During the dreariest days of the Revolution, when it was often uncertain whether independence could be maintained, when British armies were occupying much of American territory, when Washington had not the troops or the equipment to beat the enemy back, there was much discussion concerning the ownership of the land beyond the mountains.
For the ownership of the West was not only the source of diplomatic controversy and perplexity; it was also, between the states themselves, a topic for prolonged dispute. There would seem to have been little haste about determining the ownership of the almost uninhabited wilderness; but it is not strange that a nation which in less than a century was to reach out and occupy a continent and push its settlements three thousand miles beyond the Appalachians should, at the beginning of its existence, be confronted with a land problem and find its earlier political organization complicated with disputes about territorial titles.
The parties to this internal controversy were, on one hand, Congress, and on the other hand, the seven states — New York, Massachusetts, Connecticut, Virginia, North Carolina, South Carolina, and Georgia — which laid claim to this western country. The other six states asserted either that Congress already had rightful authority or that Congress should be given it for the public good. The long debates over this subject in Congress and the state legislatures were important because much more was involved than the mere question of ownership; the whole great problem of territorial expansion, of the management and organization of new communities beyond the limits of the old commonwealths, was finding a solution.
Fearing the strength and influence of the states which claimed the vast territory beyond the mountains, Maryland at an early day proposed that Congress should have the right to "fix the western boundary of such states as claim to the Missisippi or south sea; and lay out the land beyond the boundary so ascertained into separate and independent states from time to time as the numbers and circumstances of the people thereof may require." This was a proposition of immense importance, for Maryland refused to agree to the Articles of Confederation so long as other states asserted their claims to the wide region beyond the mountains. Early in 1780, New York expressed a readiness to give up her claims, which at the best were vague; and Congress, the next September, urged all the states to take like action. The next month Congress passed a momentous resolution declaring that the lands ceded or relinquished to the United States by any state should be disposed of for the common benefit of the United States and be settled and formed into distinct republican states which should become "members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states."
Connecticut, desiring to promote the liberty and independence of the "rising Empire," next promised a cession. Then Virginia, whose claim was based not only on her old charter but on the military achievements of George Rogers Clark, expressed a willingness to yield title to all the territory north of the Ohio. Although Virginia's cession was coupled with conditions that were not acceptable to Congress, Maryland, expressing her confidence in the justice of her sister states, finally entered into the Confederation. Her delegates in Congress signed the Articles on March 1, 1781. Though not all the states had as yet declared their readiness to give up their claims in full, such a surrender was sure to come, and the Confederation was to have title to an imperial domain beyond the mountains. Moreover, the principle had won acceptance that the settlers in the west should not be held permanently in colonial subjection to the mother-states of the seaboard, but should from time to time be formed into self-governing commonwealths.
We need not trace in detail the history of the cessions that were formally made after the Articles were signed. Acrimonious discussion did not end with the signing of the Articles, but step by step, the difficulties were cleared away. In 1782, Congress accepted the New York cession of all territory west of a meridian running through the most western bend or inclination of Lake Ontario. Virginia ceded freely all claim to the territory north and west of the Ohio, stipulating substantially in the language of Congress that the territory so ceded should be laid out and formed into "distinct republican states, and admitted members of the federal union, having the same rights of sovereignty, freedom, and independence, as the other states." In April 1785, the delegates in Congress from Massachusetts executed a deed of cession of all claims west of New York, and in 1786, Massachusetts came to an agreement with New York, ceding jurisdiction but retaining ownership in western New York. Connecticut, sore and wrathful over a decision of a court of arbitration in 1782 denying her claim to northern Pennsylvania, adhered to her western claims till 1786, and then gave up all save a strip known as the Western Reserve, running from the western boundary of Pennsylvania westward one hundred and twenty miles along the south shore of Lake Erie, a valuable piece of fertile land containing three million two hundred and fifty thousand acres. In 1800, the jurisdiction over the Western Reserve was surrendered to the United States.
With the exception of the Western Reserve, Congress had, therefore, by 1786, full title to all the land north of the Ohio. South of the Ohio, the seaboard states, basing their claims on their old charters, still asserted ownership westward as far as the Mississippi. But Congress now owned many millions of acres, and this ownership constituted a common interest and a tangible indication of the unity of the nation. It remained for Congress to work out a plan of settlement and to carry out the principles which it had already announced.
Even before the Revolution, there was much interest in the settlement of the West; there was a belief that the country would be rapidly peopled and that much revenue could be derived from the sale of lands. Impressed with the value of the western country, Congress offered bounties in land to those who would enlist in the war, and this, too, before the states consented to give up their claims to the territory beyond the mountains. When the Confederation was completed and the states began to make their deeds of cession, the country north of the Ohio was practically unoccupied by settlers from the older states; but as the war neared its end there was renewed interest in plans for colonization and renewed hope that by one mode or another the western lands could be disposed of for paying the debts of the Confederation and replenishing its empty coffers.
The first plan of any importance for the organization and settlement of the northwest was drawn up by Timothy Pickering and other army officers at Newburg as early as April 1783. The idea was to form a community on the frontier capable of defending itself against the Indians, and to give Congress the opportunity of fulfilling its promises of bounties to the officers and soldiers of the army. The plan seems to have contemplated nothing less than the formation of a state beyond the Ohio, the adoption of a constitution before settlement, the total exclusion of slavery from the limits of the commonwealth, and its immediate admission into the Union; but the petition sent to Congress, judging by Rufus Putnam's draught, spoke of marking out a "tract or teritory sutable to form a distinct goverment (or Coloney of the United States) — in time to be admited, one of the Confedirated States of America." Little is known of the project beyond the general purposes of its framers, who, for some reason, apparently made no great effort to carry out their plans. Soon afterward (June 1783), an ordinance for the organization of the west was introduced into Congress, but nothing was done with it, and though it contained some significant provisions, it is now of interest chiefly because it was the first scheme for western colonization introduced into Congress and because it shows that ideas of importance were taking shape.
More definite action was taken in March 1784, when, by Virginia's cession, Congress held unquestioned title to at least a large portion of the lands north of the Ohio. An ordinance draughted by Jefferson was brought before Congress: the western lands "ceded or to be ceded" were by this plan to be divided into states; besides a strip just west of Pennsylvania, the territory covered was all the land between the meridian running through the western cape of the mouth of the Great Kanawha on the east and the Mississippi on the west, and extending from the thirty-first parallel to the international boundary at the north. A second meridian running through the lowest point of the Falls of the Ohio and several east and west lines were to divide the whole area into sixteen different states; or if the framers intended, as there is some reason for believing, that South Carolina and Georgia should extend westward to the second meridian, into fourteen states.
By this plan the settlers were not immediately to form a state and enter the Union, as the proposers of the earlier plan may have desired; they were, "either on their own petition, or on the order of Congress," to meet together for the purpose of establishing "a temporary government," and when any state had twenty thousand free inhabitants it was to receive from Congress authority to establish a permanent constitution and government. Not until a state should have as many free inhabitants as should be at the time contained in "the least numerous of the thirteen original States" was it to have the right to be admitted into the Union. Thus, we see that by the spring of 1784, there had been brought forward the two essential ideas of the American colonial system: temporary government with a large measure of self-government for the colony, and the ultimate admission of the colony into the Union on terms of equality with the older members.
In Jefferson's plan, as first introduced, it was declared that in all this western country "after the year 1800 of the Christian era there shall be neither slavery nor involuntary servitude . . . otherwise than in punishment of crimes, whereof the party shall have been duly convicted to have been personally guilty." The restriction, it should be noticed, was evidently intended to cover not only the territory north of the Ohio but the territory south as well.
The southern states, however, from whose older portions people were already moving into the interior beyond the mountains, were not ready to dedicate the west to freedom. When the Ordinance was under discussion, a delegate from North Carolina moved to strike out the antislavery clause. Jefferson, in his own delegation, voted for the retention of the provision, but he was overruled by his colleagues. The vote of North Carolina was divided. Virginia, South Carolina, and Maryland voted to strike out the clause, and though six northern states voted for its retention, they were defeated, inasmuch as seven states were needed to establish the law.
Without this important provision, therefore, and also without a list of high-flown names for the states which Jefferson had suggested — Metropotamia, Assenisipia, Polypotamia, Pelisipia, etc. — and with slight changes in the boundaries of the proposed states which apparently reduced their number, the Ordinance was passed April 23, 1784. It never went into effect, but it has its significance as one of the early attempts to organize the West, and perhaps still more because of the effort to exclude slavery.
Some of the northern men were not willing to rest content with the decision of Congress. Pickering called the attention of Rufus King, of Massachusetts, to the omission of the antislavery clause from the Ordinance of 1784. "To suffer," he said, "the continuance of slaves till they can gradually be emancipated, in States already overrun with them, may be pardonable, because unavoidable without hazarding greater evils; but to introduce them into countries where none now exist — countries which have been talked of, which we have boasted of, as asylums to the oppressed of the earth — can never be forgiven."
Prompted by Pickering's letter. King introduced an antislavery resolution in Congress. The resolution was referred to a committee of which King was chairman, which on April 26 reported a resolution declaring that after the year 1800 there should be no slavery in the territory covered by the Ordinance of 1784, but that fugitives from service should not, by escaping into the new states, obtain their freedom. These propositions were not made into law; they peacefully slept on the secretary's docket, like so many hundreds of other resolutions, but they deserve attention because there seems to be an immediate connection between them and the final regulations governing the northwest. A dread of western influence, a fear that the new states of the interior would imperil the interests of the old states on the coast, now arose to complicate the situation and make the task of organization more difficult. Monroe, then serving as a member in Congress, took a trip into the west and became convinced, after a rapid and superficial examination, that large portions of the country were so unattractive and valueless that they would not for ages contain a sufficient number of inhabitants to entitle them to membership in the Confederation. "A great part of the territory," he declared, "is miserably poor, especially that near lakes Michigan and Erie, and that upon the Mississippi and the Illinois consists of extensive plains which have not had from appearances and will not have a single bush on them, for ages." In light of these supposed facts, he advocated reducing the number of new states. And this proposition, or at least the sentiment it represented, had influence in determining the number of commonwealths ultimately formed north of the Ohio.
The subject of the organization of the West came up time and again for consideration in Congress in the two years that followed the adoption of the Ordinance of 1784, but the decision was delayed, though it is apparent that the final ideas were forming. The ultimate step was hastened, and the complete plan of organization was determined on, not because Congress was ready to act on general principles, but because there was a need to satisfy the demands of men who were intent on a scheme for western settlement, and wished their status determined before embarking on a financial enterprise.
The Ohio Company, made up of New England men, was formed in Boston, March 3, 1786. Its directors were General Rufus Putnam, who had served creditably in the Revolution, General Samuel H. Parsons, also a Revolutionary officer, and lastly Manasseh Cutler, a doctor of divinity, who, with a penchant for botany and a love for natural philosophy, had also an aptitude for business and was not above turning an honest penny in a land speculation which bade fair to be remunerative and interesting. This company was organized for purchasing land in the West and promoting settlement. The New-Englanders were already moving into the "northern frozen deserts," Cutler said, and to turn their faces to the new west it was necessary only to tell them of the temperate climate and fertile land of the Ohio country.
In the spring and early summer of 1787 Congress at various times discussed a draught of a new ordinance for the western territory, but, moving with its customary circumspection, it had reached no results, when Dr. Manasseh Cutler appeared in New York, where Congress was sitting, and put up at the hostelry of the "Plow and Harrow" in the Bowery (July 5). Cutler came commissioned to buy land, and the simple proposition to that effect must have sounded sweet in the ears of Congress, even though the purchase was to be made, not in hard cash, but in certificates of public indebtedness. Probably the attractive prospect of disposing of land hastened the action of Congress, for on July 13 was passed the Ordinance of 1787, which, because of its wise provisions and liberal terms, has justly been considered one of the most important documents in our history. It was the consummation of long discussion and much effort, and laid down a series of fundamental principles of great significance in building up the Union west of the mountains. After providing that for the purpose of temporary government, there should be at first but one district northwest of the Ohio, the Ordinance provided for the liberal descent and conveyance of estates. For the temporary government, there were to be a governor, a secretary, and three judges appointed by Congress; the governor and judges were to have authority to adopt and publish such laws of the original states as they thought suited to the needs of the district. As soon as there should be five thousand free male inhabitants of full age, a general assembly might be brought into being, to consist of the governor, a legislative council, and a house of representatives with power to legislate.
Then followed in the Ordinance a series of fundamental declarations similar to the bills of rights that had been framed as part of the constitutions of some of the states, granting freedom of religious worship, assuring the benefits of habeas corpus, trial by jury, proportionate representation, and the conduct of judicial proceedings according to the common law. It declared that no man should be deprived of his liberty or property except by the judgment of his peers or the law of the land; that full compensation should be made for property taken or services demanded by the public; that no law ought ever to be made which would interfere with or affect private contracts that had been previously formed; and, in happily chosen words, that, as religion, morality, and knowledge are necessary to good government and the happiness of mankind, schools and the means of education should forever be encouraged. Not less than three nor more than five states were to be organized within the territory, and when any state had a free population of 60,000, it was to be admitted into the Union on terms of equality with the old states. The most famous, though possibly not the most important clause of the Ordinance, was one excluding slavery: "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." Provision was made, however, for the reclamation and return of any person escaping into the territory from whom labor or service was "lawfully claimed in any one of the original states."
The Ordinance was a great state paper. It is true that, even had it not been framed, slavery could probably not have gained a permanent footing in the northwest. But it prevented the introduction of slavery in the early years when settlers were moving into the region, it assured the development of the northwestern states unembarrassed by the slavery issue, and, not less important than all else, it stated a principle and established a precedent. There was value, too, in proclaiming in simple, straightforward language the fundamental principles of civil liberty and sound maxims concerning education and religion. By the passage of the Ordinance, Congress fulfilled its earlier promise that, if the western lands were ceded, free republican states would be formed. By providing for temporary government and the ultimate admission of the states, it laid the foundations of the American territorial system.