the Mississippi River. In 1790 North Carolina made her cession similarly, except that neither the lands nor the inhabitants west of the mountains should be "estimated" for the expenses of the Revolutionary War; that soldiers should receive the bounty lands promised them; that certain entries already made might be changed; that the ceded territory should be formed into a state or states, with all the privileges set forth in the ordinance of the late congress for the government of the Western Territory of the United States; provided, always, that no regulations made, or to be made, by congress should tend to emancipate slaves. The inhabitants of the ceded territory were to be liable to pay their proportion of the United States debt, and the arrears of the debt of North Carolina to the Union. The laws of this state should be in force in the territory until repealed or altered, and nonresident proprietors should not be taxed higher than residents.[4]
For various reasons Georgia was not ready to renounce any territory claimed by her before 1798, and the deed of cession was not made until 1802. Georgia, like North Carolina, desired to have the state formed from her territory enjoy the privileges granted to the Northwest Territory by the ordinance of 1787. Out of the lands relinquished to the general government by the states south of the Ohio, and the territory subsequently acquired by treaty and purchase from France and Spain, were formed, in the early part of the nineteenth century, the several territories afterwards admitted as states with the rights and privileges guaranteed in the compact between the United States and the people of the Northwest Territory.
Hitherto I have sketched the political history of the lands of the United States with the object only of pointing out the change that had occurred in men's ideas of natural rights in the soil. They had also progressed greatly in their understanding of political rights. The struggle of the American colonies to achieve independence had served as an object lesson of immense importance even to the colonies themselves, and they were prepared to guard their new-found freedom with a jealous care. Next to the Declaration of Independence in justice and dignity stands the compact entered into between the people and congress in giving and accepting the territory first ceded by the original states to the United States, and known as the Ordinance of Seventeen Eighty-Seven. By this ordinance the people of the Northwest Territory were assured that no person demeaning himself in a peaceable and orderly manner, should ever be molested on account of his mode of worship, or religious sentiments. The people should always be entitled to the benefits of the writ of habeas corpus, and trial by jury; of proportionate representation in the legislature, and of judicial proceedings according to the course of common law. All persons should be bailable, except for capital offenses, the proof of which was evident, or the presumption great. All fines should be moderate, and no cruel or unusual punishments inflicted. No man should be deprived of his liberty but by the judgment of his peers, or the law of the land. No man's property should be taken for the public service without full compensation. Religion, morality and knowledge, being necessary to good government, and the public happiness, schools and the means of education should be forever encouraged. The utmost good faith should always be observed towards the Indians. Their lands and property should never be taken away from them without their consent, nor their rights and liberty invaded except in lawful war, but laws for their protection should be enacted. There should be neither slavery nor involuntary servitude in the territory, otherwise than for the punishment of crimes whereof the person should have been duly convicted.[5]