History of the land question in the United States

VII-VIII-IX

HISTORY OF THE LAND QUESTION IN THE
UNITED STATES

" Latifundia perdidere Italiam et provincias."— PLINY.

"The agrarian history of antiquity shows us that all ancient lawgivers en-
deavored to secure to every one a certain inheritance, and to make every family
participate in the benefits of landed property. Everywhere, however, the pro-
prietors were too independent, and succeeded in centralizing and monopolizing
the possession of the soil, and thus the ancient world was ruined."— Bruno Hilde-
brand.

" The allodial tenure, which is believed to have been originally the tenure of
freemeu, became in the Middle Ages the tenure of serfs. The feudal tenure,
which was certainly at first the tenure of servants who, but for the dignity of
their master, might have been called slaves, became in the Middle Ages the
tenure of noblemen. It was by an exception, and a remarkable one, that in our
country the land law of the nobles became the land law of the people."— Sir
Henry Maine.

"The public lands are a fund for the use of all the people of the United States ;
and while I wish that this fund should be administered in a spirit of the utmost
kindness to the actual settlers and the people of the new States, I shall consent
to no trifling with it, no wasting of it, no cession of it ; no diversion of it in any
manner from that general public use for which it was created."— Daniel Webster.

" The homestead act is now the approved and preferred method of acquiring
title to the public lands. It protects the Government, it fills the States with
homes, it builds up communities, and lessens the chances of social and civil
disorder by giving ownership of the soil, in small tracts, to the occupants thereof.
It was originally and distinctly American, and remains a monument to its orig-
inators."— Public Land Commission.

JOHNS HOPKINS UNIVERSITY STUDIES

IN

HISTORICAL AND POLITICAL SCIENCE

HERBERT B. ADAMS, Editor

History is past Politics and Politics present History.— Freeman

FOUKTH SEEIES

VII-VIII-IX

HISTORY OF THE LAND QUESTION IN THE
UNITED STATES

BY SHOSUKE SATO, PH. D.

Special Commissioner of the Colonial Department of Japan and Fellow by Courtesy, 1884-6,
Johns Hopkins University

BALTIMORE

N. MURRAY, PUBLICATION AGENT, JOHNS HOPKINS UNIVERSITY

July, August, September, 1886

1

COPYRIGHT, 1886, BY X. MURRAY.

ISAAC FRIEDENWALD, PRINTER,
BALTIMORE.

PREFACE.

This work was undertaken in pursuance of special instructions
from the Japanese Government to investigate certain questions of
agrarian and economic interest in the United States. In presenting
one part of my work to the public, I desire to express my special
gratitude to Dr. H. B. Adams, of the Johns Hopkins University,
to whose constant encouragement and kind guidance I greatly owe
the completion of the present monograph.

Since the author began to write this paper in the autumn of 1884,
• the Land Question has steadily advanced to a foremost place among
the reform measures of the national administration. Especially
within the past year has it attracted marked attention. Politicians
and the public press are both interested in the land question. For
several years the Labor press has been agitating it.* The North
American Review took up the subject of Landholding in the United
States, in a series of articles beginning in January, 1886. The -New
York Herald recentl}' attacked many current abuses in land entries,
and informed the American public of the methods by which unscru-
pulous land-grabbers steal the public lands. Works of high merit on
the subject of the land question have been published. The Report
of Commissioner Sparks for 1885 is most valuable. The Commis-
sioner treats the land question with an ardent spirit of reform. He
is fully aware of the importance of his subject. Mr. Phillips, in his
"Labor, Land, and Law " (Scribners, 1886), is also a valuable con-
tributor to the literature of the land question. That even the
common people in America are now conscious of the grave abuses
in the agrarian administration of the United States and demand a

* It is a highly significant fact that the Homestead laws and recent agitation
of the Land Question are the outgrowth of the American labor movement, be-
ginning about the year 1825 with the formation of the Workingmen's Party. The
cbief agrarian demands of that party subsequently became laws of the land.
The agrarian problems of the American people have historical parallels not only
in the agrarian history of republican Rome, but in the economic history of Ger-
many, England, and Ireland. The land question in Germany, left unsettled by
the Reformation and the Peasant Wars, found its final solution in the reforms of
Baron vom Stein and his successors. In England the land question is still un-
solved, notwithstanding the Irish Land Acts, which are the most radical agrarian
laws of modern times.— ED.

ii Preface.

reform, is shown by the action recently taken by the Knights of
Labor in their convention at Cleveland, Ohio. In their platform
the Knights adopted resolutions touching land reform, and, as a sign
of the times, 1 here insert the text :

" (1) We demand that the public lands be reserved for actual
settlers only. (2) We demand that all lands owned l>y individuals
or corporations in- excess of 160 acres not under cultivation shall be
taxed to their full value, the same as cultivated lands. (3) We de-
mand the immediate forfeiture of all lands where the conditions of
the grants have not been complied with. (4) We demand that
patents be at once issued for all lands where the conditions have
been complied with, and that taxes be assessed on these lands as if
under cultivation. (5) We demand the immediate removal of all
fences from the public lands. (^) We demand that after 1890 the
Government obtain possession by purchase of all lauds now held by
aliens at appraised valuations. (7) We demand that after 1886
aliens be prohibited from obtaining land titles."

These demands seem to me neither extreme nor radical. On the
contrary, they are simply an echo of popular sentiment. Some of
the demands by the Knights were already under the consideration
of Congress. The Senate passed bills on the 1st and 3d of June,
1886, providing for the restriction of alien ownership of land and
taxing railroad land grants. On the 2d of June the Secretary of the
Interior ordered the suspension of entries under "pre-emption,
timber culture and desert land " till the 1st of August, 1886. This
order was in view of the consideration in Congress of the removal
of these useless and much abused land laws from the statutes of the
United States. "The question of land reform like the world does
move," says a Herald correspondent. It will "move" until the
Homestead Act becomes the only settlement law of the country,
and the public lands are restored to the Government for the use of
actual settlers.

BALTIMORE, MD., June H, 1886.

CONTENTS.

INTRODUCTION. PAGE.

1. ORIGIN AND IMPORTANCE OF THE PUBLIC DOMAIN 5

2. FUTURE OF THE PUBLIC DOMAIN 7

•3. PUBLIC-LAND POLICY OF THE UNITED STATES 9

4. AGRARIAN LAWS OF ROME AND THE UNITED STATES 10

5. GERMAN, ENGLISH, AND AMERICAN FOLK LAND 12

6. FEUDAL LAND LAWS OF ENGLAND 14

7. LAND TENURE IN COLONIAL TIMES 15

8. LAND TENURE AFTER THE REVOLUTION 17

9. RELATIONS OF THE PUBLIC DOMAIN TO NATIONAL LIFE 19

I. FORMATION OF THE PUBLIC DOMAIN.

a. CESSIONS BY THE STATES.

1. CLAIMANTS TO THE "CROWN LANDS" 22

2. WESTERN TERRITORY BEFORE THE REVOLUTION 24

3. REVOLUTION AND THE LAND CONTROVERSY 25

4. CONSTITUTION OF VIRGINIA AND PROTEST OF MARYLAND 26

5. RESOLUTION OF CONGRESS AND MARYLAND'S OPPOSITION 27

6. GROUND OF MARYLAND'S OPPOSITION TO VIRGINIA 29

7. VIRGINIA AND HER DISPOSITION OF WESTERN LANDS. 31

8. SETTLEMENT OF THE LAND CONTROVERSY 33

9. CESSIONS OF THE SOUTHEASTERN TERRITORY 38

b. THE PURCHASE OF LOUISIANA.

1. HISTORY OF SETTLEMENT IN LOUISIANA 42

2. PECULIARITIES IN THE INSTITUTIONS OF LOUISIANA 43

3. AMERICAN DIPLOMACY IN THE PURCHASE OF LOUISIANA , 45

4. UNCONSTITUTIONALLY OF THE LOUISIANA PURCHASE 50

5. SPANISH PROTEST AGAINST THE CESSION OF LOUISIANA 51

c. PURCHASE OF THE FLORIDAS.

1. GROUNDS OF AMERICAN AND SPANISH DISPUTES 54

2. SITUATION OF SPANISH COLONIES AFTER THE LOUISIANA PUR-

CHASE 55

3. FORMAL NEGOTIATIONS FOR FLORIDA... 58

iv Contents.

d. TEXAS ANNEXATION AND TEXAS CESSION.

1. TEXAS AFTER THE MEXICAN INDEPENDENCE 61

2. FINAL ANNEXATION OF TEXAS 63

3. FINANCIAL CONDITION OF TEXAS 65

e. THE MEXICAN CESSIONS.

1. POLICY OF THE POLK ADMINISTRATION 67

2. GADSDEN PURCHASE 69

/. THE PURCHASE OF ALASKA.

1. HISTORY OF THE DISCOVERY OF ALASKA 70

2. NEGOTIATIONS FOR THE PURCHASE OF ALASKA 72

3. SUMNER ON THE PURCHASE OF ALASKA 74

4. CONCLUDING REMARKS ON THE PUBLIC DOMAIN 75

II. ADMINISTRATION OF THE PUBLIC DOMAIN.

a. ORDINANCE OF 1787.

1. PROVISIONS OF JEFFERSON'S ORDINANCES 80

2. WASHINGTON ON TERRITORIAL GOVERNMENT 86

3. PRELIMINARY STEPS TOWARD THE ORDINANCE OF 1787 88

4. PROVISION OF THE ORDINANCE OF 1787 93

5. EULOGIES ON THE ORDINANCE OF 1787 98

6. CONSTITUTIONALITY OF THE ORDINANCE 102

7. AUTHORSHIP OF THE ORDINANCE 104

8. OPERATION OF THE ORDINANCE 117

b. GENERAL LAND OFFICE.

1. HAMILTON'S PLAN FOR A LAND OFFICE 121

2. ESTABLISHMENT OF THE GENERAL LAND OFFICE 123

3. RESPONSIBILITIES OF THE COMMISSIONER 124

III. LAND SYSTEM OF THE UNITED STATES.

1. EFFECT OF TERRITORIAL GROWTH 128

2. CHANGES IN PUBLIC SENTIMENT 129

3. MILITARY BOUNTIES 131

4. GENESIS OF THE LAND SYSTEM ..". 133

5. RECTANGULAR SYSTEM OF SURVEY 134

6. METHOD OF SALE 135

7. EARLY ATTEMPTS AT SETTLEMENT 138

8. OHIO COMPANY AND SYMMES' ASSOCIATES 139

9. HAMILTON'S PLAN FOR THE PUBLIC LANDS 141

10. IMPORTANT FEATURES OF THE LAND SYSTEM 142

11. THE CREDIT FEATURE IN THE LAND SYSTEM 144

12. MOVEMENT OF POPULATION WESTWARD 145

13. ABOLITION OF THE CREDIT SYSTEM 148

14. CRAWFORD'S SYSTEM OF RELIEF 150

Contents. v

15. POLITICS IN THE LAND QUESTION 151

16. APPEALS OF THE " LAND STATES " 153

17. CLAY'S DISTRIBUTION BILL 157

18. PRE-EMPTION ACT 159

19. HISTORY OF THE PRE-EMPTION LAW 159

20. CALHOUN'S OPPOSITION TO PRE-EMPTION. 164

21. PRESENT LAW OF PRE-EMPTION 165

22. PRE-EMPTION NO LONGER NEEDED 167

23. VARIOUS LAND GRANTS FROM 1841 TO 1862 168

24. DONATION, SWAMP AND GRADUATION ACTS 169

25. EARLY MOVEMENT FOR HOMESTEADS 170

26. AGITATION BY " FREE-SOILERS " 170

27. HOMESTEAD BILLS IN CONGRESS 172

28. PRESIDENT BUCHANAN'S VETO 174

29. FINAL PASSAGE OF THE HOMESTEAD ACT 175

30. EULOGIES OF THE HOMESTEAD LAW 177

31. THE EDUCATIONAL LAND GRANTS 178

32. TIMBER AND DESERT LAND ACTS 179

33. CONCLUSION... 179

X
L

HISTORY OF THE LAND QUESTION IN
THE UNITED STATES.

INTRODUCTION.

ORIGIN AND IMPORTANCE OF THE PUBLIC DOMAIN.

The War of Independence severed political connections
between the English colonies and their mother country. The
colonies became States, and the States assumed a sovereign
power. The thirteen colonies which were planted in the region
along the Atlantic border formed the American Union ; and its
territory, as recognized in the treaty of 1783, extended from
the Atlantic on the east to the Mississippi in the west, and
from the Great Lakes in the north to the Gulf of Mexico in
the south. This constituted the national domain of the
United States, and embraced an area of about 830,000 square
miles. That portion of the national domain lying immediately
west of the Alleghany mountains and northwest of the Ohio
river was claimed by several States, but was ceded by them to
the National Government after a long-protracted controversy.
Likewise the region southeast of the Ohio was ceded to the
Government by the then three southernmost States. These
lands formed a nucleus of the public domain of the United
States, and contained an area of about 404,000 square miles.
Out of this public domain arose several republican common-
wealths, which added much to the strength and wealth of the
Union.

The creation of the public domain forms an important
epoch in the history of American Politics.] Its subsequent

6 The Land Question in the United States. [264

expansion ; the mode of its administration ; legislation for its
government; its relation to constitutional questions; the
diplomacy and politics involved in its acquisition; its inter-
national boundary questions; the enactment of settlement
laws ; the attraction of immigrants and growth of population ;
internal improvements and increased facilities of transporta-
tion; the discovery of precious metals, and other similar
topics of interest might be cited here in connection with the
public domain. They afford to the student of politics and
economics an ample field of study and investigation, and show
in a measure what important relations the public domain has
had with the affairs of the nation and what vital questions
have been involved in it.

Perhaps slavery and the public domain are the two most
important factors in the politico-economic history of the
United States. In this country slavery has had a beginning
and an end. Its beginning may be traced back to colonial
times — to the introduction of negroes into Virginia in 1619.
This peculiar institution, after an existence of nearly two
centuries and a half, has finally met with its fate. The
reconstruction of society upon a true economic basis is the
chief work of to-day in the sections of the country where
slavery once prevailed. Slavery may well be forgotten by the
younger generation. It already belongs to the province of
"past politics." But the public domain has its actual life in
present history. Bills have been pending in the National
Legislature which aim to repeal certain out-lived settlement
laws. The question of a forfeiture of a Railroad Land Grant
has just been decided against a railroad corporation for its non-
fulfilment of conditions. The Senate has two standing com-
mittees on the Public Lands, and the House of Representatives
one committee on the same, while the General Land Office is
one of the most important branches in the civil service of the
Government. The concentration of landed property into the
hands of foreign capitalists, which means the introduction of
British Absenteeism, has been drawing attention from the

265] The Land Question in the United States. 7

public and the press. Fraudulent entries and adventurous
trespass on the public lands called forth sharp words from
Mr. Cleveland in his inaugural address, to the effect that " care
for the property of the nation and for the needs of future
settlers requires that the public domain should be protected
from purloining schemes and unlawful occupation." Again,
justice demands the protection of the Indians in their right of
occupancy from the lawlessness of so-called "boomers." In
this and all other questions, the public interest is deeply con-
cerned with the administration and disposition of the public
domain. Notwithstanding the rapid disposition of public
lands, there yet remain scattered all over the southern, the
western, and the Pacific regions, vast tracts of unoccupied
lands, the aggregate area of which is almost twice as great as
that of the national domain in 1783. Tides of immigration
still flow from across the ocean. Millions of homes can
be created. An immense wealth and vast resources can be
developed. Towns will multiply; counties will grow; free
institutions will spring into life. This material advance and
prosperity will be due to the public domain and its judicious
disposition. Homestead laws will continue to build up the
Great West in the future as they have done in the past. The
importance of the public domain, however, seems to have been
rarely and but recently emphasized by the student of American
history.

FUTUEE OF THE PUBLIC DOMAIN.

The public domain will continue to exist till all the unoccu-
pied lands are disposed of. That time, however, is remote.
This generation will not see the public domain fully exhausted.
Texas may not be the last annexation, and Alaska may not be
the last purchase. The drift of political affairs may yet cause
the union of two kindred nationalities in a republican bond
under a federal government. Free social and commercial
intercourse may anglicize Latin neighbors on the main-land of
America as well as on adjacent islands, and precipitate a treaty

8 The Land Question in the United States. [266

of purchase or annexation. During the period of ninety years
the national domain has grown almost five times as great as its
original extent. Its future expansion may not be altogether a
matter of political imagination.

The growth of territory has been accompanied by the growth
of population and the rise of commonwealths. The public
domain makes a home for the poor and the oppressed of over-
populated European countries. The first immigration census,
taken in 1820, shows the insignificant number of 8,385. In
1883 the census shows an influx of foreign population amount-
ing to nearly six hundred thousand people. In sixty-three
years Europe contributed to the population of the United States
more than twelve millions of people. The West is a paradise
for the settler. Public land is free of cost to every one who
comes in good faith. Broad acres await labor and industry,
cultivation and improvement. Mother Nature is lavish in
her gifts. The virgin soil yields profitable returns. The
thrifty yeomanry, inspired with the spirit of free institutions,
build up local and municipal governments. Every naturalized
citizen enjoys political rights, and feels perfectly at home,
though in a strange land. Democratic-republican principles
permeate local, municipal, and State institutions.

These self-governing institutions and republican common-
wealths are really a monument to the memory of early legislators
and statesmen, who brought that complicated question of land-
cessions to a successful issue, who framed a republican consti-
tution for the government of the Western Territory, and
achieved the profitable purchase of a vast empire beyond the
Mississippi, thus laying foundations for a nation's wealth and
prosperity. The growth and development of the United States
in size, wealth, resources, and population not only show the
progressive power of modern civilization, but also testify to
an historical truth, that the movement of Indo-European popu-
lation has been in a westerly direction ever since its first
historical emigration from the heart of Asia. The acquisition
of a great national domain in the West has attracted to the

267] The Land Question in the United States. 9

United States the people of various Indo-European stocks.
To vast primeval forests and broad plains have come Ger-
manic, Latin, and Scandinavian nationalities , who are fast
being assimilated with an Anglo-American nationality in a
new world. However widely local institutions and customs
may vary, however much birth and nationality may differ,
there yet prevails a unique American nationality, which is
ever augmenting and ever increasing in wealth and prosperity.
The statesmen who first made laws regulating the public
domain could no more have foreseen the rise of such a great
republic than the early planters of •Virginia or hardy Puritan
settlers of Massachusetts could have foreseen the independence
of their children's children.

PUBLIC LAND POLICY OF THE UNITED STATES.

The territorial expansion of the United States has by no
means always been the result of an aggressive policy. The
country maintains a traditional peace policy in all its foreign
relations. Circumstances have led the nation to acquire
territories which, both geographically and politically, were
best fitted to become members of the American Union. The
imperial ambition of Napoleon to rule Europe caused him to
part with the French province of Louisiana in America. The
down-trodden powers in the Old World finally regained their
freedom and recovered their territories after years of bloody
struggle; but, on this side of the Atlantic, the foresight of
Mr. Jeiferson and the diplomacy of his colleagues secured to
the United States its most important possession beyond the
Mississippi, one year before the Corsican general assumed the
crown of Charlemagne. The purchase of Florida from Spain
in 1819 forever settled a boundary dispute in West Florida,
and consolidated a national interest in the development of
resources by the United States in their south-eastern territories.
The two rival powers of old colonial times, Spain and France,
thus lost a permanent hold of their colonies in America, and

10 The Land Question in the United States. [268

this country was no longer to be considered as subject to
colonization by any European power. Time had changed the
affairs of nations, and the " Monroe Doctrine " succeeded the
right of discovery and exploration in the New World. Un-
occupied lands were no longer spoils of grasping adventurers
under a foreign flag, but became an American domain, subject
to the settlement laws of a free and independent republic.

AGRARIAN LAWS OF ROME AND THE UNITED STATES.

History tells us of the evolution of landed property from
communal to private ownership, and from equal to unequal
divisions. " The Roman idea of a right of absolute property,"
says Laveleye,1 " was always foreign to Greece. The territory
of the State was regarded as belonging to it alone." The
distribution of public land taxed the wisdom of Greek law-
givers, and its concentration into the hands of a few was
often a cause of political revolution. It is in the famous
Licinian laws of the Roman Republic that we find a germ of
modern public-land laws. First of all, the Lex Licinia2
required the ager publicus to be defined. Then, if there was
any encroachment, it had to be surrendered to the State.
Such survey of public lands and such prevention of unlawful
occupation have been among the first requisites in the adminis-
tration of the public domain in modern times. Secondly, by
the Licinian law, every estate in the public lands, which was
required to be of a lawful size, with peaceful occupation, was
declared by the State to be good against third parties. This
was virtually the same as the modern right of pre-emption,
which is secured to every honest settler. Thirdly, every
Roman citizen had a right to occupy public lands in conformity
to the laws. To the Romans, citizenship was a necessary
qualification to the enjoyment of privileges in the public lands.

1 Laveleye's Primitive Property, 158.

2Niebuhr, Romische Geschichte, Vol. Ill, 14-17.

269] The Land Question in the United States. 11

So it is to-day in the United States. Pre-emption right and
homestead-entry are allowed to aliens only on the condition
that they will become citizens of the United States. Fourthly,
the Licinian law forbade any person to possess more than 500
jugera, or about 350 acres of public land, and to pasture more
than a hundred head of large cattle or five hundred head of
small cattle on the same. The spirit of settlement laws in the
United States seems to be inclining toward parcelling out
public lands into small holdings. One hundred and sixty
acres of land is a maximum quantity allowed to a home-
steader, although any settler can obtain 1,120 acres of public
land under the existing settlement laws.1

Laboulaye2 says that " The law of the five hundred jugera
is always quoted by them [referring to Varro, Pliny and
Columella] with admiration, as being the first which recognized
the evil, and sought to remedy it by retarding the formation of
those vast domains or latifundia which depopulated Italy, and
after Italy, the whole empire. " The Homestead Act, which is
spoken of as the outgrowth of "the concentrated wisdom of
legislation for settlement of the public lands,"3 would un-
doubtedly increase the number of free proprietors and build
up local communities in the United States, as the law of five
hundred jugera would have done for the ancient republic.
The just and equal distribution of public lands is the spirit of
both laws. As to the limitation of the number of head of
cattle to be pastured on public lands we have a similar fact in
the local agrarian history of New England towns. At Salem4
the pasturage on every ten acres of common fields was limited
to 6 cows, 4 oxen, 3 horses, or 12 yearlings or 24 calves.
Whether it is in small local communities or in extensive terri-

1 The Public Domain, 1159.

2 Quoted by Laveleye in Primitive Property, 167.

3 The Public Domain, 350.

4H. B. Adams. "Village Communities of Cape Ann and Salem."
Johns Hopkins Univ. Studies in Historical and Political Science. First
Series, IX-X.

12 The Land Question in the United States. [270

tories, agrarian interests are the same, and men are everywhere
inclined to demand an equal share in agrarian benefits. As to
the rest of the Licinian law, Niebuhr states that the occupants
of public lands were required to offer to the State a certain
part of the produce of the soil, and that the State defrayed the
expense of the army with the income thus derived.

GERMAN, ENGLISH, AND AMERICAN FOLK LAND.

The Germanic common mark and the Anglo-Saxon focland1
correspond to the Roman ager publicus, and the present
public domain of the United States is held upon essentially
the same principles as the mark, focland, and ager publicus . Just
as the arable mark, or the mark of the township, was par-
celled out to individuals from the common mark among the
ancient Germans, or as bocland was registered focland among
the Anglo-Saxons, so the homestead is granted to the American
settler out of the public domain. The homestead so granted
is allodial and held in fee-simple. Allodial ownership and
fee-simple tenure were essential features of ancient Teutonic
institutions, and here we find the wholesome influence and
effect of a free agrarian system of Germanic origin upon the
focland of the American people.

We have already seen in the old Licinian laws some parallel
with the American settlement laws, either in spirit or in
principle. This comparative study has also led us to recog-
nize the fact that the Germanic allodial land system has been
reproduced in the method of parcelling out free, independent
homesteads from the public domain. But we must bear in
mind the true historical connection between American and
Germanic agrarian institutions. American settlers first intro-
duced mild forms of English feudal tenure, but these were
transformed in course of time into allodial tenure. In fact,
the American agrarian system has no direct connection with

1 Systems of Land Tenure. Cobden Club Edition, 286.

271] The Land Question in the United States. 13

the old Germanic customs in the " Gemeinde," any more than
it has with the customs of the Russian Mir or Swiss All-
mends.

The English common law is to-day the law of all the States
of the American Union with the exception of one State,
viz. Louisiana. English feudal land laws were the direct
source and origin of early American land tenure, and even
to-day they still govern more or less the transfer of landed
property in some of the older States.

After the Revolution, most States abolished all feudal inci-
dents connected with landed property. For instance, "By
the statute of February 20, 1787, New York abolished all
military tenures, transferring them into free and common
socage, and making all State grants entirely allodial. The
revised statutes, going into effect in 1830, abolished the last
shadow of feudal tenure, and made allodial proprietorship the
sole title to private land, and this property liable to forfeiture
only by escheat. m In spite of the simplified method of bargain
and sale, the conveyance of real estate, however, seems to
retain some feudal incidents which are complained of as
cumbersome and as involving needless expenses.

A leading New York journal2 commented on this subject in
its editorial columns as follows : " By the Constitution of the
State of New York, ' all feudal tenures of every description, with
all their incidents, are declared to be abolished/ but as a matter
of fact the incidents of feudal tenure are not all abolished.
This very cumbrousness and complexity of the transfer of
land is one of them, and the right of dower is distinctly
another. The common law of England upon the subject of
real property is a survival from feudal times, and it has
nowhere in this country been completely remodeled in con-
formity with the needs and usages of an industrial community.
There is, by law, a special sanctity attached to ownership of

-1 Quoted in Public Domain, 159, from Mr. .Wilson's Report of the
General Land Office.

2 New York Times, December 30, 1884.

14 The Land Question in the United States. [272

land as compared with that of other property, and the alienation
of it is purposely made difficult. In England, this treatment
of land still corresponds to a real public sentiment. The
owner of land is an object of much more social consideration
than the owner of an. equal value in personal property. In-
asmuch as the ( landed interest ' still governs Great Britain,
it is to be expected that British laws should make as trouble-
some as possible the acquisition of 'estates ' by new men who
have enriched themselves and who aspire to ' found families.'
We have abolished primogeniture and entail, which are the
chief legal supports of the landed aristocracy. But we have
by no means got rid in our laws of the feudal habit of
regarding property in land as more important to the State
than other property, and it is from this habit that the practice
of making land less easily alienable than other property
proceeds."

FEUDAL LAND LAWS OF ENGLAND.

The landed interests are everywhere decidedly conservative,
and land laws are made to suit the conservative elements of
the nation. The interest of a landed aristocracy is nowhere
better protected than in England by a complicated land system.
The land system of England is feudal, and its structure very
complex and heterogeneous. " The main body of the technical
expressions of the law, and of the technical habit of thought/'
says Mr. Pollock in his Land Laws, "is derived from feudal-
ism So great is the technical complication and difficulty

of our laws on the subject, that within the special studies of
the legal profession the study of them is a specialty of itself."1

Feudalism was in full operation in England when James-
town was planted by the Virginia Company in 1607. Feudal
land tenures and customs were then still practically binding on
landed property. Estates were fettered by entail and inherit-

1 The Land Laws, by Frederick Pollock, 2-3.

273] The Land Question in the United States. 15

ance, limited to primogeniture or ultimogeniture. Tenures
were still in knight service. The abolition of military tenures
in England took place half a century later than the settlement
in Jamestown. It was done by the 12th, Charles II., cap. 24,
in 1660. l By this act, " all freehold tenures were reduced to
the one type of free and common socage, with an important
twofold result. First, all the vexatious incidents of military
tenure disappeared with the tenure itself; only ancient money
rents might remain payable by the tenant, which had already
become, by the changes in the value of money since they were
fixed, almost or altogether nominal. Next, inasmuch as the
statute of 1540 had enabled tenants in fee-simple to dispose
by will of the whole of their socage lands, and socage was
now made the only freehold tenure, the whole of the fee-simple
land in the kingdom became disposable by will. Feudal
tenancy was converted for all practical purposes into full
ownership."

For fully six centuries military tenures shaped the history
of land laws in England. As the Norman Conquest and
Domesday Book made a transition from the Anglo-Saxon
allodial land system into the feudal land system, so the
abolition of military tenures by Charles II. was a transition
from the feudal land system to a more liberal land system
of a testamental succession and free alienation, but not by
any means a return to the ancient Anglo-Saxon land laws in
theory or in practice. The English land laws may be called
Reformed Feudal Land Laws. They retain the essential
feature of feudalism, and that is the reason why they are so
complex and so confusing.

LAND TENURE IN COLONIAL TIMES.

Notwithstanding the prevailing feudal land laws in Eng-
land during the seventeenth century, the English colonists in

1 Landholding in England, by Joseph Fisher, Humboldt Library, 36 ; or
Pollock's Land Laws, 125.

16 The Land Question in the United States. [274

America were fortunate enough to secure a milder form of
land tenure from the British Crown. The charter granted to
Sir Walter Raleigh in 1584 specified that lands were to be
held in fee-simple. All the rest of royal charters, beginning
with the charter to the Virginia Company in 1606 and ending
with that granted to the Trustees of Georgia in 1732, granted
lands in free and common socage, that is, injfree tenure with-
out military service. The source of all land titles was in
the Crown. The King was the Lord Paramount of all the
lands held by the colonists. By virtue of discovery, conquest,
colonization, and the acknowledged principle of feudalism, the
British Crown was the only legal source of ownership of
landed property by the English colonists. Sometimes a
recognition of fealty was required ; sometimes quit-rent was
exacted by the Crown. Feudal incidents were unavoidably
brought to the colonies. Proprietorship in the middle colonies,
and aristocracy in the southern colonies, showed that mediaeval
institutions were planted in some measure upon the virgin soil
of America. Within the colony of New Netherlands, after-
wards New York, a small feudal principality, with almost an
independent sovereign power, was erected by Patroon Rens-
selaer. The essential features of this great proprietary sur-
vived long after the Revolution.1

In theory, titles derived from the Crown were complete and
unconditioned so far as the colonists themselves were con-
cerned ; but in practice they were far from being so. The
right of the aborigines was to be respected by the settlers.
Indians were allowed right of occupancy. The Crown had
the titular right, but the Indians a possessory right. The
grant of lands by the Crown was of no use unless the savages
turned them over to settlers. There were two ways opened
to the settlers, either of which would secure to them full
ownership of lands. The one was by the use of force ; the

1 Mrs. Martha J. Lamb, " The Van Rensselaer Manor," in Magazine of
American History, January, 1884.

275] The Land Question in the United States. 17

other by purchase. Humane and Christian principles alike
forbade the use of force, although the colonists often violated
both. The colonies secured the right of pre-emption in most
cases. Negotiation with and purchase from the original pos-
sessors finally made the colonists realize the full possession of
lands which their titular lord so lavishly granted them. Not
only did royal grants conflict with the Indian rights, but they
conflicted with themselves. Overlapping grants occasioned
many legal disputes about boundaries, e. g. in the case of
Maryland and Pennsylvania.1 In the case of Virginia and
Maryland such disputes actually resulted in colonial war.
Again, the international territorial conflicts of the principal
colonizing powers were among the chief events in the colonial
history of America. The Treaty of Paris in 1763 made Eng-
land the dominant power in the regions along the Atlantic
border and east of the Mississippi river. Twenty years
afterwards, however, England had to sign another treaty,
Versailles, 1783, and acknowledge the independence of the
United States. The Crown lands created by the royal proc-
lamation of 1763 were destined to become the public domain
of a great republic.

LAND TENURE AFTER THE REVOLUTION.

The revolution for political freedom brought a revolution
in the agrarian laws of the country. The United States
became, within limits, a successor to the British Crown, and
a source of land titles. The public domain created after the
Revolution became the public property of a new nation instead
of a titular sovereign. It was now held in trust by thej
national government of the United States, to dispose of in the
best interest of the whole people. Feudal incidents were now
abolished. By the Ordinance of 1787, absolute ownership of

1 Of. W. B. Scaife on the Boundary Disputes between Pennsylvania and
Maryland, in the Pennsylvania Magazine of History and Biography,
October, 1885.

18 The Land Question in the United States. [276

land was guaranteed. There was to be no more primogeni-
ture nor entail on the public domain. Certainly land, the most
essential element in the production of economic goods, every-
where deserves the most enlightened and liberal policy which
statesmen can conceive. It should subserve the cause of the
greatest production and the best interests of the whole people.
The liberal land policy devised by the government of the
United States has been followed by other nations. France, in
the Revolution of 1789 ; Prussia, in the legislation of 1811 ;
Russia, in the Emancipation Act of 1861, and, finally, Japan
in the abolition of feudalism in 1871, — all these nations took
a great step forward. They removed slavish and cumbrous
restrictions which had rested upon landed property. Free
alienation, testamentary disposition, and just inheritance should
characterize liberal agrarian laws. These were secured not only
for the public domain of the United States, but also for the
older individual States themselves.

Speaking of the ownership of the land in America, Mr.
Cunningham, an English writer,1 some years ago, in his
" Social Well-Being," says : " In the United States there are
no land laws established by which the soil is made to fall
gradually into the hands of a few great families, as in Great
Britain. There are generally no restrictions upon its sale,
its inheritance, or its application. The system of occupation is
generally that of small proprietors.2 The idea which per-
vades the whole American people is that of the advisability
of universal proprietorship, and the feeling against anything
approaching to landlordism is pronounced." More recent
investigators say that the tenant farms are increasing in an
alarming ratio in the United States, especially in the North-
western States. A fear is also expressed that the growth of
American latifundia will bring ominous effects upon the na-

1 Conditions of Social Weil-Being, 173.

3 For the controversy on the size of farms in the United States between
General Walker and Mr. George, see Henry George's Social Problems,
pp. 333-356.

277] The Land Question in the United States. 19

tional economy of the American people. Whether these views
are substantiated by facts or not, is now an open question.1

It was the Revolution that created the public domain of the
United States, and it was the public domain that made neces-
sary a liberal agrarian system. Not only did the public
domain call forth land laws that were subversive of feudal
incidents, but it became instrumental in establishing the
Union upon the basis of a common economic interest. In the
possession of public lands the old States found a common tie
which bound them permanently together. However widely
political ideas might differ, however much economic interests
might antagonize sections, however greatly social institutions
and customs might vary, there remained, back of the Alleghany
mountains, a vast tract of focland, in the settlement and dis-
position of which all the States found a common interest.
That interest bound together the sovereign States into a terri-
torial commonwealth.2 The public lands were the backbone
of the United States. The history of their constitutional
development cannot be ' understood without a study of the
land question.

Congress under the Articles of Confederation was an impo-
tent organ. It never discharged the purpose for which it was
created. That body, however, did one thing of great merit.
It legislated on the government of the Northwestern Territory.
It passed the Ordinance of 1787. This was a masterly work
of genuine statesmanship. It was the Bill of Rights for the
future settler of the Public Domain. It was the American
Magna Charta. Under this ordinance territories prospered
and commonwealths arose.

RELATIONS OF THE PUBLIC DOMAIN TO NATIONAL LIFE.

We have seen that the institution of the public domain
gave a fatal stroke to feudal land tenures ; it bound the Union

1 See a series of articles in the North American Review, January, 1886, *-•
and succeeding numbers.

2 See H. B. Adams. University Studies. Third Series, I.

20 The Land Question in the United States. [278

together by an economic bond, and called forth the Ordinance
of 1787. We shall now briefly consider what important ends
the public domain has served in the politico-economic history
of the United States.

1. Public lands were used as bounties to veteran soldiers
and sailors, from the time of the Kevolution down to the late
Civil War.

2. Public lands were once an important source of public
revenue, and formed a basis for national finance.

3. Public lands and diplomacy have often been related in
the affairs of the nation. The purchase of territories from
the foreign powers and the negotiation about boundary disputes
called forth the diplomacy of Livingston, Pinckney, Monroe,
and other statesmen.

4. The survey and administration of public lands were
initiated by the two most eminent statesmen, Jefferson and
Hamilton. Mr. Jefferson, as chairman of a committee in the
Congress of 1784, furnished the basis of the present system of
survey known as the "rectangular system," and Hamilton,
as Secretary of Treasury, furnished the basis of the present
method of administration in 1790.

5. Public lands have been the means of effecting internal
improvements. Canals, highways, and levees have been con-
structed under the stimulus of public land grants.

6. The promotion of education in the United States is closely
connected with public lands. The Ordinance of 1787 recog-
nized the importance of education. Public land grants for
mechanical and agricultural institutions, as well as for State
universities and public schools, have aided in their foundation
and maintenance.

7. Public lands have had great influence upon the problem
of transportation. If it were not for public lands, the rail-
roads which now form the great highways of the nation — for
example, the Central Pacific and Union Pacific — could not
have been built so soon. Grave abuses there may have been,
but the benefits resulting from the facility of transportation
cannot be gainsaid.

279] The Land Question in the United States. 21

8. The mineral resources of the public lands form an im-
portant part of America's national wealth. The discovery of
gold in California marks an epoch in the world's economy.
Mining laws are, therefore, of a great consequence to the nation.

9. Foreign landlordism, private claims, and land litigations
are all connected more or less with the public lands.

10. Lastly, the relation of public lands to immigration
suggests an important economic problem. " No State without
people" should be the political maxim of statesmen in
encouraging foreign immigration. Free homes and free insti-
tutions, free labor and free soil, are the best capital for the
development of the resources of the Great West.

Such is the scope of the land question in the general
economy of the United States. The origin of the public
domain, its subsequent expansion, the history of its adminis-
tration, the various land grants, and the chief features of
settlement laws, will be the subjects of special investigation in
the following chapters.

I.
FORMATION OF THE PUBLIC DOMAIN.

The public domain of the United States was acquired
through cession, purchase, and conquest. Its acquisition had
been precipitated by a combination of varied political and
economical considerations. The desire of firm union and the
safety of the whole confederacy peacefully terminated the
disputed claims of the larger States to the western lands.
The prospect of fishery and the development of natural
resources must have prompted the action of President John-
son's administration in the purchase of Alaska. The first
acquisition of public land took place on March 1, 1781, and
the last acquisition on March 30, 1867. Between these two
periods there were several acquisitions of territory, whose
history will be treated in its proper place. The first subject
that should engage our attention is the P

22 The Land Question in the United States. [280

CESSIONS BY THE STATES.1

From a territorial point of view, the State cessions may be
divided into two classes: the first embraces the territory
northwest of the Ohio river, and the second covers the
territory southeast of the Ohio. Twenty-one years intervened
between the first and last State cession. New York was the
first State that surrendered her claim to the northwestern
territory, while Georgia was the last one that parted with her
claim, by which the State cessions were made complete.

CLAIMANTS TO THE " CROWN LANDS."

It was the northwestern territory, or the " Crown Lands/7
that occasioned the greatest discussion in Congress. The
territory was claimed by several States. The claimants were
Massachusetts, Virginia, Connecticut, and New York.

Massachusetts based her claims upon the charter granted
to her by William and Mary in 1691.2 She claimed that
portion of the northwestern territory which was bounded on
the west by the Mississippi river, on the south by about forty-
two degrees of north latitude, and on the north and east by
Lakes Superior and Huron, respectively. The territory now
lies in the States of Wisconsin and Michigan, partly in the
eastern part of Minnesota, and partly in the northern part of
Illinois. It embraces an area of 54,000 square miles. This
territory was also disputed and claimed by Virginia.

The claim of Virginia was a most extended one. Under
the charter granted by James I. in 1609,3 she claimed the
entire territory west of Pennsylvania, and northwest of the

!See for the State cessions, Dr. H. B. Adams' Maryland's Influence
upon Land Cessions to the United States, in J. H. TJ. Studies, 3d Series,
No. 1.

2 Laws of the United States (Duane Edition), Vol. I, 462.

3 Laws of the United States (Duane Edition), Vol. I, 465. Hening's
Statutes, Vol. IX, 118.

281] The Land Question in the United States. 23

Ohio river, and below the forty-first parallel of north latitude.
She also claimed the territory lying south of the Ohio river,
and north of her southern boundary, a territory now in the
State of Kentucky. Another claim which Virginia set forth
by reason of conquest and occupancy, was to the territory
extending northward from the forty-first degree of north
latitude, toward the Lakes, which claim was disputed both
by Massachusetts and Connecticut. The claim of Virginia,
excluding Kentucky, embraced an area of 265,562 square
miles.

The claim of Connecticut, like that of Massachusetts, was an
extension of her northern and southern boundary lines, under
the charter granted by the British Crown. They began with
the western boundaries of New York and Pennsylvania, and
extended as far west as the Mississippi.1 The territory now
lies in the south of the State of Michigan, and in the north of
the States of Ohio, Indiana, and Illinois. Its area was esti-
mated at 40,000 square miles.

New York based her claim to the western lands chiefly
upon various treaties which she made with the Six Nations
and their tributaries, by which she acquired jurisdiction over
their entire western territory.2 The territory of the Indian
nations which New York claimed was indefinite in area, but
was situated west of Pennsylvania and north of the Ohio
river.

Such were the conflicting claims of the four principal States
of the Union over the western lands north of the Ohio river.
South of it, the Carolinas and Georgia had their respective
claims to an extension of their western boundaries. The
rest of the Union, New Hampshire, Ehode Island, New
Jersey, Delaware, Pennsylvania, and Maryland, had definite
boundary lines by the time the Revolutionary war broke out.
Pennsylvania had a controversy with Connecticut, which was

1 Laws of the United States (Duane Edition), Vol. I, 464.

2 Journals of Congress, Vol. IV, 21.

24 The Land Question in the United States. [282

known as the "Wyoming Controversy." It related to the
jurisdiction over certain lands lying in the northern part of
Pennsylvania, but this controversy was decided in 1782 in
favor of Pennsylvania by a Federal Court, to which the
question was referred according to the provision in the ninth
article of the Confederation.1

WESTERN TERRITORY BEFORE THE REVOLUTION.

Claims to western territory by the several large States
began with the Revolution. Prior to the Revolution, the
colonies had no legal claim to jurisdiction over the western
lands, which were set apart from the colonial territories as the
"Crown Lands," by the royal proclamation of 1763.2 The
British Crown divided the territory which it acquired from
France and Spain by the treaty of Paris in 1763, into four
provinces : Quebec, East Florida, West Florida, and Grenada.
All the lands which were not included within these provinces,
nor within the grant to the Hudson Bay Company, were
reserved for the use of the Indians. The colonies were
forbidden to make purchase or settlement of any of these
reserved lands without first obtaining royal permission.
These lands were the so-called " Crown Lands."

The fertility and resources of these western lands seemed,
from early times, to have attracted adventurous settlers. In
1748 the Ohio Company was formed, and in the following
year secured 600,000 acres of land on the Ohio river.3 The
royal grant stipulated that the company should be free from
quit-rent for ten years, provided in seven years there were one
hundred families, and they had built a fort sufficient to pro-
tect the settlement. On June 12, 1749, the Loyal Company
was organized and obtained the grant for 800,000 acres of

'Journals of Congress, IV, 129.

2 Laws of the United States (Duane Edition), Vol. I, 443.

3 Holmes' Annals of America, Vol. II, 39.

283] The Land Question in the United States. 25

land.1 On October 29, 1757, another land company, known
as Greenbriar Company, was started and obtained the grant
for 100,000 acres of land.2

After the treaty of Paris, by which the British Crown
became the sole owner of the western territory, several land
companies were organized with the view of making settlements
back of the original colonies. In 1766 the Walpole Company
was proposed. In 1769 the company petitioned for a grant
of two and a half millions of the western lands, between 38°
and 42° north latitude and east of the Scioto river. On
August 14, 1772, the petition was finally granted by the
Crown.3 In 1769 the Mississippi Company4 was started by
some of the prominent Virginians as a rival to the Walpole
Company. In North Carolina the Transylvania Company
was organized in 1775.5

Both before and after the treaty of Paris these land com-
panies petitioned directly to the British Crown for the grant
of lands, and not to any colonial government. The Crown
assumed the jurisdiction over the western lands, and the pro-
vincial governors had the power to issue land warrants to
such persons only as were awarded lands by the Crown for
services in the French and Indian war.

REVOLUTION AND THE LAND CONTROVERSY.

When the Revolutionary War broke out and the Articles
of the Confederation were* submitted for ratification to the
Legislatures of the States, the question of the western lands
became a momentous problem in the politics of the Con-
federacy. Virginia, Massachusetts, Connecticut, New York,
the Carolinas, and Georgia treated the royal proclamation of
1763 as a nullity, and claimed an extension of their western
boundary lines under their old charters ; while the rest of the
members of the Union protested against the claims of the

1 Perkins' Western Annals, 50. * Ibid.

3 Perkins' Western Annals, 106, 4 Ibid. 108. » Ibid. 135.

26 The Land question in ike United States. [284

larger " land States " on the ground that the United States
should become a successor to the Crown in title to and juris-
diction over the western lands, the possession of which had
been secured through the united forces of the whole Confed-
eracy. Let us briefly treat of this controversy and see how
it was settled.

CONSTITUTION OF VIRGINIA AND PROTEST OF MARYLAND.

In June, 1776, Virginia declared in her constitution that
" The western and northern extent of Virginia shall in all
other respects stand as fixed by the charter of King James
the First, in the year one thousand six hundred and nine, and
by the public treaty of peace between the courts of Great
Britain and France in the year one thousand seven hundred
and sixty-three, unless by an act of legislature one or more
territories shall hereafter be laid off and governments estab-
lished west of the Alleghany mountains. "l This declaration
was not well received by the Maryland Convention which met
at Annapolis on August 14, 1776, to form a Constitution
and Bill of Eights. On October 30, 1776, the Maryland
Convention passed the following resolution :

"Resolved, unanimously, That it is the opinion of this
Convention that the very extensive claim of the State of
Virginia to the back lands hath no foundation in justice, and
that if the same or any like claim is admitted, the freedom of
the smaller States and the liberties of America may be thereby
greatly endangered ; this Convention being firmly persuaded
that if the dominion over these lands should be established
by the blood and treasure of the United States, such lands
ought to be considered as a common stock, to be parcelled out
at proper times into convenient, free and independent govern-
ments."2 This resolution was afterwards laid before Congress
by the delegates of Maryland.

1 Hening's Statutes, Vol. IX, 118.

2 Conventions of Maryland, 293.

285] The Land Question in the United States. 27

During the whole controversy over the western lands, Vir-
ginia was the strongest claimant, while Maryland was the
stoutest opponent. The controversy was virtually Maryland
vs. Virginia, and the contest fairly began in the position
assumed by the Maryland Convention in regard to the Con-
stitution of the Old Dominion.

RESOLUTION OF CONGRESS AND MARYLAND'S OPPOSITION.

The Virginia Constitution was not the only cause that
prompted the action of Maryland at the dawn of the Revo-
lution. The resolution of Congress, passed September 16,
1776, must have greatly influenced Maryland in passing her
resolution of October 30, 1776.

This resolution of Congress promised both commissioned
and non-commissioned officers, who would enlist and serve in
the cause of the Revojution, certain bounty lands ; to the
former, according to rank, from 150 to 500 acres, and to the
latter 100 acres, together with a bounty of $20. l This policy
was by no means agreeable to Maryland. On October 9,
1776, the Maryland Convention resolved "That this State
ought not to comply with the proposed terms of granting
lands to the officers and soldiers, because there are no lands
belonging solely and exclusively to this State; the purchase
of lands might eventually involve this State in an expense
exceeding its abilities, and an engagement by this State to
defray the expense of purchasing land according to its number
of souls would be unequal and unjust."2

Although Maryland thus diifered from Congress in her
opinion about the land bounty, and, moreover, complained of
the quota of men to be raised according to the whole number
of population, including both whites and blacks, yet she was
patriotic enough to comply with the wishes of Congress in

1 Journals of Congress, I, 476.
2 Conventions of Maryland, 272.

28 The Land, Question in the United States. [286

regard to the raising of soldiers. But she proposed to give a
bounty of ten dollars to every non-commissioned officer and
soldier in place of the 100 acres of land promised by Congress.
The latter protested against the position Maryland was about
to assume in the matter of bounty lands, and assured her that
it was the intention of Congress to make good the land bounty
at the expense of the United States, and not at the expense of
any individual State.

On the 9th of November, 1776, the Maryland Convention
passed resolutions in which that body expressed the desire to
know the locations of land which Congress would specify as
bounty land before any enlistment should be made, and argued
again that, from the point of reason, justice, and policy, Con-
gress should consider " the back lands " as a common stock,
as being purchased by the joint blood and treasure of the
Confederacy. The Convention also expressed its fear that, if
the western lands were not made a common property of the
nation, and the United States should be obliged to purchase
these lands from the larger landed States, these States would
fix their own price on the lands, and thus pay off their quota
of the public debt, and establish extensive colonies with their
own soldiers, much to the detriment of the smaller States.1
These resolutions were laid before Congress, November 13,
1776.

Thus, the resolution of Congress had greatly influenced
Maryland in her attitude toward the " Crown Lands." Out
of the eighty-eight battalions of soldiers which Congress
aimed to raise, Maryland had its quota of eight battalions.
Congress pledged the faith of the United States to soldiers
for bounty lands, but it had at that time no lands actually
belonging to the Confederacy. Should Congress fail to grant
lands, Maryland felt responsible to the pledge, so far as her
own men were concerned, but she also had 110 land of her own.
If Congress had been obliged to purchase lands from the

1 Conventions of Maryland, 370-2.

287] The Land Question in the United States. 29

larger landed States, the policy would have resulted in putting
a certain portion of Maryland's tax into the treasuries of the
landed States, or in reducing their quota of contribution to
the common treasury. On the other hand, if Maryland should
become responsible for the promise of Congress, in her indi-
vidual capacity, to the men who should compose eight bat-
talions, she would find herself at the mercy of the larger States
in purchasing lands. This would not only directly enrich the
treasury of the larger States, but also supply soldier-emigrants
to the western lands, both of which economic losses Maryland
could not aiford. Therefore she proceeded to substitute a
bounty of ten dollars for a bounty of 100 acres of land ; but
Congress remonstrated against this action as " extremely
detrimental " to the States, and Maryland had to raise soldiers
according to the continental plan of land bounties. She
obeyed the order of Congress, and on December 1, 1776,
2,280 men of Maryland enlisted in the army on the good faith
of the United States.1

GROUND OF MARYLAND'S OPPOSITION TO VIRGINIA.

The only proper way left for Maryland to protect her own
interest, as well as to make good the Federal promise of land
bounty, was to persuade Congress to treat the Western lands
as common property of the whole nation, to be disposed of
by the Federal Government for the benefit of the United
States. It is impossible to say whether or not Maryland,
at this early hour of the Revolution, had foreseen, from a
purely political standpoint, the necessity of committing the
jurisdiction over the Western lands to Congress and of
erecting territorial governments under its authority, thus
cementing the Union more closely and establishing a funda-
mental constitution, a "charter of compact/7 between the
original States and Territories. This national idea, however,

1 Scharf s History of Maryland, 290.

30 The Land Question in the United States. [288

seems not to have been the chief ground of Maryland's
opposition to Virginia's land claims. The existing economic
situation seems to have led Maryland to assume that position
which she so boldly maintained during the whole period of
the controversy.

Maryland's opposition to the claim of Virginia was for
her indeed a necessity. It was necessary for self-preservation.
Her interest required that the Western lands should belong to
the United States rather than to Virginia. Should they
belong to Virginia, Maryland thought that her freedom
would be endangered. She feared that her independence
would be placed at the mercy of her powerful neighbor.
Maryland's persistent opposition was, therefore, a decidedly
prudential and politic measure. Its true nature was defen-
sive, but not offensive. In the defensive measure originated
that "pioneer thought"1 of expanding republican institutions
over the Western territory.

On April 18, 1777, the Maryland Legislature instructed
their delegates in Congress "to move for a stricter union
and confederacy of the thirteen United States."2 On October
2, 1777, the Articles of Confederation were taken up and
debated till November 15, when they were finally adopted.
It was during this debate that a Maryland delegate moved
"that the United States in Congress assembled shall have
the sole and exclusive right and power to ascertain and fix
the Western boundary of such States as claim to the Missis-
sippi 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
may require."3 The motion was lost. Not only was it lost,
but it resulted in a counter measure; for a provision was
added to the Ninth Article of the Confederation that "no
State shall be deprived of t territory for the benefit of the

1 H. B. Adams. Maryland's Influence upon Land Cessions, 23.

2 Scharf ' s History of Maryland, 467.

3 Journals of Congress, II, 290.

289] The Land Question In the United States. 31

United States."1 Thus, by the Constitution, territories were
to be given up to the States that claimed them. It was a
discouraging case for Maryland.

Within the two succeeding years all the States except
Maryland ratified the Articles, and Maryland knew that she
was at odds, but stood her ground unflinchingly. When
Maryland laid before Congress her resolutions of October 30,
1776, she was protesting against the aggressive policy of
Virginia alone, but now she found herself in a situation of
fighting the battle against the whole Confederacy. She was
certainly in a worse situation than before.

On May 21, 1779, the delegates from Maryland laid
before Congress the famous "Instructions" of December 15,
1778. The document instructed the delegates not to agree
to the Confederation unless they had secured an article or
articles that should guarantee land-cessions.2

On the same day the Instructions were issued, the
Legislature of Maryland adopted a " Declaration," which
was sent, together with the Instructions, to the delegates.3
On January 6, 1779, the Declaration was laid before Congress.4
The Declaration was a compendium of various resolutions
passed by Maryland since the Western lands became a
problem in 1776. These instruments had great influence
upon Congress in favor of Maryland's cause. They were a
pivot upon which the question of the land-cession finally
turned toward an amicable solution.

VIRGINIA AND HER DISPOSITION OF WESTERN LANDS.

Meanwhile Virginia passed various land laws, and was
about to establish a Land Office.5 This act of the Virginia

1 Journals of Congress, II, 304.

2 The text of the Instructions can be found in Journals of Congress, III,
281 ; also in Public Domain, 61-62.

3Hening's Statutes, X, 549.

4 H. B. Adams. Maryland's Influence on Land Cessions, 27.

6Hening's Statutes, X, 50-65.

32 The Land Question in the United States. [290

Legislature must have prompted the action of the Maryland
delegates in Congress to lay before that body their Instruc-
tions, as well as to introduce the resolution of October 30,
1779. The resolution was passed by a vote of eight States
to three, and read as follows :

" Whereas, The appropriation of vacant lands by the several
States during the continuance of the war will, in the opinion
of Congress, be attended with great mischiefs. Therefore

"Resolved, That it be earnestly recommended to the State of
Virginia to reconsider their late Act of Assembly for opening
their Land Office ; and that it be recommended to the said
State, and all other States similarly circumstanced, to forbear
settling or issuing warrants for unappropriated lands, or
granting the same during the continuance of the present
war."1

But the Virginia Land Court was already opened in
Kentucky, and had adjusted about 3,000 claims during its
short session. The Virginia Land Laws were very elaborate.2
They did not recognize the claims of the great land com-
panies, which were then making appeals to Congress for the
adjustment of their claims. They encouraged settlement
through favorable land grants.

Against the resolution of Congress, which wras passed
on October 30, 1779, and against the declaration and the
instructions of Maryland, Virginia sent her remonstrance.3
In this remonstrance, Virginia protested against jurisdiction
and the right of adjudication which Congress had assumed
over the Western lands with regard to the claims of the
Vandalia and Indiana Companies. It also affirmed that
the royal charter was the only rule to determine the bounda-
ries of each State, and that the United States held no terri-
tory save through the right of some one individual State in
the Union. It further stated that the Articles of the Con-

1 Journals of Congress, III, 384.

2 Perkins' Western Annals, 219.

3 Hening's Statutes, 557-59.

291] The Land Question in the United States. 33

federation reserved to her the right of sovereignty and jurisdic-
tion within her borders, and that she did not entertain any
idea of expanding her territory, but of holding her own as
defined in the new Constitution. But the remonstrance took
a somewhat compromising attitude, and expressed that Vir-
ginia would listen to any just and reasonable propositions for
removing the ostensible causes of delay to the complete
ratification of the Confederation, although she should protest
against actions of Congress that were unwarranted by the
Articles of Confederation and infringed upon the sovereignty
of the State.

SETTLEMENT OF THE LAND CONTROVEKSY.

Notwithstanding the remonstrance of Virginia, Maryland's
influence began to be felt among the members of the Union.
On February 19, 1780, the New York Legislature passed an
act " to facilitate the completion of the Articles of Confedera-
tion and perpetual Union among the United States of
America," and authorized the delegates from that State to
limit her Western boundaries, and cede the vacant lands to
the United States. On March 7, 1780, the above act was
laid before Congress by the delegates of New York.1

On September 6, 1780, Congress took into consideration
the report of the committee to which had been referred the
Instructions and Declaration of Maryland, the Remon-
strance of Virginia, and the Act of New York, and passed
the following resolution: "Resolved, That copies of the
several papers referred to the committee be transmitted, with
a copy of the report, to the legislatures of the several States,
and that it be earnestly recommended to those States which
have claims to the Western country, to pass such laws and
give their delegates in Congress such powers as may effectu-
ally remove the only obstacle to a final ratification of the

1 Public Domain, 63.

34 The Land Question in the United States. [292

Articles of Confederation ; and that the Legislature of Mary-
land be earnestly requested to authorize the delegates in
Congress to subscribe the said articles."1
* Mr. Madison wrote to Edmund Pendleton under the date
of September 12, 1780, as follows : " Congress have at length
entered seriously on a plan for finally ratifying the Confed-
eration. Convinced of the necessity of such a measure, . . .
they have recommended, in the most pressing terms, to the
States claiming unappropriated back lands, to cede a liberal
portion of them for the general benefit. As these exclusive
claims formed the only obstacle with Maryland, there is no
doubt that a compliance with this recommendation will
bring her into the Confederation."2 Maryland, however, did
not at once comply with the resolution, but waited for the
compliance of the landed States.

On October 10, 1780, Connecticut tendered a cession of
her claims, with certain restrictions as to jurisdiction which
were rejected by Congress. On the same day, Congress
resolved " that the unappropriated lands that may be ceded
or relinquished to the United States by any particular State,
pursuant to the recommendation of Congress of the sixth day
of September last, shall be disposed of for the common
benefit of the United States, and be settled and formed into
distinct Republican States, which shall become members of
the Federal Union and have the same rights of sovereignty,
freedom and independence as the other States ; that each
State which shall be so formed shall contain a suitable extent
of territory, not less than one hundred, nor more than one
hundred and fifty miles square, or as near thereto as circum-
stances will admit That the said lands shall be

granted or settled at such times and under such regulations
as shall hereafter be agreed on by the United States in
Congress assembled, or any one or more of them."8

1 Journals of Congress, III, 516.

2 Madison Papers, I, 50.

3 Journals of Congress, III, 535.

293] The Land Question in the United States. 35

These resolutions were a precursor of the Ordinance of
1784. They denned the ultimate object of disposition
which Congress should make of territories to be ceded.
On January 2, 1781, the Legislature of Virginia passed
an act and offered to cede to the Confederation the long-dis-
puted Western lands on certain conditions which were not
satisfactory to Congress.1 The object of the cession was to
complete the ratification of the Articles of the Confederation,
and, in case any State yet remained without making the
ratification, the cession was to be void.

The three important questions in the early constitutional
history of the United States are : 1 . The proper mode of
voting in Congress, whether by States or according to popu-
lation or wealth, or ratio of representation ; 2. The rule by
which the expenses of the Union should be appropriated
among the States, or finance; and 3. The distribution of the
vacant and unpatented Western lands, or the public domain.
That the latter became an important constitutional question
was mainly through Maryland's persistent efforts.

But as Congress now urgently requested Maryland to
ratify the Articles, and New York and Virginia, as well as
Connecticut, offered to cede the Western lands, and, further-
more, Maryland's attitude gave some hope to Great Britain
that the Confederation might fail through domestic dis-
sensions of the States, Maryland could no longer withhold
the ratification, although no one of the proposed cessions
was acceptable to her. Consequently, on January 29, 1781,
the Maryland Legislature passed an act to empower her
delegates in Congress to subscribe and ratify the Articles of
the Confederation, which was read in Congress on February
12, 1781, and on March 1, 1781, the delegates of Maryland
signed the Articles.

Maryland's ratification seems to have occasioned great
rejoicing throughout the States. Mr. Duane wrote to Wash-

1 Public Domain, 67.

36 The Land Question in ike United States. [294

ington to this effect: "Let us devote this day to joy and
congratulation, since by the accomplishment of a Federal
Union we are become a nation. In a political view, it is of
more real importance than a victory over all our enemies."1
The very day Maryland joined the Confederation the dele-
gates of New York made in Congress a formal offer of her
Western lands. It took, however, another year for Congress
to determine to accept any of the offers of Western lands, for
politics and party feelings, especially with regard to the
admission of Vermont, largely entered into the long-vexed
question.

On May 1, 1782, a committee to whom the cessions of
New York, Virginia, and Connecticut and the petitions of
the several land companies had been referred, made a report
favorable to the acceptance of the cession offered by New
York. Among the reasons assigned by the committee, it
was said " that, by Congress accepting this cession, the juris-
diction of the whole Western territory belonging to the Six
Nations and their tributaries will be vested in the United
States, greatly to the advantage of the Union."2 The com-
mittee also reported that Congress should recommend Massa-
chusetts and Connecticut to cede their claims without any
conditions or restrictions whatsoever. Regarding the cession
proposed by Virginia, the committee reported that the con-
ditions annexed to the cession were incompatible with the
honor, interests, and peace of the United States, and that
Congress should neither accept the cession nor guarantee the
tract of country claimed by Virginia.

On October 29, 1782, the delegates of Maryland moved
that Congress should accept all the right, title, interest,
jurisdiction, and claim of New York as ceded by the agents
of that State on March 1, 1781. Virginia and Massachu-
setts voted in the negative, and the Carolinas were divided,

1 Bancroft. Constitutional History of United States, I, 17.

2 Journals of Congress, IV, 22.

295] The Land Question in the United States. 37

while Georgia was not represented. All the rest of the
Union voted in the affirmative. So the cession of New
York was finally accepted by Congress. This was just six
years after Maryland issued her first protest against Vir-
ginia's land claims. The land question did not then promise
to become an important national problem, but now the
whole Union beheld the creation of a public domain out
of the ceded lands in which common economic interests were
permanently to abide.

On September 13, 1783, a committee to whom the cession
of Virginia and the report thereon were referred reported
that Virginia's claim to the guaranty of its southeastern
boundary and to the annulling of the claims of all other
titles to the northwestern territory was unreasonable, and
that Virginia should waive all these obnoxious conditions,
when the cession would be acceptable by Congress.1 Vir-
ginia modified the conditions of her cession, but still claimed
all her chartered rights. On October 20, 1783, Virginia
empowered her delegates in Congress to make the cession,
which was consummated by the deed of transfer signed by
Jefferson, Monroe, and others on March 1, 1784.2

Massachusetts and Connecticut soon followed Virginia.
The Massachusetts cession took place on April 19, 1785, and
that of Connecticut on September 14, 1786. Connecticut, in
her deed of cession, reserved a tract of lands lying in the
northeastern portion of the State of Ohio known as the
" Western Reserve of Connecticut in Ohio," which, together
with the " Fire Lands " now lying in the counties of Erie,
Huron, and Ottawa, in Ohio, contained about 3,800,000
acres. On May 30, 1800, Connecticut ceded to Congress the
entire jurisdiction over her " Western Reserve."

1 Journals of Congress, IV, 263.
*Ibid. 342.

-38 The Land Question in the United States. [296

CESSIONS OF THE SOUTHEASTERN TERRITORY.

We have thus far noticed the cessions of the territory
northwest of the Ohio River, as they are important not only
in the history of the Public Domain, but also in the history
of American constitutional development. The subject of
land-cessions by the States, however, will not have been com-
pletely treated without some notice of the cession of territory
southeast of the Ohio. But there is nothing particularly
interesting in the cessions made by the three Southern States.
The facts can be stated in a few words.

On March 8, 1787, South Carolina offered to Congress to
cede her Western claim, and Congress accepted the cession on
August 9, 1787. The territory ceded by South Carolina is
a narrow strip of land which extends from the northwestern
boundary of South Carolina to the Mississippi, and which
now forms the extreme northern portion of the States of
Georgia, Alabama, and Mississippi. It contains an area of
4,900 square miles.1

The next Southern State that ceded her territory was
North Carolina. Her cession was accepted by Congress on
April 2, 1790. The cession constituted the present State of
Tennessee. In accepting the cession offered by North Caro-
lina, Congress made a poor bargain. In the deed of cession
North Carolina stated certain conditions by which Congress
had to satisfy a number of claims before it should make any
disposition of the ceded lands. It proved afterward that
Congress could hardly make any disposition whatever of the
acquired land, for the claims were even in excess of lands
whose Indian title had been extinguished by that State.
Being thus covered by reservations, the cession made by
North Carolina was only nominal, and no public lands were
created out of the ceded territory.

The last State that made cession of her Western lands was
Georgia. This State made her first movement toward cession

1 Public Domain, 76.

297] The Land Question in the United States. 39

on February 5, 1788, but her cession was not accepted by
Congress. Here, for the first time in the history of the Land
Cession, we meet with conflicting claims on the part of the
National and of the State Government. The cession as
proposed by Georgia in 1788 included the territory lying
between 31° and 32° 30' north latitude. The eastern
boundary-line began with the western extremity of Georgia,
and the western limit was the Mississippi River, as in the
case of other State claims. This territory was in the province
of British West Florida, which was ceded by Great Britain
to the United States in 1783. Consequently, the United
States claimed the right of jurisdiction over this territory.

In the meantime the Legislature of Georgia sold 13,500,-
000 acres of lands in the Mississippi Territory to certain
Yazoo Companies. The lands thus sold were not within
the limits of the State of Georgia, but in the territory whose
title belonged to the United States according to the treaty of
1783. The Yazoo Companies sold out their claims to the
lands, and various new companies were organized under
such sales. In February, 1796, the Legislature of Georgia
passed an act and annulled the sale of the Yazoo Companies
to several land companies for the lands west of the river
Chattahoochee. Thus arose the litigation for lands in
Georgia.

On April 7, 1798, Congress passed an act authorizing
the President to appoint three commissioners to settle the
conflicting claims of the United States, and to receive the
cession of Georgia. The United States Commissioners and
the Commissioners of Georgia came finally to an agreement,
and on April 24, 1802, Georgia ceded her entire Western
claims. The ceded territory was estimated at 88,578 square
miles. The Georgian cession cost the United States in all
about $6,200,000, as it was encumbered with various land
claims.

The following table shows the dates and area of cessions
by the States :

40

The Land Question in the United States. [298

TABLE I.

* States.

Date.

Square Miles.

Acres.

Massachusetts, ) Cessions
Connecticut, J disputed....

April 19, 1785
Sept. 13, 1786

54,000
40,000

34,560,000
25,600,000

New York — Actual

March 1, 1781

315.91

202,187

Virginia — Exclusive of Ky...

March 1, 1784
August 9, 1787

265,562.00
4,900.00

169,959,680
3,136,000

North Carolina

Feb. 25, 1790

45,000.00

29,184,000

Georgia

April 24 1802

88 578 00

56 689 920

Total Cession

404,955 91

259,171,787

Table II. shows where the ceded lands are now located
TABLE II.

Ceding States.

States.

Areas.

New York

Erie, Penn.

351.91

Virginia

Ohio.

39,964.00

1
Virginia, Massachusetts ! Northwest of the

Indiana.
Illinois.
Michigan.

33,809.00
35,414.00
56,451.00

J 265,877.91 sq. m.
South Carolina 1

Wisconsin.
Minnesota.
Georgia

53,924.00
26,000.00
1 500 00

! Southeast of the

•NTnrfV, Pa ml inn f River Ohio

Alabama.
Mississippi.

1,700.00
1,700.00

AK ({()() ftft

Georgia J 139,078 sq. ra.

Alabama

46 722 00

Mississippi.

41,856.00

Total Area

404 955.91

We have now come to the second great acquisition of
territory by the United States — viz. :

THE PURCHASE OF LOUISIANA.

We have seen that the public lands were created by
cessions from the States, but we must keep in mind that the
creation of the public lands was not accompanied by an
increase of area in national domain, for the cessions were

299] The Land Question in the United States. 41

within the national domain and of definite extent and character.
The transaction was within one household, and the transfer
of ownership was from members of the same household to a
representative head of all. The purchase of Louisiana was
an international transaction. It was a dealing with foreign
soil belonging to a foreign sovereign. It was an acquisition
that was accompanied by a vast increase of area in national
as well as in public domain. The whole acquisition became
public lands, out of which eleven commonwealths and six
territories have already sprung.1 The new territory was
no less than eleven hundred and eighty thousand square
miles, being five times greater than the area of France.

Indeed, the purchase of Louisiana was the most important
acquisition the United States has ever made. The possession
of a vast empire west of the Mississippi, and the advantages
of free, uii trammeled river navigation, have made the United
States a truly great power in the world. Supposing France
or Spain had control of the great central valleys of the Mis-
sissippi and Missouri Rivers. In the southeast lies New
Orleans, a key to the great water-course to which the
United States could not have had access. Far up along the
Pacific Coast lie now the Territory of Washington and the
State of Oregon, whose land once belonged to the province
of Louisiana. A little lower down the coast there is the State
of California, with its rich gold-mines and its capacious
harbor. Supposing a great Latin empire had arisen in this
province of Louisiana. California, with its gold-mines ; Nevada
and Colorado, with their silver ; New Mexico and Texas with
their agricultural resources, would not now belong to the
United States. The great West, with all its natural wealth
and resources, would now be subject to European powers.
The territory back of the Alleghanies and east of the Missis-
sippi, which was the first curtailment of French claims, might,
in the changes of war and politics, have undergone a retroces-

1 Public Domain, 105.

42 The Land Question in the United States. [300

sion to France or a total loss to Spain, and the United States
have remained pent up, confined along Atlantic borders. The
United States, of such a character, would have been entirely
different from the United States of to-day. Good policy, pruden-
tial measures, and the final purchase of Louisiana, made the
United States the master of the best portions of the New
World. Let us now briefly review the history of the purchase
of Louisiana by the United States.

HISTOEY OF SETTLEMENT IN LOUISIANA.

The name Louisiana was originally applied to a vast
region of an unknown extent back of the Alleghany Moun-
tains, and along the Mississippi River and its tributaries.
Of indefinite and ambiguous character, French Louisiana
was much like the English Virginia, and, like the latter, it
had to undergo several curtailments, until it assumed a definite
historical character.

In 1683, La Salle christened the country in honor of Louis
XIV. The French cavalier performed a baptismal duty
similar to that discharged by the English courtier, Sir
Walter Raleigh, when he christened Virginia in honor of the
virgin queen Elizabeth. Both adventurers failed, however,
in their colonial enterprise. La Salle met with scarcely a
better fate than the luckless Raleigh, for he was shot by
one of his own men on a relief expedition to Canada. The
task of first organizing Louisiana for economic purposes fell
upon Sieur Antoine Crozat; and Louis XIV. granted a
charter for commercial privileges in Louisiana.1 The charter
was surrendered by Crozat in 1717, and in the same year
it was granted to the " Company of the West."2

The French domination in Louisiana lasted till November
3, 1762, when it was ceded to Spain. On February 10, 1763,
France and Spain ceded all their possessions in North

1 Historical Collections of Louisiana, III, 38.
• Ibid. 49.

301] The Land Question in the United States. 43

America east of the Mississippi River, except New Orleans1
and the island on which it stands. The Mississippi River
was fixed as an international boundary between the Spanish
Louisiana and the English colonies. On October 1, 1800,
Spain, by the secret treaty of San Ildefonso, transferred the
Province of Louisiana back to France. Spain ceded
Louisiana to France in consideration of the Grand Duchy
of Tuscany, then granted to the Duke of Parma, the son-in-
law of the King of Spain, and dreamed little of the sale of
Louisiana by Bonaparte to the United States. The Spanish
domination in Louisiana lasted for thirty-eight years. But
a third power was to replace both France and Spain in that
interesting historical Province of Louisiana.

PECULIARITIES IN THE INSTITUTIONS OF LOUISIANA.

Before proceeding farther in the history of the acquisition
of Louisiana by the United States, let us notice some of the
peculiarities which that province presented to the world in
point of institutions, laws, and population. At the outbreak
of the French and Indian war, France possessed the terri-
torial basis of a splendid empire in the new world. Her
possessions embraced, on the south, the mouth of the Missis-
sippi, on the north, that of the St. Lawrence. Her territory
stretched through the heart of the continent and covered the
great central valley of the Mississippi and the Northern
Lakes. The peace of Paris in 1763, as we have seen, cur-
tailed this grand possession. A vast Western empire was
divided by the Mississippi into English and Spanish
dominions.

Although Louisiana was thus successively an imperial
province of the French and Spanish monarchies, it is said
that feudalism never prevailed there. "Louisiana never
knew anything like a right of primogeniture and a privileged

1 New Orleans was named in honor of Philip, Duke of Orleans, Regent
from 1715 to 1723, during the minority of Louis XV.

44 . The Land Question in the United States. [302

class. No part of feudality was ever known here, neither in
equality in the distribution of estates nor fiefs nor seignories
nor mayoralties. The grants of land were all allodial, and
under no other condition than that of cultivation and
improvement within limited periods ; in fact, essentially in
fee-simple."1

Though Louisiana did not inherit feudalism, it inherited
French law and custom. They were introduced through the
charter granted to Crozat. The charter says that "our
edicts, ordinances and customs, and the usages of the mayor-
alty and shrievalty of Paris shall be observed for laws and
customs in the said country of Louisiana."2 The matri-
monial community of gains, the inalienability of dower, the
strict guards by which the property-rights of the wife were
secured against the extravagance of spendthrift husbands,
were all introduced into Louisiana, and reveal the French
inheritance of Roman law. The writ of habeas corpus and
trial by jury were unknown in the Louisiana of French and
Spanish domination. The introduction of the Spanish law
in 1769 did not materially change the French laws and
customs.

During the thirty-eight years of Spanish rule, Louisiana
greatly increased in population. It was " the favored part of
Spain." In sixteen years from 1769 the population of
Louisiana is said to have doubled,3 but the population
represented different nationalities. " Like the rich soil upon
our great rivers," says Dr. Billard, "the population may
be said to be alluvial, composed of distinctly colored strata,
not yet perfectly amalgamated, left by successive waves of
emigration. Here we trace the gay, light-hearted, brave
chivalry of France; the more impassionate and devoted
Spaniard; the untiring industry and perseverance of the
German, and the bluff sturdiness of the British race. Here

1 Historical Collections of Louisiana, I, 15.

2 Public Domain, 90.

3 Historical Collections of Louisiana, 15.

303] The Land Question in the United States. 45

were thrown the wreck of Acadie, and the descendants of
these unhappy fugitives still exist in various parts of the
country The traces of the Canadian hunter and boat-
man are not yet entirely erased."1

AMEKICAN DIPLOMACY IN THE PURCHASE OF LOUISIANA.

In a territory where there were such laws and customs,
and such a cosmopolitan population, Napoleon aimed to
establish the new regime of France in the nineteenth cen-
tury. This was "viewed with great alarm in the United
States." No sooner was Mr. Jefferson inaugurated than he
began to look into the matter of the secret cession of Spain.
On March 29, 1801, Mr. King, then the American Minister
in London, informed the Government of the cession of
Louisiana.2 Thereby, Mr. Pinckney, at Madrid, and Mr.
Livingstone, at Paris, were instructed with regard to the
alleged transfer. On November 20, 1801, Mr. King sent
from London a copy of a treaty signed at Madrid, by which
the Prince of Parma was established in Tuscany. This was
the confirmation of the secret treaty of San Ildefonso, and the
secrecy of the transfer of Louisiana became an open and
acknowledged fact.

Regarding seriously this transfer of Louisiana to France,
Mr. Jefferson, under the date of April 18, 1802, wrote to
Mr. Livingstone as follows : " The cession of Louisiana and
the Floridas by Spain to France works most sorely on the
United States. ... It completely reverses all the political
relations of the United States, and will form a new epoch in
our political course. . . . There is on the globe one single
spot the possessor of which is our natural and habitual
enemy. It is New Orleans, through which the produce of
three-eighths of our territory must pass to market, and from

1 Historical Collections of Louisiana, I, 4.

2 American State Papers, II, 509.

46 The Land Question in the United States. [304

its fertility it will ere long yield more than half of our whole
produce, and contain more than half of our inhabitants.
France, placing herself in that door, assumes to us the atti-
tude of defiance. The day that France takes possession of
New Orleans fixes the sentence which is to restrain her for
ever within her low-water mark. From that moment we
must marry ourselves to the British fleet and nation."
Mr. Jefferson further instructed Livingstone to persuade
the French Government to part with New Orleans in order
that peace and friendship might continue between the two
nations.1 Accordingly, Mr. Livingstone made efforts to con-
vince the French Government that its true interest demanded
the selling of French possessions in America,2 but, at first,
Bonaparte would not listen to this idea.

On October 16, 1802, Don Morales, Spanish intendant of
Louisiana, prohibited the further use by the United States of
the city of New Orleans as a place of deposit for merchandise,
as guaranteed by the treaty of 1795. The twenty-second
article of the same treaty stipulated that, in case Spain should
withdraw the right of use by the United States of New
Orleans, she was to assign another place, on another part of
the banks of the Mississippi, in lieu of New Orleans. The
Spanish intendant failed to do so, and, throughout the United
States, great excitement followed his act.

It seems to have been the policy of Spain that foreign
commerce should be excluded from the Mississippi River. In
the treaty of 1783, it was agreed between Great Britain and
the United States that the navigation of the Mississippi
should be free to both nations.8 But Spain was in possession
of the territory west of the river, as well as of New Orleans
and the island on which it stands. The southern boundary
of the United States was fixed at the thirty-first parallel of
north latitude. Spain refused to make a treaty with the

1 Jefferson's Works, IV, 432-34.

9 American State Papers, II, 520-25.

3 Laws of U. S. (Duane edition), I, 205.

305] The Land Question in the United States. 47

United States in 1780-82, for Jay demanded the free naviga-
tion of the Mississippi.

On October 27, 1795, Pinckney succeeded in concluding
a treaty by which the southern boundary of the United
States was recognized as 31° north latitude, and the free
navigation of the Mississippi and the right of deposit in
New Orleans were assured to the United States by Spain.
With regard to the place of deposit, however, the United
States was at Spam's mercy. New Orleans was guaranteed
for three years only, and whether or not the port might be
used afterward depended upon the pleasure of the King of
Spain. The Spanish intendant closed New Orleans to the
citizens of the United States, and their interests were thus
imperilled. If France should come into possession of New
Orleans, the interests of the United States would be even
more endangered.

Mr. Jefferson therefore determined to get hold of New
Orleans and the Floridas by peaceful negotiations, in spite
of the opposition of the war-party in Congress. On January
10, 1803, Mr. Monroe was appointed as Minister Pleni-
potentiary and Envoy Extraordinary to France, and $2,000,-
000 were appropriated for the purposes of his mission.
Joining with the American Ministers at Paris and Madrid,
Mr. Monroe had to open negotiations anew for the acquisition
of New Orleans and the Floridas.

The acquisition of the province of Louisiana west of the
Mississippi was not yet thought of by Mr. Jefferson and his
Cabinet. Under the date of January 13, 1803, Mr. Jefferson
wrote to Mr. Monroe on his nomination and the policy of the
Government regarding the subject of purchasing New Orleans
as follows : " The agitation of the public mind on occasion of
the late suspension of our right of deposit at New Orleans is
extreme. In the Western country it is natural, and grounded
on honest motives. In the seaports it proceeds from a desire
for war, which increases the mercantile lottery; in the
Federalists generally, and especially those of Congress, the

48 The Land Question in the United States. [306

object is to force us into war, if possible, in order to derange
our finances, or, if this cannot be done, to attach the Western
country to them as their best friends, and thus get again into
power. Remonstrances, memorials, etc., are now circulating
through the whole of the Western country, and signed by the
body of the people. The measures we have been pursuing,
being invisible, do not satisfy their minds. Something
sensible, therefore, has become necessary; and indeed our
object of purchasing New Orleans and the Floridas is a
measure liable to assume so many shapes that no instructions
could be squared to fit them. It was essential, then, to send a
Minister Extraordinary, to be joined with the ordinary one,

with discretionary powers All eyes, all hopes, are now

fixed on you ; and were you to decline, the chagrin would be
universal, and would shake under your feet the high ground
on which you stand with the public. Indeed, I know nothing
which would produce such a shock. For on the event of this
mission depend the future destinies of this republic."1 The
entire correspondence of Mr. Jefferson shows that he regarded
the acquisition of Louisiana as necessary to the United States
in order to preserve peace at home and friendship abroad.
His pacific policy finally proved of great benefit to the
Union.

» Just before the arrival of Mr. Monroe, M. Talleyrand
requested Mr. Livingstone to make an offer for the whole
Province of Louisiana. Mr. Livingstone intimated that
20,000,000 francs would be a fair price, but that sum was
considered too little by the French Minister. It was not the
intention of the United States to purchase entire Louisiana,
and Mr. Livingstone had really no authority to negotiate for
it. The instructions to Mr. Livingstone and Mr. Monroe on
March 2, 1803, gave a plan which expressly left to France
"all her territory on the west side of the Mississippi."2
France, however, wanted to dispose of the whole Province of

1 Jefferson's Works, IV, 454.

3 American State Papers, II, 540-44.

307] The Land Question in the United States. 49

Louisiana. On April 12, 1803, Mr. Monroe arrived in
Paris. The next day M. Barb6 Marbois, the Minister of the
Treasury, opened the negotiation with the two American
Ministers, who offered him, on behalf of the United States,
50,000,000 francs. This sum was refused, for Napoleon
wanted 125,000,000 francs. In this negotiation the American
Ministers were acting beyond their instructions.

There were rumors of England's intention to capture
Louisiana. Quick negotiation was therefore needed. Napo-
leon had previously intended to send the French fleet at San
Domingo to Louisiana, in order to take possession of it.
Should the negotiation fail, he might renew his object.
Besides, the treaty of San Ildefonso had a restrictive clause
touching the alienation of Louisiana, and should Spain learn
of the intention of Bonaparte she might interfere with the
negotiation, and the plan of Mr. Jefferson might consequently
fail.

Fear of English capture and of Spanish interference, on
the one hand, and, on the other, the proposition of the French
Government, which was beyond ministerial instructions, were
pressing considerations with Messrs. Livingstone and Monroe.
Their political good sense must decide what course to pur-
sue for the benefit of the United States. They finally
accepted the proposition of M. Marbois to take the whole
Province of Louisiana for 80,000,000 francs, one-fourth of
which sum was assigned to the payment of the claims of
American citizens against the French Government, in case
they should amount to that figure. The cession was made
April 30, 1803, with three separate provisions : First, a
treaty of cession ; second, a convention as to the payment
of purchase-money ; and third, a convention as to the settle-
ment of the American claims against the French Govern-
ment.1 On October 19, 1803, the Senate ratified the treaty,
and ratifications were exchanged at Washington two days
later. On October 23, 1803, the President was authorized

1 See Public Domain, 96-99, for these treaties.

50 Tlie Land Question in the United States. [308

to take possession of the ceded territory, which was not yet
in the hands of the French. On November 30, 1803,
however, Pierre Clement Laussat, the French Commissioner,
received the Province of Louisiana from El Marquez de
Casa Calvo, the Spanish Commissioner, and after an occu-
pation of twenty days, France, on December 20, 1803, ceded
Louisiana to the United States.

UNCONSTITUTIOXALITY OF THE LOUISIANA PURCHASE.

Mr. Jefferson freely admitted that his act was unauthorized
by the Constitution. In a letter to Breckenridge under the
date of August 12, 1803, he says: "This treaty [referring to
the treaty of cession] must, of course, be laid before both
Houses, because both have important functions to exercise
respecting it. They, I presume, will see their duty to their
country in ratifying and paying for it, so as to secure a good
which would otherwise probably be never again in their
power. But I suppose they must then appeal to the nation
for an additional article to the Constitution, approving and
confirming an act which the nation had not previously
authorized. The Constitution has made no provision for
our holding foreign territory, still less for incorporating
foreign nations into our Union. The Executive, in seizing
the fugitive occurrences which so much advance the good of
their country, had done an act beyond the Constitution.
The Legislature, in casting behind them metaphysical subtle-
ties, and risking themselves like faithful servants, must
ratify and pay for it, and throw themselves on their country
for doing for them unauthorized what we know they would
have done for themselves had they been in a situation to do
it." l Indeed, the entire party connected with the purchase
had done a thing unauthorized. The Ministers abroad went
far beyond their instructions. The President, knowing the

'Jefferson's Works, IV, 500-501.

309] The Land Question in the United States. 51

unconstitutionality of the purchase, deliberately made it for
the good of the country and with faith in the nation. Congress
took the part of a " guardian " and invested the people's
money in Louisiana, but with no constitutional authority.
The result justified the act, and the nation acquiesced and
rejoiced in the acquisition of the new territory.

SPANISH PROTEST AGAINST THE CESSION OF LOUISIANA.

It was Spain that fared worst in the transaction between
France and the United States. The day on which Spain
secretly transferred Louisiana back to France determined the
destiny of the Spanish colonies in North America. She was
bound to lose them, either by cession or by revolution.
Spain protested against the cession of Louisiana to the United
States, but the protest availed nothing. Mr. Jefferson wrote
to Mr. Livingstone, under the date of November 4, 1803, that
" Spain had entered with us a protestation against our ratifi-
cation of the treaty, grounded, first, on the assertion that the
First Consul had not executed the conditions of the treaties
of cession ; and, secondly, that he had broken a solemn
promise not to alienate the country to any nation. We
answered that these were private questions between France
and Spain which they must settle together ; that we derived
our title from the First Consul, and did not doubt his
guarantee of it."1 There appear to have been some rumors
that Spain would not deliver the whole Province of Louisiana
to France, and Mr. Pinckney, the American Minister at
Madrid, made inquiry of the Spanish Government, which
assured him that the King had given no order whatever for
opposing the delivery of Louisiana to the French, and that
he had thought proper to renounce his protest against the
alienation of Louisiana by France, notwithstanding the solid
grounds upon which that protest was founded ; affording in
this way a new proof of his benevolence and friendship for
the United States.2

1 Jefferson's Works, IV, 511. 2 Public Domain, 104;

52 The Land Question in the United States. [310

Spain thus renounced her claim to Louisiana, but the
boundary-lines between Louisiana and the Spanish Floridas
were not fixed till 1819. Spain claimed that the portion of
territory lying below 31° north latitude, and between the Iber-
ville and Perdido Rivers, was within the limits of West
Florida. The United States claimed that this territory was
within the ancient boundary of Louisiana, and was therefore
a part of the cession by Spain to France by the treaty of San
Ildefonso, which part, by virtue of the treaty of 1803, should
now come under the jurisdiction of the United States. This
controversy, known as " Perdido Claim," was settled by the
cession of Florida to the United States by Spain in 1819,
although the former disregarded the Spanish claim, and
actually took possession of the territory before that date.

The following table shows the cost and area of the Louisi-
ana Purchase, as well as its subsequent division into the
States and Territories.

TABLE III.1
THE LOUISIANA PURCHASE.

Principal $15,000,000.00

Interest to redemption 8,529,353.00

$23,529,353.00
The French Spoliation Claims paid by the United States... 3,738,208.98

Total cost of Louisiana Purchase $27,267,621.98

Area in
Square Miles.

Alabama : between the Perdido and State of Mississippi 2,300

Mississippi : between Alabama and Louisiana, below 31° N...... 3,600

Louisiana 41,346

Arkansas 52,202

Missouri 65,370

Kansas: all but southwest corner 73,542

Iowa 55,045

Amount carried forward 293,405

Public Domain, 105.

311] The Land Question in the United States. 53

Amount brought forward 293,405

Minnesota : west of the Mississippi River 57,531

Nebraska 75,995

Colorado: east of the Rocky Mountains and north of the

Arkansas River 57,000

Oregon 95,274

Dakota 150,932

Montana 143,776

Idaho 86,294

Washington 69,994

Wyoming : all but the zone in the middle, south and south-
west part 83,563

Indian Territory... 68,991

Total area of Louisiana Purchase 1,182,755

PURCHASE OP THE FLORIDAS.

As we have already seen, when Mr. Jefferson opened the
negotiation through his Ministers with Bonaparte for the
purchase of Louisiana, it was not the Province of Louisiana,
but rather New Orleans and the Floridas, that he intended
to purchase. The fact that Spain did not cede the Floridas
was only later known to the United States. Therefore, the
oifer by Bonaparte of the entire Province of Louisiana was
beyond the expectation of Mr. Jefferson.

The correspondence of Mr. Jefferson clearly shows that his
original idea was to secure New Orleans and the Floridas,
and thus to have for the United States a well-rounded
national domain east of the Mississippi. Therefore, Mr.
Jefferson must have begun the negotiation with the idea
that the territory of West Florida extended as far east as
the Mississippi, with 31° north latitude for its northern
boundary, as settled in the treaty with Spain of 1795. If it
were understood, on the contrary, that West Florida extended
only to the Perdido River, then Mr. Jefferson should have
given instructions to his Ministers to negotiate the purchase
of both Floridas, of New Orleans, and that part of Louisiana
east of the Mississippi and lying between the rivers Perdido
and Mississippi. But, instead of this, as the instructions

54 The Land Question in the United States. [312

were for the purchase of New Orleans and the Floridas, Mr.
Jeiferson must have taken it for granted that West Florida
extended to the Mississippi, as Spain afterward claimed.

GEOUNDS OF AMERICAN AND SPANISH DISPUTES.

From the above facts, there seem to be good reasons for
the claim of Spain to the tract of territory west of the
Perdido River. In the first place, France ceded to Great
Britain, in 1763, the territory east of the Mississippi, as well
as Canada, and confirmed to Spain the cession of the pre-
vious year — namely, the Province of Louisiana west of the
Mississippi, with New Orleans and its island. By the same
treaty Spain ceded to Great Britain the Province of Florida.
Out of these cessions by France and Spain, Great Britain
organized, among others, the two provinces of East and
West Florida in the southern portion of her newly-acquired
territory.

By the treaty of 1783 the southern boundary of the United
States was recognized by England as 31° north latitude.
But Spain, taking advantage of the American Revolution,
wrested from England the provinces of the Floridas. She
claimed the British Province of West Florida, whose north-
ern boundary-line ran from the confluence of the Yazoo
with the Mississippi on the west to the Appalachicola River
on the east, as fixed by the Royal Order to Governor Elliot
of May 15, 1767.1 But, as we have already seen, Spain
waived this claim by the treaty of 1795, and recognized the
southern boundary of the United States as set forth in the
definitive treaty of 1783. This treaty of 1795 settled the
boundary dispute of the two nations, and Spain was once
more the ruler of the Floridas and the vast empire of
Louisiana.

But the secret cession to France by Spain of Louisiana in

1 Laws of the United States (Duane edition), I, 451.

313] Hie Land Question in the United Stales. 55

1800, and its purchase from France by the United States in
1803, again brought forth a fresh dispute between the United
States and Spain as to the boundary-line between Louisiana
and West Florida. Spain claimed the boundary-line as
ceded by Great Britain in 1783, to which country France
ceded her possessions east of the Mississippi in 1763. The
United States claimed the ancient boundary of Louisiana
as France had possessed it previous to 1763. Spain
argued that France did not cede to her the territory east of
the Mississippi in 1763, and that she did not cede back to
France in 1800 what France did not cede to her in 1763.
All the disputes arose from obscurity in the treaty of 1803
between the United States and France regarding the bound-
aries of Louisiana. Not only as to the eastern, but also as
to the western boundary-line, the United States had a dispute
with Spain, to which we shall later refer.

SITUATION OF SPANISH COLONIES AFTER THE LOUISIANA

PURCHASE.

By the purchase of Louisiana by the United States, the
Spanish colony in Mexico was separated from that in Florida
by a growing nation whose interests in the development and
settlement of the western country were stronger and more
rational than those of an ambitious and capricious nation
like the French. Spain was destined to lose both of the
colonies. Mr. Jefferson saw that the United States would
ultimately succeed in the acquisition of the Floridas, and
was fully convinced of the vast importance of the Mississippi
navigation. In a private letter to Breckenridge under the
date of August 12, 1803, he wrote as follows : " Objections
are raising to the eastward against the vast extent of our
boundaries, and propositions are made to exchange Louisiana
or a part of it for the Floridas. But, as I have said, we
shall get the Floridas without, and I would not give one
inch of the waters of the Mississippi to any nation, because I

56 The Land Question in the United States. [314

see in a light very important to our peace the exclusive
right to its navigation and the admission of no nation into
it."1 .... With regard to the boundaries of Louisiana, Mr.
Jefferson wrote in the same letter the following : " We have
some claims to extend on the seacoast westwardly to the
Rio Norte or Bravo, and, better, to go eastwardly to the Rio
Perdido, between Mobile and Pensacola, the ancient boundary
of Louisiana."

The Perdido claim, however, was not pushed by the
United States, but efforts were made to purchase the Floridas
from Spain by Armstrong and Bowdoin, Monroe and
Pinckney, under instructions from President Jefferson. All
negotiations failed. In 1810 a revolutionary party in West
Florida declared independence of Spanish rule and formed a
State. The independents elected one Rhea for President,
and asked of the United States admission to the Union.
They further asked for a loan of money, and that the United
States would recognize vacant lands in West Florida as the
common property of the new commonwealth.2 President
Madison did not grant the requests of the revolutionary
party, but issued a proclamation to take possession of the
territory east of the Mississippi under the treaty of 1803.
Governor Claiborne, of Orleans Territory, was sent there to
take possession.

The revolutionists from Fort Stoddart attacked Mobile,
which was then held by the Spanish authority, but were
repulsed. Another attack was, however, threatened, and,
alarmed at the condition of affairs, Tolch, the Spanish
Governor, wrote a letter to the American authorities, and
intimated that he would transfer the territory to the United
States unless he were soon reinforced from Havana or Yera
Cruz.

On April 14, 1812, the territory lying between the Pearl
and Mississippi Rivers was annexed to Louisiana, and the

'Jefferson's Works, IV, 499.

2Hildreth. History of United States, VI, 223.

315] The Land Question in the United States. 57

remaining portion, as far east as the Perdido River, was
incorporated, May 14, 1812, with the Mississippi Territory.

In the meantime a fresh trouble arose in East Florida.
By a secret act of Congress, General Mathews, of Georgia,
was commissioned to East Florida to receive the province, if
the Spanish authority would transfer it by an amicable
settlement, or to take possession of the province by force if
any foreign power should attempt to seize it. Mathews
co-operated with the insurgents and defied the Spanish
authorities.1 Congress disapproved his act, and replaced
him by appointing Governor Mitchell, of Georgia. Mitchell
pursued the same policy as General Mathews, and did not
withdraw the American troops from Florida. The Legisla-
ture of Georgia passed an act November 20, 1812, that a
State force should be raised to reduce St. Augustine and
punish the Indians.2 They resolved that the occupation of
East Florida was essential to the safety of the State, whether
Congress should approve their act or not.

Thus Georgia apparently came in conflict with the National
Government, but its legislative measure must have coincided
with the policy of the administration, which was compelled
by the existing state of affairs to resort to military, operations,
both against the hostile Indians and the British forces now
in Spanish territory. On July 14, 1814, General Jackson
was ordered to take possession of Pensacola, but before the
order reached him a British naval force reached Pensacola
and lent aid to the hostile Creeks. Jackson succeeded in
driving out the British, and delivered over the town to the
Spanish authorities.

In 1816 Don Orris, the Spanish Ambassador, who was
recognized as such the previous year, protested against the
occupation of West Florida by the United States, and insisted
upon non-intercourse between the United States and Mexico,

1 Hildreth. History of the United States, VI, 311.
UUd. 375.

58 The Land Question in the United States. [316

for the latter was now in revolt against Spain.1 Mr. Monroe,
then Secretary of State, suggested the transfer of the Floridas
to the United States in exchange for a part of Louisiana
lying near Texas, but nothing resulted from this communi-
cation.

In^the following year Mr. Monroe became President, and
proposed the cession of the Floridas by Spain in lieu of the
claims of American citizens against that country, and a
diplomatic correspondence upon this question ensued between
John Quincy Adams and Don Orris. During the same year
the Seminole Indians harbored Creek refugees and were a
source of trouble to the Georgia settlers. General Jackson
was ordered to conduct a -campaign against the Seminoles,
and was instructed to pursue them into Florida, if necessary.
In April, 1818, Jackson took possession of the Spanish fort
at St. Mark's in Florida, and in the following month he
entered the town of Pensacola. The Spanish Governor held
the fort at the Barrancas, which capitulated three days later.
On June 17, 1818, Don Orris protested against the action of
General Jackson, but Adams replied that it wras justifiable
on the principle of self-defence, and because of the non-ful-
filment of . the treaty obligation of Spain to restrain the
Indians within her territory.

FORMAL NEGOTIATIONS FOB FLORIDA.

Jackson's military operations in Florida caused hot discus-
sions in Congress, but, while the matter was pending, the
ratification of the convention of 1802 between the United
States and Spain arrived at Washington. This was a con-
vention for adjusting the mutual claims of each government.
According to instructions received from the Spanish Govern-
ment in connection with the ratification, Don Orris opened
negotiations for the cession of the Floridas. There was
some disagreement at first with regard to the western

1 Public Domain, 110.

317] The Land Question in the United States. 59

boundary of Louisiana, but at last a compromise was effected,
and on February 22, 1819, a treaty of cession was signed by
Adams and Orris.

Mr. Benton, regretting that the western boundary of
Louisiana was not extended as far westward into Texas as it
ought to be, and remarking the political considerations that
entered into the question, said that " the repugnance in the
Northeast was not merely to territorial aggrandizement in
the Southwest, but to consequent extension of slavery in
that quarter ; and to allay that repugnance and to prevent
the slavery-extension question from becoming a test in the
Presidential election was the true reason for giving away
Texas, and the true solution of the enigma involved in the
strange refusal to accept as much as Spain offered."1

The acquisition of the Floridas and the settlement of the
Louisiana boundary seem, however, to have met with popular
approval, for Mr. Benton himself declared that he stood
" solitary and alone " in this question, and was mortified at
finding that not a paper in the United States supported his
opposition.

The Orris-Adams Treaty was unanimously ratified by the
United States Senate, but Spain hesitated to ratify it, and
suffered the time for ratification to elapse. After much
correspondence, Spain finally agreed to the treaty, October
29, 1820, and in the following year she surrendered the
disputed territory to the United States.

The third and fourth articles in the treaty that related to
the western boundary of Louisiana remained a dead letter
for many years, because of the war between Mexico and
Spain. But when Mexico became independent, the United
States entered into treaty with the new Republic, and
obtained the confirmation of the articles established by the
treaty of 1819.

The Florida purchase cost the United States $6,489,768.

1 Benton. Thirty Years in the U. S. Senate, I, 16.

60 The Land Question in the United States. [318

It added to the national and public domain 59,268 square
miles.1

TEXAS ANNEXATION AND TEXAS CESSION.2

The annexation of the Republic of Texas in 1845 added
to the national domain 376,123 square miles, or 240,718,720
acres, but nothing whatever to the public domain until after
the Mexican War. Texas was originally claimed both by
Spain and France. Spain claimed it before 1763. France
never ceded to Texas the claim based upon discovery by
La Salle in 1682, and upon actual colonization in 1685, at
Matagorda Bay.3 By the purchase of Louisiana in 1803,
the United States acquired the French claim to Texas. In a
letter to James Monroe, under the date of February 4, 1816,
Mr. Jefferson wrote as follows : " On our acquisition of that
country [meaning Louisiana] there was found in possession
of the family of the late Governor Messier a most valuable
and original MS. history of the settlement of Louisiana by
the French, written by Bernard de la Harpe, a principal
agent through the whole of it. It commences with the first
permanent settlement of 1699 (that by De la Salle in 1684
having been broken up) and continues to 1723, and shows
clearly the continual claim of France to the Province of
Texas as far as the Rio Bravo (Rio Grande), and to all the
waters running to the Mississippi, and how by the roguery
of St. Denis, an agent of Crozat, the merchant to whom the
colony was granted for ten years, the settlements of the
Spaniards at Nacadoches, Adais, Assinays and Natchitoches,
were fraudulently invited and connived at."4 Thus the
author of the treaty of 1803 firmly believed that Texas, as
far as the Rio Grande, was included in the Province of

1 Public Domain, 120.

2 Von Hoist. Constitutional History of the United States, 1828-1846,
Chapter VII, and also ibid. 1846-1850, Chapter III.

a Public Domain, 120.

4 Jefferson's Works, VI, 551.

319] The Land Question in the United States. 61

Louisiana, and consequently came into the possession of the
United States through its purchase. But by the purchase
of Florida from Spain in 1819, the United States agreed to
accept for its western boundary the present eastern boundary
of the State of Texas, which was then acknowledged as a
province under Spanish rule. This treaty of 1819 was
regarded by some as " the cession of Texas/'1 as well as the
purchase of the Floridas. But it was " a temporary measure/'
and Texas was destined to become a member of the Union.

TEXAS AFTER THE MEXICAN INDEPENDENCE.

On February 24, 1821, Mexico, by the treaty of Cordova,
obtained its independence ; Texas and Coahuila became one
of the States of the Mexican Republic. Meanwhile the tide of
immigration began to roll into the United States. The
number of immigrants increased rapidly after 1825. They
preferred to settle on free soil, and went to the Northwest.
The Southerners began then to cross the border of Mexico
and to settle in Texas. They were slaveholders and land
speculators. In order to counteract the influence of the non-
slaveholding States, the Southerners found themselves com-
pelled to extend slave territory. The plains of Texas were
good soil for the propagation of servile institutions. The
Sabine River was but a nominal international boundary, for
though Texas was under a new Mexican Government, it was
dominated by the Anglo-Americans from the Southeastern
States. These Texas settlers obtained large grants of land
from the Mexican Government, under the pretence of being
Roman Catholics.

From 1827 to 1829 attempts were made on the part of the
United States to purchase Texas from the Republic of Mexico.
In 1827 Mr. Clay, then Secretary of State in President
Adams' cabinet, oifered $1,000,000 for the cession of Texas,

1 Benton. Thirty Years in the United States Senate, 15.

62 The Land Question in the United States. [320

but the offer was not formally tendered to the Mexican
Government by the United States Minister, Mr. Poinsett.
In 1829 Mr. Van Buren, Secretary of State under General
Jackson, offered $5,000,000 for Texas, but Mexico refused
the offer. She misapprehended the situation. It was fore-
ordained that revolution was to sever Texas from the new
Mexican Union. It was impossible to keep free, liberty-
loving, adventurous Anglo-American settlers in Texas under
a Latin, Roman Catholic domination in Mexico.

The colonization laws of Texas granted a league of land,
equivalent to 4,604 acres, to each settler who was the head of
a family. She also granted one-third of a league, or 1,476
acres, to each single man.1 This liberal land policy induced
adventurers from neighboring States to settle in Texas and
to identify themselves with her people. In 1830 the
Mexican Government issued orders forbidding any further
emigration from the United States ; but in 1833 the popu-
lation of Texas had grown so large that she was able to call
a convention, and to constitute herself a Mexican State
independent of Coahuila.

The separation of Texas from Coahuila was but the first
step toward complete independence of Spanish-Mexican rule.
Antipathy of race and land speculations worked together and
carried Texas into a revolutionary war. On November 1,
1835, a " general consultation " of all Texas was held at San
Felipe de Austin. War already existed between Mexico
and Texas. Hostilities opened on September 20, 1835, on
the western bank of the Guadalupe River. On November
11 the " consultation " adopted the plan of a provisional
government, and on the following day it elected Henry
Smith Governor.

On March 1, 1836, a convention assembled at the town of
"Washington, on the Brazos River. In this the darkest
period of their history, the Texans made a declaration of

1 W. M. Gouge. Fiscal History of Texas, 22.

321] The Land Question in the United States. 63

independence, adopted a constitution, and established a
government, to act till the constitution could be brought
into full operation.1 David G. Burnett was made President.
On April 21 the battle of San Jacinto was fought. General
Houston, the Texan commander, with a force of seven
hundred men, met Santa Anna, the Mexican President, who
commanded five thousand troops, fresh from work of devas-
tation in the region beyond the Eio Grande. But Santa
Anna was defeated and made a prisoner of war. He
acknowledged the independence of Texas and obtained
release.

On October 3, 1836, the first Congress of Texas met at
the town of Columbia, and, on the 22d, General Houston,
the hero of San Jacinto, was formally installed as President
of the new Republic. In March of the following year
the United States acknowledged the independence of Texas.
This diplomatic course was followed by England and other
European powers.

FINAL ANNEXATION OF TEXAS.

In August, 1837, Texas made an application to the United
States for admission into the Union, but was refused. Mean-
while Texas had sold off her public lands, the chief source
of her revenue. Land speculators and Southern politicians
became now the advocates of the Texas annexation. In
1843 the question evolved into a national issue. In 1844
Mr. Polk was selected as the Democratic candidate for Presi-
dent upon the platform of annexing Texas. In April of the
same year Calhoun, then Secretary of State in President
Tyler's Cabinet, concluded an annexation treaty with Texas,
but it was rejected in the Senate by a vote of 35 to 16. The
Southern States of the Union favored annexation, but the
North opposed it. It was an issue between slavery and free
soil. Annexation was spoken of by Southern politicians as

1 W. M, Gouge. Fiscal History of Texas, 49.

64 The Land Question in the United States. [322

"re-annexation," for they regarded Texas as having been
ceded to Spain by the treaty of 1819. Opponents to annexa-
tion regarded it as a virtual declaration of war against
Mexico, for, by admitting Texas into the Union, a large tract
of disputed territory would be incorporated into the United
States, and, moreover, Mexico did not consider the recogni-
tion of Texan independence by Santa Anna as binding upon
her.

The questions involved in the annexation of Texas may
be briefly summarized as follows :l

1. The constitutional power of the Federal Government
to admit independent foreign States into the American Union.

2. The effect of such annexation, if constitutional, in rela-
tions between the United States, Mexico, and other foreign
powers.

3. The effect of the annexation as an extension of the
territory of the United States and upon their commercial
interests.

4. The effect of the annexation upon slavery. .

5. The effect of the annexation upon the Union.

It is impossible here to discuss in detail any of these
points. Suffice it to say that the Texas annexation was one
of the most significant events in the history of the territorial
expansion of the United States.

The Congress of the United States passed, March 1, 1845,
a joint resolution for the annexation of the Republic of
Texas. On July 4, 1845, Texas assented to annexation.
Section 2, Article II, of the resolution provided that Texas
" shall retain all the vacant and unappropriated lands lying
within its limits to be applied to the payments of the debts
and liabilities of Texas, and the residue of said lands, after
discharging said debts and liabilities, to be disposed of as

1 Cf. a pamphlet entitled " Thoughts on the Proposed Annexation of
Texas," by " T. S." First published in the New York Evening Post,
under the signature of " Veto." New York, 1844.

323] The Land Question in the United States. 65

said State may direct; but in no event are said debts and
liabilities to become a charge upon the Government of the
United States."1 This was the most important clause.
Thereby Texas retained all her public land, and guaranteed
the United States against all claims on account of her State
debts. But it was soon found necessary for the United
States to assume certain Texan obligations, and to purchase
from her a disputed territory.

FINANCIAL CONDITION OF TEXAS.

When Texas revolted against Mexico her finances were in
a most deplorable condition. We can better illustrate the
general fact by quoting a report of the General Council
which assembled November 3, 1835, at San Felipe de Austin.
It says : " We authorized a contract for a loan of one hundred
thousand dollars of the citizens of New Orleans, and ap-
pointed T. F. McKinney an agent to repair to New Orleans,
and to carry it into effect. Our finances arising from the
receipt of dues for lands, as will appear 011 file in Mr. Gail
Borden's report, marked F, which were in his hands, are
fifty-eight dollars and thirty cents. This money has been
exhausted, and an advance by the President of the Council of
thirty-six dollars. There were also several hundred dollars
in the hands of Mr. Money, the alcalde of the municipality
of Austin. Upon this money several advances have been
made by Mr. Cochran, and probably will nearly cover the
amount of money in the alcalde's hands ; as such, you may
consider that at this moment the Council is out of funds."2

Thus the revolutionists in Texas undertook war with an
empty chest. All they had was land. They pledged public
lands and public revenue in payment for loans. In the
annexation treaty, therefore, public lands were retained by
Texas. But she was deprived of import duties, which were

Public Domain, 122.

2 W. M. Gouge. Fiscal History of Texas, 18.

66 The Land Question in the United States. [324

an important source of public revenue. The United States
Government was therefore under some obligation to compen-
sate Texas for this loss of economic resources in the discharge
of her public debts.

There was, moreover, a boundary question to be settled
between the United States and Texas. Texas claimed all the
lands east of the Rio Grande which are now in the Territory
of New Mexico. The people in New Mexico declared that
they were not in the jurisdiction of Texas. During the
Mexican War, New Mexico was captured by General Kearney.
The United States had therefore the right of conquest over
that disputed territory, but Texas had a claim to at least a
part of the conquered land.

On September 9, 1850, the "Boundary Act"1 was passed
by Congress. It was an act proposing to Texas: 1. The
establishment of her northern and western boundaries ; 2.
The relinquishment of all territory claimed by her beyond
the said boundaries, and of all claims upon the United
States ; and 3. The organization of New Mexico as a new
territory. The territory to be ceded by this act was situated
to the north of 30° 30' north latitude, west of the one
hundred and third meridian of longitude west from Green-
wich, and north of the thirty-second parallel of north latitude,
and to extend to the Rio Grande River. In consideration of
this cession of territory, and the relinquishment of all claims
upon the United States, the act proposed to pay to Texas
$10,000,000 in bonds bearing five per cent, interest and
running for fourteen years. This bargain was virtually a sale
of public lands by Texas to the United States, in order to
redeem old pledges to her creditors. General Houston, who
was the Senator from Texas, said that " it was the best sale
ever made of land of a worthless quality and a disputable
title."2

Texas called a special session of the Legislature, and on

1 Statutes at Large, Vol. IX, 446.

8 Quoted by Gouge. Fiscal History of Texas, 180.

325] The Land Question in the United States. 67

November 25, 1850, accepted the proposed Act of Congress.
On December 13, 1850, the Act of September 9, 1850, became
operative, and the territory came into the jurisdiction of the
United States. The cession embraced an area of 96,707
square miles, and the entire cost, including principal and
interest, amounted to $16,000,000.*

THE MEXICAN CESSIONS.

By the treaty of Guadalupe Hidalgo, February 2, 1848,
the United States obtained a most valuable acquisition of
territory from Mexico. This was one of the economic results
of the Mexican War. We are not here concerned with the
military history of that war. Neither can we enter into a
discussion of the political questions therein involved. Suffice
it to say, the incorporation of Texas was the main cause of
the war. In the disputed territory between the Nueces and
the Rio Grande Rivers occurred the first hostile collision
between the two countries. It was alleged that American
blood had been shed on American soil. Therefore, on May
13, 1846, Congress declared that "war existed by the act of
Mexico."

POLICY OF THE POLK ADMINISTRATION.

From the beginning, the administration of President Polk
did not enter seriously into war with Mexico. It believed
that Mexico would be compelled to succumb by very weak-
ness, and that war would soon terminate in a treaty
accomplishing the political object of the United States — viz.:
a cession of territory. The recall of Santa Anna from exile,
his restoration to power in Mexico, and his supposed friend-
ship for the United States, were secret springs relied upon by
Polk's administration to secure speedy peace from Mexico.
War was declared not for the sake of war, but for advan-

1 Public Domain, 135.

68 Tlie Land Question in the United States. [326

tageous peace. Santa Anna, who was thought to be a peace-
maker, proved to be a war-maker.

On April 15, 1845, Mr. Nicholas P. Trist was appointed
by President Polk as Commissioner to Mexico. He was
sent to Mexico to negotiate a treaty and to effect a purchase
of territory. On November 10 of the same year, Mr.
Buchanan, Secretary of State, instructed the United States
Minister, Mr. Slidell, to offer the Mexican Government
$5,000,000 for the cession of New Mexico; and for the
cession of California, $25,000,000; and for the Bay and
Harbor of San Francisco, $20,000,000 ;T together with the
assumption by the United States of all claims against Mexico.
Nothing resulted from this offer. As we have already seen,
war was declared in May, 1846. General Taylor took the
field. He captured Matamoras and Monterey. The battle
at Buena Vista was fought and Santa Anna was compelled
to retreat. On March 9, 1847, General Scott reached Vera
Cruz. He marched inland and defeated Santa Anna at
Cerro Gordo. The city of Mexico was at the mercy of the
Americans. The downfall of Santa Anna followed the cap-
ture of the Mexican capital, and a new administration under
the republican party, which abhorred Santa Anna, was inau-
gurated in Mexico.

Mr. Trist was still at his post, although recalled a long
time before. He negotiated for a treaty with the new admin-
istration, and it was concluded at the city of Guadalupe
Hidalgo on February 2, 1848. The United States Senate
adopted the treaty with some amendments on March 10,
1848, by a vote of 38 to 14. The ratifications of the treaty
were exchanged in the following May at the city of Mexico,
when the United States paid over $3,000,000 cash, according
to a provision made in the seventh article of the treaty.

Through this treaty New Mexico and Upper California were
ceded to the United States, and the lower Rio Grande, from its

1 Public Domain, 125.

327] The Land Question in the United States. 69

mouth to the town El Paso, was made the boundary of Texas.
In consideration of the acquisition made by the United States,
it was agreed that she should pay to Mexico $15,000,000, and
assume the claims of American citizens against Mexico to
an amount not exceeding three and one-quarter millions of
dollars. The area of territory obtained by this treaty was
estimated at 522,568 square miles.1

GADSDEN PURCHASE.

On December 30, 1853, another cession of territory was
made by Mexico to the United States. This is known as the
" Gadsden Purchase." It was secured in order to define more
definitely the boundary between the two republics. The
area of territory acquired through this purchase was estimated
at 45,535 square miles, and the purchase cost the United
States $10,000,000.2

THE PURCHASE OF ALASKA.

We have now come to the last acquisition of territory by
the United States — viz. : the purchase of Alaska. In this
purchase there are two noteworthy features of difference
from all former territorial acquisitions. They are 1. Isola-
tion of territory ; and 2. The mode of the purchase. The
territories hitherto acquired formed contiguous parts of
the national domain. But this was not the case with Russian
America. It is separated from the United States by British
America. It forms a territorial outpost in the extreme
northwest of the North American Continent, and lies so close
to Asia that it looks " as if America were extending a friendly
hand." Again, in former acquisitions, negotiations succeeded
only after years of labor by such American diplomats as Living-
stone and Pinckney and Trist. In the Alaska purchase, the
American Minister at St. Petersburg had little to do. Even

1 Public Domain, 134. 2 Ibid. 138.

70 The Land Question in the United States. [328

statesmen at home like Mr. Sumner, who was then Chairman
of the Committee on Foreign Affairs, knew of it only a few
hours previous to the signing of the treaty by Mr. Seward and
Baron Stoeckel. The negotiation was concluded very sum-
marily, and in a business-like manner, by the two parties con-
cerned. Mr. Clay, the American Minister to Russia, spoke of
this transaction " as a brilliant achievement which adds so vast
a territory to our Union, whose ports, whose mines, whose
timber, whose furs, whose fisheries, are of untold value, and
whose soil will produce many grains, even wheat, and will
become hereafter the seat of a hardy white population."1

Perhaps the acquisition of Alaska has not yet been duly
appreciated by the American people, except by residents along
the Pacific Coast. It may some day prove good policy for the
United States to form a continuous coast-line along the upper
Pacific, and to extend their national domain, if not over the
entire North American continent, at least to that new and
extreme " Northwestern Territory " near the " Frozen Sea."

HISTORY OF THE DISCOVERY OF ALASKA.

Let us briefly review the history of Alaska. Alaska was
first discovered by Captain Behring in 1728. Its discovery
was due to the enterprising spirit of Peter the Great, who
desired to know whether or not Asia and America were one
continuous continent. He ordered out an expedition, but
died before seeing its results. Behring was sent out by the
Empress Catharine, and sighted land as far north as 67° 30'.
He fulfilled the primary purpose of his expedition in dis-
covering that the two continents are separated by a narrow
body of water, which now bears the name of Behring's Strait.
A second expedition was sent out in 1741. On this voyage
Behring discovered many of the Aleutian Islands. Thus the
Russian title to the peninsula of Alaska was founded as early
as 1728 by discovery and exploration. Subsequent expedi-

'Seward's Works, V, 25.

329] The Land Question in the United States. 71

tions and settlements under the Russian Government con-
firmed the title. While France and Spain had to give way to
the United States in Eastern America, the aggressive policy
of Russia, inaugurated by the great Czar, planted her colonies
in Northwestern America, but only to follow the same inevi-
table course as other colonizing powers in North America.

On the Atlantic side no single European power had made
exclusive exploration or settlement of any part of the country.
Spain, England, France, Portugal, Holland, and Sweden had
each its representative discoverers and explorers. Their
claims were often so conflicting that appeal to arms was
sometimes necessary to settle disputes. On the Pacific side,
also, Russia was not the only nation to send out exploring
parties to the Northern Seas. Not to speak of exploration in
the sixteenth century by Drake, and of his christening the
country "New Albion" between 38° and 42° north, the
Northern Pacific coasts were explored in the latter part of
the eighteenth century by the Spaniards, the French, the
English, and even by thev Americans. The Spanish expedition
went out in 1775, and it reached the land as far as 58°
north. The French expedition sailed in 1786, and reached
36' farther north than the Spanish. La Perouse, who was at
the head of the expedition, remarked of Sitka that " Nature
seemed to have created at the extremity of America a port like
that of Toulon, but vaster in plan and accommodations."1
France, after losing her great colonies of Louisiana and
Canada, still seemed not to have abandoned the colonial
project in North America ; but La Perouse's expedition came
to naught.

In 1790, the coast of British Columbia was discovered by
Vancouver. Thus the entire Pacific Coast was made known.
In the following year, the Oregon coast was explored in detail
by the United States captain, Gray. The United States, on
the ground of Gray's discovery, raised a claim to the coast as

1 Sumner's Works, XI, 197.

72 The Land Question in the United States. [330

far north as the Russian discovery, which claim was finally
settled as 54° 40' north, in the treaty of 1824 between Russia
and the United States. In the following year, Great Britain
made a treaty with Russia and recognized the southern
boundary of Russian Alaska as 54° 40' north; but she
claimed the territory south of that parallel by virtue of
Vancouver's discovery in 1790.

Thus the United States and Great Britain came in conflict
on the Pacific Coast. The claim of the United States to the
Oregon territory was based, first, upon the cession of Louisi-
ana; second, upon the waiving of Spanish claims to it by the
treaty of 1819; and third, upon the discovery of the territory
by Captain Gray in May, 1791. After much dispute, a
treaty was finally concluded between the two nations. It was
known as the " Oregon Treaty," and was concluded at Wash-
ington in 1846. By this treaty the northern boundary of the
United States was fixed as the parallel 49° north latitude, and
they waived the claim to the territory between 49° and 54° 40'
north. The territory beyond 54° 40' north was never disputed,
and Russia remained in absolute possession of the same.

NEGOTIATIONS FOR THE PURCHASE OF ALASKA.

In 1859, Mr. Gwin, Senator from California, opened an
unofficial correspondence for the cession of Alaska with the
Russian Envoy at Washington. The equivalent for the
proposed cession Mr. Gwin placed at $5,000,000. Prince
Gortschakoff, when informed of the price, said that it was " an
unequitable equivalent," but wanted to think more of the
matter. Meanwhile, civil war broke out in the United States,
and the subject of the Alaska purchase was dropped.

In 1866, the Legislature of Washington Territory sent a
memorial to the President entitled " In Reference to the Cod
and Other Fisheries." In this memorial that body argued
the necessity of the United States acquiring the Russian
territories in North America. In June of the following year,

331] The Land Question in the United States. 73

the charter of the Russian-American Company was to expire,
but it was expected by its friends that it would be renewed.
This company was organized in 1799, under a charter from
the Emperor Paul. It had the power of administration
throughout the whole region of Northwestern America. Its
charter was renewed from year to year. The company had its
headquarters at St. Petersburg, and was very much like the
original London Company of England, or the more famous
East India Company. Russian America was virtually the
property of the Russian- American Company. But this company
leased its franchise to the Hudson Bay Company, which had
its headquarters at London, and did much business in Russian
America, as elsewhere. Renewal of the charter of the Russian-
American Company would of course be attended with the
renewal of the lease to the Hudson Bay Company. This
was regarded by the people on the Pacific Coast as a great
disadvantage to the United States. They planned to organize
a company to replace the Hudson Bay Company, but found
no possible chance of rivalry unless the territory were acquired
by the United States.

Mr. Cole, Senator from California, labored at Washington
for the acquisition of the territory in the interest of the people
on the Pacific Coast. Official negotiations were at last begun.
Baron Stoeckel, on leaving St. Petersburg for Washington in
February, 1867, received instructions regarding the cession
from the Archduke Carlanem, the brother of the Czar. There-
fore, on his arrival in Washington in March, the Russian Envoy
entered into the formal negotiation with Secretary of State
Seward. Seven million and two hundred thousand dollars
were offered for the territory. On March 29, Baron Stoeckel
received instructions by cable from his Government, and at
4 o'clock the following day the treaty was signed by the Baron
and Mr. Seward. Very little correspondence took place
between the two parties, and very little time was occupied
in effecting the cession.

74 The Land Question in the United States. [332

SUMNEK ON THE PURCHASE OF ALASKA.

On April 9," 1867, Senator Sumner made a masterly speech
on " The Cession of Russian America to the United States/71
and favored the ratification of the treaty. " The speech,"
said the Boston Journal, " is a monument of comprehensive
research, and of skill in the collection and arrangement of
facts."2 The great orator from Massachusetts, in speaking of
the benefits to the Pacific Slope, said, " The advantages
have two aspects — one domestic and the other foreign.
Not only does the treaty extend the coasting trade of Cali-
fornia, Oregon, and Washington Territory, but it also extends
the base of commerce with China and Japan."3 Sumner
furthermore said : " To unite the East of Asia with the West
of America is the aspiration of commerce now as when the
English navigator recorded his voyage." As to the extension
of dominion which this treaty would secure to the United
States, he uttered very significant, statesmanlike words. He
said, "With increased size on the map, there is increased
consciousness of strength, and the heart of the citizen throbs
anew as he traces the extending line."4

Again, he considered the acquisition of Alaska not only an
extension of dominion, but also an extension of republican
institutions. And here he touched the future. Time alone
can verify his predictions. He said, " The present treaty
is a visible step in the occupation of the whole North American
continent. As such it will be recognized by the world and
accepted by the American people. But the treaty involves
something more. We dismiss one other monarch from the
continent. One by one they have retired — first France,
then Spain, then France again, and now Russia ; all giving
way to the absorbing unity declared in the national motto —
E Pluribus Unum."5

i Sumner's Works, XI, 186-349.

*Ibid. 184.

Ubid. 218.

•JWd.221.

5 Ibid. 223.

333] The Land Question in the United States. 75

Finally, Mr. Sumner spoke of government, population,
climate, vegetable products, minerals, furs, and fisheries in
Alaska, and treated his subject so fully that a contemporary
French writer well said : " All that is known on Russian
America has just been presented in a speech abundant, erudite,
eloquent, poetic, pronounced before the Congress of the United
States by the great orator Charles Sumner.m

The Senate ratified the treaty by an almost unanimous vote.
Baron Stoeckel, when parting with Mr. Sumner on the night
of March 29, 1867, at the house of Mr. Seward, said to the
Senator, " You will not fail us ?" Mr. Sumner did not fail
them. The ratifications were exchanged June 20, 1867, and
Alaska came into the possession of the United States. Its
area is estimated to be 577,390 square miles, and its cost
$7,200,000. Congress has just passed a law for organizing a
territorial government in Alaska. The land laws of the
United States will no doubt also extend over Alaska, especially
as the recent discovery of gold makes the Territory more
valuable than ever.

CONCLUDING REMARKS ON THE PUBLIC DOMA-IN.

We have thus sketched the history of the formation of the
public domain of the United States. We have seen how it
has grown, and what important questions of both national and
international character have been involved in its acquisition.
The purchase of Alaska completed the formation of the
present domain of the great republic. Public domain is only
a part of the national domain. Wherever newly-acquired
public lands were situated beyond or contiguous to old national
boundaries, we find new ones established. The Southeastern,
Southern, Western, and Northwestern boundaries of the
national domain were determined by a series of treaties with
foreign powers for cession and purchase, beginning with the
purchase of Louisiana in 1803, and ending with the cession

1 Simmer's Works, XI, 185.

76

The Land Question in the United States. [334

of Alaska in 1867. The Northern boundary question in-
volved serious negotiations with Great Britain. It required
a series of treaties and commissions, and even arbitrations by
European monarchs. It required ninety years for its final
adjustment.

Let us, in conclusion, summarize and illustrate the growth
of the public domain by the following table :

TABLE SHOWING THE GROWTH OF THE PUBLIC DOMAIN.

Dates.

Square Miles.

Acres.

Cost.

m

Cession by States

For Georgia only1
Louisiana Purchase....
East and West Florida
Guadalupe Hidalgo....
Texas Purchase

Mar. 1,1781-
Apr. 24, 1802
Apr. 24, 1802
Apr. 30, 1803
Feb. 22, 1819
Feb. 2, 1848
Nov. 25, 1850
Dec. 30, 1853
Mar. 30, 1867

404,955.91

88,578.00
1,182,752.00
59,268.00
522.568.00
101,767.00
45,535.00
577,390.00

259,171,787

56,689,920
756,961.280
37,931,520
334,443,520
65,130,880
29,142,400
369,529,600

$ 6,200,000.00
27,267,621.98
6,489,768.00
15,000,000.00
16,000,000.00
10,000,000.00
7,200,000.00

•w

•17A
.04*°

.24T\
.84A

•t>H*

Gadsden Purchase
Alaska Purchase

Total •

2,894,235.91

1,852,310,987

$88,157,389.98

.04|

According to this table, the entire public domain embraces
the area of 2,894,235.91 square miles. If we deduct from
this the area of the State of Tennessee, 45,600 square miles,
which formed but a nominal public domain, the actual area
of the public domain remains 2,848,635.91 square miles.
Again, the purchase-price is $88,157,389.98. But, actually,
public lands cost more than this sum, for we must take into
account two important items — viz. : 1. The assumption by
the United States of claims of American citizens against
foreign powers from whom she purchased territories ; and
2. The price paid to the Indians for extinguishing their
land titles. These items must be included in the original cost
of the public domain. Still, again, if we consider the dis-
position of public lands from a purely business point of view,
we must, of course, add to the original cost-price the expense

Area included in aboye.

335] The Land Question in the United States. 77

for administration, surveying, etc. ; and we must, further-
more, compare expenses with the receipts accruing from the
sale of public lands. This method will enable us to realize
how much the public lands have cost the nation; what
income the Government derives from land sales ; and the
exact financial status of the land question at a given time.
Public lands are no longer held as a source of public revenue :
the present spirit of the land laws is to grant to actual
settlers lands for house and home, and agricultural improve-
ments. The subject of economy in administering and justice in
disposing of the public lands, or the public property of the
people, should interest the statesman and the citizen as well
as every student of economics. In the following chapters we
propose to examine these themes.

II.
ADMINISTRATION OF THE PUBLIC DOMAIN.

The first step toward administration of the public domain
was taken by the Continental Congress, October 10, 1780.
Congress passed a resolution on that day that territories
to be ceded to the United States " shall be disposed of for the
common benefit of the United States, and be settled and formed
into distinct, republican States, which shall become members
of the Federal Union, and have the same rights of sovereignty,

freedom and independence as the other States That

the said lands shall be granted or settled at such times and
under such regulations as shall hereafter be agreed on by the
United States in Congress assembled, or any nine or more of
them."1

This resolution was the corner-stone of the territorial system
of the United States. It laid the foundation of all subsequent
territorial legislation. It was the fundamental constitution

1 Journals of Congress, III, 535.

78 The Land Question in the United States. [336

relating to national sovereignty over the public domain.
By this resolution, new States were to be erected out of the
public lands, and they were to be republican in their political
institutions. The United States perpetuated their union by
an inseparable territorial bond. The new States were to owe
their birth and life to the whole United States, and not to any
individual State. They were to be colonies of the nation at
large, in whose material interests all the States of the Union
were to have a common concern. The Western lands were a
means of uniting loosely-confederated States upon a solid
basis of national interest.

The resolution had two principal objects in view — viz. :
1. The final formation of Territories into distinct, republi-
can States ; and 2. The disposition of unappropriated lands
by the National Government. The ordinance of May 20, 1785,
for ascertaining the mode of disposing of lands in the Western
Territory, and the celebrated ordinance of July 13, 1787, for
the government of the Northwestern Territory, were both
developments of the above resolution. The origin of adminis-
trative measures adopted by Congress we cannot trace earlier
than this resolution of 1780. It was the beginning of
American public-land legislation. It was the foundation
upon which all subsequent resolutions and ordinances were
built.

The resolution of September 6, 1780, is also very important.
It was initiative to the land-cessions, but not to the admin-
istration of the public domain. Each had a distinct function of
its own. That of September 6, 1780, led the way to cessions,
but that of October 10, 1780, led to administration.

We have already seen that, as early as October 30, 1776,
Maryland protested against the Virginia Constitution, which
reasserted ancient charter rights to the Western lands, and
urged Congress to consider those lands as a common stock, to
be parcelled out at the proper time into convenient, free, and
independent governments. The four years' persistent efforts
of Maryland, as well as the remonstrances of other smaller

337] The Land Question in the United States. 79

States, finally resulted in the resolution of October 10, 1780,
soon followed by various ordinances for the government and
disposition of the Western lands. The War for Independence
lasted seven years. The dispute over the Northwestern Terri-
tory took one year longer for its final settlement. The day
the Virginia cession was accepted by Congress marks the
day of settlement of the long-protracted controversy. It was
a day also on which a committee was appointed to draft a plan
for the temporary government of the Western Territory.

For the sake of convenience*, we shall divide the adminis-
tration of the public domain into two heads — viz. : 1. The
Ordinance of 1787 ; and 2. The Organization of the General
Land Office. The former provided a civil government of
a temporary character under the authority of Congress in
the Western Territory, and the latter furnished governmental
machinery for the administration and disposition of the public
lands.

The territorial government and the General Land Office are'
two separate civil organs. The former has nothing to do with
the public lands situated within the territory of its jurisdic-
tion. According to the land laws, the General Land Office,
under a superior functionary, disposes of the public lands
and grants patents, but it has no connection with the
territorial government.

The entire public domain is therefore under the authority
of the General Land Office so far as its settlements and land
grants are concerned. TKe territorial government deals with
a body politic, and performs all its necessary functions, legis-
lative, administrative, and judicial, until it ceases to be a
territorial government. A republican State with a republi-
can Constitution is then erected under the sanction of Con-
gress, and enjoys a free and independent sovereignty upon an
equal footing with the other States. But we are here concerned
with the territorial government. To understand this, we
must take a brief survey of the history of the Ordinance of
1787.

80 The Land Question in the United States. [338

ORDINANCE OF 1787.

The very same day Virginia ceded her claims to the North-
western Territory — that is, on March 1, 1784 — a committee con-
sisting of Mr. Jefferson, of Virginia, Mr. Chase, of Mary-
land, and Mr. Howell, of Rhode Island, reported a plan for
the temporary government of the Territory.1 On the 17th of
the same month the report was recommitted, and on the 22d
a new report was made. The new report was substantially
the same as the old, except that the highly-fanciful names
previously given to new districts were now stricken out.
The report, after some amendment, was finally adopted April
23, by a vote of ten States to one. Two States, Delaware
and Georgia, were not then represented. Thus the report of
the committee, of which Mr. Jefferson was the chairman,
became law. There was one important omission which we
shall soon notice. (^This law for the temporary government of
the entire Western Territory, north and south, is known as
the Ordinance of 1784.^ It was a precursor of the Ordinance
of 1787, and as such it has an historical interest.

PROVISIONS OF JEFFERSON'S ORDINANCE.

Let us first notice the provisions of the ordinance as sub-
mitted by the committee on March 1. The ordinance defined
the boundaries of new States. Each State was to comprise
two degrees of latitude, beginning at 31° north and extending
as far northward as the Lake of the Woods. The territory
adjoining the Mississippi was to be bounded by that river on
the west, and on the east by the meridian that passes the
lowest point of the rapids of the Ohio River. The territory
east of this meridian had the same for its western
b oundary, and for its eastern boundary the meridian of the
western cape of the mouth of the Great Kanawha.

This division of the Territory, as was shown by Dr. Adams

1 Public Domain, 147-149.

339] The Land Question in the United States. 81

in his study on " Maryland's Influence upon Land Cessions to
the United States/71 seems to have been first suggested by
Washington, with whom the Committee on Indian Affairs
consulted. The organization and settlement of the Western
Territory were inseparably connected with the Indian policy
of the United States, for the claims of the natives were not yet
extinguished. This had to be done before any definite occupa-
tion could take place. Therefore, the report of Mr. Jeffer-
son's committee expressly stated that " the territory ceded or
to be ceded by individual States to the United States, whenever
the same shall have been purchased of the Indian inhabitants
and offered for sale by the United States, shall be formed into
additional States." .... The Indian title of occupancy
had to be purchased from the then hostile Indians. As to the
best policy to be pursued by Congress, a committee consisting
of Mr. Duane, Mr. Peters, Mr. Carroll, Mr. Hawkins, and
Mr. Arthur Lee, made a report on October 15, 1783,2 after
conferring with the commander -in-chief.

Mr. Jefferson's territorial divisions were, therefore, an
outcome of the Indian policy as first planned by George
Washington. In the latter part of the ordinance, some
fanciful names were given to the new States northwest of the
Ohio. They were as follows : Sylvania, Michigania, Cher-
sonesus, Assenisipia, Mesopotamia, Illinoia, Saratoga, Wash-
ington, Polypotamia, and Pelisipia.3

The question might here be asked why Mr. Jefferson and the
committee did not name the States to be erected southeast of
the Ohio, for the ordinance comprised the entire Western
Territory north and south of the Ohio. This can be explained
by referring to the report of Mr. Duane's committee already
mentioned. The committee recommended to Congress that

1 See ibid. 42. Also Secret Journal of Congress, October 15, 1783, and
Journal of Congress of the same date.

2 Journals of Congress, IV, 294-296.

3 St. Clair Papers, II, 604 ; Sparks's Life and Writings of Washington,
IX, 48.

82 The Land Question in the United States. [340

" it will be wise and necessary, as soon as circumstances shall
permit, to erect a district of the Western Territory into a
distinct government," .... and that " a committee be appointed
to report a plan, consistent with the principles of the Confeder-
ation, for connecting with the Union by a temporary govern-
ment the purchasers and inhabitants of the said district, until
their number and circumstances shall entitle them to form a
permanent constitution for themselves, and, as citizens of a
free, sovereign and independent State, to be admitted to a
representation in the Union."1 It might safely be inferred
that the appointment of Mr. Jeffer son's committee was a
direct outcome of the above recommendation, but -the com-
mittee's report said at the outset that " their report will be
confined to Indian affairs in the northern and middle depart-
ments, as they are confined by the acts of Congress of the 12th
July, 1775, and to the settlement of the Western country,
these subjects being, in the opinion of the committee, insepa-
rably connected, and the committee not being possessed of
materials which enable them to extend their views to the
Southern district."2 The Southern district here referred to
evidently meant the territory to be ceded by the three Southern
States. Jefferson's committee, which was created through
the recommendation of this Indian Committee, had therefore
laid particular stress upon the Northwestern Territory,
although the ordinance itself was general in its application,
as we have already seen.

In dividing the Northwestern Territory, Mr. Jefferson must
have been governed by the resolution of Congress, October
10, 1780. The resolution said that "each State which shall
be so formed shall contain a suitable extent of territory, not
less than 100 nor more than 150 miles square, or as near
thereto as circumstances will admit."3 The area of the maxi-
mum allowance of 150 miles square will contain 22,500 square

1 Journals of Congress, IV, 296.

2 Ibid. 294.

3 Journals of Congress, III, 535.

341] The Land Question in the United States. . 83

miles, and that of the ten States, each having 22,500 square
miles, will be 225,000 square miles. The area of the State
cessions in the Northwestern Territory is estimated at 265,-
877.91 square miles.1 Thus, Mr. Jefferson's plan of dividing
the Territory into ten States was quite consistent with the
resolution of Congress of 1780. Numerically, the extent
allowed to each State came as near as could be expected by
Congress.

Now let us proceed to other points in the ordinance. It
provided that the settlers, under the authority of Congress,
should be granted the right to establish a temporary govern-
ment, adept the constitution and laws of any one of the older
States, and erect townships or counties for legislative purposes.
There was no property-qualification required for the exercise
of these political rights. Free males of full age had civic
privileges. This temporary government had to continue until
the population in the new State reached 20,000 free inhabi-
tants, when a permanent constitution and government could
be established. After the organization of a temporary govern-
ment, the settlers could have a member in Congress as their
representative, with a right to debate, but not to vote. But
when they should have increased to the number of the inhabi-
tants in the least populous original State, their delegates, with
the assent of nine States, as required by the eleventh of the
Articles of Confederation, could be admitted into Congress on
an equal footing with the original States.

Besides the points enumerated, the ordinance contained
some other features of great importance. They were the
general principles upon which both the temporary and per-
manent governments had to be established. They were as
follows : 1. The new States shall remain forever a part of the
Union. 2. They shall be subject to the Articles of Confed-
eration like the original States. 3. They shall bear a part of
the debts contracted by the Federal Government. 4. Their

1 Public Domain, 11.

84 . The Land Question in the United States. [342

governments must be republican, and shall admit no person
as a citizen who holds any hereditary title. 5. After the year
1800 A. D., there shall be neither slavery nor involuntary
servitude in any of the new States.

Such were the provisions of the ordinance as submitted by
Mr. Jefferson and his committee on March 1, 1784. The
ordinance was finally passed on April 23, 1784, with some
omissions and some additions. The additions were that the
States should not interfere with the primary disposal of the
soil by the United States ; that they should not tax lands
which were the property of the United States ; that they
should not levy higher taxes on the lands of non-resident
proprietors than on those of residents ; finally, that the
articles of the ordinance should be formed into a charter of
compact, and should stand as fundamental constitutions
between the thirteen original States and each of the new
States, unalterable except by common assent. The omissions
consisted in striking out clauses that gave fanciful names to
the new States and assigned boundaries to each of them ; that
which referred to the hereditary title of citizens ; and lastly,
that which prohibited slavery after the year 1800.1

The slavery clause was stricken out on the motion of Mr.
Spaight, of North Carolina. The six States, Massachusetts,
Rhode Island, Connecticut, New Hampshire, New York, and
Pennsylvania, stood for, and Maryland, Virginia, and South
Carolina against, the clause. Mr. Spaight's own State was
divided. The rest of the States — Georgia, Delaware, and New
Jersey — were not represented. It lacked only one vote to pass
this anti-slavery clause, the votes of seven States being neces-
sary to carry any measure in the old Congress.

"The defeat of Mr. Jefferson's anti-slavery clause was
regarded at the time as a great calamity," says Mr. W. F.
Poole, of Chicago, in his excellent paper on the Ordinance of

1 See, for the ordinance, Public Domain, 147-149 ; Cole's History of the
Ordinance, 7-10 ; Bancroft's Constitutional History, I, 153-159 ; St. Glair
Papers, II, 603-606.

343] The Land Question in the United States. 85

1787 ; but he adds that " Northern men soon saw that it was
a most fortunate circumstance ; for if slavery had been allowed
to get a foothold in the Territory for sixteen years, it could
not have been abolished at the end of that period."1 The defeat
proved fortunate, indeed, because of the later ordinance that
prohibited slavery at once and forever in the Northwest after
the passage of the fundamental law.

The Nestor of American history, Mr. George Bancroft,
says : "The design of Jefferson marks an era in the history
of universal freedom."2 But it proved an initial attempt,
rather than actual accomplishment. Mr. Jefferson seems to
have been fully conscious of the defeat of his anti-slavery
clause. Two years afterward he said : " The voice of a single
individual would have prevented this abominable crime from
spreading itself over the new country. . . . Heaven will not
always be silent; and the friends to the rights of human
nature will in the end prevail."3 This " single individual,"
the mover against the anti-slavery clause, was one whom
Jefferson styled "a young fool." In his declining years
Jefferson again referred to the Ordinance of 1784, and said :
" My sentiments have been forty years before the public ;
although I shall not live, to see them consummated, they will
not die with me ; but, living or dying, they will ever be in
my most fervent prayer."4 The dying statesman's sentiments,
originally cherished in the prime of his manhood, were realized
forty years after his death5 by the " Thirteenth Amendment "
of 1865, when the curse of slavery was removed forever by
the constitutional law of the United States. Mr. Jefferson's
Ordinance of 1784, shorn of its chief glory, the proscription
of slavery, became a law of the land. Soon after its passage,

1 W. F. Poole in North American Review, April, 1876, 238.

2 Bancroft's Constitutional History, I, 156.
8 Jefferson, IX, 276.

4 Jefferson to Heaton, May 20, 1826 ; quoted in Bancroft's Constitutional
History of United States, I, 158.
6 Jefferson died July 4, 1826.

86 The Land Question in the United States. [344

the author of the law left Congress for a mission abroad.
Jefferson's connection with the ordinance then ceased.

WASHINGTON ON TEKRITOKIAL GOVEENMENT.

The ordinance, however, was a dead letter. " No settle-
ment of the Territory was made under it."1 Washington was
early and always aware of the importance of developing the
Western country. Under the date of December 14, 1784, he
wrote to R. H. Lee as follows : " Nature has made such a
display of her bounty in those regions, that the more the
country is explored the more it will rise in estimation. The
spirit of emigration is great ; people have got impatient ; and
though you cannot stop the road, it is yet in your power to
vXmark the way."2 Again, under the date of March 15, 1785,
Washington wrote to the same gentleman and argued that
Congress ought to point out the most advantageous mode of
seating lands in the Western Territory, in order that good
government might be administered. He says : " Progressive
seating is the only means by which this can be effected." He
suggested also that one State should be marked out instead
of ten, in order to avoid any sectional conflict in the West.8

We have already seen that Jefferson's plan of dividing the
Western Territory first came from the suggestions of Wash-
ington ; but here we find him advocating the marking out of
one State instead of ten. This change of view might be
attributed to the defeat of Jefferson's anti-slavery clause, and
the probable change in political conditions of the Northern
and Southern States. Massachusetts abolished slavery in her
Constitution of 1780.4 So did Pennsylvania. Connecticut
made a partial abolition in 1784. The Northern and Eastern

1 Poole's Ordinance of 1787, North American Review, April, 1876, 238.

2 Sparks, IX, 80-81.

3 Quoted in Bancroft's Constitutional History of the United States, I,
177, from MS.

4 Poore's Charters and Constitutions, Part I, 957.

345] The Land Question in the United States. 87

States were thus abolishing slavery. But if, according to the
Ordinance of 1784, ten new States were to be erected in the
Northwest, where slavery was not prohibited, the anti-slavery
States of the North would lose their political vantage-ground
with the recognition of numerous slave States in the West.
It must have been to quiet political uneasiness in the minds
of Northerners that Washington suggested the marking out
of only one State. Indeed, it would not be too much to say
that this idea of Washington, leading to what he termed the
" progressive seating " «f Western lands, was another "pioneer
thought " in relation to the Ordinance of 1787, wherein the
entire Northwest was organized as a single Territory, to be
gradually formed into States not less than three nor more
than five.

Congress did not take any further initiative, nor did the
settlers petition that body to form a temporary government
in the Western Territory according to the Ordinance of 1784.
Accordingly, no government was organized under that ordi-
nance, and the great Northwest remained but a wilderness.
The census taken sixteen years later, in 1§00, shows that the
entire Northwest then contained but 50,455 inhabitants, dis-
tributed as follows: Ohio, 45,365; Indiana, 2,517; Illinois,
2,458; and Wisconsin, 115.1 From the year 1800, Ohio
showed a very rapid increase of population. She doubled it
in every two years throughout the succeeding decade. But
this great frontier State had only a few detached settlements
at the time when the ordinance of Mr. Jefferson was passed.
In fact, the entire Northwest, except at Kaskaskia, St. Vin-
cent's, and neighboring villages, was the home of roving
Indians and wild beasts. The settlements named were
mostly colonies from Canada and Louisiana, and the settlers
were slaveholders, for slavery was established by the French
laws of Louisiana. Besides, the emigrants from Virginia
who emigrated to the Northwest, after the capture of French

1 Tenth Census : Population, Part I, 4.

88 The Land Question in the United States. [346

military posts by Colonel George Rogers Clark, brought
with them negro slaves from the Old Dominion. Governor
Coles states that it was this knowledge of the actual existence
of slavery in the Northwest that led Mr. Jefferson to a
gradual abolition movement, rather than to a sudden pro-
hibition of the evil.1

i
PRELIMINARY STEPS TOWARD THE ORDINANCE OF 1787.

We have seen that Washington was reminding Congress
of its duties to the West. Timothy Pickering was also
aware of the importance of the settlement of the Western
country. He wrote a letter, under the date of March 8, 1785,
to Rufus King, of Massachusetts, which became historical
on account of the controversy concerning the authorship of
the Ordinance of 1787. He wrote as follows: " Congress
once made this important declaration: that all men are
created equal ; that they are endowed by their Creator with
certain inalienable rights ; that among these are life, liberty
and the pursuit of .happiness ; and these truths were held to
be self-evident. To suffer the continuance of slaves till they
can gradually be emancipated, in States already overrun
with them, may We pardonable, because unavoidable without
hazarding greater evils ; but to introduce them into coun-
tries where none now exist can never be forgiven. For
God's sake, then, let one more effort be made to prevent so
terrible a calamity ! The fundamental constitutions for those
States are yet liable to alterations, and this is probably the
only time when the evil can certainly be prevented. It will
be infinitely easier to prevent the evil at first than to eradi-
cate it or check it in any future time."2

Pickering was informed of the course of public business
in Congress by Gerry, a member of Massachusetts. He was
aware that the Land Ordinance reported May 7, 1784, by

1 Governor Coles' Ordinance of 1787, 16.

2 Pickering's Life of Pickering, I, 509-510.

347] The Land Question in the United States. 89

a committee of which Mr. Jefferson was chairman and
Mr. Gerry a member,, would be read a second time March
16, 1785, and thought it opportune to write the letter to
King, who was Gerry's colleague.

Mr. King did not disappoint his correspondent, for he
made a motion on March 16, 1785, seconded by Mr. Ellery,
of Rhode Island, that the following proposition be com-
mitted : " That there shall be neither slavery nor involun-
tary servitude in any of the States described in the resolve
of Congress of the 23d of April, 1784, otherwise than in
punishment of crimes whereof the party shall have been
personally guilty; and that this regulation shall be an
article of compact, and remain a fundamental principle of
the constitutions between the thirteen original States and
each of the States described in the said resolve of the 23d of
April, 1784."1 The motion was to commit the proposition
to a committee of the whole House. It was an attempt to
restore to the Ordinance of 1784 its an ti -slavery article,
which was lost by the motion of a delegate from North
Carolina. On the question for commitment, eight States —
New Hampshire, Massachusetts, Rhode Island, Connecticut,
New York, New Jersey, Pennsylvania, and Maryland — voted
in the affirmative, and three States^ — Virginia, North Caro-
lina and South Carolina — in the negative. Mr. Grayson, of
Virginia, voted in the affirmative, but his vote was neutral-
ized by those of his colleagues. Neither Delaware nor
Georgia was represented. The proposition was referred to
a committee, but it was never called up for action, nor
ever alluded to again in Congress.

With the commitment of the proposition, Mr. King's
connection with the anti-slavery question in the ordinance
ceased, for although Mr. King, as chairman of the committee
to whom the proposition was referred, made a report April
6, 1785, recommending a fugitive-slave law, as well as the

Journals of Congress, IV, 481.

90 The Land Question in the United States. [348

prohibition of slavery after 1800 in the Western Territory,
" there is no evidence that it was ever again called up in
that Congress."1

From the time Mr. King put the motion till the final
passage of the Ordinance of 1787 — that is, during the period
of two years — the subject of the government of the Western
Territory was frequently taken up and discussed. During
the winter of 1786, Monroe traveled through the Northwest,
and formed an opinion that it was advisable to divide the
Territory into States — not less than three nor more than five —
and on his return moved in Congress that the subject of the
division of tl^e Territory should be referred to a grand com-
mittee. On March 24, 1786,2 the grand committee made a
report, and recommended to repeal that part of the ordinance
which referred to the division of the Territory, in order that
Congress might divide the Territory according to its own
discretion.

About this time Mr. Dane made a motion that a committee
should be appointed to consider the form of a temporary
government in the Western States. The motion was adopted,
and a committee consisting of Mr. Monroe, of Virginia ;
Mr. Johnson, of Connecticut ; Mr. King, of Massachusetts ;
Mr. Kean, of South Carolina, and Mr. Pinckney, of South
Carolina, was appointed. On May 10, 1786, the committee
submitted their report. " It asked the consent of Virginia
/ to a division of the Territory into not less than two nor more
than five States ; presented a plan for their temporary colonial
government, and promised them admission into the Confederacy
on the principle of the ordinance of Jefferson. Not one
word was said of a restriction on slavery."3 The report was
recommitted, and was considered from time to time.

While Congress was considering the plan for the temporary
government of the Northwest, a petition was presented from the

1 Bancroft's Constitutional History of the United States, I, 180.

2 Public Domain, 150.

3 Bancroft's Constitutional History of the United States, II, 100.

349] The Land Question in the United States. 91

inhabitants of the Kaskaskias for the organization of govern-
ment in that district. The petition was referred to a com-
mittee consisting of Mr. Monroe, Mr. King, Mr. Pinckney
and Mr. Smith, who made a report August 24, 1786, and
ordered " that the Secretary of Congress inform the inhabi-
tants of the Kaskaskias that Congress have under their con-
sideration the plan of a temporary government for the said
district, and that its adoption will be no longer protracted
than the importance of the subject and a due regard to their
interest may require."1 The petition was probably the only
one of the kind on record that was presented to Congress after
the adoption of the Ordinance of 1784.

On September 19, 1786, a committee consisting of Mr.
Johnson, of Connecticut ; Mr. Pinckney, of South Carolina ;
Mr. Smith, of New York ; Mr. Dane, of Massachusetts, and
Mr. Henry, of Maryland, made a report on the plan of tem-
porary government for new States. In this committee, Mr.
Henry, of Maryland, and Mr. Dane, of Massachusetts, were
substitutes for Monroe and King, who were away from Con-
gress. On September 29th, the report was taken up for
consideration, and a clause in the ordinance that referred to
the administration of the oath was debated, but all further
consideration of the ordinance was postponed.2

On the 26th of April, 1787, the same committee reported
" an ordinance for the government of the Western Territory."
On May 9th, it was read a second time. A provision in the
ordinance that admitted a new State into the Union after its
population became equal to one-thirteenth part of the popu-
lation of the thirteen original States, was stricken out.8
The clause that referred to the representatives of the Terri-
tory was debated.4 The ordinance, as finally amended, was
ordered to be transcribed, and the following day was assigned

1 Journals of Congress, IV, 688-689.

2 Journals of Congress, IV, 701-702.

3 Bancroft's Constitutional History of the United States, II, 105.

4 Journals of Congress, IV, 746.

92 The Land Question in the United States. [350

for its third reading, but on that day it was postponed, and
further progress was for a time arrested.

Thus far we have considered three ordinances : 1. The
Ordinance of 1784, which was at this time still binding ;
2. The Ordinance of May 10, 1786 ; 3. The Ordinance of
April 26, 1787. The chairmen of the respective committees
by whom these various ordinances were reported were, as we
have already seen, Jefferson, Monroe, and Johnson. The
provisions of the first two ordinances have already been
given at some length. The text of Jeifer son's ordinance is
to be found in the volume called " Public Domain," 149.
That of Monroe's is to be found in Volume V., 79 and fol-
lowing pages, of the " Journal of the Old Congress." The
text of Johnson's ordinance, as it stood on May 10, 1787, for
the third reading, and as it came down without amendment
to the 9th of July, only five days before the passage of the
final Ordinance of 1787, was first published by Peter Force
in the National Intelligencer of August 26, 1847. It is repro-
duced in the " Public Domain," 150-153, and also in the
" St. Glair Papers," II., 608-612.

The comparison of Johnson's ordinance with the Ordi-
nance of 1787 shows that the former was quite unlike the
latter. So far as the plan of the temporary government, the
appointment of Governor, Secretary, and Judges, the organi-
zation of the General Assembly, etc., are concerned, both
ordinances, indeed, agree, but the older ordinance contains
nothing which makes the later ordinance so justly celebrated.

Peter Force was unable to solve the mystery attending
the complete metamorphosis which an ordinance of no special
legislative merit underwent in five legislative days. He
thus expresses himself: "Such was the ordinance for the
government of the Western Territory when it was ordered
to a third reading on the 10th of May, 1787. It had then
made no further progress in the development of those great
principles for which it has since been distinguished as one of
the greatest monuments of civil jurisprudence. It made no

351] The Land Question in the United States. 93

provision for the equal distribution of estates. It said
nothing of extending the fundamental principles of civil and
religious liberty ; nothing of the rights of conscience, knowl-
edge, or education. It did not contain the articles of com-
pact which were to remain unaltered forever, unless by
common consent."1

PEG VISIONS OF THE ORDINANCE OF 1787.

We shall now proceed to the real and final Ordinance of
1787. We shall treat its passage and provisions, but
reserve to a later part of this paper the discussion about its
authorship. The " Journals of Congress " show that, from May
11 to July 4, Congress had no quorum, and consequently
Johnson's ordinance, which would have passed to its third
reading on May 10, was postponed, and received no further
consideration till the month of July. On the ninth of that
month, the ordinances were referred to a new committee.
The committee consisted of Mr. Carrington, of Virginia ;
Mr. Dane, of Massachusetts ; Mr. R. H. Lee, of Virginia ;
Mr. Kean, of South Carolina, and Mr. Smith, of New York.
Among the members of the committee, Mr. Dane was in the
previous committee which reported an ordinance on September
19, 1786, and also on April 26, 1787. Mr. Dane was the
man who made a successful motion to appoint a committee
in which Mr. Monroe, as chairman, reported an ordinance on
May 10, 1786. Mr. Kean served on the committee of Monroe
in the same year, but he was absent from the Congress during
the summer, and his place was filled by Mr. Smith, of New
York. Both Kean and Smith were put on the same committee,
Kean taking the place of Pinckney, his colleague, who was
on the former committee, and Smith holding his own place,
which was originally that of a substitute for Kean. Mr. R.
H. Lee was a new delegate from Virginia who took his seat
in Congress on the 9th of July. Mr. Carrington, as well as

1 Public Domain, 152.

94 The Land Question in the United States. [352

Lee, was a new member of the committee. Thus, in the
committee there were three Southerners and only two Northern
men. The latter were old members of the committee, while
the former were new members, although Mr. Kean once
served on the committee of Mr. Johnson in 1786. The States
which were then represented in Congress were three Northern
States — Massachusetts, New York, and New Jersey — and four
Southern States — Virginia, the two Carolinas, and Georgia,
soon to be joined by Delaware. On the llth of July, the
committee made a report on the ordinance for the government
of the territory of the United States northwest of the Ohio.
On the twelfth the ordinance was read a second time, and on
the thirteenth it was read a third time, and passed by the
unanimous vote of the eight States then present in the Con-
gress. The only delegate who voted in the negative was Mr.
Yates, of New York, but his vote was neutralized by the
combined vote of his two colleagues, Mr. Smith and Mr.
Harney. Mr. Dane attributed the dissenting vote of Mr.
Yates to lack of information upon the subject.

Since the Ordinance of 1787 is the most important legisla-
tive enactment that Congress has ever passed with regard to the
public domain, we shall examine its provisions in some detail.
The ordinance opened with a division of the Territory. It
/raised the territory northwest of the Ohio into one district,
subject to a change into two districts at the discretion of
Congress. The estates of persons dying intestate were to be
divided among their heirs in equal parts. Thus gavelkind
was instituted in place of primogeniture. As to the disposi-
tion of real estate, the ordinance was very liberal, placing
no restrictions upon it. When of full age, the owners of estates
could devise or bequeath by will in writing attested by
three witnesses. The conveyance of estates was also very
simple. It was by simple lease and release, or by bargain and
sale. Conveyances were to be recorded by registers within
one year of the transfer. Personal property could be trans-
ferred by mere delivery. Such were the general laws with
regard to real and personal property.

353] The Land Question in the United States. 95

The ordinance then fixed the terms of Governor and Secre-
tary, who were to be appointed by Congress. The commission
of the former was for three years, and that of the latter
for four years. During the exercise of their office, both
Governor and Secretary had to possess a certain number of
acres of freehold estate in the territory. Three judges were
also to be appointed by Congress. They had to exercise a
common-law jurisdiction, and could continue in office during
good behavior. They also must have a freehold estate like
other civil officers. To the Governor and Judges the tempo-
rary enactment *of civil and criminal laws was entrusted.
These laws were binding until the organization of the General
Assembly. The Governor was to be commander-in-chief of
militia. He could appoint and commission all officers below
the rank of general. He had also to appoint magistrates in
counties and townships which were to be laid out in those
portions of the district in which Indian titles were already
extinguished.

The ordinance next considered the subject of representation
in the General Assembly. When the population of the dis-
trict should reach five thousand free male inhabitants of full
age, the settlers could return to the General Assembly one
representative for every five hundred, until the number of
representatives amounted to twenty-five. After this, the
Legislature had to fix the number and proportion of represent-
atives. Citizenship of three years' standing, residence in the
district, and holding of two hundred acres of land in fee-simple,
were necessary qualifications for a representative. The elector
of a representative must also have the property-qualification
of fifty acres of land. He must be a citizen of the United
States, and a resident in the district ; or, if not a citizen, then
two years' residence and the holding of sufficient landed
property would qualify him for an elector. The term of rep-
resentatives was fixed at two years.

Next in order came the organization of the General Assembly,
the manner of appointment of members of the Legislative

96 The Land Question in the United States. [354

Council, and the authority and functions of the General
Assembly. The General Assembly was to consist of the
Governor, Legislative Council, and a House of Representatives.
The Legislative Council was to be of five members. The
members were to be nominated by the House of Represent-
atives and appointed by Congress. Their commission con-
tinued for five years, and their property-qualification was
the same as that of representatives. The General Assembly
was authorized to make laws for the good government of the
district not repugnant to the principles and articles laid down
in the ordinance. All bills that passed -both Houses of
Legislature needed the assent of the Governor to become laws
of the district. The Governor had the power to convene,
prorogue, and dissolve the General Assembly. The Governor
was required to take an oath before the President of Congress.
All other officers appointed by Congress took oath before the
Governor. The Legislature was authorized to elect a delegate
to Congress by joint ballot of both Houses, who had the right
of debating, but not of voting.

Such was the organization of the temporary government
for the Northwestern Territory. The provisions of the
ordinance were comprehensive, covering all necessary techni-
calities as to administration, legislature, and judiciary in the
new Territory. But such provisions related merely to the
routine business of government. There is nothing especially
remarkable in them. If the ordinance had ended here, it
would never have deserved the praises which have been
lavished upon it. But the ordinance, happily, did not
end here. It contained a Bill of Rights which has made
it world-famous. Here let the noble ordinance speak for
itself: "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

355] The Land Question in the United States. 97

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 may be
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."1
Thus ends the preamble of this celebrated compact.

The articles are six in number, and are as follows : First,
religious freedom was guaranteed, whether in worship or senti-
ment. Second, the benefits of the writ of habeas corpus and
of trial by jury were secured to the settlers. Furthermore,
by the second article, the representation in the Legislature
was to be proportionate, and judicial proceedings must be in
accordance with the common law. All persons were bailable,
except in extraordinary cases. All fines were to be moderate,
and no cruel punishments could be inflicted. No man was to
be deprived of his liberty or property except by due process
of law. Private contracts or engagements were never to be
interfered with in any manner whatsoever. The third article
says : " Religion, morality and knowledge being necessary to
good government and the happiness of mankind, schools and
the means of education shall forever be encouraged." Again,
due regard must be paid to the property, rights, and liberty
of the Indians. The fourth article states that the new States
must forever remain a part of the United States of America,
and subject to the Articles of Confederation. They were to
pay a part of the Federal debts, and to contribute duly to the
expenses of the Government. They could not interfere with
the primary disposal of the soil by the Federal Government,
neither could they tax lands which belonged to the United
States. Non-resident proprietors were not to be taxed higher
than residents. Finally, the navigable rivers leading into the

1 Public Domain, 155.

98 The Land Question in the United States. [356

Mississippi and St. Lawrence were declared common high-
ways, and forever free to all the citizens of the United States.

The fifth article related to the division of the Territory into
States, and the boundaries of such States. The Territory had
to be divided into not less than three nor more than five
States. When the new States had a population of 60,000
free inhabitants, they could be admitted by their delegates
into Congress on an equal footing with the original States.
Then they could form, a permanent constitution and govern-
ment in conformity to the principles contained in these articles.

The sixth and last article, which brought about so much
controversy with regard to its authorship, was in the following
language : " 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.771

EULOGIES ON THE ORDINANCE OF 1787.

Such were the provisions of the charter of compact in this
celebrated Ordinance of 1787, which superseded the resolu-
tions of April 23, 1784, known as Jefferson's Ordinance. The
act of 1787 became the corner-stone of territorial governments
in the Western Territory. Statesmen and public writers have
been loud in their praises of this ordinance not so much because
of theoretical principles embodied in the ordinance as from its
practical merits and from results at once and forever beneficial
to the interests of the whole Union. " We are accustomed/7

1 The text of the ordinance maybe found (1) in the Public Domain,
153-156 ; (2) in the St. Glair Papers, II, 612-618 ; (3) in the Journals of
Congress, IV, 752-754 ; (4) in the Magazine of Western History, Nov.
1884, 56-59.

357] The Land Question in the United States. • 99

says Daniel Webster, " to praise the lawgivers of antiquity ;
we help to perpetuate the fame of Solon and Lycurgus ; but I
doubt whether one single law of any lawgiver, ancient or
modern, has produced effects of more distinct, marked and last-
ing character than the Ordinance of 1787. We see its con-
sequences at this moment, and we shall never cease to see them,
perhaps, while the Ohio shall flow."1 The words of Judge
Timothy Walker are no less decided than those of his great
contemporary. Judge Walker said, "Upon the surpassing
excellence of this ordinance no language of panegyric would be
extravagant. The Romans would have imagined some divine
Egeria for its author. It approaches as nearly to absolute per-
fection as anything to be found in the legislation of mankind ;
for, after the experience of fifty years, it would perhaps be impos-
sible to alter without marring it. In short, it is one of those
matchless specimens of sagacious forecast which even the
reckless spirit of innovation would not venture to assail. The
emigrant knew beforehand that this was a land of the highest
political as well as national promise, and, under the auspices
of another Moses, he journeyed with confidence toward his
new Canaan."2

Eminent constitutional writers like Judge Story3 and Mr.
Curtis are also among the admirers of the Ordinance of 1787.
Here are the words of Mr. Curtis: "American legislation
has never achieved anything more admirable as an internal
government than this comprehensive scheme. Its provisions
concerning the distribution of property, the principles of
civil and religious liberty which it laid at the foundation of

J Webster's Works, III, 263.

5 An address delivered at Cincinnati, December 23, 1837. Transactions
Ohio Hist, and Phil. Society, I, Part II, 189. Quoted by Mr. W. F.
Poole in North American Review, April, 1876, and in the St. Glair Papers,
I, 118.

3 Judge Story says, "The ordinance is remarkable for the brevity
and exactness of its text, and for its masterly display of the fundamental
principles of civil and religious liberty." — Story's Commentaries, III, 187.

100 The Land Question in the United States. [358

the communities since established under its sway, and the
efficient and simple organization by which it created the first
machinery of civil society, are worthy of all the praise that
has ever attended it. It was not a plan devised in the closet
upon theoretical principles of abstract fitness. It is a con-
stitution of government drawn by men who understood from
experience the practical working of the principles which they
undertook to embody. Those principles were, it is true, to
be applied to a state of society not then formed, but they
were taken from states of society in which they had been tried
with success."1 Again, Mr. Chase, late Chief Justice of the
United States, in the introduction to the " Statutes of Ohio,"
said, " Never, probably, in the history of the world did a
measure of legislation so accurately fulfil, and yet so mightily
exceed, the anticipations of the legislators. The ordinance
has well been described as having been a pillar of cloud by
day and of fire by night in the settlement and government of
the Northwestern States."2

Many similar eulogies on the ordinance and its framers
might be cited, but we shall be content with one more quota-
tion, and that from an eminent authority, whose praise of the
ordinance is somewhat more definite and precise than any of
the eulogistic opinions hitherto quoted. Mr. Joseph S. Wilson,
late Commissioner of the General Land Office, says, " This
noble statute [referring to Section II. of the ordinance] struck
the key-note of our liberal system of land law not only in the
States formed out of the public domain, but also in the older
States. The doctrine of tenure is entirely exploded ; it has
no existence. Though the word may be used for the sake of
convenience, the last vestige of feudal import has been torn
from it. The individual title derived from the government
involves the entire transfer of the ownership of the soil. It
is purely allodial, with all the incidents pertaining to that title
as substantial as in the infancy of Teutonic civilization.

1 Curtis' Constitutional History of the United States, I, 306-307.

2 See W. F. Poole in North American Review, April, 1876, 234.

359] The Land Question in the United States. 101

Following in the wake of this fundamental reform in our
State land laws are several others which constitute appro-
priate corollaries. The statute of uses was never adopted in
the public-land States, and hence the complex distinction
between uses and trust has never embarrassed our jurispru-
dence. We have, however, adopted one of the methods of
conveyance to which that statute gave rise — to wit, the
method of bargain and sale. Feoffments, fines and recoveries
are entirely dispensed with, as also livery of seisin and its
consequences. A conveyance is completed by the execution
and delivery of the deed. Entailment and perpetuities are
barred by the statute, which renders void all limitations
beyond persons in being and their immediate issue, and
which provides that an estate tail shall become a fee-simple
in the heirs of the first grantor. All joint interests in land
are reduced to tenancies in common. Joint tenancies never
had an existence, and coparceners are now on a footing of
tenants in common. Real actions, with their multitudinous
technicalities, never had an existence in our Western juris-
prudence, though some of the fictions of this form of action
were and are still tolerated in some localities — e. g., the
allowance of fictitious parties to a suit. Ejectment is now
the universal remedy, being the only action for the recovery
of lands. Action by ejectment is limited to twenty-one years,
but refractory tenants may be more speedily dispossessed by
the action for forcible entry and detainer. A dispossessed
claimant may, at the option of the ejector, either pay for the
land or receive pay for the improvements. For waste the
party is liable in simple damages and no more. A tenant in
dower forfeits the place wasted. In the older States we see
evidences of the reflex benefits of the land legislation of our
public-land States."1

After quoting this able exposition, the Public Land Commis-
sion adds, "This great American charter contains the basic

1 Land Office Report, 1870, 28-29.

102 The Land Question in the United States. [360

propositions as to land tenures of the laws of the United
States and of most of the States of the Confederation, and
became and is the foundation of the same statutes in all the
public-land States and Territories. Under its care and pro-
visions the Central and Western States and Territories of the
Union, and the States in the territory south of the river Ohio,
have grown from weak and straggling settlements to mighty
commonwealths and organizations containing more than
25,000,000 of people. The ordinance began with a wilder-
ness. Its principles, embraced in existing laws, now govern
in area and population the domain of an empire."1

Such are the opinions of eminent authorities on the Ordi-
nance of 1787. Indeed, the ordinance is a grand monument
to American statesmanship, and will forever tower among
the works of Federal legislation.

CONSTITUTIONALITY OF THE ORDINANCE.

Before we enter into the subject of the authorship of the
ordinance, one word must be said touching its constitution-
ality. The Articles of Confederation made no provision for
erecting the Territory into new States, and for admitting them
into the Union. Therefore, the ordinance which extended
national sovereignty over the new Territory was an unauthor-
ized act. But the ordinance was a necessary sequence of the
resolution of October 10, 1780. Virginia and other States
quit-claimed the Western Territory, reposing faith in Congress
that such an ordinance as that of 1787 would be issued by
,/ Congress in conformity to "the resolution. Therefore, the
root of constitutionality primarily lies in the resolution and
not in the ordinance.

Although no constitutional question as to the validity of
the ordinance was ever raised in Congress, yet contemporary
statesmen seem to have been aware of its legal defects.

1 Public Domain, 159.

361] The Land question in the United States. 103

Madison thus speaks in the Federalist: "A very large pro-
portion of the fund [referring to the Western Territory] has
been already surrendered by individual States ; and it may
be expected that the remaining States will not persist in
withholding similar proofs of their equity and generosity.
We may calculate, therefore, that a rich and fertile soil of an
area equal to the inhabited extent of the United States will
soon become a national stock. Congress have assumed the
administration of this stock. They have begun to make it
productive. Congress have undertaken to do more : they
have proceeded to form new States, to erect temporary govern-
ments, to appoint officers for them, and to prescribe the con-
ditions on which such States shall be admitted into the
Confederacy. All this has been done, and done without the
least color of constitutional authority. Yet no blame has
been whispered, and no alarm has been sounded."1

That the public acquiesced in the ordinance was because
of its necessity. The vital issues and common interests that
were involved in governing the Western Territory on such
a basis as the ordinance proposed were enough to justify it,
in spite of its non-constitutionality. Congress could not
have acted otherwise than to enact this fundamental law.
The true function of an enlightened government is to do
what the public interest (the salus publica) requires. " Gov-
epiment is derived from the living necessities and united
interests of a people. The State does not rest upon compact
or written constitutions. There is something more funda-
mental than delegated powers or chartered sovereignty. The
State is grounded upon that community of material interests
which arises from the permanent relation of a people to some
fixed territory."2

The ordinance was legislation upon a national "com-
munity of material interests," and therefore found its

'The Federalist, No. XXXVIII, 43-43.
2H. B. Adams. Land Cessions, 49.

104 Tlie Land Question in the United States. [362

support in the economic foundation of the State. " The
truth is," says Judge Story, " that the importance and even
justice of the title to the public lands on the part of the
Federal Government, and the additional security which it
gave to the Union, overcame all scruples of the people as to
its constitutional character."1 This fact also illustrates the
old truth that institutions are not made, but grow by his-
torical processes. The living necessities of a body politic are
the loftiest guiding principles of government. The salus
publica will perpetually guide the history of society, in
spite of written instruments. The unconstitutional Ordi-
nance of 1787 has shaped the history of the entire Western
Territory, because it was framed upon necessity and suited
the needs of republican expansion. It fairly stood the test
of seventy years, and, although then once repudiated in one
of its most essential clauses, its principles have finally won
a complete triumph.

AUTHOKSHIP OF THE OEDINANCE.

The authorship of the Ordinance of 1787 has been much
disputed ever since Webster made incidental reference to it
in his first speech, January 20, 1830, on Foot's resolution
concerning the Western lands. " At the foundation of the
constitution of these new Northwestern States/7 said Webster,
" lies the celebrated Ordinance of 1787. . . . That instrument
was drawn by Nathan Dane, then and now a citizen of
Massachusetts."2 This statement was opposed by Mr. Benton
and Mr. Hayne, who ascribed its authorship to Thomas
Jeiferson. The controversy then became an issue between
sections — the North and the South. Webster not only
ascribed the authorship of the ordinance to a Northern man,
but its passage to Northern influence; "for," said he, "it

1 Story's Commentaries, III, 187.

2 Webster's Works, III, 263-264.

363] The Land Question in the United States. 105

was carried by the North, and by the North alone." This
was a gross error, and was contradicted by the Southern
Senators. As we have already seen, the ordinance was
carried chiefly by Southern votes. All the Southern States,
except Maryland, were then represented, while the North
was represented by only three States. Webster made some
other errors in the course of his speech, which were corrected
by Mr. Benton. But the Southern opponents of Mr. Webster
were also wrong in their attempt to eliminate Northern
elements from the ordinance, and in ascribing its author-
ship chiefly to Mr. Jefferson. As a matter of fact, the dispute
in the Senate brought no true light whatever upon the sub-
ject ; and the authorship of the ordinance, if it was due to a
single individual, was left undiscovered for half a century.

The above controversy drew, however, a letter from Mr.
Nathan Dane, of Massachusetts, the only surviving member
of the committee who served in the old Congress in forming
a temporary government for the Western Territory in 1787.
His letter was a reply to Webster's inquiry about the origin
of the ordinance, and was dated March 26, 1830. It was
published by the Massachusetts Historical Society in its
" Proceedings," 1867-1869 (475-480). In this letter, Mr.
Dane strongly urges his claims to the authorship of the most
important parts of the ordinance. He considered Jefferson's
resolution of 1784 merely as an incipient plan, not at all
matured for practical legislation, while the final ordinance
was a completed system. He said that the ordinance, which
was so " totally different in size, in style, in form and prin-
ciple," did not contain altogether twenty lines that were
taken from Jefferson's resolution, and that even these were
differently expressed. He then analyzed the ordinance and
divided it into three parts. The first part consisted of " the
titles to estates, real and personal, by deed, by will and by
descent ; also personal, by delivery." These, he said, were
selected from the laws of Massachusetts, except that the
ordinance omitted the double share to the oldest son. The

106 The Land Question in the United States. [364

second part consisted of preliminary measures for the tempo-
rary government of the Territory. " Neither these parts
nor the titles," he says, were " in Jefferson's plan." In this
Mr. Dane was somewhat mistaken. The titles, indeed, were
not found in Jefferson's plan, as Mr. Dane truly says, but
the temporary measures formed its chief bulk. The third
part consisted of " the six fundamental articles of compact
expressly made permanent and to endure forever." These
permanent parts, Dane assured Webster, were his own
original production. He had added them, as well as the
titles, to the previous ordinance, which came down to the
third reading on May 10, 1787. With regard to the slavery
clause, Dane said : " I have, as you will see, ever been care-
ful to give Mr. Jefferson and Mr. King their full credit in
regard to it." But he said that since a slavery clause in his
handwriting was found attached to the printed ordinance, it
was also his work and not entirely theirs. He did not,
however, claim originality for the anti-slavery clause, but
what he did claim was authorship of the clauses touching
contracts, Indian protection, religion, morality, knowledge
and schools.

Mr. Dane's claims are quite sweeping, but there are some
self-contradictory passages in his letter. He expressly
states that the titles and the six articles were taken from the
laws and Constitution of Massachusetts, but, at the same time,
he claims originality for some parts of them. Conflicts of
statement are still more apparent if we examine another
letter, written by Mr. Dane under the date of May 12, 1831,
addressed to J. H. Farnham, Secretary of the Indiana His-
torical Society, which letter was printed in the New York
Tribune of July 18, 1875. He says : " It will be observed that
Provisions 4, 5, 6, [which] some now view as oppressive to the
West, were taken from Mr. Jefferson's plan." He admits
that these three provisions were taken from Mr. Jefferson's
plan, but in a letter to Webster he states that, " if any lawyer
will critically examine the laws and constitutions of the

365] The Land Question in the United States. 107

several States as they were in 1787, he will find the titles
and six articles were not to be -found anywhere else so well
as in Massachusetts, and by one who, in '87, had been engaged
several years in revising her laws." Thus Mr. Dane implied
that he utilized the laws of Massachusetts for the ordinance,
and did not give credit to Mr. Jefferson for any important
parts of the ordinance except the anti-slavery clause, with
some modification.

Another testimony of importance to Mr. Dane's cause is
the letter addressed by him to Rufus King under the date of
July 16, 1787 — a letter printed in the New York Tribune of
January 31, 1855.1 In this letter, Mr. Dane states that
" when I drew the ordinance (which passed, a few words
excepted, as I originally formed it), I had no idea the States
would agree to the sixth article, prohibiting slavery, as only
Massachusetts, of the Eastern States, was present, and there-
fore omitted it in the draft ; but, finding the House favorably
disposed on this subject, after we had completed the other
parts I moved the article, which was agreed to without
opposition." This quite agrees with what Dane wrote to
Webster concerning the anti-slavery clause. He stated that
he added the sixth article after the ordinance went into
print. This must be the reason why the anti-slavery clause
is found in his handwriting and attached to the printed
ordinance. This letter is the most important one of all, for
it was written only three days after the passage of the ordi-
nance, and under no outside influence.

Thus we have three letters of Mr. Dane in which he
claimed, more or less directly, the credit of framing the Ordi-
nance of 1787. They are : 1. A letter to Rufus King, July
16, 1787; 2. A letter to Daniel Webster, March 26, 1830;
3. A letter to J. H. Farnham, Secretary of the Indiana
Historical Society, May 12, 1831. Besides these letters,

1 Bancroft's Constitutional History of the United States, II, 430 ; or
Spencer's History of the United States, II, 202-209.

108 The Land Question in the United States. [366

Dane also stated his claims to the authorship of the Ordi-
nance of 1787 in his "General Abridgment and Digest of
American Laws," published in Boston, 1823-24. In his
letters to Webster and Farnham, Mr. Dane quoted several
passages from the above work. In fact, Mr. Dane's contem-
poraries must have derived their knowledge of the authorship
of the ordinance from the statements he made in the seventh
volume of his "Abridgment of American Laws," 389, 390.
A writer in the North American Review, July, 1826, reviewed
Mr. Dane's "Abridgment," and said that Mr. Dane was "the
framer of the celebrated Ordinance of Congress of 1787 for
the government of the territory of the United States north-
west of the river Ohio — an admirable code of constitutional
law by which the principles of free government were extended
to an immense region, and its political and moral interests
secured on a permanent basis. One of its fundamental pro-
visions— that there shall be neither slavery nor involuntary
servitude in the said territory — prevented, by a wise foresight,
a mass of evils and rendered that fine country the abode of
industry, enterprise and freedom."1 The writer further
says that, "in drafting this ordinance, Mr. Dane incorpo-
rated into it the cardinal preventive provisions against impair-
ing the obligations of contracts by legislative acts." Again,
Judge Story, in a foot-note to page 130 of the third volume
of his " Commentaries on the Constitution," says : " It is well
known that the Ordinance of 1787 was drawn by the Hon.
Nathan Dane, of Massachusetts, and adopted with scarcely a
verbal alteration by Congress. It is a noble and imperishable
monument to his fame." Mr. Dane, in his letter to Webster,
referred to the statement of the reviewer of his " Abridgment
of American Laws " in the North American Review, July, 1826,
and also to that of Judge Story in his " Inaugural Address "
(page 58), as a support of his claim to the authorship of the
ordinance.

1 North American Review, July, 1826, 40-41,

367] The Land Question in the United States. 109

In 1847, Colonel Peter Force, of Washington, as we have
already stated, printed in the National Intelligencer, of August
26, several ordinances relating to the Northwestern Terri-
tory, but he did not enter into any controversy concerning
the authorship of the ordinance. He simply brought forward
several new facts, and left the work of philosophizing upon
them to other investigators. The valuable service which
Colonel Force had contributed toward the solution of the
true authorship of the ordinance was the publication
of the ordinance which came down to the third reading
on May 10, 1787. It was an entirely different ordinance
from that of July 13, 1787. He did not explain, could
not explain, how such complete changes were brought about,
but he stated certain facts in the following words : " It
appears that in five days it. was passed through all the forms
of legislation — the reference, the action of the committee, the
report, the three several readings, the discussion and amend-
ment by Congress, and the final passage."1 These facts
proved to be interesting data for the future settlement of the
great problem of the authorship of the ordinance.

On June 9, 1856, Governor Coles read a paper before the
Historical Society of Pennsylvania on " The History of the
Ordinance of 1787." He was a native of Virginia, and pri-
vate secretary to President Madison. He was Governor of
Illinois from 1822 to 1826, and at the time he read his
paper was a citizen of the Keystone State and a member of
the Historical Society. Governor Coles ascribed the author-
ship of the ordinance to Mr. Jefferson. After comparing the
difference in the provisions of the ordinance of Mr. Jefferson
and those of 1787, and after affirming that Mr. Jefferson's
anti-slavery clause was adopted by Congress in the Ordi-
nance of 1787, "with no change except the omission of
the postponement of its operation until 1800, and the intro-
duction of the clause for the restoration of fugitive slaves/72

'Public Domain, 152.

2 Coles' History of the Ordinance of 1787, 15.

110 The Land Question in the United States. [368

Governor Coles then adds that " some of the above particu-
lars would not have been stated so fully but for a claim
which has been made to the authorship of the ordinance on
behalf of Nathan Dane, of Massachusetts. To show a mis-
conception somewhere, and, in a word, the groundless char-
acter of this claim, it is only necessary to state that Mr. Dane
took his seat in Congress for the first time on the 17th of
November, 1785 — more than eighteen months after the
ordinance had been conceived and brought forth by its
great author, and been adopted by Congress, with certain
alterations, the principal one of which, on motion of Mr.
King, had been in effect cancelled and the original provision
restored nearly in the words of Mr. Jefferson, eight months
before Mr. Dane took his seat in Congress."1

Governor Coles' errors are too. evident to need any refuta-
tion. His explanation of the origin and history of the
ordinance is also a hasty patchwork ; but the history of the
practical operation of the ordinance, which occupies more
than half of his work, is very valuable, and shows that he
was a strong anti-slavery man. The paper was written two
years after the principles of the ordinance were repudiated in
Congress, and he therefore wrote it in full anticipation of the
dreadful calamity of civil war. His object seems, not chiefly
to come to the support of Mr. Ben ton and Mr. Hayne in the
matter of the questioned authorship — although he paid an
appropriate tribute to Mr. Jefferson — but to show the wise
provisions of the ordinance, under which the Western States
have grown into a free and prosperous country. Mr. Benton,
however, found a support for his cause in Governor Coles,
and, in his " Thirty Years in the United States Senate,"
stated that he fully concurred with the statement of Governor
Coles concerning the authorship of the Ordinance of 1787.

We have seen, thus far, that the names of Jefferson and
Dane have been chiefly mentioned in connection with the

1 Coles' History of the Ordinance of 1787, 15.

369] The Land Question in the United States. Ill

ordinance. The historic question lay between a Southern
statesman and a Northern lawyer. In 1872, another name
came before the public. It was the name of Dr. Manasseh
Cutler. The Kev. Dr. Joseph F. Tuttle read passages from
the journals of Dr. Cutler before the Historical Society of
New Jersey on May 16, 1872. Dr. Tuttle briefly sketches
the life of the Massachusetts divine as follows : "The Rev.
Manasseh Cutler, LL.D., was born at Killingly, Conn., May
28, 1742. He was graduated at Yale College in 1765. He
then studied law and was admitted to the bar. He removed
to Edgartown, Martha's Vineyard, and began the practice of
his profession. Not long afterward he determined to study
theology, and was ordained September 11, 1771, and installed
pastor of the Congregational church in Hamilton, then
Ipswich Hamlet, Mass. He served as chaplain in the Amer-
ican Army, during two campaigns, in the War of the Revo-
lution. In 1786, Dr. Cutler had become associated with a
company (subsequently known as the Ohio Company), whose
leading spirits were Revolutionary officers, for the purchase
of land north of the Ohio. In June, 1787, he went to New
York as the agent of the company to negotiate with the
American Congress for the purchase of a large tract some-
where in the new country west of Pennsylvania and Virginia.
With consummate tact he accomplished his mission, and
made a contract for the purchase of over a million and a
half acres at two-thirds of a dollar per acre. He kept a
journal of his journey and his proceedings at New York,
from which it appears that his plan could only be carried out
by allowing some private parties to make an immense pur-
chase of Western lands under the cover of the contract of
the Ohio Company. The bargain included five millions of
acres, one and a half millions of which were for the Ohio
Company, and the remainder for the parties operating
through, him."1 After giving extracts from the journals, Dr.

1 Proceedings of New Jersey Historical Society, Second Series (1867-74),
III, 75.

112 The Land Question in the United States. [370

Tuttle continues : " I cannot bring myself to drop this part
of Dr. Cutler's history without referring to two facts, as I
fully believe them to be such. The ordinance to be sub-
mitted to Congress was placed in Dr. Cutler's hands for his
examination, and his two grand suggestions were adopted.
The first was the exclusion of slavery forever from the
Northern Territory, and the second was the devotion of two
entire townships of land for the endowment of a university,
and Section Sixteen in every township of land and fractional
township in that vast purchase for the purpose of schools.
These two ideas, adopted by all the new States, made the
Great West what it is."1

The object of Dr. Tuttle was to present passages from the
journals of Dr. Cutler which referred to New Jersey, Penn-
sylvania, and Ohio in 1787-88. Therefore, the reverend
doctor did not enter into discussion of the ordinance further
than the above citations. But, in the history of the literature
touching the authorship of the Ordinance of 1787, we find,
for the first time, the name of Dr. Cutler connected with the
ordinance. His relation to the ordinance, as well as to the
Ohio Company, certainly needed a further and more careful
investigation, in order to reach the long-desired end of the
controversy over the authorship of the Ordinance of 1787.
It is, indeed, a somewhat singular fact that the true author-
ship of the world-renowned ordinance was so long shrouded
in mystery. But the mystery was soon to be removed by
the hands of a careful investigator. The credit of solving
this long-mooted question is due to Mr. William Frederic
Poole, now of Chicago. He entirely exploded old notions
upon the subject in an able article entitled "Dr. Cutler and
the Ordinance of 1787," which was published in the North
American Review, April, 1876.

The year 1876 was the centenary of American Independence,
and it suggested various reviews by able writers on the prog-

1 Proceedings of New Jersey Historical Society, Second Series (1867-74),
III, 73.

371] The Land Question in the United States. 113

ress of American politics, economics, education, law,
religion, and other kindred matters, during the century.
Among these articles is found Mr. Poolers valuable contribu-
tion to the history of the Ordinance of 1787. Mr. Poole
went through all existing literature relating to the ordinance,
and made a careful examination of all, especially of the
journals of Dr. Cutler. The result of Mr. Poolers investi-
gation showed that Dr. Cutler, while negotiating for the pur-
chase of lands for the Ohio Company, was taken into the counsel
of the committee who were framing the ordinance, and was
asked to make remarks and propose amendments, which he
did on the 10th of July, and that these remarks and amend-
ments formed the moral bulwark of the ordinance. Mr.
Poole further showed that the sudden change in the final
ordinance from that form which came down to the third
reading on May 10, is to be accounted for by the personal
influence of Dr. Cutler in the shaping of the ordinance. He
wished the government and laws of the new Territory adapted
to the needs of emigrants from New England. Mr. Poole
shows how the enactment of the ordinance was inseparably
connected with the " Ohio purchase." He says : " The Ordi-
nance of 1787 and the Ohio purchase were parts of one and
the same transaction. The purchase would not have been
made without the ordinance, and the ordinance could not have
been enacted except as an essential condition of the purchase.
Both were before Congress and under consideration at the
same time. . . . The ordinance has hitherto been treated as an
isolated piece of legislation, and as such it has been a marvel
and an enigma. When considered together, every fact in
the origin and passage of the ordinance is explained, and is
found to be connected with the agency of Dr. Manasseh
Cutler."1 " The ordinance," he further says, " is a condensed

abstract of the Massachusetts Constitution of 1780

The Ohio Company, organized in Massachusetts and mainly
composed of Massachusetts men, was the party proposing to

1 Poole in North American Review, April, 1876, 257.

114 The Land Question in the United States. [372

purchase these lands. That these prospective emigrants
should desire and claim the privilege of living under the
laws and with the institutions they had cherished and helped
to frame, was as natural and reasonable as that this boon
should have been granted to them by Congress. There was
no intention on the part of Congress, or of any member, of
forming an ordinance on this basis until after Dr. Cutler had

arrived in New York on the 5th of July The new

point of procedure having been fixed, the drafting of the
ordinance was much a matter of clerical routine. The work
was evidently turned over to Mr. Dane, he being the only
member of the committee who was familiar with the Massa-
chusetts Constitution."1

By this course of argument, Mr. Poole shows that it was
Dr. Cutler who furnished the committee with suggestions as
to the proper basis and best principles upon which to frame
the ordinance. Thus the historic gap which Colonel Force
could not fill was made full and satisfactory. In the cen-
tennial year, the mystery involved in the history of the
ordinance was cleared away.

We shall not, however, do justice to the subject if we here
part company with Mr. Poolers article. The interest created
by Mr. Poole in Dr. Cutler has perhaps carried some of his
readers a little too far, and made them under -estimate the service
which others besides Dr. Cutler rendered in the formation of
the ordinance. The editor of the " St. Clair Papers," Mr.
William Henry Smith, says that Mr. Poole himself " gives too
little consideration to the influence of others."2 Dr. Adams,
who reviewed the "St. Clair Papers," entertains the view
that there were many authors. " The Ordinance of 1787, like
all products of wise legislation, was created, not by one man or
one section of country, but by the concurrent wisdom of many
men, and by the unanimous vote of Congress. Jefferson and
Dane ; Pickering and King, of Massachusetts ; Carrington and

1 Poole in North American Review, April, 1876, 258.

2 St. Clair Papers, I, 122.

373] The Land Question in the United States. 115

Lee, of Virginia ; Kean, of South Carolina, and Smith, of New
York; the moral and educational interests of New England
(represented by Dr. Cutler), the economic interests of the whole
country (providing for its public debts by the sale of public
lands), the ' private speculation ' of ' many of the principal
characters in America' (Cutler's diary), the personal popu-
larity of St. Clair with the Southern party, which wished to
reimburse the General for his Revolutionary losses by making
him Governor of the Northwest — all these influences, and
many more besides, entered into the formation and adoption
of the Ordinance of 1787."1

Neither the friends of Dane nor those of Jeiferson and Dr.
Cutler can justly claim the sole authorship of the ordinance
for their candidate. So many influences came into play, from
Jefferson's first motion to the final passage of the ordinance, that
it would be unjust to disregard them. Mr. Poole's enthusiasm
for the shrewd and diplomatic New England clergyman has
certainly carried many of his admirers away. In reality, Mr.
Poole's views are perhaps not very far removed from those of
Mr. W. H. Smith, who says : " Dr. Cutler organized the
victory," and secured liberal principles in the ordinance.

The writer of this monograph thinks Mr. Poole did not
deal quite fairly with Nathan Dane. He was somewhat
severe in criticising Mr. Dane's style of writing as obscure and
ragged. In fact, Dane's bad style was one of Mr. Poole's
grounds for believing that the ordinance was not Mr. Dane's
own production, although Mr. Poole admits that Mr. Dane may
have performed the clerical work. Mr. Poole also casts rather

!Dr. H. B. Adams' review of the St. Clair Papers in The Nation,
May 4, 1882.

Note. — I do not understand that Mr. Poole ever regarded Dr. Cutler as
the actual author of the entire Ordinance of 1787. Mr. Poole has been
misapprehended by some of his friends and critics. His main idea was
that the clever parson, Dr. Cutler, in the interest of the Ohio Company,
pushed a revised ordinance through Congress— an ordinance expressing
both Virginia and New England ideas in a way satisfactory to all
parties. — ED.

116 The Land Question in the United States. [374

strong reflections on Dane's character, for he says Dane did
not make any claim to the authorship of the ordinance during
the lifetime of Dr. Cutler, or during that of any other person
concerned in its formation. Dr. Cutler died July 23, 1823.
Mr. Dane's "Abridgment" appeared from 1823-1829. In
this work Dane set forth his claim to the authorship of the
ordinance. It would be extremely unjust to the honor of
that representative and codifier of Massachusetts law to
assume that he purposely withheld his " Abridgment " until
after Dr. Cutler's death. Such a thing is more than improb-
able. Besides, Mr. Dane, in his letter to Rufus King, written
three days after the passage of the ordinance, expressly stated
that he drew up the ordinance, and that it was accepted with
only a slight alteration. Webster's speech shows that he
held Mr. Dane in high esteem. As to his legal attainments,
a contemporary writer says that the author of the " Abridg-
ment" has honorably discharged that which "every man,
according to Lord Coke, owes to his profession."

Again, Mr. Poole reflected perhaps rather too severely
upon St. Clair, who is said to have been cool toward Dr.
Cutler until the Governorship of the Territory was suggested
for the former. This point was strongly contested by Mr.
Smith in the " St. Clair Papers," and, following him, by
Mr. William W. Williams, in his contribution of an article
entitled "Arthur St. Clair and the Ordinance of 1787" to
the Magazine of Western History, November, 1884. In spite
of these criticisms, Mr. Poole's article remains the master-
piece upon the subject of the Ordinance of 1787.

Let us, in conclusion, say with Spencer, though with the
addition of a few more names, that enough of enduring honor
for each and all must forever be associated with the names
of Dane and Jefferson, Pickering and King, Grayson and
Smith, Monroe, Carrington, Lee, Kean, Johnson and Cutler,
and perhaps others, for the part taken by each in the long,
laborious, and eventful struggle which had so glorious a con-
summation in the ordinance, consecrating forever, by one

375] The Land Question in the United States. 117

imprescriptible and unchangeable monument, the very heart
of this land to freedom, knowledge, and union.1

OPERATION OF THE ORDINANCE.

The first Governor of the Territory appointed under the
ordinance by the old Congress was St. Clair. William
Sargent, Dr. Cutler's partner, was appointed Secretary.
When the new Constitution took effect in 1789, the first
Congress passed an act recognizing the ordinance under the
new Constitution of the United States. On May 7, 1800,
the Territory was divided into two portions, and the western
portion became Indiana Territory. On November 29, 1802,
the eastern portion was admitted into the Union as the State
of Ohio. On January 11, 1805, Indiana Territory was
divided into two parts, and the northern central portion
became the Territory of Michigan. On February 3, 1800,
Indiana was again divided, and its western portion was
created into the Territory of Illinois. Indiana and Illinois
were admitted into the Union in 1816 and in 1818 respectively.
In 1836, the Territory of Wisconsin was formed out of the
western portion of the Territory of Michigan. Michigan
and Wisconsin were admitted into the Union in 1837 and in
1848 respectively. In authorizing the Territories to frame
State Constitutions for their admission into the Union,
Congress stipulated that the government should be repub-
lican and not repugnant to the Ordinance of the 13th of July,
1787, or to the fundamental compact between the original
States and the people and States of the territory northwest
of the river Ohio. So the principles of the ordinance entered
into the provisions of the State Constitution, and guided the
political life of those new commonwealths.

After the Ordinance of 1787 was adopted, attempts were
made from time to time by the people of the Territory of
Indiana to repeal or suspend the sixth article of the charter.

1 Spencer's History of the United States, II, 209.

118 The Land Question in the United, States. [376

Petitions to that effect were often presented to Congress, but
fortunately withino effect. In 1802, General Harrison, then
Governor of the Indiana Territory, and afterward the Presi-
dent of the United States, took part in the effort to introduce
slavery into the Territory. A memorial of the Governor
and Territorial Legislature was laid before Congress. It
was referred to a committee in the House of Representatives
of which Mr. John Randolph was chairman. The committee
reported against the introduction of slavery, and the report
was accompanied by the following remarks : " The rapid
population of the State of Ohio sufficiently evinces, in the
opinion of your committee, that the labor of slaves is not
necessary to promote the growth and settlement of colonies
in that region ; that this labor, demonstrably the dearest of
any, can only be employed to advantage in the cultivation of
products more valuable than any known to that quarter of
the United States ; that the committee deem it highly
dangerous and inexpedient to impair a provision wisely
calculated to promote the happiness and prosperity of the
Northwestern country, and to give strength and security to
that extensive frontier. In the salutary operation of this
sagacious and benevolent restraint, it is believed that the
inhabitants of Indiana will, at no distant day, find ample
remuneration for a temporary privation of labor and of
emigration."

Both the Senate and the House repeatedly refused the
petitions of the inhabitants of Indiana Territory, and sanc-
tioned the Ordinance of 1787. After the Territory was
divided into two portions, the contest for slavery diminished
in the eastern, or Indiana part, and finally Indiana became a
non-slaveholding State in 1816. In Illinois the battle con-
tinued till after that State was admitted into the Union;
but there also the anti-slavery party triumphed, and never
admitted that accursed institution to corrupt the freedom
and industry of a young State. The reason why the two
States in their early history evinced a tendency to slave-

377] The Land Question in the United States. 119

holding was because of their proximity to slaveholding States,
and the consequent influence of early settlers who either
emigrated from the slaveholding States or were actually
slave-owners before the passage of the ordinance, according
to the French laws of Louisiana or the laws of the English
colonies after 1763. In general, the case was quite different
in Ohio. There, with local exceptions in some counties, the
settlers were chiefly from the Northern and Eastern States.
Connecticut had its " Western Eeserve " in regions bordering
Lake Erie. The Ohio Land Company had settlements on
the Ohio and Muskingum Rivers. Referring to the settlement
by the Ohio Company, which was principally a New Eng-
land enterprise, and which was composed of men of high
position and wealth, Washington said : " No colony in
America was ever settled under such favorable auspices as
that which has just commenced at the Muskingum. Infor-
mation, property, and strength will be its characteristics. I
know many of the settlers personally, and there never were
men better calculated to promote the welfare of such a com-
munity."1 " Before a year had passed by/7 says Bancroft,
" free labor kept its sleepless watch on the Ohio."2

Besides these settlements, there were also colonies sent out
by Symmes and his associates of New Jersey, that settled on
the Ohio and the Miami Rivers. The ordinance was pre-
pared for these settlers of non-slaveholding States in the
North and East, and the settlers themselves naturally ex-
pected an abode for free and industrious men who would
subdue Nature and overcome all obstacles for the sake of
home and posterity. Ohio had a fair start, and sturdily
supported the ordinance. Michigan and Wisconsin con-
curred with Ohio, and never permitted their virgin soil to
be denied by slavery. The provisions of the ordinance were
extended to all the Territories north of 36° 30', and shaped
the history and institutions of the great Northwest.

1 Sparks, IX, 385.

8 Bancroft's History of the Constitution, II, 117.

120 The Land Question in the United States. [378

To the territory south of the Ohio River the provisions
of the ordinance were extended by the Act of Congress, May
26, 1790 ; but the sixth article was discarded. When the
" Missouri Compromise " was repealed in 1854, the ordi-
nance, for a short period, sank into oblivion. Here let us
quote from Governor Coles' " History of the Ordinance " :
" To a cool and dispassionate observer, who has a knowledge
of the enlightened origin, the great popularity, and beneficial
effects of the ordinance, it seems to be incredible that it
should have been repealed, and especially denounced as
violating the great principles on which our Government is
founded. Yet such has been the fact ; and what adds to the
astonishment is, that this has been done by men professing
to be of the Jefferson school of politics. . . . The wisdom,
expediency and salutary practical effects of the ordinance
could not be more clearly shown than by contrasting its
operations with those of its substitute. Under the ordinance
from 1787 to 1854, the Territories subject to it were quiet,
happy and prosperous. Since its principles were repudiated
in 1854, we have had nothing but contention, riots and
threats, if not the awful realities of civil war. . . .m

Indeed, the country experienced " the awful realities of
civil war " not long after Governor Coles uttered these words ;
but the United States now enjoy peace, prosperity, freedom
and steady economic growth. The wise and enlightened
principles of the ordinance pervade the government and life
of the people in the remaining Territories. When they grow
in population to the required standard, they too will have
State Constitutions, republican in form, and " not repugnant
to the principles of the ordinance," and will be admitted into
the Union. Then, and only then, will the great colonial and
territorial dependencies of the United States in the West
cease to exist.

1 Coles, 32-33.

379] The Land Question in the United States. 121

GENERAL LAND OFFICE.

The General Land Office is the Government-machinery
through which the United States dispose of their public
lands. It was instituted under the Treasury Department
April 25, 1812, and was reorganized July 4, 1836.

Previous to the organization of the Land Office, Con-
gress enacted from time to time various laws with regard to
the disposition of public lands, and sold off portions through
its agents. The Ordinance of May 20, 1785, created an
office known as "the Geographer of the United States."1
Thomas Hutchins was the first-appointed Geographer. He
had a number of surveyors under his direction. One was
elected from each State. The Geographer was not, however,
a negotiator of the public lands. His duty consisted chiefly
in the supervision of surveys, and in the transmission to the
Board of Treasury of the series of plats whenever the seven
ranges of townships had been surveyed. The Treasury
Board in turn transmitted these plats to the Commissioners
of the Loan Office of the several States, who, after the execu-
tion of certain preliminaries, sold the lands at public vendue.
Thus the Treasury Commissioners and the Loan Office Com-
missioners constituted administrative officers of the public
doinain, and sold out the surveyed lands in accordance with
the ordinances of Congress.

HAMILTON'S PLAN FOK A LAND OFFICE.

When the new Constitution went into operation in 1789,
and a new Congress had assembled, Mr. Scott, of Penn-
sylvania, argued the necessity of creating a General Land
Office,2 in order that the public lands might be disposed of to
the best interest of the people, and especially of the pioneer
settlers who had just begun to seek a home in the "West. The

1 Journals of Congress, IV, 520.

2 Debates of Congress, I, 99-115.

122 The Land Question in the United States. [380

need of parcelling out the lands in smaller lots than had
hitherto been granted, and of granting them directly to actual
settlers through agents of the General Land Office, was
strongly emphasized by Mr. Scott and his followers, but their
efforts bore no fruit.

The importance of the subject was not, however, overlooked
by Congress. The House of Representatives called upon
Alexander Hamilton, January 20, 1790, for suggestions
respecting the best plan of disposing of the public lands.
Hamilton transmitted his report to the House on July 20,

1790.1 The report is said to have formed the basis for the
future administration of the public lands. It concerns us
here to see what was his idea as to the administrative organ
of the public domain. Hamilton reported in favor of insti-
tuting a General Land Office at the seat of Congress. He
argued this policy from a financial point of view. To insti-
tute the General Land Office was to realize the greatest
returns from sales of the public lands. He also reported
the advisability of opening district land offices for the accom-
modation of small purchasers.

The General Land Office was not, however, organized till
twenty-two years later. But under the act of May 18,

1796.2 the office of Surveyor-General was created, and in the
following year General Putnam was appointed Surveyor-
General of the Northwestern Territory. By the same act,
the Secretary of the Treasury became the chief agent for dis-
posing of the public lands. The act of May 10, 18 10,3 estab-
lished district land offices in the Northwestern Territory,
and they were placed under the charge of registers. Hitherto
the Surveyor-General transmitted the plats of survey to the
Secretary of the Treasury, but from this time forth he was to
transmit them to the registers also. Besides the Register, the

1 Public Domain, 198-200.
* Statutes at Large, I, 465.
3 Public Domain, 201.

381] Tfie Land Question in the United States. 123

office of Receiver was instituted. He was to receive money
paid for the lands.

ESTABLISHMENT OF THE GENERAL LAND OFFICE.

On April 25, 1812, the General Land Office was instituted.1
The new Commissioner was to perform those duties pertaining
to the public lands which had hitherto been discharged by the
Secretaries of Treasury and of War. All returns relative to
the public lands hitherto made to the Secretary of the Treasury
were hereafter to be made to the Commissioner, and all
patents were to be issued from his office.

At this time the General Land Office had charge of the
cessions from various States and the whole of Louisiana. Its
administrative field was to expand more and more, according
to the progress of surveys and new acquisitions of territory.
Edward Tiffin, of Ohio, was appointed the first Commis-
sioner.

In 1836, " an act to reorganize the General Land Office "
was passed.2 The act provided for the creation of several
new officers in the department. They were as follows :
Principal Clerk of the Public Lands ; the Principal Clerk
of Private Land Claims ; the Principal Clerk of the Surveys ;
the Recorder of the General Land Office, and the Solicitor.
The act further provided for the appointment of a Secretary
by the President, whose duty was to sign for him all land
patents.

In 1849 came another change in the General Land Office.
Hitherto it had been a subordinate bureau in the Treasury
Department. The act of March 3, 1849,3 created the Depart-
ment of the Interior, whose Secretary, according to a provision
of the act, was authorized to perform all duties in relation
to the General Land Office — of supervision, appeal, etc. —

1 Statutes at Large, II, 716.

2 Ibid. V, 107.

3 Ibid. IX, 207.

124 The Land Question in the United States. [382

hitherto discharged by the Secretary of the Treasury. From
that time the General Land Office has remained a subordinate
bureau in the Department of the Interior.

As the superior officer of the Commissioner of the General
Land Office, the Secretary of the Interior is allowed a certain
amount of discretionary power in order that he may act with
a certain degree of freedom, without being obliged always to
go through legislative forms. He can discontinue the district
land offices in any locality when he thinks their existence is
no longer required. He has authority to order the departure
from the regular rectangular surveys in the States where he
thinks the system impracticable. The issue of military land
patents ; the appraisement and sale of reservations for town-
sites ; the adjustment of swamp-claims and claims to over-
flowed lands with the Governors of the States interested ; the
calling of the Board of Equitable Adjudication for suspended
entries of public lands and pre-emption claims ; the desig-
nation of agricultural lands apart from mineral lands ; the
control of Yellowstone Park, and several other duties either
of a routine or discretionary character, devolve upon the
Secretary of the Interior. Finally, he must take the necessary
measures for the completion of the public-land surveys.

RESPONSIBILITIES OF THE COMMISSIONER.

The existing laws thus require of the Secretary of the Interior
the supervision of public business relating to the public lands,
but the actual executive head of this important branch of
public service is the Commissioner of the Land Office. It
is this Commissioner who superintends all the machinery
of the great Land Court of the country. It is he who
chiefly disposes of innumerable cases of land claims. Upon
him rests the responsibility of the faithful execution of the
settlement laws. From him springs directly the title to land.
Upon him depends the economic safety of the pioneer settler
who struggles to cfeate a home. He must fight with lawless

383] The Land Question in the United States. 125

land " grabbers." He must keep a watchful eye upon the
condition of railroad corporations to which land grants have
been made. Public interest requires him to avoid the intro-
duction into the United States of English landlordism and
other forms of land monopoly. These and all other such
duties devolve upon the responsible office of the Commis-
sioner of the General Land Office.

We shall now briefly inquire how the Land Office is
managed under the direction of the Commissioner. In
treating of the administration of the General Land Office,
we shall divide the subject into two heads : 1. The General
Land Office proper ; 2. The local offices subordinate to the
General Land Office.

For the sake of conveniently carrying on practical adminis-
trative work, the General Land Office has created from time
to time minor subordinate offices within itself. Each office
is in charge of a chief clerk. At present there are twelve
subdivisions — from Division A to Division P.1 The entire
force in the General Land Office, from the Commissioner
down to the laborers, numbered 301 on June 30, 1883.
Their compensation amounted to $383,000 per annum.2

The local subordinate officers are Surveyors-General and
district land officers. At present there are sixteen surveying
districts, each of which is under the charge of a Surveyor-
General. These districts are Arizona, California, Colorado,
Dakota, Florida, Idaho, Louisiana, Minnesota, Montana,
Nebraska, Nevada, New Mexico, Oregon, Utah, Washing-
ton, and Wyoming.3 The Surveyor-General is authorized to
appoint his deputy to survey the public lands within his
district. The cost of survey varies according to localities,
but it cannot exceed the maximum fixed by act of Congress.
The Surveyor-General makes contracts with his deputy under
the approval of the Commissioner. The Surveyor's district

1 Public Domain, 1230.
* Ibid. 558.
3 Ibid. 554.

126 The Land Question in the United States. [384

has no reference to the political divisions of the States, and
is entirely conventional, depending upon the location of the
public lands. When the survey of public lands within any
particular surveying district is completed, then the Surveyor-
General's office is closed and its archives are filed with the
State Government.

Quite independent of surveying districts, the district land
offices have been created for the accommodation of settlers.
Since 1800 there have been created two hundred and fifty-
eight district land offices, but there now remain only one
hundred and five offices.1 Each office is in charge of a Register
and Receiver. The district land officers are agents for dis-
posing of the public lands, and they come in direct contact
with settlers. The execution of various settlement laws
depends much upon the faithful discharge of the duties of these
local officers.

In recent years efforts have been made to advance the
General Land Office into a special department like the
Department of Agriculture. In the first session of the
Forty-Seventh Congress, the Committee on Public Lands, in
the Senate, instituted investigations as to the actual condition
of administration in the General Land Office. They reported
a recommendation to create a Department of Public Lands.
The Public Land Commission, which was created under the
act of March 3, 1879, to codify the land laws of the United
States, held the same view as did the Senatorial Committee.
The late Commissioner, Mr. McFarland, repeatedly called
the attention of Congress to the increasing work of the Land
Office, and the lack of proper provision for the work.

We shall close this chapter by quoting words of the Public
Land Commissioners, in their valuable work "Public
Domain/' with regard to the importance of the General
Land Office. " The General Land Office/7 says one Commis-
sioner, "holds the records of title to the vast area known as

1 Public Domain, 555.

385] The Land Question in the United States. 127

the public domain, on which are hundreds of thousands of
homes. Its records constitute the i Domesday Book 7 of the
public domain of the United States.771 In the later edition
of the work, the same Commissioner again says : " The
General Land Office, charged with the care and custody of
the public lands under the supervision of the Secretary of the
Interior, is one of the most important and responsible public
divisions in the administrative circles of the Government.
The survey, sale or other disposition of the nation's public

lands is within its control Its jurisdiction reaches

from Lake Erie to the Pacific Ocean, and from Canada to
the Gulf of Mexico. Four-fifths of the lands of the entire
area of the United States have been or are now under its
supervision.772 Public lands are a public trust. Recent in-
vestigations disclose shameful frauds and deceptions as
prevailing in public-land entries.3 The nation's interest
demands a fair disposition of the public domain, and the
importance of the office to which is entrusted the nation7s
property can hardly be exaggerated.

III.
LAND SYSTEM OF THE UNITED STATES.

The laud system of the United States is of historical growth.
It has passed through various legislative enactments, and
through almost a century of practical administration. The
present system has grown, perhaps, far beyond the anticipa-
tions of those who were first called upon to legislate concern-
ing the public lands.

The chief object of the early legislators was to dispose of

1 Public Domain, 166.

2 Public Domain, 1222-1223.

3 See in New York Herald a series of articles (April 6, 1886, and suc-
ceeding issues) upon such subjects as " Greedy Land Grabbers," " New
Mexican Land Thieves," etc.

128 The Land Question in the United States. [386

the lands as fast as they could, and with the proceeds to dis-
charge public debts, to which the public lands were already
pledged. Legislators did not look upon the public lands
from the standpoint of settlement, but from that of finance.
The Revolutionary War had wrecked the finances of the
States. Commerce had faint life. Manufactures had not come
into being. State contributions were often attended with
technical difficulties. Loans accumulated, while credit was
small. Continental paper was of little or no value. At
this point of financial embarrassment, the most promising
source of revenue was from the sale of Western lands, which
became public domain through fierce political controversy. It
is not strange, therefore, that early American financiers favored
the passage of land laws which had revenue for their sole
object. Public lands were then the common purse — the
treasury of the nation.

EFFECT OF TEKKITOBIAL GROWTH.

While the question of revenue had so preponderating an
influence, there came another influence which modified the land
laws. It was the growth of the public domain. The legis-
lators who deliberated on the public lands in the hall of Con-
gress in Philadelphia, or in New York, had in view no broad
Western horizon. Their outlook was limited to the lands
lying west of the Alleghany Mountains and east of the Mis-
sissippi River. The lands which were pledged to public debts ;
the lands which were wrested from the British Crown ; the
lands which placed the Union on a solid basis of common
interest; the lands which played the part of a centripetal
force against the centrifugal tendencies of the States — these
were the only lands which, in actual government and dis-
position, taxed the wisdom of the early legislators of the
country. Beyond the Mississippi their views did not extend.
They had no conception that the public agrarian trust was a
growing one. They did not dream that the public lands

387] The Land Question in the United States. 129

would extend, within so short a time, not only beyond the Mis-
sissippi River, but even beyond the Rocky Mountains, beyond
the Sierra Nevada, and finally down to the Pacific Coast. But
such was the decree of fate. "America is a fortunate
country," said Napoleon ; " she grows by the follies of our
European nations." True, Napoleon's own "follies " caused
him to part with the vast imperial territory of Louisiana, and
America grew to an enormous size. The original thirteen
States almost trebled their domain. After the Louisiana Pur-
chase, the public domain kept on growing, till the Czar of
Russia ceded the peninsula of Alaska. So, finally, has
arisen a vast agrarian empire of almost 3,000,000 square
miles, which stands behind the original States like a territorial
bulwark against any aggressive power beyond the Pacific.

The physical characteristics and natural conditions of this
vast public domain are varied indeed. Some lands are sub-
ject to periodical floods. Some are now treeless deserts
which need irrigation for successful culture. Some localities
are valuable only for timber and stone. Some lands have
coal and mineral deposits. Still others are particularly
exposed to attacks from the Indians, and thereby need special
protection to encourage settlement. Other lands, still, are cover-
ed with private land claims arising from grants by foreign
powers. Again, as the public domain grew in size, certain
lands had to be used, not only for purposes of settlement, but
also for internal improvements, as well as for the advance-
ment of education. These and many other facts and conditions
had to be taken into consideration in the disposition of public
lands. With the growth of the public domain, the land laws
became very varied in different regions.

CHANGES IN PUBLIC SENTIMENT.

It was not merely the growth of the public domain that
introduced variation in the early land laws of the country.
Another potent factor in this process was the growth of

130 The Land Question in the United States. [388

public sentiment in regard to the ultimate disposition of the
public lands. The old revenue idea gave place to the idea of
actual settlement. The grant of homesteads for honest settlers
became the spirit of the land laws.

In speaking of the waste lands in England, Edmund
Burke said : " The principal revenue which I propose to
draw from these uncultivated wastes is to spring from the
improvement and population of the Kingdom. Throw them
into the mass of private property, by which they will come,
through the course of circulation and through the political
secretions of the State, into well-regulated revenue." Such
was the case with the wild lands of the United States. The
nation had to derive wealth and strength from permanent
material improvements upon the public lands by inviting
enterprising settlers from the old States or from abroad,
through free and liberal grants of land. The policy of land
sales for the mere sake of revenue thus gave way to land
grants for actual settlement.

This change in public sentiment was very gradual. It was
the result of experience as well as of changed conditions.
The sufferings of land purchasers under the credit system ;
the failure to realize any considerable revenue from cash
sales ; the increasing prosperity of the country from commerce
and manufactures ; the need of immigration of foreign-born
citizens to occupy and develop the public lands — all these causes
worked together to mould public opinion and shape the ulti-
mate land policy of the United States.

Again, problems and motives of purely political concern
often mingled with the land question. Not unfrequently
party lines were drawn on agrarian issues. One party was
instrumental in purchasing and acquiring new territories,
while another enacted and executed land laws. The endless
petitions and intrigues of speculators to secure special land
grants hastened the enactment of a general land law in the
form of the pre-emption act of 1841. In fact, the land laws
of the United States developed from the actual needs of the
people.

389] TJie Land Question in the United States. 131

As is often the case with historical institutions, many early
land laws have outlived their usefulness. They should be
codified and reduced to a much simpler form, thereby remedy-
ing many incident evils. Experience will always show into
what form the settlement laws of a country ought to drift.
For historical illustration, let us now review the development
of the land laws of the United States and see how they stand
at the present time.

MILITARY BOUNTIES.

The earliest use which Congress had made of public lands
was neither for revenue nor for settlement. It was for mili-
tary bounties. " The primary use of focland, according to
Bede's celebrated epistle to Egbert, was to reward soldiers."1
So it was with the focland of the United States.

As early as August 14, 1776,2 Congress promised a land
bounty to British deserters, chiefly Hessian mercenaries.
One month later, Congress passed an act promising land
grants tov officers and soldiers in the Continental Army.
Through the prospect of land grants, Congress endeavored
to enlist men in the army. This was the so-called " Con-
tinental Plan."

At this early stage of the Revolutionary War, Congress
had little anticipation of the future constitutional controversy
which conflicting bounty acts and the conflicting claims to
the Western lands were instrumental in bringing about.
Still less had Congress formed any idea what gigantic land
corporations would eventually be called into existence by
these same bounty acts. There was as yet no room for the
consideration of conflicting claims to the Western settle-
ments. Independence had just been declared. The war had
only begun. The enlistment of soldiers on any plan which
promised to secure a sufficient quota of troops was the one

1 Henry Adams, Anglo-Saxon Law, 92.

2 Laws of the United States (Duane Edition), I. 575.

132 The Land Question in the United States. [390

thing needful. Accordingly Congress resorted to land boun-
ties. The ways and means of fulfilling promises were for
subsequent consideration.

The land question cropped out in the Articles of Con-
federation. The ninth article provided that no State was to
be deprived of territory for the benefit of the United States.
Through this provision Congress recognized the claims of the
several States to their Western lands. This recognition
caused Maryland publicly to oppose the validity of such
claims — an opposition begun with the passage of the bounty
act of September 16, 1776.

The United States had at that time no public lands. How
was the Confederation to fulfill its promises ? By purchasing
lands from individual States? Then the States, in their
collective capacity, would have to contribute money to buy
these bounty lands, and ultimately enrich such great landed
States as Virginia. JSTot only the money, but the very men
who were now fighting for the cause of liberty would sooner
or later find their way to the territory where the bounty
lands were to be allotted. The growth of the landed States,
both in wealth and population, was a necessary consequence
too obvious for calculation. Such an overgrowth of the
large States would both politically and economically pre-
ponderate over the small States. Maryland and other land-
less States would not be able to hold their own against such
an aggressive tendency on the part of the landed States.
Controversy over the land question was inevitable from the
very dawn of federal history, especially as the validity of
the claims to the Western lands could be questioned.

Thus arose at the dawn of the Republic's history a consti-
tutional controversy on the disposition of unoccupied terri-
tory. The controversy continued several years, and ended in
cessions of land claims by the larger States. These cessions
gave birth to the public domain. It strengthened the Union,
and laid for it a lasting foundation. It created a common
federal interest and made valid the promise of the laud
bounty.

391] The Land Question in the United States. 133

While the question of the land cessions was yet pending,
Congress passed a resolution that the ceded lands should be
disposed of for the common benefit of the United States, and
be settled or granted according to the manner agreed to in
Congress. This was the first resolution as to the disposition
of the Western lands. WTien New York ceded her claims,
and Maryland signed the Articles of Confederation, Congress
began to discuss modes of disposition, but nothing was
determined till after the Virginia cession. The Virginia
cession took place March 1, 1784, and on May 20, 1785,1
Congress passed the first ordinance for ascertaining the mode
of disposing of the Western lands.

GENESIS OF THE LAND SYSTEM.

This ordinance, the genesis of the land system, deserves
examination in some detail. The ordinance instituted the
so-called "Rectangular System" of surveys. According to
this system, the Territory was to be divided into townships
of six miles square by lines running due north and south,
and by other lines crossing the first at right angles. The
first line running north and south began on the river Ohio,
at a point due north from the western termination of a line
which was run as the southern boundary of the State of
Pennsylvania. The first line running east and west of
course started at the same point. The townships were
designated by progressive numbers from south to north.
Each range always began with No. 1, the ranges themselves
being designated by progressive numbers from east to west.
The townships were subdivided into sections of one mile
square, or 640 acres, each township containing 36 sections,
or 23,040 acres. This was the size of the normal town-
ship. In case natural hindrances made it necessary to have
the survey of only a fractional part of the township, then the

i Journal of Congress, IV. 520, or Laws of the United States (Duane
Edition), I. 563.

134 Tlie Land Question in the United States. [392

sections actually laid out bore the same numbers as if the
township had been entire. The actual size of such a township
depended upon the extent of natural obstacles preventing the
survey of an entire township.

RECTANGULAR SYSTEM OF SURVEY.

This rectangular system of survey has been established
in the United States ever since the Ordinance of 1785. Its
merits have been recognized, and are well known. Unfortu-
nately, the origin of the system is not so well known. The
plan was first reported May 7, 1784, by a committee of
which Mr. Jefferson was chairman. The report recommended
the division of the Western Territory into " hundreds," of
ten geographical miles square, and these again to be subdivided
into lots of one mile square. As we have seen in the Ordi-
nance of 1785, the size of the "hundreds " or townships was
finally reduced to six miles square. From what source the
idea of dividing public lands into rectangular forms was first
suggested to Mr. Jefferson and his colleagues is a matter of
conjecture. Mr. Donaldson, of the United States Land Com-
mission, thinks that the natural features of the Western lands
facilitated the work of longitudinal and latitudinal survey ;
this, and the fact that Virginia in her deed of cession provided
for the division of the Territory into States rectangular
in form, not less than one hundred nor more than one
hundred and fifty miles square, perhaps influenced Jefferson
to recommend the rectangular system of survey.1 Professor
Austin Scott, of Rutgers College, thinks that the idea was
first suggested to Jefferson by De Witt, the Dutch surveyor,
and that the system, imported from Holland, was primarily of
Roman origin.2

Whatever may have been the origin of the system, it
proved to be one of the best features of legislation respecting

1 Public Domain, 178.

2 The Rutgers Targum, December 12, 1884.

393] The Land Question in the United States. 135

the public lands of the United States. Speaking of the
merits of this system, Mr. Donaldson says : " Its recommen-
dations to the public lie in its economy, simplicity and brevity
of description in deeding the premises by patent and for
future conveyancing, and in the convenience of reference
from the most minute legal subdivision to the corners and
lines of sections, and of townships of given principal base
and meridians. Its greatest convenience is its extreme

simplicity It was originated for land-parcelling for

sale, and it has answered the purpose."1 Again, General R.
D. Mussey, of Washington, D. C., in a letter to Dr. H. B.
Adams, of Johns Hopkins University, said : " I was specially
interested in the history of the Ordinances of 1784 and 1787,
and recalled the remark of a friend who had had a great deal
to do with colonizing emigrants and others. He said that the
rectangular method of land surveying was as great a concep-
tion in its way as any in that grand scheme for the manage-
ment and disposal of the public lands. The ease, certainty
and dispatch which this system has introduced into the
determination of ' metes and bounds ? have been of incalcu-
lable advantage in promoting the settlement of the West

According to the ' Public Domain/ last edition, this plan had
its origin in a committee of which Jefferson was a member,
and presumably the idea was largely his. If so, it deserves
to be ranked among the best of his contributions to the
practical details of our Government machinery." Indeed, the
value of the rectangular system of surveys can hardly be
overestimated. Not only does it afford positive advantages
to the settlement, but, negatively, it prevents litigations, which
are an inevitable consequence of irregular surveys and
settlements.

METHOD OF SALE.

The Ordinance of 1785 established in detail a system of
sale for the public lauds. As soon as seven ranges of town-

1 Public Domain, 188.

136 The Land Question in the United States. [394

ships had been surveyed, the geographer had to transmit
the plats to the Treasury Board. Thence the Secretary of
War was authorized to take, by lot, plats for a number of
townships equal to one seventh part of the entire number of
townships contained in the seven ranges. This procedure was
to satisfy the claims of soldiers to land bounties. Each time
the geographer transmitted plats upon the survey of every
seven ranges, the Secretary of War had to repeat the above
procedure, until a sufficient quantity of land had been drawn
to satisfy military grants. The remainder of the surveyed
lands was drawn by the Treasury Board in the name of the
thirteen States, according to their respective requisitions
from the federal treasury. The board then transmitted a
copy of the original plats of survey to the Commissioners of
Loans in the several States, and notified them what town-
ships had fallen by distribution to each particular State. The
commissioners were authorized to advertise lands for the
space of from two to six months, and then to sell them at
public vendue in a manner prescribed by the ordinance.

The manner of disposing was to be as follows : Township
No. 1 in the first range was sold entire, and No. 2 was sold
only in sections, and so on alternately throughout the town-
ships of the first range. Township No. 1 in the second
range was sold by sections, and No. 2 entire, and so on
throughout the second range. The third range was sold like
the first, and the fourth range like the second, and thus
alternately throughout all the ranges. The minimum price
of land was one dollar per acre, not including the cost of
survey, which was one dollar per section, or thirty-six dollars
per township.

The ordinance further directed the reservation of Lot No.
16 in every township for the maintenance of public schools.
This provision proved very beneficial to the cause of educa-
tion.

This ordinance is significant in more than one respect.
Not only did it institute the land system, but it respected

395] The Land Question in the United States. 137

the promise of land bounties made to the officers and soldiers
of the Continental Army at the outbreak of the Revolution.
This promise the Government now proposed to fulfill through
the privilege given the Secretary of War of reserving bounty
lands before great tracts were put into the market.

But this provision was repealed July 9, 1788,1 in con-
sideration of a military reservation of a million acres which
was ordered by the resolution of October 22, 1787. The
proportionate distribution of lands to the several States, and
the subsequent sale by the Loan Commissioners in each State,
were alike found impracticable. The Treasury Board was,
however, authorized to select lands for sale.

Another significant feature in this Ordinance of 1785 was
the proposed sale of lands in an unlimited quantity above
the required minimum, which was an entire section of 640
acres. A rapid disposal of public lands and immediate
realization of revenue were greatly desired at the beginning
of the administration of the public land. " These Western
lands were looked upon by all the financiers of this period as
an asset to be cashed at once for payment of current expenses
of Government and extinguishment of the national debt."2
That this was the fact, can be judged from the tone of the reso-
lution of April 29, 1784, which urged the cession of lands to
the States which still held them in suspension. It says that
" they [referring to the States] be urged to consider that, the
war being now brought to a happy termination by the personal
services of our soldiers, the supplies of property by our
citizens, and loans of money from them as well as from
foreigners, these several creditors have a right to expect
that funds shall be provided on which they may rely for
indemnification ; that Congress still consider vacant territory
as an important resource."3 By Act of Ma*rch 3, 1795, "the

1 Laws of the United States (Duane Edition), I. 569.

2 Public Domain, 196.

3 Journals of Congress, IV. 392.

138 The Land Question in the United States. [396

net proceeds of the sales of lands belonging or which shall
hereafter belong to the United States, in the Western Terri-
tory thereof/71 were constituted one of the six provisions that
went to the " sinking fund."

"With desire of immediate revenue, the Ordinance of 1785
allowed no credit for land purchases. Payments could be
made either in specie or in loan-office certificates, reduced to
a specie value on the then scale of depreciation, or by cer-
tificates of liquidated debts of the United States, including
interest. In case immediate payment was not forthcoming,
the lands were again to be offered for sale. In unfortunate
contrast to this policy of immediate payments, the credit
element was allowed to enter into the land system of 1787.2
The resolution of April 21, in that year, required one third
of the purchase-money to be immediately paid, but allowed
three months' credit for the remaining two thirds. This was
but another means to an economic end. It was to achieve
the quickest possible sale of the public lands.

EARLY ATTEMPTS AT SETTLEMENT.

The settlement of the Western Territory, for which the
Ordinance of 1785 was created, was not a novel idea. As early
as 1742, the Ohio Company was organized in Virginia. Its
object was to trade with the Indians and to settle the country.
It secured a grant of several hundred thousand acres of land.
Thomas Lee, Lawrence Washington, and other prominent
Virginians, were the originators of this Ohio scheme. After
the close of the French and Indian War, the subject of settle-
ment received a fresh impulse from various sources. No less
a personage than George Washington figured as one of the
land speculators "of the time.3 In the Maryland Journal

1 Statutes-at-Large, I. 435.

2 Journals of Congress, IV. 739.

3 See Washington's Interest in Western Lands, in Dr. Adams' paper on
Land Cessions, University Studies, 3d Series, No. 1.

397] The Land Question in the United States. 139

of August 20, 1773, Washington advertised 20,000 acres of
land on the Ohio and Great Kanawha Kivers. About the
same time the Walpole Grant was obtained through the per-
sonal influence of Benjamin Franklin. Several other land
companies were started, some only in name, and others
becoming afterward sources of litigation.

The Revolutionary War broke up every speculative scheme
and checked every enterprise. Neither the Ohio Company
nor the Walpole Grant was heard of again. But as soon as
the war came to an end, individual settlers began to move
toward the West. They began to trespass upon the public
domain. They settled without title on unsurveyed lands.
Thus they began to violate the fundamental provisions of
the land system instituted in 1785, which required the
extinguishment of Indian titles, and the survey of public
lands before settlement. But these settlers were not very
numerous. At the time the Ordinance of 1787 was passed,
we find only a few scattered settlements on the Kaskaskias
and at St. Vincent's, and a few French and Canadian villages.

OHIO COMPANY AND SYMMES' ASSOCIATES.

With the Ordinance of 1787 began active settlement in
the Western Territory. The movement was inaugurated
by the organization of the Ohio Land Company in 1786.
The leading spirits of the company were General Rufus
Putnam and General Benjamin Tupper. Both men were
appointed surveyors under the Ordinance of 1785.1 One
night's friendly conference of the two veterans by a New
England fireside resulted in a vast plan for colonization. The
plan was accepted by the veterans of the Revolutionary Army,
and such men as Winthrop Sargent, John Brooks, and
Thomas Cushing joined the enterprise. The corporation was
formally organized in Boston on March 3, 1786. It aimed to
raise a fund to the amount of one million dollars in Conti-

1 Journals of Congress, IV. 547.

140 The Land Question in the United States. [398

nental certificates, and immediate steps were taken to collect
subscriptions. But local discontent in New England from
financial depression, and the consequent outbreak of Shay's
Rebellion, retarded the progress of the company. In 1787,
negotiations were opened with Congress for the purchase of
lands in Ohio. Dr. Manasseh Cutler was then a special
agent of the company.1 We have already noticed the impor-
tant service which the New England clergyman rendered in
the passage of that celebrated ordinance. He succeeded also in
effecting the purchase of lands for the Ohio Company. He and
Winthrop Sargent, in behalf of the company, entered into
a contract with the Board of Treasury, October 27, 1787, for
the purchase of tracts of land on the Ohio and Scioto which
were estimated to contain two million acres. At the conclu-
sion of the contract, $500,000 of the purchase-money was to
be paid down, but credit was given for the rest. The price was
one dollar per acre, but a rebate to two thirds of a dollar was
allowed under certain conditions. Rights to military bounties
were recognized, acre for acre, in the payments of the com-
pany to the amount of one seventh of the entire purchase-
money. Two sections in each township were granted for the
support of schools and religion, and two entire townships for
the founding of a university. Later, we find a donation of
100,000 acres to actual settlers within the purchase of the
company. Originally, the contract stipulated for the pur-
chase of 1,500,000 acres, but this amount was finally reduced
to 964,285 acres, for which the company paid $642,856.66
in certificates and army land-warrants.2

Closely following the purchase made by the Ohio Company,
John Cleves Symmes and his associates also bought a tract
of land on the Ohio and Miami Rivers — a tract originally
estimated to contain one million acres, but finally reduced to

1 For the Ohio Company, see Poole's Ordinance of 1787 in North Ameri-
can Review, April, 1876. Also Alfred Mathews' Organization of the Ohio
Land Company, Magazine of Western History, November, 1884.

''Laws of the United States, II. 277. See also Public Domain, 17.

399] The Land Question in the United States. 141

248,540 acres. The terms of the purchase were the same as
to the Ohio Company. The associates of Symmes were also
Northern men. His petition was made " on behalf of the
citizens of the United States westward of Connecticut."1
Another contract for the sale of lands was made with the
State of Pennsylvania in 1788. The tract now lies in Erie
County, and is known as the " Erie Purchase."

Thus there were three large land-sales by Congress before
the adoption of the system of disposing of lands through district
land offices. Two of these purchases were made by private
corporations of Northern men for the purpose of colonizing
emigrants in the Western Territory. The same restless,
enterprising, progressive spirit that had been the characteristic
of the hardy Puritan settlers of New England, was manifested
when they saw before them vast, fertile plains and primeval
forests awaiting only the approach of labor and capital. New
England society and institutions were reproduced in the
Northwest, and they were destined to extend their influence
from sea to sea.

HAMILTON'S PLAN FOR THE PUBLIC LANDS.

When Congress assembled in 1789, under the new Consti-
tution, the subject of the public lands formed one of the most
frequent topics of discussion. The House of Representatives
soon called upon Alexander Hamilton for his views concern-
ing the best plan of disposing of the public lands. On July
20, 1790, Hamilton made a report to Congress.2

This report was remarkable for its practical and financial
suggestions. Hamilton thought that there would probably be
three kinds of land purchases : First, by moneyed individuals
and associations for the purpose of investment ; second, by
colonizing associations for the purpose of settling emigrants ;
and third, by unassociated persons either already inhabitants
of the Western Territory or those who intended to emigrate

1 Laws of the United States, I. 495.

2 Public Domain, 198.

142 The Land Question in the United States. [400

thither. Since the first two purchases already proposed
would be of such a character as to embrace a large quantity
of land, Hamilton thought that, from a financial point of
view, they required primary attention. But as the last
purchase was also an important one, he sought to harmonize
the interests of both large and small purchasers. For the
accommodation of the former class, he recommended the
opening of a General Land Office at the seat of Govern-
ment where large contracts would mostly be negotiated by
interested parties, while for the benefit of the latter class he
recommended the establishment of local land offices where
small purchases could be made. Besides the commis-
sioners in charge of these land offices, Hamilton suggested
the office of a Surveyor-General, with power of appointing a
Deputy Surveyor-General, as well as a number of Deputy
Surveyors.

Hamilton's suggestions as to the practical details in the
business of the Land Office were very characteristic of him.
While finance was to him a supreme interest, Hamilton did
not overlook the question of landed property. He seems to
have favored small land-holdings, for he made one hundred
acres the maximum quantity of an actual settler's holding.
But any quantity of land could be bought by special contract,
and two years' credit was allowed for the purchase of more
than a township of ten miles square — subject, however, to
certain conditions. Hamilton laid special stress upon the
financial value of the public lands. He deemed them one of
the foundations of his financial policy, for the certificates
issued for land on the public loan then proposed were allowed
to serve for warrants, and had to be received acre for acre in
payment for lands.

IMPORTANT FEATURES OF THE LAND SYSTEM.

Such was in substance Hamilton's plan for the dispo-
sition of the public lands. Some of the suggestions which
Hamilton made in his reports soon reappeared in acts of

401] The Land Question in the United States. 143

Congress, notably in the Act of May 18, 1796.1 This was
the first land ordinance which the new Congress passed since
its organization in 1789. There was nothing especially
original in it, for it was a modification of the Ordinance of
1785, with the embodiment of some of Hamilton's sugges-
tions. The leading features of the old ordinance — i. e., the
system of surveys, and the method of dividing land into
townships, and of subdividing the townships into sections ; the
procedure of sale ; the reservation of certain sections in each
township for specific purposes — were all retained in this act.
The creation of the office of a Survey or- General, the formal
inauguration of a credit system, and the payment of certain
fees for certificates and patents, were things recommended by
Hamilton, and they were now made law by this act. The
price of land, instead of being reduced, as recommended by
Hamilton, was doubled, being now fixed at $2 per acre.

The next important change in the land system was intro-
duced by the Act of May 10, 1800.2 This act created the
office of Register and Receiver, whose duty was to take
charge of a land office. The act created in all four land
offices — one at Cincinnati, one at Chillicothe, one at Marietta,
and one at Steubeiiville. They were the first land offices
established by Congress. The present method of disposing
of public lands through district land offices began at this time.

Hitherto land had been sold in quarter townships and
sections. The above act ordered the Surveyor-General to
make further subdivisions of land — that is, into half sections.
In 1804, provision was made for the division of land into
quarter sections, and in 1820 the minimum quantity was
reduced to half-quarter sections ; still later to quarter-quarter
sections — i. e., 40 acres — which is the present minimum body
of land for sale.

Another important provision of the above act related to
the so-called "oifered lands." Such lands as remained unsold

1 Laws of the United States, II. 533.

2 Statutes-at-Large, II. 73.

144 The Land Question in the United States. [402

at the public vendue were subject to private sale at the then
minimum price of $2 per acre. Some change was made in
the mode of paying the purchase-money. Credit was allowed
for four years. Payment could be made in four instalments,
one fourth part of the purchase-money being paid each year.
This method reduced considerably the revenue from public
lands, the amount received in 1800 being only $443. 75. l
But, on the whole, this plan was an improvement upon the
Act of 1796, and it was the first serious attempt toward the
establishment of a general land system.

There intervened several decades between this time and
the institution of a general pre-emption act. During this
interval there were several important agrarian measures of
both a general and a special character. During the first half
of this period the purchase of Louisiana and Florida was
effected. In 1805, a standing committee on public lands
was appointed in the House of Representatives. In 1812,
the General Land Office was organized. The public lands
were now being rapidly settled, and several new States arose.
Nothing is so remarkable as the rapid increase of population
in the public-land States. In 1800, the entire Northwest
contained only 50,0002 inhabitants, the ratio of population
being about one tenth to every square mile ; while in 1840
the population had increased to 2,920,000, the ratio therefore
increasing to about seven per square mile. In Ohio alone,
from 1800 to 1810, the increase was nearly 409 per cent.

THE CREDIT FEATURE IN THE LAND SYSTEM.

The first forty years of the present century can be called
the formative period of the general land system. The bit-
terest political controversy was connected with this period.
As the struggle of the landed States in the old Congress had
been to prevent the institution of the public lands, so now
the struggle of the new landed States was to break up and

1 Public Domain, 17.

2 See Tenth Census of the United States— Population, Part I. 4.

403] The Land Question in the United States. 145

appropriate the public lands within their own jurisdiction.
To this period belongs one of the measures which instituted
the so-called " American System " for internal improvement,
and led the way to gigantic land grants which subsequently
became sources of corruption and abuse. Again the country
reached its most prosperous period, and the public debt was
almost extinguished. As the surplus revenue is an economic
problem in the United States to-day, so was it in this period
of national history. Especially was it the case with the pro-
ceeds of public-land sales. Hence arose the question of distri-
bution of proceeds, which for a time was carried by its friends.
During the early part of the present century, the land
system presented one most discouraging feature. This was
speculation in public lands. Speculation was an outcome of
the credit feature in the land system. The Act1 of 1800 pro-
vided : First, that every purchaser of public lands should
pay toward surveying expenses six dollars for every section
of land, and three dollars for every half section. Secondly,
that the purchaser should deposit one-twentieth part of the
purchase-money at the time of purchase, and one-quarter of
the entire purchase-money, including the deposit, within forty
days. A second quarter had to be paid within two years, a
third quarter within three years, and the last quarter within
four years after the day of purchase. Thirdly, that the pur-
chaser should pay to the Register of the Land Office, when
application was made, a fee of three dollars for every section
and two dollars for every half section. Fourthly, that a fee
of five dollars for patenting a section, and a fee of four
dollars for patenting a half section, should also be required
from every purchaser.

MOVEMENT OF POPULATION WESTWARD.

The terms of purchase provided by the Act of 1800 were
very liberal, and offered sufficient inducement for enterpris-

1 Statutes-at-Large, II. 73.

146 The Land Question in the United States. [404

ing men to emigrate westward. At this time, several States
of the Union were making primary disposition of lands within
their own boundaries. Massachusetts was selling her lands
in Maine ; Connecticut, her " Western Reserve " in Ohio ; Penn-
sylvania, her chartered lands through the State Land Office ;
while Virginia put into the market her lands in Kentucky ;
North Carolina, her lands in Tennessee; and Georgia, her
lands in Alabama and Mississippi.1 The States offered their
lands at a reduced price, so that Federal and State public
lands came into open competition in the market.

The nineteenth century opened in America with the west-
ward movement of population. European nations were
at that time involved in the Napoleonic wars ; consequently,
emigration from the Old World was small. Prior to 1820,
it has been estimated that the number of immigrants averaged
about 8,000 persons per annum.2 It was not, therefore,
emigrants from Europe that moved to the West at this
particular period of American history, but rather emigrants
from the eastern part of the United States. Land could be
obtained for an insignificant sum of money. The terms were
so liberal that settlers could pay the price of land with the
first produce of their newly -broken farms. Let us observe
with how little money a settler could take up a section of 640
acres. A cash payment of $331 was all that the settler
needed in order to acquire this vast estate. The charges
were distributed as follows :

1. Register's fee for application, . . . . $3 00

2. Expense for surveying, ...'.. 6 00

3. One-twentieth of $1280, the price of a section

at $2 per acre, to be deposited, . . 64 00

4. One-fourth of $1280, including deposit, paid

within forty days after purchase, . . 256 00

5. Other small fees, 2 00

Total charges, . .' . $33100
1 Public Domain, 202. 2 The American Almanac, 1884, 27.

405] The Land Question in the "United States. 147

As we have already seen, the other three-fourths ($960) of
the purchase-money could be paid in three instalments, one
each year, after the second year following the purchase, so
that it required in all four years for the Government to
realize the entire purchase-money. Any enterprising and
industrious settler would be able to realize something from
his newly-acquired land within two years of settlement, and
thus find means for the payment of another fourth part of his
indebtedness. At any rate, the agrarian inducements were
so attractive to eastern farmers that a great exodus began to
the Western Territory.

Speaking of the movement of settlers in the western part
of New York, John Bach McMaster says : " They formed
companies and bought millions of acres. They went singly,
and purchased whole townships as fast as the surveyors could
locate, buying on trust and selling for wheat, for lumber, for
whatever the land could yield or the settler give."1 In
another place he says : " In 1800, the high-peaked wagons,
with their white canvas covers, the little herd, the company
of sturdy men and women, were to be seen travelling west-
ward on all the highways from New England to Albany, and
from Albany toward the Lakes. They were the true settlers,
cleared the forests, bridged the streams, built up towns,
cultivated the land and sent back to Albany and Troy the
yield of their farms."2 What was thus true of the western
frontier of New York, was also true of the Ohio Valley.
Restless immigrants kept constantly moving westward. Not
all, however, were bona-fide settlers : some were land specu-
lators, who bought real estate on credit with the hope of a
future rise in value.

The credit system resulted in financial distress to many of
the settlers. They became encumbered with debts to the
Government, and the Government became the creditor of the
distressed pioneers. On the 1st of October, 1808, the amount

1 McMaster's History of the People of the United States, II. 573.

2 Ibid. 574.

148 Tlie Land Question in the United States. [406

due the Government was estimated at $2,041 ,67s.1 Petitions
were presented to Congress for the relief of the burdened
settlers. It became necessary that relief should be granted
in one way or another. On January 9, 1809, Mr. Morrow, of
the Committee on Public Lands, reported to the House of
Representatives in favor of the relief of land purchasers.2
The committee first recommended the remission of interest.
The Act of 1800 provided that a discount of eight per cent,
should be allowed on the payments made before they became
due, but also that six per cent, interest should be charged for
the last three payments that were allowed to stand on credit.
But the Act of March 26, 1804,3 modified the above provisions.
According to this act, no interest was to be charged for
payments punctually made on the day they became due, but
six per cent, interest was to be charged for all outstanding
debts. It was the remission of this interest that the commit-
tee recommended. The committee also favored an extension
of the time for completing payments. They reported that the
general suspension of commerce prevented agricultural prod-
ucts from coming to market, thereby distressing farmers.
The committee further urged an abolition of the credit system.
They proposed to identify the interests of the settlers with
those of the Government, and to prevent the accumulation of
a large credit from increased sales, especially as at this time
the lands owned by States and corporations were likely to
become exhausted. The final recommendation of the com-
mittee was the reduction of price as a natural sequence of the
abolition of credit.

ABOLITION OF THE CREDIT SYSTEM.

The result of the recommendations of the committee was
an act, passed March 2, 1809,4 which granted to the purchasers

1 State Papers, Public Lands, I. 909.

2 Ibid.

3Statutes-at-Large, II. 281.
4 Ibid. 533.

407] The Land Question in the United States. 149

of land an extension of two years for the completion of pay-
ments. This was the first relief act passed by Congress. It
was speedily followed by other and similar acts. From 1809
to 1832 inclusive, no less than twenty-three relief acts were
granted by the Government. They were either general or
special in their application. By far the most important act
was that of March 2, 1821. All other relief measures find
their centre here. Previous to 1821 one act followed another,
either extending the terms -of payment, or suspending the sale
or forfeiture of land for failure to complete payments. Such
relief measures were only temporary, and could not effectu-
ally relieve the distress now spreading over the entire public
domain. Neither could they eradicate the evil. Something
more radical had to be done. The legislatures of the Territories
often memorialized Congress for the relief of unfortunate
settlers. The memorial of the Legislature of Indiana Terri-
tory which was presented to Congress under the date of Sep-
tember 21, 1814, shows in a measure that the settlers bought
Government lands with the expectation of paying the cost out
of the produce of the farms. The memorial says : " Many
of the settlers have purchased their lands of the United
States, and their last cent has in many instances been expended
in making the first payment, under the impression that by
means of their industry the produce of those very lands,
together with the sale of surplus stock, would enable them to
meet their respective balances as they would become due.771

The settlers were disappointed. Frontier life was often
disturbed by outbreaks of Indians, and the settlers7 farms
remained unimproved for years. If the arrears on farms
were not paid, the law had to take its course, and the lands
reverted to the Government. To eject unfortunate settlers
from their lands and log cabins must have seemed to the
pioneers an inhuman thing. But the law had to be executed
by Government representatives until relief came from Congress.
Accordingly, one act after another was passed relieving the

1 State Papers, Public Lands, II. 888.

150 The Land Question in the United States. [408

pioneers of the West, as the agrarian laws of Rome relieved
the suffering plebeians. But relief was endless unless the
root of the evil was cut out. This root was the credit system.
Congress became aware of the fact, and at last abolished the
credit feature of the land system. This was done by the Act
of April 24, 18 20.1 The act also reduced the price of land
from $2 to $1.25 per acre, and thenceforward the duty of
issuing proclamations for the sale of the public lands devolved
upon the President of the United States.

CRAWFORD'S SYSTEM OF BELIEF.

The act prevented evils in the future, but did not altogether
remedy those of the past. Cries for the relief of deep-seated
distress did not stop. Mr. Crawford, then Secretary of the
Treasury, recommended to Congress a plan which subse-
quently became law. This was the Act of March 2, 18 21.2
It was very comprehensive. Heretofore, relief had extended
only to those who held land amounting to less than 640 acres,
but this act extended the relief indiscriminately to all parties.
It allowed all purchasers to relinquish their claims to the
lands for which payment was not completed. The money
could not be refunded by the United States, but could be
credited for the lands men wished to retain. The act entirely
remitted interest that had become due. It divided agrarian
debtors into three classes. The first class were those who
paid one-fourth of the purchase-money ; the second class,
those who paid one-half; and the third class, those who paid
three-fourths. The first class of debtors were allowed to
refund the balance in eight equal annual instalments ; the
second class in six years ; and the third class in four years.
The new debt or balance thus created had to bear an equal
annual interest at the rate of six per cent., but the interest
was to be remitted in case payments were made punctually

1 Statutes-at-Large, III. 566.
Ulid. 612.

409] T/ie Land Question in the United States. 151

at the time they became due. Such were the chief provisions
of the Act of 1821. They enabled settlers to consolidate
their holdings into such shape as their means would allow,
and at the same time put the Government, by receiving the
relinquished lands, into such a position as to be able to
execute that provision of the Act of March 3, 1820, which
authorized the President to sell the lands which had reverted
to the United States. Since the passage of the relief act of
1821, no less than ten similar measures were enacted. Most
of them followed the policy of the relief once established, and
extended the terms or allowed further contractions of holdings.
Under the credit system, the Government realized about
twenty-eight million dollars from the sale of about fourteen
million acres of the public lands.

POLITICS IN THE LAND QUESTION.

By the time the settlers' distress was relieved, the public
lands had developed another important matter for legislation,
and became the subject of much Congressional discussion.
One party supported one measure, and another party another
measure. Fierce political controversies raged from year to
year. Sectional issues often came to the front, and no little
ill-feeling existed between opposing factions. Constitutional
questions also were involved in the strife, and were discussed
pro and con by the ablest statesmen of the Republic — by
Webster, Clay, Calhoun, Benton, and others.

Never, perhaps, in the history of the public lands, was
Congressional warfare so fierce as at this time. The public
domain itself passed through a crisis. Had it not been for
the efforts of Webster and Clay, the unity of the public domain
would have been destroyed. Had the proposition triumphed
for retrocession, as advocated by Hayne and Calhoun, the
United States could not have had the uniform and general
land laws which the country has to-day. Again, the States
would have begun to compete with the Federal Government,

152 The Land Question in the United States. [410

and would have invited unscrupulous speculators into the
land market.

The State cessions which were proposed at this time were
the direct reverse of the State cessions to the old Congress.
The demand now was for the cession of the public lands to
the new States in which they were situated. We have seen
that the cession of the Western lands by Virginia and other
States bound the Union together by ties of common interest.
In the same way the preservation of the public domain at
this period was instrumental in maintaining the Union.

The main issue was between Unionists and Separatists.
Calhoun and his followers attempted to undermine the very
foundation of the Union by securing retrocession of the
public lands to the States. Webster upheld the cause of
the Union, especially in that famous speech delivered in the
Senate January 26, 1830, the second speech on Foot's Reso-
lution.1

This remarkable controversy has a deep historical signifi-
cance. Primarily, the matter was a reaction from various
political measures. To effect a retrocession of public lands
was to reduce the surplus revenue of the Federal Govern-
ment. To reduce the surplus revenue was to check internal
improvements and State distribution, as well as to suppress
agitation in favor of freeing the blacks and colonizing Africa.
The reaction was supported by deep-seated sectional ideas.
The public-land policy was but a means to an end.

The controversy had fairly begun with Foot's Resolution.
The resolution was to instruct the Committee on Public Lands
to make inquiries as to the quantity of land still remaining
in each State and Territory, and also to report as to the
expediency of limiting for a certain period the sale of the
public lands, except those already offered for sale, and then
subject to private entry.2 The resolution was originally
inoffensive, but a few objectionable amendments and some

1 Webster's Works, III. 270-347.

2 Congressional Debates, VI, Part I. 11 ; or Webster's Works, III. 248.

411] The Land Question in the United States. 153

remarks1 on the resolution at once opened a field for discus-
sion. We need not here examine in any detail the Webster-
Benton-Hayne controversy; suffice it to say, Webster ably
defended the national land policy. Webster's great speech,
however, could not check the dispute; neither did it offer
a solution to the vexed question.

APPEALS OF THE " LAND STATES."

During the two decades after the close of the second war
with England the United States had increased steadily in
wealth and population. The war of 1812 made the nation
a debtor of over one hundred and twenty-seven million
dollars, but in 1835 the debt was reduced almost to zero.
At this period the public lands filled the treasury with their
proceeds. In 1836, land revenue exceeded customs revenue
by almost one and a half million dollars.

Again, immigrants had begun to pour in from Europe.
In the decade from 1822 to 1832, their number increased
almost tenfold. These immigrants became prosperous
farmers by thrift and industry. Webster, speaking of the
settler's prosperity, said: "Selection is no sooner made,
cultivation is no sooner begun, and the first furrow turned,
than he already finds himself a man of property."2

Such being the settler's good fortune, the public lands
were fast taken up. The new States had no authority over
the primary disposition of the lands ; neither had they a right
to tax them till after private ownership was established.
Thus the Federal Government was in one capacity a great
landlord, and in another a great untaxed proprietor.

When the public lands began to assume an important place
in the economy of the nation, and when the legislators
brought the land question into a political arena, the Western

^ee Benton's Speech, Thirty Years in Congress, I. 131-134, See
Hayne's Speech in Congressional Debates, VI. Part I. 43-58.
2 Webster's Works, I. 352.

154 The Land Question in the United States. [412

States, ever alert to their own interest, manifested a strong
desire to own the public lands. The legislatures of several
States presented memorials to Congress, and they were sup-
ported by the anti-tariff party. The legislatures petitioned for
the reduction of price as well as for the cession of the public
lands.

The whole question was referred to the Committee on
Manufactures, of which Mr. Clay was chairman. This was
out of the regular order, because the question had naturally
to go to the Committee on Public Lands. The reason why
the question was referred to Clay's committee is explained by
Clay's biographer, Mr. Colton. He says : " Mr. Clay being
a candidate for the Presidency in 1832, it was thought by his
political opponents that, by imposing on him the duty of
making a report on the land question, he would injure his
prospects in the western and new States. They believed that
he could not make a report on that subject consistent with his
known principles ; and having a majority in the Senate, they
conspired to impose on him this duty, by referring the subject
to the Committee on Manufactures, of which Mr. Clay was
chairman. Mr. Clay and his friends protested against it,

but it was of no avail The duty of preparing the

report, as was expected and intended, devolved on Mr. Clay.
Such is its origin."1

The report was presented to the Senate April 16, 1832.
It was a masterly piece of statesmanship, embodying sound
views as to the public lands. It deserves to go hand-in-hand
with Webster's great speech against Hayne.

Henry Clay fully understood the importance of the public
lands, and never, from presidential aspirations, yielded to
unscrupulous political schemes. He handled the subject
honestly, and boldly reported his recommendations. His
right conception of the subject may be judged from his
speech, in which he said : " No subject which had presented
itself to the present, or perhaps any preceding Congress, was

1 Colton's Life and Times of Henry Clay, I. 460.

413] The Land Question in the United States. 155

of greater magnitude than that of the public lands. There
was another, indeed, which possessed a more exciting and
absorbing interest, but the excitement was, happily, but
temporary in its nature. Long after we shall cease to be
agitated by the tariff, ages after our manufactures shall have
acquired a stability and perfection which will enable them
successfully to cope with the manufactures of any other
country, the public lands will remain a subject of deep and
enduring interest. In whatever view we contemplate them,
there is no question of such vast importance."1

Clay's prophecy was correct: the tariff is no longer a burning
political issue. But the public lands still remain, and form
an important branch of administration. The American public
is now indignant at the prevalence of systematic fraud and
deception committed by unscrupulous land " grabbers." The
popular cry is now for a reform of land laws. Again, in
such a remote Territory as Alaska, the recent discovery of
mineral resources has made that land an important acquisi-
tion, and will call the attention of the Government to the
administration of that far-off Territory.2

We shall now briefly summarize the important points of
Mr. Clay's report. After reviewing the history and origin
as well as the sale of public lands down to 1832, the com-
mittee proceeded to inquire into the expediency of reducing
the price of public lands. They said : " There is no more
satisfactory criterion of the fairness of the price of an article
than that arising from the briskness of the sales when it is
offered in the market. On applying this rule, the conclusion
would seem to be irresistible that the established price is
not too high."

The committee then proved their position by showing,
through statistics, the annual increase of the sales of the
public lands during several preceding years. Another objec-
tion was that the reduction of the price was unjust toward

1 Colton's Clay, I. 457-458.

'2 See President Cleveland's Message of 1885.

156 The Land Question in ike United States. [414

those who were already settled in the West. A further
objection raised by the committee was that a reduction of
the price would be attended by speculation. They said that
" if the price were much reduced, the strongest incentives to
the engrossment of better lands would be presented to large
capitalists, and the emigrant, instead of being able to pur-
chase from his own Government upon uniform and established
conditions, might be compelled to give much higher and
more fluctuating prices to the speculator." They cited as an
example the military-bounty lands, which gave more benefits
to the speculators than to those for whom the lands were
intended.

Again, the committee considered that the reduction of the
price would materially injure the interests of Ohio, Ken-
tucky, and Tennessee, from which States, at this time, emi-
grants were moving to the West. If the price were reduced,
the eifect would be to depress the value of real estate in those
States, as well as to drain them of their population and
currency.

After the committee had refuted most conclusively the
objections that the price retarded the sale, and that the
price was a tax, they proceeded to the second branch of
inquiry — respecting the cession of the public lands to the new
States.

According to the estimate then made, the public lands
consisted of more than one thousand and ninety million acres,
which, at the minimum price of $1.25 per acre, represented
the value of something over $1,362,500,000. Such being the
case, the committee justly observed: "It is difficult to con-
ceive a question of greater magnitude than that of relinquish-
ing this immense amount of national property. If they were
transferred to the new States, the subsequent disposition would
be according to laws emanating from various legislative
sources. Competition would probably arise between the new
States, in the terms which they would offer to purchasers.
Each State would be desirous of inviting the greatest number

415] The Land Question in the United States. 157

of emigrants, not only for the laudable purpose of populating
rapidly its own territories, but with a view to the acquisition
of funds to enable it to fulfill its engagements to the General
Government. Collisions between the States would probably
arise, and their injurious consequences may be imagined. A
spirit of hazardous speculation would be engendered. Vari-
ous schemes of the new States would be put afloat to sell or
divide the public lands. Companies and combinations would
be formed in this country, if not in foreign countries, present-
ing gigantic and tempting, but delusive, projects, and the
history of legislation in some of the States of the Union
admonishes us that a too-ready ear is sometimes given by a
majority in a legislative assembly to such projects."

Another objection raised by the committee against the
cession of the public lands was the new relation which from
the transaction would arise between the General and State
Governments. The committee apprehended that among the
debtor States a common feeling and a common interest distinct
from the rest of the Union would inevitably arise. Again,
delinquencies on the part of the debtor States would also
inevitably arise, and these would result in the relinquishment
of credit through endless petitions and varied manipulations,
" or, if Congress attempted to enforce its payment, another
and a worse alternative would be embraced." By the " alterna-
tive " was meant, probably, secession. Here the committee
struck the very root of the evil.1

CLAY'S DISTRIBUTION BILL.

Such were the views and considerations presented by the
Committee on Manufactures with reference to the public lands.
A bill accompanied the report, and was entitled " An act to
appropriate for a limited time the proceeds of the sales of the
public lands." This was the so-called " Distribution Bill."
The Senate refused to take up the bill, and the subject was

1 See Report in Colton's Clay, I. 453-460.

158 The Land Question in the United States. [416

recommitted to the Committee on Public Lands. This com-
mittee made a counter-report about one month later.

Mr. Clay succeeded, however, in pushing his bill through
the Senate. It passed the Senate at both the first and second
sessions of the Twenty-Second Congress. But the con-
currence of the House in the second session was secured only
on the last day of the session, and it needed an immediate
action of the President to make the bill a law. President
Jackson retained the bill, "pocketed" it, as was said, and
returned it with his objections at the opening of the Twenty-
Third Congress. Thus the bill failed to become law.

In 1835, Clay again brought forward his Distribution
Bill, which again passed the Senate, but was lost in the
House. In 1841, the subject of the distribution was once
more brought forward, this time as an administrative
measure by which the incoming administration, under
General Harrison, might make a point for itself as compared
with the retiring administration of Van Buren. The bill
was ably advocated by Webster and Crittenden. Here again
constitutional questions were raised, and a critical examina-
tion was made of the conditions of cession to the old Con-
gress. We cannot follow these manifold discussions ; suffice
it to say the distribution of the proceeds from the sale of the
public lands was found to be neither unconstitutional nor
impolitic. The bill finally became a law on September 4,
1841, and it provided that, after deducting ten per cent, of the
net proceeds of the sales of the public lands within the States
of Ohio, Indiana, Illinois, Alabama, Missouri, Louisiana,
Arkansas, and Michigan, all the net proceeds subsequent to
December 31, 1841, should be divided pro rata among the
twenty-six States, and among the Territories of Wisconsin,
Iowa, Florida, and the District of Columbia, according to
their respective federal population as ascertained by the Sixth
Census.1

With the distribution, so-called "State-selections/7 to the

1 Statutes-at-Large, V. 453-458.

417] Tlie Land Question in the United States. 159

amount of 500,000 acres, were granted for the purpose of
internal improvements to every new State that should be
admitted into the Union. The act also extended the benefit
to some of the new States already admitted. Thus the
angry and deeply-agitating discussions growing out of the
public lands, which had been raging with fury for the last ten
or twelve years, were brought to a peaceful end.

PRE-EMPTION ACT.

By far the most important of all agrarian measures was
the Pre-emption Act, which, incorporated with other measures,
was passed September 4, 1841. l Neither the principle of
distribution nor State-selections enter properly into the land
system. They were simply the policy of the Government.
They did not originate .from the necessities of agrarian
administration, but were simply the measures of one political
party as opposed to another. The Pre-emption Act, on the
contrary, was an integral part of the land system. It was
the consummation of various land laws. It is still a law of the
nation, though it has long outlived its usefulness. We shall
now briefly consider the history, origin, and operations of the
pre-emption law.

HISTORY OF THE PRE-EMPTION LAW.

" Pre-emption is a premium in favor of, and condition for,
making permanent settlement and a home. It is a preference
for actual tilling and residing upon a piece of land."2 Pre-
emption originated in the necessities of the settlers. It is not
a free grant of land, but a privilege granted to a settler in
purchasing a tract of land as against competitors. It amounts
simply to the exclusion of competition, and the purchase of
land at a minimum or double-minimum price, as the case may
require.

1 Statutes-at-Large, V. 453-458.

2 Public Domain, 214.

160 The Land Question in the United States. [418

The first pre-emption act was passed March 3, 1801. * It
was a special act, and referred only to a handful of settlers
within Symmes' purchase on the Miami River. Symmes'
grand scheme of colonization had met with somewhat of a
failure, and he was obliged to contract the area of his pur-
chase. The non-fulfilment of conditions agreed upon with
the United States entailed a forfeiture of at least a portion
of his lands. Trouble ensued for the settlers. On account
of the above forfeiture, the title of certain lands which the
settlers had bought from Symmes became void. The settlers,
aware of this fact, presented petitions to Congress, and
sought recognition of their title. They argued that they
were bona-fide purchasers and settlers; that they had paid
Symmes for their holdings, and were unable to purchase a
second time from the United States ; that they believed their
title was valid; that the rise of the price of real estate in
their settlements was due to improvements which the settlers
had made, and accordingly the price of land, if it must be
demanded by the United States, should be reduced to the
original rate — that is, to two-thirds of a dollar per acre instead
of two dollars. Numerous petitions of this character were
presented to Congress from time to time. Mr. Bruce, mem-
ber of a committee to whom the petitions were referred, made
a report, April 16, 1800, recommending that Symmes should
be allowed to pay for the forfeited lands and complete his
title, so that the settlers might not be disturbed.2 But the
Pre-emption Act of 1801 did not consider the financial rela-
tions between Symmes and his purchasers : it simply gave
them the right to purchase holdings from the United States
at the established price, and according to the Land Ordinance
of 1800.

From this time till the passage of the general pre-emption
act in 1841, no less than eighteen pre-emption acts were
passed. Most of them were of a special character. Some

1 Statutes-at-Large, II. 112.

2 State Papers, Public Lands, I. 104-106.

419] The Land Question in the United States. 161

referred to certain individual settlers in particular Terri-
tories, while others referred to the Territories or States
themselves.

Pre-emption was often a relief-measure for occupiers of the
public lands. Such was the case with settlers or " squatters "
in some of the Southern States; for example, Louisiana,
Missouri, Arkansas, Alabama, Mississippi, and Florida.
Immigrants came to those States with the expectation of
securing public lands immediately after their arrival; but
to their disappointment they found that public lands were
not offered for sale in the sections where they wished to settle.
The poor immigrants had no alternative but to venture a
settlement upon unoffered lands, in the hope that the United
States would not deal with bona-fide settlers so harshly as
with mercenary speculators and land-jobbers. The settlers
petitioned the Territorial or State Legislature for the right of
purchasing land-holdings, and the Legislature memorialized
the Congress in their behalf. The result was the grant of
pre-emption.

The first general pre-emption act was passed May 29,

1830.1 By this act every settler or occupant of the public
lands, after giving due satisfaction and proof of settlement
or improvement, was allowed to enter in the register of the
Land Office any number of acres, up to a quarter section, at
the established minimum price of $1.25 per acre. This act
was to be in force only one year. It was not, therefore, a
permanent system, but only a temporary measure.

This act, like any other of a similar character, was con-
tinued from year to year. The settlers petitioned Congress
for its continuance on the ground of the incompleteness of
survey, indistinctness of boundary-lines of settlement, or
inaccessibility to district land offices. The act of June 22,

1838.2 like previous acts, extended the right of pre-emption
for two years, but it specified in detail the kinds of land to

1 Statutes-at-Large, IV. 420-421.
. V. 251-252.

162 The Land Question in the United States. [420

which pre-emption could not be extended. The lands to
which the Indian title was not yet extinguished ; lands in any
incorporated town ; alternate sections of railroad and canal
grants ; lands for town-sites ; reservations for educational
purposes ; and lands which had salt springs, were all ex-
empted from the right of pre-emption. An act supplementary
to this was passed on June 1, 1840, and extended the pre-
emption right for another two years.1

It must be kept in mind that pre-emption was not yet a
system. It still retained its temporary character. Successive
legislative enactments kept it in force. Every act of pre-
emption contemplated a relief to those settlers who occupied
the lands before the passage of the act in question, but not
to those who should settle after its passage. The ultimate
effect of the measure was, however, the encouragement of
unlawful occupation of the public lands. A measure to stop
this became an indirect means of promoting it ; for, in wild
countries, pretext could easily be found and the title could
easily be secured under the provisions of the pre-emption
act. The law of pre-emption explicitly stipulates that its
benefit is meant to be confined to actual settlers who were
found on the public lands at the time of the passage of the
act ; and yet adventurous and unscrupulous men emigrated
to the West and settled on unsurveyed public lands with the
view of procuring another enactment and of extending pre-
emption right. ,

Where population was scant and lands were plenty, but
where there was a prospect of the future increase in value of
landed property, the settlers could not be expected to await
patiently the completion of a survey and the offering of land
for sale, especially in case these settlers were foreign emigrants
who went to the West with little knowledge of the topography
of the country, and with little capital beyond their own
labor and industry. It was very natural that such men

1 Statutes-at-Large, V. 382.

421] Tlie Land Question in the United States. 163

should settle on the first piece of land which they found
suited to agricultural purposes. Thus, the administration of
land laws was made difficult, and some measures were found
necessary to justify the title of the adventurous settlers. A
remedy was found in the right of pre-emption. This was
destined to become a permanent as well as a general system.

But was pre-emption an economic loss to the United States ?
So far as auction sales were concerned it was, but ultimately
pre-emption proved a gain to the nation. What a new country
needs is the actual improvement of its landed property, and
when accomplished, such improvement redounds to the general
prosperity of a State or nation.

The development of Western resources was the ultimate
object of disposing of the public lands. Where settlers
gathered together, and where improvements were made, there
sprang up a new source of wealth. To scatter such a com-
munity because settlers trespassed on unoffered lands, would
have been highly impolitic, especially at a time when the
great West was still a wilderness or a desert.

Pre-emption was by no means a free grant. The pre-
emptors had to pay the established price for their lands. To
the United States the pre-emption grant amounted practi-
cally to the private sale of lands. The only sacrifice which
the Government had to make was that of public sale, because
the right of pre-emption closed the market to all other
purchasers save actual settlers. The 'sacrifice of the public
sale, however, was more than compensated by the improve-
ment and settlement of the public lands. Webster was
always friendly to the measure. In this view he sometimes
differed from Clay.1 The latter advocated that the law should
be suffered to take its course, and that the unlawful improve-
ments of settlers should be sold at public auction. But the
two statesmen united in an effort to pass the general and
permanent Pre-emption Act of 1841. 2

1 Webster's Works, IV. 398.

2 Statutes-at-Large, V. 453.

164 The Land Question in the United States. [422

CALHOUN'S OPPOSITION TO PEE-EMPTION.

From September 4, 1841, dates the permanent pre-emption
right as a system of disposing of the public lands. The act was
comprehensive, and the benefit of pre-emption extended to
both native and foreign-born citizens. Mr. Calhoun figured
as the stoutest opponent of pre-emption as well as of distribu-
tion measures, and advocated the cession of the public lands
to the new States. He considered that the land laws of the
United States could no longer be applied with advantage to
the altered condition of the country, and, consequently,
nothing but cession to the States could remedy the evils
resulting from the public-land administration.

A brief quotation from one of his speeches will show his
view of the public lands at this period. Calhoun said : " I
regard the question of the public lands, next to that of the
currency, the most dangerous and difficult of all which
demand the attention of the country and the Government at

this important juncture of our affairs In offering the

amendment I propose, I do not intend to controvert the
justice of the eulogium which has been so often pronounced
on our land system in the course of this discussion. On the
contrary, I believe that it was admirably adjusted to effect
its object when first adopted ; but it must be borne in mind
that a measure, to be perfect, must be adapted to circum-
stances, and that great changes have taken place in the lapse
of fifty years since the adoption of the land system. At that
time, the vast region now covered by the new States which
have grown up on the public domain belonged to foreign
powers, or was occupied by numerous Indian tribes, with
the exception of a few sparse settlements on inconsiderable
tracts, the Indian title to which was already at that time
extinguished. Since then a mighty change has taken place.
Nine States have sprung up as if by magic, with a population
not less, probably, than two-fifths of the old States, and
destined to surpass them in a few years in numbers, power

423] The Land Question in the United States. 165

and influence. That a change so mighty should so derange
a system intended for an entirely different condition of things
as to render important changes necessary to adapt it to present
circumstances, is no more than might have been anticipated.
.... Neither pre-emption nor distribution of the revenue
received from the public lands can have any possible effect

in correcting the disordered action of the system I

have given to this question the most deliberate and careful
examination, and have come to the conclusion that there is,
and can be, no remedy short of cession — cession to the States
respectively within which the lands are situated. The
disease lies in ownership and administration, and nothing
short of parting with both can reach it."1 This was a
dangerous and caustic remedy. Its failure saved the public
lands, and has preserved the best features in the present
administration of the public domain.

The Pre-emption Act of 1841 gave right of preference to
settlements 011 surveyed lands only, but later it was extended
to unsurveyed lands in California, Oregon, Minnesota, Kan-
sas, Nebraska, and New Mexico.2 The right of preference
was also extended to the alternate, even-numbered sections
of the railroad grants, where the settlements were made prior
to the withdrawal of these lands from the market.

PRESENT LAW OF PRE-EMPTION.*

The present law of pre-emption may be stated briefly as
follows : Any person above the age of twenty-one years who
is not the owner of 320 acres can enter the public lands,
surveyed or unsurveyed, offered or unoffered. The essential
requisites are actual residence and improvement. The maxi-
mum quantity of land allowed to any pre-emptor is 160
acres. For the final proof and payment, the period from

1 Calhoun's Speeches, 403-404.

2 Public Domain, 214.

3 Revised Statutes, 414-419.

166 TJie Land Question in the United States. [424

twelve to thirty-three months is allowed. The length of
time for credit depends upon whether the land is offered or
unoffered. Again, the price is at a minimum or double
minimum, according to the situation of the land. If the
land lies along the line of railroad grants, it is at double
minimum ; otherwise it is at a minimum. The benefit of
pre-emption extends to foreign emigrants, upon filing a dec-
laration of intention to become naturalized.

From the nature of pre-emption law?< it can easily be seen
that the pre-emption was an evolution from the two earlier
methods of disposing of public lands — namely, credit sale and
private contract. It is not a free grant, as we have already
seen. It is a sale — a credit sale. It allows one almost three
years to complete his title to a holding. The term is more
liberal than under the credit system in former years, as it
charges no interest. Again, the sale is private. It admits
no competition. It is a private sale to specially favored
settlers. The condition of contract is bona-fide settlement
and actual cultivation. The essence of the contract cliifers
in no respect from that which the Government made with the
Ohio Company and Symmes' associates. As the Government
granted a premium to these parties by selling them the lands
at the reduced rate of two-thirds of a dollar, so now it does
virtually the same thing for pre-emptors by excluding com-
petition.

Thus pre-emption is a law of historical growth. But as
it arose directly from the necessities of actual settlers, espe-
cially those of limited means, the dominant spirit of the law
is actual residence and improvement. As such, it claims
the title of the first American settlement law of a really
beneficent character. The Public Land Commission say
that " the pre-emption system was the result of law, experi-
ence, executive orders, departmental rulings and judicial
construction. It has been many-phased, and was applied
by special acts to special localities, with peculiar or additional
features, but it has always contained, even to this day, the germ
of actual settlement, under which thousands of homes have

425] The Land Question in the United States. 167

been made, and lands made productive, yielding a profit in
crops to the farmer and increasing the resources of the nation."1

PKE-EMPTION NO LONGER NEEDED.

Changes in the land system since the passage of the Home-
stead Act introduced new features into pre-emption. The
homestead law has eclipsed pre-emption, and pre-emption
has now outlived its usefulness. The homestead law con-
tains pre-emption features, and, in case a homesteader desires
to avail himself of its provisions, facilities are given him to
acquire title exactly on the same conditions as pre-emption.
There seems now to be no necessity of retaining pre-emption
as a system. On the contrary, it seems to be much abused
by settlers. The same Public Land Commission which
acknowledged the merit of pre-emption in its earlier years
maintain that " the pre-emption laws are now the hope of the
land-grabber, and are the land-swindler's darlings."2 Mr.
McFarland, the late Commissioner of the General Land
Office, from time to time recommended Congress to repeal
the pre-emption law. In his report for 1884, he says : " I
renew previous recommendations for the repeal of the pre-
emption law. . . . Economy of administration alone suggests
such repeal, while the great abuses flowing from the illegal
acquisition of land titles by fictitious pre-emption entries,
and the exactions made upon bona-fide settlers, who are often
obliged to buy off such claims in order to get access to public
lands, render the repeal, in my judgment, a matter of public
necessity."3

Lately, bills have been introduced into Congress which
propose the repeal of the pre-emption law. No definite
action has yet been taken upon them.4 Mr. Sparks, the

] Public Domain, 215.
Ubid. 678.

3 Land Office Report, 1884, 6.

4 See Public Domain, G79-682, and Congressional Record, January 7,
1884.

168 The Land Question in the United States. [426

present Commissioner of the General Land Office, agreed with
his predecessor in his opinion of pre-emption, and recom-
mended its repeal in the Land Office Report for 1885. He
says : " The pre-emption system no longer secures settlements
by pre-emptors. If it did, or could be amended to do so, it
would be useless for any good purpose, because supplanted by
the more effective homestead law, if a home is the real
object designed to be secured. If a home is not the object,
the sooner the facility for obtaining land without making a
home upon it which is offered by this system is removed
from the statutes, the better for the settlement interests of the
country and the future of its institutions."1 Whether the
Forty-Ninth Congress will repeal the law, remains to be seen.

VAKIOUS LAND GRANTS FROM 1841 TO 1862.

During the period of twenty years in which the pre-emption
law played the chief role in the land system, and served most
efficiently the purpose for which it was enacted, several other
important measures relating to the public lands were also
passed, and some of them, like railroad grants and mining
laws, are of such magnitude as to affect the economy of the
whole country. It does not fall within the scope of this
monograph to treat of railroad grants, much less of the mining
laws. Readers are referred to special works on these subjects.2

We shall, however, briefly review a few of these important
land measures.

1 Land Office Report, 1885, 69-70.

2 See article on Railroad Land Grants in North American Review,
March, 1885, by J. W. Johnson. See also Our Public Land Policy,
H.arper's Monthly, October, 1885, by V. B. Paine ; Railway Influence
in the Land Office, North American Review, March, 1883, by George
W. Julian ; and a rejoinder to the latter, The Railways and the U. S.
Land Office, Agricultural Review, April, 1883, by Henry Beard.

For mining laws see Land Laws of Mining Districts, XII., Second
Series J. H. U. Studies, by C. A. Shinn.

427] The Land Question in the United States. 169

DONATION, SWAMP, AND GRADUATION ACTS.

Congress passed a donation act on August 4, 1842, for the
Territory of East Florida.1 Persons who were able to bear
arms, and to make actual settlements on certain sections of
the Peninsula, were freely entitled to one-quarter section of
land. Another donation act was passed for Oregon Territory,
September 27, 1850. This granted to settlers public lands
to the extent of from 160 to 640 acres, the quantity of land
depending upon the priority of settlement and the domestic
life of settlers. If a settler was a married man, he was
allowed from a half section to an entire section of land, one-
half always being vested in the hands of his wife. The dona-
tion act of Oregon Territory was followed by similar acts for
the Territories of Washington and New Mexico, on March 2,
1853, and July 22, 1854 respectively. Actual settlement
and cultivation for four consecutive years were necessary to
secure land grants under these donation acts.

These several donation acts were a premium upon settle-
ment in the frontier sections of the country which were exposed
to the attacks of Indians. The settlements had, therefore,
something of the character of military colonies of the ancient
Republic, or of the Teutonic Marches.

These free grants of land were by no means a new feature
in the land system of the United States. They were inaugu-
rated by the old Continental Congress. Besides the grants
of military, religious, and educational character, there were
special grants to special individuals for certain meritorious
services. Precedents for special grants being numerous, the
public lands were made subject to various schemes and
projects not always of a laudable character. The inauguration
of such settlement laws as pre-emption checked many schemes.

In 1849,2 Congress inaugurated a system that led to the
grant of immense areas of swamps and overflowed lands to

1 Statutes-at-Large, V. 502-504.

2 Ibid. IX. 352. "

170 The Land Question in the United States. [428

the States in which such areas are situated. In the following
year, Illinois had the first railroad land grant, which was
followed by a series of grants to various railroad corporations.
In 1854, the Graduation Act was passed. This was to
cheapen, for the benefit of actual settlers and for adjoining
farms, the price of lands which had been long in the market.

EARLY MOVEMENT FOE HOMESTEADS.

We now come to the Homestead Act, the most important of
all the settlement laws. The movement to secure homesteads
to actual settlers may be traced as far back as 1833, when
Evans began to agitate his land reform through a paper called
The Radicals. It was a movement against land monopoly
which was destined soon to .become an anti-slavery measure.
Mr. Webster, in his speech on the Graduation Bill in 1839,
said : " As to donation to actual settlers, I have often expressed
the opinion, and still entertain it, that it would have been a
wise policy of Government from the first to make a donation
of a half or whole quarter section to every actual settler, the
head of a family, upon condition of habitation and cultiva-
tion ; that this would have been far better and freer from
abuse than any system of pre-emption."1 This speech rep-
resented a general policy which was advocated by the Whigs
against retrocession. To oppose cession to the States was to
oppose the propagation of slavery, for, if the new States should
receive public lands as advocated by the representatives of
slave-holding States, they would eventually come into servile
ways of thinking and would be lost to free States.

AGITATION BY " FKEE-SOILERS."

In 1844, Evans advocated, in the People's Rights, the
following points: (1) Freedom of the public lands in a
limited quantity to actual settlers ; (2) Cessation of the sale

1 Webster's Works, IV. 525.

429] The Land Question in the United States. 171

of public lands to non-resident purchasers ; (3) The exemp-
tion of homesteads, and (4) The restriction of the purchase
of any other land to a limited quantity.1 This was the year
in which President Polk was elected. In four years from
that time, land agitation had become a potent factor in
American politics. A party called "Free-Soil Democracy"
now appeared. This party consisted of two elements, political
Free-Soilers and conscientious Free-Soilers. The former were
confined to the State of New York, and were called " Night-
Soilers" by an opposing party. The latter were found in
every Northern State; scattered also through Delaware, Mary-
land, Virginia, and Kentucky. The conscientious Free-
Soilers were frequently called " Abolitionists."

In 1848, the Free-Soil Democracy held a National Con-
vention at Buffalo, and nominated John P. Hale, of New
Hampshire, for President, and Charles F. Adams, of Mas-
sachusetts, for Vice-President. The Free-Soilers seceded
from the Democrats, but did not join the Whigs. They de-
termined to secure free soil for a free people, and to restrict
slavery to its State limits. They said that " Congress had
no more power to make a slave than to make a king." So
they refused to introduce slavery into new Territories. In
the Thirty- First Congress, the Free-Soilers were represented
by only two Senators and only fourteen Representatives.
In the Thirty-Second Congress, the Senators increased in
number to three, and the Congressmen to seventeen. Charles
Sumner was then a Free-Soil Senator.2

In the Presidential year of 1852, the Free-Soil Democracy
held a National Convention at Pittsburg, and nominated
John P. Hale, of New Hampshire, and George W. Julian, of
Indiana, for President and Vice-President respectively.
They inserted the following clause in their platform : " That
the public lands of the United States belong to the people,

1 Meyer's Heimstatten und andere Wirthschaftsgesetze, 408.

2 See Free-Soil Party, by Alexander Johnston, in Cyclopaedia of Political
Science.

172 The Land Question in the United States. [430

and should not be sold to individuals, nor granted to corpo-
rations, but should be held as a sacred trust for the benefit
of the people, and should be granted in limited quantities,
free of cost, to landless settlers." Thus the free-soil or
homestead movement became a national question.

Mr. Seward was then advocating in the Senate a homestead
law. In his speech on the public domain which was delivered
in the Senate February 27, 1851, he said: "The gratuitous
distribution of public lands to actual settlers is marked by
equal humanity and good sense." Again, he said : " All
will admit — all do admit — that the power over the domain
should be so exercised as to favor the increase of population,
the augmentation of wealth, the cultivation of virtue, and
the diffusion of happiness." He further argued, from the
point of industry, that " the first and fundamental interest of
the Eepublic is the cultivation of its soil. That cultivation
is the sole fountain of the capital or wealth which supplies
every channel of industry."1

In the Presidential year of 1856, there arose the new
Republican party, which grew out of the Free-Soil Democracy
and the Whigs. From that time no more was heard of the
Free-Soil party, but its principles were represented in the
platform of the new party. Free homes and the restriction
of slavery were the main issues of the Republicans, as pre-
viously of the Free-Soil Democracy.

HOMESTEAD BILLS IN CONGKESS.

In 1859, the struggle for a homestead law began in
Congress. The bill passed the House of Representatives by
a majority vote of 1 20 to 76 ; but it failed in the Senate. It
was the Cuban bill that obstructed the passage of the Home-
stead Act. The two bills were of opposing character, one
pro-slavery, and the other for free soil. On this point Mr.
Seward said in the Senate : "After nine hours7 yielding to the

1 Seward's Works, I. 156-162.

431] The Land Question in the United States. 173

discussion of the Cuban question, it is time to come back to
the great question of the day and the age. The Senate may
as well meet face to face the issue which is before them. It
is an issue presented by the competition between the two
questions. One, the homestead bill, is a question of homes,
of lands for the landless freemen of the United States. The
Cuba bill is the question of slaves for the slave-holders of the
United States."1

Although the friends of the Homestead Act did not then
succeed in passing it, yet it was destined to come up again,
and that soon. The following year Mr. Grow, of Pennsyl-
vania, introduced the bill in the House. On March 12, it
passed the House and went to the Senate. In the Senate,
however, Mr. Johnson's substitute for the House bill was
adopted, and this, after a protracted conference with the
House, was finally accepted. Mr. Johnson's bill differed
from the original House bill in not allowing pre-emptors to
enjoy the benefit of the homestead law. The Senate bill also
confined its provisions to lands which were subject to private
entry. It limited the minimum age of settlers to- twenty-five
years. There were also some other differences in the Senate
bill as distinguished from that of the House*. Suffice it to
say, through the efforts of the members of the House Com-
mittee, a compromise was effected, and much of a restrictive
character in the Senate bill gave way to the more liberal
elements of the House bill. The compromise was by no
means satisfactory, even to the members of the committee, but
it was the best they could obtain from the Senate. On this
point, Mr. Colfax, a member of the Conference Committee,
said to the House : " We regard this as but a> single step
in advance toward a law, which we shall demand from the
American Congress, enacting a comprehensive and liberal
homestead policy. This we have agreed to as merely avant-
courier."2 Mr. Grow also said that they agreed with the

1 Seward's Works, IV. 59.

2 Public Domain, 339.

174 The Land Question in the United States. [432

Senate bill on the principle of " half a loaf is better than no
bread."

PKESIDENT BUCHANAN'S VETO.1

The compromise bill passed both Houses of Congress by a
large majority ; but on June 23, President Buchanan vetoed
the bill and returned it to the Senate. The first objection of
Buchanan was based on constitutional grounds. The veto-
message dwelt particularly on this point, and urged that
Congress had no power to give away public lands either to
individuals or to States. This was an old objection which
had been raised against the policy of internal improvement
by its opponents. There were too many precedents in the
way of Buchanan's constitutional objection. A second objec-
tion was partiality. The message urged: "It will prove
unequal and unjust in its operation among the actual settlers
themselves." The point was that if the new-comers were
allowed to acquire land free or at the insignificant price of
twenty-five cents per acre, the old-comers would suffer from
the reduction of the price of their real estate. The same
objection was raised also in behalf of old soldiers who
received Government lands for their services in the Army.
Again, the homestead law was unjust because it favored only
one class of people — namely, the agricultural class — at the
expense of other avocations. It was unjust, moreover, to
the older States of the Union, because, first, it would
deprive them of their just proportion of the public revenue ;
and, second, it would deprive them of population through
the encouragement of free farms. A third objection was that
the homestead law would open a vast field for speculation.
Buchanan was afraid that homesteaders would become the
mere tools of capitalists. His fourth objection was that the
law did not extend the same privileges to native and natural-
ized citizens. The latter, though not heads of families, were
assured of a free farm, while the former had to be masters of

»For the text, see Public Domain, 342-345.

433] The Land Question in the United States. 175

households in order to secure the benefits of the law. A fifth
objection was that partiality would be shown among the pre-
emptors themselves. The existing pre-emptors could secure
the lands at the reduced price of 62 J cents per acre, but
future pre-emptors would have to pay the full minimum
price. The sixth and last objection was that the homestead
law would deprive the Government of a source of public
revenue. The message said the bill " lays the ax at the
root of our present admirable land system." In conclu-
sion, the message declared: "The people of the United
States have advanced with steady but rapid strides to their
present condition of power and prosperity. They have been
guided in their progress by the fixed principle of protecting
the equal rights of all, whether they be rich or poor. No
agrarian sentiment has ever prevailed among them. The
honest poor man by frugality and industry can, in any part
of our country, acquire a competence for himself and his
family, and in doing this he feels that he eats the bread of
independence. He desires no charity, either from the Gov-
ernment or from his neighbors. This bill, which proposes to
give him land at an almost nominal price out of the property
of the Government, will go far to demoralize the people and
repress this noble spirit of independence."

The veto thus unfortunately deprived the Democratic party
of the honor and merit of passing the homestead bill. The
two great parties kept their party lines with regard to the
public land. It was the Democratic party that secured the
acquisitions, and it was the Republican party that passed
most of the settlement laws. Each party has done its peculiar
service to the country.

FINAL PASSAGE OF THE HOMESTEAD ACT.

On July 8, 1861, a homestead bill was introduced in the
House of Representatives. The bill received the immediate
attention of the whole House, and after being referred sue-

176 The Land Question in the United States. [434

cessively to the Committee on Agriculture and to the Com-
mittee on Public Lands, it passed the House on February
28, 1862. About a month later the House bill was taken up
by the Senate. As in the previous session of Congress, a
substitute for the whole bill was introduced by a Senator
from Virginia, but this time it failed to be carried. After a
few amendments, the House bill passed the Senate by a vote
of thirty-three to seven. Agreements were soon effected
with the House, and the bill received the approval of Presi-
dent Lincoln on May 20, 1862.

This original homestead law has been amended several
times, and each amendment has granted more liberal pro-
visions to actual settlers. But the fundamental principle of
the Homestead Act is the grant of a free homestead to bona-
fide settlers. This principle has never been lost from view.

The homestead law,1 as it now stands, grants to every
applicant who is the head of a family or above the age of
twenty-one, one hundred and sixty acres of public land or
a less quantity in legal subdivisions, free of charge, except
certain fees to the Register, on the condition of actual settle-
ment and cultivation. The title passes to the homesteader
after five years7 residence upon the holding. But if he desires
to secure the title earlier, he can do so by paying the Govern-
ment the full minimum price of the land. This is known as
" the commutation of homestead entries," and it virtually
comes under the provisions of the pre-emption act. In the
same way a pre-emptor can change to a homestead entry. Thus
the homestead law embraces the pre-emption provision, while
pre-emption is limited to only one form of acquiring the
title — that is, to a legalized private purchase at the minimum
price of unoifered land. Since this is secured through a
homestead provision, the uselessness of the pre-emption law
is apparent, except as it enables settlers to avail themselves
of the two acts, and thus increase the size of their holdings
to three hundred and twenty acres.

1 Reviseti Statutes, 419-424.

435] The Land Question in the United States. 177

The most beneficial provision of the act is the exemption
of the homestead from the obligation of debt contracted prior
to the issue of the patent. This enables a settler to build up
a new homestead free from any embarrassment under which
he might have labored previous to his settlement. After the
patent passes to the settler, he is protected by the homestead-
exemption law of the State in which it lies.

Besides the homestead provision to ordinary settlers, there
are so-called Soldiers' Homesteads and Indian Homesteads.
The former extends the benefits of the homestead law to those
who served in the Army or Navy during the late Civil War.
The length of time the soldier was in the Army is deducted
from the term of five yeaa-s, or, in other words, the service in
the Army is considered as a substitute for actual residence.
Indian homesteads are granted to those Indians who have
abandoned their tribal relations. These homesteads are
inalienable for the period of five years after the issue of the
patent.

EULOGIES OF THE HOMESTEAD LAW.

Many eulogies have been pronounced upon the homestead
law, some of which may well be cited here. The Public Land
Commission say : " The Homestead Act is now the approved
and preferred method of acquiring title to the public lands,
.... and was the outgrowth of a system extending through
nearly eighty years, and now, within the circle of a hundred
years since the United States acquired the first of her public
lands, the Homestead Act stands as the concentrated wisdom
of legislation for settlement of the public lands. It protects
the Government, it fills the States with homes, it builds up
communities, and lessens the chances of social and civil dis-
order by giving ownership of the soil, in small tracts, to the
occupants thereof. It was copied from no other nation's
system. It was originally and distinctly American, and
remains a monument to its originators."

178 The Land Question in the United States. [436

A land lawyer of repute, in "Washington, Mr. Copp, says :l
" To the people of Europe, where the high price of real estate
confers distinction upon its owner, it seems beyond belief that
the United States should give away one hundred and sixty
&cres of land for nothing. Yet such is the fact ; a compliance
with the homestead law, and the payment of small fees and
commissions to the local officers, secure title to a quarter
section of Government land. Laborers in other countries,
who find it difficult to support their families, can here acquire
wealth, social privileges and political honors by a few years
of intelligent industry and patient frugality. All in the
Atlantic States who are discouraged with the slow, tedious
methods of reaching independence, will find rich rewards
awaiting settlers on the public lands who have talent and
energy, while the unfortunate in business, and they who are
burdened with debt can, in the West and South, start anew
in the race of life, for the homestead law expressly declares
that 'no lands acquired under the provisions of this chapter
(Homestead) shall in any event become liable to the satisfac-
tion of any debt contracted prior to the issuing of the patent
therefor.'"

The value of the homestead law for opening the Western
country cannot be over-estimated. It will remain as the land
law of the United States as long as the public lands continue
to exist.

r THE EDUCATIONAL LAND GRANTS.

Soon after the passage of the homestead law, Congress
granted to all the States 30,000 acres of land for each Repre-
sentative and Senator in Congress, for the purpose of estab-
lishing agricultural and mechanical institutions . Historically,
this was an outgrowth of the early educational land grants
for common schools and seminaries.2

1 The American Settler's Guide, 25.

2 Federal Land Grants for Education in the Northwest Territory, by Dr.
Geo. W. Knight, Papers of American Historical Association, I., No. 3.

437] The Land Question in the United States. 179

TIMBER AND DESERT LAND ACTS.

Acts which relate more directly to the settlers in the West
are the Timber Culture and Desert Land Acts. The former
was passed on March 3, 18 73,1 and grants to settlers tree-
less lands to the extent of 160 acres for the encouragement
of tree culture. While certain sections of the public lands
were treeless, and thus needed the donation of lands for
tree culture, other sections are chiefly valuable for timber and
stone. These are chiefly on the Pacific Coast. An act was
passed June 3, 1878,2 authorizing the sale of timber and stone
lands to the extent of 160 acres each, at $2.50 per acre. At
the same time a strict law was enacted for the prevention of
timber depredations on the public lands. The Desert Land
Act was passed on March 3, 18 7 7.3 This allows, on a credit
for three years, an entry of 640 acres of desert land — that is,
land which does not produce agricultural crops without irri-
gation. Both the Timber and Desert Land Acts have been
repeatedly condemned as a source of fraudulent entries, and
their repeal has been recommended by the late Commissioner
of the General Land Office.

\ CONCLUSION.

In conclusion, we shall recapitulate a few important points.
All the public lands of the United States, except those
reserved for special purposes, are sold at public sale and by
private entry. They are classified as follows : 1. Mineral
lands ; 2. Timber and stone lands ; 3. Saline lands ; 4. Town-
site lands; 5. Desert lands; 6. Coal lands; and 7. Agri-
cultural lands. They are disposed of under special laws
governing each class. The agricultural lands are subject to
the settlement laws — namely, pre-emption and homestead.

1 Statutes-at-Large, XVII. 605-606.
Ubid. XX. 89.
*Ibid. XIX. 377.

180 The Land Question in the United States. [438

But, as soon as surveys are completed, they are offered also
at public sale, in which the highest bidder can purchase any
amount of land. After a public sale the remaining lands are
allowed for private entry. Through various kinds of sales,
grants, and settlements, the public lands have been rapidly
disposed of. The available lands of various descriptions,
exclusive of Alaska, which still remain unsold amount to
more than six hundred and forty million acres. This is
more by twenty million acres than all the lands hitherto
disposed of since the acquisition of the public lands down to
1883. The nation's interest truly demands wise, economic,
and judicious administration of the remaining public
property. But this is impossible without first reforming
the existing land laws, which are much abused by unscrupu-
lous land grabbers. Again, during the interval between
1850 and 1872, an enormous amount of lands had been
granted to railroad corporations. The grants amounted to
more than one hundred and fifty-five million acres. Of these,
more than one-third had already been patented, but the rest
ought to be recovered by the Government on account of non-
fulfillment of various conditions stipulated in the grants, as
well as for the interest of honest settlers. Commissioner
Sparks says of these unpatented lands : " The amount of
unpatented lands embraced in all the grants subject to decla-
ration of forfeiture is estimated at one hundred million acres,
an area equal to that of the combined States of New York,
New Jersey, Pennsylvania, Delaware, Maryland and Vir-
ginia. The restoration to public settlement and entry of
this great body of lands is a subject of the first magnitude
and of profound national importance. The question presented
is strictly one of legal right. The default of the companies
has been voluntary. The rights of the public are now to be
considered — the right of the people to repossess themselves
of their own. The case is not one calling for sympathy to
the corporations : it is one calling for justice to the people."1

1 Land Office Report, 1885, 44.

439] The Land Question in the United States. 181

Public opinion inclines to agree with Commissioner Sparks.
Although the public domain is of such vast extent, and the
laws pertaining to it are so complex that some persons think
that there are too many obstructions in the way of honest
administration of the land laws — such obstructions, for
example, as land grabbers and cattle kings — to my mind the
present question of land administration in the United States
is perfectly simple. Indeed, two words would suffice to
indicate clearly the future policy of the public-land adminis-
tration. These words are REFORM and RECOVERY — reform
of legal abuses and recovery of the public lands from railroad
corporations.

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